Maber (a pseudonym) v R

Court of Criminal Appeal (NSW)|2022-04-06|Before: Leeming JA, Hamill J, Ierace J

Judgment

LEEMING JA: The applicant stood trial at the District Court constituted by judge and jury on an indictment containing 14 charges of various counts involving both common assault and assault occasioning actual bodily harm, as well as committing acts of indecency, aggravated indecent assault, aggravated sexual intercourse, and one count of inciting a person under 10 years to commit an act of indecency.
There were three complainants, each of whom was the applicant's biological daughter. Section 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prevent the publication of any matter likely to identify the complainants. Maber is a pseudonym and I shall refer to his daughters as M, G and C. I shall call their mother A. Although the date of G's birthday was prominent in the trial, I shall refer only to it being in December.
Counts 1-8 relate to M; counts 9-12 relate to G and counts 13 and 14 relate to C. Each of the complainants and the mother gave evidence at trial. The applicant did not give evidence nor did he participate in an interview with police. However he did not dispute that he had been charged with and had pleaded guilty to domestic violence offences in relation to A and M in the past.
The jury found the applicant guilty on all of the counts save for count 13, although in relation to count 7 and 8 (being counts of aggravated indecent assault), the jury returned verdicts of guilty on the statutory alternative of indecent assault. That may have reflected the jury having not been satisfied beyond reasonable doubt that M was under his authority, that being the aggravating feature of those counts. At the time M was 18 years old, a mother, paying rent and no longer living with her father.

General background

The applicant and A met when she was about 16 years old, and their oldest child M was born two years later in 1999. They lived in a house in Cessnock, and the couple had another seven children, including C who was born in 2005 and G who was born in 2008. At some stage A and her children left the Cessnock house, living in a holiday rental home for a period and then a unit in Tuncurry for around six months, then for a year in Smiths Lake before they moved to another location. The applicant remained at Cessnock, but would visit the Tuncurry and Smiths Lake premises from time to time, including staying overnight. Some of the children, notably G, would go to Cessnock to visit their father.
In 2012 the applicant pleaded guilty to charges based on allegations that he had punched A in the stomach when she was 22 weeks pregnant, and that he had pulled M by the hair, for which he was fined and placed on bonds. The applicant formally agreed, pursuant to s 191 of the Evidence Act 1995 (NSW), in a document which was tendered as Exhibit M, not only to the existence of those convictions but also that the police facts sheet was an agreed account of those allegations. The facts sheet discloses the applicant being of the view that M was inappropriately clothed, and that there was an argument about the family's Christmas savings, during which A tried to grab the money back when the applicant punched her in the stomach. A few days later there was an argument between the applicant and M about comments she had posted on Facebook, during which the applicant grabbed M by her hair and pulled her back. A intervened, and M went to her bedroom and shut the door. The facts continued that the applicant said "I am going to smash your face in. I am going to smash it in now. You are a lying little bitch". The family left the home, made a report to police, and obtained an apprehended violence order. The applicant was interviewed by police and made admissions, namely, "Yes I admit I pulled her hair".
It was also agreed in Exhibit M that M had sent the following messages to her grandmother using Facebook: "He hurts me"; "He hurts the family"; "Mum had to lock us in the bedroom to keep us away from him so we didn't get hurt"; "He has been charged by the police"; "He choked me and tried to smash my face"; "Mum helped me get away she got hit in the belly."
Counts 1-5 involved indecent assaults and acts of indecency and sexual intercourse with M in circumstances of aggravation between 15 July 2013 and 1 January 2014, when she was aged 14. There is no appeal from the convictions entered in relation to each of those counts. Nor is there any appeal from the conviction on count 14 involving an assault upon the daughter C. Count 13 was the only other count involving C, in respect of which the applicant was acquitted.
Of greatest significance to the challenge to the verdicts in this appeal is that the jury were satisfied beyond reasonable doubt of the applicant's guilt of the two indecent assaults, one act of indecency in circumstances of aggravation and two acts of sexual intercourse with M, also in circumstances of aggravation, in 2013, and the applicant accepted that in 2012 he had been violent to M.
The indictment specified a period between 1 January 2017 and 4 December 2017 for the conduct giving rise to counts 6, 7 and 8, but the case was run on the basis that it occurred on 2 December 2017, shortly before the police arrived at the Smiths Lake premises.
The indictment specified between 1 December 2016 and 25 December 2017 for the conduct giving rise to counts 9 and 10, and between 1 December 2017 and 25 December 2017 for the conduct giving rise to counts 11 and 12. G's evidence tied the conduct giving rise to counts 9 and 10 to February 2017 and, in the case of counts 11 and 12, to December 2017.

Were the convictions on counts 6, 7 and 8 unreasonable?

The evidence of M

On 2 December 2017, M was 18. She was 21 when she gave evidence, by which time she had three children, the eldest of whom was born in March 2015.
The events giving rise to counts 6, 7 and 8 were, on the Crown case, the result of an argument after M told the applicant that she was pregnant. M said that the applicant yelled and screamed at her, telling her that she was "going to die" (this being a reference to complications she had experienced in her earlier pregnancy) and calling her a "slut" and a "whore". She said that her father appeared to be intoxicated. After the argument she went to her bedroom.
The Crown case was that the applicant came into M's bedroom, and touched her breasts on the outside of her clothing, then touching her vagina, again on the outside of her clothing. A short time later, the applicant pushed M in the back, as she was walking down a set of internal stairs. She fell and landed on her stomach. There was evidence that the stairs were steep.
Counts 7 and 8 were counts of aggravated indecent assault, in respect of which the jury found the applicant guilty on the statutory alternative of indecent assault, and were based on the touching of her breasts and vagina. Count 6 was a count of common assault, based on pushing her down the stairs.
Shortly thereafter (there was evidence that it was only some 20 minutes), police arrived at the premises.
M gave evidence that she told the police that "my father had pushed me down the stairs and that I was pregnant". However, she said that she did not tell police of the earlier sexual touchings. She said "I couldn't tell - like I tried to tell them about him being in my bed but I didn't describe what actually happened. But they told me just to leave it and deal with it another time".
M also said that her mother walked into the room and saw the applicant touching the top of her dress. "Q. On that particular day that these things happened to you with your father up at Smiths Lake, did you say anything to your mum about what had just happened to you in the room, in the bedroom? A. No, she walked in and seen him just touching, like the top of me, not the bottom. Q. Did you say anything to your mum about what had just happened between you and your dad? A. I didn't tell her what happened, she just asked me what did happen because of her seeing him touch me at the top. But then I couldn't tell her because I was too emotional."
M was cross-examined about her account. She said: "Q. Was he really drunk when he came into the bedroom and touched you? A. I'm not sure if he was then, but like when I started like seeing when he was doing more a day, that's when I realised like he was drinking and I think he was on drugs as well. Q. He was on drugs-- A. Because-- Q. --as well? A. Yes. Because he was getting just too out of control. Q. Did you tell anyone you thought he was on drugs? A. Yes, my mother and the police. Q. You told the police on that night-- A. Yes. Q. --as well, did you? A. Yes. Yes. Q. What was it about it, did you say because he was out of control you thought he was on drugs? A. Yes. Q. Was he like that right up until the time he pushed you down the stairs? A. Yeah, he was just going crazy. Q. Have you just made up as you sit there, that you thought your dad was on drugs on 2 December? A. No, I didn't make it up. No. Q. Police, you said yesterday, came within about 20 minutes after you'd been pushed down the stairs? A. Again, something like that, yes. Q. So your dad still would have been affected, really drunk and affected by-- A. Yes. Q. --the drugs at that time when police came? A. Yes. Q. I want to suggest to you that your dad was not affected by drugs and alcohol at all on the day the police came to [Smiths Lake]. Do you agree with-- A. Yes, he was. Q. Do you have a clear memory of speaking to the police when they came up to [Smiths Lake] on this night? A. Yes. Q. Do you have a clear memory of your conversation with them, when you told them that you'd been pushed down the stairs? A. Yes, I have some of the memory of it, yes. Q. You're sure that you told them that? A. Yes. Q. When you gave your evidence yesterday I think you indicated that you were trying to tell the police that your dad had come into your bed; is that right? A. Yes. Q. But that you couldn't quite get the words out? A. Yes. Q. Did you actually tell police at that time that your dad had sexually touched you? A. I didn't say he sexually touched me. Q. What did you say? A. I told them that he was in the bed trying. I didn't say he was touching me, because I was really ashamed and too embarrassed to tell them. Q. Did you say to them that he was trying to do that, or just that he came into the bed? A. No, I told them that he was trying. I didn't tell him that he did, because I was too scared."
M also denied making up that her father had pushed her down the stairs on 2 December, and that she made up that evidence in order to help her mother in a family court case.
There was also evidence that three days later, on 5 December 2017, following an argument at the Cessnock premises with another man (not the applicant) during which she was hit and fell to the ground, the police were called and M was taken to hospital on the basis that she had a sore back.

The evidence of A

Returning to the events of 2 December 2017, A said that she actually saw M being pushed down the steps as follows: "… like, when [M] started yelling into the room, in the room, that's when I ran to the room. Then I told him to get out of the room and leave [M] alone. Then I've walked back out of the room, to see if the police were coming, and then when I've come back near the side part, then [M] was near the step and he's pushed her down the steps. I didn't, I couldn't see down the steps cause I was, like, at the side part here. So, yep. Q. Are you standing somewhere near the top of the stairs? A. So-- Q. Is that a yes or a no? A. Yes, sort of, yep. Q. Where's [M] when you see her get pushed? A. She was at the top of the stairs. Q. Are you able to, from your position, to see how far she goes, once she's pushed? A. When she was pushed, I couldn't see how far she went down really. Q. Did you hear any noise after she was pushed? A. Yeah, she was crying and screaming. Q. Who was it that pushed her? A. It was [the applicant]."
A said in cross-examination that she had had one drink that afternoon. She gave this evidence about the claim that the applicant had pushed M down the stairs: "Q. You've given some evidence today that you were there and you observed what appeared to you to be [the applicant] push [M] down the stairs, is that right? A. Yes. Q. Where were you standing when that happened? A. I was standing over on this side. Q. Let's just-- A. So there's - so you walk through, there's a doorway-- Q. Yep. A. --and then there's the corner part to go up to the hallway. I was at the - just at the corner part when it happened so I could see her, see him but I could not see when she went right down, if she went right down or not. I just seen the push. Q. Did you see where was [the applicant] in relation to [M] when you saw that happen? A. So, [the applicant] was behind [M] pushed her that's all I seen, was the push. I did not see her, where she landed down the steps I just seen the fall because it was the stairs are like this, you can see and you can't see when it gets right down to the bottom. Q. After you saw that happen, so [M] disappearing from your view, what did you do? A. I was worried because she was crying and I couldn't do anything until the police come and then the police didn't do anything. I was trying to tell the police why they weren't doing an AVO on him and then they took her down stairs when the - and they talked to her. Q. When she disappeared from your view you could hear her crying, is that correct? A. Yes. Q. Did you go downstairs to check on her? A. I - she's come up - she's come up and she was screaming and then I've just waited for the police and everything and I don't know where [the applicant] went after that but then I realised he went to the police because I've seen him at the police …"
A was also taken to a statement which she had made with police, seemingly over a period of time from August 2018 to March 2020, which made no reference to M being pushed down the stairs.
The possibility that A and M had spoken to each other about the incident was squarely raised with A: "Q. Have you had any conversations with [M] about this incident of being pushed down the stairs? A. No I haven't. Q. None at all? A. Like, from, what do you mean? Like, on the night we talked to the police about it. Q. But separate to talking to the police, have you and [M] sat down and talked about this occasion that she got pushed down the stairs at Smiths Lake? A. We don't really talk about it 'cause I don't want to talk about it with the kids."

The COPS record

None of the police officers was called as a witness. Evidently at least one of them, a senior constable, made a record of the incident in the COPS database. The actual record he made was not in evidence. However, also included in Exhibit M were the following agreed facts: "On 2 December 2017, Senior Constable Thumpston of Forster Police recorded that he had attended xxxxxxxxxx Smiths Lake in response to a telephone call by a female requesting assistance to remove her husband who was causing trouble with the kids. i. He reported that the accused informed him that [A] had consumed an amount of alcohol and argued with the accused over the price of two mobile phones ($1000) to be purchased for the children. ii. He reported that the accused and [A] were staying at the home of [M]. iii. He reported that he spoke to the accused outside the home. He described the accused as calm, cooperative and that he did not appear to be affected by intoxicating liquor. iv. He reported that he spoke to [A]. He described her as abusive and moderately to well affected by intoxicating liquor. v. He reported that [A] demanded that police prevent the accused returning to the house at Cessnock stating that the relationship was over and that she was the owner of the house. vi. He reported that he advised her that she should obtain advice from her solicitor regarding any property settlement matters, particularly as he was informed that they had been in a relationship for twenty years. vii. He reported that [A] requested an Apprehended Violence Order. He reported that he declined to apply for an AVO and told her of his decision. viii. He reported that he spoke to [M]. He reported that she alleged that the accused had been calling her a slut and that she requested an Apprehended Violence Order. ix. He reported that when she was told that no Order would be sought, she alleged that the accused had slapped her across the face. x. He reported that he declined her request for an Apprehended Violence Order."

The applicant's submissions that the verdicts on counts 6, 7 and 8 were unreasonable

At the forefront of the challenge to the convictions on counts 6, 7 and 8 was the absence of any reference in the COPS record of M being touched by her father, or of her being pushed down the stairs. It is as well to clarify one aspect of this immediately. Exhibit M was an agreement as to what was contained in the COPS record. It fell short of recording an agreement that what was reproduced was exhaustive. Nor was it explicitly agreed that there was no reference to any sexual touching or pushing down the stairs, in the record. However, Exhibit M was brought into existence on the third day of the trial, and signed by counsel appearing. Evidently, both had access to the actual COPS record. The omissions from the COPS record loomed large in the defence. Accordingly, it was confirmed during the hearing of this appeal that, favourably to the applicant, the Court should proceed on the basis that there was no complaint by M or A of the applicant touching M sexually or pushing her down the stairs in the COPS record.
The applicant also maintained that the discrepancy between M's account that the applicant pushed her down the stairs and the reference in the COPS records to a complaint by M that he had been calling her a "slut" and had slapped her was significant.
In addition to the absence from the COPS records of any reference to being pushed down the stairs or sexually touched, the applicant relied on the discrepancy between M's recollection of her father being affected by drugs and alcohol, and the note by police that he "did not appear to be affected by intoxicating liquor". The applicant submitted that the improbability of M's and A's account being correct was highlighted by what occurred 3 days later, when she was pushed over by another man, and an ambulance was called. M knew she was pregnant on 2 December, but neither told the police nor called an ambulance. According to the applicant, this called into question the reliability of her evidence.
The applicant added that it was improbable that A had seen the applicant touching M and pushing her down the stairs (which was what they both said) and that M had not mentioned that to the police who arrived shortly thereafter, in response to her call.
The applicant added that A and M had made complaints to authorities about violence from the applicant in the past. There had previously been apprehended violence orders issued against him.
In all those circumstances, it was said that this was a case, like Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [119], where "the compounding improbabilities caused by the unchallenged evidence summarised … above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt."
The applicant candidly acknowledged that the guilty verdicts on the non-aggravated alternative form of the charges in counts 7 and 8 reflected nothing more than the absence of evidence that M was under the applicant's authority, and did not reflect one way or the other on her credibility. I agree and shall proceed on that basis.

Consideration of the challenge to the verdicts on counts 6, 7 and 8

I do not regard this to be a case warranting intervention by this Court. It is important steadily to bear in mind that the jury was the tribunal of fact, the jury saw each of A and M give evidence, and that there is no challenge to the directions given to the jury or the summing up.
Although it is lengthy, it is desirable to record how prominent were the matters raised in support of the challenges to the verdicts on counts 6, 7 and 8 at the trial.
The Crown in closing address anticipated that reliance would be placed on the summary of the COPS record. The Crown had said that "When you come to consider charges numbered 6, 7 and 8, please always bear in mind that there is other evidence in the trial about that day. Evidence from exhibit M which is the evidence of what was recorded on the police database by one of the attending police."
Understandably what was absent from the COPS entries were squarely raised by the defence: "[L]ooking at what [M] says she told the police when they arrived on this night. She was asked the question: 'Q. What did you say to the police when you were talking to them? A. I told them that my father had pushed me down the stairs and that I was pregnant but I, I couldn't tell, like, I tried to tell them about him being in my bed but I didn't describe what actually happened but they told me to leave it and deal with it another time.' And this is where the agreed facts document, exhibit M, becomes important and you know that within that document at para 12 you've got outlined for you what police say happened on that night when they go up to Smiths Lakes and when you are specifically looking at what's recorded as being what [M] says you're looking at para 12A(8) and (9). Those paragraphs say, 'He reported,' meaning the police officer, 'That he spoke to [M]. He reported that she alleged that the accused had been calling her a slut and that she requested an apprehended violence order. He reported that when she was told that no order would be sought she alleged that the accused had slapped her across the face.' That's what police record about their conversation with [M]. No mention of being pushed down the stairs. No mention that she's pregnant. No mention of her saying that he actually came into her bed. Now it's not the case that police didn't record anything that [M] alleged that the accused did to her. They did. They recorded that he called her a slut, that she asked for an AVO and that she alleged he slapped her across the face so there are things there recorded by the police. I want to suggest to you that the reason these other things that [M] says she told the police aren't in there is because she simply didn't tell the police on that night and when you are considering this evidence of the argument between [M] and her father on this night can I invite you to think about these two things?"
Defence also drew attention to the calling of an ambulance three days later, but not doing so on 2 December, as follows: "[T]he second thing is there was an ambulance called for her on 5 December 2017 and know that what's said to have occurred on that date was, I think it's a slap from [the man] but there was definitely a push by [the man] and she fell back onto her bottom. An ambulance is called for that but no ambulance is called when you're pushed down a set of stairs, you roll down, you land on your stomach and you're pregnant. What does that say about this allegation about the push down the stairs?"
Defence counsel then made the following submission about the reliability of A's evidence on these counts: "The third thing I want to raise about this incident is [A's] evidence. She said, 'Saw the push, saw the accused push her. Didn't see how far she went down the stairs or what happened after that' and if where she was standing - from where she was standing that's probably likely. You might have seen the push but you wouldn't have seen her go down because of what you can remember from that video of [Smiths Lake] and the set-up of where those particular stairs are. Now, she was cross-examined - this is [A] - about not having mentioned this to police on the night - this push down the stairs. She said, well she did mention it and again I've taken you to what is recorded in the COPS event about what [M] and her mother said to police occurred on that night and there's no record there of anyone saying that [M] was pushed down the stairs. She was taken - and this [A] - to her police statement about the fact that she never mentioned in her police statement that she saw [M] being pushed down the stairs. She said, well she didn't really when you think back to her evidence have an explanation at all for that. She just kept saying, 'Well, I told the police on the night,' and that's what she stuck to and when it was suggested to her that maybe there'd been a conversation between her and [M] about this alleged incident, there was a pretty terse, 'No, I haven't.' Indeed, she got the, 'No, I haven't,' out before the full question was even asked and you might think about that when you're thinking about whether or not there was any conversation between those two women about this event. When you think about, as well, [A]'s evidence and what she says she told police on that night she said the first thing she spoke to police about was wanting an AVO. That was the first thing in her own evidence that she said she spoke to police about when they came and she said the second thing that she spoke about was [a son] not driving away because he was on his Ls. That seemed to be, if you think back to her evidence, a really big concern for her from 2 December 2017, her wanting an AVO and not wanting [the son] to drive away on his Ls - nothing about seeing your daughter being touched on the breast, nothing about seeing your daughter being pregnant and pushed down the stairs."
Defence counsel also highlighted the conflicting evidence about intoxication: "[The] fourth thing, rather, that I want to take you to about this incident is this issue of who is and who isn't intoxicated on this night. Now, [M] says very clearly that the accused was intoxicated. In fact she goes even further than saying that he was intoxicated. She goes on to say that he was on drugs. She thought he was, 'On drugs,' as well that night just because of how he was acting at that time. She was asked, 'Did you tell [anyone] that you thought he was on drugs? Yes, my mother and the police.' [A] never mentioned anything about the accused being on drugs. She certainly mentioned the intoxication but not the drugs and you know what police say about the state of the accused's sobriety on 2 December. You've got that there in exhibit M. Police officer reported that he spoke to the accused outside the home. He described the accused as, 'Calm, cooperative and that he did not appear to be affected by intoxicating liquor.' Now, [M's] evidence is that the police come about 20 minutes after she's pushed down the stairs. Her evidence was that, 'He was going crazy,' right up to the time that [he] pushed her down the stairs. 'He was going crazy. Have you just made that up as you sit there?' She was asked that, 'Q. You thought your dad was on drugs on 2 December? A. No, I didn't make it up, no. Q. Well you said yesterday that police came within about 20 minutes after you'd been pushed down the stairs?' She said again, 'Yeah, something like that. So your dad still would have been affected, really drunk and affected by the drugs at the time the police came?' And she said, 'Yes.' You might think about the stark difference between what she reports as to who or the state of the accused's intoxication at that time and then on the flipside you might look about what she says about her mother's intoxication. She said that her mother was not drinking. Now, even [C] said in her record of interview that she thought her mum might have had one drink. She thought that she had a can of something. [M]'s evidence is in odds with [C]'s evidence but even more so it's at odds with the police evidence because the police say in their report that it was [A] who was intoxicated on that night. The total opposite, really, of what's recorded in the police statement as to what [A] and [M] say."
To get a sense of the extent to which these points dominated the defence address, the entire address occupies some 22 pages of transcript, of which the foregoing is approximately one quarter. The foregoing constitutes the large majority of what was said by counsel then appearing for the applicant in response to counts 6, 7 and 8.
The judge summed up the defence case on these counts as follows: "The defence argued [M] appeared to have forgotten about being pushed down the stairs in her evidence but it is an event, the defence say, you would not likely forget, given the staircase was long and steep. The defence noted [M] said in her evidence she tried to tell police about the offences at Smiths Lake, but they said to leave it for another time, but the police had recorded she told them about the accused slapping her around the face but nothing about being pushed down the stairs or any sexual offence. The defence further noted she claimed the accused went 'crazy' and was intoxicated, yet police appear to have recorded he was calm and unaffected. The defence argued inconsistencies between the evidence of [M] and her mother, on the one hand, and police records, on the other, showed they were willing to fabricate allegations against the accused. Finally, regardless of these matters, the defence argued you would not and could not find the complainant was under the accused's authority at the time of Counts 7 and 8."
The jury must be taken to have borne in mind all of the above when concluding to the criminal standard that the applicant had indeed touched M and pushed her down the stairs.
There is force in some of the applicant's submissions about inconsistencies in the evidence of A and M. There is no good reason to doubt the accuracy of the note made by the senior constable that the applicant did not appear to be affected by alcohol, and that A was abusive and "moderately to well affected by intoxicating liquor". He was well qualified to make the observation, and there is no reason to doubt that it genuinely reflects his observations at the time. Let it be assumed that A was visibly affected by alcohol. The fact that M may have been wrong to perceive that her father appeared to be intoxicated or affected by drugs does not of itself mean that her evidence that he touched her and pushed her down the stairs could not be accepted by the jury. She was giving evidence of events some 2½ years earlier, and there were plainly other occasions when she was assaulted by him when he was affected by alcohol or drugs. Memory is readily distorted, and it is very common to find that details of one traumatic incident among many are misremembered.
There is greater force in the applicant's submission that if a complaint was made by M or A to the police, why was it not noted in the COPS record? M said that she was unable to speak of the sexual touching, but that she did speak of being pushed down the stairs. There is nothing inherently implausible about failing to mention the touching to police, and saying instead that he "tried to" touch her, and if that is what was said, it may well not have been recorded. However, if as she maintained in her evidence that she told police of being pushed down the stairs, it is probable that a note would be made of that fact.
On the other hand, all notes are but an imperfect summary of what was said. It is commonplace for even the best note-taker to miss points. It is common where a person makes three points for the third not to be recorded. And it is not unlikely that the police asked A and M why they had summoned assistance, and it is at least open (in my view, it is the more rational inference on the limited evidence that exists - Exhibit M did not record the time the call for help was made or the time the police arrived) that they were summoned before any pushing down the stairs.
The sense I gain from what is known of the COPS record is that police arrived at the scene following a call from A. It is more than possible that their own database recorded the premises as a place where there had formerly been incidents of domestic violence resulting in court proceedings and an apprehended violence order. However, the police had also, and perhaps quite rapidly, formed the view that there was no immediate need for intervention, and that at least on this occasion, the person who called them was abusive and affected by alcohol, and the applicant unaffected. It is natural that the police would first have spoken with the applicant and A, before speaking with M, and that also reflects the order of the notes summarised in Exhibit M (which may well accord with the order of the actual COPS record). It is not known how prominent to the police was M's complaint about being pushed down the stairs, or how many other requests for assistance the police had received that Saturday evening.
Alternatively, M may have been wrong to recollect that she told police she was pushed down the stairs. She may have confused in her recollection with the fall she sustained three days later. She was after all giving evidence about the events of 2½ years ago. If so, that did not disentitle the jury from concluding beyond reasonable doubt that the applicant did push her down the stairs.
Weighing against the doubts which are capable of arising from the gaps in the COPS record are the facts that the jury was satisfied beyond reasonable doubt, based on M's evidence, that the applicant had indecently assaulted her and had sexual intercourse with her whilst she was under his authority in 2013. And the jury was also entitled to rely upon the acknowledged fact that he had physically assaulted her by pulling her hair, in 2012. There was no challenge to the ruling permitting the Crown to adduce evidence that the applicant had a tendency to inflict physical, verbal and sexual violence upon his daughters M, G and C.
I think it was well open to the jury, who saw M give evidence, to conclude beyond reasonable doubt that he touched her in her bedroom, and pushed her down the stairs, even though that is not recorded in the COPS reports, and even though there are other inconsistencies in M's evidence. I think that conclusion could safely be reached even if the jury entirely discounted the evidence of A.
I might reach a different conclusion had there not been the evidence which was either uncontroversial or which was accepted by the jury of the physical and sexual assaults by the applicant of M in 2012 and 2013. But the jury was entitled to, and required to, bring to account the entirety of the evidence.
This aspect of the appeal is not made out.

Were the convictions on counts 9-12 unreasonable?

The second aspect of the appeal concerned the convictions based on the offences committed against G. This turns on the single point noted by counsel at the commencement of her submissions on these grounds, namely, G's unreliable evidence concerning dates.

The evidence of G

G gave evidence by way of three recorded interviews with police and a further pre-recording during the week prior to the trial. She was aged 9 when first interviewed by police, and 11 at trial. All four interviews were played to the jury, with the transcript made available to this Court. (The applicant acknowledged that this was not one of those exceptional cases that warranted watching and listening to the complainants' evidence.)
Count 9 (assault occasioning actual bodily harm) was an allegation that the applicant had thrown G onto a table, as a result of which she had a big bruise. Count 10, another assault occasioning actual bodily harm, was a claim that she was punched in the head, again causing a bruise, when she was cleaning. G said that these incidents happened on 14 and 15 February in her first police interview. Her account of the events cannot sensibly be separated from the challenge made to the dates.
Count 11 was said to have occurred a few days before G's birthday in December. It was that the applicant had incited G to commit an act of indecency upon him. It occurred when she was pushed into the bath, when she still had clothes on. G said that her clothes got wet and the water was really hot, and then gave this evidence: "Q216 What happened next? A And then he got in and then he moved closer and then I said, 'Go away,' and he said, 'No.' And then I said, 'Go away now.' And then he kept saying, 'No.' And then he said a rude thing to me. Q217 Mmm. Can you tell me what that was? You can use whatever words dad used, you won't get into trouble. A Dad said, 'Touch me,' and he said, 'Touch my rude part.' Q218 Did he say, rude part or did he use another word? A He used the other word. Q219 What word did dad use? A The D word. Q220 The D word. Can you say that for me, you won't get into trouble? A Dick. Q221 And so can you tell me exactly what dad said to you? A He said, 'Touch my dick.' Q222 O.K. And what did you say? A And I said, 'No.' Q223 O.K. A And then I tried run out but dad pulled my leg and then I got this little broom thing and whacked his arm. Q224 Did you. A And then he let go and I ran out and then I was trying to call mum but dad pulled [the phone] out again and then I got dressed and got on my bike and rided off."
Count 12 occurred in the lounge room of the Cessnock premises, when the applicant was said to have removed G's towel and touched her genital area after she had had a shower. Her pre-recorded evidence before the trial judge was as follows: "Q. When you went to see [the applicant] at the house at Cessnock, you told me before that it was in the bathroom that something happened at the house at Cessnock when we were talking about it before lunch didn't you? A. Yes. Q. Was there a time that you were in a towel at the house at Cessnock and something happened? A. Yes. Q. Which room were you in when you were wearing the towel? A. The lounge room. Q. Is that the room that's in the picture there? A. Yes. Q. Is that the time that [the applicant] took the towel? A. Yes. Q. And then he touched you? A. Yes."
The applicant's submissions that the convictions on these counts were unreasonable turned on the certainty with which G gave evidence about dates.
During her first police interview in August 2018, G volunteered precise dates as follows: "Q31 O.K. All right. All right. So let's talk about what happened to you. So you said your dad and where were you when your dad did something to you? A I was down at Cessnock. Q32 O.K. And when was that? A One was in February and one was in near Christmas like a couple of days after my birthday. Q33 O.K. All right. So Christmas last year? A (Nods) Q34 Yeah. O.K. All right. And what did your dad do to you that you want to talk to me about? A He hurt me. Q35 O.K. O.K. So can we talk about the one in February first? A Yeah. Q36 O.K. So I wasn't there at Cessnock in February when your dad hurt you so can you tell me everything you can remember from the beginning to the end, [G]? A Well dad well he hurt me, threw me into a table and then the 15th of February dad made me go in the bath with him 'cause he was drinking. Q37 And was that February this year or - - - A No, last year. Q38 Last year, O.K. So on the 15th of February yeah, he made you go in the bath? A Yeah. Q39 O.K. And before that you said he threw you into a table? A O.K."
G then returned to the timing in the following questions and answers: "Q114 Yeah. O.K. So did anything else happen that night that you can remember? A No, but on the 15th too, dad hit me over, punched me over the head when I was cleaning and then I was really scared and crying and then I ran into [M's] room again. Q115 O.K. That was on the same day that he threw you into the table or a different day? A A different day. Q116 O.K. So you said on the 15th he threw you into the table? A That was the 14th. Q117 On the 14th he threw you into the table. O.K. You're very good with dates. How do you remember the day? A 'Cause I'm really good at remembering things. Q118 Are you. Good. So what happened on the 15th then of February? A Well dad punched me over the head when I was cleaning."
The police officer returned to dates as follows: "Q161 Were you going to school last year? A Yes. Q162 Yeah. Were they school days or was it holidays, what was it or was it the weekend? A It was the weekends. Q163 The weekends. Let's have a quick look, hey. Do you want to have a quick - - - A I think it was. Q164 That's O.K. A 'Cause mum took me down there because I wanted to have a holiday down there and - - - Q165 Ah, did you. A Yeah. Q166 So mum drove you down there did she? A (Nods) Q167 O.K. So I'll ask would mum know the dates then when you went down? A I went down on the 13th. Q168 So the 13th was a Monday, does that sound right? A Um - - - Q169 Or did you only ever go down for the weekends? A I went down there for like a couple of days. Q170 Did you? A (Nods) Q171 So did you miss some school to go down and spend time with dad? A (Nods)."
Attendance records from G's school were tendered. They showed that she was absent without providing any reason on Wednesday 15 February 2017, and likewise on a Friday three days before her birthday.
In closing address at trial, counsel then appearing for the applicant made it plain that time was not of the essence, that it was not necessary for the Crown to prove that counts 9 and 10 happened on 14 and 15 February 2017.
However, a deal of emphasis was given to the dates: "Mr Crown says, 'Well she's a child giving evidence about dates some time ago. Those dates might be wrong, that we really should cut her some slack because she's a child'. And ordinarily, that may well be the case because she is a child, she's only young when she's giving her evidence but what I want to say to you about those dates is that she was very firm about those dates. It wasn't a case that she backtracked from those dates, wasn't a case that she said, 'Well maybe I got that wrong', 'I'm confused now', 'Oh I can't remember', a phrase she used quite a lot in her evidence. She didn't pull back from those dates and for that reason I want to suggest to you that those dates are significant. They're significant in your consideration of her evidence. You'll remember when she was cross-examined about those dates and why she could remember or she was so sure about those dates, she said that she wrote the 14th down on a piece of paper. You know she never said that to police in her recorded evidence. Police said to her how did she remember that date and she just said, 'I'm good at remembering dates'. She didn't offer to police at that time, well I've actually written it down and that's how I remember it. It was only something that she volunteered in cross-examination. The phrase, 'I can't remember', that was something that was open to her about the 15th and the 15th not being right. She couldn't remember what was happening just before she was thrown into the table and she said that, 'I can't remember'."
Counsel then took the jury to the school records noting that no absence was recorded on 13 or 14 February. Counsel then added: "I want to suggest to you that those records don't support her assertions for those dates and the importance of those dates is her insistence on them."
In relation to counts 11 and 12, it was said that there was no opportunity for G to meet her father at any time during the period specified in the indictment, 1-25 December 2017, visits to her father having ceased by that time.
In this Court, the applicant's submission was encapsulated thus: "I acknowledge that the Crown's submissions to the jury fall into that same category that Leeming JA took me to before which is these were matters that were raised with the jury and they would have been aware of them but, again, the evidence of [G] was substantially undermined by the inconsistency of the evidence of [G] about those timings and the independent records which indicated they could not have occurred on the days where she said they had occurred to such an extent that the jury ought to have entertained a doubt about those particular counts on the indictment. I acknowledge the jury had the benefit of seeing [G] give evidence. As the learned Crown refers to in her submissions, the Crown at the trial addressed the jury about the honesty of [G] and her impressiveness as a witness; I acknowledge that. However, when regard is had to the evidence and the state of the evidence, there remains a real question about the cogency of that evidence when regard is had to the records that were there."
The Crown submitted that the school records were consistent with G attending school on 14 February, travelling to the applicant's house after school on that day and being away on 15 February. Alternatively, G who was 9 years old when she first spoke to police and 11 when she gave evidence may have been mistaken about the dates, and that it was open to the jury nonetheless to be satisfied on these counts.
Much the same submission was made in relation to counts 11 and 12. G was questioned as to the timing of count 11 as follows: "Q184 O.K. So tell me about that what was happening in the bath? A He was being rude and saying sicko stuff. Q185 O.K. So where were you, were you at the house at Cessnock? A Yes. Q186 And when did this happen, you said it was near Christmas? A Yes. Q187 So was it after your birthday or before your birthday? A Before my birthday. Q188 So you were still 8? A Yes. Q189 O.K. So Christmas so it was before, when did we just say you were born? So it was before the xxx of December? A Yes."
The following questions and answers concerned the timing of count 12: "Q374 … O.K. So can you tell me what happened with dad at Cessnock that you're scared to talk about? A Well dad touched my rude part. Q375 Your rude part? A (Nods) Q376 And was this when you were in the bath or another time? A Other time. Q377 O.K. So when did this happen when he's touched your rude part? A Four days before my birthday. Q378 Your birthday last year in --- A Yeah. Q378 --- 2017? A (Nods) Q379 O.K. So in December. And last year. A Yeah. Q380 All right. So but this is different to when you were in the bath with dad. A Yes."
The evidence did not exclude the possibility that G had seen the applicant in December 2017, in circumstances where it seemed that contact between G and the applicant was different to that of her older siblings. The absence from school on the Friday in December was consistent with the timing of counts 11 and 12, and relied on by the prosecutor in his address to the jury. Alternatively, it was said that G might have been mistaken as to the precise timing of counts 11 and 12, which might have been early in December rather than a few days before (or after) her birthday. The Crown accepted that at least in one respect G's recollection of dates (an incident which was said to have occurred "after" Christmas) was incorrect.
The respondent's written submissions also referred to the strength of this aspect of the Crown case, by reference to statements at the trial that "a child does not come to Court any more honest than was [G]" and the written and pictorial representations of the incidents which were tendered at trial. These submissions were elaborated orally.
This aspect of the appeal is narrow. The difficulties concerning G's recollection of precise dates were squarely and directly placed before the jury. The trial judge summed up on the basis that the inconsistencies concerning dates were the largest matter telling against acceptance of the Crown case on these counts.
It is true that there is an air of artificiality about the precision which G gave to the February dates. It is unusual for a child to remember a particular date, as opposed to tethering it to an event such as a holiday or a birthday or a sporting event. It is quite possible, as the defence implied at trial, that the dates were made more prominent in the review of her recollection in which G and a counsellor engaged prior to going to the police.
But it was open to the jury who saw G give evidence to conclude that she was wrong about the precise dates, but nonetheless gave reliable evidence about what the applicant did to her. The fact that G gave prominence to the dates does not detract from the entitlement of the jury to be satisfied that the events giving rise to these counts took place and that they took place during the times specified on the indictment, even though G's evidence was not reliable as to precise dates.
This aspect of the appeal is not made out.

Orders

For those reasons, while there should be a grant of leave, the appeal should be dismissed.
HAMILL J: I agree with Leeming JA that the appeal against conviction should be dismissed. I agree substantially with his Honour's reasons and can be brief in expanding upon, or in one case qualifying, the basis of my conclusion that the verdicts on counts 6-12 (with counts 7 and 8 being convictions on the relevant statutory alternatives) are neither unreasonable nor unable to be supported having regard to the evidence.
It is unnecessary to repeat the factual and evidentiary background, or the arguments advanced by the parties on each side. These matters are explained in necessary detail in Leeming JA's judgment. I gratefully adopt his Honour's summary and exposition of those things. I agree with his Honour that the applicant's submissions were "commendably focussed" and that there "is force in some of the applicant's submissions", particularly (in my view) with respect to the attack on the verdicts on counts 6, 7 and 8.
The evidence concerning the interaction of M with the police on 2 December 2017 was perhaps, with the benefit of hindsight, somewhat deficient. However, the parties agreed at the trial that the evidence could go before the jury in narrative form as part of the agreed facts. Both the jury, and this Court, must act on the evidence in the form it was tendered. The relevant part is in paragraph 12 of a document styled "AGREEMENT AS TO FACT" that became Exhibit M at the trial. The terms of paragraph 12 are set out by Leeming JA at [32] above. It is a statement of what a Senior Constable Thumpston recorded in a "COPS" entry. The statement is not in direct speech, does not purport to reproduce precisely what Mr Thumpston entered on the database and, as Leeming JA points out, "fell short of recording an agreement that what was reproduced was exhaustive." It is an agreement as to what the officer recorded, including opinions he formed at the time of his attendance. It is not an agreement of what actually happened, or exactly what was said, or who was (or who was not) intoxicated, when police attended the house on 2 December 2017.
M gave evidence about the police officer's attendance and parts of her evidence conflicted with what was recorded in the COPS entry. For example, she gave the following evidence in cross-examination: "Q. When police came did you tell the police that your dad had been hitting your brothers and sisters? A. Yes I was trying to but they said that we were being violent on the night when we weren't. Q. They said you were being violent on the night? A. Yes. Q. Did they say how you were being violent on the night? A. They said that we were drinking so we didn't know what we were doing and that we were being violent but I wasn't drinking. Q. You weren't drinking? A. No." [1]
M also gave evidence that she believed she had told police about being pushed down the stairs and that she "tried to tell them that something sexual had happened between [her and her] Dad". She agreed with the cross-examiner that "they simply, well dismissed that as well, did they?" Asked how she felt about that, M said: "I was broken and I didn't trust - I don't trust police anymore because of it." [2]
M's mother A gave similar evidence, including: "Q. Did you say anything to the police when they came about what you'd seen happen? A. Yes, we tried to tell the police. Q. Just you. A. Yep, I, I tried to tell the police, and the police would not listen at all, and then they told me that I wasn't allowed to talk anymore, and then they took [M] down the stairs and to talked to her, in the garage, by herself." [3]
Neither Mr Thumpston, nor any other police officer who attended the scene, was called at the trial.
It is impossible to know how the jury went about resolving the contradictions arising from this part of the evidence. Unlike Leeming JA, I would not proceed on the basis that the police officer was well qualified to make the observation and provide the opinion that A was abusive and moderately to well affected by intoxicating liquor. However, like Leeming JA, I have acted on the fair and responsible concession made by counsel for the respondent in argument. That is, this Court should "proceed on the basis that the COPS database did not contain a record of a complaint about being pushed down the stairs."
As Leeming JA demonstrates, the inconsistencies between the agreed facts as to what the police recorded in the COPS entry and the evidence of M and A at trial were a central part of the defence case at trial. There was significant cross-examination about the matter, a large part of counsel's address focussed the jury's attention on the issue, and the trial Judge reminded the jury of the contradictions in that part of the summing up in which his Honour summarised the competing cases.
One of the advantages enjoyed by a jury, as part of its "constitutional responsibility … to decide upon the verdict" is the advantage of seeing and hearing the witnesses in resolving issues of credibility. [4] That is a very important consideration in this case, particularly in the context of the issue which arose in respect of the COPS entry and the evidence of A and M concerning their interactions with the attending police officers. But, as the High Court made clear in Pell v The Queen, the advantages and role of the jury go beyond the fact that its members were present in the courtroom as the evidence was given: "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." [5]
As counsel for the applicant submitted, the agreed facts as to what was recorded in the COPS entry raised serious questions concerning the credibility of both the complainant (M) and her mother (A). The inconsistencies between the evidence of A and M must also be scrutinised. However, those questions must be considered against the considerations and possible explanations for the inconsistencies contemplated by Leeming JA in his judgment at [47]-[55].
Furthermore, the inconsistencies in the prosecution case regarding counts 6, 7 and 8 must be evaluated in the light of the whole of the evidence at the trial. This includes past incidents of violence and sexual abuse directed to members of the family (including M herself) and the tendency case by which the prosecution sought to establish (as it was put in the summing up) that the applicant "had a tendency to inflict physical violence on his daughters and also a tendency to have a sexual interest in his daughters." That part of the case was supported by some admitted acts of violence and the evidence of each of the complainants used in the case of the other complainants. It was a powerful part of the prosecution case informing the probability or likelihood that M's evidence as to the events giving rise to counts 6-8 was true and reliable.
A consideration of the whole of the evidence does not lead me to entertain a reasonable doubt about the applicant's guilt in relation to counts 6, 7 and 8. In the circumstances of this case, even if there was some doubt in my mind, it is a doubt that would readily be resolved by the advantages enjoyed by the jury and, in particular, its advantage in seeing the witnesses give evidence, its opportunity for collective consideration of the evidence and credibility issues, and the requirement of unanimity.
I have come to the same conclusion in relation to counts 9-12. I agree with the reasoning of the presiding Judge as to the arguments relating to the reasonableness of the verdicts on these counts. I would only add that this was not a case where time was made of the essence by virtue of the conduct of the case in the sense discussed by Gleeson CJ in R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep). [6] Nor was this a case like Hodgson v R [2022] NSWCCA 72 where the error in the evidence (whereby the complainants described the presence of a pool at a time the pool had yet to be installed) reflected a fundamental flaw in the evidence given by the prosecution's critical witnesses. [7]
Again, the issue surrounding G's evidence as to the dates was, as Leeming JA puts it "squarely and directly placed before the jury" by the parties and by the trial Judge in summing up.
The matters raised by the applicant on appeal were worthy of serious consideration and I agree that leave to appeal should be granted. However, for the reasons given by Leeming JA, augmented by what I have written above, the appeal should be dismissed.
IERACE J: I also agree with Leeming JA and the observations of Hamill J in respect of counts 6, 7 and 8.

Endnotes

Trial Tcpt, 23 July 2020, p 137.26-39.
Trial Tcpt, 23 July 2020, p 130.33.
Trial Tcpt, 23 July 2020, p 180.6-12.
Chidiac v The Queen (1991) 171 CLR 432 at 443; [1991] HCA 4 (Mason CJ).
Pell v The Queen (2020) 268 CLR 123 at [37]; [2020] HCA 12.
See also R v Westerman (1991) 55 A Crim R 353, R v Cawthray v R [2013] NSWCCA 105.
Hodgson v R [2022] NSWCCA 105 at [78], [80], [82] (Leeming JA). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2022

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