MM v R

Court of Criminal Appeal (NSW)|2011-12-09|Before: Beazley JA, James J, Fullerton J

Judgment 1BEAZLEY JA: I agree with Fullerton J. 2JAMES J: I agree with Fullerton J. 3FULLERTON J: On 11 December 2009 the appellant was convicted after trial of four counts of sexual intercourse with a child (LP) under the age of 10 years and three counts of indecent assault of the same child. He was sentenced to imprisonment for 8 years with a non-parole period of 5 years and 6 months. He appeals his conviction on all counts. There is no application for leave to appeal against sentence. 4The appellant required an extension of time within which to bring the appeal. In light of the matters outlined in the affidavit of Brian Peter Dowe, sworn 2 May 2011, the Crown did not oppose leave being granted. 5The charges relate to two discrete occasions whilst the complainant was being cared for at a childcare facility operated by the appellant's mother from her home in Moree. As originally particularised, counts 1 to 4 (two counts of sexual intercourse and two counts of indecent assault) were committed on one afternoon between 25 December 1995 and 16 March 1996 when the complainant was 3 years of age and counts 4 to 7 (two counts of sexual intercourse and one count of indecent assault) were committed on another afternoon between 1 June 1997 and 31 December 1998 when she was between 5 and 6 years of age. After amendment the timeframe within which counts 1 to 4 were committed was extended to between 16 March 1996 and 1 December 1997 when the complainant was aged 3 and 5 years. 6The appellant filed seven grounds of appeal. At the hearing of the appeal he relied only on the first and sixth grounds. The first ground contended that each of the verdicts is unreasonable and cannot be supported on the evidence as provided for in s 6(1) of the Criminal Appeal Act 1912. The sixth ground contended that the trial judge erroneously granted leave to the Crown to amend counts 1, 2, 3 and 4 to enlarge the timeframe within which the offences were allegedly committed.

The complainant's evidence 7Th e complainant was aged 17 at the time of trial. She was first interviewed by police on 30 July 2008 when she was almost 16. The ERISP was tendered as her evidence in chief. 8She gave evidence that the appellant's mother lived in two houses in Moree and that she was cared for at both houses each day from when she was a few months old until she went to pre-school when she was cared for two or three days a week. Whilst at primary school she was cared for during the school holidays until she was 10 years old and her family moved from Moree to Gunnedah. 9She described the first house as a blue and white house on the lefthand side of the block with a yard at the front and back, and the second a house in Jacaranda Drive. The evidence at trial was the blue and white house was in Warialda Street, Moree. The appellant was one of four children - three boys and a girl who lived with their mother. The complainant said the appellant's mother worked part-time at Coles, mainly in the afternoon, and when she was not at the home the appellant or his younger brother would look after the children. She said this happened at Clarke Avenue and Jacaranda Drive. She said that during the school holidays the appellant and his brother looked after her between four and six days out of the two weeks. 10She said that the first incident (comprehended by counts 1 to 4) happened at the blue and white house after the appellant's mother had gone to Coles to work her shift. She said this was after lunch, maybe 2:00pm. She thought she had either just started pre-school or it was just before she started pre-school. She said it was in January or February because it was hot and the other children had brought some of their Christmas presents with them to play with. She had brought a model head on which she did makeup and hair styling. She said that the appellant (who she thought was in his 20s) had been at work that day either at a mechanic's or the Moree Champion newspaper. She said she was playing outside with the other children (both older and younger) when the appellant called her inside. 11She said the appellant took her to his bedroom where he put his hands underneath her clothes and touched and rubbed her with his hands around her abdominal area, back, chest and on the outside of her vagina underneath her underwear. She said she was " probably " wearing a shirt and shorts. She said he then looked out the window and took his jeans off (jeans which she said were blue denim, not faded, and of a medium (blue) colour) and, a few minutes later, while he was lying on the bed, he pulled her on top of him, took off her shorts and underwear and inserted his penis into her vagina. She said that his penis went "fully" into her vagina and that he had his penis in her vagina for "probably five to ten minutes". She said that he then started rubbing her again and kissing her and that he told her to pretend his penis was a lollypop and to suck it. She said she sucked his penis for "maybe two to three minutes" and that he kissed her back, chest and vagina. She was not sure if this was the first time the appellant had put his penis into her vagina but it was the first incident that she could remember. He did not say anything to her at the time he had his penis in her vagina. 12She said someone knocked on the door and the appellant quickly put his underwear and jeans on and told her to put her clothes back on and go outside and play. As she was walking out the back door, the appellant's girlfriend arrived. She did not tell anybody what had happened because the appellant had told her that it was "our little secret ". He said if she told anyone what had happened it would be her fault and she would get into trouble . 13She drew a diagram of the layout of the Warialda Street house and the appellant's bedroom which was tendered by the Crown at the trial. 14The complainant said that the second incident (comprehended by counts 5 to 7) happened at the house in Jacaranda Drive when she was either in kindergarten or year 1 at primary school. As with the first incident, she said it happened in the afternoon while the appellant's mother was at Coles doing shiftwork. She said once she started primary school she would go to her grandmother's home after school, from which she reasoned that the second incident occurred during school holidays in late September/early October. She said she knew it was this time of year because it was just after her birthday in August when she turned 5 or 6. 15She said that on this occasion she was in the lounge room with some other children, playing Nintendo on the television. Her sister was there but was in a cot in another room. When the game was over the appellant's younger brother took the children outside to play while the appellant asked her to help pack the game away whereupon he then took her into his bedroom where he took off his clothes and the complainant's clothes. She said he then put his penis into her vagina and pulled her onto him so that her chest and stomach were on his body with her head was on his chest and stomach. She said he kissed her and rubbed her along her back and arms. He also kissed her on her mouth using his tongue and kissed her on her legs. His legs were wrapped around her and his hands were rubbing her. She said, "the head of his penis was all the way in [her] vagina, the same as the first time" for 15 to 20 minutes. He then pulled his penis out of her vagina and told her to suck it like a lollipop which she did because she trusted him. She said she did this for five minutes. After that he kissed her mouth with his tongue for a further two minutes. Then he looked at the clock and said " Oh, mum's going to be home soon ". He told her not to tell anyone because " it's our little secret " and if she did she would be in trouble. On this occasion when he had his penis in her vagina she said it was hard and when he asked her to suck it like a lollipop it was hard. 16The complainant drew a diagram of the house in Jacaranda Drive and the appellant's bedroom which was also tendered by the Crown. 17In addition to the two incidents comprehending the charges on the indictment the Crown adduced evidence (without objection) that the appellant sexually assaulted the complainant (with full penile penetration) on other occasions when she was aged between 3 and 7. The uncharged acts were relied upon by the Crown as context evidence. 18The other assaults occurred either in the appellant's bedroom or in the bedroom he shared with his younger brother or in the lounge room. She said it happened twice in the blue and white house (at Clarke Avenue) and three times at the house in Jacaranda Drive, and that the last occasion was in the appellant's bedroom at Jacaranda Drive when she was in Year 2. She said she was not assaulted in Years 3 and 4 because she only went to the appellant's mother's house occasionally at that time and that she left Moree in Year 4.

The evidence of complaint 19The complainant first disclosed the sexual assaults in a Church youth group when she was 15. The students were set the task of writing a three-staged testimony detailing their relationship with Christ entitled - " Before I trusted Christ, how I trusted Christ and since I've trusted Christ" . The complainant wrote the following "testimonial" which she read to the group: At the ages between 4-7, I was sexually assaulted by my babysitter's son. At this age I didn't understand what was going on and he told me not to tell anyone because it would be all my fault. So I did what he told me to and I have never told a group of people about this life changing experience. 20One of the elders of the group contacted the complainant's mother and informed her, in general terms, what her daughter had disclosed. The elder had encouraged the complainant to tell her parents which she resisted for a couple of months before she showed her mother what she had written . 21It was in issue at the trial as to whether it was the complainant or the complainant's mother who named the appellant as the person who had assaulted her. It was put to the complainant in cross-examination that it was the complainant's mother who suggested that the perpetrator was the appellant: Q: You didn't actually say to your mother, did you, it was [the appellant]? Did you? A: No. Q: It was your mother's suggestion to you, words to the effect, it was [the appellant], wasn't it? Is that right? A: No. Q: You disagree with that? A: Yes. Q: How do you say the discussion was between you and your mother in relation to who it was that you said did this to you? A: I gave my mum my testimony to read, because I was afraid to tell her myself, and she asked who it was, and I said [the appellant]. Q: Are you sure? A: Yes. ... Q: Do you recall walking over to your school bag and taking out a piece of paper that was entitled, "[LP's] Testimony"? A: Yes. Q: You gave it to your mother? A: Yes. Q: You observed your mother read the document? Is that right? A: Yes. Q: She said to you, didn't she, "It was [the appellant], wasn't it"? A: I cannot remember. Q: Do you maintain that it was you that said to your mother, "It was [the appellant]"? A: Yes. Q: You maintain that? A: Yes. Q: I suggest to you that it was in fact your mother that said, "It was [the appellant], wasn't it?" A: I said it was [the appellant]. 22The complainant agreed that the conversation with her mother was the first time she referred to the appellant by name. Her mother gave evidence that she had suggested to the complainant that the appellant was the person responsible: Q: Can you tell us what happened when you spoke to her? What was said and what [LP] said? A: I spoke to [LP] and I asked her - I said that I was being - speaking to Adam Drakott regarding bible study and that you need to talk to me about something. She went straight to her school bag, pulled out a sheet of paper and it had on the top heading, "[LP's] testimony", and I proceeded to read and on the first lines, the first paragraph, it said that she was sexually assaulted by the babysitter's son. Q: What happened then, when you read that? A: She just looked at me, wouldn't say anything, and I said to her, "It was [the appellant]?" And she said, "Yes". 23The complainant also told two friends and her boyfriend that she had been sexually assaulted but she did not disclose all that had happened to her. She said the interview with police was the first time she had spoken about it to anyone in detail. 24I n cross-examination she said she did not complain at the time of the assaults because she was scared and so as to protect her parents because she knew that they would worry about her and become anxious. She agreed that she thought that telling her parents would cause family conflict and division but disagreed that was because it was a family member (namely her uncle) who had assaulted her. She said she was afraid that her parents would not believe her and that they would not want her to live with them. She denied that she simply agreed with her mother that it was the appellant had assaulted her rather than admitting she made the whole thing up. She denied making up the words "I was assaulted by my babysitter's son" to give structure to the bible study assignment. She denied that her mother made it easy by assuming it was the appellant that she had nominated in her "testimony" and it was easier for her to agree. She denied that after telling her mother about being assaulted she had to " prolong the lie ". She denied lying in her interview with police. 25The complainant also gave evidence that when she was 14 and at school a woman gave a talk about how she had been sexually assaulted from which she concluded she had also been sexually assaulted. The complainant said "... what [the woman] said about the trust and the misleading and trust, and what she was saying refreshed it in my mind" but that she still felt she could not tell anyone about the assault and that it was not until two years later that she stopped regarding it as a "little secret". She was then asked by the trial judge: Q. Without going into the detail of what the lady said to you, that was what prompted you to understand what had happened to you? A. Yes that triggered my memory. 26She agreed in cross-examination that after leaving Moree she visited the appellant's family home at Christmas and saw the appellant on those occasions.

The identity of the assailant 27The complainant said the appellant was the only person who had sexually assaulted her. She said he was " bald [in the sense that his head was shaved], probably early 20s " and that when she was 3 he was "a bit fat". She said she could not describe him further because the assaults had occurred over ten years earlier. When she was aged 3, the evidence revealed that the appellant's older brother had blonde/brown hair that was never close cropped and his younger brother had blonde hair that was short-cut but not shaven. The evidence was that the appellant's head was not shaven but his hair was short. This was supported by a photograph of the appellant said to have been taken at the time of his graduation in 1996. The same photograph showed the appellant wearing glasses which the complainant did not mention. 28The complainant was questioned about her uncle, OD. She said he was in his late 30s when she was aged 3 and that he was fat with short (shaven) hair. She said that she sometimes spent time with him at her grandmother's house on weekends while her parents were working and after school. OD lived with her grandmother. She said she was never told to be careful when she was with OD or cautioned about being with him. She denied that OD (being her grandmother's son) was the person to whom she was referring in her bible study testimony as "my babysitter's son". In re-examination she said that the appellant and OD both had hair cut short and were fat, but OD was of Aboriginal descent with medium to dark coloured skin while the appellant was white-skinned. The evidence was that OD was Aboriginal with brown eyes. A photograph of OD was tendered. She denied that OD sexually assaulted her and said "[ OD] did not assault me, [the appellant] did ".

Concessions made by the complainant in cross-examination 29The complainant accepted that in 1995 and 1996, when she was 3 or 4 years of age, the appellant was still at high school and was no more than 18. She accepted that her recollection that the appellant was in his 20s when he assaulted her must have been wrong (and that it was also wrong that the appellant was working at the local newspaper as a mechanic at that time). 30The evidence also revealed that the appellant's family did not move into the blue and white house at Warialda Street until December 1996 and that the appellant's mother did not make an application for employment with Coles until 12 January 1997. The complainant accepted that she was wrong about the first incident happening in the blue and white house when she was aged 3, and that she must have been older, and that she was wrong about the appellant's mother going to work at Coles in January or February 1996 (the time of the first incident). She maintained her evidence that at the time of the second incident the appellant's mother had gone to work at Coles, leaving her in the appellant's care.

The complainant's parents 31The complainant's parents confirmed the babysitting arrangements the complainant described in her evidence and that there were occasions when they collected their daughter from the house at Jacaranda Drive when the appellant's mother was not there and the appellant (and his brothers) were looking after the children. The complainant's mother said this occurred " quite a few times ". She also recalled speaking to the appellant about where his mother was and he said that she was paying bills or she was "up the street".

The evidence of the appellant's mother and brother 32The appellant's mother gave evidence that she and her family lived at two premises in Clarke Avenue, Moree over the course of fifteen years, first in a home unit and then in a house. She sold the house in December 1996 and moved out after the sale. The family then lived in a house at Warialda Street until November 1997 after which they moved to a house in Jacaranda Drive. 33She said she provided day care for children at the house in Clarke Avenue, including for the complainant who she said was there generally three to four days a week. She agreed that once or twice a week she left the children for about 20 minutes at a time in the care of the appellant, and her other sons, while she went to the shop. She did the same at Warialda Street and Jacaranda Drive. She said she did not go to the shops at any regular or appointed hour. Because her youngest son was seven years younger than the appellant, she said she would not have left the children in the care of the young boy on his own. Before she left she would ask the appellant to mind the children. She expected that he would know that she would be out of the house for some time. She said she left the house to shop and pay bills on a Friday, because she only had one child in care on that day (not the complainant). 34She said she commenced working at Coles in January 1997. She said she did not leave the children she was minding to go to work because her shifts at Coles started at 5.30pm or 6.00pm but agreed that there were a couple of occasions in 1997 when she was called in to work at 5.00pm. In cross-examination by the Crown she agreed that she would have to get ready to go to work to get to Coles to start work at 5.30pm or 6.00pm but she denied ever having left earlier in the afternoon in order to do shopping or attend to banking before starting work. 35She said when the appellant started work, he had an apprenticeship with the Moree Champion newspaper and that he finished at about 2.30pm twice a week. She agreed that if he were home he would assist her with minding the children. 36The appellant's younger brother said he would have been aged between 11 and 13 in 1996-1998. He recalled a number of the names of the children that were minded by his mother. He agreed it would not be uncommon for the appellant to be present with him at the house, however, he did not remember any occasion when the appellant took the complainant away from the other children and took her to a bedroom and did not recall any occasion in 1997 or 1998 when the appellant took her away from him and the other children and into a bedroom. He said he recalled occasions when his mother would leave the house and leave him and the appellant in charge of the children at Jacaranda Drive but did not recall this occurring at Clarke Avenue or Warialda Street. He said it was not uncommon for her to go to the shops but for no more than 15 minutes. He said she never left to go to work at Coles during the afternoon. 37In cross-examination by the Crown he agreed that during the times his mother was at the shops, some children could be playing in one area while others were sleeping in a different area. He agreed that when his mother was out there could have been times when he was with some children and the appellant with another child. While he maintained the position that his mother was away from the house for no more than 15-20 minutes, he agreed that because he was young he did not pay attention to precisely how long she was away. He said he did have an awareness that she would be coming back within a short time.

The appellant's evidence 38The appellant denied that he ever touched the complainant in a sexual way or had sexual intercourse with her. He did not recall any occasions when his mother would leave him and/or his brothers in charge of the children when they lived at Clarke Avenue, but said it was possible that it happened at Jacaranda Drive, and perhaps Warialda Street, but she would not have been away for long and it did not happen often. 39In cross-examination the appellant disagreed that the complainant was in his family homes with him on many occasions. He said that in 1996 he would come home from school and then go out again. He agreed there were times that he watched the children when his mother went out, but that was after 1996. He said his mother did not have a car in 1996 so it was more convenient for him to go to the shop for her. He did not recall her leaving the house after he came home from school. He did not recall his mother going to the shops and leaving him (and perhaps his brother) with the children for 15 to 20 minutes when they lived at Jacaranda Drive. He could only remember his mother leaving the house to go to work and that was in 1997 and 1998. He said she left around the same time each day, about 15 minutes before her shift. 40He said he was employed at the Moree Champion at the start of 1997. When he finished work he would go home, get changed and go to work at Coles. He worked at the Moree Champion for eight or nine years, after which he worked for Moree Holden. 41He agreed that if the complainant first attended pre-school in 1996, it was possible that he could have watched the children while his mother was out. He denied asking the complainant to help tidy up or pack up the games while other children went outside. He said that his younger brother would play with the children and only come to get him if something was wrong, otherwise he sat in the lounge room watching TV. He said there were a lot of times when his younger brother and the children would have been out of his eyesight. He did not remember ever attending to a child who was inside the house when others were outside the house.

The question of penetration and the medical evidence 42The complainant's evidence was that the appellant's penis was inserted "fully" into her vagina in both of the incidents the subject of the charges on indictment. 43In her interview with police she said in relation to the first incident: Q: OK. And then what's happened after he's taken your pants off? A: Um, he injected his penis into my vagina. Q: OK. And do you know if his penis went fully into your vagina or ... A: Ah, yep. Q: ... just a little bit or something different? A: Ah, fully . Q: Fully. OK. And do you remember how that made you feel? A: Um, uncomfortable, it was really uncomfortable and ... (emphasis added) 44In cross-examination she confirmed (when addressing the first incident) that by the appellant's penis being "fully" in her vagina she meant that the whole of his penis was inside her vagina: Q: Do you say, do you, that [the appellant] put his penis in your vagina on this occasion? A: Yes, [he] put his penis into my vagina. Q: Do you have an actual recollection of that? A: Yes. Q: You say that he put his penis fully into you. Is that right? A: Yes. Q: You understand what fully means? That means his whole penis in your vagina . Is that what you meant? A: Yes. (emphasis added) 45She went on to say she thought the appellant's penis was soft when it was inside her vagina during the first incident. She described his penis (when pressed in cross-examination) as white and hairy. She said he did not use lubrication: Q: Can you recall whether the person you say assaulted you used any sort of lubrication? A: No. Q: You can't recall or they did not? A: They did not. 46In relation to the second incident she said that the appellant's penis was "fully" inside her and that it was hard: Q: OK. So when you said that he had his penis inside your vagina, was it in fully or a little bit or something else ? A: Ah, yeah, it was in, it was in fully . Q: OK. And can you tell me how you know that it was in fully ? A: Um, because, like, the, like, head bit of the penis was, like, all the way in my vagina ... ... Q: ...the second incident we spoke about at Jacaranda Drive ... when he had his penis inside your vagina ... A: Yeah. Q: ... was it, do you remember if it was hard or soft or something else? A: Ah, it was hard. Q: It was hard. A: Yep. (emphasis added) 47She said that lubrication was not used during the second incident and that she did not cry out despite the discomfort or pain she felt on both occasions. She gave the following evidence (in relation to the first incident): Q: ...Did you make any noise when you were being assaulted? A: No. Q: You can remember not making any noise? A: Yes. Q: You didn't cry out at all? A: I didn't know what was happening, so - Q: That's not what I asked you. You didn't cry out did you? A: No. Q: Did you experience any pain? A: Yes. Q: What sort of pain? A: I felt quite uncomfortable and scared and my vagina was actually hurting. 48She was asked the following questions by the trial judge and then cross-examining counsel: Q: Can you describe in more detail the pain that you say you experienced? A: It hurt when he put his penis into my vagina. Q: This is his soft penis is it? A: Yes. Q: Please go on. A: The pressure that my vagina would have been small and his penis would have been quite bigger, that it physically hurt on the inside of my vagina. Q: I see. You say, "Would have been", do you actually remember experiencing or feeling anything? Anything different at that time? A: I felt pain inside my vagina. Q: So you did feel something different in your body? You say, "You didn't understand", but you did feel something in your body is that right? A: Yes. 49The complainant did not remember experiencing any pain on urinating or any bleeding or discharge from her vagina as a result of the penetrative assaults. Her mother did not notice any blood on the complainant's underwear. She confirmed that the complainant did not complain about pain in her vagina to anyone when she was aged three to seven. 50The Crown adduced medical evidence from Dr Leonie Kirkwood, a visiting medical officer specialising in sexual assault at Tamworth Base Hospital. She examined the complainant on 2 September 2008 and made the following findings: ...Genital examination was normal. The hymen was thick and folded, which is normal in that age group. Forensic swabs and smears were not taken because of the long duration of time since the assaults. Based wholly or substantially on the above knowledge, I am of the opinion that the normal genital examination does not preclude the assaults as described to me having taken place. 51She gave the following evidence in re-examination of her approach to an examination following a complaint of sexual assault: When I examine the female genitalia I look at the external genitalia initially, which is when we look at the mons, which is the mound at the top of the genitalia, the labia minora, which are - the labia majora, which are the lips on the outside. We look at the labia minora which are the lips on the inside. We look at the area called the posterior fourchette, which is the area where the lips join together at the back, closer to the anus. We then also look at the hymen. So that in instances of penetration, penetration may only be of the labia minora or the labia majora. Penetration does not necessarily mean full penetration of the vagina. 52She based her opinion on the time that had elapsed since the assaults and that in 70-80 per cent of cases where sexual assault involving the genital area is alleged the examination is normal. She accepted in cross-examination that the examination was also consistent with no sexual assault having occurred. 53Under cross-examination, Dr Kirkwood was asked about the effect of full penile penetration of the vagina of a 3 year old and 7 year old. She gave the following evidence: Q: Dr Kirkwood please assume that a 3 year old female has an adult male penis inserted in her fully? Please work on that assumption? Would it be reasonable to expect the tissue of the female to be rapidly stretched beyond its elastic limits? A: Yes. Q: And would that produce broken blood vessels most likely? A: Yes. Q: Would it be most likely to cause a tear of the hymen? A: Yes. Q: Would it be most likely to cause obvious bleeding? A: Yes. Q: Is it possible in those circumstances that surgical repair would be needed? A: That's beyond my area of expertise. Q: Are the outcomes that I've described likely to be similar in relation to the 7 year old child in circumstances of a fully penetrated adult male penis? A: Yes. Q: Is a circumstance of repeated penetration, that is over a period of time of up to, if I can ask you, 13 times, is that likely to have more of a deleterious effect upon the female vagina than not? A: Yes. 54In re-examination Dr Kirkwood confirmed that the expected damage to a child's vagina to which she referred in the above extract was based on the assumption of full penetration: Q: Right. So there can be penetration of the female genitalia, including the insertion of a penis, which may not even get to the opening of the vagina, is that correct? A: That is correct. Q: So it is a matter of what perception or what is meant by full penetration as to whether it actually reaches into the vagina or is penetrating those other areas making up the genitalia, is that right? ... Is that fair to say, it is a matter of what one means when someone says full penetration? A: That's correct. ... Q: Right. Your definition that you work on is full penetration is penetrating through all of the organs there, is that correct? A: That's correct. Q: OK. So on that basis and on that understanding is when you spoke of what damage may occur to a young child, is that right, from full penetration? A: That's correct. 55In cross-examination she agreed that while the structure of the vagina is complex, thus not permitting the allocation of simple measurements of its length or width, the vagina of a child of 3 years and/or 7 years of age would not have the capacity to comfortably accommodate the erect penis of a young male adult.

The sixth ground of appeal 56The application to amend counts 1 to 4 to extend the timeframe within which the assaults were alleged to have taken place from 11 weeks between 25 December 1995 and 16 March 1996 when the complainant was aged 3 years, to 19 months between 16 March 1996 to 1 December 1997 when she was aged 3-5 years was made on the basis of the complainant's acceptance of the proposition put to her in cross-examination that the appellant's family had not moved to the blue and white house until December 1996 and that they stayed there until November 1997, and her acceptance of what the trial judge then put to her, namely that she could be mistaken as to her age at the time of the first incident. The application to amend the indictment was made at the end of the Crown case. It is not clear why the Crown did not make the application after the complainant had given her evidence, thereby giving the appellant's counsel an opportunity, at that time, to have the witness recalled to address the change in the particulars of the charge. That said, defence counsel did not apply to have the witness recalled. He submitted that the prejudice to the accused could not be addressed or cured by further questioning. 57In seeking to resist the amendment, trial counsel submitted that an accused is entitled to prepare a case referable to the particulars in the indictment and, as counsel, he had prepared a cross-examination of the complainant on that basis. He submitted that were he to have been put on notice of the materially different range of dates within which it was now to be alleged that the first incident occurred, he would have approached the cross-examination at trial differently, and may even have explored the timeframe in the committal proceedings, an opportunity that his client was now effectively denied. He informed the trial judge that he was without instructions as to any additional matters that he may have been able to explore in cross-examination, or any opportunity the accused might have lost to account for his conduct or movements over the extended timeframe because of the timing of the Crown's application as his client was not, as he put it, "of a clear mind to provide instructions with respect to any prejudice that might arise". 58Sections 20 and 21 of the Criminal Procedure Act 1986 provide as follows: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) ... 59The trial judge granted leave to amend the indictment. In his Honour's assessment, there was no actual prejudice to the accused by the amendment and the fact that an accused may lose a tactical advantage by reason of an amendment is, without more, not sufficient prejudice for leave to be refused. His Honour cited Borodin v R [2006] NSWCCA 83 as authority for that proposition. He also noted that the Crown had at all times made clear that its case was that the first four offences occurred at premises occupied by the appellant's family before their move to Jacaranda Drive. The only matter that changed in the Crown case at trial was the time when the family resided in the blue and white house which had been fixed by reference to direct evidence and that, as a result, the complainant could not have been aged 3 at the time of the assault but between the ages of 3 and 5. 60His Honour expressly rejected the prejudice said to result from the loss of an opportunity to cross-examine the complainant at the committal. He was satisfied that at the time the CAN issued it was alleged that the first incident occurred between 16 March 1996 and 22 August 1997, a period of 17 months that was only contracted to 11 weeks when the indictment was settled prior to trial and that cross-examination over an extended period could have been undertaken at the committal. 61On the appeal counsel repeated the submission that trial counsel's diligent preparation and his cross-examination of the complainant to the effect that her assertion that she was 3 years old when assaulted in the course of the first incident must be wrong and her credibility adversely effected, had been neutralised by the amendment and that his client was prejudiced in that sense. 62The trial judge gave reasons for permitting the amendment in a detailed judgment. Counsel did not identify any error in the reasons given by the trial judge, or in the exercise of the broad discretion inherent in the power under the Criminal Procedure Act in accordance with the test in the House v R [1936] HCA 40; 55 CLR 499, although as Howie J observed in Borodin , the challenge is not to the exercise of the judge's discretion but rather whether there was a miscarriage of justice as a result of the amendment of the indictment by rendering the trial unfair. In that same passage Howie J observed: ...A miscarriage of justice will be shown where the amendment resulted in an unfair trial, whether that unfairness was a result of tactical decisions made by defence counsel based upon the wording of the charge or otherwise . 63Later in the judgment his Honour said at [25]: Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused. 64In this case, where the appellant's case was that he did not assault the complainant at any time when she was in his mother's care, and that he did not have an opportunity to do so because he was rarely alone with the children and, more specifically, with individual children, irrespective of what premises they were living in at the time, I am unable to see how the cross-examination of the complainant might have been significantly different had the indictment been amended at an earlier point in the trial. It is also of significance, as I see it, that no application was made to have the complainant recalled before the Crown formally closed its case. The amendment was made before the appellant was called to give evidence where an opportunity was afforded him to deal with the extended timeframe for counts 1 to 4. 65I am not persuaded that there was any miscarriage of justice resulting from the amendment of the indictment, even at a late stage in the trial. Ground 6 of the appeal should be rejected.

The first ground of appeal 66Stated shortly, the question that this Court must ask itself when a verdict or verdicts are said to be unreasonable is whether, notwithstanding that there is evidence to sustain a verdict as a matter of law, upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. That is a question of fact which requires the Court to make an independent assessment of the evidence both as to its sufficiency and quality. In SKA v R [2011] HCA 13 at [11]-[14] French CJ, Gummow and Kiefel JJ reconfirmed this is the test to be applied in accordance with the test as formulated in M v R [1994] HCA 63; 181 CLR 487 as per Mason CJ, Deane, Dawson and Toohey JJ as restated by McHugh, Gummow and Kirby JJ in MFA v R [2002] HCA 53; 213 CLR 606 to reflect the terms of s 6(1) after amendment . In Raumakita v R [2011] NSWCCA 126 Johnson J said: [32] In exercising that function, the evidence ought not be considered piecemeal: R v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; R v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29]. [33] In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground... 67The appellant did not submit that the evidence was deficient or insufficient to support a verdict. He submitted that despite the directions of the trial judge (about which there is no specific complaint) the complainant's evidence, when considered with the other evidence in the trial, was unreliable in a number of critical respects which, taken together, would justify this Court finding that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. 68In summary, the features of unreliability were identified as: · The medical evidence which rendered it unlikely that the sexual assaults could have occurred as recalled by the complainant and detailed in her evidence - in particular the extent of penile penetration - given the absence of any evidence of trauma when the complainant was physically examined at age 16 and no evidence that the complainant suffered any injury at the time of the assaults; · The complainant's recollection of being sexually assaulted on multiple occasions when she was as young as 3 years old constituted by full penile penetration on 12 or 13 occasions with the occasion the subject of the counts on the indictment being detailed as to time, place and the manner of the assaults and the appearance of the accused including the clothing he was wearing; · T he complainant's early childhood recollection of sexual assault may have been a "recovered" memory. 69The Crown submitted that these features of the evidence were all agitated in the trial, in counsel's addresses and were the subject of careful directions from the trial judge. This, coupled with the advantage the jury had of considering the appellant and the complainant as witnesses, the Crown submitted, would leave this Court well satisfied that the appellant is guilty of the offences on the indictment. 70Although it is necessary that the Court give separate consideration to each of the counts on the indictment, the approach taken by counsel on the appeal was that the complainant's evidence was undermined by such grave doubts about her reliability generally, in particular her evidence concerning the extent of penetration, that none of the convictions is sustainable. I turn now to consider that challenge. 71The appellant's counsel submitted that there was nothing in the complainant's evidence that operated to qualify her assertion that the appellant assaulted her in excess of ten or a dozen times between the ages of 3 and 7 by inserting his penis into her vagina and achieving full penetration. He submitted that the potential for the complainant's evidence concerning the extent of penetration to have sourced from her memory as a teenager of her perception as a child of what the appellant did when putting or inserting his penis in her vagina was simply not open on her evidence, despite the trial judge's directions to the jury that they might approach her evidence in that way by taking into account the evidence of Dr Kirkwood. Counsel submitted that we should not approach Dr Kirkwood's evidence that way, but that we should view Dr Kirkwood's evidence as leaving no room for the complainant's evidence to be regarded as other than wholly implausible, or so lacking in weight that we should conclude that the jury's verdicts were unreasonable. 72Counsel submitted that the complainant was questioned both by police in the interview and by counsel in cross-examination about her actual recollection of what she claimed had been done to her, not her perception or belief as to what had been done. He placed particular reliance upon the questions and answers extracted in [43]-[46] above. He submitted further that when the complainant referred to the appellant's penis (or the head of his penis) being fully inside her vagina and not a little bit she was describing full penile penetration of the length and width of her vagina by a fully erect penis. 73In addition to her evidence raising no suggestion of a lack of understanding of what was being asked of her, nor any suggestion of a lack of appreciation of what she was being asked to describe, counsel also sought to emphasise that at the time of the interview with police she was almost 16 and by the trial, she was 17 and that we should assume that she would know what full penile penetration of a vagina meant and how it was achieved . That is not an assumption that I am prepared to make, particularly in light of the fact that upon physical examination the complainant's hymen was intact. No questions were asked (nor could they have been) as to the extent of her sexual experience. 74The Crown prosecutor also submitted that neither should this Court readily conclude that the complainant was describing any particular component of the complex structure of her genitalia when she referred to the appellant's penis being " injected into in her vagina " or that he " put his penis into her vagina " or even " all the way in her vagina " or that she had any current exposure to the genitalia of a male (other than the appellant's ten years earlier whose penis she was unable to describe beyond it being white and hairy). There is force in the prosecutor's submission that the complainant was never asked to describe what she meant by the penis, the whole of the penis, the head of the penis or her vagina and that the cross-examiner's failure to pursue the issue with her cannot be now relied upon as revealing any fundamental flaw in her evidence. There is also force in her submission that b ecause of the lack of precision in the complainant's description of the mechanics of the penetrative assaults, questions of perception were rife and were properly a matter for Dr Kirkwood to comment upon. 75Taking into account the complainant's evidence and the evidence of Dr Kirkwood, I consider that it was open to the jury to accept that there was penetration of her vagina by some degree properly constituted as penetration as a matter of law, and that she perceived that the penis (or the head of the penis erect or flaccid) had entered her vagina such that she described it as being fully in her vagina, but that the degree of penetration, was well short of complete penetration. 76In addition, there were legitimate questions raised by the evidence concerning the timing and the circumstances of the complaint and the fact that the earlier "triggered memory" of the assaults did not result in complaint. There were also discrepancies in the complainant's description of events and places relative to other evidence in the case. However, I am not persuaded that either standing alone or when considered with the issue of penetration they undermine the strength of the evidence relied upon by the Crown in support of the charges on the indictment, particularly when the jury had the advantage of seeing the complainant give her evidence and the appellant give his evidence an advantage which this Court does not enjoy. 77I am not persuaded that the jury's verdicts were unreasonable and accordingly I would dismiss the first grand appeal.

Orders 78The appeal against conviction is 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: 19 December 2011

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Cases Cited (8)

Cited By (1)