Cox v R

Court of Criminal Appeal (NSW)|2015-06-10|Before: Simpson JA, Davies J, Hamill J

Solicitors: S E O'Connor - Legal Aid NSW (Appellant) C Hyland - Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/138659 Decision under appeal Court or tribunal: District Court Date of Decision: 03 March 2014 Before: Garling ADCJ File Number(s): 2012/138659

Judgment

SIMPSON JA: On 21 November 2013, after trial by jury, the appellant was convicted on an indictment that charged a single count of sexual intercourse with a child then under the age of 10 years. On 3 March 2014 he was sentenced to imprisonment for 6 years, commencing on 19 November 2013, with a non-parole period of 4 years which will expire on 18 November 2015.
The appellant sought leave to appeal against both the conviction and the sentence. Because the sole ground he sought to advance in support of an appeal against conviction was one raising a question of fact only, he required leave to do so: Criminal Appeal Act 1912 (NSW), s 5(1)(b). That ground was that the conviction was unreasonable and could not be supported having regard to the evidence. Consideration of that ground required this Court to make its own assessment of the whole of the evidence in the case, bearing in mind the advantage had by the jury in observing the witnesses at first hand: M v The Queen [1994] HCA 63; 181 CLR 487.
At the conclusion of the argument, the Court made orders granting leave to the appellant to appeal against the conviction, allowing the appeal, quashing the conviction, and ordering the entry of a verdict of acquittal. What follows are my reasons for joining in those orders.

The Crown case

The Crown case may be summarised briefly as follows.
The complainant was born in January 2004. His mother ("K") had for some years lived in a de facto relationship with the appellant's brother, C. The complainant lived with K and C. The appellant lived in the same coastal area as the complainant and his family and socialised with them intermittently.
At some time between 1 November and 17 December 2011 (when the complainant was 7 years of age) the appellant took the complainant to a beach. They were alone. They ate fish and chips for lunch. The complainant played in the sand. The two swam in a rock pool and the appellant threw the complainant in the air and caught him. At the appellant's suggestion they walked to an area of bush. In the bush, the appellant pulled the complainant's board shorts and underpants down and put the complainant's penis in his mouth. His mouth remained on the complainant's penis for some time. The appellant pulled up the complainant's pants, and told him not to tell anybody.
The complainant's penis was "stinging a little bit, and it was bleeding". When he returned home he had a bath and went to bed. He did not tell K or C of the incident.
The first time the complainant made any report of what had happened was on Boxing Day 2011, at his father's house in Newcastle, where he had been staying since 16 December. In the course of conversation over a family dinner the complainant told his father and his aunt that the appellant had touched him on the penis. In answer to a question from his father, the complainant said that C had also touched him on the penis. The following day the complainant's father had a private conversation with the complainant in which the complainant maintained that the appellant had touched him on the penis. He said that C had touched him on the penis in the course of applying a cream that had been prescribed for a medical condition from which the complainant was suffering.
The complainant's father consulted a general practitioner and, acting on the advice of the general practitioner, reported the complainant's allegation to the Department of Community Services ("DOCS"). On 4 January 2012 the complainant took part in an interview conducted by the Joint Investigation Response Team ("JIRT"), an investigation comprised of officers of DOCS and NSW Police. The interview was electronically recorded.

The trial

The complainant's evidence in chief was given by playing the video recording of the interview of 4 January to the jury: Criminal Procedure Act 1986 (NSW), s 306S. It is necessary to extract lengthy portions of that interview. Those portions are taken from the transcript, about which there was no dispute. The appellant is referred to as "Steven" or "uncle". After some preliminaries, the interviewer asked the complainant about "Steven". The complainant responded: "He done some naughty things." The interview proceeded: "Q45 About Steven. And, and what did you want to tell me about Steven? A About my penis. Q46 About your penis, yeah. What about your penis? A He was taking me to a beach - - - … A - - - and he said, Let's go in a far bush and he pulled my pants down - - - … A - - - and he done that. Q49 O.K. And when did that happen? A A few weeks ago. Q50 And where did it happen? … A - - - it was … Beach - - - … A - - - and we had a little swim and then Uncle had a break and I had a swim and then we went in the bush and he had a little walk and see the far bush and he done it. Q57 And then what happened? A And then he pulled my pants down and then he done it for long and then he pulled 'em back up and then we went home, back to mummy and we, mummy didn't know, I didn't tell mummy yet, but Steven, Steven said, Don't tell anyone. … Q233 And he pulled 'em down and he said, Don't tell anyone. And I said, and I said, and he said, All right. And I said, I am, I am gunna tell someone. … Q283 O.K. I just want to go back to the part where Steven's pulled your shorts down. Tell me about how you were, were you standing or sitting or something else? A Standing. Q284 You were standing. And what was Steven doing? A Then in his mouth Q285 In his mouth? A Mmm Mmm. Q286 Was Steven standing or sitting or something else? A Sitting - - - … A - - - like, like this. Q288 And you said, and you were standing? A Mmm Mmm. I was about to say stop. Q289 O.K. You just said then, In his, in his mouth. Tell me about that part? A In his mouth? … A I don't know about his mouth. Q291 When you said, In his mouth what did you mean? A He was about to bite it. … Q296 - - - what's, it? A - - - he just came over and bit it? Q297 Bit it, bit what? A Bit my penis. Q298 Your penis, O.K. So, tell me about that part, how he bit your penis? A He was getting his teeth and he bite it - - - … A - - - and this is the mark where he whacked it, whacked his hand on ….. right here. Q300 You said before that it hurt a bit. Tell me about how it hurt? A It hurt - - - … A - - - it was stinging a little bit and it was bleeding. Q302 Was it bleeding? A (NO AUDIBLE REPLY) Q303 O.K. A And I went in the bath and I went to sleep and it was much better in the morning - - - … Q307 What about when Steven bit it in, in his mouth, what did he say? A I don't know. Q308 So, tell me more about what Steven was doing when, when he had you penis in his mouth and was biting it? A He was biting it right there - - - … A - - - in the middle. Q310 In the middle. And what else was happening? A That was all then I went home and telled mummy and we went to the doctor's - - - … A - - - to check it out and it was bleeding. The doctor said here's this cream, use it, and the blood will go away for weeks - - - …"
The complainant then recounted what he said had taken place after these events when the appellant drove him home. He said that the appellant stopped the car at a red light, and he let a bee come in "and bite it".
He was then asked about the appellant telling him not to tell his mother what had happened. He said that the appellant used "swear words", and that this occurred "in a far bush", but a different bush from where the events had taken place. He said that he did not tell his mother because he forgot to do so and that, if he did tell anybody, the appellant would be "very, very cross with me" and would possibly hurt him with a knife.
The complainant said that, after the appellant left him at his house, his mother was at home and C arrived that evening. He said that he told his mother the same night. The following is recorded in the transcript of the interview: "… Q371 Yeah. And what did you say to her? A Steven's been doing it. Q372 So, you said Steven's been doing it? A Yeah. Q373 And what did mum say? A Maybe I'll ring up the police and say what they say and put him in gaol. …"
He also said that he told C, his stepfather. The following questions and answers are recorded: "Q385 O.K. And then you said [C] came home. Did you say anything to [C]? A At the dinner table, yes. Q386 Yes. What did you say to [C] at the dinner table? A [The answer was non responsive.]"
The interviewer returned to the events in the bush. The transcript records the following questions and answers: "Q389 O.K. So, you told me that Steven touched your penis with his mouth, he put it in his mouth - - - A Right in his mouth." He said that the appellant did not touch any other parts but that he had taken his pants off. He then gave an account of the appellant making a fire, putting his hand in it and burning himself. The following questions and answers are then recorded: "Q419 … So, before he put his mouth on your penis he pulled his pants down? A Yeah. Q420 Yeah. And what was his hands doing? A Grabbing it. Q421 His hands were grabbing it. And how was he grabbing it? A Like my knees and I grabbed his face - - - … A - - - on his chin. Q423 Yeah. When you say grabbing it, what's it, what was he grabbing? A My penis. Q424 He was grabbing your penis. A And my legs. Q425 And your legs, O.K. A And I was getting annoyed. Q426 What was he saying? A One time I'm gunna get [C] and hurt him. … A He was saying I'm gunna get [C] with a gun."
The complainant was cross-examined. He repeated that he had told his mother that evening, and that, the following day, she had taken him to the doctor. That was because of the bleeding caused by the bite.
He was asked about his account of the fire he said had been lit by the appellant and agreed that that had never happened. He said: "Yes, that's right, I'm sorry, I'm telling a lie, I just can't remember, I've been asleep by then." He agreed that his tale about the bee being let into the car was also not correct. He maintained, again, however, that he had told his mother, although he had not told C.
The following evidence was then given: "Q. At no time did Steven ever touch your penis or bite your penis? A. He touched it. Q. So are you saying to us he touched it but didn't bite it? A. Yes, that's right. … Q. Are you saying to us, [name of complainant]? A. Yeah. Q. That Steven touched your penis but he didn't bite it? A. He touched it but didn't bite it. Q. What, are you saying he touched it with his hand did he? A. Yes, that's right. Q. You see, [name of complainant], nothing like that happened I'm suggesting to you? A. Yes. Q. You just told your dad that this man had touched you so you could get his attention? A. Yes, that's right." The trial judge then asked the complainant some questions, recorded as follows: "Q. So you're saying he didn't ever touch your penis? A. Yes, your Honour. Q. He didn't ever put it in his mouth? A. He did, your Honour. Q. If he put it in his - in your (as said) mouth then he touched it didn't he? A. No, your Honour. I don't understand. … Q. Can you just take a deep breath for me, just think about it and tell us truthfully what actually happened? A. Okay, it happened, what happened is he put it in his mouth. Q. And? A. And also he said after that, 'Don't tell anyone'. Q. Did he bite it? A. No, your Honour. Q. And that's the truth? A. Yes, your Honour."
In re-examination, the complainant told the Crown prosecutor that what he meant when he said that the appellant "touched [his] penis" was: "I mean as he put it into his mouth."
Evidence was also given by the complainant's father. He said that what the complainant initially said was: "Steven touched me on the penis and I didn't like it."
He also said that, in the morning of the day that he took the complainant to the JIRT interview, he went with the complainant and his other children to a Newcastle beach (far distant from the coastal area where the complainant, K, and C lived, and where the complainant claimed the offence had occurred). The complainant pointed to an area of the beach where dune restoration was taking place, and said: "Daddy it happened over there."
The complainant's father also gave evidence that the complainant had a longstanding infection on his penis, for which he had been treated with a cream. He said that when the complainant told him that C had also touched him on the penis, he (the complainant's father) asked if it was for the purpose of applying the cream, to which the complainant assented.
The complainant's mother, K, gave evidence that the first she knew about the allegation was from a telephone call from the complainant while he was staying with his father in Newcastle. The complainant rang her and said: "Mum you'd be so proud of me today." To which she replied: "Why is that darling?" He said: "I told the police the truth today … Steven had touched my willy at the beach."

The arguments on appeal

On behalf of the appellant, six separate aspects of the evidence were identified as giving rise to doubt about the accuracy of the complainant's evidence.

(i) The complainant's evidence about being bitten on the penis

As will be seen from the above accounts, the complainant's evidence was conflicting concerning this topic. His ultimate evidence, in response to questions by the trial judge, was that the appellant had not bitten his penis, and that was the truth. His initial complaint to his father made no mention of any form of oral contact - he merely said that the appellant had "touched" him on the penis.

(ii) The complainant's evidence about the appellant lighting a fire

Again, the complainant's evidence was conflicting. In the end, he said: "I'm sorry, I'm telling a lie, I just can't remember, I've been asleep by then."
At the commencement of his evidence, and also at the commencement of the interview, the complainant had been extensively questioned about his understanding of the difference between the truth and a lie. Ultimately, the trial judge was satisfied that he had sufficient understanding to be able to give his evidence on oath.
For myself, I would not take too literally the answer "I'm telling a lie"; that is an expression not uncommonly used by adults who correct themselves. It is, however, in my opinion, indicative that the complainant's recollection of the events was unreliable.

(iii) and (iv) The complainant's evidence that he had complained to his step-father, C; and his mother, K

Initially, in the interview, the complainant said that he had not told his mother (Q57). Then (Q310) he said that he had told his mother, and that she had taken him to the doctor the following day. He repeated that at Q370-373. He said that he had told C. He maintained that in his oral evidence.
C did not give evidence. However, it is quite clear from the evidence given by K that the complainant had not said anything to her until the day of the telephone call, which was after the JIRT interview on 4 January.

(v) The complainant's evidence of what he told his father

The evidence, both from the complainant and from his father, of what the complainant had told his father was that he had said the appellant had "touched" him on the penis. He made no mention of putting his mouth (with or without a bite) on the complainant's penis.

(vi) The complainant's evidence as to the scene of the assault

This is the evidence that, on the morning the complainant was to be interviewed by JIRT, he identified a Newcastle beach as the place where the offence had been committed. This was plainly wrong.

The respondent's submissions

On behalf of the Crown it was pointed out that there was some evidence supporting peripheral aspects of the events. For example, K gave evidence that the appellant had taken the complainant to a beach on at least one occasion.
The Crown also relied on the evidence of complaint, as given by the complainant's father, notwithstanding the inconsistency of the content of the complaint with the account given by the complainant in the JIRT interview. Principally, however, the Crown relied upon the superior position of the jury in observing the witnesses as they gave their evidence.

Conclusion

There is no issue concerning the reliability of the evidence of the complainant's father or mother. For reasons identified above, the complainant's evidence is such that it is insufficient on which to base a safe conviction.
The complainant's evidence was classically of the kind that: "… contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way …" as to demonstrate that: "… even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted …" (M v The Queen [1994] HCA 63; 181 CLR 487 at 494) This Court was, accordingly, bound to set aside the verdict based on the evidence.
I was satisfied that the ground of appeal that the conviction was unreasonable and could not be supported by the evidence was made good.
DAVIES J: My assessment of the evidence at the trial leads me to have a reasonable doubt about the guilt of the appellant. It is not necessary to accept that the complainant was, on occasions, telling lies as he asserted that he was. He was aged about 8 at the time of the recorded interview and about 9½ at the date of the trial. His assertion that he was telling some lies might only have been a statement that what he had said was wrong.
However, what the evidence demonstrated at the least was that the complainant was confused and unreliable. Some of the evidence (eg about when he told his mother and her partner C, and the assertion that the incident took place at a beach near Newcastle) was demonstrably wrong. He asserted a number of times that the appellant had taken his penis in his mouth and had bitten it, but he also said a number of times that this assertion was not correct. Further, in the light of that contradictory evidence, it is significant that his first complaint to his father was only that the appellant had touched his penis. He made a similar statement to his mother on the telephone after he had spoken to the police.
After giving due weight to any advantage the jury had in relation to his evidence, I could not be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged. For that reason I joined in the orders made at the conclusion of hearing of the appeal.
I have now read the judgment of Simpson JA. I agree with her analysis of the evidence and her reasons for upholding the appeal.
HAMILL J: On 10 June 2015 I joined in orders quashing the appellant's conviction and entering a verdict of acquittal. I did so because on my review of the whole of the record of the trial I formed the view that it was not open to the jury, in the sense discussed by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, to be satisfied beyond reasonable doubt of the guilt of the appellant. On a review of all of the material, I had a reasonable doubt about the appellant's guilt. I remained of that view after giving "due weight to the advantages that the jury had in regard to the evidence and the atmosphere of the trial": M v The Queen at 525 (McHugh J). To adopt the opening remarks of Mr Pontello, which echoed the words of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen at 494, "there's a reasonable possibility that an innocent person was convicted here".
I have now had the opportunity to read the draft judgment of Simpson JA. I agree with her Honour's judgment. It encapsulates with clarity my reasons for coming to the opinions expressed in the preceding paragraph. I have nothing to add her Honour's analysis.

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: 23 June 2015

At a glance

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Judgment (13 paragraphs)

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