Davis v R - [2024] NSWCCA 120 - NSWCCA 2024 case summary — Zoe

NSWNSWCCA

Davis v R

[2024] NSWCCA 120

Court of Criminal Appeal (NSW)|2024-06-26|Before: Adamson JA, Garling J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2024-06-26

Before

Adamson JA, Garling J

Catchwords

(2013) 88 ALJR 101 Decision Restricted [2024] NSWCCA 81 Lee v R [2023] NSWCCA 203 M v The Queen (1994) 181 CLR 487
[1994] HCA 63 MFA v The Queen (2002) 213 CLR 606
[2020] HCA 12 R v ACK [2000] NSWCCA 180 R v Johnston (1998) 45 NSWLR 362 R v Markuleski (2001) 52 NSWLR 82
[2001] NSWCCA 290 Reed v R [2006] NSWCCA 314 The Queen v Baden-Clay (2016) 258 CLR 308

Source

Original judgment source is linked above.

Catchwords

(2013) 88 ALJR 101 Decision Restricted [2024] NSWCCA 81 Lee v R [2023] NSWCCA 203 M v The Queen (1994) 181 CLR 487[1994] HCA 63 MFA v The Queen (2002) 213 CLR 606[2020] HCA 12 R v ACK [2000] NSWCCA 180 R v Johnston (1998) 45 NSWLR 362 R v Markuleski (2001) 52 NSWLR 82[2001] NSWCCA 290 Reed v R [2006] NSWCCA 314 The Queen v Baden-Clay (2016) 258 CLR 308[2016] HCA 35 TK v R (2009) 74 NSWLR 299

Judgment (42 paragraphs)

[1]

Background

The applicant was born in December 1984. He and his wife bought a residence in Bourke in about Christmas 2018 and moved in shortly afterwards. Their child was born in June 2019.
The complainant was born in April 2004. In 2018, when he was 14, he lived with his mother and, as she referred to them, her "two younger babies". The evidence did not reveal the location of the complainant's father other than that he was not part of the household.
The applicant met the complainant between 29 and 30 August 2018, when the complainant attended a camp at Redbank National Park which was arranged by the Clontarf Academy, an organisation which taught life skills to school-aged boys (the Clontarf camp). At the time, the applicant was employed by NSW National Parks and Wildlife Service and on 29 August 2018 was working at Redbank National Park near the site where the Clontarf camp was held.

[4]

The complainant's account to PJ in June 2020

The first person whom the complainant told about what had happened at the farm was PJ, his then girlfriend. At the time of trial, he could not recall what he had told her. In cross-examination, he agreed that he had told PJ that he had only been to the farm once.
PJ was interviewed by police (including Detective Sergeant Shane Robinson) on 23 November 2020, when she was 15 years old. She told police that the complainant told her that, when the applicant and the complainant were on the farm, the applicant had pulled the complainant's pants down and wanted the complainant to touch him. She said the complainant told her he did not want to touch the applicant but he forced him to. The video recording of the interview was played to the jury as PJ's evidence in chief.
PJ described the complainant's complaint to her as follows: "[The complainant] got … touched by another man [who was the applicant] … Um, [the complainant] had an argument like, and he told me, he told me that he got he touched by a fella at his school, worked at school, kind of. And [the complainant], you know, is that kind of person and [the complainant] got attached to him and he took [the complainant] out onto his farm and [the complainant] came and ..... he, he, um, he was touching [the complainant], and wanted [the complainant] to say this and that. And [the complainant] did it because he had nothing else to do, and I wouldn't, like, no one would have known what happened to [the complainant] if he didn't do it, 'cause it was on a farm and he had no one, nowhere to run. And, like, I got a shock, it shocked me, and, like ...... wasn't thinking that he was gunna tell anyone. But, um, that's what he said that, yeah, but he just, he just, like, he didn't want to tell me, but, um, I'm happy that he told me."
PJ also said: "And, um, yeah, I don't know what else, uh, he just told me a little bit of the story, not all of it."
PJ said that when the complainant told her what had happened on the farm, he was "[m]aybe just crying, and you could see that he was upset".
When asked "[d]o you know how many times [the complainant] went to the farm", PJ answered: "No, I'm pretty sure that was the first and last time he did it."
PJ gave evidence that in July 2020 she and the complainant were arguing because PJ wanted the complainant to tell his mother about what had happened on the farm but the complainant did not want to. Because the complainant, according to PJ, "couldn't" tell his mother, PJ said that she would tell her. The complainant's mother came to his room to see what the cause of the argument was and PJ told her what the complainant had said.
At the time of this disclosure, PJ and the complainant were still together. They broke up in July or August 2020.

[5]

The complaint by PJ to the complainant's mother in July 2020

The complainant's mother had not heard of the applicant but understood that when the complainant was away overnight he was with the "Clontarf crew". On one occasion (which other evidence revealed was on 12 July 2020), the complainant's mother was at home and the complainant and PJ were in his bedroom. She could hear that they were having an argument and went to see what was going on. Suddenly, PJ "just got even angrier" and shed a tear. PJ said to her, "Sorry … do you know that [the complainant] has been molested?". The complainant's mother "lost it" and asked the complainant whether it was true. The following exchange occurred in her evidence: "Q. What did he say? A. He never said nothing. Q. Were you able to see what his reaction was? A. He's face just told it all. Like, to look at him, it was so like ‑ you can see it."
The complainant's mother then rang the police at about 4am on 12 July 2020. The Computerised Operational Policing System (COPS) record for the report was created at 4.11am on 12 July 2020 and recorded: "INFT WANTS TO REPORT CHILD ABUSED BY NK POI … INFT VERY RELUCTANT TO PROVIDE DETAILS OVER PH ONLY WANT TO PROVIDE DETAILS TO POL IN PERSON."
The narrative in the COPS report also included the following: "About 0430 on the 12th July 2020, police were called to [the complainant's home] by the NOK [next-of-kin], [the complainant's mother] stating she wished to report a child sexual assault. Police attended about 0445 and spoke to the NOK. The NOK informed police the VIC returned [home] with his partner earlier in the night. The NOK sat down with the VIC and his partner and the VIC disclosed being molested on a school camp by one of the teachers. The VIC stated the teachers name but the NOK was unable to recall it. Police attempted to obtain further details off the NOK but due to her intoxication she was unable to recall any details. Police decided not to wake the VIC due to the time and informed the NOK that police would contact them later in the day. Police were unable to establish a time frame the offence occurred, offenders name, VIC's age, where the incident occurred or any other relevant details. Incident to be followed up oncoming shift."
The complainant's mother's evidence was that she took the complainant to the Bourke police station later that day and included the following: "Q. You encouraged [the complainant] to report it to the police; didn't you? A. What mother wouldn't. Q. It was your decision to go to the Police Station? A. Yes. Of course, if it happened to a kid, of course, you're going to take the kid to the police."
The complainant's mother agreed that, at that time, she did not have any more details beyond what PJ had told her.

[6]

The complainant's account to police on 12 July 2020

Detective Senior Constable Kasey Watler commenced her shift at the Bourke police station at 7am on 12 July 2020. She learned that a report of a child sexual assault had been made earlier that morning and phoned the complainant's mother and arranged for him to come to the station at 2.50pm. While the complainant's mother waited in the foyer, Detective Watler spoke to the complainant who "appeared to be scared" and "did not really engage with [her] initially".
Detective Watler asked the complainant whether he would be more comfortable writing down what had happened to him (rather than telling her orally) and gave him her daybook for that purpose. The complainant then wrote a short paragraph in the daybook as follows: "just before grand finle [scil] time Brad and I went out on his property to go riding motorbikes. I've been going out there with him for a while and one day when we went to the shed to get yabby nets he forst me to do things to him but I didn't. Then he started touching me. I was thinking about running but I couldn't because I didn't know which way to go. Then after that I did not go again."
The complainant agreed that when he first went to the police station on 12 July 2020, he went with his mother and spoke to Detective Watler. When he was asked about what he told Detective Watler, the complainant said, "I didn't tell her. I wrote it down". He agreed that he did not tell the police that the applicant had forced his penis into his mouth or include this in his handwritten note (although it was open to the jury to consider that this was encompassed by the words "he forst me to do things to him"). The complainant said of this in cross-examination, "I didn't mention it, but it was done". He also agreed that he had only told Detective Watler that the applicant had touched his penis once.
Because Detective Watler was not part of the Child Abuse Unit and was not specifically trained to take forensic statements from children, she arranged for the complainant to be interviewed by officers from that unit at a later date.
On 29 July 2020, carriage of the investigation was transferred to Detective Robinson, who was part of the Child Abuse Squad.

[9]

The complainant's further police interview on 21 January 2021

Detective Robinson took a further statement from the complainant on 21 January 2021. The purpose of the further interview was for the complainant to clarify the location of counts 1 and 2 by reference to maps as the police had, by that time, visited the farm and were having difficulty reconciling what the complainant had told them about various locations with their observations of the farm. The police also attended the complainant's home on 22 January 2021 for further clarification (by asking him to mark particular locations on a map) but did not make a record of what they said to him or his responses.
The police showed the complainant an aerial photograph of part of the farm (near the main residence) on which he marked particular landmarks, including where he believed the shearing shed to be. Detective Senior Constable Holyday subsequently labelled this aerial photograph to identify particular landmarks and this second version of the map became exhibit 1 at trial (Exhibit 1). The complainant clarified in his evidence that he was just "guessing" that the shed that he marked was actually the shed where he alleged count 1 occurred but marked it because "it was far away from the house". He also identified where on the river he and the applicant went swimming and said that the applicant touched his penis (count 2) "just down further from" there. When it was put to him in cross-examination that the location he had marked was an area known as "the gallows" he said that he had never heard of a place on the farm called "the gallows".
It was in this interview that the complainant first told police that the applicant had forced his penis into his mouth and touched his penis at the cabin. These matters were subsequently charged and became counts 3 and 4 on the indictment.
The complainant agreed that when he was interviewed by police on 21 January 2021, he had already been in trouble with the police and had received a caution but said that he was not worried about getting into trouble with the police at the time of making this statement.
Detective Robinson gave evidence that while he was taking the complainant's statement from him on 21 January 2021, Detective Holyday came in and out of the room to speak to him about his visit to the farm earlier that day. Detective Robinson agreed in cross-examination that the fact that these exchanges took place in the complainant's presence was "[h]ighly improper" and "incompetent conduct" which was capable of "tainting what the complainant then told [him]".
At the time of the hearing, in October and November 2022, the complainant agreed that he was on bail for various offences alleged to have been committed in 2022 but denied that he gave the police more information about the applicant in order to help his own position with the police.

[12]

Another occasion when the applicant and the complainant were by the river (count 2)

On another occasion the complainant was floating in the Darling River at the "edge of the water", wearing "footy shorts". The applicant put his hand down the complainant's shorts and touched his penis (count 2).
There was some uncertainty about where and when count 2 occurred. On 21 January 2021, the complainant told the police that this incident had happened on the same day as the "shearing shed incident" (count 1). However in his evidence in chief the complainant stated that the incident at the river was on a different day.
When this was further explored, the complainant maintained that the incidents had occurred on the same day, as follows: "Q. You told the police, didn't you, when you gave your statement about that incident on 21 January 2021 that that was the same day as what happened in the shearing shed on the chair, didn't you? A. Yeah. Q. You said that was the same day. A. Yes. Q. But that's not your evidence today, is it? A. Should be. Q. But your evidence has been that you can't say when that happened, is that right? A. Can you repeat that? Q. In your evidence yesterday or today, you haven't been able to say that that incident involving the swimming by the river happened on the same day as the shearing shed. That's not been what you've told the Court, is it? A. Well, I have. Q. You told the Court that after the shearing shed incident, you went to the dam, didn't you? That was your evidence from yesterday. I'll just repeat it for you. 'What happened after that finished in the shed?' 'We went to the dam.' Not the river, but the dam. That's what you told us yesterday. A. Yeah. Q. That's very different from what you told the police when you first made the complaint about the incident at the river, isn't it? A. Yeah."
In cross-examination, the complainant was shown a photograph and asked whether it depicted where they went swimming. He denied that the photograph corresponded with the location where they had been swimming. The complainant was adamant that "it wasn't set out like that".

[13]

A subsequent visit to the farm which involved camping overnight (counts 3 and 4)

Later, according to the complainant, he agreed to go camping at the farm. The applicant asked the complainant's mother if the complainant could stay overnight and she agreed. The trip occurred about two weeks after the Clontarf camp and coincided with a period of about a week when the complainant was suspended from school. The complainant had also been suspended in July 2018 when he let off a device at school. He admitted that he "wagged" school but said that he "actually did like school a bit". The complainant agreed with what was put to him by the applicant's trial counsel that he "needed help with reading".
In cross-examination, the complainant agreed that notwithstanding what had occurred in the shearing shed, he still wanted to go and stay overnight with the applicant. The complainant understood that the purpose of the trip was to go hunting at night with spotlights in the applicant's utility vehicle and to ride motorbikes. The complainant held the spotlight from his position in the passenger seat and the applicant had a rifle. The complainant agreed that this was something he "really wanted to do" and that the applicant had not forced him to go to the farm.
On the occasion of their overnight stay, the applicant collected the complainant and took him to the farm, bringing with him food and drinks for their trip. They stayed in a cabin several kilometres away from the main residence on the farm where the applicant's parents lived. They heated up pizzas at nightfall and drank "Canadian Club and a bottle of Coke" (the complainant drank "a cup"). After dinner, they went into the cabin, where there were two beds, one on either side of the room. The applicant moved his bed closer to the complainant's and showed him some things on his phone.
According to the complainant, the applicant then pulled down the complainant's pants and started "pulling" the complainant's penis (count 3) and then put his penis in the complainant's mouth (count 4). When this occurred, they were in the same bed. The complainant did not say anything as he was "scared". After this happened, the applicant moved his bed back to the other side of the room.
The complainant fell asleep. The next morning, the applicant told the complainant not to say anything and took him home.
The complainant agreed that the applicant took him out to the farm again about a week or two after his overnight stay. The complainant could not recall whether anything happened on that occasion.

[14]

The applicant's evidence

The applicant denied that he had ever sexually touched or sexually assaulted the complainant. He said that he was uncircumcised.
The applicant agreed that, at the Clontarf camp, he had talked to the complainant "about what we did on properties, going fishing, going hunting, riding motorbikes".
The applicant recalled three occasions on which the complainant had gone to the farm but agreed that there would have been five or six. The complainant was the only "individual visitor" of his age to the farm. The applicant agreed that "the things that you could do out on the farm would have been quite alluring and enticing for somebody in [the complainant's] position". On such visits, the applicant spoke to the complainant about "[f]ishing, hunting, motorbike riding".
The applicant denied having alcohol with him when he was with the complainant.
The applicant denied swimming with the complainant or that there was a recliner chair in the shearing shed but recalled an occasion at the "yabby dam" on which his utility vehicle became bogged which he believed was the last occasion on which the complainant came with him to the farm.
The applicant recalled that the first occasion on which the complainant had gone with him to the farm was the result of the complainant asking him if he could go and the applicant agreeing to take him to chop wood, after obtaining his mother's permission. On that visit to the farm, they rode on the motorbikes.
The applicant also agreed that Exhibit 1 depicts a shearing shed which is near the main property but that there is a second shearing shed "further out the back" which he had been to with the complainant as that is where the motorbikes were stored which was located outside the area visible in Exhibit 1. He also gave evidence that he had not been to the shed closest to the property with the complainant. Although the applicant denied initially ever being in a shearing shed with the complainant he subsequently admitted "we went back to the shearing shed".
The applicant recalled that on one occasion when the complainant came to the farm and they stayed overnight in a cabin as they went hunting in the evening.

[20]

The number of occasions on which the complainant had visited the farm

The complainant was cross-examined extensively about the inconsistency between his evidence that he had visited the farm five or six times and his statement to police on 7 August 2020 that he had only ever been to the farm once. This matter went to the complainant's credit but not to any issue of fact as the applicant's evidence was that he could recall taking the complainant to the farm at least three times and agreed that he may have taken him five or six times, which corroborated the complainant's evidence.
The cross-examination of the complainant on this issue was (in part) as follows: "Q. It's fair to say that when you told the police, on 7 August, that you only went the one time; that's because, at that point in time, that's what you were telling the police was the truth. Correct? A. Yeah. Q. 'It only happened the once. Since this incident, I have not been back to Brad's', is what you told the police on 7 August 2020, paragraph 11; is that correct? A. Yeah. Q. When you said that you told them that because you believed that was the truth; is that right? A. Yeah. Q. Because if you knew that there were more things that happened, more bad things had happened to you, you would've told them, then, wouldn't you? A. Yeah. Q. You see, the reality is that you just can't be sure how many times you went to Brad's; can you? You can't be sure what you're saying happened on those times; can you? A. Can."
Mr Game submitted in this Court that this passage demonstrated how unreliable a witness the complainant was and that, accordingly, his evidence was not of sufficient quality to found a reasonable verdict. The Crown submitted that the premise of the first question was misleading (because it was undisputed that the complainant had been to the farm on at least three occasions) and that the complainant's affirmative answer to the first question was a quintessential example of the confusion which such a misleading question generated. The Crown made a similar submission about the third question. These matters are relevant to ground 2 which is considered further below.
I accept the Crown's submissions on this passage. It was open to the jury as the tribunal of fact to accept the complainant's evidence that he had been to the farm on several occasions, which was amply corroborated by the applicant's evidence and the agreed facts. In light of this undisputed fact, it was open to the jury to consider that this line of cross-examination did not make the complainant's evidence materially unreliable or affect his credibility in relation to the elements of counts 2 and 3. While there was an inconsistency between the complainant's earlier statement that he had only been to the farm once and the fact that he had been on several occasions, it was a matter for the jury to decide what to make of this inconsistency and was open to them to regard the complainant's initial statement (that he had been once) as a manifestation of his reticence to disclose that, after the first incident, he had agreed to return to the farm with the applicant.

[21]

The location of the shearing shed

It was not in dispute that there were two shearing sheds on the farm, one relatively close to the main residence (and depicted on the aerial photograph which became Exhibit 1) and the other much further away (which was not depicted on Exhibit 1).
The complainant said in his examination in chief of his marking of the shearing shed on Exhibit 1 on 21 January 2021: "Q. When you marked 'shearing shed' at that time, why did you do that? A. Cause I'm pretty sure it is a shearing shed. Q. You're pretty sure what? A. It's a shearing shed. Q. Yes, but why did you mark a shearing shed? A. Might have been sheds that it happened in. Q. Sorry, I just missed that one. A. It might have been the shed that had happened in. Q. That's why you marked that. A. Mmhmm."
Subsequently, in examination in chief, the complainant was shown a photograph of the shearing shed which corresponded with the one he marked on Exhibit 1. He denied that that was the shed where count 1 had happened and said that the shed in the photograph was a "whole different one". He was then asked how far away from the main residence the shearing shed where count 1 occurred was located, to which he guessed that it was "probably 20 ks away from the house or something".
The complainant was later cross-examined about his marking of the shearing shed on Exhibit 1 as follows: "Q. I'm asking you to refer to the one that has circles drawn on it. Can you see that document [Exhibit 1]? A. Yeah, I've got it. Q. That's the one that you marked, didn't you, with Shane Robinson in 21 January 2021? A. Yeah. Q. You marked it and you put a circle around the shearing shed. That's your circle, isn't it? A. Yes, it is. Q. When you put the circle there, you were sure that was the shed, weren't you? A. ..(not transcribable).. close to the house. Q. Why would you circle the shed if it was incorrect …? A. Perhaps my calculations were - might have been the shed. Q. It might have been the shed. A. Yes. Q. You don't know where the shed was, do you? A. Well, I've seen them where they were mowing the lawns, based on that. Q. You've circled the shed, have you not, on that document, and your evidence as of 21 January to the police in the statement that you signed is that that was the shed; correct? A. No. Q. Did you say no? A. Yes. … Q. You circled the shearing shed. A. Yeah. Q. On 21 January on the diagram in front of you, the aerial photograph of exhibit 1 in front of you, as being the shearing shed where the sexual assault happened. Do you agree with me there? A. I don't know if it was that shed. Q. Why did you give a statement to the police that was incorrect? A. Just guessing if it was the shed. Q. You were guessing. A. Yes, cause it was far away from the house. Q. You're guessing about the shed, and you also guessed about all the other information that you've put in your statement because none of this happened, did it, …? A. No, it did."
Mr Game submitted that the complainant's uncertainty indicated that his evidence about count 1 was unreliable because he admitted that he was "guessing" about the location.
The Crown submitted that, particularly having regard to the age of the complainant and the stage of his life, there was a logic to the complainant's evidence. He was, in effect, saying that if you look at Exhibit 1 without appreciating that it is not an aerial shot of the whole of the farm, you would choose one of the buildings furthest away from the house as being the shearing shed (which he said was about 20km from the house). Thus, the Crown accepted that the complainant had marked the incorrect shed because his evidence, properly understood, was that it happened in the shed at the back of the property furthest away from the house and the shed he marked appeared this way on the incomplete aerial map.
I accept the Crown's submissions. It was open to the jury to regard the complainant's evidence that the applicant had taken him to the shearing shed several kilometres away from the main residence (and outside what Exhibit 1 depicted) as true, including because it was corroborated by the applicant's evidence that that was the shed to which he had taken the complainant. The trial judge directed the jury to have regard to the whole of the evidence. When the whole of the evidence is considered, the location of the relevant shearing shed was not in doubt. The complainant's marking of Exhibit 1 could reasonably be viewed as having been influenced by the circumstance that the exhibit did not depict the whole farm.

[22]

The complainant's description of count 2

The complainant was cross-examined about the differences in the words he used to describe count 2 as follows: "Q. For the swimming incident, you'd agree with this: you gave evidence yesterday that the touching happened when you went swimming. You were just resting on top of the water. That's your evidence from yesterday. Agree? A. Yeah. Q. Your evidence today is that you were, in fact, sitting down on the riverbank when this happened; agree? A. I was laying on the river bank. Q. Your evidence was that it happened on the edge of the water? A. Yes. Q. Not that you were laying on the riverbank but on the edge of the water. A. That's still the same. Q. Do you see, Mr Dixon, that's a whole different version to what you told the police; isn't it? A. Yeah." (Emphasis added.)
Mr Game submitted that the differences in the wording indicated that the complainant's evidence was unreliable and could not (together with other inconsistencies relied upon) found a reasonable verdict for count 2. He also relied on the last answer in the extract as indicating that the complainant accepted that his evidence was inconsistent.
The Crown relied particularly on the words emphasised in the extract above as indicating that the complainant did not regard the different words as making any relevant distinction. Further, the Crown submitted (as was correct) that the complainant had not said that count 2 had happened when he was "sitting" on the river bank and that the second question was, accordingly, unfair and misleading. In addition, the Crown submitted that the reference by the applicant's trial counsel to a "whole different version" in the last question in the extract above amounted to no more than the following "difference", as explored in further cross-examination: "Q. But you were on the edge of the river. A. Yeah, of the water. Q. Well, you say you're sure you were on the edge of the water, but when you told the police about that incident, you weren't on the edge of the water at all, were you? A. I was. Q. Well, you told the police you were on the riverbank. A. It was, kind of, like, the same thing."
The Crown relied on the complainant's final answer as indicating that there was a "need for caution" in evaluating his evidence because his agreement that he had given a "whole different version" to police in the first passage above must be seen in the context of his evidence that the versions were, in effect, the same.
While a cross-examiner is entitled to test a witness's evidence by probing it and putting slight variations in a witness's expression back to the witness with a view to establishing inconsistency, it is ultimately a matter for the tribunal of fact whether such forensic tools have the effect of diminishing a witness's credibility. In the present case, it was open to the jury to regard the so-called differences as immaterial and to accept the complainant's own assessment (having regard to what they saw and heard of him when giving evidence) that he had, in effect, said the same thing such that his version was consistent.

[23]

Whether the complainant denied the conduct in counts 3 and 4

The cross-examiner then proceeded to cross-examine the complainant about counts 3 and 4 as follows: "Q. Your evidence is that in relation to incident two; that is, at the cabins, that at that point in time, after the accused put his penis in your mouth, that the accused did not ejaculate. That's right; isn't it? A. Nah. Because he did. Q. Well, your evidence yesterday was that - and this is at transcript 31 - did he ejaculate on that occasion - that's the cabin occasion. You say, 'No. Not that I know of'. When you spoke to the police, in January 2021, you gave them precisely the opposite information; didn't you? You told the police that he had, in fact, ejaculated at that time in the cabins. That right? A. Yeah. Q. [The complainant], the reason you can't remember - and the reason why you've given evidence in your statement that's different to your evidence today - is that that incident simply didn't happen; did it? A. No. Not in the cabin. In the shed it did. Q. I'm talking about the cabin. You get the detail wrong about what happened in the cabin because what happened in the cabin isn't true. It didn't happen; did it? A. Not then."
Mr Game submitted that the complainant's last answer amounted to a concession that neither count 3 nor count 4 happened at all. The Crown submitted that the complainant's answers in this passage were directed to the question whether the applicant had ejaculated in the cabins (part of the conduct for count 4). The Crown submitted that the complainant's answers indicated that his evidence was that the applicant had ejaculated in the "shed" (count 1) but not in the "cabins" (count 4).
When a cross-examiner chooses to ask questions which are potentially ambiguous and which elicit answers which could be understood in more than one way, the cross-examiner runs the risk that the tribunal of fact will either consider the tactic to be unfair and give little or no weight to the answers or understand the answers in a way which falls far short of the forensic effect which the cross-examiner intended or hoped to achieve. The construction put on this passage by the applicant (that the complainant denied counts 3 and 4) is, in my view, so far-fetched as not to be reasonably open. Whether the Crown's construction was accepted by the tribunal of fact cannot be determined. In any event, the jury returned a verdict of not guilty in respect of count 4, thereby making any conclusion about ejaculation in that context largely irrelevant.

[24]

The postulation by the applicant's defence counsel that the complainant had a motive to lie

As referred to above, the applicant's defence counsel put to the complainant that, on 21 January 2021, he had a motive to lie to the police because he was then "in trouble" with the police and that, in effect, he had fabricated counts 3 and 4. Mr Game reiterated that proposition in his submission to this Court that the complainant had such a motive to lie and was therefore not a credible witness.
The relevant passage of cross-examination is as follows: "Q. Because when the police asked you to come in on 21 January, in 2021, it's fair to say, isn't it, that the trouble with the police was, kind of, ongoing. A. Yeah. Q. You were being picked up for offences, weren't you, by the cops? A. Yeah. Q. You know that in June 2021, there was a pretty minor offence that took place, but it involved damaging a garage door; you remember that one: graffiti? A. Graffiti? Q. Yes. A. Yeah. Q. That's pretty minor but you'd agree with me that, by the time you go back into the police in January, you had those matters when you were younger, where you got cautions? A. Yeah. Q. Then, again, in June 2021, there was that charge I just took you to there: the graffiti. A. Yeah. Q. When the police were saying to you in January 2021, listen, come in; we need more information. In your head at that time, you're thinking, I better go because I'm getting into a bit of strife here, and I just better cooperate; better do what they're asking me, because they're the cops, and I'm in the trouble with the cops. Would you agree with that? A. No."
The evidence was that in about August 2018, when the complainant was 14, he had damaged a camera at Tito's Road House in Bourke and received a caution. In March 2019 (when the complainant was still 14), he took a bike from the men's shed at Bourke. In June 2021, he was charged in relation to graffiti. By the time of the trial, the complainant was on bail for two outstanding charges of aggravated break, enter and steal. There is no evidence of any "trouble with police" between the theft of the bike in March 2019 and June 2021. Thus, when the complainant went to the police station on 12 July 2020, 7 August 2020 and 21 January 2021, there is no evidence of any outstanding charges against him. Ultimately Mr Game accepted that this is what the evidence indicated.
The Crown submitted that, in these circumstances, the questioning of the complainant, in so far as it suggested that he had a motive to lie on 21 January 2021 because of "ongoing" trouble with the police, was unfair and entirely lacking in any evidentiary basis. The Crown submitted that, in these circumstances, the evidence did not indicate that there was any motive for the complainant to lie to the police on 21 January 2021. In this Court, Mr Game appeared ultimately to accept this proposition but nonetheless submitted that, because the complainant was in trouble with the police in October and November 2022, when he gave evidence in the trial, he had a motive to lie in the trial.
I accept the Crown's submission that the suggestion that the complainant had a motive to lie on 21 January 2021 because he was in trouble with the police had no proper evidentiary foundation. The complainant's general acceptance (as indicated by his affirmative answer to the first question) that as at January 2021 his troubles with the police were ongoing was insufficient, in light of the specific evidence of the troubles, to permit such a suggestion to be made. It can be inferred that the jury was not, in any event, impressed with the submission because it returned a verdict of guilty in respect of count 3.

[25]

The summing up

The directions given by the trial judge which are potentially relevant to ground 1 are as follows.
First, the trial judge directed the jury that they were entitled to accept the evidence of a witness, either in part or in whole.
Secondly, the trial judge directed the jury to consider each count separately by reference to the evidence relevant to that count.
Thirdly, the trial judge directed the jury that any doubt they experienced regarding the reliability of the complainant's evidence about one count must be taken into account in their assessment of the complainant's evidence about other counts.
Fourthly, the trial judge directed the jury that, before they could convict the applicant on any count, they must be satisfied beyond reasonable doubt of each of the elements of that count.
These directions were reiterated in the written directions document which was provided to the jury and included the following: "● The standard of proof is proof beyond reasonable doubt. That is the high standard of proof you must be satisfied of before you can convict the accused. ● The evidence relating to each of the counts must be considered separately. ● Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome. ● If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts."
In addition the trial judge gave the jury the following directions as to how they should approach the complainant's evidence: "In this case ladies and gentlemen, you know that the Crown seeks to prove the guilt of the accused effectively exclusively on the evidence of the complainant. Accordingly, unless you are satisfied beyond a reasonable doubt that the complainant is both an honest and accurate witness in the account that he has given, you cannot find the accused guilty. Before you can convict the accused you should examine the evidence of the complainant very carefully to satisfy yourself that you can safely act upon that evidence to the high standard required in a criminal trial. I remind you that in this case there has been inconsistencies in the complainant's account to police in circumstances where he has given inconsistent evidence in the witness box including evidence of an act which has not been charged and was not previously subject to complaint. I remind you of the evidence of the interviewing police concerning 21 January 2021 that the markings on exhibit 1 were not made during the course of the interview with the complainant at Bourke Police Station and that that was contrary to the complainant's evidence. Ladies and gentlemen, I am not telling you to be cautious because of any personal view I have of the complainant. I told you at the outset of this summing-up that I would not express my personal opinions on the evidence but in any criminal trial where the Crown case relies solely or substantially upon the evidence of a single witness, a jury must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown. I am not suggesting that you are not entitled to convict the accused upon the evidence of the complainant. Clearly you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond a reasonable doubt. In considering the evidence of the complainant and whether it does satisfy you of the accused's guilt you should of course look to see if it is supported by other evidence." (Emphasis added.)
The trial judge also addressed the complaint evidence as follows: "The first way in which the [complaint] evidence may be relevant is that it can be regarded as additional evidence the complainant was assaulted in the way he described. So not only would you have the complainant having given evidence before you about having been assaulted by the accused, you would also have the description of what was given to [PJ]. You should have regard to all of the circumstances relevant to the making of the complaint. In considering using the evidence for this purpose you should consider how consistent the complaint to the witness is with the evidence that [the complainant] gave in Court. If there are discrepancies, you should consider why that may be so, and whether that has a bearing upon whether you should treat the complaint evidence as additional evidence of the complainant having been assaulted."
The trial judge directed the jury pursuant to s 293A of the Criminal Procedure Act 1986 (NSW) as follows: "Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time. That trauma may affect people differently and may affect how they recall events. That sometimes there are differences in an account of a sexual offence and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is your job, and entirely a matter for you, members of the jury as judges of the facts to decide whether or not any differences in the complainant's account are important in assessing his truthfulness and reliability."
The trial judge also directed the jury pursuant to s 294(2) of the Criminal Procedure Act as follows: "In relation to the timing of any complaint made, you should bear in mind that a delay in complaining does not necessarily indicate that the allegation is false. There may be good reasons why a victim of sexual assault may hesitate in making or refrain from making a complaint about it. So that is how the evidence of complaint may be used in your deliberations. First you must decide whether you accept that complaint was in fact made and what was actually said. Then you need to consider the various matters I have spoken about."

[27]

The applicable principles

A ground that a jury's verdict of guilty is unreasonable because it is inconsistent with another verdict of not guilty gives rise to the question whether the different verdicts can be explained as a matter of logic and reason: see the summary of authorities in Nguyen v R [2017] NSWCCA 145 at [34]-[47] (Macfarlan JA, Campbell J agreeing) and [52]-[53] (Adamson J). In addressing ground 1, this Court must inquire whether there exists "any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility …": TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130] (Simpson J, McClellan CJ at CL and Latham J agreeing).
It does not follow from the circumstance that the evidence in support of the two counts in respect of which different verdicts were reached was largely given by a single witness that the verdicts are inconsistent. A verdict of not guilty on a particular count (of sexual assault against a single complainant), without more, does not amount to a positive finding that the act charged did not occur or that the complainant was lying or lacking in credibility: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [221] (Wood CJ at CL).
It is important when addressing such a ground to have regard to the supporting evidence and the quality of the complainant's evidence in respect of each count. In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said, of present relevance, at [34]: "In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others."
A difference in verdicts may be explained by the fact of a complaint having been made in respect of the conduct which was the subject of the count of which the applicant was convicted, in circumstances where no complaint was made of the conduct which was the subject of the count of which the applicant was acquitted: see, for example, R v ACK [2000] NSWCCA 180 at [51] (James J, Spigelman CJ and Ireland J agreeing).

[28]

Consideration

Mr Game accepted that there was no inconsistency between the verdict of not guilty for count 1 and the verdict of guilty for count 2 since the difference could be explained by the fact of complaint in respect of count 2 to PJ; the complainant's note in Detective Watler's daybook at the police station; and the fact that the complaint in respect of count 1 was not made until later. However, he submitted that the verdict of guilty of count 3 and not guilty of count 4 were irreconcilable as the complaint in respect of each was made at the same time (on 21 January 2021) and the two counts were part of the same sequence of events. He submitted that the verdicts were, accordingly, inconsistent because there was "no rational explanation" for their difference.
Mr Game submitted that the complaint to PJ and the note to Detective Watler were limited to a single instance and therefore could not serve as a complaint in respect of count 3 as well as count 2. He also submitted that the complaints in respect of counts 3 and 4 were made on 21 January 2021 and were based solely on the complainant's evidence, the quality of which was the same for each. Mr Game submitted that the acquittal on count 4 must mean, in these circumstances, that the jury rejected the complainant's version of what happened at the cabins on the basis of doubts as to his credibility. He submitted that, since there was nothing to differentiate count 3 from count 4, the verdict for count 3 was inconsistent and, therefore, unreasonable.
In order to evaluate the evidence in respect of counts 3 and 4, it is important to have regard to the circumstances of the initial complaint. When the complainant disclosed to PJ that he had been molested, he was very upset and, according to PJ, did not want to tell her about it. He did not give her details of what had happened except that he had been touched by a man named Brad when he was on a farm and that he had only been to the farm once.
If the complainant told PJ that he had only been to the farm once (and it appears from her evidence that it was an assumption on her part rather than something he expressly told her), that was plainly incorrect. It was accepted by the applicant that the complainant had visited the farm on at least three occasions and possibly as many as five or six. It was an agreed fact that the applicant's father had seen the complainant with the applicant at the farm on "a couple of occasions". Further the complainant's evidence that he had been to the farm on a number of occasions was not challenged.
It was open to the jury to reason that the complainant's embarrassment and distress at making the disclosure to PJ (reinforced by his refusal to answer his mother's question whether it was true) led him to understate (deliberately) the number of times he had visited the farm. Thus, although the statement was incorrect it did not otherwise affect the complainant's credibility about what had happened. Indeed, his evident distress when making the disclosure to PJ was capable of being regarded as supportive of the truth of his statement that he had been molested.
It was also open to the jury to reason that, just as the complainant minimised how many times he had been to the farm, he also understated the number of times on which he had been "molested". It was open to the jury to reason that the complainant felt guilt and shame about what had happened (which was manifested in his obvious distress when speaking to PJ, his mother and Detective Watler about what had happened) and therefore only disclosed a single occasion on which he was molested, which was linked to his (supposed) single visit to the farm. This analysis is consistent with his unwillingness to give details of what occurred, his refusal to answer his mother's question about whether it was true (other than by his facial expression, which was sufficient to confirm to his mother that it was) and his inability to articulate to Detective Watler what had happened, other than by writing a note in which he said that he had been touched by the applicant.
It is significant that the complainant repeated his misstatement to PJ (that he had only been to the farm once) in his note to Detective Watler which said, "Then after that I did not go again." It was also open to the jury to infer that the complainant felt that, if he disclosed that he had returned to the farm with the applicant, he might be regarded as bringing the further touching on himself. It was open to the jury to consider his unwillingness to engage with PJ, his mother or Detective Watler as consistent with the sexual touching having occurred.
The complainant's evidence at trial was that the incident in the shearing shed (involving sexual touching and the conduct which comprised count 1) happened on his first visit to the farm (which accorded with the applicant's evidence that they had gone to the shearing shed on that first visit). The complainant gave evidence that the applicant indecently assaulted him by touching his penis on two further occasions: counts 2 (by the river); and count 3 (in the cabin). The forensic potency of the complainant's evidence of his penis being touched by the applicant was common to both counts 2 and 3, as well as the touching in the shearing shed, which was not separately charged as an indecent assault.
The evidence in support of count 4 was very different in quality from that in support of count 3. The complainant did not tell PJ, his mother or Detective Watler that the applicant had inserted his penis into his mouth. It was open to the jury to apply the direction which the trial judge had given them to conclude that there was no reasonable doubt about the two counts relating to sexual touching of the complainant's penis (since he had made a complaint about this kind of conduct in July 2020) but that there remained a reasonable doubt about counts 1 and 4 in the absence of there being any mention of oral intercourse when he complained to PJ, his mother or Detective Watler.
Further, the jury may have considered that the different versions which the complainant gave about whether the applicant had ejaculated on a particular occasion and his inconsistent evidence about whether the applicant was circumcised (saying on 7 August 2020 that he did not know and yet saying in his evidence that he was, in circumstances where the applicant gave uncontroverted evidence that he was not circumcised) gave rise to a reasonable doubt regarding count 4 (which concerned the applicant's penis), but did not affect count 3, which involved the applicant touching the complainant's penis.

[31]

The applicable principles

The relevant principles for determining whether a verdict is unreasonable were established in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. This Court must ask itself "whether it 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" (Mason CJ, Deane, Dawson and Toohey JJ at 493). This question "is one of fact which the court must decide by making its own independent assessment of the evidence" (at 492). Although "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced", the court may conclude that no miscarriage of justice has occurred if "a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by [the appellate court]" (at 494).
In addition, the plurality said at 494: "… where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (Footnotes omitted.)
The jury, as the tribunal of fact, has the primary function of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
A verdict of guilty may be reasonable even if the complainant's evidence is not corroborated: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). This Court must proceed on the basis that the complainant's evidence was accepted by the jury as credible and reliable: Pell at [39]. It is only in an unusual case where this Court could conclude that the complainant's evidence (which must have been accepted by the jury) has been so damaged that it was not open to the jury to accept that evidence: Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing).

[34]

The alleged evolving nature of the complainant's accounts of the various alleged offences

Mr Game submitted that the extremely limited account of the offending which the complainant gave to Detective Watler on 12 July 2020 was an indication of the extent of the alleged offending and that, because it was shorn of any detail, it could not found a basis for a reasonable verdict. He referred to the formal police statement which the complainant made on 7 August 2020 and noted that this was the first mention of alleged forced fellatio. Mr Game also relied on the fact that the complainant said on that occasion that he had not returned to the farm after the conduct which comprised counts 1 and 2. Mr Game submitted that it was only after the applicant was arrested on 20 January 2021 and the police had been unable to work out the location of the alleged offences, that the complainant was asked to attend the police station again, at which time he disclosed the conduct that comprised counts 3 and 4.
The applicant's submissions appear, in the main, to be based on various propositions of dubious relevance or validity, which amount to the following: 1. a truthful witness will tell the whole truth at the earliest opportunity and will do so in consistent language, which is capable of being replicated in the witness box; 2. if a witness provides more detail at a later time, it is likely to be the product of reconstruction or embellishment, rather than actual recollection; and 3. if a witness is mistaken or inconsistent about a matter of detail, such as precise location, colour or weather, this makes the witness's evidence about substantial matters unreliable.
Such propositions may have some currency in areas other than child sexual assault: see, generally, Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 431 (Lord Pearce). However, they would appear to have little bearing on evidence given by minors about sexual assault, particularly those who, like the complainant in the present case, may feel marginalised and who are unused to revealing matters of an embarrassing or personal nature within their own circle, let alone to persons in authority such as the police (whom the complainant may have been reluctant to trust) or in a courtroom.
Indeed, the experience of courts has been to the contrary of the propositions set out above and tends to indicate the following: 1. it is not uncommon for victims to remember specific details about the assaults but not tangential details (see below): Reed v R [2006] NSWCCA 314 at [64] (Spigelman CJ, McClellan CJ at CL and Sully J agreeing); 2. it is not uncommon for children to be imprecise about time and sequence of events, including sexual offences: BCM v The Queen [2013] HCA 48 at [45]-[47] (Hayne, Crennan, Kiefel, Bell and Keane JJ); (2013) 88 ALJR 101; 3. delay in complaint or provision of further detail after an initial disclosure (for which directions to the jury (extracted above) were given as required by s 293A and s 294(2) of the Criminal Procedure Act) tends to be a common feature of child sexual abuse because of the attendant trauma caused by such abuse and the shame felt by victims: see R v Johnston (1998) 45 NSWLR 362 at 367 (Spigelman CJ) and the discussion in Decision Restricted [2024] NSWCCA 81 at [92] (Davies J, Button and Sweeney JJ agreeing); and 4. distress in recounting a traumatic experience may be regarded as consistent with the trauma having occurred: see AS v R [2022] NSWCCA 291 at [169] (Hamill J).
In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing): "Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person's reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp at pp 48-62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness."
This is not to criticise the applicant's trial counsel for using such means as were at her disposal to seek to undermine the complainant's credibility. As counsel for the applicant, she was obliged to do what she could properly do to put the Crown to proof of its case and advance the applicant's defence case. As Sully J said in Reed v R at [85]: "… there are, in the very nature of things, some sexual assault trials in which the only practical means by which the accused person can exercise his right to test the evidence of his accuser is, precisely, by testing in some proper fashion matters of detail that could be fitted easily enough within the description: 'surrounding tangential detail'."
However, the significance of any inroads apparently made to the complainant's credibility in cross-examination was pre-eminently one for the jury as the tribunal of fact: Lee v R [2023] NSWCCA 203 at [53] (Kirk JA, Button and Lonergan JJ agreeing).
Although the complainant did not give evidence to this effect, it was open to the jury to infer that the complainant felt increasingly able to tell the police what had happened to him. When his mother first took him to the Bourke police station on 12 July 2020, he appeared to be "scared" and was unable to communicate anything to Detective Watler beyond what he was prepared to write in her daybook. He gave further detail in August 2020 when he was interviewed by Detective Robinson of the Child Abuse Squad. It was open to the jury to reason that, by 21 January 2021, the complainant appreciated that the police, and in particular, Detective Robinson who had previously interviewed him, took him sufficiently seriously to ask him further questions about particular locations on the farm and that this gave him the confidence to divulge further details of what had happened. Further, the additional delay in the complainant divulging counts 3 and 4 fell within the direction which the trial judge gave the jury about delay (in accordance with s 294(2) of the Criminal Procedure Act) which is set out above.
The jury might also have inferred that it took some time for the complainant to overcome his reservations about disclosing that he had been back to the farm with the applicant after the incident in the shearing shed (which was, in light of other evidence and the agreed facts, incontrovertible), which was necessary before he could tell the police about the overnight stay in the cabin, at which time the complainant said that the conduct which comprised counts 3 and 4 had occurred.

[36]

The description and location of count 2

Mr Game relied on the differences in the words used by the complainant when giving evidence to describe the location of the indecent assault which comprised count 2. The complainant first said in evidence in chief that it had happened when he was "resting on top of the water". The following day, in cross-examination, he said that he was "on the edge of the water" and, later that same day, he said he was "laying on the riverbank". The complainant identified the location of where they had been fishing before they went swimming down the river (where count 2 occurred) by marking Exhibit 1 at least 18 months after he had last visited the farm.
The significance of the different words used by the complainant to describe the location of count 2 and his ability to identify from a blurry aerial photograph where they had been swimming was pre-eminently a matter for the jury. It was open to the jury to consider that the complainant's descriptions of where he was with respect to the river, though slightly different, reflected matters of nuance and were not inconsistent. It was open to the jury to accept the complainant's own evaluation of his evidence (extracted above), that "[t]hat's still the same"; in other words, although he had given different descriptions, he had said the same thing. Further, it was open to the jury to consider that any disparities in the description given in the course of the complainant's oral evidence were immaterial did not affect the reliability of his evidence of the indecent assault itself.
Further, given the complainant's lack of familiarity with the farm (and the fact that he had never seen it from an aerial perspective), it was open to the jury to consider it to be unsurprising that the complainant's identification of a location of the river (from an aerial photograph) which was in fact unsafe for swimming was incorrect but, once again, that it did not affect the reliability of his evidence of the offence charged as count 2. The jury might also have considered it to be telling that the complainant was adamant that the photograph of the river which he was shown (which apparently corresponded with his marking on the aerial photograph of where they went swimming) was not where they had been swimming.

[38]

The relative timing of counts 1 and 2

Mr Game submitted that the complainant's accounts of the timing of counts 1 and 2 were inconsistent and that this made his evidence of count 2 unreliable. He relied on the circumstance that, in his first formal statement to police on 7 August 2020, the complainant said, for the first time, that on the same day as the indecent assault, but earlier in the day, the applicant had forced him to perform fellatio in a shearing shed. This count became count 1 on the indictment. In his cross-examination, the complainant confirmed that he had told police on 21 January 2021 that counts 1 and 2 had happened on the same day. Further, the Crown opened its case on this basis.
However, as Mr Game submitted, the complainant, in his evidence in chief, said that the indecent assault on the river (count 2) had occurred on a different day to count 1 and that when they went to the dam "after the shed" on the day on which count 1 had been committed, nothing else had happened.
There is some confusion in the evidence which arises, at least in part, from the questioning of the complainant (as demonstrated by the extracts set out above). The complainant said that after he and the applicant had been to the shearing shed, they went to the dam and that the applicant had got bogged there and his vehicle had to be towed out. He said that nothing of a sexual nature had happened at the dam. However, they both went fishing on the river and then went swimming. The complainant said that when they went swimming, the applicant touched him again (count 2).
Although parts of his cross-examination would appear to indicate that count 2 happened on a different day to count 1, the complainant confirmed in cross-examination that they had happened on the same day. It was open to the jury to accept his evidence of count 2, notwithstanding the different versions about the relative times of these incidents and to consider that uncertainty about time did not affect the reliability of his evidence of the elements of count 2.

[39]

The forensic environment in which the complainant gave evidence and the approach to be taken by the tribunal of fact and this Court

In support of his submissions on ground 2, Mr Game cautioned this Court against "making excuses for the complainant" and submitted that this Court must have regard to the words recorded on the transcript and the concessions which he submitted were given. He also submitted that, if the trial judge had considered any of the questions asked by the applicant's trial counsel to be unfair (including because they contained several propositions or put a proposition which was incorrect or incomplete), his Honour would have intervened by rejecting the questions (as his Honour was entitled to do): s 41(1) of the Evidence Act 1995 (NSW). He submitted that, since the trial judge did not intervene in the cross-examination of the complainant, this Court ought infer that the trial judge was satisfied that the questioning was fair and, accordingly, that the tribunal of fact (and this Court) ought accept concessions made by the complainant.
This submission is based on several premises which are dubious. First, while the trial judge has an overall responsibility to ensure that an accused person receives a fair trial, this duty does not require the judge to reject every objectionable question in the absence of objection. Indeed, to do so in the course of cross-examination of a prosecution witness, particularly the most important prosecution witness (in this case, the complainant), might tend to compromise the fairness of the accused's trial by giving the jury the indication that the trial judge was assisting the Crown.
Secondly, the prosecutor could have objected to many of the questions asked by the applicant's trial counsel in her cross-examination of the complainant. However, the prosecutor was entitled to make a forensic decision that an affirmative answer to a bundled-up or confusing question would be likely to be given no, or little, weight by the jury. Further, the prosecutor may have considered that restraint in objections was called for in order to ensure that the applicant obtained a fair trial and that the jury would have a better chance of assessing the complainant's evidence as a whole if it were not interrupted by objections.
While a cross-examiner is entitled to ask leading questions, there is always a risk that, where an affirmative answer is given to a leading question which contains more than one proposition, the tribunal of fact will decide that the witness has acceded to only one but not other propositions or that the question was not sufficiently fair to enable any judgment to be made about the weight of the answer. In the present case, the extensive extraction of passages from the cross-examination of the complainant indicates that the complainant, at times, appeared to agree with propositions which were inconsistent with the Crown case. It may be that the cross-examiner thought that she had obtained important concessions when eliciting a "yeah" from the complainant. But the deliberations of a jury, or the consideration of grounds of appeal by this Court, are not to be undertaken in a selective fashion. The trial judge directed the jury to consider the evidence as a whole and this Court is required to review the transcript and exhibits as a whole to ascertain the true effect of a complainant's evidence. This Court is entitled to assume that the jury complied with the trial judge's directions: Gilbert v The Queen (2000) 201 CLR 414 at [31] (McHugh J); [2000] HCA 15.
I reject Mr Game's submission that this process involves the Court "making excuses" for the complainant. The criminal law is there to protect victims of all ages, education and walks of life, including the underprivileged, the inarticulate, and those whose cultural background has neither prepared them for, nor accustomed them to, the adversarial system which applies in Anglo-Saxon cultures. Pedantic or semantic distinctions drawn by a cross-examiner may be effective against particular witnesses who may enjoy parrying with the advocate. However, where such techniques are used when cross-examining a young indigenous male from Bourke, such as the complainant, the cross-examiner will run the risk that the tribunal of fact, with all the advantages of seeing and hearing the witness, will not accept apparent concessions recorded on the transcript when such concessions do not sit well with the evidence in the trial viewed as a whole. Further, as the Crown's meticulous review of the transcript and the exhibits in this appeal has demonstrated, a fair reading of the whole of the evidence, including the complainant's evidence which was credible and reliable as to the elements of counts 2 and 3, leads to the conclusion that it was open to the tribunal of fact to convict the applicant of counts 2 and 3.

[41]

Proposed orders

For the reasons given above, I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
PRICE AJA: I have had the considerable advantage of reading the judgment of Adamson JA. However, it is incumbent upon me to make my own independent assessment of the sufficiency and quality of the evidence.
The essential question in both grounds of appeal is whether I am satisfied upon the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 2 and 3.
Adamson JA details in her judgment the arguments advanced by Mr Game SC in this Court. I will not repeat them. I would add that Mr Game argued: "In respect of the complainant's evidence, the inconsistencies that can readily be identified with the accounts in respect of both count 2 and count 3 are such that issues about demeanour are really beside the point." [1]
I understand that Mr Game was submitting that the advantage enjoyed by the jury over this Court of seeing and hearing the witnesses at trial should be set aside.
In written submissions, Mr Game reminded this Court of what was said in Pell v The Queen [2] at [39]: "The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (footnotes omitted)
I am grateful for Adamson JA's comprehensive disposition of the arguments advanced by Mr Game. I agree with her Honour's reasons.
The jury had the particular advantage of seeing and hearing the evidence of the complainant, the applicant and his character witnesses. I am not persuaded by Mr Game that the jury's advantage should be overlooked.
Having reviewed all of the evidence in the trial, I am satisfied that it was open to the jury to accept the complainant's evidence of the offences being counts 2 and 3 on the indictment beyond reasonable doubt.
I agree with the orders proposed by Adamson JA.
GARLING J: I agree with the orders proposed by Adamson JA, for the reasons which her Honour gives.

Parties

Applicant/Plaintiff:

Davis

Respondent/Defendant:

Legislation Cited (5)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Criminal Procedure Act 1986(NSW)

Children (Criminal Proceedings) Act 1987(NSW)

Evidence Act 1995(NSW)

Cases Cited (24)

HEADNOTE [This headnote is not to be read as part of the judgment] Bradley Davis (the applicant) was convicted of two counts of aggravated indecent assault of a child under 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW) (counts 2 and 3 on the indictment) following a trial by jury over which Smith SC DCJ (the trial judge) presided and was sentenced to two community corrections orders. The applicant was acquitted of two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act (counts 1 and 4 on the indictment). The Crown case, which relied heavily on the evidence of the complainant (a 14- or 15-year-old indigenous boy from Bourke), was that between 29 August 2018 and 31 July 2019, the applicant (who was 33 or 34 years old) befriended the complainant and indecently and sexually assaulted him on three particularised occasions during visits to the applicant's parents' farm near Bourke (the farm). The allegations came to light gradually, as the complainant disclosed parts of the applicant's conduct to PJ (his then girlfriend), the police over several conversations and finally in his evidence at trial. The instances of offending ultimately alleged by the Crown were that: (1) the applicant inserted his penis in the complainant's mouth while in a shearing shed on the farm (count 1); (2) the applicant put his hand down the complainant's shorts and touched his penis while on or near the Darling River on the farm (count 2); and (3) the applicant touched the complainant's penis (count 3) and inserted his penis in the complainant's mouth (count 4) while staying overnight in a cabin on the farm. The applicant (whose case was that although he took the complainant to the farm to fish, ride motorbikes and hunt, none of the conduct charged occurred) sought leave to appeal against his convictions on the grounds that: (1) the verdict of guilty on count 3 was inconsistent with the verdict of not guilty on count 4; and (2) the verdicts of guilty on counts 2 and 3 were unreasonable and could not be supported having regard to the evidence. On appeal, the applicant challenged the complainant's credibility in several respects and relied on inconsistencies in the complainant's evidence which he submitted meant it was not open to the jury to find counts 2 and 3 proved beyond reasonable doubt. In response, the Crown submitted that when the evidence was read fairly as a whole, it was open to the jury to regard the complainant's evidence as credible and reliable. The Court held (Adamson JA, Price AJA and Garling J agreeing), dismissing the appeal: Ground 1: inconsistent verdicts (1) The court must inquire whether there exists any rational explanation for the acquittal on count 4 (not the conviction on count 3), other than doubts about the complainant's credibility: at [121] (Adamson JA). Nguyen v R [2017] NSWCCA 145; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151, applied. (2) Having regard to the complainant's initial complaint (that the applicant had touched him, but not that the applicant had put his penis in his mouth), the not guilty verdict on count 4 is explicable on the basis that the complaint evidence which supported the kind of conduct common to counts 2 and 3 was absent in respect of count 4: at [127], [133], [135] (Adamson JA). MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; R v ACK [2000] NSWCCA 180, applied. (3) The not guilty verdict on count 4 does not indicate any concern about the complainant's credibility generally: at [135] (Adamson JA). Ground 2: unreasonable verdicts (4) It is only in an unusual case where this Court could conclude that the complainant's evidence has been so damaged that it was not open to the jury to accept that evidence: at [138]-[139], [168] (Adamson JA). The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Z (a pseudonym) v R [2022] NSWCCA 8, applied. (5) It was open to the jury to regard the complaint evidence as supporting counts 2 and 3 as the type of conduct complained of (that the applicant touched the complainant's penis) was the subject of both counts: at [142] (Adamson JA). (6) That the complainant's account of the offences evolved over time does not undermine his credibility. It was open to the jury to infer that he felt increasingly able to tell the police what had happened to him: at [150]-[151] (Adamson JA). Reed v R [2006] NSWCCA 314; BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101; AS v R [2022] NSWCCA 291, cited. (7) The jury had the particular advantage of seeing and hearing the evidence of the complainant at trial. That advantage should not be overlooked: at [167] (Adamson JA); [177] (Price AJA).

[2024] NSWCCA 81

[2002] HCA 53

[2016] HCA 35

(2013) 88 ALJR 101

(1994) 181 CLR 487

(2002) 213 CLR 606

(2020) 268 CLR 123

(1998) 45 NSWLR 362

(2001) 52 NSWLR 82

(2016) 258 CLR 308

(2009) 74 NSWLR 299

(2000) 201 CLR 414