MW v R

Category: Principal judgment

Parties: MW (Applicant)
Rex (Respondent)

Representation: Counsel:
S Climo (Applicant)
E L Curran (Respondent)
Solicitors:
Andrews Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/343058

Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prevents the publication of any matter which is likely to lead to the identification of the complainant. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of the name or any information identifying any children referred to in the proceedings.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 11 September 2024, MW, the paternal uncle of ST, was found guilty by a jury on one charge of sexual intercourse with a child under the age of 10 (ST, then aged 8) between 20 March 2020 and 18 July 2020, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The particularised conduct was MW inserting his penis in ST’s mouth. The Crown case was that this occurred in the kitchen of MW’s home during a game devised by MW, which ST called “the fruit game”, while ST was on her knees with her eyes covered by a beanie. Across ST’s evidence, there were some variations in the language that she used to describe what was placed in her mouth by MW.

MW sought leave to appeal against his conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the sole ground that the verdict is unreasonable or cannot be supported having regard to the evidence at trial. MW accepted that the Court should approach the appeal on the uncontroversial assumptions that the evidence of ST was assessed by the jury as credible and that the evidence of MW, as regards his denials of the charged conduct, was assessed by the jury not to be credible. MW also accepted that this was a case where the jury had an advantage over the Court in the evaluation of the evidence as a whole.

MW contended that there were four reasons why the reasonable doubt that he submitted this Court ought to feel was not extinguished by the jury’s advantage:

(i) the evidence as a whole was not capable of establishing beyond reasonable doubt that MW placed his penis, as opposed to his testicles, in ST’s mouth;

(ii) the implausibility of sexual acts (the uncharged conduct) which ST described at various points in her evidence infected the reliability of ST’s evidence as to the charged conduct;

(iii) the fact that ST’s brother, AT (aged 9 or 10 years at the time of the offending), did not give evidence was a further reason to doubt that the charged conduct occurred, given that AT was said by ST to have been at MW’s home, but in the loungeroom not the kitchen, when the offending occurred; and

(iv) the quality and sufficiency of ST’s evidence as a whole raised a doubt as to the reliability of her evidence as to the offending conduct.

The Court (Stern JA, Chen J agreeing and Dhanji J agreeing subject to additional reasons) held, granting leave to appeal but dismissing the appeal:

As to issue (i)

Per Stern JA (Chen J agreeing)

(1) ST’s evidence as to the core aspects of the offending was remarkably consistent over the course of her initial disclosure, her three police interviews, and her recorded evidence. MW’s contention that the evidence as a whole was not capable of establishing beyond reasonable doubt that MW placed his penis, as opposed to his testicles, in ST’s mouth was rejected: [73]-[74] (Stern JA); [94]-[96] (Chen J).

Per Dhanji J (agreeing with the major part of Stern JA’s reasons)

(2) As a young child confronted by adult male genitals, ST’s failure to make any distinction between what was put in her mouth and the more prominent component of MW’s genitals, being his penis, overwhelmingly suggested that it was MW’s penis that was put in ST’s mouth: [91]-[93] (Dhanji J).

As to issue (ii)

Per Stern JA (Chen J agreeing)

(3) MW’s contention as regards the apparent implausibility of ST’s evidence as to the uncharged conduct, and the inconsistencies in her accounts of that conduct, did not undermine the reliability or credibility of her evidence as to the charged conduct and was not a matter which gave rise to a reasonable doubt as to MW’s guilt: [76]-[77] (Stern JA); [95]-[97] (Chen J).

Per Dhanji J (agreeing with the major part of Stern JA’s reasons)

(4) The most troubling aspect of the evidence was the complainant’s account of the uncharged acts, some of which were unlikely to have occurred. Evidence suggestive of unreliability, particularly with respect to an allegation of sexual activity, necessarily impacted the Crown’s ability to discharge its onus of proof with respect to the charged offence. Against that, there was a specificity and consistency to the complainant’s evidence of the charged act. Her account of how the event came about had a quality of believability: [94] (Dhanji J).

As to issue (iii)

Per Stern JA (Dhanji and Chen JJ agreeing)

(5) The Crown led evidence at trial from Detective Sergeant Terry Frost, who explained he did not interview ST’s brother, AT, based on his child abuse training. ATW, ST and AT’s mother, gave evidence under cross-examination that AT had described ST “going off with [MW]” in his home. In circumstances where it was not clear whether ATW had told the Crown or DS Frost about this, and having regard to DS Frost’s explanation for not interviewing AT, the failure to call AT did not cause the Court to have a reasonable doubt as to MW’s guilt: [78]-[80] (Stern JA); [d89]-[94] (Dhanji J); [95]-[98] (Chen J).

As to issue (iv)

Per Stern JA (Chen J agreeing)

(6) Having reviewed the evidence as a whole, its quality and sufficiency did not give rise to a reasonable doubt as to MW’s guilt. Further, given the very considerable advantage the jury had in assessing and weighing the evidence as a whole, any doubt that may have been experienced would have been capable of being resolved by that advantage: [81]-[86] (Stern JA); [95]-[98] (Chen J).

Per Dhanji J

(7) The jury had a significant advantage having regard to the length of time over which they were able to view the recordings of the complainant’s interviews and her prerecorded evidence. This was a case where that advantage was capable of resolving a doubt his Honour would otherwise have held: [94] (Dhanji J).

JUDGMENT

1. STERN JA: On 11 September 2024, MW, the paternal uncle of ST, the victim, was found guilty by a jury on one charge of sexual intercourse with a child under the age of 10 (ST, then aged 8) between 20 March 2020 and 18 July 2020, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The particularised conduct was MW inserting his penis in ST’s mouth. The Crown case was that this occurred in the kitchen of MW’s home during a game devised by MW, which ST called “the fruit game”, while ST was on her knees with her eyes covered by a beanie. The trial took place from 2 to 10 September 2024, and the evidence included approximately five hours of evidence from ST, when she was aged 8 and 9, comprising three recorded police interviews (on 20 July 2020 (JIRT 1), 17 November 2020 (JIRT 2) and 25 May 2021 (JIRT 3) (collectively, the JIRT interviews), and recorded examination in chief, cross-examination and re-examination of ST (on 10 and 15 February 2022).

2. MW seeks leave to appeal against his conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the sole ground that the verdict is unreasonable or cannot be supported having regard to the evidence at trial. MW accepts that the Court should approach the appeal on the uncontroversial assumptions that the evidence of ST was assessed by the jury, at least as regards the charged conduct, to be credible and reliable: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] and that the evidence of MW (who gave evidence at the trial) was assessed by the jury, as regards his denials of the charged conduct, not to be credible. MW also accepts that this is a case where the jury has an advantage over this Court in the evaluation of the evidence as a whole.

3. MW contends, however, that the reasonable doubt that this Court should feel is not extinguished by that advantage for essentially four reasons. First, and most significantly, he contends that the evidence as a whole was not capable of establishing beyond reasonable doubt that MW placed his penis, as opposed to his testicles, in ST’s mouth. Second, he contends that the implausibility of sexual acts (other than the charged conduct, which I will call the uncharged acts) which ST described at various points in her evidence infected the reliability of ST’s evidence as to the charged conduct. Third, he contends that the fact that ST’s brother, AT (aged 9 or 10 years at the time of the offending), did not give evidence was a further reason to doubt that the charged conduct occurred given that AT was said by ST to have been at MW’s home, but in the loungeroom not the kitchen, when the offending occurred. Fourth, MW contends that the quality and sufficiency of ST’s evidence as a whole raises a doubt as to the reliability of her evidence as to the offending conduct.

4. MW contends that, when considering his ground of appeal, the Court should have regard to two short excerpts from the videos of ST’s JIRT interviews, in which she makes hand gestures which are not discernible from the transcript. Beyond this, the common position of MW and the Crown is that there is no reason for the Court to watch the videos of ST’s JIRT interviews or her recorded evidence. Consistent with this, and with the guidance provided in The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [11]-[20] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), I have approached MW’s appeal on the basis of the submissions and evidentiary material relied upon by the parties, and have not considered the video of ST’s evidence beyond the excerpts relied upon by MW. I have also been mindful that “undertaking an assessment of the credibility of a witness’s evidence by reference to the manner in which that evidence was given is not a ‘real forensic purpose’ for the appellate court to review recorded witness testimony”: The King v ZT at [16].

5. On 19 September 2024 MW was sentenced to 4 years’ imprisonment commencing 9 September 2024, with a non-parole period of 2 years. He does not appeal his sentence.

6. Given the issues raised by MW, leave to appeal should be granted. The appeal should, however, be dismissed.

Relevant principles

7. Consistent with M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63, when considering whether a jury verdict is unreasonable, the question 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 must not disregard or discount either the role of the jury or “that the jury has had the benefit of having seen and heard the witnesses”. The Court added at 494 (Mason CJ, Deane, Dawson and Toohey JJ) that:

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.

8. Not every discrepancy or inconsistency in evidence could lead to such a doubt. Rather, as explained in M v The Queen at 494:

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.

(Citation omitted.)

9. In The King v ZT at [9]-[12] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), a majority of the High Court noted three aspects of M v The Queen. First, that the jury’s advantages are not confined to witness testimony and may extend to all of the evidence adduced at trial. Moreover, there is also the advantage of the jurors’ collective wisdom and experience including from seeing and hearing the evidence as it unfolds. Second, an appellate court is required to give “full allowance” to the advantages of the jury in seeing and hearing the evidence when considering whether those advantages may resolve any doubt the appellate court holds as to an appellant’s guilt. Those advantages include a range of matters that a jury might observe during a trial and also the jurors’ breadth of understanding of how people speak and behave. Third, the assessment of the sufficiency and quality of the whole of the evidence that is required of the appellate court (at [11]-[12]):

[I]s undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties' respective cases at the trial. … [I]t is for the parties to place all evidentiary material and submissions before the appellate court which they consider relevant to the discharge of the court's function and it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not.

(Citations omitted.)

10. As is readily apparent and well recognised: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [17], the scope of the advantage the jury has over an appellate court will vary. Here, the jury had a material advantage over this Court in assessing the evidence as a whole having heard and seen not just ST (over some five hours of recordings), but also MW and a range of other witnesses, give evidence. Given that the key issue at trial, and on appeal, is the credibility and reliability of ST’s evidence of the charged conduct, and what should be made of ST’s language and gestures having regard in particular to her age and apparent level of maturity, the jury’s advantage over this Court is very considerable.

11. Moreover, the significance of any inconsistencies in ST’s evidence must be considered having regard to her age at the time both of the offending and of her giving evidence: see eg BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 at [46]. So too must ST’s age be considered when assessing what to make of the language she used and the gestures she made during her police interviews and recorded evidence.

Background to the offending

12. At all material times ST lived with her mother (ATW), father (BW), AT, and her younger sister (RT) who was born in January 2020. MW lived in an apartment with his (and BW’s) mother and MW’s sister also sometimes stayed there. Over the years ST and AT would go to MW’s home on-and-off sometimes for a couple of hours and for sleepovers most weekends. ST and AT did not go to MW’s home when that was prohibited by the restrictions in place by reason of the COVID-19 pandemic, which on the evidence would seem to be from around March 2020 until 15 May 2020.

13. MW’s mother was a cleaner at a restaurant and worked a couple of days a week from 7 until 9 am, but she did not work between 1 March and 25 July 2020. MW worked as a senior specialist technician for parking meters and worked from 2 pm Tuesday to Saturday including during the COVID-19 lockdown, though sometimes worked from home during COVID-19. There was conflicting evidence as to whether or not MW’s mother would always be home when ST and AT were there. ATW said that MW would look after ST and AT while MW’s mother was at work. ST said that she and AT were there with just MW at the time of the offending conduct. MW and MW’s mother, however, said that MW was never alone with ST and AT.

14. The kitchen at MW’s home had a curtain between it and the lounge room. The lounge room had a number of sofas.

15. Given the evidence I refer to below, it is relevant to note that there was also conflicting evidence about whether or not, around the time of the offending, ST needed assistance with toileting. ST said that sometimes she had toileting accidents and sometimes did not clean herself properly after going to the toilet and sometimes had dirty underpants but she denied anyone helped her wipe herself when she went to the toilet or that she ever got in trouble for having dirty underpants. ATW said that ST only ever had toileting accidents when she went to MW’s home but said that ST would clean herself back at her home if she had had a toileting accident at MW’s home. By contrast, both MW and his mother said that ST sometimes had toileting accidents and they had to clean her afterwards.

16. From 16 to 19 July 2020 RT was ill and was admitted to hospital. BW’s evidence was that AT and ST had gone to MW’s home in the days or weeks before July 2020 when RT was ill and had to be in hospital and, consistent with this, ATW’s evidence was that she had taken AT and ST to MW’s home after the COVID-19 restrictions were lifted.

Crown case at trial

17. The Crown case at trial was that on an occasion after the complainant’s eighth birthday, which was in March 2020, she and AT were at MW’s home. ST and MW were in the kitchen playing the fruit game, which involved ST having a beanie over her head, covering her eyes, and pieces of food being put in her mouth, with ST having to guess what it was. ST was on her knees with MW standing up. MW pulled his pants down to his knees, put his penis in ST’s mouth, and made ST suck his penis. ST was then given a scoop of ice cream.

18. It was common ground on appeal that the act of sexual intercourse that the jury was required to find occurred was “the introduction of any part of the penis of a person into the mouth of another person”.

MW’s case at trial

19. At trial, MW denied any sexual contact with ST. He said that on two occasions, once when ST was 6 and once when she was 8, he had cleaned her up after toileting accidents. He repeatedly said that he had never been alone with ST and her brother when they were at his unit. MW’s mother said that she came up with the idea for the fruit game and that she had played it with ST. MW’s sister also said that she had seen ST playing the fruit game.

20. MW’s counsel put to the jury in his closing submissions that ST’s evidence had been contaminated by ATW, who had told her what to say to the police, and that also as a result of inconsistencies in her evidence, “there should be grave doubts as to whether any sexual interference occurred at all”. He submitted that ST’s beliefs as to this were false and her evidence was unreliable. He asked the jury to use their “common sense and experience of children in [their] own lives” to consider the danger posed by ATW encouraging ST to continue to say things “which she feels expected to say”. He placed considerable reliance upon whether the evidence referred to MW’s testicles as opposed to his penis. He accepted that ST’s DNA was found on the beanie but said that that arose from playing the fruit game in the way he described in his evidence. He submitted that the fact that AT did not give evidence suggested that he did not observe the uncharged conduct that, on ST’s evidence, occurred in his presence. He also submitted that ATW was not a reliable witness, in the context of submitting that ATW had made assumptions as to what had occurred rather than relying upon what ST had actually told her, and that ST then, in turn, adopted these as her own beliefs.

21. As is apparent, all of the matters relied upon by MW in this appeal were put by him to the jury at trial.

The matters MW contends raise doubt about his guilt

ST’s evidence of what the offending entailed

22. As I have already indicated, MW’s submission on appeal is that the evidence as a whole does not establish that MW put his penis in ST’s mouth, which was how the offending conduct was particularised at trial. He submits that the initial complaint evidence suggests that MW put his testicles, not his penis, in ST’s mouth and that ST’s evidence as a whole should cause this Court to have a reasonable doubt, not capable of being resolved by the advantages possessed by the jury, as to whether MW put his penis or his testicles into ST’s mouth. MW contends, correctly, that this is an issue which goes to the heart of the offending conduct. Key to this issue is the factual question whether ST was referring to MW’s penis or his testicles when, in some of her accounts, she referred to MW putting his “balls” into her mouth during the fruit game. In considering the significance of this it is necessary to bear in mind both ST’s age and the dearth of evidence as to how male genitalia was referred to, if at all, in her home.

23. Starting with the complaint evidence, ATW’s evidence at trial was that on 18 July 2020, when RT was in hospital, she was at the hospital and told ST and AT that she was taking them to MW’s home. In response, ST approached her and told her that MW had told her to keep a secret and not to tell ATW. ATW asked ST what the secret was, and ST said that MW “wipes her bum”. ATW did not take ST and AT to MW’s home. She told BW, and later his (and MW’s) mother was told what ST had said.

24. Later that day ATW asked ST whether MW had touched her anywhere else. She said no, but then mentioned the fruit game. ATW’s evidence as to this was:

[T]hen she mentioned something about a fruit game, where she had to see if it was apples or banana, and then she said it didn’t taste like fruit at all. And then I asked her, “Did he pull his pants down?” she said, “Yes, and put his thing in my mouth”. And I said, “What thing?” And she said, “His penis.”

25. There is no contemporaneous note of what ST told ATW in this conversation. ATW accepted in her oral evidence that, in a document prepared by ATW at some time between 24 September 2020 and 20 January 2022 (ATW’s document), she had recorded that ST told her that MW put his “thing in my mouth” during the fruit game and she asked ST “What thing, his penis”, with ST responding, “Yes”. ATW explained this discrepancy by saying that she has difficulties with expressive language by reason of a learning disability and that her words did not come out in ATW’s document as she intended. In his submissions on appeal, MW placed significant emphasis upon the inconsistency between ATW’s evidence and ATW’s document as to whether it was ATW or ST who suggested that MW’s “thing” was his penis. It can also be noted that in ST’s cross-examination on 10 February 2022 ST agreed that, during this conversation, ATW asked her if MW had put his penis in her mouth and that she responded:

Yes, and asked me to suck it.

26. Considering this evidence as a whole, I would agree with MW’s submission that the most likely inference is that it was ATW, not ST, who first mentioned the word “penis”, but that she only did so after ST told her that he put his “thing” in her mouth. In this regard, I have also taken into account that, as set out below, ST herself often used words other than “penis” to describe what MW put in her mouth.

27. ATW said she was very angry and upset at this. She called her mother who told her to make a recording on her phone. She did, and the transcript of this discloses the following exchange:

[ST]: Police I’m just letting you know that [MW] was cleaning my bum and then he put his balls in my mouth and then told me to suck it.

[ATW]: Is there anything else bubba.

[ST]: No.

[ATW]: Okay. I love you[.]

[ST]: Love you to. [sic]

28. MW places some significance, in his submissions on appeal, on the fact that this early recording refers to “balls” rather than “penis”. There is, however, some ambiguity as to what ST is referring to here, given that “balls” is plural but she says that MW told her to “suck it”, singular. Having regard to this, this recording is somewhat equivocal as to what ST was describing.

29. Later on 18 July 2020, ATW spoke with Delenn Moller, a registered nurse at the hospital where RT was admitted in July 2020. Ms Moller recalled ATW being teary and quite upset and that her hands were shaking during this conversation. She did not recall the exact words spoken by ATW but said that the gist was that ATW told her that her older child had disclosed there was a sexual assault which involved the child’s uncle cleaning her up after a bowel motion. She also said:

I was told that the child had put her paternal uncle's testicles in her mouth, there was mention of a fruit game that I recall - I don’t know the context of it now, five years later - and that mum had a recording of the child admitting to that. She offered to show it to me, I said, “Not right now, it's not something I need for what I'm about to do”, which was the reporting.

30. As this was described by Ms Moller as evidence of “the gist” of what was said, it is possible that ATW used the word “balls” not “testicles” in telling Ms Moller what ST had said.

31. The most natural inference from the evidence set out above is that ST referred to MW having put his “balls” in her mouth during the fruit game in this first disclosure to ATW.

32. One of ST’s schoolteachers, Kelsy Roney, gave evidence that she knew ST quite well and that she was a “very emotional” child who was “easily distracted, but very polite”. She said that in July 2020, sometime after 20 July, there was an ad hoc discussion in class about the feelings you get if you feel safe or unsafe. During this ST said:

I don't feel safe at my uncle's house but my mum said I don't need to go there anymore.

33. Turning to ST’s interviews and recorded evidence, JIRT 1 involved a police officer at the Blacktown Child Abuse Unit interviewing ST on 20 July 2020. ST was asked who she had a secret with and she responded:

Normally he’s not my uncle anymore, [MW]. Just [MW].

34. When asked why he was not her uncle anymore, she said:

Normally he putted his private part in my mouth.

35. When asked when he does this, she said:

Mmm, he always does it all the time.

36. She could not remember the last time it had happened but when asked whether she remembered the first time it had happened she said:

Nope. A lot of times. He said, If it’s, It’s our game, but I don’t think it’s their game

37. The following exchange took place during the interview:

Q77 OK. OK. Now when you say, [MW’s] private part, what are you talking about?

A Like, his balls.

Q78 His balls. OK. And can you tell me what his balls are.

A Yes.

Q79 Yep.

A Normally it's his private part. It, his balls just like up to this big.

Q80 [13:16] Uh-huh. And what does he do with his balls?

A Put it in my mouth.

Q81 Yep.

A And then he said, don't look, and keep it as a secret. Then I told Mum straight away. …

38. Again there is the ambiguity attending ST’s use of the word “balls” and her use of the singular “private part” and “it”.

39. The video of this exchange is one of the excerpts that MW asked this Court to watch. ST takes her hands out of her pockets and links her thumbs and forefingers to form a circle when she says, “up to this big”. This gesture is consistent with ST, an 8 year old child talking about what was being put in her mouth, referring (as one would expect in the circumstances not with any precision) to how big the circumference of the penis got, or possibly to male genitalia more generally. Given this, I do not accept the submission of MW that this gesture could only be referable either to male genitalia as a whole or to testicles. I would also add that having viewed the video of this part of JIRT 1, with ST spontaneously demonstrating what she is trying to explain, it is readily apparent that the jury had a considerable advantage in assessing whether ST genuinely recalled what she was describing.

40. JIRT 1 ended because ST was tired. At the start of the interview ST made it clear that she knew what a lie was. Before the interview ended ST agreed that everything she had said had been the truth.

41. JIRT 2 took place on 17 November 2020 before another police officer at the Blacktown Child Abuse Unit. At the start of the interview ST again made it clear that she knew what a lie was. She also said that she would only tell the truth during the interview.

42. ST was asked what she could tell the interviewer about secrets she had with people and she responded:

I don’t want to tell you ‘cause I’m a bit nervous about that.

43. She then said that she did not want to tell the interviewer about her secrets and when asked why, she said “it’s because he’s not our uncle. We don’t talk about him anymore”. When asked why, she said “because he is doing the wrong thing”. She was asked what that meant, and the following exchange took place:

A It means, like, he was, like, licking, like, he was, he was, his, we, we were doing our own game.

Q131 Yeah.

A And then I had to suck his balls.

Q132 O.K. So you were doing a game and you had to suck his balls. O.K. Thank you for telling me that. It would have been really hard. Are you O.K.?

A (NO AUDIBLE REPLY)

Q133 I see you shake your head. What does that mean?

A Yes.

Q134 It means yes. O.K. So can you tell me more about this game?

A That's all.

Q135 That's all?

A Like, only the fruit or some junk food or anything.

Q136 O.K.

A Only for food.

Q137 Food. O.K. So when you say "his balls", what do you mean?

A Like, his doodoo.

Q138 His doodoo? And what's that used for?

A You know, his penis.

Q139 His penis.

A Mmm.

44. Thus, whereas in JIRT 1 ST said that MW’s “balls” were his “private part”, making the gesture I describe at [39], in JIRT 2 she says that his “balls” are his “doodoo” or “penis”. This suggests that, in previous accounts, ST was referring to MW’s penis when she used the word “balls”. Contrary to MW’s submission, this is evidence of a quality that could extinguish any doubt as to whether the fruit game involved MW putting his penis, as opposed to his testicles, in ST’s mouth. Whilst ST does later revert to using the word “balls” rather than penis, the evidence set out below indicates that ST was reluctant to use the word penis, and if (as she said in JIRT 2) for her “balls” means penis, then there is no reason to understand her use of the word “balls” as meaning something other than MW’s penis.

45. ST said that the offending happened when she was 8 years old and only AT, ST and MW were at the house. AT was on the couch watching TV while she and MW were in the kitchen. The second video excerpt that MW asked this Court to view occurred during this interview when ST was describing something that she did with a school friend involving opening a nappy in the air, at which point she linked her fingers and turned her hand over with one finger wriggling in the air. Counsel for MW contended that this gesture is consistent with a reference to a penis, and that, when compared with ST’s hand gesture during JIRT 1, indicates that ST was conscious of the difference between a penis and testicles and, by implication, that her hand gesture during JIRT 1 should be understood as referring to something other than a penis. This contention should be rejected. It is not easy to understand why ST made the gesture she did during JIRT 2. One possibility is that this is just referable to the game she has with her friend. Another is that her gesture refers to a penis in a context where, about 13 questions earlier, she was asked how she would describe MW but she responded that she “get[s] a bit shy”. In either case, both gestures could (for the reasons I have already given) be understood as seeking, albeit in different ways, to describe a penis.

46. ST then drew a picture of where she and MW were, and where AT was, during the game. The drawing shows ST and MW surrounded by a right-angled line, and AT on a sofa on the other side of the picture. ST explained in the interview that the line was “[s]o no one could look at us” and that she and MW were in a different room from AT. She said AT was watching TV at the time. ST has what she described as “covers for [her] eyes” in her drawing. When asked why her eyes had covers she said, “It’s because of his balls”. When asked how the covers got onto her eyes, she said, “So you can’t see”. She later said the covers were “like a beanie”, that she had meant to draw a beanie and that she “had to put it all on my eyes”. When asked where the beanie went she said:

A And then it, and then I putted it off and then he putted his pants up, and then I put it back on.

Q409 Yeah.

A And he put his pants down.

Q410 O.K.

A Don't know why.

47. This evidence suggests that ST saw MW had his pants down when she took the beanie off during the game. The spontaneous detail of this evidence suggests genuine recollection.

48. ST was asked if she could see anything with the beanie on and she said “no”, that she could only see “black stuff”. She was asked how she knew that she sucked MW’s balls if she couldn’t see and she said that she “could see only a little bit” and that she could see his pants on his knees.

49. Whilst drawing herself, she said “it’s supposed to be on the knees, but I don’t know how to draw knees” and that that was “how [she was]”. When asked how MW was positioned she said:

And pretend I was sucking on his balls. That’s his balls, right?

50. Again, the spontaneous way in which ST explains how she is trying to include aspects of what occurred in her drawing suggests genuine recollection.

51. In the drawing MW has what could be either a penis or male genitalia more generally clearly visible hanging between his legs. Contrary to the submission of MW’s counsel, in circumstances where this was drawn by an 8 year old girl, there is no basis to infer that this is more likely a drawing of testicles than of a penis. In either case, her drawing must include a penis as it is obvious that she is drawing MW either with no pants on or with his pants pulled down.

52. ST said that MW came up with the game and that MW “gave me ice cream but first I had to put my, his balls into my mouth”. ST gave inconsistent accounts of whether “anything else like this [had] happened another time”, first saying, “No, no” then saying, “Maybe ten times”, and later saying that she was confused. She said that with the beanie over her eyes she “only could see black stuff” but later said that she “could see only a little bit” and could see “[o]nly, like, itty-bitty black stuff” but could see MW’s pants, that were “[o]n his knees”.

53. At the end of the interview ST was asked if she had told any lies during the interview, and she said “Well, only one lie”, which was telling her mum after MW had told her to, “Keep it as a secret”, but she had told her mother and then MW got angry. ST also agreed that she had told the truth during JIRT 2.

54. JIRT 3 took place on 25 May 2021. Again, ST demonstrated at the start of the interview that she was aware of the difference between the truth and a lie. During this interview, ST gave accounts of the uncharged acts, as discussed below. During the course of one of these accounts, ST referred to MW’s “peepee” and whilst being asked about this ST began what seems to have been some form of demonstration of what happened, commencing with the words, “pretend this is [AT] … watching TV … And this is me and Poopface [a term she used to describe MW during this interview]”. She then added that she needed “a kind of little stick” to show what happened, and that she could not say what happened because she was “a bit shy”. This evidence suggests that when ST used the word “peepee” she was referring to MW’s penis. The following exchange then occurred:

Q132 OK. All right. And you also said, peepee, what do you mean by that?

A Um, his, his - - -

Q133 I see your [sic] pointing down to the middle of, sort of, your crotch. Is that what you mean?

A Yeah.

Q134 And is there a name for that?

A Yes. But I don't want to say it.

Q135 That's OK. Do you think you could try and say it for me, [ST]?

A Mm - - -

Q136 You shake your head. What does that mean?

A No.

55. This exchange suggests that ST did not like using the word for what MW put in her mouth.

56. The interviewer then asked ST what MW’s peepee did, and ST had difficulty answering this question, saying “I’m trying …”, then saying, “I can’t speak”, then finally, “I forgot what I’m about to say”.

57. ST was later asked whether she remembered “the game” and she said:

Um, it’s, it’s like a game, um, so I put a, my mouth on his peepee so I could, so he wanted to say what I could, like, what I want, want to eat. I said an ice cream … And he gave me an ice cream, but he didn’t, I didn’t feel like one anymore … But I ate it anyway.

58. She was again asked what she meant by his “peepee”, and she said, “Mm, remember I put it, pointed down … here”. After this she gave evidence of making rhymes with AT such as “Doodoo, poopoo, doodoo, you know”, and the following exchange then took place:

Q 171 Yeah. OK. So when you said, Peepee, is that something that actually happened?

A Um, nuh. Um, uh, uh .....

Q172 What does - - -

A Mm - - -

Q173 - - - that mean, [ST]?

A It mean, it means, yes, that he was about to do some, it was abou, [sic] it was about to do something.

Q174 Yeah. What was about to do something?

A Put it in my butt.

Q175 Put what in your butt?

A Doodoo

59. MW submits that this exchange should be understood as ST saying that the charged conduct did not actually happen. Given that this was a question put to ST after she had been speaking of making rhymes, and somewhat after she had been describing the fruit game, that inference does not reasonably arise from this evidence.

60. At the conclusion of JIRT 3, ST again agreed that she had told the truth and that she had not told any lies during the interview.

61. During a recorded hearing over two days on 10 and 15 February 2022 ST was examined in chief and cross-examined. During this she confirmed she had told the truth in each of her JIRT interviews. At the commencement of her recorded evidence ST referred to some of the uncharged acts and, having said that MW “putted his doodle on, into my vagina, vajayjay”, she then said that MW had also put it in her mouth. As she did not suggest that any of the uncharged acts involved such conduct, that would naturally be understood to be a reference to the charged conduct.

62. ST was also asked to say what a penis is, and she responded that, “A penis is something what boys got”. She was asked to describe it, to which she said, “I can’t describe it”, and then to describe what balls look like, to which she said, “I can’t”.

63. It was put to ST in cross-examination that she had told her mother about MW putting his balls in her mouth the first time that it happened and she disagreed with this, explaining:

Yeah, I disagree because I did what he told, then when [RT] went to the hospital I said – I told mum.

64. In her cross-examination ST repeatedly confirmed a number of aspects of her account of the charged conduct. More particularly, she disagreed when it was put to her both that MW never put his balls in her mouth and that he did not put his penis in her mouth, she said that the charged conduct occurred during the fruit game, that MW’s mother was not at home at the time of the charged conduct, that this occurred in the kitchen while AT was watching television on the couch, that she was on her knees during this, she denied that she had played the fruit game with her grandmother or aunt, and she said that a beanie was put over her eyes during the fruit game and during the charged conduct and that MW gave her an ice cream after the offending conduct.

65. She was asked during cross-examination how she knew that she sucked MW’s balls or penis if she could not see. She said:

Because I know what they look like and I know what they taste like and ‘cause I was down on my knees and-- … ‘cause I have been seeing his – him in a bath, naked, and I was naked too so I went and [MW] – in the bath, then he done something weird with his, you know, balls.

66. She also said that she could see through the beanie that was put over her eyes and that was how she saw MW’s balls and knew they were in her mouth.

67. In cross-examination, on a number of occasions, questions were put to ST suggesting that ATW had told her what to say to the police or that ATW had told her to say specific things to the police and on the video ATW took on 18 July 2020, including “that [MW] put his balls in your mouth”. ST agreed with most, but not all, of these suggestions. There is an inherent ambiguity about this evidence. It could be understood as evidence that ATW had coached ST as to what to say, but it could equally be understood as reflecting ATW having told ST to “tell the truth”, or to “tell the police what you told me”. Whilst, as MW submits, ST did not tell the cross-examiner that she did not understand the question on any of these occasions, that is readily explicable if ST thought that she did understand the question, albeit that her understanding might not have been the same as the cross-examiner’s.

68. In these circumstances, I reject MW’s contention that ST’s evidence as to this undermines the reliability of ST’s account. It should also be observed that ST was repeatedly asked during cross-examination what she had said to various people, and what they had said to her, about the charged conduct on various occasions in circumstances where it is inherently unlikely that she would recall those details. Again, inconsistencies in that evidence does not undermine the reliability of ST’s evidence as to the charged conduct.

69. It is also relevant, when considering ST’s evidence as to these matters, that ATW’s evidence was that she told ST “to be honest and tell the police what she told me, that was it”, and to “[t]ell the police everything you told me to the police”. She disagreed that she told ST to say to the police that she was on her knees when this happened and said, “I didn’t know anything about it”. She denied that she told ST to tell the police details of what occurred and said that “[n]othing was suggested”.

70. There are some unsatisfactory parts of ST’s evidence during cross-examination. ST said during her evidence that she had told ATW about some of the uncharged acts during the conversation they had on 18 July 2020, when that is not consistent with other evidence. There is another passage during ST’s cross-examination where she disagrees that she “didn’t say” certain things in a video when the transcript of that video shows that those things were not in fact said. ST also disagreed that she used to have toileting accidents or sometimes had dirty pants when she had accepted that earlier in her cross-examination. These matters suggest that not all of ST’s evidence was accurate, but do not cast doubt on ST’s evidence as to the charged conduct, particularly bearing in mind that her answers suggest that she might have understood the questions to be directed as to whether the underlying acts occurred rather than to whether she had said anything about them on the video. In any event, her answers need to be assessed bearing in mind her age and the likely unfamiliarity of the process she was participating in.

71. There are also a number of occasions during the JIRT interviews and recorded evidence where the transcript suggests that ST is shy, distracted or does not understand what a question really means. She showed understandable reluctance to describe a penis in words or at times to say what MW did with his penis, but that is readily understandable given her age and the circumstances. None of this casts doubt upon the credibility or reliability of ST’s evidence as to the charged conduct.

72. In re-examination, ST was asked, “[MW] making you suck his doodle, is that something that really happened or was it a made up story or something else?” to which she said, “Something really, something really happened”. She was also asked, “being in the bathroom, you being in the bathroom when [MW] was naked in the bath, is that something that really happened or a made-up story or something else?”, to which she said, “Well, I did go in, in the bathroom with [MW] and he was having a bath with me, don’t know why, I didn’t wanted to but I had to.” She confirmed that this “[r]eally happened.” She also denied that her mother ever told her to say anything that was a made-up story.

73. As is apparent, ST’s evidence as to the core aspects of the offending was remarkably consistent over the course of her initial disclosure, her three JIRT interviews, and her recorded evidence. As is also apparent, ST explained in JIRT 2 that for her, “balls” referred to MW’s penis, and her evidence as a whole is entirely consistent with this explanation. She did not once refer to “testicles” in her evidence. She used other words such as “peepee” and “doodle” which naturally refer to the penis and the hand gestures during her JIRT interviews (that this Court was asked to view) were both clearly capable of referring to a penis. She also denied that MW had not put his penis in her mouth.

74. Having regard to these matters, and to the evidence I have summarised above, MW’s contention that the evidence as a whole was not capable of establishing beyond reasonable doubt that MW placed his penis, as opposed to his testicles, in ST’s mouth should be rejected. The language used by ST at various points in time to describe what MW did to her does not cause me to have a reasonable doubt as to MW’s guilt of the charge particularised, namely one involving MW putting his penis in ST’s mouth.

ST’s evidence as to the uncharged conduct

75. As already observed, ST’s first disclosure was of MW wiping her bottom. During her interviews and recorded evidence ST also gave evidence of MW licking her, cleaning her with his tongue and also his peepee, using nappy wipes on her butt, licking her bottom “between and also in” using his tongue “all the way to the hole of my butt”, and putting his doodoo “in her butt” which made her feel “really butterflies in my belly”. She said the cleaning with wipes and MW’s tongue happened when she was sitting on the couch and that it happened “when he was, like, 5, 6, 7, 8” (which I would infer was intending to say when “she” was those ages). She also said during her recorded cross-examination that when AT was not there and she was “all alone”, MW said “that cleaning my butt is important and, and also he, he putted his doodle on, into my vagina, vajayjay and I felt a little bit of pain”. She said there was a blanket on top of her and MW at the time he put his penis in her vajayjay. On another occasion she said that AT was on the second couch in the lounge when MW put his penis in her bottom.

76. As MW submitted on appeal, ST’s evidence as to the uncharged conduct was inconsistent and it seems somewhat implausible that acts such as these could have occurred while AT was in the same room. However, as the Crown submitted on the appeal, these uncharged acts were not the subject of any thorough investigation in the evidence, and it is far from clear how old ST was at the time she says these things happened. Furthers, the evidence as to the uncharged conduct contrasts markedly with the specificity and consistency of ST’s evidence as to the charged conduct, which on ST’s evidence occurred only shortly before she told her mother and was interviewed by police.

77. In these circumstances, MW’s contention as regards the apparent implausibility of ST’s evidence as to the uncharged conduct, and the inconsistencies in her accounts of that conduct, do not undermine the reliability or credibility of her evidence as to the charged conduct. This is not a matter that causes me to have any reasonable doubt as to MW’s guilt.

The lack of evidence from AT

78. The Crown led evidence at trial from Detective Sergeant Terry Frost, who was a team leader at the Northwest Regional Child Abuse Unit. He took over as officer in charge of the investigation of the abuse of ST from shortly after her first police interview, on 20 July 2020. He explained that he did not cause any interviews to be conducted with ST’s brother, AT. He explained that he did consider interviewing AT, who was 10 at the time, but that, with his training in child abuse:

[E]ven with complainants and witnesses of children you weigh up the circumstances of putting them through a traumatic forensic interview and raising things or not doing it. Weighing up their well being. So through my training and what I’ve seen with experienced child abuse detective interviewers, you have the child at number 1, and their well being, and the criminal aspect is number 2.

79. During ATW’s cross-examination, she was asked whether AT ever described to her anything untoward happening at MW’s place involving ST. The following exchange then took place:

A. She noticed – he said to me that he noticed her going off with [MW] by himself but [MW] would always put a game on for [AT] before he would do anything with [ST].

Q. Did you tell that to Detective Frost?

A. I don’t remember.

80. In circumstances where it is not clear whether ATW had told either the Crown or DS Frost about this on any occasion before her cross-examination, and where it was not part of the Crown case that AT had made such an observation to ATW, the question arises whether the failure of the Crown to call AT (having regard to the evidence as a whole) causes me to entertain a reasonable doubt as to MW’s guilt: Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27]; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [29]. Given DS Frost’s explanation for not interviewing AT, the absence of evidence from AT does not cause me to have such a doubt. Moreover, the jury was directed that they could take the fact that there was no evidence from AT into account when considering whether the Crown had proved MW’s guilt. In any event, counsel for MW submitted to the jury that it was significant that AT had never been interviewed. In these circumstances, it was a matter for the jury to decide what to make of this in the context of their assessment of the evidence as a whole, and as regards that assessment, as I have already explained, the jury had a very considerable advantage over this Court.

The quality and sufficiency of the evidence as a whole

81. MW’s contentions as to the quality and sufficiency of the evidence as a whole necessarily include the matters considered above.

82. Beyond those matters, MW contended that ST’s evidence as to what she could see during the game, with the beanie over her eyes, was both inconsistent and implausible. I agree that there is some inconsistency in ST’s evidence, as she sometimes said that she could not see anything when the beanie was over her eyes and at other times said that she could see a little at that time. This does not, however, materially dint her credibility in circumstances where her evidence is reasonably understood as indicating, as a child would, that with a beanie over her eyes she couldn’t see normally, but that she could still see a little. She also said that she took the beanie off and saw MW with his pants down, then put the beanie back on, during the fruit game.

83. There is also something a little unrealistic about the suggestion by MW that ST, if kneeling on the floor in close proximity as she must have been to MW, would not have known what he was putting in her mouth and asking her to suck.

84. MW also contended that ATW’s evidence as to what ST said to her on 18 July 2020, and in particular as to whether ST or ATW used the word “penis”, is troubling and raises a doubt about the chronology of ST’s complaint and as to the reliability of that complaint. MW also submitted that there was unreliability about other evidence from ATW that ST had been given a physical examination after the disclosure to Ms Moller whereas the evidence indicated that this was limited to the taking of a buccal swab, and about evidence from ATW that she did not know the purpose of the fruit game, which submission appears to be premised upon the apparent implausibility of that answer. None of these matters cause me to have any doubt as to MW’s guilt. In circumstances where ST said that MW put his “thing” in her mouth, the inconsistency in ATW’s evidence as to whether ATW or ST said the word “penis” is of no real significance. The other two matters are peripheral matters. They do not undermine ATW’s evidence that she did not tell ST what to say to police, which is the key evidence of ATW that could go to the credibility and reliability of ST’s evidence. And it is the evidence of ST, not that of ATW, upon which MW’s guilt rested.

85. I have carefully reviewed the evidence as a whole, paying particular attention to the matters relied upon by MW in his submissions on appeal. Having done so, the quality and sufficiency of the evidence as a whole does not cause me to have a reasonable doubt as to MW’s guilt.

86. I would add that, given the very considerable advantage the jury had in assessing and weighing the evidence as a whole, any doubt I may have experienced would have been capable of being resolved by that advantage.

Conclusion

87. It necessarily follows that MW’s appeal should be dismissed. I note that MW was granted bail by Coleman DCJ on 27 September 2024 but pursuant to s 12 of the Bail Act 2013 (NSW) bail ceases to have effect on the handing down of this judgment. I also note that pursuant to s 18(2) of the Criminal Appeal Act 496 days, being from 28 September 2024 to 5 February 2026 (inclusive of those dates), does not count as part of the sentence of imprisonment imposed by the District Court on 19 September 2024.

88. The orders I propose are:

89. Grant leave to appeal.

90. Dismiss the appeal.

91. DHANJI J: I have had the considerable benefit of reading the draft judgment of Stern JA.

92. I have, in accordance with the relevant authorities referred to by Stern JA, conducted my own independent assessment of the evidence. In doing so, I have watched the two short portions of the JIRT interviews the applicant identified as being necessary for the Court to watch. Those parts of the interviews showed gestures used by the complainant which were necessary to view in order to understand her evidence: The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [15]; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [36]. I have not, consistently with the common position of the parties, otherwise listened to or viewed any of the electronic material: The King v ZT at [14], [20].

93. I agree with Stern JA that leave should be granted and the appeal dismissed. I agree generally with her Honour’s reasons for those orders, subject only to what follows.

94. As her Honour explains, the trial, and this appeal, proceeded on the footing that it was necessary that the Crown prove the applicant put his penis and not his testicles in the complainant’s mouth. In her first complaint, made to her mother ATW, it is, for the reasons given by Stern JA, very likely that the complainant used the word “balls”. She used the same term on other occasions in relation to the charged conduct. It is also clear from the complainant’s various responses to questions that she used the term “balls” to refer to the same part of the applicant’s genitals which she described with words including “doodoo”, “thing” and “penis”. This, on its face, leads to at least the possibility that, otherwise accepting the complainant’s evidence, it was the applicant’s testicles and not his penis that were put in her mouth. That is, she may have meant testicles when using other words or she may have meant penis when she used the word “balls”. In resolving this issue, I would not put significant weight on the complainant’s use of the singular rather than the plural when describing what was put in her mouth. Reading her interviews and evidence, she did not appear to be particularly sophisticated in her use of language. Further, the applicant’s scrotum may have appeared to her as a single body part. With respect to the recorded demonstration of what was put in her mouth which the Court was asked to watch, I regard the gesture as largely neutral. It may be that an adult or older child would have been expected to use a different or more precise gesture. In the context of this complainant, it is not obvious from her gesture what she was referring to.

95. Despite the ambiguity in the complainant’s evidence, I am satisfied beyond reasonable doubt that, otherwise accepting the complainant’s account, it was the applicant’s penis and not his testicles that were put in her mouth. This is on the basis that, to a young child confronted by adult male genitals, the most significant part of those genitals would be the penis. The scrotum and testicles are likely to be a far less notable component. Given this reality, had the complainant been referring to the applicant’s testicles, she would very likely have distinguished what was put in her mouth from the more prominent component of the applicant’s genitals, his penis. Her failure to make any such distinction overwhelmingly suggests to me that it was the applicant’s penis that was put in her mouth and not his testicles.

96. As to whether the event occurred at all, the most troubling aspect of the evidence is the complainant’s account of the uncharged acts. I am not satisfied that those acts occurred. I regard some of those acts, particularly the anal intercourse, on the evidence led, to have been unlikely to have occurred. The Crown submitted that as these acts were not charged they were not fully explored and any doubt did not, as a result, necessarily impact the assessment of the reliability of the complainant with respect to the charged act. I do not accept this submission. Evidence suggestive of unreliability cannot be so easily dismissed on this basis. The Crown bore the onus of proof. Evidence suggesting unreliability, particularly with respect to an allegation of sexual activity, necessarily impacted the Crown’s ability to discharge that onus with respect to the charged offence. Against that, there was, as Stern JA points out, a specificity and consistency to the complainant’s evidence as to the charged act. In the context of her apparent lack of sophistication, the complainant’s account of how the event came about through the playing of an otherwise innocent game gave her evidence a quality of believability. The jury in this case had a significant advantage having regard to the length of time over which they were able to view the recordings of the complainant’s interviews and her prerecorded evidence. This is a case where I regard that advantage as capable of resolving a doubt I would otherwise have held.

97. CHEN J: I have had the advantage of reading the draft judgment of Stern JA.

98. Like Stern JA, I have undertaken an assessment of the sufficiency and quality of the trial record in order to determine whether the conviction is unreasonable, with particular emphasis upon those parts of the evidence raised by the parties (The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [12]). I have also viewed the extract of the JIRT videos that the applicant invited this Court to review as part of its independent assessment.

99. I agree with the reasons and conclusions of Stern JA. In particular, having reviewed the evidence in the trial, including its sufficiency and quality, none of the matters raised by the applicant, or their combination, are such as to lead me to experience a reasonable doubt about the applicant’s guilt. It follows that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

100. I agree with the orders proposed by Stern JA.

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