Evidence in support of the offences charged
21Count 1 alleged an assault with an act of indecency committed between 1 January 1982 and 31 May 1982 (when the complainant was either 10 or 11). That count related to what the complainant described as her "first memory" of sexual abuse by the appellant. She said the incident happened at the family's first home address. She gave evidence that the appellant was sitting in the lounge room watching television while her mother was in the kitchen cooking dinner. She did not know where her brother was at that time. Her evidence in chief was as follows (T10.16-45):
Q. Tell us what's happened next?
A. The door that led to the rest of the house was closed. The front door was closed. He's called me over and asked me to sit on his lap. I've sat on his lap.
Q. Right. Now, when you've said you've sat on his lap, are you able to indicate which way you were facing?
A. I had my - when I sat down, he's turn me so that back is facing him (sic).
Q. Were you sitting on one or both of his legs?
A. I went to sit on one but he put me on both of his legs.
Q. You've told us you're sitting on his lap. Tell us what's happened next?
A. He's put his hands on my waist and started moving himself backwards and forwards and then started moving me backwards and forwards as well.
Q. Now, backwards and forwards, are you talking about in the same direction as his legs were facing or are you talking about a different direction?
A. In the same way his legs were facing.
Q. He's moving you backwards and forwards.
A. Yes.
Q. Could you feel anything?
A. Yes, I could feel his penis. It was hard against my bottom and the lower part of my back.
Q. Continue.
A. After a couple of minutes the lower part of my back was wet and he let go of me. I've got up and gone into my room.
22She said that conduct of the kind described in that evidence happened once or twice a week while they were living at that address.
23In my assessment, noting that I do not have the advantage of having seen the manner in which that evidence was given, the terms in which the evidence was given provide a compelling narrative. There is nothing inherently implausible in the complainant's account. On the contrary, it has the character of description rather than concoction.
24As already noted, counts 2 and 3 related to events which the complainant said occurred at the second address. She said (in cross-examination) that what struck her about the event described as count 2 which allowed her to remember it was that it was the first time the appellant touched her breasts and put his hand on her thigh. She described sitting on his lap in a manner similar to the description given in respect of count 1. She said that the appellant started moving his groin up and down and then placed one hand on her leg and was rubbing the inside of her thigh and that he would then move his hand from there and try to rub her breast. She said that he moved his hand from her thigh, up her belly, up her stomach to her breast. She said that she had started puberty when she was about eight and a half or nine and had, at the time of the event she was describing, "rather large breasts for that age" (T14-15). She said that conduct of that type happened at the second address "once or twice a week or whenever [the appellant] was alone with me" (T16.20).
25The next incident she remembered, which was relied upon in support of count 3, was also described as an event that happened at the second address. The complainant said that she was alone in the lounge room with the appellant and he got her to sit on his lap. Her evidence in chief as to that incident was as follows (T16.37 to T17.7):
Q. All right, please continue.
A. He unzipped my dress at the back.
Q. Do you remember what sort of a dress you were wearing?
A. It was my school uniform. It was a brown check school uniform.
Q. You've said that he's unzipped your dress.
A. Yes.
Q. Do you know what time of day this was?
A. It was in the afternoon.
Q. Do you know whether or not it was dark or light outside?
A. Not at the moment.
Q. You were talking about him unzipping your school dress.
A. Yes.
Q. Tell us what's happened.
A. He unzipped my school dress. He's got me sitting on his lap with my back facing him on both - both legs. He's put his hand under - under my dress and underneath my bra and was playing with my breast and my nipple.
26She said that, after about five or ten minutes of playing with her breast and touching her nipple, the appellant put his hand between her legs and was rubbing the outside of her vagina and that he then put one of his fingers inside her vagina. She then gave evidence as follows (T18.6 to 31):
Q. Can you please tell us exactly what he did?
A. He put one of his fingers inside my vagina and was moving it in and out.
Q. Are you able to tell us how far the finger went in?
A. It went in past the second knuckle. I could feel his - the rest of his hand on my vagina when he pushed his finger in.
Q. So was it the case that his palm was facing down towards your vagina or facing up? You've just told us you could feel the rest of his hand.
A. Yes.
Q. Which part of his hand could you feel against your vagina? Was it his palm or was it the back of his hand?
A. It was his palm.
Q. Could you feel anything else?
A. I could feel his penis behind me.
Q. Continue.
A. The next thing I remember is him - the lower part of my back and that was wet and I got up crying and my dress was hanging off my shoulder.
Q. All right. So you say you could feel the back part of your - was it your dress that was wet or was it your back?
A. It was my - it was my dress that was wet but also my - the back of my undies because my dress was up a little bit.
27As already noted, the learned trial judge directed verdicts of not guilty on counts 2 and 3 on the basis that, whereas the indictment particularised those events as having occurred at some point in 1982, they could only have occurred (as described) in 1983, since that is when the family moved to the second address. The particulars in the indictment alleging that those offences occurred during 1982 had been given by the Crown on the strength of the complainant's statement to police, in which she said that she was in year 5 when those offences were committed. From separate documents, the Crown had information that the complainant was in year 5 in 1982 (T229 and T232).
28The appellant relies upon the circumstances which gave rise to the directed verdicts as an aspect of the vagueness and unreliability of the complainant's evidence pointing to the unreasonableness of the guilty verdicts. The learned trial judge was evidently of the same view and said so in the strongest terms (at T231.34 - 49). The appellant relied upon those remarks to support this ground.
29I would respectfully not share that assessment of the significance of those circumstances in determining the measure of reliability of the plaintiff's account. The Crown made clear that he framed the indictment in the terms he did on the strength of the fact that the complainant had said, in her statement, that the relevant events happened when she was in year 5. In the circumstances of the evidence in this case, I would respectfully not share the view that uncertainty or doubt about such a particular is a fundamental failing in the complainant's recollection as to the acts charged. There is no suggestion that she was ever mistaken as to the detail of the events themselves or as to the address at which they occurred (see T244.39).
30It is clear enough from the exchanges between the Crown and the trial judge that the Crown took "year 5" as the point of fixture for the dates in the indictment, whereas the complainant's evidence placed those events in the following year. To my mind, a more telling measure of the reliability of the evidence is the content of the narrative of the acts themselves. As with count 1, in my assessment the complainant's narration of the events relied upon to support counts 2 and 3 contains no inherent implausibility. It invokes the language and quality of recollection, not fiction or recent invention. She provided a cogent description of two plausible events.
31Count 4 is an offence of carnal knowledge allegedly committed between 1 January 1984 and 31 December 1984. In support of that count, the complainant gave evidence of an event she said happened during her first year of high school. She was doing homework in her bedroom. She said that she heard her mother go to the car to go somewhere. She went out to see if she could go with her mother because she did not like to be left at home with the appellant by herself. The appellant told her that she was not allowed to go with her mother. Her evidence in chief was as follows (T20.19 to 43):
Q: Tell us what's happened?
A: He's come into my bedroom. He's closed my bedroom door. I've said I didn't want to do anything and he's made me lay down on the bed. He took my underpants - he pulled my underpants down. Only pulled them off one leg.
Q: Were you sitting or lying on the bed?
A: When he came into the room I was sitting on the bed and then I got up and then he's made me lay down on the bed.
Q: You've referred to the underpants.
A: Yes.
Q: Were you wearing any other clothing at that time?
A: Yes, I was - I was still in my school dress.
Q: When he's removed your underpants, did you still have the school dress on?
A: Yes, I did.
Q: Now, he's pulled down you underpants. Were they taken off?
A: No, he pulled them down and took one foot out of the underpants. Left the undies around the ankle of the other foot.
Q: Tell us what's happened next?
A: He's - he's standing there and he's taken his pants down a little bit and --
32After an exchange between the Crown and the trial judge, the evidence continued (T21.12 to 22):
Q: Please continue.
A: He's laid down on top of me. He's put one hand beside my head. The other hand he's moved down between the stomach to his penis. He's then put his penis inside my vagina. And he was moving up and down. I don't know how long; maybe five minutes and he made a funny noise and then I was - between my legs was all wet. He's got up, pulled his pants up, told me to clean myself up before your mother gets home, before - he's gone to walk out the door and he's said to me as he's walking out the door, "Clean yourself up before your mother gets home". And I just stayed there for a little bit, crying, and then I've got up and - and gone into the bathroom. And I had a shower and - to clean myself.
33The complainant said that incidents of sexual intercourse happened in her bedroom a couple of times a week at that period of time. She said if she and the appellant were alone then "he took the opportunity" (T27.44).
34The complainant said that, during that year (her first year of high school), she told her mother that the appellant had been "doing things" (counsel's words) to her. She said her mother said something like "leave it with me and I'll get to the bottom of it". The appellant was on a fishing trip at that time. When he returned, the complainant could hear him talking to her mother. She heard him say that she (the complainant) was lying and that she was only trying to split them up (T28). The complainant said her mother then came to speak to her and said that she'd spoken to the appellant and the complainant said "I heard". The complainant said to her mother, "don't bother". She gave evidence that she said that because she knew her mother wasn't going to do anything (T29).
35Count 5 alleged a second offence of unlawful carnal knowledge between 1 July 1984 and 2 April 1985. The complainant said that the appellant had a truck with a tank which he used to clean septic tanks and grease traps. To clean the tank of the truck, he would put water in the tank and then drive the truck around "to slosh the stuff - the sediment on the bottom about". She described an incident when they were doing that together and they drove to a reserve. Her evidence in chief was as follows (at T31.32 to T32.14).
Q: Just please continue.
A: It was dark, so it was late in the evening. We drove up near the - there's a tower up there. We drove up near there and [the appellant] said that this is no good because there was well used track and he didn't want people to see what he was doing, so we drove around a little bit - bit more and found a more isolated place to empty the tank. When we stopped I - I needed to go to the toilet so I got out of the truck and - and walked away a little ways to go to the toilet. I've come back to the truck. He's put his arm around me and he's told me that he loves me --
Q: All right, well as best you can, can you use the words that he was using?
A: Yes. He said, "I love you", and he said that "If you were older I would have married you instead of your mother."
Q: Keep going.
A: We've - he's put his arms around - he put his arms around me and he's gone to the - moved to the back of me. He's undone my jeans and taken them down, taken my shoe off and taken one leg out of my pants and my jeans. He's leaned me over and stood directly behind me and leaning on the tyre of the truck as well, with one hand and with the other hand he's put his penis in my vagina and it hurt a lot. And whilst he was moving his penis in - in and out of my vagina he placed both hands on my hips, around my waist and was moving me backwards and forwards. He made that - after a little while he made that little noise that he made and I - I knew that once he'd made that noise it was - it was over. He stepped back away from me once he -once he'd ejaculated and then pulled his pants up. He's gone to the door of the truck, grabbed out a rag, threw it over to me and told me to clean myself up and when I was wiping my - my vagina and - there was blood there. So I knew why it had hurt so much. After I'd cleaned myself up and he'd emptied the tank we've gone home. I was in the bathroom washing my underwear out and [the mother] asked me what I was doing and I lied to her and I told her I'd got my period 'cause [the appellant] was standing just outside the door.
36Count 6 alleged an offence of sexual intercourse with a person under the age of 16 without consent. The complainant's evidence in chief of that incident was as follows (at T41.47 to T43.1):
Q: Now can you tell us what your next memory of something happening with the accused was?
A: It was in the evening. We were in the truck; we went from [the second address] out to a reserve or a dam on Church Plain Road which is off the Sturt Highway. We backed up to the dam, put the hose into the dam and pumped water onto the truck. I'm not sure how much water was put on the truck. After there was enough water in the - in the - in the tank we drove around a little bit and [the appellant] hit the brakes and I jerked forward, not expecting the brakes to be hit and he said this was to swish the selment (as said) on the bottom of the tank so that it would come away. He's - we've stopped the truck and let the water out and the water wasn't running clean so we had to go and put more water in the truck and do the same again and then as we were about to leave the - where the dam was he's driven across the road into the reserve across the road in behind the trees and that there where you can't be seen by the people from the highway. We've pulled up there.
He's got out of the truck and gone to the back of the truck. He's called me and I pretended not to hear. He's called me again so I've got out of the truck and gone round the back of the - around to the back of the truck. He's when I got to the back of the truck he put his arm - hands around my waist and he's put his hand on my vagina on the outside of my jeans and started rubbing it and I've said to him, "No, not now, please," and he's just , "Yes, now." He's undone my jeans and pulled them - pulled my jeans and my undies down. He had to take my shoe off to get the - my leg out of my jeans and my underpants but I've only taken the one leg out. He's bent me over and kicked my legs apart. He pulled his pants down and he's put his penis in my vagina and moving it in and out. He kept trying to touch my breasts but not trying to - trying to cover them and hold his - push his hand away from them.
Q: While he was moving his penis in and out, did you feel anything?
A: I could feel when - when he was pushing in. I could feel his groin area, the lower part of him, up against the back against my bottom. It - it - and he, he's pushing in, I was getting pains in the lower part of my belly. It was hurting. After a few minutes, five minutes or so, he sort of made a funny little noise and I knew that - when he made that noise that it was almost over. He stayed there - he stood there for maybe a minute with his penis still in my vagina and - and then when he's finished, he's pulled his pants up and walked to the front of the truck and grabbed a bag out, come to the back of the truck. I'm putting my jeans and that back on. He threw the rag at me and told me to clean myself up and - and because I was crying he - which made him angry, me crying --
Q: Sorry could you repeat that again?
A: It made him angry when I cried and I was crying because it hurt and I - I cried just about the whole way home. I think I did cry all the way home and I had to - when we got back to the house I had to get out and open the gates for the truck to go into the yard and as I got out of the truck, he's told me to go and wash my face under the tap out the front so [the mother] wouldn't know that I was crying. So I've opened the gates and I've gone to the front - into the front yard and used the tap to wash my face and [the mother]'s come out and she knew I'd - she could see I'd been crying and asked what was wrong and [the appellant['s just said to her, "Oh she's hurt herself but she's all right now." I've gone in - I've gone inside and gone into the bathroom and had a shower and quite often done the same thing. I couldn't get myself clean so I'd get the scrubbing brush and scrub myself until my arms and my legs and that bled.
37Count 7 alleged a further offence of sexual intercourse with a person under the age of 16 without consent. The complainant's evidence of that incident was as follows (at T43.27 to T44.9):
Q: All right, can you tell us about the next thing that you can recall?
A: Yes. It was in the afternoon. We were going down to a friend of [the appellant]'s. He had a property down near the Ashmont Golf Club. And his property, part of it you could get access to the river. Now where we would go there's a big tree there and he had a endless chain attached to the tree so that you could take the tank on and off the truck.
HIS HONOUR
Q: What sort of chain did you say?
A: An endless chain. This was probably about three to four, maybe 500 metres from his house. He had a two storey house. And it was in the - down the sort of back of his house this - this big tree that was - that we had the access to the - the river. We've reversed up to the fence line there to get everything ready to clean the tank out. And we've pulled up there, reversed in. I've got out and started getting the pump and everything organised, because you had to pump the water up from the river into the truck to clean it out. So I was getting that organised and he's come over to me and grabbed me around the waist. I said "No, I don't want to do this". I don't remember what he said to me. He was saying something but I don't remember. And he undone my jeans and he pulled my -my jeans and my underpants down. I've had to take my shoe off. Taken one leg out of the pants and left the other leg in my pants and my shoe. And I was leaning between the - the pump and I was actually leaning on the tree. Bent me over to the - so to lean on the tree. Then he's taken his pants down a little and he's put his penis in my vagina and was moving it in and out. He made - after a few minutes he made the little noise and I knew that he was almost finished and it was almost done. When he'd finished he stepped back and pulled his pants up and went and got a rag out of the truck and told me to clean myself up, wipe myself. I'd done that and I tossed the rag away and he told me to hurry up so that we could get the job done quicker and once I'd got myself dressed and cleaned up, we proceeded to clean the tank out.
38The cross-examination of the complainant as to counts 4 to 7 pressed her as to the matters now relied upon as demonstrating the unreliability of her evidence. The effectiveness of the points raised is, in my view, very much an evaluation which the jury was better placed to make than is this Court. As already noted, the complainant said that, while she was in year 7, she told her mother about what the appellant was doing to her. It was put to her in cross-examination that she never said any such thing to her mother, because nothing had in fact happened. She responded that it did happen and that she had told her mother so, on a number of occasions (T104).
39Later, she was pressed as to the improbability of her mother doing nothing about the abuse, and indeed allowing the complainant out in the truck alone at night with the appellant, if she had in fact told her mother of the abuse (T108 to 109). It was undoubtedly a stark aspect of the Crown case that the complainant told her mother that the appellant was sexually abusing her; that her mother did nothing about it and that the abuse continued for many years.
40In assessing that evidence, the jury had a conflicting version of events from the mother. It was, by any measure, an unusual account. The mother did not give evidence at the trial. A previous trial was apparently aborted or adjourned due to her being unwell. The trial judge was informed that she remained unwell. By consent, an edited version of an audiovisual recording of an interview with police was played to the jury (MFI 6, T198). A transcript of the interview became exhibit D.
41The DVD was not before this Court, reflecting the approach approved in R v SKA [2009] NSWCCA 186 at [106] to [110] (that decision was overturned in the High Court but not on this point). A consideration of the transcript of the DVD (exhibit D) creates a poor impression of the reliability of the mother's version of events.
42Two important aspects of the mother's evidence were that she denied that the complainant had ever told her about being sexually abused by the appellant and that she said she had once walked in on them having sexual intercourse which, from her observation, she took to be consensual. The appellant did not give evidence but the case put on his behalf in cross-examination of the complainant was consistent with the mother's account. In particular, it was specifically put to the complainant (at T151 to 152) that, on an occasion after she was 18 years of age, she and the appellant started having sex in the lounge room after the mother had gone to bed and that the mother came out and "caught" them. The complainant said that did not happen. She was asked "Sorry? You don't recall?" to which she said "I don't recall that ever happening." The judge then sought to confirm that she was not saying it did not happen, she just did not remember it happening (T152.44). She responded that she did not recall that ever happening.
43The appellant submitted that the complainant's evidence that she did not recall any such event was "simply incredible". It was submitted that, consistently with her denial that there was ever consensual sex, one would expect her to have denied that event rather than to say she did not recall it.
44The distinction between a denial and an absence of recollection is one which different witnesses deal with in different ways. Whether those answers would have been understood as a concession to the possibility of consensual sex with her stepfather or as a demonstration of intellectual honesty (or lack of appreciation of the distinction being put to her by his Honour) is hard to judge.
45It is also relevant to consider the evidence of the complainant's current husband. He gave evidence that, in February 2006, he called the appellant. He said that they had a conversation which ultimately became heated. At one point, he called the appellant "a filthy fucking paedophile". The appellant responded "that she had asked for it" and "that it had happened over 300 times". The complainant's husband gave evidence that the conversation was fairly heated and happened fairly quickly. The husband said:
He said it had happened 300 times and then I replied, "what, a nine year old girl's asked for it?" and he said to me, "she wasn't nine". He then yelled out to [the mother] and asked when they were married and he come back and said she was 13.
46The jury was thus confronted with evidence, no matter whose version they accepted, that the complainant and the appellant had sexual intercourse at some point. The factual contest lay not in whether that occurred but when it started and whether, when it started, it was consensual.
47In the cross-examination of the complainant on that issue, there was no specificity as to how the allegedly consensual adult sexual relationship began. No meat was put on the bare bones of a denial that any sexual activity occurred when the complainant was too young to consent, coupled with a positive case put in cross-examination that once she was old enough to consent, she did. It was in that context that it fell to the jury to assess the extraordinary statement made by the mother to police that, when the complainant was about 19, the mother walked into the lounge room and found the complainant and the appellant having sex. As to that incident, the mother said (at Q151 of exhibit D):
And I can, well, it certainly wasn't a rape, because she didn't look like anyone that was being raped, she was, yeah, I just couldn't believe my eyes. And I was guaranteed that it would never happen again, and I was also told that it didn't happen again.
48Later in the interview, the police pressed the mother on that incident (at Q302 to 309):
Q: This incident where you caught [the appellant] and [the complainant] having sex on the lounge, you said, well, what was [the complainant's], when you spoke to her afterwards what, what did she say about it?
A: She was just very embarrassed.
Q: Did you ask [the appellant] how that happened?
A: [no audible reply]
Q: Because, I don't know, correct me if I'm wrong, but that isn't quite the normal thing, is it?
A: No. No. I don't, I don't, I've never asked.
Q: You never asked?
A: No.
Q: Never asked [the appellant]?
A: No, never asked [the complainant] either.
Q: Why's, why's that?
A: Why, what caused this to happen.
Q: Yeah.
A: Maybe because I just, maybe I didn't want to know to be honest with you, love, maybe I just didn't want to know.
Q: Yeah.
A: Once I got their assurity that it would never happen again I thought, well, I'll leave it there, I won't go no further. And I told them both if it ever, if it ever happened again they'd be out on their arse. I would, I would doze until the kids come home. [The complainant] used to go to Cocos and all that, you know, she wouldn't get home till 3 o'clock in the morning.
49The mother later expanded on those answers (at Q323 to 324):
Q: But [the appellant] offered no explanation as to how that came about?
A: Well, he started to and I just put my hand up and said "don't want to, shut up, don't want to know".
Q: What, what did he say, or what did he start to say?
A: He apologised. And then I realised what he was apologising for because I was doing other things and my mind wasn't on that.
50One thing that emerges very clearly from the statement of the mother is that this was a family in which the relationships between mother, stepfather and daughter were unusual. There were also unusual aspects to the mother's denial that the complainant had ever told her of any sexual abuse by the appellant. She gave the following answers during the interview (at Q166 to 169):
Q: Righto. Well. Ok, well, just going, just going back to [the appellant's] statement, she says, and I'll quote from her statement. Says, the first person I told about [the appellant] abusing me was [the complainant's mother]. I was in about Year 7 and I wanted it to stop, we were home and I think [the complainant] had gone away fishing.
A: No, it's not true, love, no, it's not.
Q: Mmm.
A: So no, I'm sorry, no like, I'm not stupid, I would've protected my kids.
Q: Yeah.
A: But I don't, I trule don't believe it was because there was many times [the complainant] and I were home on our own, and she never mentioned it, never.
Q: Yeah.
A: And this is what I don't understand, you know.
51Later (at Q174), she said:
And this is what I don't understand. Maybe I'm a bit senile. But I truly do not believe, no.
52When pressed as to the specifics of the complainant's account of her complaint to her mother in year 7, the mother did remember an incident similar to that described by the complainant but maintained that it related to the appellant accusing the son of doing something he had not done. She said it did not relate to a complaint by the complainant.
53According to the complainant's statement to police, the mother had at some point told her, after talking to the appellant, that he had said "he won't do it again". That evidence was not given in the trial by the complainant, but the mother's answers about that conversation were included in the material before the jury in exhibit D. In the context of answering questions on that issue, the mother told police that her mind was not good and that she had been on painkillers for many years. It is important to consider the full exchange (at Q194 to 202). It begins with the police putting to the mother what the complainant had said in her statement to police:
Q: And she says "Drove back to the house, I don't know what was said between ... [My mother] later said to me, he said, he won't do it again".
A: Well I could've said that but I could've been referring to [the brother].
Q: Yeah. Yeah.
A: Because that's what we had the argument about, it was about [the brother]. And I dare say, I probably said he won't, he won't accuse him again or whatever, I don't know. I don't, like, my mind's not that bloody good. It's pretty bad, actually. Quite often out of me tree. Well, I used to be, because I was on painkillers.
Q: Yeah.
A: A lot of thing I, yeah.
Q: So, like, well, get to the issue of your painkillers, have you been on painkillers for a long time?
A: Yes, yes, I have.
Q: And how do they affect you apart from pain relief?
A: Well, up until I was, just before we moved out to Belfrayden I was put on some bloody doozies, knocked me out. But up until then, no. I'd be on tablets that they were pain relief, that's what they were.
Q: Yeah.
A: But, because I've got arthritis and it's through the majority of my body, and some days I'm in a lot of pain and I can't get around too good but that's only been in the last, what, 10 years, yeah, yeah.
Q: Right.
A: And I was put on Oxycontin and I was 120 milligrams a day, yeah. And that's when we lived to at Belfrayden [sic]. And as I said, I was quite often out of my tree out there.
Q: Mmm.
A: I used to take 60 milligrams in the morning and 60 milligrams at night and if it didn't knock the bloody pain on the head I'd take some more, yeah.
Q: Mmm.
A: So yeah, I was out of, yeah, when we lived out there, yeah, I was quite often out of me tree but, you know, yeah.
54Police also asked the mother about her relationship with the complainant since the argument over the cheques in 2003. She gave the following answers (Q217 to 223):
Q: So since, so since that time, like, since the argument over the cheques and all that, how's your relationship been with [the complainant] since then?
A: Well, there hasn't been one. She didn't want, she's virtually not spoke to me since. I seen her one day in the market place, I said to her, can we have a, can we have a chat. I heard what she said to me but I made out I didn't. She said, I've got nothing to say to you. And I said to her, there was people walking in between us, and I just said, I'm sorry, love, I said, I didn't hear what you said. I said, Can you tell me what you just said? She said, I have to go and ask [the complainant's partner]. And I said, I beg your pardon?
Q: [The complainant's partner], just for this, the statement, [the complainant]'s her husband or partner. Is that right?
A: Whatever. Now, he, yes, he's , she said to me, I have to go and ask Arthur if I can talk to you. I said, I beg your pardon? You've got to get permission to talk to me? And she said, Yeah. I said, Well, fuck off. My exact words. Don't want to talk to you.
Q: Uh-huh.
A: And I walked off. And she come running behind me. Yeah, I can talk to you, I can talk to you. And I though, well, you haven't had time to even pick the phone up let alone ring anybody. And I just said to her, I said, No, go home to your kids, I said, they'll be home waiting for you, go. And she kept following me around. And I eventually sat down and I said, she said to me, Why did you let him do these things to me? And I said, I beg your pardon? I said, [the complainant], you've never told me a bloody thing, never. I said, the only time I ever knew anything, I said, was when I walked into the lounge room, that's it. I said, so don't come the bullshit, because I'm not interested. I don't want to hear it. And that was about the .... of the conversation.
Q: So, at what stage did she, like, you say that she was, sort of, wanting you, wanting you to say something about [the appellant] doing these things to her ---
A: Yeah.
Q --- but the only time that you knew ---
A: Yeah.
Q: --- ... happened was when you walked in on them?
A: Exactly.
Q: Like, clearly [the complainant]'s saying that this, that was going on a lot, a lot more than once.
A: Yeah, obviously, but I didn't know anything about it, love.
55The mother's version can scarcely be described as a compelling, inherently plausible, unequivocal denial that the complainant had ever said anything to her about being sexually abused by the appellant.
56On this as on other issues in the appeal, the appellant's submissions rest on rigid preconceptions as to how people ought to react to sexual assault within the family home. The implicit premise of the submission that the credibility of the plaintiff is undermined by the evidence of the mother is that it is inconceivable that maternal feeling would not conduce a mother to support her daughter, rather than her partner, in the face of such allegations. A further, more subtle aspect of that untested assumption is that it is corroborated in the present case by the mother's response to the earlier abuse by her previous partner, whom she evidently reported to police.
57But people do not always react to life events in accordance with common preconception. That is one of the advantages of having the evidence assessed by 12 people randomly drawn from the community in which such preconceptions arise. The jury saw the DVD of the mother's interview by police. Even on the strength of the transcript of that interview, she presents as an unimpressive witness and as a person who may not meet common preconceptions about maternal feeling.
58Her statement was certainly capable of undermining the evidence of the complainant, but it could serve equally to explain, and give some cogency to, the complainant's account that the abuse continued notwithstanding the fact that she had told her mother about it. Obvious alternative explanations for the denial that the complainant had ever told her of the abuse were, first, impairment of memory due to medication or, secondly, shame or guilt at the prospect of having failed to protect her child from sustained sexual abuse at the hands of not one but two men introduced into the family by her.
59The mother's statement could also serve to explain another matter relied upon by the appellant, that the complainant did not complain to anyone else (until she spoke to police in 2006). Any apprehension on the part of the complainant that her mother would not support her in any complaint would have been a significant discouragement to her as a child in taking the matter further or elsewhere.
60The resolution of those competing considerations is quintessentially a task informed by the manner in which the complainant gave her evidence and the manner in which the mother spoke to police during the interview recorded in MFI 6. That glib phrase ("the manner in which the evidence was given") barely captures the many ways in which the assessment of factual issues is enhanced by seeing and hearing the witness. As noted in the decision in M, full allowance must also be made for the manner in which the jury exercises its function. The jury has the opportunity for private discussion about the impressions obtained from the evidence, as it is given, with all of its visual cues.
61The delay between the incidents the subject of the counts on which the appellant was convicted and the complainant's first approach to police in 2006 was certainly substantial. However, as acknowledged in the appellant's written submissions, the jury was appropriately directed as to the forensic disadvantage for the appellant in defending such allegations. The appellant acknowledged that, in light of the learned trial judge's careful direction, the delay on its own was relatively unremarkable.
62Apart from the matters already considered, the appellant relied upon the alleged vagueness and unreliability of the complainant's evidence including material inconsistencies and contradictions with other witnesses. It was submitted that the complainant's unreliability emerged "notwithstanding the circumstance that the complainant's statement was taken, apparently thoroughly, during six separate sessions with the police over a period of three months in late 2006 and in circumstances where some six months had elapsed between when the complainant first decided to complain to the police and when she in fact reported them".
63The complainant was cross-examined about the circumstances of giving her statement to police. She said that the breaks between occasions upon which she spoke to police to provide a statement were due to the need to find dates when she, her counsellor and the officer in charge were all available. The appellant's submissions on this issue echo a remark made by the learned trial judge during the consideration of the application for directed verdicts (at T231). His Honour expressed surprise that there could still be uncertainty and doubt about particulars after such a lengthy period of taking the statement. I would respectfully not share that view. If this was a case of sexual assaults committed on a child but not reported until many years later, it would not be surprising that a statement had to be taken over several sessions. It is not difficult to imagine the factors which would contribute to the difficulty of making, in a single sitting, a full statement as to traumatic events ranging over a period of years. It is also not difficult to accept that there could still be doubt as to detail after such a process. Accordingly, I do not think the existence of doubt as to detail necessarily reflects on the likelihood that the events occurred as described.
64The appellant relied upon the fact that, when the complainant first contacted police, the COPS entry records her as having said the assaults commenced when she was eight years old, whereas the evidence at the trial established that the events could not have started until she was at least nine. Once again, that submission reflects a remark made by the learned trial judge (at T231), who asked rhetorically why someone independently examining the matter would not regard that as a matter that might reflect adversely upon her credibility. For my part, I have no difficulty accepting that a person who at the age of 35 first reported events that started when she was in primary school might make an error as to her age when the conduct began. There was no exploration in the court below as to the precise words said during the conversation recorded in the COPS entry or as to how the complainant came to make that error (if she did make that error - it may have been an error in recording or comprehension on the part of the author of the entry). For my part, I would want to know more about those matters before concluding that it was an error which necessarily reflected on her credibility or reliability as a witness.
65Another alleged anomaly or inconsistency in the complainant's evidence relied upon by the appellant is the fact that the COPS entry recorded her as having stated that she was reporting the matter to police because she had fears that the appellant might attempt to interfere with her own children. The appellant submitted that that was materially inconsistent with the evidence of three witnesses who had all observed the complainant leaving her children with the appellant and his wife, sometimes for extended periods. The complainant was briefly cross-examined as to those matters. The cross-examination concluded with the following exchange (at T175.21):
Q: You weren't ever forced by [the appellant] to part with [complainant's son] at all, were you?
A: I really didn't have much say in it. He just come and took [the son] whether I liked it or not.
Q: What, he did the same with [the daughter], did he?
A: I never let him have [the daughter].
66Certainly on paper that reads as though it was probably powerful evidence from the complainant. As already noted, this was an unusual family. The evidence that the complainant may have left her children with her mother and the appellant from time to time does not necessarily undermine her credibility as to the acts of the appellant for which he was convicted, in my view.
67It remains to consider the significance of the jury's acquittal of the appellant on counts 8 and 9.
68Count 8 alleges an offence of sexual intercourse without consent between 1 February 1995 and 30 March 1995 (when the complainant was aged 23 years). The complainant gave evidence that the relevant incident occurred on the day on which she found out that she was pregnant with her second child. She said she went home and the appellant came to visit. The complainant and her partner had been talking about moving away from the area at that time. The complainant said that the appellant was rather upset at the fact that they were thinking about moving. She gave evidence in chief as follows (at T50.18):
Q: Could you just tell us what he said rather than what you think he may have been thinking?
A: He asked why we were moving and why would I take [child] away from them, them being him and [the mother], and I tried to explain to him that we hadn't decided on what we were doing and he got rather angry.
Q: You just said he was angry. How do you know?
A: The way he was speaking to me and he was yelling at me. I don't remember how but all I remember is going from the lounge room, being in the lounge room one minute and then the next minute being in my bedroom and - being in my bedroom and I was on the bed naked and he's pulled his shorts down. He's got my wrists held above my head. I couldn't - I was struggling with him and I couldn't get away from him. I couldn't get out of his grip.
Q: You said you were struggling with him. What were you doing?
A: Trying to get out of his grip because he had hold of my arms and I couldn't get him to let go of me.
Q: Did you say anything to him?
A: I asked him not to do it. "Please don't - please don't do this." He got both of my wrists and held them together with one hand and he was trying to kiss me. And I remember just shaking my head so he couldn't and saying to him, "Please don't do this". Then with his free hand he - then with his free hand he put his penis in my vagina and proceeded to move in and out. He was still trying to kiss me and I'm still trying to shake my head and trying to get away from him. Then after a little bit, I don't know how long, he got up and said something. He said, "I can't do this anymore". And I'm not sure what he was talking about. He's walked out of my room - pulled his pants up and he's walked out of my room. I've got my clothes and I've run into the bathroom and washed myself and got dressed and I could hear him in the lounge room. He's - when I've gone into the lounge room I've asked him to leave and he turned around and he said to me, "This is all your fault; this is the only way I know how to hurt you". And with that he left.
69Count 9 alleged an offence of assault with an act of indecency in 2003. That was when the complainant, her mother and the appellant were all living at Belfrayden. A dispute had arisen because the complainant's mother had been writing and cashing cheques on the account of the appellant's business. The complainant's mother said that the money was for the complainant. The complainant denied that. She said that the appellant was very angry and confronted her (the complainant). She gave evidence at T63.7 to T63.12 as follows:
Q: He's come towards you. Tell us what's happened?
A: He's grabbed my shirt around the scruff of my neck really, really tight with one hand, and the other hand he's grabbed the front of my pants - my vagina, and he squeezed it really, really hard. And he's pulled me in and when he's yelling at me I could feel the spit on my face. And he said to me "I should fuck you up the asshole for what you're doing". I got away from him and I went out the back and I spoke to [the mother] and I told her that --
70The complainant said that she moved away from Belfrayden immediately after that event and that the only time she returned to the house was to pack up and move. The evidence was that, in August or September that year, she obtained an AVO (T63 to T64).
71The appellant submitted that the convictions on the five counts that went to the jury at the conclusion of the trial cannot logically or reasonably stand with the acquittals on those two counts. As noted in the appellant's written submissions, where an unreasonable verdict ground is supported by a claim of inconsistent verdicts, the focus of the inquiry is upon any explanation for an acquittal, not for a conviction: R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 at [128]. However, a threshold task is to determine whether there is an inconsistency.
72The appellant noted that the jury was directed that, if they did not accept a particular part of the evidence of a significant witness and the part which they did not accept was a matter critical to proof of guilt of the appellant in relation to one or other of the counts, that may have implications for what they could reasonably accept from that witness in relation to other matters of critical importance in the case. The submission was that, since the proof of the guilt of the accused depended upon the truthfulness and reliability of the complainant, acquittal on two counts and not on the remaining five in itself entails perversity.
73I do not accept that submission. The implicit premise is that the jury disbelieved the complainant's evidence as to counts 8 and 9 and that, having done so, they could not reasonably accept her evidence in relation to the other counts. Both propositions are wrong. First, the acquittals do not necessarily mean that the jury disbelieved the complainant. They mean that the jury entertained a reasonable doubt as to those two counts. Secondly, although the credibility of the complainant on counts 8 and 9 was capable of informing the jury's assessment of the other counts, it did not necessarily do so. That is reflected in the standard directions to a jury that it is open to them to accept some parts of a witness's evidence and to reject others. It is also reflected in the direction that, where an accused is charged with more than one offence, the jury must consider each charge separately.
74If, contrary to the conclusion I have reached, the verdicts are inconsistent, there is in my view a rational explanation for the acquittals on counts 8 and 9. Those offences were alleged to have been committed considerably later than the counts on which the appellant was convicted. The event described by the mother of catching them having sex in the lounge room was not the event relied upon to prove count 8 but the prospect of consent was relevant to the determination of that count. It is not irrational to think that the evidence of the earlier events, if accepted, explained the appearance of the incident described by her. On the complainant's evidence, sexual intercourse with the appellant had become normalised by that time and there was little point resisting it. It was the mother's evidence that the sexual intercourse she observed appeared to be consensual, but that of course is not determinative as to whether the complainant was in fact consenting on that or any other occasion.
75As strange as it seems, the jury may have accepted that consensual sexual intercourse did occur at some point. They may have considered it unlikely, but the spectre of adult consent in the context of a dysfunctional relationship may have caused them to entertain a reasonable doubt as to count 8. They may have entertained a doubt as to whether, as an adult, the complainant made her lack of consent clear to the appellant.
76An assessment of the complainant's evidence in support of count 9 is also necessarily informed by the complex and dysfunctional relationship which had on any view developed between the complainant and the appellant by that point. As already noted, the jury was confronted with evidence which established that, at the very least, the complainant did have sexual intercourse with her stepfather, the contest being as to when such conduct began and whether it was consensual. Whichever way the issues of timing and consent were resolved, they informed the events of 2003 and may have contributed to the harbouring of a reasonable doubt as to the complainant's description of that event. The evidence in support of count 9 was complicated by mutual finger-pointing by the complainant and her mother as to who was to blame for the alleged misappropriation of funds from the appellant's business. That was also capable of rationally affecting the jury's assessment of count 9, but it did not necessarily have any bearing on the counts on which the appellant was convicted.
77The appellant relied upon the evidence as to the circumstances in which the complainant came to live at Belfrayden as a further instance of direct and material contradiction of her evidence. As noted on behalf of the appellant, the effect of her evidence was that she moved to Belfrayden to escape from him. Her landlord, Mr Gibbons, gave evidence to the effect that, before she leased the house from him, she invited her mother and the appellant to visit the property and that during that visit they agreed to buy the property, suggesting that she well knew, before she took the lease, that her mother and the appellant were also planning to move there.
78The inconsistency between the evidence of the complainant and that of the landlord on that issue is plainly relevant to an assessment of the complainant's credibility, but it is also relevant to a consideration of the alleged inconsistency between the acquittals on counts 8 and 9 and the earlier counts. There would be nothing irrational in accepting the complainant's evidence that she was sexually assaulted as a child and concluding that the events of those years coloured her recollection or description of later events when she was an adult.
79A careful consideration of the evidence and the appellant's submissions as to the alleged unreliability of the complainant's evidence has not left me with any reasonable doubt as to the appellant's guilt on the counts on which he was convicted by the jury. In my view, ground 1 must be rejected.