[2023] HCA 20000.09
M v The Queen (1994) 181 CLR 487
[1994] HCA 63
Morris v The Queen (1987) 163 CLR 454
[1987] HCA 50
Pell v The Queen (2020) 268 CLR 123
Source
Original judgment source is linked above.
Catchwords
[2022] HCA 24
Lang v The Queen (2023) 97 ALJR 758[2023] HCA 20000.09
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Morris v The Queen (1987) 163 CLR 454[1987] HCA 50
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
RW v R [2023] NSWCCA 2
SKA v The Queen (2011) 243 CLR 400
Judgment (6 paragraphs)
[1]
The applicant's interviews
The applicant was interviewed twice by police. The first interview was shorter than the second. Both were video recorded.
In the first interview, when the allegation was put to the applicant that she and KB were "doing it" on the lounge and watching rude movies, she said she had not done anything with KB on the lounge but there was an adult movie on Netflix with sex scenes in it and as soon as she saw that the children had snuck out of their room and seen what she was watching on TV with KB, she turned it off.
She denied all the alleged conduct. She denied engaging in any sexual activity in front of the children. She said she has toys but does not use them in front of the kids in the lounge room. She does it in the bedroom with the door shut. She said the toys were in her drawer. She did not know if the children had been in her room and looked in her drawer.
In her second interview, of 14 August 2020, the applicant gave frank answers about her dildo and two vibrators, and described them, including how the dildo drew in liquid, such as lubricant, and squirted it out when pressed. She said they were in her bedside table when she lived at the house where the alleged offences occurred. She said SP and HT found the dildo when they were in her bedroom playing PlayStation. She said SP came out with the dildo and asked her what it was. She told SP it was nothing, took it from her and put it back. She said it is not obvious, to someone who does not know how to use it, that liquid goes in it. She said she had never showed SP about how liquid comes out of the dildo.
She said she does not speak to her children about sex because they are too young.
She said she and KB watched a movie on Netflix with a sex scene in it, but it was not pornography. The movie had two girls in it.
She said she did not have sex on the couch.
She said when the allegations were raised "I was just gobsmacked. I didn't know what to say or what to think. I've never ever touched my kids or hurt my kids."
She gave police her Netflix password. She said her children were not allowed to watch movies with sex. They watched children's movies.
She said there was one time she and KB were watching a movie and the children came out. They could hear the children laughing in the hallway. They stopped the movie and told SP and HT to go back to bed. She said in the movie there was a girl in a bath engaged in sexual acts. She said when she heard the children laughing she pressed stop and put them back to bed.
She said that in disciplining the children she sometimes threatened to smack them.
She denied the alleged conduct.
She said she only used the dildo in her room on her bed. She said she would never make her children watch her do such a thing, that it was wrong and disgusting; nor would she make them watch adult movies or sex movies. She said she would never have sex in front of her children.
She said the only time she used liquid (lubricant) in the dildo was once in Guyra, in the bathroom, when she first bought it. It was an agreed fact in the trial that the "Squirtz" dildo was bought on 12 July 2019.
She said the children may have seen the box, with the picture on it which says "squirting". (The exhibit, being a photo taken by KL of the package, does show the dildo shape in the package and the word "squirtz" on it.) She said after she took the object out of the box she put the box in a plastic rubbish bag hanging on the door in the kitchen. She agreed that after KL had helped to clean the Guyra house and found the dildo, KL said to her she needed to learn to put them away and the applicant said they were in her drawer.
She denied licking HT's penis: "Absolutely not… I would never do that… That's disgusting."
[2]
The applicant's evidence in the trial
The applicant said she was shocked and upset by the accusations during both police interviews. She denied the alleged conduct.
She denied she was openly sexual with KB when the children were around. She said she did not walk around naked.
She said there was an occasion when she and KB were on the lounge, watching a movie on Netflix, and she heard the children laughing in the hallway and she paused the movie and went and put the children back to bed. There was an erotic scene in the movie. She said the children were not in the lounge room; she had put them to bed.
She denied there was sexual activity and viewing sexually explicit material in front of SP and HT.
She agreed she let HT use her laptop to view Netflix. She said she did not know what was on the laptop.
She agreed the dildo was in her bedside table and the children had found it. She agreed that one could not tell that the dildo squirted liquid by looking at it.
She said she did not ever tell HT or SP to not tell anyone what happened at the house. She did not threaten them that she may call DOCS if they were misbehaving.
[3]
The applicant's submissions on the unreasonable verdicts ground
In respect of counts 1 and 3, counsel for the applicant submitted that both HT and SP conceded in cross-examination that the only time they had seen a rude movie was the event they described to the DOCS workers when they got out of bed and went into the hallway when the applicant and KB were watching a movie, and the applicant sent them back to bed. Counsel submitted that that account was consistent with the account given by the applicant and KB as to what happened on that occasion of the "inadvertent viewing" by the two children of the sex scene in the movie when they were supposed to be in bed.
Counsel also submitted that SP's complaint to her father was elicited by him asking her about what HT had told him about the conduct the subject of counts 1 and 3, which reduced its cogency.
Counsel submitted that the children's knowledge of the sex toy was explicable by evidence that the complainants and another child in the house had found and handled it.
Counsel submitted that the allegation was unusual, in its terms, and in that it was an isolated act.
In respect of count 2 counsel submitted that the act alleged was unusual in its isolated nature. Counsel submitted that HT's evidence about the event - that it happened in the lounge room after his mother turned off the TV and removed his pants, differed from his complaint to his father that he woke up one night to find it happening. Counsel also relied on the complaint about this act coming after HT had said to DOCS officers unprompted "None of them have done anything to me" and that the complaint was elicited by HT's father asking him if his mother had done something to him.
In respect of count 5 counsel relied on SP's answers on several occasions that she could not remember details about this alleged incident, that SP had seen the body wand when she found her brother playing with it, and that at its highest the evidence could not establish essential elements of the offence charged, such as that the applicant was aware of SP's presence and directed the alleged act towards SP.
[4]
The Crown's submissions on the unreasonable verdicts ground
The Crown placed weight, in the assessment of the complainants' evidence, on their being young children at the time of the alleged offences and when they gave their evidence.
The Crown submitted that the time the children were in the hallway was a different incident than that the subject of counts 1 and 3, and the children's agreement in cross-examination that the time in the hallway was the only time they saw a rude movie does not give rise to a doubt about the credibility or reliability of their evidence about the alleged acts the subject of counts 1 and 3. The Crown submitted that HT gave evidence at length about both the occasion the subject of count 1 and the incident after bedtime in the hallway. The Crown relied on HT's answer in re-examination that the first was a separate time from the hallway incident.
The Crown also submitted that the agreement by SP in cross-examination that the hallway incident was the only time she saw a rude movie on the television warranted little weight in view of all of her evidence.
The Crown submitted that the acts were not isolated, on the complainants' evidence in respect of all the counts, but if they were then that was not a basis for a reasonable doubt about the evidence.
The Crown submitted that the complainants' first account to DOCS should not be given the dominance the applicant seeks to place on it, when regard is had to the other complaints to family members, and the evidence that SP said she was nervous about speaking to the DOCS workers and that she became upset during the DOCS interview and it was terminated.
The Crown submitted that in respect of counts 1 and 3 there was a deal of consistency between the accounts of HT and SP - that they were each present, made to watch a movie with a threat of violence if they did not do so, that both described the dildo and that it had liquid in it, and they both similarly described the applicant's action with it.
In respect of count 2 the Crown submitted that the evidence of HT's complaint to his father was compelling, including his father's description of his ashamed, embarrassed demeanour. The Crown submitted that HT's demeanour when he complained about that act to his father and grandmother was consistent with his taking time to disclose that more serious conduct.
The Crown submitted that the difference between RT's account of HT's complaint and HT's evidence about the act could be explained by RT's recollection being mistaken.
The Crown submitted that the act was not isolated, but being isolated is not a basis for a reasonable doubt.
The Crown submitted that HT's statement in the DOCS interview "I haven't got it yet, none of them have done anything to me" is not clear as to who it referred to or what it meant, and it did not make the verdict on count 2 unreasonable, in light of the evidence on that count.
In respect of count 5 the Crown submitted that on SP's evidence, the applicant's conduct indicated an awareness of the presence of the children and an intention to engage them.
In respect of all counts the Crown placed weight on the jury's advantage in seeing and hearing the witnesses, particularly the evidence of the complainants.
[5]
Consideration
The task of this Court in considering the unreasonable verdicts ground is to make an independent assessment of the sufficiency and quality of the evidence adduced at the trial, however, making allowance for the advantage enjoyed by the jury in seeing and hearing the witnesses, as stated by the High Court in M v The Queen (at 493-5):
"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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
I have extracted quite a deal of the complainants' evidence so that the quality of their evidence, and difficulties with their evidence, are apparent.
Some of what the complainants described could be real. However, the conduct alleged, though possible, was bizarre, and as details emerged in the children's accounts, implausible, such as that KB sat and continued to watch a movie and said and did nothing while the applicant masturbated with a dildo in front of her six children including, on SP's account, the babies, who had all been made to sit and watch the adult movie with her.
That version of events by SP was outlandish and difficult to believe. While it may be possible that a mother would behave in such a way with her two older children present, it is more difficult to accept the version given by SP that she did so in the presence of all of her children, several of whom were very young. I accept that complainants, and perhaps moreso children, may give different accounts of alleged sexual acts at different times but it is not appropriate in the circumstances of this case to separate out implausible details in an attempt to find a credible version.
Some of what both complainants said was outlandish. One example in HT's evidence was that his two-year-old brother, M, threatened him with a knife because he took the dildo away from the child. That was very difficult to believe, yet HT gave evidence of that in the same matter of fact manner as the rest of his evidence.
Some of the evidence given by the complainants conflicted with acceptable evidence given by adult witnesses. One prominent example was their joint reference to, and repetition of, eight dildos having been found by their aunt KL in the home where the offences were alleged to have occurred. KL's evidence was that she found a lesser number of objects in the Guyra home, where the family lived before the home in which the alleged offences were said to have occurred. KL said she did not tell the complainants what she had found in the Guyra home, and she had not told anyone that she found eight dildos. Both the children repeated their references to eight dildos in the same matter of fact way in which they gave the rest of their evidence. Clearly that was not accurate, but they seemed committed to it. The children must have heard some reference to their aunt finding such objects at their previous home, although all adults denied being the source of such information for the children.
Both complainants gave evidence that their aunt's search for such objects in their family home occurred after they complained to her about their mother's offending conduct. Both complainants said they told their aunt KL about their mother's offending conduct while they were living with their mother. KL gave no evidence of such complaints. Given her acceptable evidence that she told the applicant to not leave dildos around where children could find them, it is unlikely, if the children had complained to her about what they say their mother did, she would not have done something about it. Therefore I draw the inference that the complainants did not complain to their aunt about their mother's behaviour, and that is another aspect of their evidence, in addition to the evidence about the eight dildos being found at their house, which cannot be accepted.
As well as their repetition about the eight dildos, both complainants frequently spoke about their mother's sexual objects having to be put "up high", away from where the younger children could access them. This sounds like a childish repetition of something an adult would say or had said to them, although both denied that that was the source of that phrase or idea. Both complainants made frequent mention of girls or two girls in a rude movie. That is consistent with the movie described by the applicant and KB, which the children crept out of their beds and saw, and that was the first account which SP gave to DOCS, twice, in two different interviews, and the first account HT told DOCS.
SP was suggestible in cross-examination. During her evidence she said, not infrequently, she had forgotten things, or she did not know, was unsure or was guessing. She contradicted herself. She sometimes asserted things and then on examination, it was found to be something she had been told by HT. She agreed she found it hard to distinguish between what HT had told her and what she had seen or heard. Those deficiencies in her evidence, vagueness and lack of memory, were partly in relation to count 5 but were not so limited. HT was also sometimes forgetful and uncertain in his evidence.
The evidence of complaints to family members was not all consistent with the complainants' allegations. RT, the complainant's father, elicited the complaint from SP in the presence of HT, and the second complaint from HT, about the act the subject of count 2, by questions, which reduces the cogency of those complaints to some degree. RT's evidence about HT's complaint about his mother licking his penis was markedly different from the circumstances HT described. Perhaps RT's recollection was mistaken. It still detracts from the reliability of HT's evidence.
In her interview SP repeated what she had heard HT tell their father about the alleged act the subject of count 2, but in her initial assertion of that act did not make clear that that was the basis of her knowledge. It was difficult to tell with the complainants' evidence, in some respects, what they asserted independently and what they had been told by their sibling.
Although a child could not necessarily tell from looking at the dildo that it took in and expelled liquid, SP said she had found the liquid for the dildo in her mother's bathroom drawer, and she gave one version to KP that she saw her mother using the dildo in her bedroom. There was evidence that SP and one of the younger children had found both objects in the applicant's bedroom drawer. SP described the vibrator with a button to operate it; that was capable of being seen by her when she said M came out with the "fairy wand".
The two children's description of their mother putting liquid in the dildo in the lounge room sounds extreme and difficult to accept. SP's finding the liquid for the dildo in her mother's bathroom drawer demonstrates childish curiosity and a source of knowledge about the dildo using liquid. HT's description of his mother licking his penis but it never going into her mouth seemed childish and had an air of unreality. HT had a source of knowledge in his admitted watching of "rude movies" alone on the applicant's laptop. SP also told DOCS that she had seen rude movies on the laptop with HT at Guyra. So there were sources of knowledge for the complainants other than the children observing the alleged conduct.
I do not wish to appear to be criticising the children. They were young children. Some of their evidence appeared to be childish versions of something an adult would say. Some of their evidence was clearly exaggerated, embellished or made up. It appears they may have conflated things they had seen, possibly on TV, on the occasion they crept out of bed and saw some of the movie being watched by the applicant and KB after the children had been put to bed, or things they observed around the home, with things they had heard from adults.
Both the applicant and KB gave evidence which was believable, and there was not a basis on which their evidence should be disbelieved, discounted or disregarded, whereas the complainants' evidence became more difficult to accept on examination.
Both the applicant and KB gave an account of the occasion when they were watching a movie with two women in it, when the children crept out of their bedrooms to the hallway and saw. the movie. Both complainants agreed that such an incident occurred. Both complainants agreed in cross-examination that that was the only time they had seen a rude movie, although their evidence on that varied. Both complainants referred often to "two girls" in rude movies. Indeed, that was their first account to DOCS. That believable, and not unusual, occurrence provides a reasonable explanation for the children seeing "two girls" in a rude movie.
On my own assessment of the quality and sufficiency of the evidence, particularly the evidence of the two complainants, I have a reasonable doubt that the applicant committed the offences charged. I am not of the view that the jury's advantage in seeing and hearing the complainants give evidence is capable of removing that doubt. I do not believe either complainants' evidence beyond reasonable doubt. I am of the view that there is a significant possibility that an innocent person has been wrongly convicted. Therefore, I am of the view that the verdicts of guilty are unreasonable. Therefore I propose the following orders:
1. Extend time for filing a Notice of Appeal.
2. Grant leave to appeal.
3. Allow the appeal.
4. Quash the convictions on counts 1, 2, 3 and 5.
5. In lieu thereof, enter a verdict of acquittal in respect of each of counts 1, 2, 3 and 5.
[6]
Endnote
See for example: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 24; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, Lang v The Queen (2023) 97 ALJR 758; [2023] HCA 29.
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Decision last updated: 06 September 2024
HARRISON CJ AT CL: I have had the benefit of reading in draft the judgments of Dhanji J and Sweeney J. I agree with the orders proposed by her Honour, having reviewed the evidence given at the trial. Unlike their Honours, I have not viewed any part of the recorded evidence. I too have a doubt about the guilt of the applicant on all counts and consider that it is a doubt that the jury ought also to have had, for the reasons given by Sweeney J.
It is important not to elevate a conclusion that a verdict in a particular case is unreasonable, because it rests in large part upon apparently bizarre and implausible evidence given by children, to some wider notion that all extraordinary evidence given by children in such cases is therefore potentially suspect. No assumptions about the reliability of children's evidence should be made outside the context of the particular circumstances of the case. In this case, as Sweeney J has analysed, the probability that the applicant performed the charged acts in the presence of several of her children as described by the complainants is so extraordinary as to give rise to a reasonable doubt. Even though the physical acts said to have been performed by the applicant may not, standing alone, be exceptional, the setting in which they are said to have been performed is entirely doubtful. This is particularly so having regard to the fact that the complainants would also appear to have been aware of the applicant's sexual paraphernalia and that they were otherwise exposed to video images involving adult sexual activity.
By way of contrast, the things described by a child complainant in RW v R [2023] NSWCCA 2 were so graphic and enigmatic that their truthfulness was correspondingly enhanced. This notion is highlighted in that case at [161]-[163] as follows:
"[161] The thrust of the applicant's submission is that the complainant's account is so replete with references to what are undoubtedly some very unusual, if not quite bizarre, items and activities that the jury ought to have retained a reasonable doubt about the truthfulness and reliability of the complainant in the circumstances. Rainbow feathers and fluffy gloves are certainly unusual items for a young girl to be describing to adults in formal interviews or in cross-examination and are on any view not things commonly encountered in the normal course of daily life, even in the wide experience of this Court. The applicant maintains, in effect, that his daughter's descriptions are so fantastic and unusual that they could not be thought by any reasonable jury to be anything other than the product of a vivid imagination. More particularly is this said to be so having regard to the fact that some of the complainant's evidence is the subject of competing evidence, such as that relating to the existence and deletion of video or photographic material.
[162] However, as the Crown's submissions somewhat graphically reveal, it is difficult to accept that the matters described in such detail by the complainant must necessarily or only be the product of her imagination. Her reference to the smell of "poo" is a prominent example. Her description of how she felt when penetrated is another. The seemingly inconsequential reference to the applicant's toenails causing her to bleed is also in this category. The suggestion that the applicant made a paper penis and affixed it to her is on one view so extraordinary, having regard to what one might think to be the usual experiences of a primary school aged girl, that its truthfulness is thereby enhanced rather than shadowed in doubt. Such matters are properly ones for the jury to decide.
[163] I am not satisfied that the complainant's evidence lacks credibility for reasons associated with its extravagant content or for reasons that are not explained by the manner in which it was given. I am also not satisfied that her evidence contains discrepancies, or displays inadequacies, that ought to have led a jury to doubt it or that her evidence is somehow thereby tainted or otherwise lacks probative force. Moreover, in this case the jury had the advantage of seeing and hearing the JIRT interviews of the complainant and her cross-examination. The burden of the applicant's contentions is that the complainant's story is simply unbelievable. However, that submission does not find any support in the identification of some fact or circumstance that is obviously or even arguably irreconcilable with its truth so as to lead inevitably to a conclusion that the jury ought to have entertained a reasonable doubt. The Crown's concession in opening the case to the jury and in closing submissions, that it would have difficulty accepting parts of the complainant's evidence, and that at times her evidence may appear to be difficult to follow and confusing, is no less than a recognition of the fact that some suitable allowance needs to be made for evidence given by a child…".
Alike with Sweeney J, I have a reasonable doubt that the applicant committed the offences charged. I do not believe the complainants' evidence beyond reasonable doubt. I consider that the verdicts of guilty are unreasonable.
DHANJI J: I have had the considerable advantage of reading the reasons of Sweeney J in draft. I agree with the orders proposed by her Honour and generally with her Honour's reasons. Unlike her Honour, I have not viewed the entirety of the recordings of the interviews with, or evidence of, the complainants. It is necessary to explain my reasons for taking this approach.
As Sweeney J has stated, the test to be applied in determining an appeal on the ground that the verdict, in this case of the jury, is unreasonable was stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, per Mason CJ, Deane, Dawson and Toohey JJ.
While the test had previously been stated in similar terms the passage from the joint reasons in M v The Queen has been consistently repeated through subsequent High Court decisions. [1] In M v The Queen, their Honours said (at 493-494):
"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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
… 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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (footnotes omitted)
It is important to have regard to the complete exposition of the test. As Brennan J said in M v The Queen, (at 501) simply asking whether it was "open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty", "conceals an underlying controversy as to when it is 'open to the jury' to be so satisfied". It was this controversy that was settled by the joint reasons in M v The Queen, their Honours having earlier observed (at 492):
"…. 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)
The point was re-iterated in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, where the majority (French CJ, Gummow and Kiefel JJ) observed that in applying the test, as had been stated in Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, the appellate court "is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'". Their Honours then set out the passage from M v The Queen quoted immediately above.
When the High Court decided M v The Queen there was no question of the appellate court proceeding other than on a transcript of the evidence. By the time of SKA v The Queen, that had changed. Special leave was granted, in part at least, on the question of whether this Court should have sought to reduce any disadvantage it otherwise had by itself viewing a recording of the complainant's interview with police which had been tendered as her evidence in chief. All members of the High Court rejected the contention that this Court ought to have viewed the video. The majority said (at [31]):
"The account given and the language used by witnesses, which are available by way of transcript, are usually sufficient for a review of evidence. It is to be expected that if there is something which may affect a court's view of the evidence, which can only be discerned visually or by sound, it can and will be identified. Absent this purpose it is not possible to conclude that a court is obliged to go further and view a recording of evidence. There must be something in the circumstances of the case which necessitates such an approach."
See also Crennan J at [116].
In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, in determining a complaint that the verdicts were unreasonable, the Victorian Court of Appeal determined that it would watch the video recording of the evidence of a number of witnesses, including the complainant. Having been advised of the Court's intention the appellant to that Court submitted that viewing the records was unnecessary, while the respondent submitted that it was desirable. The parties maintained their positions in the High Court. The Court said (at [36]-[39]):
36 The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court.
37 Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
38 It should be understood that when the joint reasons in M v The Queen spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
39 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (footnotes omitted)
Recently, in LS v R [2024] NSWCCA 110, Ward P (at [154]-[157]) referred to the above authorities and to a number of decisions of this Court in which the issue of viewing recordings has arisen. Her Honour noted the different approaches that had been taken across those cases and the bases on which those approaches had been taken, including, in relation to a number of cases where the recordings were viewed, the particular factual circumstances warranting this course. In LS v R, Ward P viewed the relevant recordings. The other members of the Court, Hamill J (see at [263]) and myself (see at [275]), did not view the recordings in their entirety. Hamill J did view some portions, being those relied on by the Crown as visually important while I did not view any of the recordings.
In the present matter the applicant did not, in written submissions, or in presenting the argument in chief, suggest that this Court should watch any of the recordings. In oral submissions, counsel for the Crown submitted that it was not necessary for this Court to watch the recordings, but added that if the Court did have a doubt, there were particular portions that the Court should watch "where demonstrations are given or gestures are made" which it would be appropriate to view. Counsel for the Crown directed the Court to those discrete parts of the evidence by reference to timestamps on the recordings.
Perhaps in response to some, in hindsight, unhelpful questions posed by me, counsel for the applicant in oral submissions in reply submitted that if, as submitted by the Crown, there was a need to watch a portion of a recording, "then in the interests of fairness, all of the material needs to be viewed". This position was maintained despite it being pointed out that viewing the recordings may create an imbalance given the Court does not have recordings of all of the evidence, and in particular that of the applicant or that of KB. While the applicant's counsel maintained his position, no forensic purpose was suggested beyond the interests of fairness. In these circumstances and in accordance with authority, I am of the view that I should limit myself to those parts of the recordings identified by the Crown where the visual content is forensically significant and not reflected in the transcript.
In the first portion of the recordings the Crown submitted should be viewed by the Court, SP demonstrates the applicant's use of the dildo by curling the fingers of her right hand as if holding something and motioning backwards and forwards towards her genital region. In the second portion, SP confidently describes the wand by drawing in the air using a pencil she had been drawing with and, having referred to a button, said "… you press it and it rubs all over your belly and stuff". While saying this, SP quickly runs her right hand across her chest, down her belly and across the upper part of both thighs. The Crown also submitted the Court should view a portion of HT's interview with the police where he is asked about count 2, the allegation that the applicant licked his penis. HT says "she put her tongue out like that" and pokes his tongue out. There is, in my view, nothing gained from viewing this portion of the recording that could not have been described by counsel.
Having reviewed the evidence given at trial, and viewed the portions of the recordings discussed above, I have a doubt as to the guilt of the applicant, largely for the reasons given by Sweeney J. While both the portions of the recordings I have viewed, and the evidence more generally, establish the complainants have been inappropriately exposed to matters of a sexual nature, that cannot, in itself, establish the offences. With respect to the individual allegations, as Sweeney J observes, while what some of what the complainants described could be real, aspects of the complainants' evidence are implausible.
With respect to counts 1 and 3, the Crown case was that these counts arose from the same incident. At trial, it was submitted that while this was the Crown case, it was a matter for the jury as to whether they were the same or separate incidents. In my view, the Crown should be held to the particularisation of these counts as being the same incident. Like Sweeney J, I find the allegation that the applicant masturbated on the couch in the presence of all of her children and in the presence of KB difficult to accept. This Court is not, of course, an authoritative repository of knowledge as to the varying manifestations of human sexuality. But in this instance, the prospect that not only the applicant would engage in the alleged conduct in front of her children and KB, but that KB would not raise any objection or concern, is difficult to accept. KB was an outsider to the family, having been in a relatively brief casual sexual relationship with the applicant. He denied any such event occurred, as did the applicant. There are, in addition, the other matters pointed to by Sweeney J, including in particular, the potential for confusion or embellishment founded in the complainants having viewed content not suitable for them when watching the television from the hallway.
Despite the jury's assessment of the complainants as credible and reliable, having regard to the "inconsistences, discrepancies, [and] other inadequacy" and more particularly, "in the light of other evidence", I am of the view that "the jury, acting rationally, ought … to have entertained a reasonable doubt as to proof of guilt" of counts 1 and 3: Pell v The Queen at [39].
My view as to the remaining counts is informed by the matters referred to by Sweeney J, together with the firm view I have formed as to counts 1 and 3. That is, the doubt I have with respect to counts 1 and 3 supplements my concerns with respect to the remaining matters, such that I am of the view the jury ought to have entertained a reasonable doubt with respect to counts 2, and 5 as well.
I agree with the orders proposed by Sweeney J.
SWEENEY J: In August 2022 the applicant, JP, stood trial before Judge Pickering SC and a jury in the District Court. She was arraigned on five counts and found guilty of four sexual offences against two of her children.
She seeks leave to appeal against her convictions. She requires an extension of time to file her Notice of Appeal, for reasons which were sufficiently explained by her solicitor.
Because the two complainants were children, they and the applicant will be referred to by their initials, in accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Other adult witnesses, whose names might identify the children, will also be referred to by their initials.