LB v R

Judgment 1SIMPSON J: On 5 May 2013 the appellant was arraigned in the District Court at Griffith on an indictment that contained a single count of sexual intercourse without consent with a person under the age of 10 years, and an alternative count of attempted sexual intercourse without consent with a person under the age of 10 years. The offence was alleged to have been committed between 15 September 2008 and 15 October 2008. After a 5 day trial, the jury returned a verdict of not guilty on the principal count, but guilty on the alternative count. On 12 July 2013 Haesler DCJ sentenced the appellant to imprisonment for 2 years commencing on 9 May 2013, with a non-parole period of 6 months. 2The appellant appeals against the conviction. He has not sought leave to appeal against the sentence. 3Prior to trial, application was made on the appellant's behalf, pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), for an order that the appellant be tried by judge alone. That was opposed by the Crown. On 3 May 2013 Haesler DCJ refused to make the order, giving reasons for that decision. That refusal gave rise to the first pleaded ground of appeal. 4At about the same time, application was made on behalf of the appellant for the exclusion of certain evidence of the complainant. On 3 May 2013, in a separate judgment, Haesler DCJ rejected that application also, giving reasons. The refusal is not the subject of any ground of appeal. However, by Ground 2, it is asserted on behalf of the appellant that, having regard to subsequent events, his Honour ought to have reversed that ruling and directed a verdict of not guilty, and that (notwithstanding that no application that he do so was made) failure to take those steps constituted error of law. Finally, by Ground 3, it is asserted on behalf of the appellant that the verdict of guilty was "unsafe and unsatisfactory and not supported by the evidence". The Crown Case 5What follows is an outline of the case the Crown sought to make at trial. 6The complainant was born in October 2000. The appellant was his "step-cousin" - that is, was the step-son of the complainant's uncle. (In fact, the relationship was more complicated than that, but the precise relationship is immaterial for present purposes.) The appellant was about eight years older than the complainant. 7At the end of September 2008 (on a date that cannot be precisely ascertained) a family birthday party was to take place at the home at which the complainant lived with his mother (DB), her husband (SB), and the complainant's sister (NS). Also present at the party were the complainant's maternal grandparents (DBS and KS), the appellant and his step-father (GB), DB's sister (AS) and AS's partner (DO). GB is a brother of SB. The complainant's family lived in a town in the southwest of NSW. 8At the time, the complainant was seven years of age; the appellant about 15 years of age. It was the Crown case that the appellant told the complainant to go into his (the complainant's) bedroom, where he committed an act of penile/anal penetration (or, alternatively, attempted to do so). The event was partly witnessed by the complainant's sister, NS, then aged six. The complainant made almost immediate complaint to his grandmother, DBS. She challenged the appellant, who denied any wrongdoing. 9No official report was then made. It was not until June 2009, 21 months later, that a report - by anonymous telephone call - was made to the Department of Family and Community Services ("DFACS"). No action was then taken upon that report. A review two years later prompted an officer of DFACS to contact police. 10The complainant and his sister, NS, were separately interviewed by a police officer (Senior Constable Mark Beltrame) in November 2011. The complainant was then 11. NS was then nine. Each interview was video recorded. The appellant's grandmother (DBS) and others present at the party at various times made statements to police. 11For the purposes of Ground 3 of the appeal it will be necessary to examine the evidence more closely than the above outline. The trial 12Following the interlocutory ruling to which I have referred, a jury was empanelled on Monday, 5 May 2013. The trial commenced with the evidence of the complainant followed by that of his sister, NS. The evidence of both of these witnesses was given in accordance with the provisions of the Criminal Procedure Act 1986 (NSW) concerning vulnerable witnesses: see Ch 6 Pt 6 of the Criminal Procedure Act. Their evidence in chief was given by having the jury shown the video recordings of their November 2011 interviews with police: s 306U. Their oral evidence was given by closed circuit television: s 306ZB. 13Other witnesses to give evidence were DBS, KS, AS, DB, DO, Cindy Blackett (a DFACS caseworker), and Mark Beltrame (the officer of police in charge of the investigation). 14On 8 May, when the Crown evidence was complete, senior counsel who appeared for the appellant sought a direction known as a "Prasad direction": R v Prasad (1979) 23 SASR 101. A "Prasad direction" is a direction, rarely given, at the close of the Crown case, (or at any time thereafter) that a jury may, without hearing more, return a verdict of not guilty. Haesler DCJ acceded to the application, and advised the jury, clearly, and in some detail, of their rights in this respect. The jury elected to hear more. 15The appellant did not give or call evidence. Following the Prasad direction, counsel addressed. The judge summed up in a manner that has not attracted criticism. The jury returned the verdicts set out above. The grounds of appeal 16Three grounds of appeal were pleaded, as follows: "1. His Honour erred in not directing the trial to be heard by Judge alone. 2. His Honour erred in not reversing his original decision and excluding the complainant's evidence-in-chief in the form of his interview, and then directing a verdict of not guilty. 3. The verdict of the jury was unsafe and unsatisfactory and not supported by evidence." 17At the commencement of the appeal, senior counsel for the appellant advised the Court that Ground 1 was no longer pressed. He acknowledged that Ground 2 was, in reality, co-extensive with, or dependent upon, Ground 3. It will therefore be convenient to deal first with Ground 3. Ground 3: unreasonable verdict? 18As indicated above, for the purposes of considering this ground, it is necessary to look more closely at the Crown evidence. As also mentioned above, the evidence in chief of both the complainant and NS was given in the form of their video recorded interviews. 19The incident the subject of the indictment was alleged to have occurred in September or October 2008 when the complainant was seven years of age. The interviews of the complainant and NS with police took place on 3 November 2011 and 15 November 2011 respectively, when the complainant was 11 and NS was nine. Each was therefore relating events that had occurred three years earlier, when they were, respectively, seven and six years of age. 20The transcript of the complainant's evidence shows clearly that he was reluctant, at least at first, to talk about the event. For example, he was asked about the birthday party and was then asked: "Did you tell someone something at the party?" (This was a reference to what he was alleged to have said to his grandmother immediately after the event, to which I will return.) In the interview, he assented to that question, but when asked if was able to say what it was that he had said, he said "no". When asked why, he said: "'Cause it was somethin' not nice." He said that he had told his "nan" that something had happened, and when asked what that was, he said: "Well, [the appellant] was yucky to me." When asked what he meant by "yucky", he said "rude, like ---" 21When asked what he meant by saying that the appellant was "rude", he said: "I can't remember, but he was rude. That's it, that's all I remember." He was asked again what he had told his grandmother and he answered: "He was being rude to me and that was it. And then nan and his dad had a fight, and then that was it, and then we had the party, 'cause we were settin' up the party." 22The complainant said that the appellant had been "rude" to him, but when asked if he could say more about the appellant being "rude", he said he did not really know, and that was because "he was only young". 23As time went on, the complainant became more expansive. He told Senior Constable Beltrame that he was playing in his bedroom and the appellant walked in, and: "He just dragged me from where I was playin' and chucked me on the bed." (answers to questions 171 and 172) and: "Went rude. Went rude, and then --- he was being rude. And then he took off back outside, and then I told me nan." (answer to question 173) 24A little later (in answer to question 291, when asked about his answer that the appellant had chucked him on the bed, and had been, "rude", and asked to explain that), the complainant said: "Well, I made a mistake there. He just went back and got a drink, and then come back in, and I was asleep." 25He then said that he had told his grandmother that the appellant was being "rude" to him. He said that this was because his sister had told him: "[The appellant] was being rude to you while you were asleep." 26A little later, he said: "Well, he put his private in my bum, and that was it. And then I cried, and then I went and told Nan." (answer to question 348) He said that "his private" was his "rude part", also called a "doodle". 27When asked to relate everything that had happened from start to finish, the complainant said: "Well, we were settin' up, and then [the appellant] said Go in your room. And then he come in and done it, what I said. And then I went and told nan, and then nan had an argument with uncle [G] [GB, the appellant's step-father] and then they, I think they went and got drinks ..." (answer to question 359) 28The complainant said: "Like, put his like, rude part in my bum, and that, and then I cried, and ... to nan then. He pulled my pants down and then done it, and then I quickly ran to nan, after I pulled my pants up, and then I went to nan and told, and then he, nan told his dad, and then [the appellant] got called out, like, to his, his dad, and it started, like, again, like havin' an argument again." (answer to question 379) He was asked what it felt like and he said: "Yuck. It hurt, and he's tryin' to stop me from crying, like, trying to give me stuff, and I was sayin', no, no, I'm goin' to tell. Then he knew he was going to be in trouble." (answer to question 396). 29He said that he was crying, the appellant tried to stop him by saying that he would buy the complainant a scooter but the complainant said that he was going to tell. He said that he was crying because it hurt (answer to question 443). 30Some corroboration of the central allegation could be found in the evidence of NS. In her interview, she said: "Well, my brother was lyin' on his bed and then, then my cousin, [the appellant] went in there, then he was sittin' with [the complainant] and I was, I was outside. And then when I came inside to see what [the complainant] was doing, my, my cousin told me to go away, and then I went away and went to tell nan that he told me to go away. And then [the complainant] came out and told nan." (answer to question 37) 31NS said that she saw the complainant lying on his bed. Also in the room was the appellant. Later, she said that the appellant was also on the bed next to the complainant. She said that when she came into the room the appellant was "on top of [the complainant]". The complainant was lying on his stomach and rolled on his back because he was going to read a book, and he told the appellant to get out but the appellant did not leave the room (answer to question 58). She said that both had their clothes on. She said that the complainant was lying face down with his stomach on the bed, the appellant was lying on top of the complainant, with his stomach towards the complainant's back. She said: "[The appellant] was trying to be rude to [the complainant]. ... He was trying to put his rude part into his bum." (answer to questions 78 and 79) 32She said that the complainant told her that the appellant was "trying to stick his rude part in my bum" and that caused her [NS] to run out and tell their grandmother. She said that the complainant told her to tell their grandmother that: "... [The appellant] is trying to stick his rude part in." (answer to question 95) She said that the complainant was upset and crying. 33It may here be observed that the evidence of both the complainant and NS was that immediate complaint was made to DBS. DBS confirmed that the complainant had approached her and confirmed that he had made a report of a sexual offence. However, her evidence differed somewhat from that of the complainant and NS. Her evidence was that she went to the house at about midday, but had to return to her home and to a supermarket (about 20 minutes drive away) to pick up some provisions. She did so, and returned to the party, but had to make a second trip to her home and the supermarket. It was when she was about to make the second trip that the complainant approached her and said that he wanted to go with her. He was quiet and upset, and she took him with her. She said that while they were at her house, the complainant told her that "[the appellant] was rude to him". She said: "He said he put his rude thing in his bottom." She said that the complainant told her that it hurt, and said: "I'm not lying, nan, it hurt." She said that both were crying. 34DBS said that she returned to the party with the complainant and confronted the appellant in the presence of others. She said that the appellant responded: "What, what did I do?" 35She said that her confrontation with the appellant included her saying in the presence of the others: "Well, [the appellant] put his dick in [the complainant's] bottom ..." 36She said that SB and GB spoke to the complainant, insisting that the appellant did not, and would not, do what the complainant had alleged. The complainant maintained that he did. After some repetition of this, the complainant then said: "No, I didn't, I was lying." 37In cross-examination, DBS agreed that, in her initial statement to police, she had said that she was so angry that she had walked home, which took her about 4 or 5 hours. Subsequently, she realised that she had made a mistake and confused the incident at the birthday party with another incident at another event from which she had walked home. 38There was other evidence that the complainant was upset. For example, DO (who was then in a relationship with the complainant's maternal aunt, AS) gave evidence that the complainant was upset and crying. 39The complainant was 12 years of age when he gave evidence. The transcript of the cross-examination runs to 60 pages. At a relatively early stage, the following questions were asked and answers given: "Q. Is it true that [the appellant] put his penis, or tried to put his penis, into your bottom? A. Yes. Q. I suggest to you that he didn't try and do that, what do you say to that? A. I don't know. ... Q. When you were outside and you were helping set up you say [the appellant] told you to go to your room? A. Yes. Q. What if I say to you he didn't say that to you. What would you say back to me? A. You're lying. ... Q. What if I say to you that when you were inside the room that [the appellant] didn't pick you up and throw you on your back on the bed, what do you say to that? A. That's not true. Q. What if I say to you that [the appellant] didn't pull your pants and underpants down in your bedroom that day? A. That's not true. Q. That he didn't place his penis near your bottom that day? A. That's not true. Q. That he didn't put his penis in your bottom that day? A. He did. Q. But you don't know whether it went in or not, do you? A. No. Q. I suggest to you, and you might say whether this is not a lie or not, that in fact it was you that asked [the appellant] to go into the room that day? A. No. Q. That you popped your finger in his bottom and said, 'Here I'll give you a Hopoate'? A. No. Q That he gave you one back? A. No. Q. In the same way, he put his finger in your bottom and with your clothes on? A. No." 40Earlier, the complainant had said that he had never heard of a rugby league player called John Hopoate. It was nevertheless suggested to him that he and the appellant used to take part in a game in which they would give each other a "Hopoate", meaning that they would "pop" their fingers in somebody's bottom, outside their clothes and push it a little bit. 41At the very end of the cross-examination, the following is recorded: "Q. You said in your interview there that you were asleep in the room when [the appellant] came back in? A. Yes. Q. You said you didn't know [the appellant] came back in but his (sic) sister told you? A. Yes. Q. Did your sister tell you what [the appellant] did to you? A. Yes. Q. Did you know yourself what [the appellant] did to you before your sister told you? A. No. Q. So you rely entirely on your sister and what she told you to tell us about what [the appellant] did, is that the case? A. Yes. Q. That is the truth is it? A. Yes. Q. So you don't know yourself what [the appellant] did to you? A. No. Q. Is that what you say? A. No." Resolution 42The principles to be applied in the resolution of a ground of appeal that a verdict of guilty is unreasonable or not supported by the evidence are well established. They were stated in Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 as follows: "The question which an appellate court has to decide when called to consider whether a verdict ought to be set aside because it would be unsafe, unjust or dangerous to allow it to stand is 'whether the appellate 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 ... to say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Criminal Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. We do agree that in many cases the distinction will be of no practical consequence; it will be merely a matter of words. That will not generally be the case where questions of credibility are decisive. However, whether it matters from a practical point of view or not, in a particular case, it is not unimportant to observe the distinction that the trial is by jury, and (absent other sources of error) the jury's verdict should not be interfered with unless the Court of Criminal Appeal concludes that a reasonable jury ought to have had a reasonable doubt." 43These principles have been adopted, or re-stated, from time to time: see Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521; M v The Queen [1994] HCA 63; 181 CLR 487; SKA v The Queen [2011] HCA 13; 243 CLR 400. With those principles in mind, I turn to make the necessary assessment. 44The written submissions on behalf of the appellant drew attention to what was said to be inconsistencies in the evidence of the complainant, and the evidence of NS. It was contended that: "Ultimately, the evidence is the complainant said he did not in fact know what the appellant did, and was only told about this by his sister." This was a reference to the cross-examination of the complainant and extracted above [41]. It became the focal point of the oral argument. 45It was also pointed out that NS said that she did not see what had happened but only learned about what had happened when the complainant told their grandmother. 46It is correct, as was submitted, that ultimately there was no witness (other than the complainant) who gave evidence of seeing what had occurred. This is hardly surprising, and is the usual position in allegations of sexual misconduct. 47I do not accept that the evidence either of the complainant or of NS is as deficient as was suggested. It is true, as I have been at some pains to point out, that the complainant was initially reluctant, in the police interview, to be drawn on what had happened. But he eventually did give a reasonably clear account of what he said had occurred between himself and the appellant. 48It is also true that the complainant's grandmother gave evidence that, on the day of the events, the complainant said that he was "lying". However, that was said in the context of DBS's evidence that this "admission" was made after considerable pressure placed upon the complainant. In my opinion, it is likely that the jury gave it no weight at all. For myself, I would accord it no weight. 49Both the complainant and NS were very young at the time of the events in question. Their first account of these events (other than that given by the complainant to DBS) was given three years later. It is hardly surprising that there are some discrepancies. These would be of much greater concern if it were not for the evidence of complaint made at the time. The complaint that was made was entirely consistent with the accounts given by the complainant and NS in their recorded interviews. 50I recognise, also, that the evidence of NS was that the complaint was made to the appellant's grandmother while they still at the house. DBS's evidence was that the complainant told her what had happened after they had left the house, done some shopping, and returned to her property. I do not regard this of major significance. The evidence is clear that there was a confrontation at the house, and that DBS challenged the appellant. The evidence is also clear that the complainant was upset and crying while at the house. 51I am satisfied that the jury was in a position to evaluate the evidence of all witnesses. I am also satisfied that the evidence was sufficient to justify the verdict. For my own part, the evidence of immediate complaint is of considerable significance. I am satisfied that the evidence established beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted. 52The oral argument focussed heavily upon what was said to be a "retraction" by the complainant of his evidence. This was said to have occurred in those answers he gave at the end of the cross-examination, when he acceded to the proposition that his entire account of the events came from his sister NS, and that he personally had no knowledge of the events of which he gave evidence. 53Two things may be said about this. First, as was pointed out by the bench during argument, the complainant gave evidence that what was done to him "hurt" him. This can hardly have come from his sister. Second, the so-called "retraction" came at the end of a lengthy cross-examination. This was one of those cases in which the advantage of the jury in observing the manner in which the evidence was given must not be underestimated. Moreover, those answers have to be seen in the light of the whole of the complainant's evidence. 54It was argued that, if those answers were not to stand as a retraction of the complainant's earlier evidence, the appropriate course, which was not taken, was for the Crown prosecutor to have sought leave under s 38 of the Evidence Act 1995 (NSW), to cross-examine the complainant. I do not accept this. It was entirely open to the Crown prosecutor to address the jury with respect to the complainant's demeanour (which he did). It was the role of the jury to assess the weight to be given to those answers in the light of the whole of the circumstances of this trial. I would reject Ground 3 of the appeal. 55After the Court had reserved its judgment, and after the preparation of these reasons, senior counsel for the appellant sought leave to rely upon an additional authority. The Court received no objection from the Crown. The additional authority is Douglass v The Queen [2012] HCA 34; 290 ALR 699, with particular reference to paragraphs [40]-[48]. There was no submission to identify any principle sought to be extracted from those paragraphs. 56Douglass was an appeal from the Court of Criminal Appeal of South Australia. The proceedings involved an allegation of sexual misconduct by a grandfather on his three year old granddaughter. The trial was by judge alone. The reasons given by the trial judge for conviction were held (by the High Court) to be inadequate. The conviction was, nevertheless, upheld in the Court of Criminal Appeal. 57The High Court found also that the reasons given by the Court of Criminal Appeal for upholding the conviction were unsatisfactory. The complainant had initially denied any behaviour of the kind alleged on the part of her grandfather, and gave inconsistent accounts of the location of the incident of which she ultimately gave evidence. The High Court found inconsistency in the approach of the Court of Criminal Appeal to the impact on the fact finding exercise of the complainant's very young age. The High Court quashed the conviction. 58The decision in Douglass resulted from an examination of the evidence in the trial, by the application of the principles stated in the cases cited above (see [43]). I have already undertaken that exercise. In deference to the application for leave to rely upon Douglass, I have reconsidered my conclusion. I am unable, however, to find that the reasoning in Douglass alters that conclusion. While I recognise, and have given weight to the inconsistencies in the evidence that I have already mentioned, the immediacy of the complaint is a powerful factor in the overall assessment of the adequacy of the evidence to support the conviction. Ground 2: the evidence of the complainant 59Objection was taken, pre-trial, to the evidence of the complainant. Two bases for the challenge were identified. The first was that, at least in the circumstances of this case, the giving of the complainant's evidence, by playing the recording of his police interviews, undermined the fundamental principle that a person accused of a criminal offence is entitled to a fair trial. The manner in which the complainant was questioned by police amounted to cross-examination, which would not have been permitted if the complainant had given his evidence in chief from the witness box, in the traditional way. The second basis of the objection lay in s 137 of the Evidence Act, which requires, in a criminal trial, exclusion of prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the accused person. Haesler DCJ rejected both objections, giving reasons. It is of some interest that the present ground does not raise a challenge to that decision; rather, the ground is that, by reason of the oral evidence given by the complainant, it should now be seen that the prejudicial effect of the evidence is outweighed by its probative value: Evidence Act, s 137. The oral evidence upon which reliance was placed was that passage in the complainant's evidence in which he acceded to the suggestion that his knowledge of what had happened derived from his sister. 60Central to the ground is an assessment of the reliability of the complainant's evidence. The assessment of credibility, or reliability, is essentially a matter for the jury. It is not a question of admissibility, at least in terms of the balancing exercise that must be taken for the purposes of s 137 of the Evidence Act. 61No application was made for re-consideration of the decision to admit the complainant's evidence. Rule 4 of the Criminal Appeal Rules applies. 62Since, in my view, such application would have been devoid of merit, I would refuse leave to argue this ground of appeal. In any event, it was conceded on the hearing of the appeal that Ground 2 stood or fell with Ground 3. I would reject Ground 2 of the appeal. 63In my opinion, the appeal against conviction should be dismissed. 64The order I propose is: (1) Appeal against conviction dismissed. 65ADAMS J: I agree with Simpson J, in particular in respect of her Honour's consideration of the complainant's evidence. As to this evidence, I wish to make the following comment. As the excerpts from the transcript of the complainant's evidence set out by Simpson J show, there are some significant inconsistences in his account, certainly well capable of being regarded as adversely affecting its reliability. However, these inconsistencies could well be more apparent than real. Much depends on an assessment of the tone and expression of the questioning as well as the answers. These aspects of oral evidence are especially important, to my mind, in evaluating the testimony of a child aged twelve. In a case such as this, the significant advantage afforded the jury in seeing and hearing the evidence over an assessment made by the Court on reading the transcript will be, generally speaking, substantially greater than if the witness were adult. Thus, although the transcript by itself gives rise in my mind to a concern about the reliability of the complainant's account of what happened to him, in this case the jury's advantage is such as to allay my doubts about it. 66R A HULME J: My assessment of the evidence in the trial accords with that of Simpson J. I agree with her Honour's reasons and the order she proposes.