230 CLR 559
M v The Queen [1994] HCA 63181 CLR 487
MFA v The Queen [2002] HCA 53213 CLR 606
SKA v The Queen [2011] HCA 13243 CLR 400
The Queen v Baden-Clay [2016] HCA 35
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2012/253686
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 17 March 2015
Before: McClintock SC DCJ
File Number(s): 2012/253686
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant stood trial in March 2015 before his Honour Judge McClintock SC and a jury at Nowra District Court on two counts of sexual intercourse with a child under the age of 10 years (5 years) in circumstances of aggravation, namely that the complainant was at that time under the applicant's authority, between 1 May and 31 July 2012 contrary to s 66A of the Crimes Act 1900 (NSW).
The applicant was convicted of those counts (counts 1 and 3) and received an aggregate sentence of imprisonment for 12 years, commencing 17 March 2015 and expiring 16 March 2027, with a non-parole period of 8 years expiring 16 March 2023.
The applicant has appealed against his conviction pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) upon the following ground:
The verdicts are unreasonable or cannot be supported having regard to the evidence
Factual background and Crown case
Throughout the relevant period in 2012 (1 May - 31 July) the complainant and the applicant lived in the same street in West Nowra. In early 2012 the complainant and her family moved into a house near to that occupied by the applicant, his wife, his daughter and his granddaughter, S. The complainant met the applicant's granddaughter, S, in her kindergarten class at school and they became friends.
The complainant was born on 31 December 2006 and was aged eight at the time of the trial. The complainant's evidence in chief was given by playing the video recording of an interview conducted by the Joint Investigation Response Team ("JIRT") on 14 August 2012 when the complainant was aged five.
In the interview, the complainant said that "the truth is someone hurt me". What happened was that "the boy punched me in the eye". The person who hurt her was the applicant from "up the road". The complainant said that the applicant "hurt" her "every time I went there" [to the applicant's house]. The applicant hurt the complainant using his "hands and body". He hurt her "in the private part". The name she used for this part was "misadorsa". It was used "to wee".
On the first occasion when the applicant hurt the complainant at his house "he hit me in the eye" and "he done the private part". S had been in the cubby house and the complainant could not find her. The applicant suggested "Let's go and get the torch, but when he did it, he hit me in the eye". The complainant knew that the applicant meant to hit her because "he turned around and got his fist out". He used his fist to "punch [the complainant] in the eye".
The applicant also held a black and silver knife to the complainant's teeth. The knife was already in the room where they were. The complainant sketched the knife. The complainant told him "No, but he still done it". The applicant touched the complainant's "bum hole" with the knife over the top of her clothes. He did not say anything. The complainant told him to stop but he kept doing it. The complainant was wearing black tights and a black shirt. The applicant did not do anything further on the first occasion.
Count 1
Count 1 occurred when the complainant was at the applicant's house with her younger brother, K, visiting S. The applicant's wife and daughter were also at home.
In the complainant's interview, the following is recorded:
"Q100 ...Tell us about another time it happened.
A His private part touched mine.
Q101 OK. And where were you when his private part touched yours?
A He took me in the room.
Q102 Which room was that?
A His room.
…
Q105 … tell us what happened.
A I don't remember.
Q106 How did his private parts touch your private parts?
A He put his near mine.
Q107 OK. And when he put his private parts near yours, did you have clothes on or off?
A On.
Q108 And did he have clothes on or off?
A Off.
Q109 OK. And when he put his private part near yours, what did he do with it? What did he do with his private part?
A Pushed it in.
Q110 Pushed it in. Where did he push it in? Where did he push it in? You told me that he ---
A My ... my, my misadorsa.
Q111 OK. And is there another name for that?
A The other one I said, the private part.
…
Q125 ... So did he put his private part into your private part over the top of your clothes. or something else?
A Top.
…
Q128 ...What did he say?
A Nothing.
…
Q132 ... How long were you in his bedroom?
A One minute, I would say.
Q133 And when he put his private part in your private part, how did it stop? What happened to make it stop?
A He, he stopped.
…
Q136 When [the applicant] put his private part into your private part -
A Yeah
Q137 - what could you feel?
A Hurt.
Q138 Tell me more about the hurt. What part hurt?
A The, the misadorsa.
Q139 And tell me, did it hurt inside or outside or something else?
A Inside.
Q140 Inside. And what could you see when that was happening?
A Nothing.
Q141 Nothing. So when he put his rude part into your rude part, what position were you in? Were you standing or lying or sitting or something else?
A Standing.
Q142 You were standing. Where were you standing?
A On the floor.
Q143 And where was [the applicant] standing? Or where was he?
A He was getting the -
Q144 He was what, sorry?
A Getting the torch.
…
Q146 Why was he getting the torch?
A The cubby was so dark, so I couldn't see.
…
Q150 And where's the torch kept?
A Kept up high in the cupboard, up high.
Q151 What room is the cupboard in?
A His room.
Q152 OK. So he got the torch. What happened after he got the torch?
A Nothing else."
The complainant said that after the applicant "stopped" she ran out and played with S, who had been playing with the complainant's brother, K. The applicant's wife and daughter were watching TV.
The complainant marked diagrams of a girl and boy to show what she meant when she referred to the private parts of herself and the applicant respectively.
On another occasion when the complainant was visiting the applicant's house with her younger brother and "everyone" was at home, the applicant made the complainant's "misadorsa" bleed. He did this by punching it with his wrist under the complainant's clothes. The complainant was wearing a pink shirt and red tights. When asked how the applicant punched her on the inside of her clothes, the complainant replied, "I don't know, actually". S was playing with the complainant's brother at the time and the others were in the lounge room.
Count 3
When asked in her interview if she had ever seen the applicant's "rude part" the complainant answered "No". She went on to describe it as having "hair and spots on it". She knew this because "one time I saw it". The complainant said that on the occasion when she saw the applicant's private part "he was hurting mine" with his hand, using his fingers and "all the rest of the part of the hand". The applicant was "wobbling his fingers around" underneath her clothes and on the inside of her "rude part". The complainant felt "hurt". The applicant did not say anything. The complainant told police "That's all he done to me".
In cross-examination, the complainant agreed that after she began socialising with S outside of school, it became the practice that the applicant would bring S over to the complainant's house to play every couple of days or so and would leave her there. Afterwards, the complainant, the complainant's brother and sometimes the complainant's mother would go over to the applicant's house.
The complainant agreed in cross-examination that on each occasion when she went to the applicant's house, his wife and daughter (S's mother) were also at home. The complainant usually played with S in the lounge room. Sometimes they played in the hallway or in S's bedroom. On one occasion they played in S's mother's bedroom but she did not want this to continue. They were not allowed to go into in the main bedroom, which the applicant and his wife shared.
The complainant initially agreed in cross-examination that at the time of her interview, she went to school with boys and she knew that boys were children and not grown up people like the applicant. When it was put to the complainant that when she told police "The boy punched me in the eye" she was not referring to the applicant, the complainant maintained that she was. She said that the applicant was a boy "Because I didn't know the difference of a man and a boy".
The complainant agreed in cross-examination that the punch to her eye was a hard punch. There was no mark, but her eye was a "little bit" red. When asked if she cried, she answered "No, I ran home". She agreed that she did so straightaway. When asked if she had a clear memory of running home straightaway the complainant answered "Kind of". When it was put to the complainant that rather than tell the police that she ran straight home she told them that the applicant did something to her teeth with a knife, the complainant replied "Yeah he put them near my teeth". The complainant maintained that she ran home "I ran home and then I went back". She did not tell her mother that she had a sore eye.
The complainant could not remember the applicant putting a knife on her "bum hole".
The complainant agreed in cross-examination that if it happened, the applicant's behaviour would have upset her and that she would not like the applicant or going to his house. She agreed that she knew that her mother loved her and would do anything for her. She agreed that "if those things had happened" she "wouldn't have wanted to go back and play over there again". When it was put to the complainant that the applicant never did those things to her, the complainant maintained "He did. He did".
Regarding her allegation that the applicant "punched" her "misadorsa" with his wrist causing it to bleed, the complainant agreed in cross-examination that she did not mention this incident to her mother. The complainant said that she cried and went home to her room, where she continued to cry. The complainant maintained that this incident occurred.
In relation to Count 1, the complainant confirmed in cross-examination that "everybody" was in the house. The applicant was in his bedroom when he took his clothes off. He was standing when he put his "private part" into the complainant's. The complainant could not see what he was doing when he put his private part into hers "Because the lights were off". The complainant confirmed that they were in the bedroom for about a minute. She could not remember what the applicant did afterwards or when he put his clothes back on. The complainant ran home.
The complainant confirmed that she was wearing tights and said that the applicant put his private part into hers over the top of her clothes. The complainant denied that the incident never happened.
The complainant agreed that when she was at the applicant's house, sometimes she would walk home by herself and sometimes her mother would come to pick her up. There was no fixed arrangement. Sometimes her father or her grandfather would come there to see her. The complainant agreed that she did not know when they might come.
In relation to Count 2, the complainant maintained in cross-examination that the applicant put his fingers into her "misadorsa".
The complainant agreed in cross-examination that there were times when she could have told her mother what happened. When it was put to the complainant that the applicant did not threaten her in any way, the complainant replied "He did threaten me". The complainant confirmed that prior to the first incident, the applicant "hadn't said or done anything bad".
The complainant agreed in cross-examination that she liked going to the applicant's house because she liked to play with S. She denied that the applicant was nice to her. She denied that none of the incidents ever happened.
Evidence of NP
The complainant's mother, NP, gave evidence that the complainant was the eldest of her three children. Her brother and sister were respectively two and five years younger than she was. NP was separated from the children's father and lived alone with them at the house in West Nowra.
When NP realised that S and her mother lived with S's grandparents, she went to the house to see who lived there and was introduced to the applicant. The applicant brought S over to her house the following day and told NP that he and S's grandmother helped their daughter to look after S.
After that, during the July or August school holidays, the children commenced going back and forth between their two houses playing every day or every second day. On 28 July 2012 NP hosted a barbeque to celebrate her father's birthday. She invited all of the members of the applicant's household to the barbeque but only the applicant and S came. The applicant told NP that the children were very well behaved and that he "adored" them coming over and knew what games they liked to play.
A few days later when the children were playing at the applicant's house, their father was visiting from Sydney and wanted them to come home. NP went to the applicant's house at about 5 or 5.30pm in the evening to fetch the children. The applicant came into the lounge room where the children were playing and said "Oh, they've been playing beautifully". He asked, "Can you just give them a bit more time to finish playing, they've done so well". The children were absorbed in their game on the floor and did not look up. NP agreed, and returned to get them in about half an hour when their dinner was ready.
The complaint
Several days after that NP's mother came over for dinner. While her mother was doing the dishes, NP walked past the complainant's bedroom and saw the complainant playing with an empty cardboard box on the floor. She overheard the complainant say, "[S's] pop was a bad man and some of her family were good people". The complainant was stabbing holes in the box and drawing crosses and sad faces on it. She was also drawing happy faces and big black dots. The complainant could not see NP.
NP entered the complainant's bedroom and asked her "did anything happen if she's saying he's a bad man". The complainant told NP that the applicant "had touched her rude part which was her ball which to me was her clitoris, but she started touching herself down there and rubbing it saying that he was rubbing her down there". The complainant had taken her pants down to demonstrate touching her clitoris. NP became upset and left the room for a short time.
When NP returned to the complainant's bedroom, the complainant told her further that the applicant had made her do a "leg spread in the air and she fell and hurt her back and shoulders". The complainant said she was scared to tell NP what the applicant had done. The complainant was crying. The complainant also told NP that the applicant had held a knife to her teeth and said that if she ever told her mother or father, he would kill them.
The complainant told NP that when the applicant touched her "ball" he played with it and moved it around, which the complainant demonstrated by rubbing her clitoris with her hand. NP asked if the complainant had seen the applicant's penis "and she just kept crying and closing her eyes. She said that he pulled it out and rubbed her ball with his penis". The complainant said that this occurred when the applicant took the complainant into his "girlfriend's room and put her onto his girlfriend's bed and told her to sit in the corner and look the other way and they were going to play a game of hide and seek and look for her brother. He turned off the light and handed her a torch and then he had no clothes on and he was rubbing his penis against her clitoris". The complainant "kept saying that he put it in but she couldn't understand that she couldn't see it but she could feel it in her belly button and that it hurt and that sometimes he would put his fingers in there and she couldn't understand why it was there but she could still see them and why it was hurting".
The complainant told NP that the applicant's penis was hairy and had spots on it.
The complainant also told NP that the applicant "had put knives in her bum hole and that hurt and she was very scared and she couldn't tell me or he would kill me. And it happened on many occasions and he would - she would bleed and he would clean her with a sponge". The applicant told the complainant "to run home and go away because she wasn't his family and she ran to the lounge room but was too scared to come home and then he'd come out telling her to go, so she ran home".
NP had a further conversation with the complainant the following morning, where she repeated that the applicant "would touch her down there with his penis".
NP reported the matter to police immediately. She gave a formal statement to the police on 12 September 2012.
In cross-examination, NP agreed that she was very careful about where she let the complainant go and that she was an attentive parent. She agreed that the complainant also used to play at the house of another friend, A, across the road. NP denied that sometimes the children walked themselves between houses "Not unless one of us was at the front". When it was put to NP that the complainant was allowed to return home by herself from the applicant's house, NP answered, "Well not really, she wasn't allowed to just run by herself, just because it was two doors down". The complainant could come home "if she was desperately, obviously. But I always told her to make sure she was walked down". NP did recall the complainant returning home unaccompanied on occasion "I would either go get her or she would be brought down or on occasion she would just run home and turn up at the doorstep".
The officer in charge of the investigation, Detective Sergeant Tanya Byrne Hickman, gave evidence that on 14 August 2012 she attended Nowra Community Centre with Wendy Warburton, a member of DOCS, and had a conversation with NP and subsequently with the complainant. Detective Sergeant Byrne Hickman and Ms Warburton then formally interviewed the complainant.
Expert evidence - Professor Brown
On 13 August 2012 the complainant was examined by Professor Brown. Professor Brown was a qualified medical practitioner admitted to practice in 1978 who, at the time of the trial, was the Director of the Sexual Health Service in the Illawarra and Shoalhaven district. Professor Brown had held this position since 1995.
Professor Brown was provided with a history from the complainant's mother of digital and penile penetration of the vagina. She examined the complainant by conducting a visual inspection of the complainant's genitalia and prepared a report containing her findings. Professor Brown found that the complainant was a pre-pubertal child with apparently normal genitalia:
"A. She had a hymen that was a little hard to see originally but she had a normal anal and peri-anal examination and there was no evidence of any injury that I saw at that time.
Q. Right, you had a - formed an opinion that her genitalia was normal?
A. I did.
…
Q -- the conclusion that there was no indication of injury, what does that show?
A. If - well, if there is - the fact that there is no evidence of any injury doesn't mean that a touch did not occur … It may - it doesn't say one way or the other whether the skin was touched.
…
Q. What would be the reaction of a child, a young child to the touching either with a finger or a penis in the area of the vulva?
A. Touch on the genitalia, particularly where the hymen and the skin, the internal skin rather than the external skin can be very uncomfortable, even painful for a young child. Because there is no oestrogen the skin there is quite thin ... in a young prepubertal child the vulva is very close to the surface because the skin is not thickened like it is as you get older and the nerve endings are quite tender. You know when you touch them the child experiences discomfort.
…
Q ... what do you say in relation to the rubbing of the clitoris based on your findings?
A. You can't tell whether a clitoris has been rubbed as such. It's not something that's likely to cause an injury, digital pressure against a clitoris. The clitoris is less tender than - the skin that's particularly tender is the skin where the hymen is and that little area, the vestibule, so that's the little area to the outside of the hymeneal area. The clitoris is less likely to be very tender.
Q. The reference to the hymen, the hymen in this particular case how did you find that?
A. It was a normal shape, there were no injuries to the hymen.
Q The ... full penetration of the vaginal canal with a male adult penis what would that cause generally in a child that age?
A It's likely to cause an injury but young children heal very rapidly so if there are small injuries they may occur and then heal within a short period of time. … Children heal much more rapidly than adults overall and that area [the genitalia] in young children even when there's evidence sexual contact has occurred and injuries have occurred, when children have been examined within a few days of those exposures they will often heal very rapidly. Particularly if the injuries are superficial injur[ies] they will be healed within a number of days."
When asked about a wrist causing bleeding to the genital area and if such an injury would leave scarring, Professor Brown expressed the opinion that an injury caused by a wrist touching or hitting against the skin would be "more likely to cause bruising than anything else if the hitting or punching was quite hard. But it was possible that if it were less hard and there was already a small injury there you might just take the top off a small injury and then that would bleed. It's not a very common thing for people to have a wrist hit anywhere on the genitals as such".
In cross-examination Professor Brown confirmed that the history given to her (which she understood the complainant had given to her mother) included that he "had done his penis into her 10 times", "nearly every day that she visited her school friend" and that she thought the penis "went in so far as her belly button". Professor Brown agreed that if that is what had occurred "you would expect to see trauma".
Professor Brown agreed in cross-examination that "if a knife was placed into a child's bottom it would cause an injury. But again injuries heal".
Professor Brown agreed in cross-examination that a blow from a wrist to the genital area would need to be substantial to cause bleeding from the vagina. When it was put to the Professor that "the whole prospect of somebody having bleeding caused to them by a blow to their vulva from a wrist was highly unlikely" she responded "It's a difficult concept".
In re-examination Professor Brown said that "if there was something worn like a watch or a bracelet or something that had sharp edges that could cause injury".
The applicant's case
Detective Sergeant Byrne Hickman gave evidence that the applicant participated in an audio recorded interview with police at Penrith on 14 August 2012.
The applicant did not give evidence at trial. Through his audio-recorded interview with police and cross-examination of the complainant by his trial counsel, the applicant denied the offences and further uncharged allegations.
The applicant told police that he was born in 1950 and had moved into the house in West Nowra in May 2012 with his partner of 39 years, their daughter and granddaughter. He had purchased the house 12 years before.
The applicant knew the complainant, her mother and her brother, K, through his granddaughter S. S and the complainant were in the same class at school. They were friends and wanted to play after school hours. The applicant thought that the first time the girls socialised together outside of school hours was the first day of the school holidays. From that time, S, the complainant and A (another girl living in the same street) used to "criss-cross" between their three houses and play amongst the driveways. The applicant said that his wife did not like this as she "didn't think kiddies should be running around" and she said "it will be happening every day". The applicant told her "Well, all, what, what you do is you, you put a cut-off point on it, you know, and [S] will have to understand that nanna and pop can't, we can't be sort of entertainin' 'em all the time". If the children were still at his house when it was starting to get dark at about 6.30pm or 7pm, the applicant would say to them "Look, time to go home".
For a while the children came over every day. They played "all over the house basically, you know like, in the lounge probably mainly" where the fire was going. The applicant sketched a plan of the house. Sometimes the children played in S's room and on at least one occasion they attempted to play in S's mother's room, building a tunnel out of pillows and a mattress (which the applicant moved to the hallway instead), but the applicant made his bedroom "a no go zone". The children may have gone in there once or twice but it was never a play area. The applicant could not say if he was ever alone with any of the children in any of the rooms as they were "always in and out", however, he was never alone with any of the children in the bedrooms and "I can specifically say never [the main bedroom] because our, our room was off limits".
Sometimes the applicant would help to resolve conflicts between the children, such as when they would pretend to be cats and one of the girls wanted to change the game or play something else.
The applicant denied touching the complainant except to spin her around when they were dancing together or when applying lice treatment to the girls' hair in the bathroom. The applicant denied ever hitting the complainant or holding a knife to her. He denied ever threatening to kill the complainant's parents. He denied that he placed his fingers or his penis inside the complainant's vagina or that he harmed her.
Evidence of good character was led in the applicant's case. Kathleen Fahey gave evidence that she had known the applicant since she was five years old and in kindergarten with the applicant's daughter. She had regularly spent time at the applicant's house including sleeping over.
At the time of the trial, Ms Fahey had five children of her own and had been a kindergarten teacher since 2001. Her training to become a teacher included learning to be aware of the signs of child abuse and sexual assault in children. Growing up, Ms Fahey never saw anything in relation to the applicant that caused her concern in that regard "he wasn't like that at all, he's not like that". She considered him "a lovely father" and "just a good family man". Ms Fahey had left her own children with the applicant and his partner "on many occasions myself with no concerns whatsoever".
Ms Fahey agreed in cross-examination that while the applicant was living in Nowra she did not have the contact with him she had had previously. She had spoken to him on the phone but she did not travel to Nowra.
Megan Tregier gave evidence that she had known the applicant since she was six years old and at school with the applicant's daughter. She regularly visited the applicant's house to play with the applicant's daughter on afternoons and weekends, including sleeping over. Her personal association with the applicant lessened when she started high school.
Ms Tregier never noticed or felt concerned about the applicant making sexual advances towards her, nor did she ever hear any suggestion that the applicant might be inclined to sexually interfere with children. As a child Ms Tregier had experienced "minor" behaviour "that wasn't appropriate" towards herself from somebody else. The applicant was not the kind of man who would assault a child.
Ms Tregier agreed in cross-examination that she did not see the applicant in 2012 when he was living in Nowra. She had been living in Port Macquarie for 19 years.
The applicant's submissions
The applicant submitted that doubt arose on the Crown case in four respects:
1. The inherent implausibility of aspects of the complainant's evidence.
2. Inconsistency between the evidence of the complainant and the evidence of complaint.
3. The lack of corroborating evidence where such corroboration should be expected.
4. Doubts must arise in relation to the occurrence of a penetrative act (an element necessary to ground each of the two counts).
(1) Inherent implausibility
The applicant submitted that Count 1 required him to have penetrated the complainant's vagina with his penis. The complaint evidence for this count was that NP had been told by the complainant that she could feel the applicant's penis in her bellybutton. The applicant submitted that the difficulty with this evidence is that the complainant did not at any time suggest that her clothes were removed and agreed with the proposition that the act occurred "over the top" of her clothes. The applicant submitted that penetration as alleged was simply implausible if the complainant was wearing clothes.
The applicant relied upon the complainant's evidence that both she and he were standing when the penetration occurred. The applicant noted that he was a grown man and the complainant was a child aged five. The applicant submitted that given the difference in heights, it was inherently implausible that the penetrative act as complained of, could have occurred in those circumstances. He submitted that common sense would suggest that his genitalia when standing would be significantly higher than a five year child who was also standing.
The applicant referred to the complaint evidence received by Professor Brown, which was that there were 10 acts of penile penetration and multiple knives used to penetrate the anus. The applicant noted that the knife, as drawn by the complainant, had a handle and a curved blade. He submitted that it was implausible that a single penetration or multiple penetrations of the anus with a knife could occur without injury or it becoming apparent to the complainant's mother.
The applicant referred to the evidence of the complainant that she was punched (the first uncharged act) after which she ran home and then ran back to his house. The applicant submitted that had the complainant been punched as she asserted, it was implausible that she would have returned to his house after running home.
In relation to the occasion when the complainant said she was punched in the eye, she also said that the applicant held a knife on or near her mouth. The applicant submitted that in cross-examination her evidence suggested that this had occurred after she had run home and then returned to his house. The applicant submitted that it was inherently implausible that had these events occurred as the complainant asserted, she would have put herself back at the house and alone with him after he had inexplicably and forcefully punched her. The applicant further submitted that even if there were doubts as to the sequence of events, because there was no evidence of any accompanying verbal threats, one would have expected the complainant to have complained to her mother when she ran home.
The applicant relied upon the complainant's evidence in cross-examination that if these events had occurred as she described, she would not want to go to the house, nor would she want to come in contact with the applicant but nevertheless she continued to do so. The applicant submitted that there was an inherent implausibility in those actions if that evidence were correct.
(2) Inconsistency
The applicant provided a temporal analysis as follows. The events were said to have occurred between 1 May and 31 July 2012. The complaint to NP was said to have occurred at about the end of that period. The medical examination occurred on 13 August 2012. The JIRT interview occurred on 14 August 2012. On NP's evidence, the offending would not have started until the July school holidays, since it was not until then that the complainant started to go to the applicant's house. It followed, so the applicant submitted, that the interview with police was conducted within six weeks of the likely first possible date for the offending.
The applicant submitted that despite that relatively short timeframe, the complainant did not give evidence, either in her interview with police or in court, of being penetrated in the anus by a knife. She did not give evidence of being made to do a "leg spread in the air". She did not give evidence of when in the course of the act of penile penetration she was placed on the applicant's bed and told to look away. (To the contrary she suggested that she was standing on the floor.) She did not suggest that he had used a sponge to clean her when she had been bleeding. It followed, so the applicant submitted, that the complaint to NP was in many respects grossly inconsistent with the complaint made to police only a short time later.
(3) Lack of corroborating evidence
The applicant accepted that the submissions under this heading were predicated on the proposition that despite the time period averred in the indictment, the evidence strongly suggested that the complainant did not start to visit the applicant's house until July 2012.
The applicant noted that the complainant said that he hurt her every time she went there. She had, according to NP, been to his house as recently as a few days before her first complaint to NP. On the basis of that evidence, the applicant submitted that the complainant had been to his house and according to her, hurt by him as recently as two weeks before the medical examination.
The applicant noted that despite this, Professor Brown saw no sign of injury despite a history of repeated deep penetration of the vaginal canal by his penis and multiple acts of penetration of the anus using a knife. The applicant submitted that although Professor Brown did note that a child healed relatively quickly, a doubt must arise as a result of the complete absence of injury found by Professor Brown. This was because of the history given by the complainant when compared to the relatively recent examination following the alleged events.
The applicant noted that NP was a mother who was protective of her children. She said she was careful and kept an eye on her daughter. Despite that, she gave no evidence of the complainant coming home by herself upset, she did not notice any redness or marking to the complainant's eye, and she did not notice any blood in the complainant's clothing despite the complainant having clothes on when she was punched in the genital area with the applicant's wrist. The applicant submitted that it was difficult to accept that the complainant, being hurt by him on every occasion that she was at his house, was not apparently seen or noticed by any of the other occupants of the house to be in distress.
(4) Doubts that must arise in relation to the occurrence of a penetrative act
The applicant noted that each of the counts had as an essential element an act of penetration. The applicant submitted that a reasonable doubt as to that element would of itself require a not guilty verdict to Counts 1 and 3. The applicant submitted that the totality of evidence did raise such a doubt concerning the act of penetration.
The applicant specifically referred to the lack of evidence from the medical examination. He relied upon the demonstration by the complainant to NP, which involved "touching" and "rubbing" but not actual penetration. The applicant submitted that there was a real ambiguity in that demonstration and that it was consistent with there being no penetration, but only external touching. The applicant submitted that even if the Court were satisfied to the necessary level that touching had occurred, it could not be satisfied beyond reasonable doubt that the touching involved penetrative acts.
Consideration
When considering whether a verdict is unreasonable, the Court is to make its own independent assessment of the sufficiency and quality of the evidence. The question for this Court is whether notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to let the verdict of guilty stand (M v The Queen [1994] HCA 63; 181 CLR 487 at 492; SKA v The Queen [2011] HCA 13; 243 CLR 400).
The principles which inform the review of evidence to be undertaken by an appellate court where it is contended that a verdict is against the weight of evidence were explained by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen [2007] HCA 30; 230 CLR 559. Hayne J after noting that the evidence adduced at the trial in that case did not all point to the applicant's guilt said:
"113 … But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. …" [Footnotes omitted]
In answering the question whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount either the consideration that the jury was the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses. As McHugh, Gummow and Kirby JJ observed in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [59]:
"59 … involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials."
More recently in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 the court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said:
"65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."" [Footnotes omitted]
The point made by the applicant concerning the requirement that the Crown prove beyond reasonable doubt that penile/vaginal penetration occurred is well made. On this issue, there were three sources of evidence: the complainant; NP, the complainant's mother, and the history which Professor Brown said she received. Of those by definition the least reliable would be that of Professor Brown since it involved her interpretation of what NP told her which in turn involved an interpretation of what the complainant said to NP. Significantly, it is only in the history recorded by Professor Brown that an assertion is made that penile/vaginal intercourse occurred "ten times" and that it went in "as far as her bellybutton". There was no evidence in the trial from NP confirming that this history was correct. Most particularly, the complainant did not give evidence that penile/vaginal penetration occurred on ten occasions. While the complainant did say that the applicant hurt her "every time" she went to the house, this was in reference to a number of different incidents and she went on to particularise only one occasion involving penile penetration.
NP's evidence of what she was told by the complainant has to be assessed in the light of her position as a mother who had just become aware of some distressing information, which so upset her that she had to leave the bedroom for a short time. There would inevitably have been a significant emotional overlay in her evidence as to what she was told by the complainant. This is not to say that NP was in any way deliberately manufacturing or distorting the truth, it is simply to acknowledge the circumstances in which the complaint was made to her.
Against that background, the most reliable evidence is that of the complainant. In saying that, it also needs to be kept in mind that the interview took place when the complainant was aged five and her evidence at trial was given three years later when she was aged eight. Even allowing for those qualifications, the complainant's evidence alone is sufficient to establish the penetration element in the offences. Importantly, neither NP's evidence nor the history recorded by Professor Brown was put to the complainant in cross-examination. The jury was in the best position to assess the complainant's evidence having been appropriately directed by the trial judge. The evidence of the complainant in her statement that her private part "hurt inside" when the applicant put his private part in hers is decisive on that issue if it were accepted by the jury.
Also significantly, the complainant's evidence in relation to Count 3 was not effectively challenged in cross-examination and has not been challenged other than in a general way, in the appeal. Her evidence on the occasion that she saw the applicant's private part was: "he was hurting mine" with his hand, using his fingers and "all the rest of the part of the hand" and that he was "wobbling his fingers around" underneath her clothes and on the inside of her "rude part". This evidence has a particular immediacy and ring of truth about it. These are not the sort of actions one would expect to have described by a five year old child unless they in fact occurred.
It is trite to observe that a child of five years would not be expected to have anything but a rudimentary understanding of anatomy. It is understandable that the complainant perceived that there was some sensation in the lower part of her body with even the slightest degree of penetration or of rubbing on her clitoris or that her attempts to describe it would involve reference to her "ball". As Professor Brown explained, the skin in the area to the outside of the hymeneal area (the vestibule) is particularly tender in a pre-pubertal child.
It should be noted that nowhere is there evidence of complete vaginal penetration. On the contrary, the evidence goes no further than some penetration. NP's recollection of what she was told by the complainant is consistent with an attempt by a very young child to describe the physical sensations of an activity about which she had no understanding. The jury was entitled to regard the evidence of the complainant and that of her mother as representing the complainant's best efforts to explain both the sensation and her confusion at what was occurring.
Once it is accepted that the evidence did not assert complete vaginal penetration, the absence of injury or signs of injury when Professor Brown examined the complainant is of much less significance. The jury may well have decided that the absence of hymeneal injury was not a factor which undermined the complainant's reliability. Such a finding was well open to them. That is the conclusion I have arrived at on my analysis of the evidence.
The complainant did not give evidence that she was anally penetrated with a knife or knives. This evidence came from NP who said that the complainant told her that the applicant put a knife "in" her "bum hole". The evidence of the complainant was that the applicant placed a knife near her teeth and that he did something with a knife near or "on" her "bum hole", but not underneath her clothes. On the complainant's account, which the jury were entitled to prefer over that of her mother, there was no suggestion that injury was caused by a knife.
The defence case at trial was that the evidence of the complainant as to what occurred was bizarre, or inherently unbelievable. This was first raised with the jury in the defence opening address and was a central theme in the defence closing address. The jury were reminded of these submissions in the summing up (SU 18-19, 27). Accordingly, the very matters which have been put to this Court were put fairly and squarely to the jury at trial.
With respect to the "punch" to her vulva causing bleeding, the complainant described being punched by the applicant's wrist but struggled to further describe it other than to say that it hurt. Similarly, when she gave her account of the incident, the subject of Count 3, she also described the applicant using "all the rest of the part of his hand" and that he was "hurting" her. The threatened use of a knife, as well as the use of physical force (punch to the eye and punch by the wrist to her vulva) were all components of the complainant's account of the occasions on which the applicant hurt her with his hands and body when she visited his house.
It was open to the jury to accept that acts of this nature occurred not necessarily to the extent or in the precise terms described by the complainant without that finding diminishing their assessment of her overall credibility and reliability. The jury was well aware that the complainant was a five year old child being required to give an account of traumatic events during which she was hurt, frightened and threatened by an adult male in authority over her.
It was open to the jury to accept that it was difficult for her to describe all of the events in a sequential and logical manner. It was well open to the jury, having seen her give her evidence, to assess her reliability in that context. The jury was in a much better position to make this assessment than is the Court.
One of the matters raised by the applicant is the inherent improbability of the offence in Count 1 occurring when the complainant said that the act of penetration occurred "over the top" of her clothes and that she and the applicant were both standing when the penetration occurred. When, however, one looks at the interview more closely the circumstances of the offending are much less clear. It can be seen that the phrase "over the top of your clothes" is a form of words used by the questioner and adopted by the complainant, rather than a spontaneous description by her. The same occurred in cross-examination when the complainant was simply asked to confirm that she had told the interviewing police that the applicant "put his private part in over the top of your clothes".
"Over the top of your clothes" is an expression replete with ambiguity. The complainant was wearing tights and a t-shirt. It is quite possible that the complainant intended to say not that penetration occurred through her clothes but that it was effected without her being undressed by just moving her clothing. Her responses in the interview are those of a five year old child to questions which she was being asked and should be assessed in that context.
A similar problem arises in relation to the issue of whether the complainant's evidence was truly to the effect that she and the applicant were both standing when the offence in Count 1 occurred. The evidence is at Q.141-144 of the interview (see [10] hereof). The complainant then confirmed that she and the applicant were in the applicant's room and that he was getting a torch, which was kept in the cupboard. There were no further questions specifically about the applicant's position when the penetration occurred.
The matter was not taken up again until cross-examination at trial, some three years later. At T63 the following exchange took place:
"Q. And you said when he put his private part into yours he was standing?
A. Yes.
Q. But - sorry, you were standing when this happened?
A. Yes.
Q. What was he doing --
A. Could I please have a break?"
The complainant became upset during the break and asked to go home but after a longer interval, the cross-examination resumed without returning to questions about standing or otherwise (T.71).
The transcript alone does not reveal the manner in which the questions immediately before the break were answered, nor whether the complainant was focused or already distressed or distracted at this point. The jury had the benefit of seeing the complainant give her account in the police interview and respond to questions in cross-examination. When read as a whole, and with appropriate consideration given to the complainant's age, these matters do not necessarily raise a doubt about the reliability of the complainant's evidence.
The applicant relies upon the failure of other adults in the applicant's house to notice the abuse occurring, the complainant's failure to complain earlier to her mother and the complainant choosing to return to the applicant's house after the first occasion of abuse. These submissions overlook the realities of child sexual abuse and the situation in which the complainant found herself. It is regrettably a common occurrence that adults fail to observe such things and child victims of sexual abuse more often than not, for a variety of reasons, are reluctant to make a complaint particularly against an adult.
There was evidence that the applicant was involved in the supervision of the children when they were at his home and at times was closely involved in their play which was "all over the house". Telling the complainant that he would fetch a torch so that she could see in the dark cubby house created an ideal opportunity to have the complainant alone with him, to offend quickly and without detection by other adults in the house.
To avoid returning to the place or person where the offending was occurring may be difficult for even an adult or older child, let alone a five year old. The complainant may still have wanted to go to the house to play with her friend and been unable to navigate the situation.
In cross-examination a series of hypothetical questions were put to the complainant, the purport of which was that if the offending had occurred, the applicant's behaviour would have upset her so that she would not have liked the applicant nor going to his house. These questions were quite inappropriate for an eight year old child and it is surprising that they were not objected to. In any event, given their hypothetical nature, they do not adversely affect the prosecution case.
Importantly, in cross-examination the complainant agreed with the proposition that she liked going to the applicant's place because she liked playing with S (T.77) but when asked the immediately following question about whether the applicant was nice to her, she responded "No". Alternatively, or in addition, the complainant may have felt unsure about how a complaint about the applicant would be received by her mother, despite her mother being "protective". The complainant told her mother she was scared and did not want to tell her what had happened and on one occasion, was "too scared to come home". As already indicated, these are common features of child sexual abuse cases and do not cause me to have a reasonable doubt about the credibility of the complainant.
The evidence of the complainant in the interview included compelling descriptions of acts of sexual intercourse in the language of a five year old child. This is particularly so with the offending in Count 3. In cross-examination when challenged the complainant firmly maintained that these events occurred. The principal question for the jury was whether the complainant's allegations in her 2012 interview were reliable and could be accepted beyond reasonable doubt. The matters raised by the applicant, both at trial and on appeal, were relevant to that assessment but it does not follow that the jury should have rejected her account.
Upon my independent assessment of the evidence, it was clearly open to the jury to find beyond reasonable doubt that the applicant had committed the offences contained in Counts 1 and 3. I am satisfied beyond reasonable doubt that the jury verdicts were not unreasonable and were adequately supported, having regard to the evidence. The matters raised by the applicant, both individually and collectively, do not cause me to conclude that the jury's verdicts were unreasonable.
The order which I propose is that leave to appeal be granted but that the appeal against conviction be dismissed.
SCHMIDT J: I agree with Hoeben CJ at CL for the reasons which his Honour gives.
WILSON J: I agree with the orders proposed by Hoeben CJ at CL, for the reasons given by his Honour.
[3]
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: 14 March 2017