MJ v R

Court of Criminal Appeal (NSW)|2012-02-17|Before: Rothman J, Beazley JA, Hidden J

Judgment 1BEAZLEY JA: I agree with Rothman J 2HIDDEN J: I agree with Rothman J 3ROTHMAN J: The applicant, MJ, appeals his conviction by a jury on 12 March 2008 of sexual intercourse with a child under 10 years of age. The applicant was sentenced on 19 September 2008. The applicant does not seek leave to appeal the sentence. 4A notice of intention to appeal against conviction was first filed on 23 September 2008. That notice expired on 22 March 2009. A notice of appeal, dated 7 January 2011, was filed on 14 February 2011. The Crown opposes the extension of time necessary to proceed with the appeal, opposes leave to appeal and resists the appeal. 5The appeal expressly raises three grounds: "Unreasonable verdict, which cannot be supported by the evidence; The verdict was unreasonable because it depended on the word of the complainant who was a seven-year-old girl against the word of the accused and evidences general bias in relation to such issues; There was no supportive [sic] evidence." 6On the appeal, the applicant appeared for himself and drafted his own appeal. In essence, there are two grounds: unreasonable verdict and lack of corroboration. Taking a broad view of the submissions filed, the last mentioned ground included an argument that there has been a miscarriage of justice, because the Crown did not adduce relevant evidence about the weather and the optimal period for painting. This evidence, it is said, would support the applicant's reasons for not attending to his painting work at nearby premises on the day after the alleged offence.

7The Crown can point to no particular prejudice associated with the delay in filing the notice application for leave to appeal. 8Notice of intention to appeal was given within the prescribed time and there was a delay of just under two years before the appeal was filed. Further, there was a delay between the compiling of the notice of appeal and its filing in Court. 9The applicant is unrepresented and the notice of appeal bears the hallmarks of being drafted without legal assistance. Notwithstanding the significant delay, in all the circumstances, including that the appeal involves a conviction appeal and the liberty of the applicant, an extension of time should be granted to allow the filing of the notice of appeal on 14 February 2011.

10The facts may be summarised briefly. The alleged offence occurred in February 2007. The complainant (KC) was 7 years old at that time. 11At the time of the alleged offence, the mother of the complainant (SH) had a casual relationship with the applicant. The applicant was previously a family friend, who was known as "Scruff". 12The complainant alleged that one night, whilst she was asleep in her bedroom, she was woken because her vagina was being touched. She alleged that she opened her eyes and saw the applicant leaning over and touching her. 13The complainant alleged that the incident lasted about 20 seconds. 14The complainant said that at the time she did not say anything to the applicant because she did not want him to know that she had seen him. 15The complainant said this was the only occasion that an incident like this had occurred. 16The applicant remained at the house the next day. The complainant said she had a conversation with the applicant that next day, during which he told her that the night before he had been checking if there were mosquitos tickling her. He told her not to tell anyone about this incident. 17The complainant gave evidence that, later that day, she told her mother about the incident. 18The applicant maintains that he had looked into the room on the evening of the alleged incident to check if there were mosquitoes on the ceiling. The applicant said he did this from the doorway. 19The applicant said that he remained at the house the next day because he was completing a painting job at a nearby house, however, on that day, the weather was too hot to paint and he was waiting for it to cool down. 20The complainant's mother packed the applicant's belongings and left them on her front yard. This occurred whilst the complainant was at school and this was within a few days of the disclosure. When the applicant arrived at her house, she told him to take his belongings and leave. The complainant's mother did not explain to the applicant why she had taken this action.

21The Crown case below followed a fairly usual pattern. It is unnecessary to summarise all of the evidence. It is summarised in the Crown's summary with which no issue was taken. I will, however, summarise the more crucial parts.

The complainant's mother 22Formal evidence was given by the mother as to the age of the complainant. The mother also testified about the breakdown of her relationship with the complainant's father and the commencement and continuation of a casual relationship with the applicant, "Scruff". 23The applicant had been a family friend, whom the mother had known for most of her life. He was significantly older than the mother. The applicant stayed with the complainant's mother from time to time at the mother's home at Stuarts Point. Apart from these occasions, the complainant and her mother lived alone in the home. 24On Monday, 25 February 2007, the complainant's mother bathed the complainant and put her to bed. After the mother said goodnight to her, the complainant told her mother: "I'm scared. I wanted to do something. I'm scared he might hear me." 25The complainant's mother asked to whom she was referring to which the complainant replied: "Scruff". The mother enquired of what the complainant was scared and asked the complainant to tell her quietly. 26The complainant told her mother that the applicant had touched her "down there", pointing to her groin area. The mother enquired: "Where did he touch you?" to which the complainant answered, "fanny". 27On the afternoon prior to this conversation, according to the mother, the complainant had been playing with the applicant. The applicant had stayed overnight on the previous night and was at the house that day. In other words, on the mother's evidence, the complainant told her of the alleged assault approximately 24 hours after it had occurred. The applicant had stayed overnight and had been playing with the complainant between the time of the assault and the time that the complainant informed her mother of the assault. 28The mother recalled that the complainant and the applicant had been talking on the bridge over the pond in the front yard of the home between approximately 3.30pm and 4pm, at which time the mother had asked them to come inside because of the mosquitoes. 29After being told of the incident, the mother reassured the complainant and promised to protect her. The mother's evidence was that she went to bed around 11pm and tried to stay awake to see if she could catch the applicant acting inappropriately. 30At approximately 1am on 27 February 2007, the mother received a phone call informing her that a shed at her sister's house was on fire. The applicant drove the complainant and her mother to the sister's place and after spending some time there, drove them home. 31On returning home, the mother informed the applicant that she would be sleeping with the complainant. The mother stated that she was doing so because the complainant was scared, but did not inform the applicant as to the reason that the complainant was scared. The mother did sleep with the complainant for the remainder of that night. 32The next morning, the mother readied the complainant for school earlier than usual so that she could talk to the complainant away from the house. The mother told the complainant that because she had not seen what had happened she needed the complainant to tell her exactly what had happened. 33The complainant told the mother that the applicant had licked his finger and put it into her "fanny" and that it had not happened on any other occasion. The complainant told her that it had happened when all the lights were out and explained how it was she could identify the applicant. The complainant also explained to her mother that she was too scared, at the time, to say anything. The complainant, when asked, told her mother that he hurt her a little bit. 34After the foregoing conversation the mother left the child at school, went to her sister's place and told her sister what had happened. She did not stay long at her sister's house. Upon returning home, the mother found a note from the applicant saying that he had gone to help a friend with a car. The mother gathered the applicant's belongings and piled them at the front of the house. On the applicant's return, the mother told the applicant that she wanted him to take his things and get out of the house. She did not inform him as to the reason. 35A few days later, the complainant told her mother that the applicant had asked her not to tell her mother or anybody about what had happened. The complainant, in that conversation with her mother, said that the conversation with the applicant had occurred during the day following the alleged incident, when the two of them were at the pond. In that conversation, the complainant identified, after questioning, which finger the applicant had used to assault her. 36About a week after, the mother told the applicant to leave, she saw his car at a friend's house. She went in and asked to speak to the applicant. The applicant tried to cuddle the mother, who told him to take his hands off her. A conversation then occurred during which the mother was asked what was wrong and she told the applicant that he was "gutless" and that he knew what was wrong. 37The mother then told the applicant that she had a home movie that he could come over and watch with her. In fact, she had no such movie. In any event, the applicant replied that he could not go with her. The mother then said to the applicant: "Well, I'll get it and come around and watch it with your friends. Maybe they'll understand. Because nobody seemed to know why we'd broken up." 38The applicant informed the mother that he was catching a train to Sydney and that he would be back in two weeks to which the mother responded that they would sort it out then and, "If I can't wait 'til then, I'll sort it out without you". The mother then said to the applicant, as she was leaving in her car, "You're fucked." That was the last occasion that the mother saw the applicant.

The complainant's evidence 39The complainant's evidence was given by CCTV recording of her interview by police. During this interview, the complainant was in the presence of a Child Protection Case Worker. Her evidence in chief confirmed directly that which she had told her mother and which was repeated in the mother's evidence. 40After investigation by the trial judge, the complainant did not give evidence on oath. That evidence has been viewed for the purpose of these reasons. Further, the Court has examined the entire transcript of the proceedings. The complainant was cross-examined. That cross-examination did not significantly impact upon the complainant's version of the events; nor on the complainant's credit.

The applicant's evidence 41The applicant gave evidence denying the allegations of the complainant and maintained that denial in cross-examination. 42The applicant stated that he did not enter the complainant's room at any stage on the night in question. On the applicant's version, he went to the doorway, checked if there were mosquitoes on the ceiling and did not enter the room, go near the complainant or touch her. 43The applicant stated that the next day he stayed at the house because a contract painting job that he was to have performed, not too distant from the complainant's house, could not be done early in the day because it was too hot and the paint would have dried too quickly and peeled. 44While the applicant agreed with the evidence of the complainant's mother as to the break up in the relationship and the circumstances of his clothes being put in the front yard of the house, he maintained that the break was due to the complainant's mother wanting time out of the relationship. He also denied that he told the complainant's mother that he would be back in Stuart's Point in two weeks. In addition, the applicant asserted that the mother had left messages for him to come and help with renovations to her house.

45As earlier stated there may be two aspects to this ground of appeal. The first of them is a repetition of the merits argument associated with the lack of corroboration. The second of them deals with the failure of the Crown to adduce evidence as to the weather and its effect on the applicant's capacity to complete his painting job. To the extent that this ground of appeal is the same as, or linked to, the lack of corroboration, it will be dealt with under that ground. 46The applicant was a painter. From time to time he undertook painting work. The fact, if it be a fact, that paint peels if applied in hot weather is neutral as to the occurrence of the events leading to the charge. The Court assumes that the assertion of the applicant in this regard is correct. 47Further, the Court can also assume that at least part of the motive for staying at the house on the day after the events leading to the charge was to be nearby the painting job so that he may complete it later in the day. Nevertheless, the applicant stayed at the house on the day in question; stayed over on the previous night; and that day had a conversation with the complainant on the bridge. Each of these independently corroborate the timing and circumstance, but not the content, of the conversation and the alleged events. 48The "supportive" evidence does not assist the applicant in his case and is marginally relevant to the charges before the Court. This ground of appeal fails.

49Formal corroboration is no longer essential in sexual assault matters or in relation to the evidence of children. If corroboration is being used in this technical sense, the lack of it is not a basis upon which a jury is not able to convict. 50Because the applicant is unrepresented, I will assume that corroboration is used not only in its technical sense but also in its ordinary meaning. As the report of the Australian Law Reform Commission makes clear significant research has been undertaken which discloses that, "the evidence of children is not inherently less reliable than that of adults" (ALRC Report 102 at [18.64]). 51The terms of s 165A of the Evidence Act 1995 prohibit a warning to a jury based on the unreliability of children's evidence as a class. In any event, an examination of the recording of the complainant's evidence does not suggest that the evidence is, in any sense, unreliable. 52Moreover, the complainant's relatively immediate complaint to her mother, while not corroborating, in the technical or common law sense, supported her version of the events. By that I refer to the fact that there has been no substantial or significant delay in the making of a complaint. In this case, there is no danger that the complainant's "fantasy about sexual matters" has become a "conviction of reality", because the complaint was made, in a very real sense, on the first opportunity so to do: compare Longman v The Queen (1989) 168 CLR 79 at 100-101, per Deane J and at 107, per McHugh J. 53No other matter raised under this ground is anything more than a submission that the verdict was unreasonable, with which I will now deal.

54The manner in which this Court approaches the task of determining whether a verdict is unreasonable is now well settled. The principles are embodied in the judgments of the High Court in M v R [1994] HCA 63; (1994) 181 CLR 487, MFA v R [2002] HCA 53; (2002) 213 CLR 606; SKA v R [2011] HCA 13; (2011) 243 CLR 400, and R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8. In M v R, at 493, the High Court said: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 55At 494-495, the joint judgment also said: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt..." 56The focus must be on an examination of the evidence and the unreasonableness of the verdict. That task is not concluded by a determination that there is evidence upon which a jury could have convicted, but whether the jury ought to have experienced a reasonable doubt. This will be answered in the affirmative if the appellate court has a reasonable doubt that cannot be answered by paying regard to the jury's advantage in seeing and hearing the evidence. The focus is on the expression "beyond reasonable doubt", and a reasonable doubt experienced by an appellate court will generally be a doubt which a jury ought to have experienced. 57Essentially, the applicant refers to 10 numbered parts of the transcript to submit that the complainant's evidence is unreliable and the jury should have had a reasonable doubt. I do not accept this submission. The evidence upon which the applicant relies at best, from his perspective, discloses imprecision in wording. It does not disclose doubt in the events that occurred. 58Further, the trial judge directed the jury, most appropriately, as to how to deal with any differences they perceived in her evidence. There is no complaint about the summing up or the directions to the jury. 59The burden of proof at trial remained with the Crown. It was the Crown's burden to prove, beyond reasonable doubt, the offence of which the complainant gave evidence. In that regard, it was necessary for the jury to believe the evidence of the complainant and not to believe the evidence of the applicant. 60Many criminal cases depend upon which of two versions of events is accepted, often in circumstances where it is the word of the alleged victim against the word of the alleged offender. The choice by a jury of one witness's evidence as believable and another witness's evidence as unbelievable, of itself, and without independent evidence or some other factor affecting that assessment, cannot be a basis upon which a jury's verdict is necessarily rendered unreasonable. 61As earlier stated, I have viewed the evidence of the complainant. I have also read the evidence of the mother and the applicant, and the other evidence in the proceedings. I have no reasonable doubt as to the correctness of the verdict or the guilt of the applicant.

62Each of the grounds of appeal must fail. For the foregoing reasons, I propose the following orders:

Extension of time granted so as to allow the filing of the notice of appeal;
Leave to appeal granted;
Appeal dismissed. 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: 04 July 2012

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