GN v R

Court of Criminal Appeal (NSW)|2024-03-04|Before: Adamson JA, Davies J, Garling J

The applicant's case

The applicant gave evidence in which he denied all the charges. It is not necessary to detail this evidence as it is not germane to the grounds of appeal. The applicant also called his wife, VN, one of his granddaughters, IM, and IM's mother, RM, in the defence case. Because of ground 3, it is necessary to summarise IM's, VN's and RM's evidence.

RM's evidence

RM is the applicant's daughter, the sister of TN and the mother of IM. RM recalled picking IM up from a disco in the town with her mother, VN. RM's evidence was: "Q. What did [IM] say? A. [IM] got into the car and she said to us, "Oh, [KN] said something about some letters," and I said to her, "What letters was that, darling?" and she said - she told me that her and [TWN] wrote - [TWN] helped her write half of the letters and then she said an hour after that [KN] had come to her and said that [TWN] was pregnant and then she said a couple of minutes after that that she was only lying. Q. The lying comment, what did you take that to refer to? A. I'm not - I wouldn't be a hundred per cent sure. I would have taken it to be the pregnancy one because it was a statement that was made an hour after but I couldn't be able to tell you who - which one it was for."
RM said that after TN and CN had shown the "letters" (the notes which KN had made) to the applicant and VN, TN and CN came around to RM's house to show her the letters. When RM read them, she thought that "it couldn't possibly be true", which accorded with VN's view. RM also expressed her view in the following exchange: "Q. So, you didn't believe it? A. No, not at all. Q. You would never believe it? A. Never. Q. You didn't hear or you didn't ever speak to [KN] about what she says happened? A. After all this? Q. Since you were shown the letters and you decided it could never have happened? A. Never, never, never. Q. That's because in your mind it did not matter what [KN] said, you would not believe it? A. That's right."
RM agreed that she had read KN and TWN's statements and also the transcript of KN's interview with police and considered what they said to be fabrications. RM agreed that she had read "everything in the brief". She agreed that as soon as she heard of the allegations she "instantly did not believe and refused to believe [them]".
RM said that when she and her family moved from the rural town to Melbourne in November 2018, the applicant and VN also moved to Melbourne to be close to them. She agreed that she depended on the applicant and VN a lot for babysitting and that she saw them every day. RM agreed that IM would have seen RM crying on occasions because she was "really upset" at what she believed to be the lies which TWN and KN had told about the applicant.
RM agreed that she had asked IM whether the applicant had ever touched her. When asked in cross-examination, she described the exchange as follows: "Just asked [IM] whether pop in any way had - because we sat down and we spoke about what had happened and I said, 'I'm sure there's no way that poppy has done this to you,' and she said, "No way." It wasn't a question that I asked her really. I said there was no way poppy would have done this to you and she said, 'No way.'"
RM agreed that she regarded IM's report of what KN had said at the disco as "absolute gold" and that, on hearing it, she became visibly "happy". RM also agreed that she had not gone to the police or anybody else about it.

VN's evidence

VN acknowledged that she had read the entire brief of evidence and that she knew what the allegations against the applicant were.
VN identified her work time sheets for February 2010, which were tendered in the defence case. She also gave evidence that when she returned home from work in the family car, she would toot the horn to indicate to the applicant that she wanted him to open the garage door or if she had groceries which she wanted the applicant to carry. Otherwise she would just drive in.
VN denied that she ever picked up KN from school in 2010. Nor was she aware of any occasion on which the applicant picked KN up from school. She denied that there was ever an occasion when KN was alone at home with the applicant but could not explain how else KN knew about her habit of tooting the horn when she got home. She denied that she had ever found KN crying in the bathroom at the house where VN and the applicant lived. VN said that she never saw TWN sitting on the applicant's knee, crying or the applicant wrestling with TWN. She did not recall any occasion when TWN had said that she did not want to stay overnight, although she did recall occasions when they would wake up in the morning and TWN would want to go home "for no reason". VN denied that TWN ever slept in the same bed as the one in which VN and the applicant slept and said that TWN always slept in the room which used to be RM's, although she would join them in the morning for a cup of Milo. She admitted that EN had slept in their bed in between VN and the applicant.
VN also gave evidence to the same effect as IM's and RM's evidence about what IM had said when she came out of the disco (that KN had told her that she had written half of the notes and TWN had written the other half). VN said that she was "gobsmacked" because she did not recall IM being present when there were family discussions about the "letters".
VN agreed that she had not told police, when she was interviewed for her statement dated 7 December 2015, anything about what IM had told her after the disco. She later said that she had made her statement before the disco evening.

Reasons for verdict

Particular passages in the reasons for verdict which are the subject of challenge in the appeal grounds are extracted below by reference to the particular ground. However, the reasons for verdict can be briefly summarised. The trial judge, with very limited exceptions concerning complaint, accepted the evidence of TWN, KN and CN. His Honour did not accept the evidence of VN or RM, finding that they lacked objectivity. The trial judge did not accept IM's evidence of the alleged conversation with KN at the disco, because of IM's conflicting emotions and because the version she gave did not fit with the other evidence in the trial (and, in particular, KN's refusal at the time to talk to anyone about what had happened to her) and did not correspond with either the Crown case or the defence case.
The trial judge accepted that TWN had complained about the applicant's conduct to CN and VN at around the time it occurred and that KN had told HC while they were in primary school about being (sexually) abused by the applicant.
His Honour was satisfied of the guilt of the applicant of each of the 21 counts on the indictment without relying on the tendency evidence which had been adduced.

Consideration

Before addressing the grounds of appeal, I propose to set out the applicable statutory provisions and principles which are relevant to a trial judge's obligation to give reasons for verdict in a trial by judge alone.
Section 133 of the Criminal Procedure Act 1986 (NSW) provides: "133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
A trial judge is required, when giving reasons for verdict, to do the following: identify the applicable principles of law; resolve disputes about material facts; address the submissions of the parties; and explain the reasoning process by which the verdict has been arrived at: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [44] (Gummow and Hayne JJ). The reasons for verdict should be at least of the standard expected in civil proceedings: Hodgson v R [2022] NSWCCA 72 at [98] (Leeming JA, Rothman and Hamill JJ agreeing).
The giving of reasons in criminal trials by judge alone has a significant public aspect. As Johnson J said in R v BK [2022] NSWCCA 51 at [102]: "An important part of the obligation to give reasons under s.133 Criminal Procedure Act 1986 at a Judge-alone trial is to allow the community, the parties and this Court to understand the basis upon which the verdicts were reached. This is of particular importance in maintaining the confidence of the community in the system of Judge-alone trials, which operates in circumstances where members of the community are not involved directly by way of jury service."
When considering an appeal against conviction from a trial by judge alone, the trial judge's reasons should be read fairly and as a whole: Hopgood v R [2019] NSWCCA 246 at [47] (Johnson J, Price and Lonergan JJ agreeing). As in civil proceedings, the trial judge's reasons "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456.

Grounds 1A, 1B and 2: alleged improper reasoning regarding KN's sexual experience in Crown address and reasons for verdict

These three grounds are related because they each concern what use, if any, could properly be made of KN's age and sexual experience by the tribunal of fact and whether the reasons for verdict indicate that the limits on such use were breached. Grounds 1A and 1B concern the reasons for verdict and ground 2 concerns the prosecutor's closing submissions and their alleged effect on the trial judge.
As the trial was by judge alone, the prosecutor chose not to open the case orally but rather, as the transcript recorded, relied on the Crown Case Statement. The trial judge indicated that he would use the document to inform himself of the nature of the allegations. The Crown Case Statement was not reproduced in the material before this Court. Mr Carroll, who appeared for the applicant in this Court, did not submit that it was necessary that it be made available to the Court.
The prosecutor did not ask KN about her sexual experience, except in so far as it arose out of the alleged offending conduct by the applicant. In cross-examination of KN, the applicant's trial counsel asked KN questions about whether TN had a collection of "rude movies" or "rude magazines". KN answered that she did not know. The obvious forensic purpose of these questions was to provide an evidentiary basis for the hypothesis that KN knew about ejaculation otherwise than as a consequence of the applicant's offending conduct.
At this point, the trial judge raised s 293 of the Criminal Procedure Act (as it then was) which made inadmissible any evidence of a complainant's sexual experience, or lack thereof (s 293(3)) except if the evidence was of the complainant's sexual experience or lack thereof at or about the time of the commission of the alleged offence (s 293(4)). Section 293(5) relevantly provided that a witness must not be asked about matters falling within s 293(4) unless the court has previously decided that the evidence would, if given, be admissible. The applicant's trial counsel informed the trial judge that there was no issue regarding s 293 of the Criminal Procedure Act and moved on to another topic.
After that exchange, the issue of whether there was another means by which KN could have observed ejaculation other than in the course of the offending conduct was not pursued with KN or raised with any other witness, including CN. Mr Carroll accepted that there was "nothing wrong" with the way in which the evidence was adduced in the trial (tr 15.46-.47).
In closing address, the Crown submitted that an 11-year old (KN's age at the time she gave her recorded interview, which largely comprised her evidence in chief) would not be able to give such a detailed and realistic description of ejaculation as KN did unless she had been subjected to the applicant's conduct. The Crown's Outline of Closing Submissions, which was provided to the trial judge, included the following: "[KN] is describing ejaculation and yet she could not have known at the time of her interview in 2016 what that was. … Truthfulness and Reliability of [KN's] Evidence [KN] is plainly a very intelligent child who was also a compelling witness. Understandably she struggled emotionally at times during the giving of her evidence. Despite that struggle she gave a detailed and cogent account of what she says the accused did to her. The Crown says that the following features of her evidence point to its' [scil.] truthfulness and reliability • The incredibly detailed account of the various sexual acts, including ejaculation • The detailed account as to where the ejaculate landed on different occasions and how the accused cleaned it up. (Q184) (Q539) … In Summary … Complainant [KN] was a very intelligent child. Gave extremely detailed accounts of what she says happened - including descriptions of breathing and ejaculations - matters she could not have understood the significance of at the time she participated in her recorded statement. …" (Emphasis added to indicate the passages which may be impermissible, as discussed below.)
In the reasons for verdict, the trial judge said, of present relevance: "92 Clearly the complainant KN was describing in some detail a male experiencing sexual climax and ejaculation. I remember the playing of the recording. The demonstration was graphic. The accused used a face washer to wipe up the ejaculate. The Crown describes the account in the outline of submissions as 'extraordinarily detailed account'. It is difficult to disagree with that description. … 100 I make the observation that the account given by KN again gives a clear account of ejaculation but moreover the account comes across as being somewhat matter of fact leaving me with the impression that it was not the first time that she had witnessed that occur. … 126 To my mind there is one issue that resolves the issue as to whether KN was fabricating her account: namely the very graphic and highly detailed description of the male sexual climax and ejaculation. The Crown draws attention to this in the outline of the closing address. In particular I note the answers to questions 181 to 183 inclusive of MFI 2 that I have already extracted when dealing with KN's evidence in chief. I note also Q/A 186 of MFI 2, namely, 'Did he wipe it off you as well?' to which KN replied 'Uh-huh'. Question 187 is 'Yep. And the lounge?' to which KN replied, 'Uh-huh'. See also Q/A 188 namely, 'Did he wipe it off anywhere else?' The answer was, 'No, 'cause it was nowhere else'. A child of the age of KN at the time of the interview simply should not have known about ejaculation. I found not only the account of the ejaculation utterly compelling but also the account of the accused cleaning up afterwards. … 130 Returning to the issue of KN describing ejaculation, as the tribunal of fact I found the few answers in re-examination at p 173 of 16.7.19 quite compelling: Q. I refer in that incident to 'cleaning something up'? A. Mm-hmm. Q. You were asked some questions about 'that being on the lounge'? A. Yes. Q. Can you describe what it was that he cleaned up? A. It's that stuff that came out of the tip of his penis, I can't - I don't know what it is. Q. What was he doing immediately before that came out? A. He was like moaning kind of and saying yeah a lot and then his breathing was very heavy and then it came out. 131 In particular I found that part of the answer at lines 16 and 17 very compelling indeed in that, 'It's that stuff that came out of the tip of his penis, I can't - I don't know what it is'. 132 KN also gives a graphic account of ejaculation when describing count 17, which is one of the counts of the 'Debbie Does Dallas' incident. I note that Exhibit J is an extract from Wikipaedia setting out the plot of the movie. KN gave a very detailed account of the plot it would seem. Clearly she had seen the movie. It was suggested in cross-examination to KN that her father had a collection of pornographic magazines. She said that she did not know. As I have already pointed out this was not pursued with the complainant's mother. I do not see in cross-examination that it was suggested that she saw the movie 'Debbie Does Dallas' in other circumstances." (Emphasis added to indicate the sentence particularly relied upon by the applicant.)
KN's evidence that the applicant had ejaculated was relevant to counts 12, 17 and 21 as well as being relevant to the credibility of her evidence on all counts concerning her, and to TWN's and CN's credibility where their evidence overlapped.
Mr Carroll accepted that it was not improper for a tribunal of fact to have regard to the age and other personal characteristics of a witness when assessing that witness's evidence and that it was not improper for the Crown to make submissions on that topic. He also accepted that a tribunal of fact is entitled to have regard to the detail with which a witness has described a particular event when deciding whether a witness was actually there and observed the event and when deciding whether the hypothesis of concoction has been excluded. However, he submitted, for the following three reasons, that the Crown ought not to have made the submission that, by reason of her age and the detailed description KN gave of ejaculation, her evidence was true and not a concoction: 1. there was no evidence to support the submission; 2. the trial judge was not entitled to take judicial notice of what the sexual experience or knowledge of a 11-year old would be since it was not a matter of common knowledge within the meaning of s 144 of the Evidence Act 1995 (NSW) (this was accepted by the Crown); and 3. because the description given by KN at the time of the interview (October 2016) reflected her knowledge at the time of the interview and not the time of the offending, it could not be used to establish her sexual experience at the time of the offending, including because of the prohibition in s 293 of the Criminal Procedure Act against evidence of sexual experience, or lack thereof, other than at the time of the alleged offending.
Mr Carroll submitted that the trial judge, in substance, accepted the Crown's submissions and, accordingly, fell into error, with the result that the convictions ought be quashed and a new trial ordered.
Mr Carroll referred to this Court's decisions in Munn v R; Miller v R [2006] NSWCCA 61 (Munn), Y v R [2009] NSWCCA 287 and Dries v R [2022] NSWCCA 33 (Dries) in support of his submission that the inference which the trial judge drew from KN's age was impermissible. The Crown relied on HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 and DH v R [2020] NSWCCA 2.
I propose to address these authorities in chronological order before turning to the grounds.

HG v The Queen (1999)

In HG v The Queen, the effect of s 409B(3) of the Crimes Act (the statutory predecessor to s 293 of the Criminal Procedure Act) was considered in the following context. Counsel for the accused (the de facto partner of the complainant's mother) sought an adjournment to permit opinion evidence to be led from a psychologist, Mr McCombie, that the complainant may have been sexually assaulted by her natural father (who had since died) rather than the accused.
Mr McCombie opined in a report: "I formed the opinion that [the complainant] had been sexually assaulted as a young child. I felt that this sexual assault had been buried in response to the trauma of it. I felt that the trauma had been resurrected by both the 'stranger danger' lecture and by her resentment at the [appellant] for his attempts at controlling her in the home. I felt that [the complainant's] inconsistency in her retelling of her story was a response to her confused memories about her past experiences and to a conscious attempt to implicate [the appellant] to punish him."
The trial judge refused the adjournment, ruling that the evidence would be inadmissible by reason of s 409B of the Crimes Act. The accused was found guilty at trial. His appeal to this Court was dismissed on the basis that the evidence was inadmissible under s 409B. The High Court, by majority (Gleeson CJ, McHugh and Hayne JJ, Gaudron and Gummow JJ contra), also dismissed the appeal.
Gleeson CJ said at [13]: "… The complainant, a young girl who was only about eight or nine when she complained to her mother, about ten when she spoke to the police, and twelve when she was giving evidence, was not merely alleging sexual abuse, but was also giving a detailed description of what the alleged acts of fellatio entailed. A trial judge or jury might well regard that description as lending weight to her allegations. The defence wished to be able to explain the complainant's ability to give such a description, in a manner consistent with the innocence of the only adult male with whom she had shared a home over a substantial period. The theory that she had, in truth, been a victim of sexual abuse, but that the abuser was her natural father (since deceased) would have been important to the defence case, if there could be found an evidentiary basis for such a theory."
At [24], Gleeson CJ, after setting out the effect of s 409B of the Crimes Act, referred to the Second Reading Speech to the Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 March 1981 at 4759-4760), which inserted the new provision: "[The section] was explained to Parliament as being 'designed to ease, so far as is possible, the humiliation experienced by sexual assault victims, to remove the stigma attached to the rape victim, to encourage victims to report the offences, and to bring the offenders to justice as justice demands.'"
Gleeson CJ also addressed the exceptions to s 409B(3) and found that none applied. His Honour concluded at [35]: "Kirkham DCJ and the Court of Criminal Appeal were right to hold that s 409B(3) operated to exclude evidence of Mr McCombie's opinion that the complainant had been sexually abused, in 1987, by her natural father, and that it was this abuse which she was actually recounting when she made allegations against the appellant."
Gaudron J said at [71] of present relevance: "A judge, in the case of trial by judge alone, or a jury might well reason in a case in which a young child claims to have been the victim of a sexual assault that he or she would not have sufficient knowledge of sexual matters to give an account of the offences charged unless those offences, in fact, occurred. In the present case, Mr McCombie's opinion that the complainant may have been sexually assaulted on another occasion may explain her knowledge of such matters. Accordingly, it is capable of detracting from the credibility which might otherwise attach to her evidence. However, it has no other significance." (Emphasis added.)
As Mr McCombie's opinion extracted above was held to be inadmissible under s 409B of the Crimes Act, the challenge to the convictions failed.

Munn (2006)

In Munn, two accused were tried by jury on charges of sexual offences against a seven-year-old girl. The complainant's recorded interviews revealed that she had some sexual knowledge from viewing television, observing her mother on one occasion and also because a twelve-year-old boy had had sexual intercourse with her. They did not indicate that she knew about the acts which were involved in the charges against the accused such as masturbation, digital penetration and oral intercourse. One of the accused's trial counsel applied for leave to cross-examine the complainant to find out whether her experience or knowledge extended to these matters.
The application was refused on the basis of s 293 of the Criminal Procedure Act. However, the prosecutor said, in closing address: "She hasn't got that from TV. She hasn't got that from watching her mum under a doona. She's got that, I suggest to you, from what these accused did to her. She describes masturbation, digital penetration, penile vaginal penetration and oral intercourse. You might think things out of the experience of just about any seven year old, or eight year old you could think of." (Emphasis in original judgment.)
Counsel for the accused did not object to this submission. The trial judge did not do anything to remedy the prejudice arising from this submission.
Barr J (Spigelman CJ and Simpson J agreeing), found that there had been a miscarriage of justice and said at [36]: "The possibility that the complainant might have had experience of such other matters was one which defence counsel had been prevented from raising. It was quite unfair to make such a submission, particularly because when the matter had been raised before the complainant gave evidence the Crown Prosecutor had nowhere indicated that he intended to put the case as he did in his closing address. I think that a miscarriage of justice resulted."
Barr J continued at [37]: "Since no point was taken at trial, leave is needed to rely on this part of the ground. It is difficult to see how the situation could have been retrieved, however, once the idea of the complainant's general lack of experience had been planted in the minds of the jurors. Perhaps that was why counsel thought it better not to raise the matter at all. I would grant leave to argue this part of the ground and uphold this ground of appeal."

Y v R (2009)

Similarly, in Y v R, the trial judge refused the accused's applications for leave under s 293 of the Criminal Procedure Act to adduce evidence of prior sexual experience of two young complainant witnesses who gave evidence that the accused had committed sexual offences against them. However, the prosecutor, in closing address, referred to the complainants as "naïve little girls" who "have had limited sexual education to that point".
Allsop P (Howie and Hislop JJ agreeing) considered, at [61], that the effect of the Crown's submission was to suggest that the complainants "would not have had the background to be able to create the graphic details of their allegations of the sexual abuse by the appellant". On this basis, this Court found that the Crown's closing address took unfair advantage of the rulings under s 293 of the Criminal Procedure Act which prevented the accused from adducing evidence of the complainants' sexual experience to counter the Crown's allegation that they lacked sexual experience. As the accused did not object to the Crown's closing address at the trial, the trial judge gave no remedial directions. This Court quashed the convictions and ordered a new trial on that basis.

DH v R (2020)

In DH v R, which proceeded as a judge-alone trial, one of the complainants gave evidence that when he was required to masturbate the applicant, the applicant's penis was not erect. The applicant led evidence that when the applicant's penis was not erect it was not visible. The trial judge's reasons included the following: "as a matter of common sense and experience the state of a penis need not be viewed in a binary fashion as falling into alternatives of flaccid or erect" (at [126]).
Hoeben CJ at CL (Price and Campbell JJ agreeing) said, of present relevance: 128 … [T]here are difficulties in perception, i.e. the ability of a young boy with small hands with limited exposure to the normal size of an adult penis, to receive and perceive information about what he was seeing and touching … 129 It was the applicant's submission that in effect when [the complainant] said that what he recalled seeing was a non-erect penis, he must be wrong because one cannot see the applicant's penis when it is non-erect. The trial judge's finding, however, is in effect that given [the complainant's] age at the time and given his lack of experience of adult erect penises, potentially what he remembered as a soft non-erect penis was in fact what was described in the expert evidence as his erect penis. 130 In reasoning that there was a continuum between a non-erect and an erect penis, the trial judge relied upon common sense and experience which was something, which standing in the shoes of the jury, he was entitled to do. … … 132 When regard is had to the age of [the complainant] at the time, his lack of experience and what was actually occurring, i.e. a sexual assault, it was well open to his Honour to find that [the complainant] had confused what was a semi-erect penis with a flaccid one. It would be highly unusual for a child of six or seven to appreciate that there was a continuum between a penis being flaccid and becoming erect so as to be able to give reliable evidence as an adult as to what he had seen many years before."

Dries v R (2022)

In Dries v R, the applicant was charged with unlawful sexual intercourse with a child under the age of 10 years (the complainant was aged 4 or 5 at the time of the alleged offending). In closing address, the Crown told the jury that, in assessing the complainant's evidence, the jury should consider "her physical size, her age, her life experience, her lack of sexual experience and her maturity" (emphasis added). At the end of the Crown's closing address, the applicant's trial counsel applied for a discharge of the jury on the basis that the submission was made without any evidence to support it and also involved a breach of s 293 of the Criminal Procedure Act. The trial judge refused the application to discharge the jury. The Crown retracted the reference to the complainant's lack of sexual experience in a further submission to the jury and the trial judge, in the summing up, directed the jury to disregard the original submission in so far as it referred to the complainant's lack of sexual experience.
This Court (Macfarlan JA, Rothman and Dhanji JJ agreeing) noted at [5]: "Both the trial and the application for leave to appeal proceeded on the basis that s 293, or at least the legislative policy reflected in it, was breached by at least the reference to a lack of sexual experience even though the statement was a submission by counsel and not 'evidence', which is the term used in s 293."
It is plain from this Court's reasons in Dries, that the Court accepted that the concession noted above was properly made. Dhanji J observed at [77]: "With respect to the prosecutor's address it is troubling that a prosecutor in a sexual assault trial would address a jury in the manner that occurred here."
This Court found that any prejudice occasioned by the use of the words, "her lack of sexual experience" was remedied by the Crown's retraction and the trial judge's direction to the jury: [63] (Macfarlan JA). Accordingly, the appeal was dismissed.

Summary of authorities

The following propositions are established by the authorities referred to above: 1. a prosecutor ought not resort in submissions to generalisations about the age at which a person of the complainant's age may become aware of sexual matters, including in circumstances where an accused has been prohibited by s 293 or its equivalents from adducing evidence of prior sexual experience (Y v R at [61] (Allsop P, Howie and Hislop JJ agreeing); Dries at [77] (Dhanji J)); 2. the unfairness created by a prosecutor's submissions to the effect of (1), unless remedied by an appropriate retraction by the Crown and/or a direction from the trial judge, may cause a miscarriage of justice, requiring the quashing of convictions and an order for a re-trial (Munn at [36]-[37] (Barr J, Spigelman CJ and Simpson J agreeing); Y v R at [61] (Allsop P, Howie and Hislop JJ agreeing); Dries at [63] (Macfarlan JA, Rothman and Dhanji JJ agreeing)); 3. when determining the weight of a complainant's evidence and, if relevant, when deciding whether the complainant's evidence, when seen in the context of the evidence as a whole, is inconsistent with concoction (being a common hypothesis consistent with innocence advanced on behalf of accused persons in cases of child sexual abuse), the tribunal of fact is entitled to use its common sense and take into account all relevant factors, including the complainant's age, vocabulary and the way in which evidence is given (HG v The Queen at [13] (Gleeson CJ) and [71] (Gaudron J); DH v R at [129]-[132] (Hoeben CJ at CL, Price and Campbell JJ agreeing)).

Whether the Crown's closing address was prejudicial to the applicant

I will address appeal ground 2 first because it is a challenge to the fairness of the trial on the basis of the Crown's closing address which necessarily preceded the trial judge's reasons for verdict. The difficulty with this ground in the context of a trial by judge alone is that if the submission was incorrect but not accepted by the trial judge, it is immaterial and if it was incorrect and accepted by the trial judge for reasons which are, accordingly, tainted by the error, then the ground is superfluous.
The Crown, in its address, relied on the extraordinary detail of KN's descriptions of ejaculation as being inconsistent with concoction. It urged the trial judge (along the lines of HG v The Queen and DH v R) to use common sense to reason that she could not have given such a detailed description in the terms in which she gave it unless she had been sexually assaulted by the applicant. Had the Crown address gone no further than a submission to that effect, no exception could reasonably have been taken to it.
However, there are aspects of the Crown's closing address which, read in isolation, may exceed the bounds of what the authorities establish to be lawful. I consider the Crown's use of the word "could" in the two passages highlighted above ("she could not have known at the time of her interview in 2016 what that [ejaculation] was" and "matters [namely, ejaculation] she could not have understood the significance of at the time she participated in her recorded statement") to be ambiguous and potentially prejudicial.
The Crown case was that the applicant had committed the offences alleged on the indictment. The defence case was that the complainants, TWN and KN had fabricated the allegations. Accordingly, the credibility of TWN and KN was the most significant issue in the trial. The improbability of KN being able to give such a detailed description, absent any evidentiary foundation for an explanation other than that afforded by the Crown case, added considerably to the strength of the Crown case. The prosecutor was entitled to rely on it in closing submissions. Thus, if all the Crown was putting was that the trial judge ought infer (from KN's words and the way in which she gave her evidence, in the context of her age at the time) that she had only observed ejaculation in the context of the charged conduct, this submission was open.
However, if the Crown was putting that because KN was a child of 11 (at the time of interview and younger at the time of the alleged offending conduct) she could not understand the significance of ejaculation the submission would require correction because sexual knowledge is not a matter of common knowledge about which generalisations can be made (and therefore not a matter about which judicial notice could be taken).
It is not necessary to address ground 2 further, since, in terms, it requires that the Crown submission have a causal effect: namely, that it "led to a miscarriage of justice." Thus, it is necessary to address the trial judge's reasons for verdict to ascertain how the submission affected his Honour as the tribunal of fact.

Consideration of the reasons for verdict

With the exception of the sentence, "[a] child of the age of KN at the time of the interview simply should not have known about ejaculation", I consider that the trial judge's reasons for verdict indicate that he was impressed with the innocent way in which KN described what the applicant was doing (his physical acts, his method of breathing and his repetition of the word "yeah") whereby she accurately recalled and reported what she had seen and heard without having any actual understanding of what was going on at a deeper physiological level or why the applicant would be behaving in that way. The trial judge's reasons indicate that his Honour considered that KN did not know the deeper meaning of the physical act of ejaculation and did not know what the liquid being emitted was or what its purpose might be. Thus, in effect, the trial judge found that although KN could describe what happened, she could not understand what happened and that this tended to exclude the defence case of concoction.
The trial judge would appear to have been cognisant of the dramatic irony of KN's description: he and every other adult in the courtroom would know precisely what the applicant was doing (endeavouring to attain and ultimately attaining sexual climax with the associated gratification at the time of ejaculation). That the applicant was ultimately able to climax to ejaculation in the bedroom where KN and IM slept when they stayed over (having been unable to do so in the lounge, the kitchen or the toy room on that occasion) was also a matter that strongly supported the Crown case. KN's evidence showed that she did not have any appreciation of the underlying reason for the applicant's conduct. However, as the trial judge noted, her "matter of fact" tone was such that he inferred that she had seen it occur before (because the applicant himself had previously ejaculated in her presence).
Further, the applicant's trial counsel, by raising the possibility that KN knew about ejaculation from a source other than the applicant, can be taken to have appreciated the forensic need to establish an evidentiary basis for that alternative hypothesis. However, KN's negative answer to his questions foreclosed the possibility that she had derived such knowledge from magazines and films owned by someone else. This line of questioning was not pursued with CN, the only other witness who might have been able to give evidence on the topic. Mr Carroll also raised the possibility that KN knew about ejaculation from the "nightmare movies" referred to in her notes. As is evident from [132] of the trial judge's reasons, his Honour was conscious of the need to address any reasonable hypothesis consistent with innocence raised in the defence case. It is clear from this passage that the trial judge did not consider that the applicant had provided any evidentiary basis for the hypothesis that there was another source for KN's knowledge about the mechanics of ejaculation.
For the purposes of grounds 1A, 1B and 2, I regard the sentence "[a] child of the age of KN at the time of the interview simply should not have known about ejaculation" as the only sentence in the trial judge's reasons which could potentially be problematic. Viewed in isolation, this sentence could be understood as revealing an illegitimate mode of reasoning based on judicial notice (what an 11-year old girl who had not been sexually assaulted would know about ejaculation), which was not authorised by s 144 of the Evidence Act, as well as being in breach of the policy behind s 293 (that it is unfair to an accused to infer from the absence of evidence that a complainant lacks sexual experience, given that s 293 prohibits evidence of sexual experience, or a lack thereof, from being adduced).
However, that sentence is not to be read in isolation. The trial judge, as the tribunal of fact, was entitled to infer that it would be unlikely that KN would be able to give such a detailed and graphic description of the prelude to, and effect of, ejaculation unless she had actually seen it herself. KN's naïve descriptions tended to prove that she had only seen it in the context of the commission of the offences charged on the indictment. This reasoning did not depend on "judicial notice" but rather on "common sense" and "life experience" on which juries and trial judges sitting alone are entitled to bring to bear in their assessments of facts, as was confirmed in HG v The Queen and DH v R. This reasoning did not involve any breach of the purpose of s 293 of the Criminal Procedure Act and created no unfairness to the applicant.
It is also necessary to address Mr Carroll's further submission that because KN gave her recorded interview when she was 11 years old, the recording could not be used to indicate her awareness of ejaculation at the time of the offending, which occurred, in the case of the most recent offending (counts 15-17), when she was 9 or 10, or, in the case of the remaining counts, when she was 4 or 5. He argued that, to use it for that purpose, would involve a breach of s 293 of the Criminal Procedure Act because KN's sexual experience at the time of the interview would, necessarily, not correspond with her sexual experience at the time of the alleged offending.
If Mr Carroll's submission were accepted, it would follow that a tribunal of fact could never use a complainant's evidence as an indication of lack of sexual experience since the evidence would necessarily be given at a later time than the alleged offending. The only reasonable assumption is that KN's understanding of ejaculation would not be less when she was interviewed in October 2016 than it was at the time of the alleged offending. Further, I regard the date of the interview as reasonably proximate with the time of the offending in that KN was still, at the age of 11, a child at the time of the interview.
For these reasons, I reject Mr Carroll's submission that the trial judge improperly took into account KN's descriptions of the applicant ejaculating given in the interview when drawing an inference that her only experience of witnessing ejaculation derived from seeing the applicant ejaculating.
Accordingly, grounds 1A, 1B and 2 have not been made out.

Ground 3: alleged improper rejection of the evidence of IM

The trial judge explained why he rejected the evidence of IM at [227]-[229] of the reasons for verdict. His Honour set out the evidence in chief of IM (about her conversation with KN at the disco about the "letters") and her evidence in cross-examination (about the anger and unhappiness within the family about what KN had written about the applicant in the letters), which had been skilfully elicited by the Solicitor Advocate in the course of the trial.
The trial judge said at [229]: "Given this there is real substance in the Crown's submission that IM was witnessing conflict in the family or to use the Crown's words, the family was imploding. There are two difficulties for the accused so far as the evidence of IM is concerned: one is that it is the case for the accused that TWN essentially persuaded KN to write the letters, and the second is that KN spoke to no one about what had been happening to her. It is unlikely in the extreme that KN would have spoken randomly to IM about what she said had been happening to her." (Emphasis added.)
The trial judge also addressed VN's and RM's evidence about what IM had said to them when they collected her from the disco and rejected their evidence, concluding that they lacked any objectivity in giving their evidence. The trial judge considered that neither VN nor RM could countenance the possibility that the applicant had done the acts with which he had been charged (it being anathema to each of them) with the result that they were, in effect, forced into the alternative hypothesis: that KN and TWM had fabricated the allegations and were lying. Their lack of objectivity was amply demonstrated by the cross-examination of VN and RM by the Solicitor Advocate for the Crown, portions of which were extracted in the reasons for verdict.
In substance, the trial judge accepted the submissions about the alleged conversation between IM and KN at the disco which had been put on behalf of the Crown which were to the following effect: 1. IM was a "young child … in an enormously difficult circumstance" who did not understand that the applicant had been charged or that police were involved; 2. it was not part of either the prosecution case or the defence case that TWN had written half of the letters and KN had written the other half (the prosecution case was that KN had written all the letters without any consultation with TWN and the defence case was that TWN had put KN up to writing the letters); and 3. KN "did not speak to anybody about this matter. She barely spoke to her sister, [TWN]. She certainly did not speak to other family members and she did not speak to the police, despite [a number of] attempts on their part to interview her. It is simply inconceivable that she would approach [IM] and speak to her about it". (Emphasis added.)
Mr Carroll submitted that the trial judge was wrong to reject IM's evidence on the basis that "KN spoke to no one about what had been happening to her", since the evidence established that KN had spoken to HC when they were "little" and again recently when they had seen each other in December 2017 at a dance concert. Further, Mr Carroll relied on HC's answer in her recorded interview when asked how the disclosure at the dance concert came about: "Um, I'm not really sure. I think she just like brought it up. She told a few more people." (Emphasis added.)
Mr Carroll submitted that the trial judge failed to address the gravamen of HC's evidence that KN had not only told her at the dance concert that the applicant had been abusing her but had also told "a few more people".
The content of what KN said to HC and when it was said is the subject of ground 4, which will be addressed below. However, for the purposes of ground 3, it is also necessary to address KN and HC's evidence about what KN told HC.
KN's evidence was that she told HC in primary school that she had been molested by the applicant. HC's evidence was that KN had told her at primary school that she and TWN had been "abused" by the applicant. HC also gave evidence that KN had mentioned this again in 2017 at their dance concert and that she was going to court about it but she did not recall how KN's disclosure had come about and that KN had told "a few more people".
Even if it be assumed that HC ought properly be understood as saying that KN told HC and a few other people at the dance concert in December 2017 that she had been abused by the applicant and was going to court (a questionable assumption, given the unsatisfactory form of the evidence), this does not make it more likely that KN said anything to IM at the disco in 2015. Up until October 2016, KN remained almost completely silent about what had happened, notwithstanding her mother's, TWN's and the police's attempts to get her to divulge the events which had caused her to write the notes. By 20 October 2016, KN was prepared to undertake a police interview and, by December 2017, she knew that the matter was "going to court".
The applicant's trial counsel made no submission about HC's answer about KN telling "a few other people"; nor was a reference to that evidence included in his summary of notes for closing address which he sent to the trial judge. The trial judge was not obliged to address a submission which was not made or to analyse evidence which had little or no probative value, including because it was not only in unclear terms but it was also unexplored at the trial.
The trial judge's reasons were sufficient to explain why he rejected IM's evidence. His Honour's reference to IM witnessing conflict in the family was, in substance, a finding that she had a motive, potentially subconscious, to ease her mother's and grandmother's pain by casting doubt on KN's veracity. This served to explain the genesis of IM's evidence: she was trying to help, having detected conflict in her family, and her lack of maturity (being only 8 or 9 at the time, since she was three years younger than KN, who could not have been more than 12 to be allowed to attend the disco) led her to come up with a story which might have provided some palliative comfort to her mother and VN but had little, if any, probative weight in the context of the evidence in the trial as a whole. It was not necessary for the trial judge to express a view as to how this motive might have operated on IM's mind (for example, whether it led her to be mistaken about what, if anything, KN said on the topic, or whether it led her to imagine that she had heard what had not actually been said).
The trial judge was entitled to reject IM's evidence because it did not fit with the rest of the evidence in the trial or with either the Crown case or the defence case. As the trial judge pointed out, it was the defence case that TWN, as the older sister, was, in effect, the governing mind of the fabrication (which was inconsistent with TWN and KN each writing half of the notes).
The only challenge to the trial judge's rejection of IM's evidence was based on the alleged inaccuracy of the words, "KN spoke to no one about what had been happening to her" which his Honour considered made it unlikely that she would volunteer any information to IM.
If these words are read in isolation, they lack the nuance required to reflect all the evidence, which included the following: 1. KN did not want to talk to TWN about what had happened when TWN confronted her with the notes that she had written (see [141] of the reasons for verdict); 2. KN was most reluctant to divulge anything to her mother and her mother was unable to elicit any further detail from KN other than what she had told her initially (see [142]-[143] of the reasons for verdict); 3. KN only came forward to be interviewed by police on 20 October 2016 after the applicant had been committed for trial in respect of the allegations made by TWN; the counts in relation to KN were added ex officio by the Director of Public Prosecutions (see [9] and [44] of the reasons for verdict); and 4. HC said that she had not spoken to KN about the alleged sexual abuse at any time between the conversation which had taken place when they were in primary school and December 2017 at their dance concert, at which time KN told her (and possibly a few more people) that the applicant had molested her and that "she was going to court … about it".
The trial could, undoubtedly, have expressed the matter differently but, as a matter of substance, no error in his Honour's reasons has been demonstrated.
However, as the authorities referred to above establish, reasons for judgment or verdict are to be read fairly, as a whole and "are not to be construed minutely and finely with an eye keenly attuned to the perception of error". What the trial judge said was sufficient to capture the gist of the reasons why it was so improbable that KN would have said that which was alleged by IM. These reasons included that KN was maintaining almost total silence about what had happened to her, at least until October 2016, when she allowed herself to be interviewed by police.
Accordingly, the applicant has failed to establish any error in the trial judge's careful analysis and findings regarding IM's evidence. Ground 3 has not been made out.

Ground 4: alleged failure to make necessary findings about the complaint evidence

At trial, the applicant's counsel submitted that the following complaint evidence (which was alleged to be inconsistent) substantially undermined the Crown case: 1. TWN's evidence that she told VN after the second incident that the applicant was touching her vagina, a conversation, which was denied by VN, who said that she was not made aware of any allegations until she was contacted by CN in May 2015; 2. CN's evidence that she was told by TWN when she was seven that the applicant "touched her in places that she didn't want to be touched and that he made her touch his penis" to which CN responded, "next time it happens, tell nan [VN]", a conversation which was denied by TWN who said that she told no one apart from VN; 3. KN's evidence that she complained to her mother, CN, of a sore vagina and was treated by her mother with topical cream, an event of which CN did not give evidence; and 4. HC's evidence that KN had told her in primary school that the applicant had (sexually) abused her and TWN, when KN was not aware of the abuse of TWN until February 2015 and could, therefore not have told HC at an earlier time.
As to (1), Mr Carroll submitted that the trial judge did not make an "explicit" finding as to when and how TWN complained to VN in circumstances where TWN's evidence of complaint was denied by VN.
As to (2), Mr Carroll submitted that the trial judge did not explain why he favoured the account of CN over the account of TWN whom his Honour otherwise regarded as an impressive, honest and reliable witness.
Mr Carroll did not make a submission about (3) in this Court.
As to (4), Mr Carroll submitted that HC's evidence that KN had told her in primary school that both she and her sister (TWN) had been molested by the applicant could not possibly have been true as KN did not find out until February 2015 that TWN had also been sexually abused, when TWN told her after discovering the notes. He submitted that the trial judge failed to appreciate the flaw in the evidence or to make the necessary findings concerning complaint evidence, including the terms of the complaint or when it occurred.
The trial judge said, of present relevance: "164 There is the issue of the complainants not giving evidence of or not remembering what other witnesses say they said about the complainants telling of the alleged indecent conduct by the accused. It seems to me as the tribunal of fact that if the allegations were in fact fabricated the issue of the complaint evidence would be a lot 'tidier' or 'slicker' than it is. 165 There seems to me to be a real ring of truth about the notes that are exhibit B. They can be seen as a young girl crying out for help or on the other hand simply telling the book. There also appears to me as the tribunal of fact a very real ring of truth about that part of CN's evidence where she gave an account of TWN saying something to her and telling TWN to tell the accused's wife. I note in particular the response to the Crown when asked why she did not do anything else, namely 'because I was stupid'. The conversation with the school friend HC was several years before evidence was given. It is not unusual for a complaint of indecent conduct to be made in very general or even generic terms such as 'I was abused' or 'I was molested'. There is the issue of the timing so far as KN being aware of the allegations by TWN. However, I am satisfied to the criminal standard that KN did made a complaint to HC. 166 As the tribunal of fact I have the most enormous difficulty accepting that the initial complaint by TWN was borne out of jealousy. There is simply not the evidence to support that. Indeed, as the tribunal of fact I find that I am not even able to draw an inference that TWN felt that degree of jealousy. I note the evidence of EN (brother of the complainants) at p 47 of 17.7.19 that TWN was not as close to the grandparents as KN. Not being as close does not equate to the very substantial animus that would have been necessary to fabricate these allegations. I have already made the comment that if there was such jealousy that would lead TWN to not only fabricate these allegations but persist with them and then inveigle her sister to make similar but even more serious allegations including the manufacturing of the three pages of notes then one would expect that animosity to have been obvious and it would have manifested itself in other ways. I accept that both TWN and KN made complaints at least in general terms about improper sexual conduct towards them by the accused. I have already set out the use I can make of that evidence. I am of the opinion that it does support the Crown case.
I consider the trial judge's reasons concerning complaint evidence to be sufficient.
As to (1) and (2), the trial judge's reasons concerning TWN's complaint to CN indicate that his Honour accepted CN's recollection of what TWN told her (that she had been molested) and of how CN had responded (by telling her to tell VN if it happened again) and TWN's recollection of telling VN. The trial judge took into account, in accepting CN's evidence that CN came to appreciate, with the benefit of hindsight, how "stupid" her response was (implicitly because it was based on CN's assumption that VN would believe TWN and stop it happening again, either to TWN or to any other child). The trial judge elsewhere found that VN was not objective and therefore did not accept her evidence. It was not necessary for the trial judge to make a specific finding as to when, or in what terms, TWN's complaint was made to VN. Further, the trial judge, at [164], referred to the issues about witnesses remembering or not remembering making complaints. These reasons are sufficient to indicate that his Honour did not consider that TWN not remembering her complaint to CN (although CN clearly remembered it), but remembering her complaint to VN (who denied it but whose evidence was rejected by the trial judge) was not something which affected his assessment of TWN's credibility as a whole.
As to (4), the effect of the trial judge's finding is that the "issue" about the timing of KN becoming aware of the allegations by TWN (which meant that she could not have told HC while they were in primary school that TWN was being molested) did not alter his Honour's satisfaction that KN told HC about the sexual abuse against her. The trial judge found KN to be a witness of credit for several reasons, particularly the way in which she gave her evidence and the detail she gave about the offending acts (as referred to above). Importantly, KN gave evidence that she told HC that the applicant had "molested" her and HC recalled that KN had told her that she was being "abused" (the word used by HC). That HC also recalled (mistakenly) that KN had told her at primary school that TWN had also been "abused" was plainly, having regard to the trial judge's reasons, insufficient to cause the trial judge to retain any reasonable doubt that KN had confided in HC about the applicant's conduct. The trial judge's reasons were sufficient not only to explain his Honour's finding but also to indicate that his Honour was aware of the "issue" and had taken it into account in making the finding.
For these reasons, ground 4 has not been made out.

Ground 5: alleged failure to consider the evidence of DN

In his closing address, the applicant's trial counsel submitted that KN "built … an excuse" into her evidence about what DN had observed when the applicant was "banging [her] butt against his penis": namely, that DN would "probably lie and say, 'I didn't see anything'". He asked rhetorically, "Is it because she knows she's lying about what happened?". He submitted that KN had done a similar thing when she said that she had told HC about what had happened (when they were in primary school), but qualified her evidence by saying, "but [HC] probably won't remember because it was so long ago". The applicant's trial counsel submitted: "Again, she built in an excuse for that person not to corroborate her, we say, because she knew she was lying."
The applicant's trial counsel also referred to DN's evidence later in the submissions and relied on the fact that DN had not seen anything between the applicant and KN which caused her any concern. This submission was reflected in the notes of his submissions which he provided to the trial judge after the hearing had concluded, as follows: "[DN] Did not witness any incidents of concern with [the applicant] and [KN] (pg 3)"
The trial judge did not expressly refer to the evidence of DN in his reasons for verdict. Mr Carroll submitted that, as DN's evidence was inconsistent with KN's evidence, it was incumbent on the trial judge to deal with this inconsistency.
I reject this submission. A trial judge is not required to catalogue all of the evidence in the trial in the reasons for decision. The obligation of a trial judge is to give reasons for the decision, not to prepare a transcript summary. DN's evidence had little, if any, probative value. That she had observed the applicant and KN together and had never had any cause for concern was barely relevant in the circumstances of a case where all the conduct by the applicant was either unwitnessed (in the case of the charged counts) or at least ambiguous (such as his touching KN's vagina when she was in the swimming pool). In any event, there was no actual conflict or inconsistency between DN's evidence and KN's evidence since, although KN thought that DN had seen her, KN was not sure whether DN had actually seen her. Further, KN's evidence was that the applicant had not seen DN, which meant that the possibility was open on KN's evidence that DN had not seen the applicant.
Indeed, DN's evidence was effectively neutral in that it was consistent with both the Crown case (that the applicant was a paedophile who offended against TWN and KN in such a way as to avoid detection) and the defence case (that the applicant was a good husband, father and grandfather who was the victim of fabrication by one of his granddaughters and a step-granddaughter).
For these reasons, ground 5 has not been made out.

Conclusion

Each of the grounds of appeal has required this Court to consider whether reasons given by a trial judge sitting as judge alone in a criminal trial are sufficient to comply with the obligations imposed by s 133 of the Criminal Procedure Act and the general standards for judicial reasons. None of the grounds has been made out as the reasons given by the trial judge, apart from occasional infelicities of expression (which have been addressed above), were sufficient and did not reveal error. Unlike this Court, the trial judge did not have the benefit of a transcript of the parties' submissions and was required to rely on his notes and the parties' outlines which were provided to him at the conclusion of the hearing. The trial judge's reasons were well expressed, carefully considered and delivered in a timely way, given the length of the trial, the period over which the proceeding extended and, inevitably, the other commitments of the trial judge. They complied with the requirements of s 133 of the Criminal Procedure Act and the general law.

The proviso

As none of the grounds of appeal has been made out, it is not necessary to consider the proviso.

Leave

As this Court has heard full argument and considered each of the grounds I would be inclined to grant leave to appeal.

Proposed orders

For the reasons given above, I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
DAVIES J: I agree with Adamson JA.
GARLING J: I agree with Adamson JA.

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: 13 March 2024

tion: Criminal Citation: R v GN [2020] NSWDC 59 Date of Decision: 24 March 2020 Before: Lerve DCJ File Number(s): 2015/229073

HEADNOTE [This headnote is not to be read as part of the judgment] Following a trial by judge alone before Lerve DCJ in the District Court at Wagga Wagga, GN (the applicant) sought leave to appeal against his conviction of 9 counts of indecent assault of a person under 10 years contrary to s 61M(2) of the Crimes Act 1900 (NSW) in respect of his step-granddaughter TWN, 10 counts of indecent assault of a person under 16 years contrary to s 61M(2) of the Crimes Act in respect of his granddaughter KN, and 2 counts of sexual intercourse with a child under the age of 10 contrary to s 66A(1) of the Crimes Act also in respect of KN. The offending conduct occurred in the following circumstances. TWN and KN would sometimes be picked up from school by and sleep over at the applicant's house because their parents worked. On separate occasions when TWN was 7 or 8 years old, and when KN was 4 or 5 years old and later when she was 7 or 8 years old, the applicant touched his granddaughter's and step-granddaughter's breasts and vaginas, made them touch his penis and, in the case of KN, ejaculated in her presence, put his penis in her mouth and digitally penetrated her vagina. TWN and KN first disclosed the applicant's conduct to their mother, CN, in 2015 when TWN discovered notes that KN had written which revealed she had been indecently assaulted by the applicant. The applicant sought leave to appeal against his convictions on the following grounds: (1) the trial judge dealt with KN's description of ejaculation improperly in that: (a) the trial judge improperly took judicial notice of the fact that an 11-year-old would not know about ejaculation (ground 1A); and (b) the trial judge's reasoning was contrary to s 293 of the Criminal Procedure Act 1986 (NSW), as it then was (ground 1B); (2) the Crown's closing submissions on the complainant's lack of sexual experience led to a miscarriage of justice; (3) the trial judge improperly rejected the evidence of IM; (4) the trial judge failed to make necessary factual findings about the complaint evidence; and (5) the trial judge failed to consider the evidence of DN. The Court held (Adamson JA, Davies and Garling JJ agreeing) dismissing the appeal: Grounds 1A, 1B and 2: what use could be made of KN's age and sexual experience (1) The trial judge did not improperly take into account KN's descriptions of the applicant ejaculating: Adamson JA at [178], Davies J at [217], Garling J at [218]. (2) The trial judge was not entitled, when assessing KN's evidence to act on generalisations about what an 11-year old girl would know about ejaculation (since it is not a matter of common knowledge within s 144 of the Evidence Act 1995 (NSW) and such an assumption would be unfair to the applicant by reason of s 293 of the Criminal Procedure Act). However, the reasons for verdict are read fairly and as a whole, indicate that the trial judge did not reason in that way: Adamson JA [174]-[175]; Davies J at [217]; Garling J at [218]. (3) The trial judge's statement that "[a] child of the age of KN at the time of the interview simply should not have known about ejaculation", which, read in isolation, would appear to reveal an illegitimate mode of reasoning, did not, when the reasons for verdict are read fairly and as a whole, indicate error: Adamson JA at [171]-[175], Davies J at [217], Garling J at [218]. (4) The trial judge was entitled to infer, based on common sense and life experience, that it would be unlikely that KN would be able to give such a detailed description of ejaculation unless she had actually seen it herself. The naivety of KN's descriptions tended to prove that she had only seen ejaculation in the context of the commission of the offences charged: Adamson JA at [175], Davies J at [217], Garling J at [218]. HG v The Queen (1999) 197 CKR 414; [1999] HCA 2, applied. (5) The trial judge was entitled to take into account KN's descriptions of ejaculation at the time she was interviewed by police when she was 11, although the sexual assaults had occurred earlier. It could be assumed that her sexual experience at the time of the offending was no greater than it was at the time of the interview and therefore the terms of the descriptions were relevant to her sexual experience (or lack thereof) at the time of the alleged offending: Adamson JA at [176]-[178], Davies at [217], Garling J at [218]. Ground 3: whether IM's evidence was improperly rejected by the trial judge (6) The trial judge's reasons, read as a whole, sufficiently capture the gist of why IM's evidence (that KN disclosed to her that she and TWN wrote the notes together) was highly improbable and was likely to have been influenced by the emotional conflict within the extended family occasioned by KN's disclosure of the applicant's conduct: Adamson JA at [190]-[191], [195] Davies J at [217], Garling J at [218]. (7) The trial judge was entitled to reject IM's evidence because it did not fit with the rest of the evidence in the trial, the Crown case or the defence case: Adamson JA at [191], [195] Davies J at [217], Garling J at [218]. Ground 4: whether the trial judge failed to make proper findings about complaint evidence (8) The trial judge's reasons concerning complaint evidence are sufficient. The trial judge was entitled to address issues of detail and timing in a global way in the reasons for verdict: Adamson JA at [203], [205], Davies J at [217], Garling J at [218]. (9) With respect to TWN's complaint evidence: (a) it was not necessary for the trial judge to make a specific finding as to when, or in what terms, TWN complained to her step-grandmother, who was an unreliable witness: Adamson JA at [204], Davies J at [217], Garling J at [218]; and (b) the trial judge was entitled to accept TWN's mother's evidence that TWN had complained to her, although TWN did not recall doing so: Adamson JA at [204]; Davies J at [217]; Garling J at [218]. (10) The trial judge was entitled to accept that KN had complained to her friend, HC, about the applicant's conduct when they were in primary school notwithstanding that HC's version differed from KN's and to express his reasons for such acceptance in a global way: Adamson JA at [205]; Davies at [217]; Garling J at [218]. Ground 5: whether the trial judge was required to consider DN's evidence (11) DN's evidence was of little or no probative value. A trial judge is not required to address evidence falling into this category in the reasons for verdict. Adamson JA at [210], [212], Davis J at [217], Garling J at [218].

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