Jones v R

Court of Criminal Appeal (NSW)|2012-08-09|Before: McClellan CJ, Hulme J, Schmidt J, Clellan CJ

Judgment 1McCLELLAN CJ at CL: The applicant was tried on an indictment containing the following three counts: Count 1: On or about 3rd October 2008 at or near Kingswood in the State of New South Wales did have sexual intercourse with [the complainant], a child then under the age of ten years, namely six years. Count 2: On or about 3rd October 2008 at or near Kingswood in the State of New South Wales did have sexual intercourse with [the complainant] a child then under the age of ten years, namely six years. Count 3: On 4th October at Kingswood in the State of New South Wales did assault [the complainant] and at the time of the assault committed an act of indecency on [the complainant] a person under ten years, namely six years. 2The applicant went to trial, which was aborted when the defence successfully applied for a discharge of the jury. At the second trial the jury returned verdicts of guilty on counts 1 and 2 but was unable to reach a verdict on count 3 and the jury was discharged in respect of that count. 3In relation to count 1, the sentencing judge imposed a fixed term of 5 years imprisonment. With respect to count 2, his Honour imposed a non-parole period of 11 years with a further term of 4 years. The sentences were made wholly concurrent. 4The applicant seeks leave to appeal his convictions on counts 1 and 2 and also seeks leave to appeal against the sentences which were imposed.

The facts 5The complainant lived with his mother in Moree. In October 2008 the complainant, his mother and his grandmother came to stay with a relative in Sydney. 6The applicant was about 20 years of age at the time and was a friend of the person with whom the complainant's family stayed in Sydney. The applicant was at the house on 3 October 2008, as were a number of other people. At some stage during the late evening the applicant left the house to go to the local shops. The complainant went with him. 7It was the Crown case that having left the house the applicant drove his car to a secluded area where he asked the complainant to suck his penis. The complainant refused. It was alleged that the applicant then pulled down the complainant's pants and licked and sucked his penis. This was the act that constituted count 1 on the indictment. The Crown further alleged that the applicant then pulled the complainant's pants further down and, while the complainant was sitting on his lap, inserted his erect penis into the complainant's anus. This was the act that constituted count 2 on the indictment. 8The Crown alleged that the complainant shortly afterwards asked the applicant to take him to a toilet because he had poo coming out of his bottom. It was alleged that they went to a McDonalds restaurant where the complainant was able to go to the toilet. The complainant said that he took his underpants off because there were "bits of poo" in them and showed his underpants to the applicant. He said that they subsequently returned to the friend's house. The Crown case was that once they had returned to the house the complainant put his underpants in the washing machine, had a shower and was put to bed by his grandmother. 9The Crown further alleged that the applicant came back to the house the following day. The Crown alleged that the applicant and the complainant were for a time at the dining table drawing. They later sat on the lounge and watched a movie. When the complainant was sitting on the applicant's lap the Crown alleged that he started to play with the complainant's penis. This allegation constituted count 3 on the indictment. 10A little later that day the complainant, his mother and grandmother left Sydney and returned to Moree. On 28 December, which was about three months after the alleged incident, the complainant for the first time told his mother and grandmother about what he alleged had occurred in Sydney. The matter was then reported to the police. It was not until some 3 weeks later that the applicant was interviewed. 11When he was interviewed the applicant admitted that he had met the complainant in Sydney and that the two of them had gone out together during the course of the evening. However, he denied sexually assaulting or indecently assaulting the complainant.

The appeal 12The applicant originally filed seven grounds of appeal. However, Grounds 1, 2 and 5 were abandoned and it is only necessary to consider Grounds 3, 4, 6 and 7. Those grounds were pleaded as follows:

Ground 3: The trial judge's admission of, and refusal to exclude, the evidence of the Crown's expert created a miscarriage of justice.

Ground 4: The trial judge's admission of, and refusal to exclude, the lay evidence of the complainant's constipation created a miscarriage of justice.

13Ground 3 is concerned with the admission of the evidence of Dr Marks. Dr Marks is a general practitioner in the Child Protection Unit at Westmead Hospital. She gave evidence about the possible cause of the constipation that the complainant was alleged to have experienced on the journey back to Moree. It was submitted by the applicant that her evidence was "irrelevant, neutral and unfairly prejudicial." 14The applicant drew attention to the history of events which preceded the trial. Some time before the trial the Crown prosecutor and defence counsel discussed the evidence that would be led at the trial. The applicant alleged that as a result of this discussion the defence understood that the Crown would not be leading evidence from Dr Marks. I am satisfied that in this respect defence counsel misunderstood the position. 15It seems that the original trial was aborted following an application by defence counsel, primarily because he had only recently been provided with the medical report of Dr Marks. The defence quite reasonably sought time to obtain medical advice to respond to the evidence which Dr Marks was expected to give if called at the trial. 16A number of months elapsed between the first and the second trial. During that time those representing the applicant sought advice from a general practitioner in relation to the issue raised by Dr Marks. The practitioner who was consulted suggested that it may be a matter appropriate for a psychologist. However, for reasons which were not satisfactorily explained, the defence did not engage a psychologist. 17At the trial defence counsel told the judge that he had understood that the Crown would not pursue the issue raised by Dr Marks and that it was for this reason that the question of retaining a psychologist had not been pursued. A further adjournment was sought. His Honour declined to grant that adjournment concluding that if there had been a misunderstanding it had only occurred a few days before the trial. Months had passed since the first trial in which the defence could have retained a psychologist if there was a practitioner who could assist the applicant's case. 18There was also a controversy as to whether the defence had been aware, or at least should have been alerted to the possibility, that Dr Marks may support the suggestion that the complainant had suffered an injury to his anus during the assault that may have resulted in a difficulty for him in opening his bowels. The trial judge ruled that the defence should have been alert to this possibility. I agree with that view. The defence should have appreciated the issues that they had to confront if Dr Marks gave evidence. 19The primary evidence on this issue came from the complainant's mother and grandmother. Their evidence was that on the trip back to Moree on the Sunday the complainant had difficulty going to the toilet. They gave evidence that they had to stop on a number of occasions during the trip home so that he could access a toilet and attempt to open his bowels. This evidence of the complainant's constipation was excluded during the original trial on the basis that it had no relevance in the absence of medical evidence as to its significance. It was the evidence of Dr Marks that gave it apparent significance. 20Because the complainant made no complaint until some three months after the alleged events he was not medically examined at a time proximate to the alleged assault. When he was examined there were no obvious physical signs of trauma or injury. 21Dr Marks did not examine, meet or speak to the complainant, his mother or his grandmother. She did read the grandmother's police statement and also spoke to one of the complainant's general practitioners. She said in a statement that "the sudden onset of constipation is highly likely to have been attributable to a painful and/or frightening experience that resulted in [the complainant] holding onto stool." 22The admissibility of Dr Marks' evidence was explored by way of a voir dire when the nature and extent of her evidence was explored. She expressed the opinion that the complainant's difficulty in passing stool was consistent with there having been the alleged sexual penetration of his anus. It was for this reason that the Crown sought to tender the evidence from the complainant's grandmother as to the history of the complainant's constipation on the day following the alleged assault. 23The applicant's counsel objected to the admission of the evidence of Dr Marks at the trial for the reason that it was not evidence of an examination and diagnosis of the complainant's condition at or about the time of the alleged events. Furthermore, it was asserted that when he was being examined by different practitioners the complainant's mother or grandmother gave different accounts of his symptoms. 24After he complained of the assault the complainant was taken by his mother to a general practitioner in Moree, Dr Alan. Dr Alan's notes indicate that he was told by the complainant's mother or grandmother that the applicant had constipation after the event and pain with an open bowel but was by the time of the examination "okay." This was inconsistent with the report of Dr Power, to whom Dr Alan referred the complainant, who said that the complainant had reported to him that his bowel actions were painless even immediately after the assault. 25On a later occasion, unconnected with the alleged assault, when the complainant was examined by another general practitioner, Dr Percival, she reported "concerned about bowels in that he blows off frequently. Tends to squat on the toilet when he opens his bowels and takes some time to go to the toilet. ?constipated. Diet deficient in fibre." Dr Percival prescribed medication to assist in opening the complainant's bowels. 26The applicant submitted to the trial judge that in these circumstances the evidence would be of little value to the jury. His counsel emphasised that although the mother and grandmother had reported that the complainant had experienced constipation following the alleged assault, the complainant did not complain of pain at that time. Furthermore, the complainant was not experiencing constipation at the time of his examination three months later, although, importantly, on a later examination constipation was diagnosed as being a result of a deficiency of fibre in the complainant's diet. 27The applicant also emphasised the fact that the evidence on the voir dire revealed that, although the complainant normally ate cooked meals and vegetables, he did not normally eat take away food. On the trip to Sydney the family had eaten pizzas and other take away food and, accordingly, it was suggested that a change in his bowel function may have been a result of this temporary change in his diet. 28The trial judge decided to admit both the lay and expert evidence relating to this issue. However, his Honour limited the evidence to evidence of the complainant's alleged constipation on the trip home from Sydney and the opinion of Dr Marks as to its significance. 29Before this Court it was submitted that his Honour erred in admitting this evidence. Counsel submitted that in her report Dr Marks had failed to set out any diagnostic criteria for constipation. However, she had referred to it in her oral evidence when she said that her definition of constipation "would be either the passage of very hard stool or extremely infrequent passage of stool." Having regard to this definition it was submitted that there was no evidence of hard stool passed by the complainant proximate to the alleged assault and it was submitted that "evidence of difficulty going to the toilet over the period of a drive of a few hours duration could not, on any reasonable test, have satisfied the requirement of 'extremely infrequent passage of stool'." 30It was further submitted that the evidence in relation to the issue of constipation should have been excluded because the evidence suggested that there were more common causes of constipation than sexual assault, including change in diet or deficiency in fibre. Because of the evidence of a change in the complainant's diet and also evidence that it was later identified that his diet may have been deficient in fibre, it was submitted that the evidence of constipation being related to the alleged sexual assault was lacking in any significant probative force. 31The applicant makes a further complaint. During the course of the voir dire evidence Dr Marks offered the opinion, which was not contained in her written report, that the complainant had or may have suffered from a specific physical injury; namely an anal tear or fissure, and it was for that reason that he may have had pain in passing stool leading to his constipation. Dr Marks had not previously offered this opinion. Her evidence had previously been confined to the possibility that the difficulty in passing stool may have been due to the frightening or painful experience of the sexual assault. 32In response to the applicant's submissions the Crown submitted that, whether labelled as constipation or mere difficulty in passing stool, the relevant issue was what could have caused this condition in the complainant. It was submitted that it was for the jury to determine whether the complainant had experienced the difficulties that were asserted by the Crown and, if they accepted that they had occurred, to assess the significance of them having regard to Dr Marks' evidence. 33It was further submitted that rather than the Crown raising the issue, it was during the questioning of Dr Marks by the trial judge that Dr Marks directly raised the possibility of injury to the anal region of the complainant being a cause of his constipation. In response to a question from his Honour, Dr Marks said: "Okay, so that suggests to me that most likely he has some sort of injury to his anal region, like an anal fissure, and he - and it hurts to pass stool so he's reluctant to, and that's been building up ...." 34The Crown submitted that the evidence of the complainant having difficulty with his bowel motions was sufficiently cogent that it should be admitted, as should the evidence of Dr Marks as to the likely cause of the problem. 35Although there was considerable debate about Dr Marks' evidence and the lay evidence relating to constipation upon which it was based, the argument at trial for the rejection of this evidence was limited. It was never suggested that the evidence should have been excluded under s 137 of the Evidence Act, although this may be inherent in trial counsel's submission. 36In summary, the submission to this Court was that the evidence should have been rejected because it was irrelevant, neutral and unfairly prejudicial. To my mind, there is no foundation for the proposition that the evidence was necessarily irrelevant or neutral. It is plain that if the complainant did suffer from constipation the day after the alleged assault, and there was evidence that it could have been caused by the actions of the applicant, it would be relevant. Depending upon the cogency of the evidence it may be important evidence in the Crown case. In that event the only question was whether it was unfairly prejudicial. 37To my mind, when Dr Marks' evidence is considered in its entirety it provides little, if any, support for a conclusion that any act of the applicant was the cause of the complainant's asserted difficulty in opening his bowels. Her evidence clearly suggested, using her words that "there were alternative and more common sense causes" for the complainant's alleged constipation. She accepted that constipation in a young child could be due to multiple causes. As I have indicated, there was evidence that on a later occasion the complainant was diagnosed with constipation unrelated to any allegation of sexual assault for which appropriate treatment was provided. As a consequence, the probative force of Dr Marks' evidence was minimal. 38To my mind if the jury were not carefully directed on the subject the evidence was also capable of being given disproportionate weight by the jury. Apart from this evidence the Crown case required the jury to assess the credibility and reliability of the complainant on his account of the events and also of the grandmother's account of the events of the Friday night and Saturday. Because Dr Marks' evidence was the opinion of a medical practitioner there was the possibility that the jury could overlook the question of whether they were satisfied of the necessary factual foundation for the opinion and placed inappropriate reliance on it to the detriment of the applicant. For this reason, and being of minimal probative value, to my mind the evidence should have been rejected. 39Notwithstanding these problems I do not believe that the admission of the evidence caused the trial to miscarry. The trial judge was careful when giving the jury directions on these issues. His Honour provided the jury with a careful summary of Dr Marks' evidence, including reading portions of it from the transcript. The portions which he extracted included passages where the doctor had indicated that there could be a number of causes of constipation unrelated to any allegation of sexual assault including a recent change in diet. His Honour also drew the jury's attention to the evidence from Dr Power's notes that the victim reported no pain in his bowel movements immediately after the assault. This operated to neutralise the risk that the jury might otherwise misuse the evidence. The result was that the jury would be likely to have concluded that the evidence added nothing of any significance to the Crown case. 40For this reason I would reject Ground 3 of the appeal.

Ground 4 41Ground 4 is in essence a repetition of Ground 3. In my opinion the trial judge should have also excluded the lay evidence. However, I do not believe its admission occasioned a miscarriage of justice.

Ground 6 42This ground arises from the fact that the jury returned a verdict of guilty in relation to counts 1 and 2 but could not reach agreement in relation to count 3. The verdicts were not strictly inconsistent, there being no verdict returned in relation to count 3. However, in any event, I am not satisfied that the applicant's complaint is justified. 43The trial judge was careful to tell the jury that they were required to consider each count separately. His Honour gave a direction that was consistent with the discussion in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 and with the remarks of Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. The trial judge said: "So, 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, as the logical reason for that outcome. And I repeat, if you were to find the accused not guilty on any account, 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." 44When the trial judge raised with counsel the consistency between the jury's verdicts in relation to counts 1 and 2 and their inability to reach a verdict on count 3 there was a discussion about possible explanations. One explanation that was proffered was that the jury may have found that the applicant touched the complainant on the outside of his clothes in a brushing or similar manner without committing the intentional act alleged in the charge. This possibility was supported by evidence from the applicant's grandmother about where the two were sitting at the time and the fact that the applicant's hands were over the complainant's shoulder around his belly area and not his groin. 45Another and, in my opinion, more likely explanation is the difficulty in identifying the precise time at which the alleged event may have occurred. The indictment pleaded count 3 as having occurred on 4 October 2008. The complainant asserted that the indecent assault had occurred when he was sitting with the applicant on the lounge watching "Snakes on a Plane." The evidence was not clear as to whether this happened late on the Friday evening or on the Saturday. If it had occurred on the Friday evening the offence would not be proved because the date pleaded in relation to this count was the Saturday. 46I have carefully reviewed the evidence of the complainant. I can detect no distinction in its quality in relation to any particular count that may explain the jury's decision. The circumstances in which the jury failed to return a verdict in relation to count 3 do not inevitably indicate that the jury rejected the complainant as a witness of truth and accordingly should have acquitted the applicant of all of the charges. 47Accordingly I would reject Ground 6 of the appeal.

Ground 7 48In SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11]-[14] (French CJ, Gummow and Kiefel JJ), the High Court set out the test to be applied when considering an appeal on the basis that a verdict was unreasonable: "The task of the Court of Criminal Appeal It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R [(1994) 181 CLR 487 at 493] by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is 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.' This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R [(2002) 213 CLR 606 at [58]], McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence. The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."(footnotes omitted) 49In the present matter the Crown case depended upon the jury accepting the truthfulness and reliability of the complainant. It was submitted by defence counsel at the trial (and the submission was repeated to this Court) that the complainant was an unreliable witness. Counsel submitted that his story "shifted" significantly in two respects and, on both occasions, in a manner directly inconsistent with what he had previously asserted. It was further submitted that the complainant had been subjected to improper questioning by his grandmother who, it was submitted, had suggested answers to the complainant consistent with the applicant having committed an offence. 50I have reviewed the evidence at the trial in detail. The complainant gave an account that when the applicant said that he was going to the shops he asked whether he could go with him. His grandmother said he could. He said that the applicant drove somewhere and parked at a place where "you fix up wheels." He said that the applicant wanted the complainant to suck his "rude part" but he did not. He said that the applicant then sucked his "rude part." 51He said that when they were in the car the applicant sucked his "rude part" twice. He said that the applicant pulled his pants down and crouched over "and just licked ... a little bit then just done it." 52The complainant said that the applicant asked him to jump over to where he was sitting. He said that he went over and sat on the applicant's lap, facing away from him. He said that the applicant then put his "rude part" in the complainant's "butt." He said that "it felt like a shark attack." He said that he cried and was screaming because it hurt. He said he was screaming out the window. 53The complainant said that after the applicant stopped putting his "noodle up his butt" "poo was coming out." He said that when he moved it felt like he was "sweating in his bottom." He told the applicant "I feel something, so it feels like wee's coming out." 54The complainant then said that they went somewhere so that he could wipe his bottom. He said that "little bits of poo were coming out." He said that although the applicant went into the toilet with him he wiped his own bottom. 55The complainant said that when he wiped his bottom there were "little bits of poo" on his underpants. He said that he took his underpants off and the applicant took them and put them in his pocket. When they got home the complainant said the applicant gave them back to him and he put them in the washing machine. 56The complainant said that when they got home the applicant touched "his rude part" again when they were sitting on the lounge. He said that the applicant grabbed him and put him on his lap and started playing with his "noodle." He said that the applicant's hands were on the outside of his clothes. 57There was some controversy at the trial about how long the applicant and the complainant were absent from the house on the evening of 3 October. The complainant's grandmother believed that it was probably about an hour and ten minutes and that they returned at a time "between midnight and just after midnight." When they arrived home the complainant had a shower and started crying. The complainant's grandmother thought that he was "playing up" because his mother was not there. She said that he then went to bed. 58The grandmother gave evidence of the event on the couch (count 3), saying that it was the next day. She said that it was in the afternoon when the complainant and the applicant were watching television. She said the applicant was seated on the left hand side of the lounge and had his arm around the complainant, who was on his right. She said the complainant was "laying into" the applicant. She said that she could not see the applicant's hands but believed they were over the complainant's shoulder and around his belly area. 59The applicant was interviewed by the police. In his ERISP he said that he had driven from the house where the complainant was staying with him to a kebab place, but it was shut. For this reason he said that they went to McDonald's. He said that he bought a triple cheeseburger at McDonald's and believed he bought something for the complainant. He said that he showed the complainant the Aqua Golf course that was beside the Panthers club and next to the McDonald's. He said they got out of the car and then got back into the car and went home. He said they were gone for only about half an hour. 60He said that he did not take the complainant to the toilet at any time. He said that at McDonald's the complainant asked him where the toilets were. He showed the complainant where the toilets were, and he said that the complainant went into the toilet while he waited outside. 61The applicant denied that the reason he had gone out was because the complainant's grandmother had request him to get some milk. He denied taking the complainant to a car park and asking him to suck his penis. He said that he had a five year old son himself and would not say that to anyone's child. He denied pulling down the complainant's pants or sucking his penis. He denied putting his penis into the complainant's anus. He said that the complainant did not show him his underpants and he did not take the complainant's underpants and put them in his pocket. 62The applicant said that he left the house where the complainant was staying about 2 or 2.30 am. He said that he went back the following afternoon when he did some drawing with the complainant and watched television with him. He denied that he touched the complainant's penis. He ultimately said: "All I know is that I didn't touch the kid. I wouldn't touch him. I wouldn't like it done to my own son so why would I do it to someone else's kid." 63The applicant also gave evidence at his trial. His evidence was consistent with his ERISP. 64The complainant's grandmother was questioned about the role she had played in questioning the complainant. She said that she did not at any stage ask questions in the form "Well, did X happen or did Y happen?" There was evidence from the mother given at the first trial in which she confirmed that the grandmother had asked the complainant "questions that suggested things that [he] could answer yes or not to?" However, no particular questions were identified nor responses discussed. Her evidence went further when she denied that her mother had asked leading questions in relation to the critical allegations made by the complainant. 65Even if this had not been the case the complainant's account of the relevant events is compelling. His description of detail including the soiling of his underpants and his description of the applicant's sucking of his penis give no indication that his evidence was fabricated. 66With respect to the asserted "shifts" in the complainant's evidence the applicant's submissions identified two issues. Firstly, it was submitted that although the complainant said that the applicant had sucked his penis his mother had given an account in which she said that she had heard the complainant say that the applicant had not sucked his penis. With respect to the second issue it was submitted that contrary to his original position, in which the complainant denied that the appellant had made him suck his penis, he later claimed that this had occurred. 67The first "alleged shift" is said to be found in the evidence of the complainant's mother given at the second trial when she was, amongst other matters, asked about evidence that she gave at the first trial. At that trial in response to a question in cross-examination the complainant's mother said that the complainant had "said (the applicant) did not suck his noodle." This was asserted by counsel to be evidence of the complainant's retraction of the allegation forming the foundation for count 1. 68At the later trial the complainant was asked whether he had told his mother that the applicant did not suck his penis. He responded "he did." When cross examined he initially denied telling his mother that the applicant did not suck his penis but when pressed with the question: "You could have said to her, but now you can't remember. Is that right?" He responded "Yes." The exchange is equivocal although it is clear that the complainant was steadfast in his allegation that the applicant did suck his penis. 69The complainant's mother was asked about this issue at the second trial. The exchange with counsel was transcribed as follows: "Q. Do you remember being asked this question, at the last trial? "Did you hear [the complainant] say anything about sucking of noodles." And answering, "He said he didn't." A. Yes. Q. And then you were asked this: 'Q. Just give us a conversation, if you could. What did he say? Did he say~ A. I said- Q. Did [the applicant]- A. Can you ask the question again, please?' Q: Do you remember that? A. No. Q. And I'm suggesting to you that at that stage you were going to say, "I said, 'Did [the applicant] suck your noodle?'" and you stopped yourself. A. No. Q. That's right, isn't it? A. No. Q. And I suggest to you that the reason you stopped yourself was because you were aware you shouldn't divulge that you'd asked [the applicant] questions that suggested an answer. A. [the complainant]? Q. [the complainant], sorry. A. No. ... Q. And then you were asked this, after you'd asked for the question to be stated again: 'Q. Just tell us what [the complainant] said about [the applicant] in relation to sucking noodles. A. He said [the applicant] didn't suck his noodle.' Q; Do you remember giving that answer? A. Yes. Q. And that's the case, isn't it? That's what he told you? A. Yes. HIS HONOUR Q. How did he come to say that? Do you remember? A. I just had come out of the bathroom and- Q. Pardon? A. I had just come out of the bathroom- Q. Yes. A. -and I heard [the complainant] speaking to Mum, and [the complainant] said, "[the applicant] asked me to suck his noodle, but I didn't." And that's what I had heard. AUSTIN Q. Well, I'm sorry, what you said in that evidence was, "He said [the applicant] didn't suck his noodle." Now, was that what he said to you? A. No. Q. So you say now that - but that's what you said at the last trial, wasn't it? A. Possibly, yes. Q. Because you recall that the crown prosecutor, who was asking you those questions at that stage, said, "I beg your pardon." Do you remember that he stopped you? A. No. Q. Do you remember the judge then saying, "He said [the applicant] did not suck his noodle." And you saying, "He said he didn't suck his noodle." Do you remember that? A. No. Q. That's what is recorded in the transcript, isn't it? CROWN PROSECUTOR: Yes, it's recorded, "He said he didn't suck his noodle," in response to the judge's question." 70It is plain from these exchanges that there is a confusion in the mother's evidence. At one point in the cross examination the issue was whether the complainant had said that the applicant had not sucked his noodle. At another point the question is whether the complainant had said that he did not suck the applicant's noodle. Although both possibilities were mentioned, the cross examiner's questions did not make the distinction clear. In my opinion the explanation for the apparent contradiction is confusion rather than any deliberate untruth. This evidence is not probative of the suggestion by the applicant that in respect of count 1 the complainant changed his position or has ever said otherwise than that his penis was sucked by the applicant. 71The second issue raised by the applicant as reflecting a shift in the complainant's evidence concerns the issue of whether the complainant had sucked the applicant's penis. 72His mother's evidence in chief was that at some time prior to the first trial the complainant told her that "he sucked [the applicant's] penis - noodle, and that [the applicant] had sucked his noodle:" "Q. The only time that you say [the complainant] ever said to you that he had sucked [the applicant's] noodle was sometime after he'd been in counselling. Is that right? A. Yes. Q. And in fact prior to that, that something that he specifically denied having happened, didn't he? A. Yes. Q. He made it very clear to you that that was something that he didn't do? A. Yes." 73When the complainant was interviewed by the police he said that the applicant had wanted the complainant to suck his "rude part" "but I didn't." He was not asked about the matter at the first trial. 74At the second trial the complainant was cross-examined and the following exchange occurred: "Q: [the complainant], about three months before the last trial, you told your mother that [the applicant] had made you suck his noodle. A: Yes. Q: You told her that, didn't you? A: Yes. Q: That wasn't true, was it? A: It was. Q: It didn't happen. A: It did. Q: When do you say that happened in the car? A: What do you mean? Q: You say that this incident took place in the car while it was parked. Is that right? A: Yes." 75The cross-examination continued but became significantly confused. The complainant both confirmed but also denied the allegation. The transcript reveals the contradictory answers: "Q. When do you now say that happened? HIS HONOUR Q. At what stage of events in the car do you say that happened? A. I still don't get it Q. Okay. AUSTIN Q. Was it before you say [the applicant] put his penis into your bum or after? A. Before. Q. Before. Isn't it the case that you've just told us only a few minutes go that the first thing that happened after you jumped over was that [the applicant] put his penis into your bum? A. Mm. Q. Do you remember you told us that just a few minutes ago? A. Mm-hmm. Q. So thinking back, it wasn't the case that he made you suck his penis, or his noodle, at any stage, was it? A. You've got me lost Q. Got you lost, all right. Do you remember we were talking just a few minutes ago? A. Mm-hmm. Q. And one of the things that you told me was that, after [the applicant] said, "Jump over," or words to that effect, the next thing that happened was that he pulled down his pants. A. Yes. Q. Do you remember that? A. Yes. Q. And that - can you understand the word "penis" now and what it means, don't you? A. Yes. Q. That he put his penis into your bottom. That's right? A. Yes. Q. If that was right, then what you've just told us about him having a- HIS HONOUR: That logically doesn't follow. AUSTIN: Okay. HIS HONOUR Q. Where were you, ..., when [the applicant] made you suck his penis? Were you were sitting, if you were sitting? Where were you? A. I was in the passenger side. Q. Right, yes. AUSTIN Q. Didn't you tell us just a few minutes ago that it was when you were in the passenger side that [the applicant] sucked your penis? That's right? A. Yes. Q. Are you now getting confused between that and saying that you then sucked his penis? A. Yes. Q. That didn't happen, did it? A. It did. Q. What, that you sucked his penis? A. No. Q. No, what you have been saying is that he sucked your penis, isn't it? A. Yes. HIS HONOUR Q. Well, did he ever make you suck his penis? A. Yes. AUSTIN Q. Where do you say that happened? A. I don't know..(not transcribable).. HIS HONOUR Q. I know it's hard, and it's an unpleasant thing to think about but try to think back. He parks the car in this wheel fixing place, yes? A. Yes. Q. Okay, now what is the first thing that happens concerning any manner of his doing anything rude to you or asking you to do something rude to him? What's the first thing that happened? A. Well, him doing stuff rude stuff to me first. Q. What was the first rude thing that he did to you? A. I can't remember. AUSTIN: Your Honour, I don't think I can take it any further. HIS HONOUR: Well, since it's been raised. Q. Is it this right, ...? When you talked to the two Joes, you didn't say to them that [the applicant] had made you suck his penis. Is that correct? Did you tell them that [the applicant] made you suck his penis? A. Yes. Q. But not on the video? A. Mm-hmm. HIS HONOUR: Yes. AUSTIN Q. You're now saying that you spoke to the two Joes on another occasion other than when it was on the video? HIS HONOUR Q. Was there a time you spoke to the Joes about what happened that wasn't recorded on the video or to either of the Joes? A. I'm confused. HIS HONOUR: I think we all are. That might be where it rests. AUSTIN: I think, your Honour, it's just - but I suppose for more abundant caution. Q. When I was speaking to you earlier before the jury came in, you didn't indicate that Corey had made you suck his penis. That's right, isn't it? You didn't say that? That's right? A. I think- HIS HONOUR Q. Go on, ..., you think what? Say what you want to say. A. Well, I don't want to say nothing because it's, you know-- AUSTIN: I don't think I can take it anywhere with him. That was the fact though, your Honour, of that evidence." 76It must be remembered that the complainant was a young child. When giving evidence and cross examined during the intense atmosphere of the trial it is not surprising that his evidence was not given with the clarity that may be expected of an adult in the same circumstances. Although the evidence is equivocal with respect to the allegation that the complainant sucked the applicant's penis that evidence was not the subject of any change. In respect of the allegations comprising count 1 the complainant was consistent in his evidence. 77The jury were aware of these issues and the criticisms which could be made of the complainant. It is apparent that utilising their experience of the world and commonsense they remained satisfied to the relevant standard of the truthfulness of the evidence that the complainant gave with respect to the acts with which the applicant was charged in the indictment. 78Notwithstanding the confusion about this issue, there are a number of aspects of the complainant's evidence which cause me to have no doubt that he was telling the truth in relation to the essential allegations. They were identified by the Crown as follows: The complainant's description of the applicant's "rude part" growing "a little slower to there." The complainant's description of penetration as being "like a shark attack felt me, like a shark attack." The complainant's account that he "just like cried ... screaming ... cause it hurt." The complainant's graphic description of "little bits of poo coming out ..." of his bottom and his description of it as "like green, probably brown". The complainant's evidence that "he told me something like the name of the poo comes out of your butt ... like the name of when you do a poo ... when it's green or brown." The complainant's description of the sensation in his anus after the event as "like when you move it feels like you're sweating in your bottom"; and The complainant's evidence that "when he stopped doing it I said 'I feel something, so it feels like wees coming out.' ... and then he drove me somewhere." 79The applicant submitted that there were some "limitations of the Crown case." They included the fact that the owner of the premises where the complainant's family stayed did not recall any clothing being left behind or having any underwear in the washing machine. The grandmother said she did not notice whether the complainant's underpants were missing. Furthermore, the complainant's mother could not remember what clothes she had packed before they left on the Sunday. It was also suggested that when the complainant said that the applicant scratched him on the face he had fabricated his evidence because there was no evidence of scratch marks. 80I do not consider these matters to be of any particular significance. They were incidental events. It must be remembered that it was not until some three months after the alleged assault that the complaint was made and a further significant time elapsed before the witnesses were required to recall these matters. It would not be surprising that the witnesses could not bring them to mind. 81I am mindful of the fact that the jury saw and heard both the complainant and the applicant give evidence. It is plain that they did not accept the applicant. Although that does not have the consequence that the prosecution must succeed, if I had any doubt in the matter I would have resolved the matter adversely to the applicant, having regard to the advantages which the jury had. However, as I have indicated I have no doubt that the applicant was rightly convicted.

82The applicant advanced five grounds of appeal in relation to his sentence. They were as follows:

Ground 1: the trial judge erred in treating the standard non-parole period as creating an "implied benchmark head sentence."

Ground 2: the trial judge erred in giving primary significance to the standard non-parole period in the sentencing of the applicant.

Ground 3: the trial judge erred in treating (1) substantial injury and emotional harm and (2) the age of the victim as aggravating factors.

Ground 4: the trial judge erred in rejecting, without any evidentiary basis, the conclusion of the consulting psychologist that the applicant was of a low to moderate risk of re-offending.

83These grounds may be considered together. In the course of his remarks on sentence the sentencing judge said: "The Crown submitted that the second count in particular, but allied with the first, meant that this was an offence of above mid-range seriousness. Counsel for the defence submitted that it was either right at the top of the range just below a mid range offence, or alternatively, towards the lower end of a mid range offence. One cannot in fact hypothesise a single instance of a mid range offence against which to judge this offence, but having regard to the sorts of considerations I have mentioned, leaving aside questions of repeat offending and earlier convictions for sexual offences, or for violence, I think that although there was but a single, relatively short occasion, opportunistically taken advantage of without much forethought by the prisoner, the second count does fall into the mid range of seriousness, though it would be towards the lower end of that range. The first count, it was, as I understand, agreed on all hands, would itself be well below a mid range offence, notwithstanding the age of the victim. The standard non-parole period is fifteen years, which implies, if the prima facie ratio of the non-parole period to the total sentence were to apply, something like a benchmark of a twenty year head sentence. Because the offence is towards the lower end of the mid range, because of the prisoner's previous good character and because of his youth even now, he being only twenty-two, I think that the standard non-parole period should not apply. I also think that a total sentence of twenty years would be excessive. I proceed to try to fix an appropriate maximum period of liability for imprisonment for the two offences. For the first offence I think that five years would be ample. The second offence is more difficult. The learned Crown Prosecutor went to pains to produce, in order to assist the Court, a summary schedule accompanied by summary notes of all of the cases which he could find since this offence was enacted into its current form." 84Later, his Honour continued: "Trying to make an assessment of an appropriate sentence, I confess that I am heavily influenced by the great seriousness with which Parliament evidently regards offences of this kind, as evidenced by such a high maximum period of imprisonment and such a high standard non-parole period. As I said in the course of argument, it seems to me that for a young man, a very young man, a sentence of five years is a heavy sentence, and a sentence of eight years and upwards is a heavy sentence indeed. I think that nothing but what I would call a very heavy sentence is appropriate, and I think that sentence should, for the second count, be fifteen years. There is a case for a small degree of accumulation of the sentences. On the other hand, there is the question of totality, and the necessity in any case not to add to a very heavy sentence for the second count so as to crush any impulses towards rehabilitation which the prisoner may feel or may come to feel. I therefore think that, in this particular case, also having regard to the very close concurrence in time of the two offences, there should not be accumulation. I come to consider the non-parole period. The prima facie result would be that there should be a non-parole period of eleven years and three months. There are reasons not to do that, principally being the same as the subjective factors which I have taken into account in fixing the head sentences, but, as has been pointed out, it is important not to engage in double counting, and I have taken into account the prisoner's youth, the fact that this is his first time in gaol, and the other matters to which I referred in fixing the head sentence. The standard non-parole period, even though I think it should not apply, nevertheless must stand as a benchmark, and I think that to reduce the non-parole period below eleven years would be to allow the prisoner a disproportionate degree of leniency, having regard to that standard non-parole period. I therefore would fix the non-parole period at eleven years." 85It may be accepted that his Honour erred by setting a fixed term in relation to count 1. That count carried a standard non-parole period which by reason of s 45 of the Crimes (Sentencing Procedure) Act 1999 required that a non-parole period be set: SGJ v R [2008] NSWCCA 258 at [76]-[78] (Kirby J, Hodgson JA and Hislop J agreeing). 86I am not otherwise persuaded that his Honour's analysis contains the error for which the applicant contended. 87The decision of the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 has been the subject of considerable discussion by this Court: see DS v R [2012] NSWCCA 159. Although in the present case the sentencing judge referred to the "benchmark" head sentence I am satisfied that his Honour was intending to express the view that the standard non-parole period was a relevant benchmark. As the High Court made plain in Muldrock both the maximum penalty and the standard non-parole period remain relevant to the sentencing exercise. 88In the present case his Honour may have commenced with the assessment of whether the offence falls within the middle range of objective seriousness and proceeded to ask himself whether for any reason a lesser or greater period without parole was appropriate. If his remarks are understood in this manner then the sentencing is infected by the error identified in Muldrock. 89In his remarks on sentence the sentencing judge said: "According to s 21A, the factors of aggravation in an objective sense present in the offences were that substantial injury and emotional harm were caused to the boy; and that he was very young: even though all victims of the subject offence are young, he was young in the sense that the exploitation of his vulnerability was of a high degree." 90There was evidence from the complainant's mother that the complainant had suffered a significant degree of emotional harm. Accordingly, this factual finding was open to his Honour. Furthermore, he was very young. In MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22] this Court (Kirby J; Grove and Hislop JJ agreeing) said that the age of a victim is unquestionably an important consideration in determining the objective seriousness of a crime, saying that "no doubt, as a generalisation, the younger the child the more defenceless and vulnerable." 91It is plain that when sentencing the applicant his Honour was required to bear the complainant's young age in mind when considering the objective seriousness of the offence. His Honour did this and in my opinion no error has been established. 92The sentencing judge considered a report from a consulting psychologist, Mr Taylor who concluded that by reason of the applicant's general stability in life and his general respect for the law that, although he denied his guilt, he was a low to moderate risk of re-offending. The trial judge rejected this evidence and said: "The only sensible conclusion, it seems to me, is that no prognostication can be made with any degree of confidence. If any observer of the prisoner, on what is known to the court, had been asked to prognosticate the day before this offence occurred whether the prisoner was likely to commit an offence of such seriousness, the prospect would have been dismissed as absurd. He has however committed these offences. One of them is very serious. He was close to his own son, a small boy. He would be acutely aware of how vulnerable a small boy is, and despite conviction at the hands of a careful jury, he is unable, it seems to admit his guilt. He may come to admit his guilt, he may come to get proper treatment, but there is no reason to think any of those things are especially likely." 93It is plain that the sentencing judge was entitled to reject the psychologist's opinion. The factual foundation for its rejection was open to him. There is no error on this count. 94I am persuaded that apart from the failure to impose a non-parole period for count 1 the sentence which his Honour imposed was manifestly excessive. To my mind, this will be explained either by a "Way" error R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 or by the fact that his Honour has placed excessive emphasis upon the standard non-parole period giving it a significance that the particular offence and the circumstances of the applicant did not justify. 95At the time the offences were committed the applicant was only 20 years of age. He was a person of prior good character. He will, by reason of the nature of his offences, be required to serve at least a proportion of his sentence in protective custody. 96Furthermore, the offences were of short duration and occurred in immediate succession effectively as part of one continuous act. The offences were opportunistic. There was no suggestion that the complainant was groomed by the applicant or that there was anything other than limited forethought by him. The offences were committed without accompanying threats or intimidating behaviour. 97There is no doubt that the offences were serious. However, the range of offending contemplated by the relevant statutory provision includes offences of far greater criminality that the present offences. Nevertheless both the maximum penalty and the standard non-parole period remain important guide posts when sentencing. 98It is the case that the applicant was required to be sentenced after trial and accordingly was not entitled to any discount by reason of a plea of guilty. However, he will require careful supervision following his release and to assist in his rehabilitation. That need is such as to justify a finding of special circumstances.

Orders:

Leave to appeal against conviction granted and the appeal dismissed.
With respect to sentence leave to appeal is granted, the appeal is upheld and the sentences imposed in the court below are quashed and the applicant is resentenced as follows: (a) in relation to count 1 sentence the applicant to a non-parole period of 3 years commencing on 12 November 2010 and expiring on 11 November 2013 with a further term of 2 years to expire on 11 November 2015. (b) in relation to count 2 sentence the applicant to a non-parole period of 8 years commencing on 12 November 2010 and expiring on 11 November 2018 with a further term of 4 years expiring on 11 November 2022. 99R A HULME J: I agree with the reasons for judgment of McClellan CJ at CL and with the orders he proposes. 100I wish to say something further about grounds 6 and 7 in the appeal against conviction. 101Ground 6 is succinctly stated: "The jury's verdicts were inconsistent". The statement of the ground in that form does not invoke any basis upon which this Court could allow an appeal against conviction and set aside verdicts of a jury pursuant to s 6(1) of the Criminal Appeal Act 1912: (1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice ... 102In reality, the contention of the applicant was to the effect that the verdicts of guilty in respect of counts 1 and 2 are unreasonable having regard to the inability of the jury to reach a verdict on count 3, when the Crown relied so heavily in respect of all three counts upon the evidence of a single witness. The principles concerning how this Court must approach the determination of a contention that a verdict is unreasonable have been referred to in the judgment of McClellan CJ at CL at [48]. 103I agree that the outcome in relation to count 3 provided no basis to infer that there was any doubt about the truthfulness of the complainant that should have given rise to a reasonable doubt about the applicant's guilt in respect of counts 1 and 2. 104Aside from the possible explanations for the different result in respect of count 3 that McClellan CJ at CL has referred to in his judgment (at [44] - [45]), I consider it possible that the quality and detail of the evidence of the complainant provides a further explanation. 105The complainant gave evidence that while he was sitting on the lounge the applicant "started playing with my noodle". He then gave the following account: Q. O.K. So were his hands on the outside of your clothes, on the inside of your clothes or something else? A. Outside. Q. O.K. A. Well, yeah, inside I think. Q. O.K. And then what happened? A. Nothing. (Emphasis added) (AB 125) 106The learned trial judge reminded the jury of this passage of the complainant's evidence in his summing up (AB 47). 107Then there was the fact that the complainant's account of the incident with which count 3 was concerned contained little detail. That is not a criticism; it was a simple, short-lived and relatively straightforward incident to describe. 108Having regard to these matters, with the jury separately considering count 3 as they were directed to do in what was essentially a word against word case, it is unremarkable that some jurors were not prepared to find that the heavy burden of proof placed upon the Crown had been satisfied. 109The complainant's description of the events with which counts 1 and 2 were concerned, and most particularly the latter, was in stark contrast. There was a significant amount of graphic detail in his account; the penetration feeling "like a shark attack" and matters of that nature to which McClellan CJ at CL has referred in his judgment (at [78]). 110There was also the support derived from the evidence of Dr Marks for the complainant's reliability. I have put to one side her evidence concerning the constipation issue. But the complainant's version included that in the immediate aftermath "it was like little bits of poos coming out, "cause he, he made it like come out" (AB 121). He said that it was not blood but "just like a bit of poo, like green, probably brown" (AB 122). Dr Marks was asked about the complainant having experienced an anal discharge and she said: "If there had been ejaculation it could be the fluid from that or, also after an assault there may have been some initial loss of tone and leakage of normal bowel content". (AB 541) 111She was asked about the complainant's account of the colour of the discharge: "My understanding is that ... could be fluid, if there had been ejaculation, and the fluid would become stained with the faecal material. So that fluid would then end up being that colour". (AB 542) 112Whilst there was a strident challenge to Dr Marks' evidence on matters relating to the constipation issue, there was no cross-examination at all as to the above matters. 113The description of the incidents in counts 1 and 2 and of what occurred as a result, coming from a boy who was aged six at the time and eight at the time of trial, must have impressed the jury to the point that they were satisfied of the applicant's guilt beyond reasonable doubt. The description of the count 3 was less likely to have inspired such confidence, not because of any doubt about his truthfulness, but only because of the lesser degree of detail. 114I am not persuaded that the verdicts are unreasonable, either because of the quality of the evidence or because of the inability of the jury to return a verdict on count 3. For myself, I have no doubt about the applicant's guilt in respect of counts 1 and 2. 115SCHMIDT J: I agree with the orders which McClellan CJ at CL proposes in relation to both the conviction and sentence appeals and with his Honour's reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2013

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