96 ALJR 728
Dellow v R [2020] NSWCCA 301
Jones v The Queen (1997) 191 CLR 439
[1997] HCA 56
MacKenzie v The Queen (1996) 190 CLR 348
[1996] HCA 35
Pethybridge v R [2020] NSWCCA 185
Roos v R [2019] NSWCCA 67
TK v R (2009) 74 NSWLR 299
Source
Original judgment source is linked above.
Catchwords
96 ALJR 728
Dellow v R [2020] NSWCCA 301
Jones v The Queen (1997) 191 CLR 439[1997] HCA 56
MacKenzie v The Queen (1996) 190 CLR 348[1996] HCA 35
Pethybridge v R [2020] NSWCCA 185
Roos v R [2019] NSWCCA 67
TK v R (2009) 74 NSWLR 299
Judgment (2 paragraphs)
[1]
Judgment
LEEMING JA: The applicant stood trial at the District Court constituted by judge and jury on an indictment containing ten charges. There were nine counts of committing an act of indecency upon a child under the age of 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW), and one count of sexual intercourse with a child aged above 10 and under 14, in circumstances of aggravation, contrary to s 66C(2) of the Crimes Act 1900 (NSW). In each case, the child was the applicant's granddaughter, who at the time was aged 10, 11 or 12 years.
The jury returned not guilty verdicts on counts 5 to 10 (which included the sexual intercourse count), but found him guilty on counts 1 to 4. The applicant seeks to appeal from his convictions on those counts pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). The proposed grounds of appeal are that "the verdicts cannot be supported having regard to the whole of [the] evidence" and "the verdicts were unsafe and unsatisfactory". Not being confined to questions of law, his appeal lies only by way of leave.
Section 578A of the Crimes Act 1900 (NSW) and s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW) prevent the publication of any matter likely to identify the complainant. For that reason Nadin is a pseudonym and I shall merely refer to the applicant, his wife, his granddaughter (the complainant), and the other grandchildren.
The Crown case identified three separate incidents. It is convenient to use the terminology adopted at the hearing, and refer to the "pizza incident", the "bedtime story incident", and the "glass of water incident".
Counts 1 to 4, the only counts for which the jury returned guilty verdicts, all concerned the pizza incident. That was a single occasion in around 2014 when the complainant was at her grandparents' home during the school holidays and her grandmother took the complainant's younger brother and two cousins to the local shops to buy pizza. The applicant stayed at home with his granddaughter. The Crown case was that the applicant led his granddaughter to a guest room, which had a large window with a view to the front entrance of the home, and there committed the four acts of indecency which gave rise to counts 1 to 4 - rubbing her vagina both outside and inside her underpants, kissing her on the lips, touching her breasts and placing her hand on his penis on the outside of his clothing.
Counts 5 to 7 arose from the bedtime story incident. On the Crown case, there was a separate occasion when the complainant was in her grandparents' bedroom with both grandparents, her brother and a cousin. The grandparents read stories to the children. The Crown case was that while in that bed, the applicant touched the complainant's vagina, placed her hand on his penis and grinded against her such that she could feel his penis near her bottom, all of this occurring under the bed covers after the grandmother had gone to sleep.
Counts 8 to 10 arose from the glass of water incident. This was based on the complainant's evidence that the applicant would get up at night and pretend to get a glass of water from the kitchen before coming to the room where she slept. This incident gave rise to further counts of indecent assault based on his putting her hand on his penis and his touching her vagina, as well as putting his penis in her mouth (this giving rise to the sexual intercourse count).
The complainant participated in electronically recorded interviews with police in February and July 2019, in the order of five years after the events, when she was 14. Those interviews were played to the jury at a trial which occupied parts, or all, of five days in 2021, where she was cross-examined. At that time she was aged 16. It will be necessary to address certain aspects of her evidence when dealing with the grounds of appeal.
The applicant did not give evidence, as was his right, although he had participated in an electronically recorded interview with police on 16 April 2019, during which he denied all of the complainant's allegations.
The applicant also relied on an affidavit sworn by his late wife. She had died in February 2020, about a year before the trial, but had made an affidavit in November 2019, at a time when she was undergoing chemotherapy for stage 3 ovarian cancer. That affidavit addressed each of the three incidents in the Crown case.
1. Concerning the pizza incident, she confirmed that she would occasionally take her grandchildren to the local shops to buy pizza when they were staying with her but added that "I cannot recall any instance where I left any of them at home with my husband". She said that she regarded it as her job to care for her grandchildren when they were staying at her home, and that if she had taken any to get pizza, she would have taken them all; "I would not have left one behind".
2. Concerning the bedtime story incident, she said that while it was quite common for the complainant and other grandchildren to come to her bed for bedtime stories, she would always ensure that at the conclusion of the bedtime stories, the grandchildren went to their own beds. She did not recall any instance when any of her grandchildren went to sleep in the bed which she shared with her husband.
3. Concerning the glass of water incident, she said, "[e]very night since we have been married, I have filled a jug of water and put it and two glasses next to our bed. I do not recall any occasion when my husband has completely drunk the water during the night".
The applicant's written and oral submissions contained three main strands.
First, it was said that the not guilty verdicts on counts 5-10 relating to the second and third incidents of themselves rendered the guilty verdicts unsafe. It was said that the complainant gave clear and detailed evidence in relation to all three incidents and that since the jury were unpersuaded to the criminal standard in relation to the second and third, they should have entertained a doubt in relation to the first. Reliance was placed upon the reasoning in Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56, where the joint judgement considered that the only reasonable conclusion was that a jury which returned a not guilty verdict on the second count must not have been satisfied beyond reasonable doubt of the truth of the complainant's evidence, expressing the conclusion as follows:
"It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."
The applicant submitted that the present case was no different.
Secondly, the applicant relied upon the evidence of his deceased wife, which, so it was put, if it were accepted, went to the impossibility of his having committed the offences, and meant that it was not open to the jury to have been satisfied beyond reasonable doubt as to his guilt on counts 1 to 4.
Thirdly, the applicant relied upon a portion of the cross-examination of the complainant which, so it was said, elicited evidence from the complainant that fellatio had been an element of the pizza incident. No such allegation had been made by her in her first or second recorded interviews or had been relied upon by the Crown, or elicited from her in chief.
The applicant summarised these three strands in his submissions as follows:
"In the premises, it is submitted that it was not open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused in respect to the four counts arising out of the first incident, and that the convictions represent a miscarriage of justice:-
(a) In circumstances where the prosecution in effect relies on the uncorroborated (save as to complaint) evidence of [the granddaughter], the jury having found her evidence not to have sufficient cogency to convict in respect of the second and third incidents, there is nothing about the evidence in relation to the first incident or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than in relation to the second and third counts. When her evidence is set against other reliable evidence it must fail to carry sufficient conviction to reach the criminal standard of proof.
(b) The reliable evidence against which the evidence of [the granddaughter] is set, in respect of all three incidents, is that of [the wife]. Against that yardstick, the evidence of [the granddaughter] has failed to prevail to the criminal standard in respect of counts arising from two out of three incidents. There is no reasonable basis for finding [the granddaughter's] evidence to be more reliable, measured against the same yardstick, in respect of the remaining incident.
(c) The unreliability of [the granddaughter's] evidence in respect of the first incident is thrown into even greater relief by [the granddaughter's] insistence for the first time during cross-examination that fellatio had occurred in respect of each of the three incidents. Further, her insistence that she had told the police OIC (Amanda Dench) that fellatio had occurred in each of the three occasions is demonstrably untrue."
As is clear from the passage in the joint judgment in Jones v The Queen on which the applicant relies, the question is whether there is something in the complainant's evidence or the surrounding circumstances which explains the different verdicts returned by the jury on different counts. This ground may only be made out if the applicant satisfies the Court, that "[the verdicts] cannot stand together", which is to say that "no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion": MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35. The joint judgment continued at 367 (citation omitted):
"[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted."
As stated in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]:
"In determining whether convictions are unreasonable, ... the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis."
The principles applicable to a ground of appeal based on inconsistent verdicts have been applied in this Court on numerous occasions subsequently, including Roos v R [2019] NSWCCA 67 at [42]-[44], Pethybridge v R [2020] NSWCCA 185 at [80] and Dellow v R [2020] NSWCCA 301 at [21]-[22].
Contrary to the applicant's submission, the not guilty verdicts in relation to the second and third incidents are readily explained by the different quality of the complainant's evidence.
The pizza incident was a one-off incident which was described in detail by the complainant. In marked contrast, the complainant evidently was of the view that the second and third incidents reflected an ongoing pattern of conduct by the applicant. Thus, referring to the bedtime story incident, in her electronically recorded interview, when asked whether she remembered when that happened, she responded "um, just the times, whenever we were in bed". When asked did anything happen at that time, she responded "yep. It always happened". In her examination-in-chief before the jury, she was asked about the glass of water incident "how did he make you touch his penis?" to which she responded "from the inside and sometimes on the outside". At this stage, the trial judge interjected and said "Ms Crown, you just need to make it clear whether you're asking about this specific occasion". The same point arose during her cross-examination, leading to the cross-examiner saying:
"Q: You keep saying, 'would'?
A: Yes
Q: We're talking about on this occasion what did happen?
A: Yes"
There were many other occasions during which the complainant said that "sometimes" something would happen or that her grandfather "would" do one or other of the charged acts.
In short, there was a marked contrast between the complainant's specific evidence concerning the first incident and her generalised evidence concerning what had been charged as regards the second and third incidents. As the Crown submitted, the not guilty verdicts are consistent with the jury having accepted the complainant's evidence as truthful, but having recognised that there was a qualitative difference in her evidence in relation to the pizza incident vis a vis the remaining counts. That is sufficient to resolve the challenge insofar as it is based upon the jury's inconsistent verdicts.
This was squarely advanced in the Crown's written submissions supplied a fortnight prior to the hearing. Two members of the Court raised it with the counsel appearing for the applicant. No meaningful response was given at any stage, following which counsel confirmed that he could not take the matter any further (Tcpt, 7 December 2022, p 4(45) - p 6(16)). That is not to express any criticism of counsel; the fact of the matter is that there is no answer to what is apparent on the face of the transcript of the complainant's evidence.
The evidence of the applicant's deceased wife does not materially advance the applicant's case. She was able to give clear evidence contradicting the bedtime story incident. Her evidence concerning the glasses of water she placed on the bedside table each night did not greatly detract from the evidence concerning the third incident, but, materially for present purposes, her inability to recollect an occasion where she took three grandchildren staying with her to the shops to buy pizza, leaving the fourth (the complainant) at home with her husband in no way undermines the complainant's evidence that that is what occurred.
There is no particular reason why a woman who was undergoing chemotherapy for advanced cancer and who, sadly, is now known only to have had months to live, might remember a single occasion, years before, when only three out of four young children staying with her were taken by her to local shops, leaving the fourth at home with her husband. As much was candidly acknowledged by counsel, who, in response to this point, said "yes, it is true that the incident involving the pizza was not directly and unequivocally contradicted by the wife". That concession was properly made. Counsel went on to maintain that "in relation to the matters which were directly and unequivocally contradicted by the wife, that that must have some bearing on how the jury perceived the credibility of the witness in respect of the pizza incident." I do not accept this. The fact that the wife gave evidence contradicting the complainant's account of the bedtime story incident, in respect of which the jury returned not guilty verdicts, does not mean that the complainant was disbelieved by the jury. As noted above, one explanation is the generalised nature of the complainant's account of the bedtime story incident and the glass of water incident. It is also possible that the jury believed the complainant, but even so were unpersuaded to the criminal standard that the elements of the offences in respect of which not guilty verdicts were returned, having regard inter alia to the grandmother's evidence.
The applicant's third point as developed in writing turned upon the following passage of cross-examination:
"Q: So you're saying that you were made to suck his penis on all three occasions? Is that what you're now saying?
A: Yeah.
Q: You're quite sure about that?
A: Yep.
Q: You didn't tell that to Amanda Dench, did you?
A: (No verbal reply)
Q: Do you need a break?
A: No.
Q: You didn't tell that to Amanda Dench, did you?
A: I did. I was just, the second interview that was done, it was just me clarifying.
Q: So do you say that you told her that on every occasion you had to suck his penis?
A: Yeah.
Q: It's not true, is it, that you had to suck his penis?
A: Sorry?
Q: It's not true, is it?
A: What's not true?
Q: That on each occasion you sucked his penis?
A: No, that is true."
The applicant relied upon the unequivocal acceptance that was elicited from the complainant that she had been made to suck the applicant's penis on all three occasions. That is not a fair reading of the exchange in context. Once again, this was pointed out by the Crown's written submissions, and once again the Court confronted counsel with it during address.
The cross-examination immediately preceding that passage directed the applicant to the second interview made in July 2019. The cross-examiner then took the complainant to the answers to questions 26, 27 and 31. Those answers all referred to the indecent assaults. None mentioned fellatio. The cross-examiner then asked the following questions.
"Q: So is the only you say you sucked his penis on that night?
A: Sorry, could you please repeat that?
Q: Is the only time that you sucked his penis on that night? The night that you all started together in the bed.
A: Was that the only one time, or?
Q: Yes.
A: That night, yes.
Q: It doesn't happen on any other night?
A: For that incident, yes, it did, but the other two answers I've given it did happen and it's also stated."
The passage relied on in this Court followed immediately thereafter.
First, it is convenient to reproduce the first question in the passage relied on by the applicant in this Court, and the question which immediately preceded it (emphasis added).
"Q. It doesn't happen on any other night?
A. For that incident, yes, it did, but the other two answers I've given it did happen and it's also stated.
"Q. So you're saying that you were made to suck his penis on all three occasions? Is that what you're now saying?
A. Yeah."
It will be seen that the complainant gave evidence in relation to the "answers" she had given, but that the cross-examiner treated the responses as a reference to all three "occasions" being the pizza incident, the bedtime story incident and the glass of water incident which comprised the Crown case.
There is no sound basis in the context to think that that is what the complainant intended. She had been asked a series of questions about the follow-up interview she had given, which had been confined to the bedtime story incident. She had been taken to three separate answers she had given in that interview. It is true that the transcript is a little unclear, and it is difficult to discern exactly what she meant by saying "the other two answers I've given it did happen and it's also stated". It may have been a reference to the answers to questions 26, 27 and 31. But there is no sound basis to think that she was intending to convey that there was fellatio as part of the pizza incident and the other two incidents.
Secondly, it was no part of the Crown case that there was fellatio in the bedtime story incident. It seems inherently improbable. It is one thing for the applicant to have touched the complainant's vagina, put her hand on his penis and grind against her bottom while both were in the same bed as the sleeping grandmother and other children. It is another thing entirely to think that there was forced oral sex between grandfather and granddaughter in the same bed while the other occupants slept. Yet this passage of cross-examination commenced with the cross-examiner putting positively "so is the only [time] that you sucked his penis on that night?" There had been no mention previously of any fellatio by the complainant, and it was no part of the Crown case that there was. There was no objection to the question. However, the complainant herself was confused by the question. First she asked for counsel to repeat the question. Then she asked "was that the only one time, or?" The answer upon which the cross-examiner seized was a response to his question "it doesn't happen on any other night".
Thirdly, the complainant made the point that the second interview was "just me clarifying". It is possible that that reflects an appreciation on the part of the complainant that the second interview addressed only one of the three incidents.
Fourthly, the cross-examiner consistently referred to the first, second and third "incidents". He did not refer to "every incident" in the cross-examination relied upon, rather his question was directed to "occasions". This is a further factor tending against the evidence being understood in the way the applicant contends.
Fifthly, at no stage did the cross-examiner make the point clear beyond argument, by obtaining confirmation that the complainant maintained that there was fellatio during the pizza incident, the bedtime story incident and the glass of water incident. Nor when the cross-examiner confronted the complainant with the propositions that her account of the pizza incident did not occur did he put to her that there was no fellatio on that occasion.
I do not consider that the transcript, read fairly, records the complainant maintaining that there was fellatio during the pizza incident. True it is that counsel appears to have believed that she did just that, and directed the jury to it in his closing address five days later. He said "she said that oral sex occurred during each of the three incidents" and "she confirmed that oral sex had occurred each of the three times". The jury were better placed than this Court, relying on a transcript which may not be perfect, and in at least one place appears to reflect counsel and complainant talking over each other, to determine whether there was a new allegation of sexual intercourse by the complainant during the pizza incident.
In short, I do not think that the exchanges relied upon by the applicant render the verdicts on counts 1 to 4 unsafe.
The principles applicable to the applicant's submission that the verdicts were unreasonable or could not be supported having regard to the whole of the evidence were most recently summarised by the High Court in Dansie v The Queen [2022] HCA 25; 96 ALJR 728. The question is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 1 to 4. Those counts were supported by the clear evidence of the complainant. This Court must proceed on the basis that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury saw the complainant give evidence and be cross-examined upon it. It was well open to the jury to be satisfied to the criminal standard that the events described by the complainant when the applicant's wife and three other children were away getting pizza took place, notwithstanding the applicant's denial in his electronically recorded statement, notwithstanding that they were not satisfied of his guilt of the other charges, and notwithstanding the evidence of the applicant's wife and the cross-examination on fellatio addressed in detail above.
The applicant also requires a short extension of time to bring this application. Having regard to the seriousness of the charges and the absence of any opposition to the application, it is appropriate to grant that extension of time and to grant leave to appeal. However, I propose that the appeal be dismissed.
GARLING J: I agree with the orders proposed by Leeming JA and with his Honour's reasons. Having considered the totality of the evidence, and made due allowance for the advantage of the jury in seeing and hearing all of the evidence, I do not have any doubt that the convictions on counts 1 to 4 (inclusive) were soundly based. Put differently, I am satisfied that the convictions were not unreasonable, and that they were supported by the evidence.
ADAMSON J: I have had the advantage of reading the reasons of Leeming JA in draft. I agree with his Honour's reasons and proposed orders. Further, I confirm that I have undertaken a review of all of the evidence and consider that it was open to the jury to be satisfied of the applicant's guilt of counts 1 to 4 beyond reasonable doubt. I am also satisfied of his guilt of counts 1 to 4 beyond reasonable doubt. For the reasons given by Leeming JA, the jury's verdicts of guilty in respect of counts 1 to 4 are not inconsistent with its verdicts of not guilty in respect of the remaining counts.
[2]
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Decision last updated: 15 December 2022