181 CLR 48
MFA v The Queen [2002] HCA 53213 CLR 606
SKA v The Queen [2011] HCA 13
Judgment (3 paragraphs)
[1]
Solicitors:
AKN & Associates - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2012/257690
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 19 September 2013
Before: Bennett SC DCJ
File Number(s): 2012/257690
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
On 11 September 2013 the applicant stood trial before his Honour Bennett SC DCJ and a jury on an indictment containing two counts:
1. Sexual intercourse with a person under 16 (namely 12 years) knowing she was not consenting contrary to the Crimes Act 1900, s61J(1).
2. Sexual intercourse with a person aged between 10 and 14 years (namely 12 years) contrary to s66C(1) Crimes Act 1900 (NSW).
The second count was in the alternative to the first count.
The applicant pleaded not guilty to both counts. The trial continued until 17 September 2013 when the jury retired. On the afternoon of 19 September 2013 the jury returned a verdict of guilty in relation to the first count.
On 14 February 2014 the applicant was sentenced by Bennett DCJ to imprisonment with a non-parole period of 3 years commencing 25 January 2014 and expiring 24 January 2017 with a balance of term of 2 years to expire on 24 January 2019.
The applicant seeks leave to appeal against conviction. There is no application for leave to appeal against sentence.
The grounds of appeal are:
Ground 1 - Having regard to the evidence the verdict of guilty is unreasonable and cannot be supported.
Ground 2 - The failure to edit out Q/A 633 from the [applicant's] record of interview which was played to the jury caused a miscarriage of justice.
CROWN AND DEFENCE CASE
The Crown case was that the applicant was the uncle of the complainant who was aged 12 at the time of the offence. He was living in the same premises as the complainant in Bankstown on the evening of Wednesday, 15 August 2012. The Crown alleged that he entered the complainant's bedroom, lay next to her and penetrated her anus with his penis.
The applicant did not give evidence at trial but was interviewed by the police. His ERISP was before the jury. He did not call any witnesses. He denied committing the offence and said that he was either at the mosque for Ramadan during that night or at home but having a shower while T (whom the complainant referred to as a grandmother) was there. The applicant relied upon the cross-examination of the witnesses called for the Crown and his ERISP.
Evidence at trial
On 16 August 2012 the complainant was attending Bankstown Primary School. She had arrived in Australia from Sierra Leone in 2006 with members of her family. She lived at XXXX, Bankstown with T, her aunt R (whom she referred to as her sister), the applicant who was also R's boyfriend and R's three year old son. The complainant's sister, F and F's friend, N, had moved out of the house on 15 July 2012. R was in Africa when the offence took place.
The Deputy Principal of the Bankstown Primary School was Ms Janet Byrne. She was aware that the complainant required additional support in terms of learning and other things. She had developed a trusting relationship with the complainant. On 16 August 2012 at about 11 - 11.30am, Ms Byrne was advised that two women and a baby were at the school to see the complainant. It is common ground that the two women were F and her friend N. The baby belonged to N.
The women had apparently not seen the complainant since they left the house. When they saw the complainant, they hugged and were talking. Ms Byrne remained throughout the conversation.
The two women and the complainant spoke loudly in a language which Ms Byrne did not understand. In the course of their conversation, their voices became raised and high-pitched. Ms Byrne thought that she heard the words "hitting" or "bashing" in the course of the conversation. Later, she heard one of the women say in English "it's sexual abuse". When she heard this, Ms Byrne asked the two women to leave and told them that she would take the complainant with her and speak to her.
Ms Byrne took the complainant to her office but because it was lunchtime, did not ask her any questions at that time but allowed her to join the other children. After lunch Ms Byrne spoke to the complainant again but the complainant was reluctant to say very much. She was described by Ms Byrne as "she was really shutting down and not wanting to engage in conversation". Ms Byrne persisted and her evidence as to what then happened was:
"… I again was getting very little response from her. I said to her, "Is your uncle kind to you?" and she made a comment to me that he had come I said we also needed to talk about what N had said, the comment about sexual abuse, and that I really needed to know that she was safe. I kept coming back to that. That that was my job, that I needed to know that she was safe. When we spoke about - when I said to her I needed to know about the sexual abuse comment, I asked her if she knew what that meant and no response from her. I then asked her if her uncle was kind to her and she responded by saying, "He came into my bedroom last night.""
Q. Did she say anything else in relation to that?
A. She did go on to say I asked her. I said, "Were you sleeping?" and she said, "Yes." I said, "Was the light on or the light off?" and she said, "The light was on. I asked her what happened when her uncle came into the bedroom. She said, "He took the blanket off me." And I said, "So your uncle came in. You were sleeping. Your uncle came in and he took the blanket off you?" And she said, "Yes." And I said, "Can you tell me what happened then?" and she shut down again. She would not respond.
Q. During the time that you were talking to her up until this point, how was her demeanour?
A. Sad. I would - I would say a little frightened, unsure, very reserved. She was sitting next to me at some stages and other times we were sitting at a round table sitting together at that and other times on two lounge chairs that were in my office. She just she found it very difficult to make eye contact." (T.148.40 - 149.15)
Ms Byrne was unsuccessful in getting any further information from the complainant whom she allowed to take a further break and play with the other children. The school had an afternoon break from 1.15 to 2pm. Ms Byrne resumed speaking to the complainant at 2pm but was unsuccessful in obtaining any further information from her until she suggested that it might be easier for the complainant to draw a picture or write something.
"Q. And what was her response, if anything?
A. Quiet. Didn't say anything. I said, "Are you worried about your writing? She said nothing. I said, "You don't have to worry about your spelling or your writing. I just want you to try and write down and tell me what happened after that." And I indicated a piece of paper, sat it on the table and she sat there and wrote on that piece of paper.
…
Q. Is that the paper that she wrote on?
A. Yes.
Q. In terms of that document, can you tell me what she wrote, if anything, in your presence?
A. She wrote, "He did it with me."
Q. Yes.
A. "He had six with me."
Q. … When she wrote, "He had sex with me," did she write that at the same time?
A. No." (T.150.3 - .25)
Ms Byrne said that when the complainant made the comment "he did it with me" it was right on bell time, so she allowed the complainant to go home. In cross-examination she agreed that although it was her recollection that it was the complainant who wrote "he did it with me", it was possible that the complainant had told her that and that she [Ms Byrne] had written those words on the paper. Ms Byrne said that when the complainant wrote the words "he did it with me" she would not make eye contact with her.
The following day, 17 August 2012, Ms Byrne spoke to the complainant when she came to school. Her evidence was:
"Q. When you spoke to [the complainant], can you tell me what she said and what you said?
A. I just asked her if she was okay. She didn't respond. I said I would like her to come with me so we could try to write a little bit more from yesterday.
Q. Yes.
A. Which she was very willing to do. We took up the piece of paper and she continued to write on that and that was that second part that we mentioned before.
Q. Can you just clarify what do you say is the second part that she wrote?
A. "He had six with me."
Q. When you say, "sex" you mean the S-I-X.
A. Yes.
…
Q. When she wrote that, do you recall how her demeanour was?
A. The same as it had been. Very - very sad and not making the eye contact." (T.152.5 - .29)
Thereafter, Ms Byrne contacted the relevant authorities. Two female police officers from the Bankstown Joint Investigation Response Team (JIRT) attended the school. They collected the piece of paper that the complainant had written on. The piece of paper was subsequently marked MFI 3. It is clear that there is other material written on that piece of paper. This was subsequently explained by the complainant in her statement and in her evidence at trial. Ms Byrne said that the rest of what is contained in document MFI 3 was not written in her presence.
N gave evidence. She was then aged 19. She gave evidence without an interpreter. She had arrived in Australia in 2007 from Sierra Leone and after a time, moved into the house at Bankstown. She gave birth to her child in 2011 and ceased residing in those premises on 25 July 2012. This was at the same time that her friend and the complainant's sister, F, also moved out.
She had problems in the house with T and with the applicant. There were money problems with an allegation by the applicant that she was not paying her way. She had a good relationship with the complainant whom she would see every day. She was attending a school which was close to the complainant's school. After she left the house, she did not see the complainant again until she and F visited her at her school on 16 August.
She said that when she saw the complainant at school, she was upset because the complainant looked really messy. She said that F was upset as well and that the complainant burst into tears when she saw them and that they were all emotional. They were speaking to each other in the Krio language. The complainant told them that she was still having problems with "grandma" (T), she was not eating enough food and that she had to clean and wash the dishes before she was allowed to go to school in the mornings. The complainant said that she did not want to live there anymore but wanted to live with her and F. When initially asked about what she was told by the complainant, N said "Do I have to talk about it?" and was allowed to take a short break (T.61.45).
When she returned to court, her evidence was:
"Q. Can you tell me what she said about that?
A. She told me that she was sleeping in the room. And [the applicant] went to the room, and took off her pants, and hold her mouth.
Q. When she said this to you, do you recall who was there, when she was saying this to you?
A. Yeah, she say that - I ask her for how long, she said not for long, cause Grandma was coming from her room, she say, and [the applicant] run to his room back." (T.65.31)
These words were spoken by the complainant to her in Krio and at the time the complainant was very emotional and sad.
N's evidence continued:
"Q. When she told you this, did you say anything to her, or not?
A. The only thing I said to her, I said for how long, and she said not for that long.
Q. Did she say anything about what had happened in the room?
A. Yes, she did.
Q. What had happened?
A. She told me that she was sleeping, and Uncle [the applicant] to her room.
Q. Sorry?
A. She told me she was sleeping, and [the applicant] to her room, and she say that he took off her underwear, and hold her mouth. She told me that she wanted to scream, she say that [the applicant] say if she scream, if R come back to - from Africa, she will - he will tell her that she was doing bad stuff.
Q. Did she provide any further details about what happened in that room?
A. Yeah. She said [the applicant's] on top of her.
Q. Did she say anything else?
A. No, after that she just paused and start crying." (T.66.1 - .22)
When asked what she told the principal, N said:
"A. Yeah, I said to the principal that [the complainant] just explained to us that she is suffering in the house, there's no food to eat and she has been sexual abuse in the house." (T.66.40)
N was cross-examined to the effect that she and F had talked about the complainant making a complaint about being sexually abused as they were walking towards the school. It is necessary to set out the questions and answers in relation to this issue since both the Crown and the applicant placed reliance upon them.
"Q. Did you and F talk about the fact that if [the complainant] complained about sexual abuse, that she wouldn't be able to go back to that house, and she'd have to come and live with you?
A. Yeah.
Q. Did you talk about that on the way to the school?
A. Yeah.
Q. Did you and F talk about telling [the complainant] that she should complain about being sexually abused, so that she could come and live with the both of you?
A. Yeah, we told her that she should tell the principal about it, if it happens again.
Q. Is that something that you and F talked about before you even got to the school?
A. Yeah.
Q. So you already had a plan about what you wanted [the complainant] to say to the principal, before you even got to the school?
A. Not for her like, to say something like, because she explain it to us, and we told her that if it happens again, she needs to tell the principal.
Q. I want to suggest to you, Ms N, that you and F went there with the very specific plan of having [the complainant] complain about sexual abuse, so that she could come and live with you and F. Do you agree or disagree with that?
A. Yes, I agree.
Q. You went to the police station on the Friday, when they called you, is that right?
A. Yeah.
Q. And later on, you made a statement to the police, didn't you?
A. Yeah.
Q. It wasn't on that day though, was it, a couple of days later?
A. Yeah.
Q. And when you spoke to the police, you told them what [the complainant] had told you, didn't you?
A. Yeah.
Q. You told them that one of the things that [the complainant] had said, was that she was screaming a little sound?
A. Yeah.
Q. Because she was being hurt?
A. Yeah.
Q. Is that what she told you?
A. Yeah, that's what she told me.
Q. And she told you that she thought that Grandma had heard, and came to the door?
A. Yeah.
Q. And that's when [the applicant] ran out?
A. Yeah.
…
Q. You were suggesting to her, by the questions that you were asking her, that she should make some complaints about Grandma and [the applicant], weren't you?
A. No, cause she explained the story to us, before I told her that she need to complain about it." (T.75.17 - 76.49)
F gave evidence at trial with the assistance of a Krio interpreter. She was aged 23 when she gave evidence. She had come to Australia in 2006 from Sierra Leone. She had come to Australia with her stepmother, T. The complainant was her little sister. After arriving in Australia, she had moved with T and the complainant to the premises at Bankstown and had shared a room with the complainant until she [F] left on 25 July 2012. At some time before she left the house, the applicant had moved in.
She said that she had gone to the school to see the complainant on 16 August 2012. When she first saw the complainant she was upset because of how untidy the complainant was and she started to cry. She had difficulty talking about what she had been told by the complainant. Her evidence on that issue was:
"Q. What did she say?
A. She said yesterday night [the applicant] went to the room and took off her pants, her undies, and when she tried to scream, he put his hand over her mouth and try to scream, I'm going to tell my - your elder sister. That's R.
Q. You are speaking a bit fast. Okay? So just take a bit of a break. You said that she said to you that [the applicant] came into her room last night.
A. Yes.
Q. Can you just repeat what she said after that point?
A. She said he - he take off her undies.
Q. Just go slowly.
A. He take off her undies and when she tried to scream he covers her mouth and told her, "If you scream, I'm going to tell your elder sister." That's R.
Q. When she said this to you, how did she appear to you?
A. It appear like she is saying the truth because you can tell from her eyes -
…
Q. Was she happy when she was saying it, was she sad?
A. No, she was crying.
Q. When she was saying this to you, you said she was crying. Was she crying throughout?
A. Not loud cry. Like when you speaking, the tears run through
your eyes." (T.87.9 - .50)
F was cross-examined along the same lines as N:
"Q. You and N wanted [the complainant] to come and live with you, didn't you?
A. Yeah.
Q. And that's something that you talk about on the way to the school when you were going to visit her?
A. No. We are talking about different things.
…
Q. You had a conversation with N about what [the complainant] would have to say to be able to get away from TK and [the applicant]?
A. No.
Q. You thought that if [the complainant] complained about being sexually abused in the house, that she would have to leave there, didn't you?
A. No.
Q. You didn't think that?
A. No.
Q. Talk to N about that?
A. No.
Q. Did you tell [the complainant] that if she made such a complaint, that she would be able to come and live with you?
A. No." (T.92.18 - 93.13)
After the matter had been reported, the complainant was interviewed on the afternoon of 17 August 2012 by a Department of Community Services employee, Ms Megan Payne, and was remotely supervised by Senior Constable Julie Neagle. The complainant was aged 12 at the time and the interview took place two days after the offence. The interview was videotaped and shown to the jury. No interpreter was used.
The following questions and answers are material to the appeal:
"Q50 How does he harass you?
A Like, he goes into my bedroom, he meets me, like, putting my school
uniform on, and he doesn't knock on the door, so he just barge in.
Q51 He barges in when you're putting your school uniform on.
A Yeah.
Q52 Is there anything else?
A No.
Q53 Are you sure?
A Yeah.
Q54 Is this a hard question to talk about?
A Yeah.
Q55 Can you tell me about it?
A No.
Q56 What can I do to make you feel that you can talk to me about it?
A I don't know.
Q57 … O.K. So, tell me what you've come to talk to me about.
A Um, about my problems, how to solve it.
…
Q91 Yeah. Tell me something else you don't like about [the applicant].
A He, he barge into my room.
Q92 Barge into your room. What does he do when he barges into your
room?
A He start talking weird.
Q93 Like, what does he talk about?
A He says that, "Next time when you're dressing up, close your door,
and close your window", something like that, and, I was like, "Yeah, I
closed my window and my door and you just barge in my room for just
no reason."
Q94 Yeah. How often does he do that?
A Like, nearly the whole day.
Q95 Yeah. Like, everyday, some day?
A Some day he does.
…
Q117 O.K. O.K. All right. I've got, I'm just going to get Julie to, to pass me
in something that we got from your school today. O.K. Thank you
very much. O.K. What, what can you tell me, what this is?
A It's my uncle's, he's been doing stuff, they're rude, not nice.
Q118 Your uncle's been doing rude, not nice. What's, what's your uncle's
name?
A J****.
Q119 Oh, it's J*****. O.K. Did you write this letter?
A (NO AUDIBLE REPLY)
Q120 [08.01] O.K. When did you write that?
A Yesterday.
Q121 You wrote, you wrote it yesterday. Where did you write it?
A In Mrs Brynes office.
Q122 In Mrs Brynes, who's Mrs Brynes?
A Our principal.
Q123 Yeah.
A principal.
Q124 O.K. All right. Would you be able to read this letter for me?
A Not sure.
Q125 O.K. Can you try, if I give it to you? O.K.
A I can't.
Q126 Is it O.K. if I read it, what, what you wrote? And, if I've got anything
wrong, will you let me know?
A (NO AUDIBLE REPLY)
Q127 O.K. O.K. You said, "He had sex with me." And said, "If you say
anything to", what's this word?
A To you, TK.
Q128 "To TK, I am going to tell R."
A R, when she comes back.
Q129 "When she comes out of the room."
A When she comes back from her holiday.
Q130 Oh, O.K. And, "He runs to his room." Who runs to their
room?
A Um, [the applicant] ran back to his room …
Q131 Yeah.
A … when my grandma came outside to go and use the bathroom.
And, he suddenly ran, and I was sleep, and I just heard a, my door
just shut, and when I moved he started, like, running away when he
heard the door from my grandma's room, he ran straight away to his
room and pretended nothing happened.
Q132 Yeah. And, what does this say? "He took my", what's this word?
A He took my blanket off.
Q133 "He took my blanket off and said, I'm putting my'", my what?
A I can't explain it.
Q134 And said, "I love your sister R." O.K. Is it O.K. if you put your, if
you use this blue pen and sign your name on here, and I will sign my
name? …
Q135 Yeah. And, if you can write your name too, thank you. So, I'm just going to ask you some more questions about what you wrote on here.
O.K. So, what do you mean by, "He had sex with me"? What, what
does that mean, in your words? What did he do?
A It's hard to explain it.
Q136 O.K. Can you try and use your words? Like, where were you when
this happened?
A I was sleeping, and …
Q137 You were sleeping where?
A In my bedroom.
…
Q141 Yeah. You were sleeping in your bedroom. When was this?
A Um, um, yesterday night.
Q143 And, what happened?
A I was in my bedroom when my uncle came inside, and I was asleep.
Q144 And, what happened next?
A And, he took my blanket off.
Q145 What happened next?
A And he whispered in my ears that, "I love my, your sister, R."
Q146 Is it O.K. if you just sit a little bit closer, just so Julie can hear you?
So, you just said he whispered in your ear, "I love your sister R." What happened next?
A Then he heard the door in my grandma's room.
Q147 And, what happened next?
A Then he ran straight away to his bedroom and act like nothing
happened.
Q148 O.K. After he took your blanket off, what happened?
A It's hard to explain it.
Q149 Yeah. Can you try and use your words as best you can? So, where
were you when he took the blanket off?
A I was asleep.
Q150 You were asleep.
A Yeah.
Q151 O.K. And he whispered, "I love your sister." What did he do next, or,
what happened next?
A I can't explain it.
Q152 O.K. Where was your uncle when he whispered in your ear?
A In my bedroom.
Q153 Whereabouts in your bedroom?
A He was sitting on my bed.
…
Q160 O.K. So, tell me about more, tell me more about when your
uncle was sitting on the bed?
A He's whispered in my ears.
Q161 Yeah.
A And then he took my blanket off.
Q162 Yes. And, what happened next?
A Then he lied on my bed.
Q163 Yeah. And, what happened next?
A It's hard to explain it.
Q164 So, he lied on your bed.
A Yes.
Q165 O.K. What did he do next?
A It's too hard to explain it.
Q166 Yeah. You can use whatever words you like. O.K. If you need to
swear, you can swear, if you, any language that you want to say it in,
you can tell me, O.K. Because, I don't want you to feel scared or
worried, I just want you to be able to talk to me. O.K. So, he lied on
your bed next to you. What happened next?
A It's too hard to explain it.
…
Q189 Yeah. And, you told me he was laying next to you. How were you
laying on the bed? Were you, can you tell me, describe how you
were positioned?
A My back was turned to, towards the wall.
Q190 Yes.
A And, I fell asleep.
Q191 Yes. And, what about when your uncle lied next to you. Where was
he?
A He was back of me.
Q192 Behind you. Yeah. And, tell me more about that.
A It's too hard to explain.
Q193 What was he doing when he was behind you?
A He whispered.
Q194 He whispered. And, what did he say?
A He said that, "I love your sister so much, but she's rude, and she
doesn't like me."
Q195 Yeah. And, what did you say?
A At that time I was asleep.
Q196 Yeah. Then what happened next?
A He heard the door on my grandma's room.
Q197 Yeah.
A And ran out of my room.
Q198 Yeah.
A And, he slammed the door.
Q199 O.K. But, before that, when your uncle was on the bed and you're,
you were laying, um, down, and he was laying down, what was he
doing with his body?
A He was moving his body.
Q200 How was he moving his body?
A He was turning around.
Q201 Yeah. Tell me more about that. Could you feel anything?
A Yeah.
Q202 What could you feel?
A His hand.
Q203 And, where was his hand?
A On my face.
Q204 On your face. And, what was he doing with his hand on your face?
A (NO AUDIBLE REPLY)
Q205 Whereabouts was his hand on your face?
A On my eye.
Q206 On your eye. And, what was he doing with the rest of his body?
A I don't know.
Q207 Where was his body?
A His foot was on my foot.
Q208 Yes. And, where was the rest of his body?
A On my back.
Q209 The rest of his body was on your back.
A Yeah.
Q210 What could you feel?
A His back.
Q211 And, what else could you feel?
A His foot.
Q212 Yeah. Anything else?
A (NO AUDIBLE REPLY)
Q213 And, what was he doing when his, his body was on your back?
A He was doing something.
Q214 Yeah. Doing something where? Was your, your uncle's clothes on,
off or something else?
A His clothes was off.
Q215 His clothes were off. How did he get his clothes off?
A I don't know.
Q216 Yeah. And, were your clothes on, off or something else?
A On.
Q217 Your clothes were on.
A Yeah.
Q218 But his clothes were off. Where did he put his clothes?
A On the floor.
Q219 On the floor. And, what could you see?
A His face.
Q220 Yeah. What else could you see?
A His chest.
Q221 His what, sorry?
A Chest.
Q222 His chest. And, anything else?
A (NO AUDIBLE REPLY)
Q223 And, what could you feel?
A His hand.
Q224 Yeah. And, where was his hand?
A On my eye.
…
Q251 O.K. Can you tell me, when you wrote this letter, or, when, can you
tell me more about what you mean with, "He had sex with me"? What
did he do to have sex with you?
A Can I write it down?
Q252 Can you, yes, you can write it down, I'll get you another bit of paper.
Are you O.K.? Can I read that out? "He took, he took my" …
A Undies.
Q253 Undies, off you. "He took my undies", so, can I just write, just fix the
spelling underneath, "He took my undies", off you. How did he take
his undies off you?
A He took my school uniform pants off.
Q254 School uniform and pants off. What did he use to take them off?
A His hand.
Q255 Yeah. And, what happened next?
A
Q256 What did he do after he took his, your undies off you? Do you want to
write it again? He put his what on you? What's the word?
A I don't know.
Q257 Is it part of his body? I've got a picture here that may, or may not be
of, this is a picture of a boy, that's the front of the boy and that's the back of the boy. Can you mark on here which part of his body he put on you? O.K. Do you have a name for that part of your body? Do you have a name in your culture that you use for that?
A (NO AUDIBLE REPLY)
Q258 O.K. What can, what does, what can your uncle use that part of his
body for? Could he use it to go to the toilet?
A (NO AUDIBLE REPLY)
Q259 Yeah. O.K. All right. So, you don't have a name for that? Have you
ever heard a name for that?
A (NO AUDIBLE REPLY)
Q260 No. So, you never, you don't use any name for this part of
the body?
A (NO AUDIBLE REPLY)
Q261 O.K. So, we can call that, you've, you've written there, "Blank", so, he
put his blank on you, we'll call it blank. What did he do with that?
A (NO AUDIBLE REPLY)
Q262 Whereabouts on your body was his blank? On your back. Yeah. I've
got a picture of a girl. So, that's the front of the girl, and that's the back of the girl. Can you show me where he put his blank on your back? O.K. What do you use this part of your body for?
A To go to the toilet.
Q263 Yeah. And, to do what on the toilet?
A To use the bathroom.
Q264 Yeah. Is it to do wees or poos or something else?
A To do poo.
Q265 O.K. So, he put his blank on your, you don't have a name for this part
of your body? You can use any word you like.
A On my bum.
Q266 On your bum. O.K. So, tell me more about how he put his blank on
your bum. What could you feel?
A Nothing.
Q267 You couldn't feel anything. Well, how do you know it was his blank on
your bum?
A Because he was moving the bed.
Q268 He was moving the bed. And, tell me, was it outside your bum, inside
your bum or something else?
A Inside my bum.
Q269 Inside your bum. And, how did it feel?
A Bad.
Q270 Bad. And, what happened to make him stop?
A When he heard the door.
Q271 When he heard the door. And, did he say anything when his blank,
blank was in your bum?
A He just whispered in my ears.
Q272 He just whispered in, and, what did he whisper?
A He says that, "I believe you, everything you say."
Q273 Yeah. And, has anything like this happened before with your uncle?
A Uh-huh.
Q274 No. And, how did it make you feel when he did this?
A Not safe.
Q275 Not safe. And, have you told anyone about it?
A I only told my sister.
Q276 Your sister. Who's your sister?
A F."
When the complainant gave evidence at trial she was aged 13. She did not use an interpreter. When asked how long the "blank" was inside her bottom, she was unable to remember. She said that she preferred to continue using the word "blank". She said that when the applicant entered her room, the light was still on. She was on her side, facing the wall, with her knees bent up to her chest. The applicant's body was pressed against her back and she was scared.
Apart from the clarification of those issues, the complainant's evidence in chief was what was set out in her videotaped statement.
Under cross-examination the complainant said:
"A. When he finished, I turned around. That's when I saw him." (T.26.39)
She denied that F had told her to say certain things in order to be able to get out of the house. Her evidence was:
"Q. Did F tell you that you need to say certain things to be able to get out of that house?
A. No, she didn't.
…
Q. Were you embarrassed about having this conversation in front of Mrs Byrne?
A. Yes, I was, a little.
Q. Was it the case, Ms XXX, that it was F and N who suggested that you should say you'd been sexually assaulted?
A. Yes.
Q. You didn't tell them that you had been sexually assaulted, did you?
A. Yes, I did." (T.30.19 - .48)
The complainant gave evidence as to what happened to her clothes:
"Q. How did those clothes come off you, when your uncle was in the room?
A. I don't know.
Q. Did you take them off?
A. No.
Q. What clothes came off you?
A. None. None came off me.
Q. So you had your clothes on, the whole time your uncle was in the room, is that right?
A. Yes.
Q. Didn't you tell Meg, in the interview, that you uncle took
A. Yes, I -
Q. - your clothes off you?
A. Yes.
Q. And are you saying to me that that's not true?
A. Yes, it is true.
Q. Well, you told me just a moment ago, and I just want to clarify, that you had all of your clothes on?
A. Yes, I did.
Q. At some stage did those clothes come off?
A. Yes.
Q. How did they come off?
A. I don't know.
Q. You didn't take them off, did you?
A. No.
Q. Who took them off?
A. [The applicant]
Q. Did you see him take those clothes off?
A. No, because I was asleep.
Q. How do you know that he took them off then?
A. I was asleep that time.
Q. Would it be fair to say, Ms XXXX, that you really don't know what happened this particular evening?
A. I do know what happened.
Q. You certainly don't know how your clothes came off, do you?
A. No, because I was asleep.
Q. Were you having a dream, were you?
A. No.
Q. Were you having a dream that [the applicant] did these things to you, were you?
A. No.
Q. What clothes came off you?
A. My pants.
Q. Are we talking about tracksuit pants, or underpants?
A. My tracksuit pants and my underpants.
Q. What about your boots?
A. My boots was on.
Q. They stayed on, did they?
A. Yes." (T.31.31 - T.32.49)
The complainant's evidence that she was asleep was vigorously challenged as follows:
"Q. What you say is that the reason you can't say that is because you were asleep?
A. Yes.
Q. Is it correct, Ms XXXX, that you're saying you're asleep as an excuse for the fact that you can't give us any detail about this incident?
A. I can't understand you.
Q. Okay. You're saying you were asleep as an excuse because you can't answer the questions. Do you agree or disagree with that?
A. I disagree.
Q. You told Meg that your uncle had his hand on your eye. Is that right?
A. Yes. Yes.
Q. Where you asleep while that was happening too?
A. Yes.
Q. So how do you know he had his hand on your eye?
A. Because I can feel his hand on my eye.
Q. But you're asleep.
A. Yes. I was asleep.
Q. When you say you were asleep, do you just mean you had your eyes closed or do you mean you were actually sleeping?
A. I was actually sleeping.
Q. I want to suggest to you, Ms XXXX, that if you were actually sleeping you wouldn't have known what was happening, would you?
A. I can't understand you.
Q. When you go to sleep at night, you don't know what's happening in the room around you, do you?
A. Yes, I do.
Q. Do you mean when you've got your eyes closed or when you're asleep?
A. When I'm asleep.
Q. You know there's a difference between just having your eyes closed and being asleep, don't you?
A. Yes.
Q. So you're not confused about what I mean when I say, well, did you just have your eyes closed or were you asleep? You're not confused about that,
are you?
A. No.
Q. Well, I want to suggest to you, Ms XXXX, that either you were awake and you knew what was happening or you were asleep and you had no idea. Which one of those applies?
A. I can't understand you.
Q. You accept, don't you, that in order to know what was happening in the room, you had to be awake?
A. Yes, I know that.
Q. What you've been telling me is that you were asleep, haven't you?
A. Yes, I yes.
Q. You'd accept that if you were asleep you can't have known what was happening, could you?
A. Yes, I could.
Q. How?
A. I can't explain it.
Q. Try.
A. I can't.
Q. How was it, if you were asleep, you knew your uncle had his hand on your eye?
A. Because when you cover your eyes you can feel your own hand touching your face.
Q. You agree with me that to do that you would have to awake, yes?
A. No.
Q. No?
A. No?
Q. You do that in your sleep, do you?
A. Yes.
Q. You know that you've done that. Is that right?
A. No, I don't have an idea.
Q. You accept that you have no idea if something happens to you when you're asleep?
A. Yeah.
Q. You accept, don't you, Ms XXXX, that you have no idea about these incidents that you say took place, because you were asleep?
A. I can't understand you.
…
Q. How was it that you knew what time it was when your uncle came into your room?
A. Because when I went before I went to sleep, I checked the time.
Q. How long after you went to sleep did your uncle come in?
A. I can't remember that.
Q. Was it a short time or a long time?
A. A long time.
Q. You told us, when you were asked questions by the Crown Prosecutor before, that after your uncle left your room you brought your knees up to your chest. Is that right?
A. Yes.
Q. What happened to your clothes?
A. I can't remember that.
Q. Did you do anything about your clothes?
A. No, because I was asleep.
Q. So you were still asleep?
A. Yes.
Q. You stayed asleep during the whole time your uncle was in your room; is that right?
A. Yes.
Q. Didn't you tell Meg that when your uncle was in your room, he said things like, "I love your sister, R". That's what you told Meg, wasn't it?
A. Yes.
Q. Were you asleep when he said that?
A. Yes. I was.
Q. How is it that you remember what he said if you were asleep?
A. I remember everything what - what happened.
Q. I want to suggest to you that it is impossible for you to know what was being said if you were asleep at the time; do you agree or disagree with that?
A. I disagree with that." (T.37.7 - 40.37)
The issue was raised again:
"Q. F and N told you that you had to say things about your uncle to be able to move out with them?
A. No. They didn't tell me that.
…
Q. It's all mixed up because you're not telling the truth, isn't it?
A. No.
Q. You're saying you're asleep because you simply don't know what else to say. That's right, isn't it?
A. No.
Q. You told Meg in the interview that your uncle whispered, "I believe you, everything you say". That's what you told Meg, isn't it?
A. Yes.
Q. That's what you wanted your uncle to say to you, isn't it?
A. Yes. I wanted him to say that.
Q. You wanted to hear him say that he believed you, didn't you?
A. Yes.
Q. Because he never did, did he?
A. Yes.
Q. You thought that if your uncle would just believe you, that would solve some of your problems at home, wouldn't it?
A. Yes.
Q. And that's the reason you were talking to Meg, wasn't it, to solve your problems at home?
A. Yes.
Q. I'm going to suggest to you, Ms XXXX, that at no stage did your uncle put any part of his body on your back; do you agree with that or disagree?
A. I don't understand what you just said.
Q. What I'm saying to you is that at no time did your uncle put any part of his body on yours in your bed; do you agree with that or disagree?
A. I disagree.
Q. I want to suggest to you that he did not at any time put his penis in your bottom; do you agree or disagree with that?
A. I disagree.
Q. Do you know what a penis is, Ms XXXX?
A. Yes. I do.
Q. I want to suggest to you that you are continuing to say this story because it has gone so far; do you agree or disagree with that?
A. I couldn't understand you, what you just said.
Q. All right. You are continuing to say that your uncle abused you because you feel like you have to say it?
A. Yes. I have to get it out of my head.
Q. Even though it's not true, is it?
A. It is true." (T.41.17 - 42.31)
Fn was the sister to T. She gave evidence that in August 2010 she and the applicant went to the mosque together for Ramadan every day. She said they would go between 7.30pm and 8.30pm. She said that on 15 August 2012 she and the applicant went to the Punchbowl Mosque. He probably arrived at her house about 7.15pm. They finished at the mosque at about 8.30pm and walked back to her house. The applicant did not come in.
The following day she and T, the applicant and the complainant went to the airport to pick up R. She said the complainant appeared normal and did not appear to be upset.
M was the son of T and the half brother of the complainant. On 17 August 2012 he arrived at T's house at 9.50pm. He had earlier received some messages in relation to the applicant having raped the complainant. He asked the applicant what had happened. The applicant cried and swore by the Ramadam month that he "is not going to be one of the people to do such an act against that young girl".
Only a minute or two after the conversation, M heard knocking at the front door. The persons at the door announced themselves at police officers. M and T went to the door while the applicant remained in the lounge room. The police had a search warrant and entered the house. M looked for the applicant but he could not find him. Within half an hour M telephoned the applicant and told him that the police had been there and that he was wanted by them. He advised the applicant to come home because the police wanted to speak to him. The applicant replied "yes".
Dr Alanah Houston gave evidence. On 17 August 2012 she was the Medical Co-ordinator at the Liverpool Sexual Assault Service. She was in charge of the physical examination of persons reporting to the Service, including making observations in the Sexual Assault Unit of certain matters on their bodies.
At about 6.30pm on the evening of 17 August 2012 Dr Houston examined the complainant. She understood that there was an allegation that she had been sexually assaulted by her uncle on 15 August 2012. She was told by the police that there was a suggestion of anal penetration.
She said that she deliberately did not take a history from the complainant. When the complainant was asked to demonstrate her position in bed, she lay on her side with her knees pulled up.
Dr Houston when she examined the complainant was looking for signs of constipation. She could not find any. When she examined the complainant's stomach, she found it to be very soft and that she was not constipated. The complainant told her that she had defecated since the assault and gone to the toilet on a number of occasions and had passed faeces.
When Dr Houston examined the complainant's anus and perianal area, she observed that the complainant had some soft faeces which was consistent with her not being constipated.
Dr Houston when examining the anus found two healing fissures at 5 and 7 o'clock.
Dr Houston gave the following evidence:
"… So the function of the anus is - is to open and close at appropriate times. It's - it allows quite large motions to come through, from the inside, without - without usually without any tearing or bleeding; and so equally it can allow large diameter things to go in from the outside, often without any damage or any tearing. So, that's the function of - of the anus, to dilate up, and close down. In this case, this girl did actually have some injuries.
Q. Yes, can you just tell me what those injuries were, and describe it by using that item, if you don't mind?
A. Yes, she had an anal fissure, which is a split, in in the skin, and can it can go right down to the muscles, so it was it comes out from the centre of the anus, like a radius. So it would have been a split, going down, and going up into the anus, so it would have been going further inside, all the way in. And she had two of them, and when you're trying to describe injuries to the anus, you tend to regard it as - as a clock face, with 12 o'clock at the front, and 6 o'clock there, so the five and the seven really represent two that are closest together. It's just it's just to denote the position where they are.
Q. In relation to these fissures, or the split you've referred to, when you observed them, are you able to say when those fissures or splits had occurred?
A. I would have said within - within the previous few days, because these heal very quickly. And the fact that I was seeing them, meant that I think - they, I supposed the oldest they could have been was about four or five days." (T.162.46 - 163.20)
"Q. When injuries are caused on the anus, from passing faeces, is that as a result of the person being constipated?
A. Yes, if they were very constipated and had very hard motions coming
through, that could over distend the anus, beyond what it can cope with, and then there could, there could be injuries.
Q. When you examined the complainant, are you saying that there was no signs of constipation?
A. No, her tummy was nice and flat and soft, so when I was feeling around, there was nothing hard in there trying to get out. And also, she had soft faeces around the outside, which I cleaned away, so she wasn't a constipated child when I saw her.
Q. In terms of these two fissures that you saw, what did they indicate to you?
A. Well, they indicated to me that the anus had been stretched beyond its stretchable limit, and had so that there had been a two splits, or tears.
Q. Do you agree that in terms of the insertion of an adult male penis, into the anus, that would cause such an injury could cause?
A. Could cause, yes, yes.
Q. And in terms of your observations, was that consistent with anal penetration?
A. Yes." (T.163.47 - 164.21)
Dr Houston explained that it was too late to test for any semen presence because 48 hours had passed, particularly in circumstances where a child had been to the toilet and passed her motion.
Dr Houston gave further evidence:
"Q. When you made observations of her anus again, you observed that the two fissures that you had observed on 17 August had been healed?
A. Yes.
Q. In terms of your understanding, when two fissures are - the injuries that you observed on the complainant on 17 August 2012, would that have caused pain?
A. Yes. It would have been a painful, painful experience.
Q. In terms of the pain, would that have continued after the injury was caused?
A. It would have given her pain when she passing a motion but probably not apart from that.
…
Q. Hence the healing process is usually --
A. Very rapid.
Q. --- rapid in that area. The fissures that you observed, would there have likely been the emission of blood from those wounds?
A. There could have been. It wasn't bleeding when I saw her because they were beginning to heal.
Q. In terms of your observations of the fissures, can you tell me again were they coming from the inside to the outside or from the outside to the inside?
A. Well, it was coming through from the inside and to the outside.
Q. What's the significance of that?
A. Well, to me it indicates something has been pushed in from the outside in.
Q. So inserted into the bottom?
A. Yes. Yes. I think that, to be clear, from looking at it I couldn't say absolutely but this had been - I had been told this - this is what had happened and this was entirely consistent with it." (T.165.5 - .48)
Under cross-examination the following evidence was given:
"Q. Doctor, you told us earlier that constipation could be one explanation for how a person could have an anal fissure. Is that right?
A. Yes. Yes.
Q. You'd also accept, doctor, that if a person was not constipated but nevertheless passed a hard, dry stool or faeces, that that would also cause or could cause an anal fissure?
A. But that's - that's constipation, having hard, dry stools. (T.168.28)
…
Q. Are you able to say, doctor, whether there was any inflation of the anus or rectum of [the complainant]?
A. No, just - just the fissures.
Q. Now, you've told us that from your observations it appeared consistent that something had been inserted into the anal area?
A. Yes.
Q. I think when you were clarifying that you said that that was consistent with what you'd been told and consistent with what you were, in a sense, looking for. Is that right?
A. Yes.
Q. But you're not able to say what, in fact, did happen to create those fissures. Is that right?
A. I wasn't there so I - I couldn't say.
Q. Would you agree, doctor, with the proposition that anal fissures are common in children that have poor toileting habits?
A. As a hygiene issue, you mean?
Q. Yes.
A. No. I suppose they might have some very little superficial ones but not
Q. Not of the nature that you're talking about?
A. Not of the nature." (T.169.25 - .50)
T was overseas during the trial. Her recorded interview taken through an interpreter on 30 August 2012, was played to the jury. In the course of that interview, she was asked to say what had occurred on the night of 15 August 2012.
It was her recollection that the applicant slept at the mosque that night. She said that he told her at about 10pm that he was going to sleep at the mosque and then he left. T said that he did not return to the house until the morning. She said that she had never been woken up at night by him or by the complainant or by anyone else while they were in that house.
The applicant was interviewed by the police and participated in an ERISP on 18 August 2012. That ERISP became exhibit E.
In the ERISP the applicant denied running away from the police earlier that evening and said that he was not in the house when the police came. He denied sexually assaulting the complainant.
He said that on Wednesday, 15 August 2012 he picked up Fn at around 6.30pm to go to the Punchbowl Mosque for prayers which started at 7pm. Later he said that he picked her up at 7.30pm. Once there he went to the separate men's area and remained there until 3am. Later he said he left there at 6am.
He said that he returned home at 11pm to have a shower and then left at midnight to return to the Lakemba Mosque. He said that T was there when he went home. She was waiting for him to leave so that she could lock the door. He said that on Wednesday night he was wearing jeans and a black leather jacket. He only wore the traditional gown on Fridays.
When asked about the allegation that he had put his penis into the complainant's bottom, he said "No, I can't do it, I didn't do that, I can't do that, trust me, I can't do that in no circumstances. [The complainant] is like a daughter to me" (Q/A621). The applicant denied ever sleeping in the complainant's bed due to her wetting the bed.
The police attempted to obtain CCTV footage from the Lakemba and Punchbowl Mosques. The CCTV footage from the Lakemba Mosque was grainy and indistinct while the Punchbowl Mosque did not have cameras.
THE APPEAL
Ground 1 - Having regard to the evidence the verdict of guilty is unreasonable and cannot be supported.
The primary submission for the applicant was that he could not be found guilty unless the jury were satisfied beyond reasonable doubt as to the truth and accuracy of what the complainant said. He submitted that this Court could not be satisfied on that issue and in particular, could not be satisfied that his penis penetrated the complainant's anus. He submitted that a close scrutiny of the evidence would leave the Court with a reasonable doubt. He then set out a list of matters which he submitted, looked at individually and holistically, would demonstrate that the complainant's evidence was not accurate and reliable.
The matters to which the Court's attention was directed were:
1. The reservations which the trial judge had concerning the verdict which he forcefully expressed at T.8.45, 17.9.2013:
"I've got to tell you, Madam Crown, this case is one of the weakest I've ever seen presented in these courts."
1. The vagueness of the description of penetration of the anus - "on my bum" and later the response to a leading question - "Was it "outside your bum, inside your bum or something else". This, it was submitted, was a "loaded" question with only limited alternatives suggested as an answer. The complainant was never asked to explain what she meant by the word "bum" and it was never made clear whether she was referring to penetration of her anus or within the cheeks of her backside. In the circumstances, the Court could not be satisfied that anal penetration had occurred.
2. The complete absence of any expression of pain or discomfort which common sense says would have been felt by the complainant. The complainant's account was doubtful given the lack of expression of pain or discomfort. Dr Houston said that the mechanism which caused the two fissures would have been painful. Comments by the complainant that it felt "bad" and "not safe" were not suggestive of a physical pain sensation. The absence of pain was surprising given the act alleged and should raise a doubt about the truthfulness and reliability of the complainant.
3. The words attributed to the applicant by the complainant during the act do not ring true. When asked in the interview what the applicant said "when the blank was in your bum" she said that he whispered "I believe you, everything you say" and "I love your sister R".
4. Even taking into account that the complainant was aged 12 when spoken to by the police, her initial concern only related to the way her grandmother and the applicant treated her, not to any sexual assault. The applicant relied upon the fact that it was not until Q117 that there was any mention of sexual impropriety and that had to be led with difficulty from the complainant. There was no spontaneous mention of sexual assault or inappropriate touching. It was only when the conversation with Ms Byrne and the handwritten note were mentioned that a complaint was made.
5. The medical evidence of the observations of fissures is consistent with both anal/penile penetration and the passing of a hard stool. In this regard, the applicant relied upon what the trial judge said in the summing up that the observations by the doctor were "consistent with but not conclusive of the alleged penetration" (ROS 15.1). The applicant submitted that a fair reading of Dr Houston's evidence was that the fissures were consistent with anal penetration by a penis and the passing of a hard stool. The medical evidence therefore did not add to or increase the reliability of the complainant's account.
6. The evidence of flight was ambiguous. Even if the Court were satisfied that the applicant left the house when police announced their presence, it was entirely rational that he might have done so out of panic. It is not open to conclude that he did so out of a consciousness of guilt of sexually assaulting the complainant. The applicant said that he did not see the police come to the house and that the police did not see him leave.
7. The complainant had a motive to exaggerate, if not lie. The complainant was unhappy in the house and felt that she was being picked on and mistreated by T and the applicant. She wished to leave the house and live with N and F. There was also the evidence in cross-examination of N that she and F had discussed making an allegation of sexual assault before they arrived at the school.
8. The complainant's assertion that she was actually asleep when she was assaulted and not just lying with her eyes closed did not make sense. It was not indicative of a reliable account. The complainant was asked on a number of occasions whether she was asleep during the whole incident and she maintained that she was.
9. The applicant was a person of good character and had no prior criminal convictions.
Consideration
The task of this Court where such a ground of appeal is raised is well established and well known: M v The Queen [1994] HCA 63; 181 CLR 48; MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400. The Court must make its own independent assessment of the sufficiency and quality of the evidence. The question is ultimately whether notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand (M at 492) or, whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.
In making that assessment the Court is obliged to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt and has had the advantage of having heard and seen the witnesses.
(1) Comments of Trial Judge
While the comments of a trial judge should always be given appropriate respect, they should not be given the weight sought to be placed on them by the applicant in this case. This was particularly so when one had regard to the context in which the remark by his Honour was made. His Honour was expressing some exasperation with the trial advocate for the Crown because of a point which she was seeking to make in her address.
The question of what weight should be given to an expression of opinion by a trial judge in a jury trial was considered by Crennan J (with whom the plurality French CJ, Gummow and Kiefel JJ agreed) in SKA v The Queen. What happened in that case was summarised by Crennan J as follows:
"77 After conviction, applications were made to the trial judge, on behalf of the applicant, for a certificate under the Criminal Appeal Act, which his Honour declined to grant, and for bail, which his Honour indicated he proposed to uphold before he proceeded to sentence the applicant. During the course of the judgment in respect of bail, his Honour recorded that the applicant appeared to be "a perfectly honest witness" and also that he "found the complainant a very compelling witness". His Honour then continued: "I find it impossible to see how any jury acting reasonably could be satisfied beyond reasonable doubt ... In my opinion the jury acting reasonably could not have convicted the accused.""
In this case, apart from the exchange with counsel to which the applicant referred, there was also the following observation by his Honour Bennett DCJ when sentencing the applicant:
"The jury must have accepted beyond reasonable doubt the evidence given by the complainant upon whom the Crown case against the offender depended, notwithstanding anomalies, to some of which I shall refer. Regardless of the view I might have of her credibility or reliability as trial judge, I must give effect to the finding by the tribunal of fact. Any doubt lingering in light of discrepancies, inadequacies or the lack of probative force that the evidence might otherwise suffer are matters for an appellate Court in accordance with statements of principle such as in M v R [1994] 181 CLR 487." (Sentence Judgment, 5.2)
Crennan J set out the relevant principles as follows:
"110 Submissions on the alleged failure to take into account the trial judge's opinion were framed by reference to the value of a trial judge's report which must undoubtedly have been of "great use" before the routine provision of transcripts as part of a written record of a trial. In this case, the trial judge was not asked to provide a report and he declined to provide a certificate that the case was fit to appeal.
111 Relevant authorities establish a number of propositions about trial judges' reports which are applicable to the present circumstances where the transcribed evidence is part of the written record.
112 First, whilst a trial judge's report may be a factor to be taken into account it would be wrong to substitute the opinion of the judge for that of the jury. Secondly, the weight to be given by an appellate court to a trial judge's report will vary with the circumstances. Such a report will be of greatest assistance when expressing views about matters not readily apparent from the written record of a trial. Less weight will be given to a trial judge's report in circumstances where the judge's opinion appears to be based almost wholly upon the assessment of the evidence which an appellate court is obliged to undertake for itself, or is an opinion which is not fully reasoned. The functions of such a report, when there is in existence an adequate system for reporting of court proceedings, have been summarised helpfully in Sloane:
"An important function of a report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.
Another permissible and relevant function of such a report is its use, by a trial judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record.
A third permissible reason for such a report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it.
Otherwise, in times where there is in existence an adequate system for court reporting, occasion for the provision of a s 11 report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance."
…
115 … The trial judge's opinion was based on his assessment of the evidence, the very task which it was for the Court of Criminal Appeal to undertake independently for itself. In these circumstances there was no error in relation to the way in which Simpson J dealt with the trial judge's opinion."
In this case no report was provided or sought nor was a certificate sought. What is relied upon is a somewhat testy exchange between his Honour and the Crown at the end of the trial and a very general observation made by his Honour in relation to the complainant's credibility and reliability in the course of the sentence judgment. As Crennan J pointed out it would be wrong to substitute the opinion of the judge for that of the jury and less weight will be given to a trial judge's report in circumstances where the judge's opinion appears to be based almost entirely upon the assessment of evidence which an appellate court is obliged to undertake for itself. Moreover, the comment by his Honour was expressed in very general terms and his reasoning was not exposed.
In my opinion, this Court should not take into account the comments by his Honour to which the applicant made reference. It is necessary for the Court to reach its own conclusions based on its assessment of the evidence.
(2) The vagueness of the description of the offence
The complainant's description of the offending was sufficiently precise to make out the offence. During the interview with Ms Payne, the complainant wrote (on the note marked "E") that the applicant had put his penis on her "back". She then marked (on the diagram "C") where the applicant had put his penis and then described that structure by reference to it being used to defecate. Significantly, she volunteered the use of the word "bum" (Q/A262 - 265).
The fact of actual penetration of the anus by the applicant received substantial support from the evidence of Dr Houston. The effect of the doctor's evidence will be discussed in more detail later but the presence of two fissures was "entirely consistent with" and indicative of the occurrence of penile/anal penetration which had occurred within the 4-5 days preceding the medical examination.
The applicant's criticism of Q268 ("And, tell me, was it outside your bum, inside your bum or something else?") is not made out. It is not correct to say that the form of Q268 was such that it only allowed (in practical terms) for two alternatives. A third alternative was not foreclosed and on other occasions in the statement the complainant did not accept suggested answers but made her own response. The form of Q268 permitted the complainant to answer in an unfettered way by reference to the three specified alternatives, i.e. "on", "in" or any other response to the question - including by responding that she did not know what had occurred or that there had been an attempt at penile/anal penetration. The question clearly left open to the complainant the opportunity to provide any other response she might wish regarding what had happened, including an attempt or rubbing of the penis upon the buttocks/anus which would be conduct sufficient to amount only to an indecent assault.
(3) The absence of any expression of pain
The applicant's reliance on "common sense" and "the absence of any expression of pain or discomfort" is not made out.
It is correct that in the statement, the complainant did not tell Ms Payne anything more than that it felt "bad". N in her evidence, however, said that the complainant had originally told her that she wanted to scream but that the applicant had placed his hand over her mouth and told her that if she did scream, he would tell her sister/aunt when she returned from Africa that the complainant had been doing bad things (T.66.05 - .16)
At T.76.10 N said:
"Q. You told them that one of the things that [the complainant] had said, was that she was screaming a little sound?
A. Yeah.
Q. Because she was being hurt?
A. Yeah.
Q. Is that what she told you?
A. Yeah, that's what she told me."
At T.87.9 F gave evidence to similar effect:
"Q. What did she say?
A. She said yesterday night [the applicant] went to the room and took off her pants, her undies, and when she tried to scream, he put his hand over his mouth and try to scream, I'm going to tell my - your elder sister. That's R.
…
A. He take off her undies and when she tried to scream he covers her mouth and told her, "If you scream, I'm going to tell your elder sister." That's R."
It is obvious from her statement and her evidence at trial that there was a great reluctance on the complainant's part to describe in any detail what happened. This was equally consistent with a cultural or personal reluctance as with unreliability, which was the interpretation sought to be placed on it by the applicant. It is clear from her narrative that she deliberately avoided any detailed description of what had happened. Early in her statement she was asked "Can you tell me about it" to which she responded "No" (Q/A55). On many occasions she used the response "It's hard to explain it" or "It's too hard to explain it" to avoid going into any detail. The jury saw and heard these responses and was in the best position to asses the genuineness of them.
It is also important to remember that not only was the complainant aged 12 but her knowledge of both written and spoken English was marginal, as both her oral evidence and written evidence make clear.
(4) The words attributed to the applicant do not ring true
This submission is not made out.
The answer at Q/A272 is fully consistent with the background to the incident. Having regard to the complainant's history of not being believed by the applicant and by other household members, some of whom apparently beat her in the time leading up to the incident, the remark "I believe you everything you say" attributed to the applicant is understandable. Given what was occurring, the remark is consistent with an attempt on his part to placate, re-assure or at least secure the acquiescence of the complainant to what was happening. It fits in with an attempt by the applicant to ingratiate himself with her as a person whom she could trust and who had her interests at heart.
The answer at Q/A145 relied upon by the applicant, was where he was said to have whispered "I love … your sister R". From the context it would seem that these words were spoken during (or immediately before or after) the anal penetration. The words can be reconciled with an attempt by the applicant to secure the acquiescence of the complainant by indicating that the sexual activity then occurring should not be thought by her to indicate that he did not also love her sister/aunt and that the offence was in some way a betrayal by him of R.
The third answer upon which the applicant relied is Q/A194 where he is said to have whispered "I love your sister so much but she's rude and she doesn't like me". These words also appear to have been spoken during or immediately before or after the anal penetration. The remark suggests that not only did her sister/aunt not reciprocate the love which the applicant claimed he had for her but that she had been rude and hurt him by making it clear that she did not like him.
Far from suggesting unreliability, these words fit with the factual background so far as we know it.
Having regard to the circumstances in which they were spoken, all these remarks share the common theme of being designed to placate, re-assure and/or secure the acquiescence of the complainant to the sexual activity which was occurring.
(5) The absence of any spontaneous complaint
The applicant submitted that the reliability of the complainant was adversely affected because it was not until Q/A117 in the interview that she referred to a sexual assault by him and even then it had to be elicited from her with considerable difficulty. The applicant submitted that an inference should be drawn that the failure to mention the incident earlier in the statement meant that it was not at the forefront of the complainant's mind and therefore probably did not occur.
An initial problem with the submission is that it does not have regard to the totality of the complainant's statement. Her reluctance to describe or discuss the incident and her attempts to avoid such discussion are patent and consistent. That same reluctance emerged when Ms Byrne was attempting to elicit details from her on 16 and 17 August 2012. The only time the complainant appears to have been prepared to talk freely about what occurred was when she was talking to N and F using the Krio language.
What is important is that the complainant raised these issues at an early point in time. She told N and F the following day. She eventually disclosed in part what had happened to Ms Byrne that same day. She appeared upset and distressed and was avoiding eye contact. What she said about other matters in her statement were all part of her attempts to avoid discussing this unpleasant topic. The content of the statement makes this clear, as does the evidence from Ms Byrne as to her demeanour.
Far from placing doubt on the complainant's reliability and veracity, I am of the opinion that the statement and the evidence of Ms Byrne provide substantial support for her evidence. Even without specific evidence on the topic, it is apparent that there were personal, religious or cultural reasons perhaps also including guilt, embarrassment and a lack of trust that the family would provide appropriate support, which account for her extreme reluctance to freely articulate and discuss the full details of a sexual assault such as that which occurred in this case.
(6) The evidence of Dr Houston
The applicant submitted that a fair reading of Dr Houston's evidence was to the effect that the fissures were equally consistent with both anal penetration by a penis and the passing of a hard stool. I disagree. In my opinion the evidence of Dr Houston is very much the other way and provides powerful support for the Crown case.
It was fundamental to the applicant's approach to the evidence of Dr Houston that her evidence be capable of establishing an hypothesis consistent with innocence, i.e. the passing of a hard stool by the complainant as a result of her being constipated. There is not a single piece of evidence to establish that proposition. There is no evidence that the complainant was constipated during the four to five days before she was examined by Dr Houston. On the contrary, to the extent that there is any evidence on the subject, it is to the effect that she was not constipated at the time that she was examined and by inference for at least some time before the examination (which would account for the findings which Dr Houston made).
Her evidence made clear what she thought was the most likely explanation for what she found on examination. Not surprisingly, she was not prepared to say that it was absolutely certain that anal penetration had occurred. Nevertheless, it is clear that her opinion was that such penetration had occurred.
What Dr Houston said was:
"Q. In terms of these two fissures that you saw, what did they indicate to you?
A. Well, they indicated to me that the anus had been stretched beyond its stretchable limit, and had so that there had been a two splits, or tears.
Q. Do you agree that in terms of the insertion of an adult male penis, into the anus, that would cause such an injury could cause?
A. Could cause, yes, yes.
Q. And in terms of your observations, was that consistent with anal penetration?
A. Yes. (T.164.11)
…
Q. What's the significance of that?
A. Well, to me it indicates something has been pushed in from the outside in.
Q. So inserted into the bottom?
A. Yes. Yes. I think that, to be clear, from looking at it I couldn't say absolutely but this had been - I had been told this - this is what had happened and this was entirely consistent with it." (T.165.41)
Dr Houston unqualifiedly rejected the propositions that anal fissures such as those which had been observed on the complainant could have been caused by a child suffering from diarrhoea or with such "poor toileting habits" that there was thereby a "hygiene issue". The effect of the evidence of Dr Houston is that she did not reject constipation as a theoretical cause of the anal fissures but in her opinion the most likely cause was external anal penetration.
(7) Evidence of flight
The applicant submitted that the evidence of him leaving the house when the police arrived was ambiguous at best. He submitted that there was a perfectly reasonable explanation for what he did, given his tragic background before he came to Australia, i.e. fear and panic when he realised the police wished to speak to him.
From a factual point of view, there would appear to be clear evidence from Mohamed and T that on Friday night, 17 August 2012, the applicant had been at the premises when the police arrived and that by the time the police entered, he had left. That was to be contrasted with what the applicant said in his ERISP to the effect that he had eaten some food at the premises but had left before the police arrived.
I agree with the applicant's submission that of itself the fact that he left when the police arrived is not capable of establishing consciousness of guilt. At most that fact if established to the jury's satisfaction could only be used in conjunction with other evidence in a "strand of a rope" approach.
(8) Motive to lie
The applicant submitted that the complainant had a motive to exaggerate and lie because she disliked living in the house with him and T. In support the applicant relied upon her complaints about how she was treated, that she missed F and N and her wish to move in with them.
This together with the cross-examination of N and F forms the basis of the applicant's submission that the accusation by the complainant was deliberately fabricated by her, N and F to provide a pretext for the complainant leaving the Bankstown premises and moving in with them. The applicant relied upon the cross-examination of N as providing evidence to that effect.
There appear to be express admissions by N to that effect in cross-examination. On a proper reading of that evidence, however, it is clear that this evidence should not be taken at face value. N did not use an interpreter when giving her evidence and it is apparent that she did not fully understand the effect of the questions to which she gave an affirmative answer. A more reasonable interpretation of the evidence is that the discussion between her and F concerning the sexual assault on the complainant, only occurred after the complainant had told them what had happened. The following four questions and answers at T.75.25 make that clear:
"Q. Did you and F talk about telling [the complainant] that she should complain about being sexually abused, so that she could come and live with the both of you?
A. Yeah, we told her that she should tell the principal about it, if it happens again.
Q. Is that something that you and F talked about before you even got to the school?
A. Yeah.
Q. So you already had a plan about what you wanted [the complainant] to say to the principal, before you even got to the school?
A. Not for her like, to say something like, because she explain it to us, and we told her that if it happens again, she needs to tell the principal.
Q. I want to suggest to you, Ms N, that you and F went there with the very specific plan of having [the complainant] complain about sexual abuse, so that she could come and live with you and F. Do you agree or disagree with that?
A. Yes, I agree."
I do not read that evidence as having the effect contended for by the applicant. This is particularly so given the convoluted nature of the final question in the sequence. The better and more likely interpretation of the evidence is that it related to a discussion which took place after the complainant had told N and F about the offence. That conclusion is confirmed by the evidence of F who, with the assistance of an interpreter, rejected out of hand similar questions in cross-examination. That evidence does not leave me with a doubt as to the complainant's reliability and veracity.
If the complainant had the motive sought to be imputed to her by the applicant, she chose a strange way of achieving her purpose. Had she had such a motive, one would have expected her to have lost no time in making a complaint against the applicant. On the contrary, her extreme reluctance to make a complaint and to provide intimate details tends strongly against her having such a motive.
(9) Reliability of complainant
The applicant's submission was that the evidence of the complainant that she had been asleep during the incident but still remembered what happened (T.36 - T.38) cast doubt upon her reliability.
If the complainant's responses are taken literally, the evidence is difficult to understand. Unfortunately what the complainant meant by being asleep was never properly explored or explained. A more likely explanation of what she meant was that she had been asleep when the applicant entered her room, got into her bed and removed her clothes and commenced the sexual encounter. She may well have been half asleep, or at least not entirely awake, during the offence and that this was what she was trying to convey.
Such an interpretation of necessity involves some speculation as to what precisely the complainant meant in her evidence. What is important is that at no time did the complainant resile from her primary position that the applicant had entered her room and sexually assaulted her, nor did she accept that she was mistaken or telling lies as to what happened. On the contrary, even after cross-examination that elicited responses that she had been asleep, the complainant rejected the assertion that the applicant had not sexually assaulted her (T.41.29 - 41.34, 42.26 - 42.31).
The jury were fully aware of the apparent inconsistency in the complainant saying she was asleep but also saying that she knew what was happening and what the applicant was doing. This was stressed, not only by defence counsel in her address, but also by the trial judge in his summing up. Even allowing for that apparent discrepancy in the complainant's responses, on the whole of the evidence I have not concluded that it would be dangerous in all the circumstances to allow the verdict of guilty to stand. Given the nature of the offending, the applicant's prior good character does not dissuade me from that conclusion.
Conclusion
Despite difficulties in explaining some of the evidence, none of the submissions by the applicant as to the unreliability of the complainant have been made out. On the contrary, a proper reading of the relevant evidence, particularly the medical evidence, strongly supports the complainant. It follows that I am satisfied that it was open to the jury to be satisfied beyond a reasonable doubt as to the guilt of the applicant.
This ground of appeal has not been made out.
Ground 2 - The failure to edit out Q/A 633 from the [applicant's] record of interview which was played to the jury caused a miscarriage of justice.
The applicant was interviewed by Detective Neagle from 3.30am until 5am on the morning of Saturday, 18 August 2012. The recorded interview was played to the jury and the applicant did not give evidence. Included in the recorded interview was Q/A633 which was in the following terms:
"Q633 Because see we've also been told that when [the complainant] goes to the toilet in the house that you've been seen to be looking in through the door at her.
A. When was that? That's oh, is bullshit. That's not, not true. I can't do that."
After the record of interview was played, the trial judge questioned why Q/A633 was allowed to be heard by the jury. This was described as an "oversight" by counsel for the defence. The following exchange took place in the absence of the jury:
"HIS HONOUR: The next question is why question 633 was left in.
COUNSEL: That was an oversight, your Honour. That was an oversight and my solicitor and I had thought that that had been taken out, but again that's something that we missed.
…
TRIAL ADVOCATE: Your Honour, that was agreed by the parties to stay in. Everything your Honour has was agreed by the parties to stay in. …" (T.241)
No application to discharge the jury was made on behalf of the applicant following that exchange or at all.
The trial judge was sufficiently concerned about Q/A633 that he specifically referred to it in his summing up as follows:
"While I am dealing with evidence and the proposition that you must decide this case according to the evidence, I want to make it clear to you that some things are not evidence; and a question standing by itself is not evidence. The question and the answer provide the evidence.
For example, if you were sitting here in court and you heard a barrister asking a question of a witness about whether or not they were wearing a hat yesterday, and the witness said, "No, I wasn't," there is no evidence before you that the witness was wearing a hat yesterday. The proposition is implicit in the question or expressed in the question, more correctly, but until the witness agrees that they were wearing a hat yesterday, there is no evidence before you that they were wearing a hat the day before; and it does not matter how forcefully or how often the question is put. While ever the witness retains that position, maintains they were not wearing a hat, there is no evidence before you that they were wearing a hat.
That is important in this case, because of a question that is in the record of interview that was tendered in the Crown case. It was one of those questions that perhaps should not have been included, but in any event it is there before you and I must give you a direction in the strongest terms that you must disregard it. It is question 633 of the interview of the accused. It is in these terms:
"Q. Because, see, we've also been told that when [the complainant] goes to the toilet in the house that you've been seen to be looking in through the door at her?
A. When was that? That's, oh, is bullshit. That's not - not true. I can't do that."
Thus there is no evidence before you of any such conduct by the accused. There is no indication to us at all from whom that information came or how reliable it might have been or in what circumstances any such observation might have been suggested to have been made. It is completely valueless to your deliberations, and you should completely ignore it. Whatever proposition is contained expressly or by implication in that question, it is not the subject of evidence before you. It should be ignored."
The applicant submitted that the question was highly prejudicial and referred to uncharged conduct which was not led from the complainant and was not alleged at all. The applicant submitted that insofar as the question asserted that the police officer had been told something despite the applicant's denial, it was unfairly prejudicial and grounds for a discharge of the jury. The applicant submitted that it could only have led the jury to speculate as to the background to the question. The applicant submitted that the reference to "oversight" by the defence counsel was a concession of error.
The applicant submitted that once the error was conceded by defence counsel, the next appropriate step should have been an application to discharge the jury. He submitted that the failure to apply for a discharge could not be characterised as a forensic decision to his advantage. Alternatively, if there were a decision not to apply for a discharge (because for example the complainant appeared to have been sufficiently discredited), then the decision was erroneous.
Since this point was not taken at trial, the applicant accepted that leave was required pursuant to r 4 of the Criminal Appeal Rules. He submitted that leave should be granted in this case because a miscarriage of justice occurred.
Consideration
It is accepted that the failure to remove Q/A633 from the applicant's statement was an oversight. Its potential effect on the jury, however, has been significantly overstated in submissions. There was already a similar issue in play.
At Q/A50 - 51 of the complainant's statement was as follows:
"Q50 How does he harass you?
A Like, he goes into my bedroom, he meets me, like, putting my school
uniform on, and he doesn't knock on the door, so he just barge in.
Q51 He barges in when you're putting your school uniform on.
A Yeah."
This was taken up by counsel for the applicant at trial when cross-examining the complainant:
"Q. You told Meg, when you were speaking to her, that your uncle used to barge into your room, all day, do you remember saying that?
A. I said sometimes.
Q. I want to suggest to you, Ms XXXX, that …
TRIAL ADVOCATE: Your Honour, I object to the word "suggest".
HIS HONOUR: Why?
TRIAL ADVOCATE: Because I don't think that the complainant understands that term.
HIS HONOUR: I don't agree with you, Madam Crown. Yes, proceed.
COUNSEL: Q. Ms XXXX, I want to suggest to you that at no time did your uncle come barging into your room, while you were getting dressed. Do you agree or disagree with that?
A. I agree with that." (T.34.45 - 35.15)
Not only was no objection taken by the applicant to that issue being raised at trial, but it was counsel for the applicant who raised the matter again during cross-examination.
In addition, his Honour gave a direction in the course of his summing up in the strongest terms to the effect that Q/A633 in the applicant's record of interview was valueless and should be ignored by the jury. There is no basis for supposing that the jury did not follow that direction. To submit otherwise involves nothing more than speculation.
Counsel for the applicant at trial was in a far better position than this Court to assess the atmosphere of the trial. The fact that she did not make an application to discharge the jury allows an inference that in her opinion such prejudice as there was, did not justify such an application. In the absence of any evidence to the contrary, this Court can infer that the decision not to apply for a discharge of the jury was a considered forensic one. This is particularly so when the matter had specifically been drawn to counsel's attention by the trial judge.
In the circumstances of this case, no miscarriage of justice took place. This ground of appeal has not been made out. In those circumstances, I would refuse leave under rule 4 of the Criminal Appeal Rules.
Conclusion
The orders which I propose are:
1. The application for an extension of time within which to appeal is granted.
2. Leave to appeal against conviction is granted.
3. The appeal is dismissed.
HARRISON J: In considering this appeal this Court is required to make its own independent assessment of the evidence in the trial and to determine whether upon the whole of that evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The Chief Judge has thoroughly considered that evidence in conformity with the test for which M v The Queen is authority. I respectfully adopt his Honour's analysis and agree with his reasons for concluding that the appeal should be dismissed.
It is very often difficult in cases of alleged child sexual assault, although by no means limited exclusively to them, that the Crown case depends almost entirely upon the evidence of a single witness, of tender years, sometimes from a different country, with inadequate or limited English and subject to often quite arcane religious, cultural and social mores enforced within the family but which are not generally influential or understood in Australia. These matters, or a combination of some of them, can in many circumstances confront those of us uninstructed in or unfamiliar with such differences in a way that significantly influences our perception of the evidence that such a person gives of the events that are critical to proof of the Crown case.
In the present case it appears reasonable to observe that the complainant was embarrassed by references to her own genital anatomy or that of the appellant and was otherwise disinclined to speak of it without prompting or the use of non-anatomical descriptions or terms. Some of her evidence was also afflicted with the logical difficulty that part of the account she gave included a reference to events that occurred when she said she was asleep when it seems clear that she was intending to refer either to pretending to be asleep or simply to having her eyes closed.
These and other similar matters were legitimately available to be, and were, exploited by counsel for the accused at the trial and were also quite properly emphasised by his counsel in this Court. However, as the analysis by the Chief Judge makes plain, these arguable imperfections in the complainant's evidence and the way it was delivered are insufficient to raise a reasonable doubt about the appellant's guilt. The vagueness of the complainant's description of what she said occurred, the associated absence of any complaints of pain and the (on one view) curious words that she ascribed to the appellant at the time of the assault, as well as the absence of any contemporaneous complaint, are all colourable circumstances. None can be said either alone or in combination logically or inexorably to cause this Court to have a doubt which the jury ought also to have experienced. In my opinion, any suggestion that the complainant's evidence lacks credibility is more than adequately met or explained by the manner in which it was given, especially having regard to her particular personal and cultural characteristics. This is a case in which in my view the jury's advantage in seeing and hearing the complainant's evidence is more than capable of resolving any doubt that the appellant contends this Court should itself be experiencing.
I am of the view, based upon the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
R A HULME J: I am grateful for the detailed review and analysis of the evidence provided by Hoeben CJ at CL. His Honour's conclusions accord with my own and I agree with the orders he proposes.
I am also grateful for and agree with the additional observations of Harrison J.
[3]
Amendments
26 November 2015 - paragraph 73 - replaced name with "R"
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Decision last updated: 26 November 2015