Damien Charles Vella v R [2009] NSWCCA 202
SKA v Regina [2012] NSWCCA 205
SKA v The Queen [2011] HCA 13
Source
Original judgment source is linked above.
Catchwords
Johnny Lee Vella v RDamien Charles Vella v R [2009] NSWCCA 202
SKA v Regina [2012] NSWCCA 205
SKA v The Queen [2011] HCA 13
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2013/352176
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 6 November 2015
Before: Norton SC DCJ
File Number(s): 2013/352176
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant was convicted after a trial by a jury before Judge Norton SC in the District Court of New South Wales of one count of sexual intercourse with a child aged under 10, contrary to s 66A of the Crimes Act 1900 (NSW).
On 2 June 2016 the Court of Criminal Appeal upheld a Crown appeal and re-sentenced the applicant to a term of imprisonment comprising a non-parole period of 4 years, commencing 6 November 2015 and expiring 5 November 2019, with a balance of term of 2 years expiring 5 November 2021 (R v ND [2016] NSWCCA 103).
The applicant appeals against his conviction pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW), upon the following ground:
Ground 1: The verdict is unreasonable or cannot be supported having regard to the evidence
As this ground of appeal does not involve a question of law, the applicant requires leave to appeal against conviction (Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202 at [12]).
Summary of Crown and defence cases
Crown case
At the time of the offence, the complainant was aged 5 years and 10 months and the applicant was aged 28 years. The applicant's wife (SD) was the sister of the complainant's mother (JH). The two families lived nearby and often visited one another.
On Tuesday 14 September 2004, the complainant went on a school excursion to a wildlife park. The complainant's mother later took the complainant and her sister (C) to the applicant's home. The applicant was at home with his wife and two sons. The complainant's mother and C went out with the applicant's wife, leaving the complainant at the applicant's home.
The applicant was drinking beer and watching TV in his lounge room. He indicated for the complainant to sit on his lap. The applicant rubbed her leg and then put his hand up her school uniform skirt and beneath her underwear. He put a finger into her vagina and moved it around for about two minutes, which hurt. The applicant withdrew his finger when he heard the car return with his wife and the complainant's mother. The complainant went to play with her cousins, the applicant's two sons.
In the first half of either 2010 or 2012 (the date is disputed), the complainant and her cousin, TS, were at their grandmother's house. The complainant told TS what the applicant had done. TS told the complainant to tell her mother but she said she did not want to get into trouble.
On 6 September 2012, the complainant's mother found the complainant was missing. She retrieved the complainant's diary from her car. An entry in the diary stated that the complainant had been raped at 6 years of age. The complainant's mother phoned police, who found the complainant at her grandmother's house.
The following week, the complainant's mother spoke to the complainant about the diary entry. The complainant said that it related to an incident with the applicant at his house when the mother went out. The mother reported the matter to police. The complainant participated in a recorded interview with police on 2 October 2012.
The applicant was arrested on 21 November 2013. The applicant participated in a recorded interview with police.
The defence case
The applicant did not give evidence at trial. The defence case relied upon the applicant's account in the recorded interview with police, in which he denied the offence. The applicant also denied in the interview any recollection of an occasion when the complainant visited his home in her school uniform, or when his wife and the complainant's mother went out leaving the complainant with him.
The defence case advanced evidence of an alibi. The applicant's wife gave evidence that the applicant attended baseball practice with his son every Tuesday evening in 2004. Other evidence confirmed that baseball practice took place every Tuesday evening in 2004.
Summary of evidence at trial
In her recorded interview with police (MFI 3), the complainant said that she was 6 years of age at the time of the incident. Her family used to visit the applicant's home in Bidwell all the time. On the day of the incident, her mother, sister and aunt went out, leaving her at home with the applicant and his sons. Her mother and aunt were both pregnant with their youngest children, D and K, at the time.
The complainant said that the applicant was drinking, was drunk and that he could not stand up or walk. It was just after school, and she had her school uniform on, which consisted of a skirt, shirt, singlet and joggers. The applicant asked her to sit on his lap and started to "finger" her. The applicant started to rub her leg, then put his hands up her skirt and into her undies. It did not feel very nice and it hurt. It went on for a few minutes, she tried to get off the applicant but he grabbed her arm.
The complainant said that the applicant stopped when he heard SD and her mother return in the car. They were only gone a few minutes. She thought they went in her mother's car. She thought it was early in the week. It would have been a Tuesday because she went on a school excursion to a farm that day. Her teacher at the time was Mr Pearce. The applicant's sons were in their rooms playing and it was getting dark outside. She was watching TV and thought the program was called "Dragon Ball Z". She did not tell anyone until she told TS, about two years before, when they were in TS's room watching TV. The complainant was aged 13 when she made her statement to police.
The complainant was aged 16 at trial. The complainant said that she wrote in her diary that she had been raped at age 6. She did not recall when she wrote it, but it was about a month before her mother found it and they spoke about it. She was having nightmares and thought writing it down might help her forget. She told TS about it before she wrote the diary entry. Her memory was worse at the time she gave evidence at trial than when she was interviewed.
In cross-examination, the complainant said that she regularly went to the applicant's house. She went there most weekends for barbecues. After the incident, the family still went there, but she did not go by herself. She had sleepovers but not straight after the incident. She made sure that she was never alone with the applicant. She agreed that there was an occasion when she asked SD to pick her up from high school and asked if she could stay at the applicant's house. On the same day that her mother got married, there was a naming ceremony. SD was present. She did not recall who nominated SD as her guardian.
The complainant believed the incident occurred on a Tuesday because she had been on a school excursion. Tuesday was her favourite day of the week, although she did not say so in her interview. This was because on Tuesdays she always got ice cream from her grandmother after school. She agreed that she had not said that to the police and said it for the first time in court. They drove to the applicant's house in her mother's car. She stayed in the lounge room until the incident. The applicant's sons were in the next room. When she watched her recorded interview, she recalled that she said that her mother and aunt were only gone a few minutes but now believed it was an hour or two.
The complainant said that the incident occurred in the late afternoon. The sun was going down. She agreed "night time" was wrong. She agreed that she wrote in her diary "I will never forget that night" and meant to convey that it happened at night. She said that it was late afternoon, the sun was setting and it was getting dark. She agreed the diary entry was wrong. She agreed that in the interview she said that both her mother and aunt were pregnant and her aunt was more advanced but her recollection was wrong because her brother was born first. On school nights, she went to bed at 8.00pm. She had doubts about whether "Dragon Ball Z" was on TV at the time of the incident. She would not have been watching TV at the applicant's home at 9.00pm on a school night. This was because on school nights she went to bed at 8pm.
She used the term "raped" in her diary because that was the only way she could describe it. She agreed that, when she spoke to police the same year, she said that the applicant "fingered" her. She had no doubt she was at TS's house in TS's room when she complained to her.
JH, the complainant's mother, gave evidence that she had three children; the complainant who was the oldest, born in 1998, C born in 2001 and D born in 2004. At the time of the alleged offence, D was aged seven months and she was not pregnant. Their home was not far from that of the applicant. The complainant's grandmother (JH's mother) lived across the road from the applicant's house. The complainant's family saw the applicant's family regularly during 2004 and they went to his house for barbecues. The grandmother commonly picked the complainant up from school and JH would then collect the complainant from the grandmother's house. It was unusual for either her or the complainant to go to the applicant's house during the week.
JH married on 13 November 2004. A naming ceremony for the children was held the same day. The applicant and SD were there. SD was nominated as the complainant's guardian. She was quite close to SD at the time. A certificate confirmed the date of the naming day. SD was in photos from the ceremony. Photos showed the applicant and his family attending the complainant's birthday party in November 2004. The families continued to have contact until about May 2005 when JH went to hospital for surgery. At that time, the complainant stayed with the applicant's family on at least one night. JH did not drive during 2004.
She and SD would at times go out in the car together leaving the complainant at the applicant's home. The complainant would have been at the applicant's house in her school uniform at times. The two families stopped seeing each other after JH had surgery in May 2005.
On 6 September 2012, the complainant went missing from their home. JH called the police, because her clothing and other things were missing. She found the complainant's diary, which contained a note stating, "At age six I was raped". Police later found the complainant at her grandmother's home. JH collected the complainant but did not speak with her about the diary entry until about a week later. The complainant said she was raped on an occasion when she was at the applicant's house wearing her school uniform. While telling JH this, the complainant was very upset and in tears.
In cross-examination, JH denied that there had been a falling out between the families over money following a relative's death. She agreed that she had issues with gambling and drug addiction, but this was after 2004. The families were still close in 2004. She remembered only two specific occasions when she and SD left the complainant with the applicant. This was when she was pregnant with her son.
In re-examination JH said that she had a learner's driving permit in 2004 which she had to renew twice because it had expired. She did not obtain her provisional licence until 2005.
Detective Bedford was the initial officer in charge of the investigation. Information from Bidwill Public School confirmed that the complainant was enrolled in kindergarten in 2004 and her teacher was Mr Pearce. The class went on an excursion to Featherdale Farm in September 2004. Birth certificates confirmed that the complainant would have been aged 5 years and 10 months in September 2004. Photocopies were made of the complainant's diary but it was subsequently lost.
Detective Parker later became the officer in charge. The applicant attended Mt Druitt Police Station at her request on 21 November 2013. He was arrested and participated in a recorded interview. A calendar confirmed 14 September 2004 was a Tuesday. Detective Parker went through the applicant's service record to confirm when he was out of the country. Immigration records confirmed that the applicant departed Australia on 20 July 2003 and returned 11 November 2003.
TS and the complainant were cousins. They would see each other occasionally. TS recalled a conversation which she had with the complainant in 2012. She said that she remembered it was 2012 because she was working at Pizza Hut, having commenced there in July 2012. She and the complainant were sitting alone on the back step of her grandmother's house when the complainant told her that when she went to the applicant's house, he used to touch her. She said "I think it happened a couple of times … the main thing that she mentioned was [that the applicant] fingered her". The complainant did not say when it had happened. She just said it was years before. The complainant told her that when she went there, the applicant "had put his hands down her pants". TS told the complainant that she should tell her mother. The complainant said that she was scared that she was going to get into trouble and was scared to say anything.
Evidence called in the defence case
The applicant said in his recorded interview with police on 21 November 2013 that he believed he was not in the country at the time of the offence. He was in the military and had been deployed to the Middle East, although he was not sure when. When police advised that service records confirmed that he returned in 2003, the applicant accepted that those records were correct.
The families had disagreements and did not see much of each other at times. The complainant and her family came to his home for a few barbecues. He would only have seen the complainant and her siblings in school uniform if he visited their home. He did not recall any time when he was left to care for the complainant and his two sons. He had a few beers after work but not too much. He might have had about six beers, as he was a heavy drinker at the time. He might have had the complainant sit on his lap and put his hand there but would not have touched her. He denied that he put his finger in the complainant's vagina and moved his finger about. It did not sound like him.
SD was the wife of the applicant. She had known the applicant and had been in a relationship with him since 1994. They were married in 2003 and had four sons. Her relationship with her youngest sister, JH, was not good. She stopped socialising with her after a dispute about money in late 2003 or early 2004. SD said that she and JH stopped talking to each other at the end of 2003 and they did not have any family visits after that. She said that JH had a gambling problem. The families did not visit each other when she was pregnant although they visited her mother across the road.
SD said that in 2004 her oldest son had baseball training on Tuesday night. During that time, there were no occasions when they were visited by JH with her children. There were no occasions when she might have left the house to go somewhere (either for a few minutes or an hour or two) with her sister and her sister's daughter C. She had her son to care for and he was with her all the time. She did not remember any occasions in 2004 when the complainant was left at her home with her two sons.
In relation to baseball training on Tuesday nights, as a matter of routine they would leave home at 4.30pm, arriving at training at 5.00pm. It took about half an hour to drive there. The applicant attended training every single week. He used to stop there on his way home from work so that SD could take the other children home. The applicant and his son would later return home at about 6.30pm.
In cross-examination SD said that she when she found out about the allegation, following her husband's arrest, she was hurt and upset. She denied discussing the allegation with her husband. She denied ever talking to him about what was in the police brief. She learned of the specific date of the alleged offence through Detective Parker who took a statement from her.
It was suggested that she would not have any specific reason to remember 14 September 2004 and what she did that day. She agreed that she had no independent memory of that day. She agreed that she was trying to reconstruct her memory. When she learned of the allegation she started to think about it and to piece the bits back together. This was from the time of the applicant's interview. It was a few months later, towards the end of 2013 near Christmas, that she remembered where her husband was on 14 September 2004 and she informed his lawyers. 14 September 2004 was a Tuesday and SD said that in 2004 at that time of year, every single Tuesday her son had baseball training.
It was suggested that SD was reconstructing her memory in order to meet the allegation against the applicant and that any memory she had was just a reconstruction based on her routine and normal practice and not a specific independent recollection of each day. She denied this and said that she knew that the applicant was there on that day.
SD was taken to her statement to Detective Parker on 20 August 2015 in which she said that she had nothing to do with JH's children in 2004. Various photographs of the wedding and the naming ceremony which she had attended were shown to her. She agreed that she had wanted to make sure in the statement that she paint as strong a picture as possible that the allegation could never have happened in 2004 because she had nothing to do with JH's children in that year. She admitted that what she said or that subject was untrue and a lie.
SD gave evidence that what she had said in her statement with regard to the complainant never being inside her house at Bidwell was true. She said that between 2002 and 2015 the complainant was never inside her house. She denied that the complainant had sleep overs at her house. She denied that the complainant's family came around to her house for barbeques. SD said that she did not have a good relationship with her sister. She denied that JH had ever provided help to her by looking after her newborn baby son, K, a couple of times (he needed a high degree of care, having been born prematurely) just so that she could have some time to herself and a shower.
SD said that she did not socialise with her sister in 2004, despite photographs showing her present at the wedding. She did not speak to her sister at either the naming ceremony or the wedding ceremony. She attended the naming ceremony only. Both events were at the same place and on the same day and she was present for both of them. She did not get an invitation to the wedding, but attended the naming ceremony which was straight after the wedding.
SD disagreed that her sister did not have drug or gambling problems in 2004, or that they arose at some time after 2004. SD informed her husband's lawyer about her sister's drug use, gambling and money problems. SD denied that she was trying to tarnish her sister's reputation by giving evidence that these problems occurred in 2004.
SD denied that there were any occasions when she might have left the applicant with her two older sons after he had come home from work. She followed a set routine and after picking up the children from school, would remain home and not go out after 5pm on a work night, except for their sporting days which was the only time that she would go out after that time. SD did agree that sometimes routines could change. SD denied that in 2004 there was such an occasion when she went out with her sister and left the complainant at her house.
Crown case in reply
Rodney Woolard was called in reply by the Crown. He was a teacher and started coaching children's sport at the Rooty Hill Baseball Club in 1997. He was coaching there in 2004. The Club would hold training at Peter Van Hassal Park in Wilmot. He was unsure of how many teams he was coaching in 2004. Training took place on Tuesday or Thursday nights starting at around 4.30pm and finishing about 5.30pm. The training could be shorter or longer, it depended on what they were doing. Normally it was for about an hour. He did not keep any records of the children who showed up for training. The name of the applicant's oldest son was familiar, but he was not sure if that was because of baseball training or his association with him as a teacher. He did not remember the child and had no recollection of the parents.
In cross-examination he agreed that sometimes training could start later than 4.30pm and that sometimes he would speak to the teams at the end of training. In re-examination he said that most pre-season training was done in August but that training would have been the same as during the season. The season itself usually commenced in September.
A Foxtel program guide admitted in evidence stated that the program "Dragon Ball Z" was not broadcast on 14 September 2004 and that the program "Dragon Ball GT" was broadcast at 9pm on that date.
The appeal
The applicant submitted that the verdict of the jury was unreasonable and could not be supported having regard to the evidence on the basis that central features of the complainant's account of the circumstances in which the offence was said to have occurred, could not be reconciled with other facts established by the evidence.
The applicant summarised the central features of the complainant's account as follows. When she was aged six and attending kindergarten at Bidwell Public School, after a school excursion to a farm, she went with her mother and sister to the applicant's home. Her mother and sister went out with her aunt. Her mother and aunt were pregnant at the time. The complainant was left alone with the applicant and it is in those circumstances that it is alleged the offence occurred.
The applicant submitted that other evidence established that the excursion to the farm must have occurred on 14 September 2004. If it is assumed, as it was at trial, that this was the date of the offence a number of what were submitted to be central features of the complainant's account were irreconcilable with facts established by other evidence.
Firstly, the complainant was not 6 years of age at that time but 5 years and 10 months. Secondly, neither her mother nor her aunt were pregnant. These were matters about which the complainant was quite unequivocal in her account in the record of interview to police which comprised her evidence in chief. The applicant gave evidence that her mother had driven to the premises where the offence occurred. The evidence of her mother confirmed that she was not driving at that time.
Not only was the complainant's aunt not pregnant but she had recently given birth to a child, KD, in July 2004. That child was said to be a high needs baby because he had been born prematurely and was barely two months old at the time. There was an absence of support in the evidence of the complainant's mother in that she could only remember two occasions when the complainant was left at the applicant's home when she went out with her sister. Both of those occasions were when she was pregnant and those were both likely to be on a weekend rather than on a school day.
In addition to the difficulty of reconciling the central features of the complainant's account with other facts established by the evidence, there were internal inconsistencies in the complainant's account. In her interview with police, which was conducted in 2012, eight years after the events, she said that her mother, aunt and sister were only out for a few minutes. In evidence at trial, which was in 2015, she said that that was wrong and that the complainant's mother, aunt and sister were out for an hour or two. There was a degree of inconsistency regarding her account of the time of day that the incident occurred. In her interview and in evidence she said that it was late afternoon or that it was getting dark. The diary entry recorded that the incident happened "at night". The complainant conceded in cross-examination that in that entry she had sought to convey that the incident occurred at night, i.e. when it was dark.
In her interview, the complainant said that when she was left alone with the applicant, he was watching television and that she thought the program they were watching was called "Dragon Ball Z". There was other evidence that established that a program of similar name "Dragon Ball GT" was aired that night but not until 9pm. The complainant and her mother gave evidence that the complainant's bedtime was 8pm on school nights and that she would not have been at the applicant's home at that time on a school night.
The applicant submitted that there were additional difficulties in accepting the reliability of the complainant as a witness generally, having regard to the differences between her account of the circumstances in which she made her first complaint to her cousin TS and the evidence of TS. When interviewed in 2012 the complainant said that the first complaint had been made a couple of years previously, i.e. previous to the interview in 2012. She said that it occurred when she was in TS's bedroom watching television. TS gave evidence to the effect that the complaint had been made in circumstances where they were on TS's grandmother's back step and that it had been made only a few months before the complainant gave her account in the police interview. TS was able to say this because she recalled that she was working at Pizza Hut at the time, i.e. in 2012.
The applicant submitted that taken together, those matters established that the complainant's account of what happened was unreliable.
The applicant relied upon SKA v The Queen [2011] HCA 13; 243 CLR 400 at [23] where the plurality (French CJ, Gummow and Kiefel JJ) said:
"23 It was not sufficient to say that the complainant's account of the incidents was sufficiently particular to enable a jury to accept it. The complainant's evidence as to when they occurred was also part of her account and, potentially at least, a matter by which her other evidence fell to be considered. It may be that the argument of the applicant on the appeal, which focussed upon the complainant's nomination of the evening of 23 December as the date of the last two offences and then as one of many "jury points", served to distract the attention of the Court of Criminal Appeal. Observing that the complainant had not been dogmatic about 23 December may not have sufficiently overcome her identification of the days before Christmas as essential to her recollection. These were matters to be considered by the Court of Criminal Appeal."
The applicant submitted that these observations by the plurality were applicable to this Court's consideration of the appeal. The applicant submitted that it was necessary for the Court to ascertain the date when it was alleged that the offence was committed in order to properly weigh the whole of the evidence in the trial in order to determine whether or not it was open to the jury to find the offence proved beyond reasonable doubt. The applicant submitted that it was not sufficient to point to the fact that the complainant was young at the time of the alleged offence and had to recall those events in interviews eights years after they were said to have occurred. The applicant submitted that the question was whether, despite those difficulties presented to the prosecution, the evidence of the complaint was demonstrably reliable such that it was open to find that the offence was proved beyond reasonable doubt.
The applicant submitted that in summary once the date of the alleged offence was ascertained so as to enable an assessment of whether or not it was open on the whole of the evidence to find the offence proved beyond a reasonable doubt, it is clear that the complainant's evidence was unreliable. In those circumstances the only conclusion is that the verdict was not reasonable and cannot be supported having regard to the evidence. Since there was no reason to anticipate that the situation would be different at any retrial, the only appropriate order was one of acquittal.
Consideration
The task of this Court in appeals of this kind was set out by the plurality (French CJ, Gummow and Kiefel JJ) in SKA v The Queen where their Honours said:
"The task of the Court of Criminal Appeal
11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".
12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."
13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
"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."
…
14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."" [Footnotes omitted]
The jury clearly rejected the evidence of SD. Not only was that evidence patently false on certain issues, in particular the level of association between the two families during 2004, but SD conceded under cross-examination that in her statement to police she wanted to put forward as strong a picture as she could, that the offence could not have happened in 2004 (T.163.1). In that regard, it is significant that the applicant in submissions, did not at any time rely upon the uncorroborated evidence of SD to cast doubt upon that of the complainant. In particular, no reliance was placed upon the alibi of baseball training on a Tuesday night in September of 2004.
In the way in which the trial was conducted it was accepted by both sides that it was an essential part of the Crown case that the evidence establish beyond reasonable doubt that the offence was committed on the date alleged, i.e. 14 September 2004.
In relation to the issue of the date of the offending, the facts of this case are different to those in SKA in an important way. On the rehearing before this Court (SKA v Regina [2012] NSWCCA 205) the majority on this point (Adams and Hislop JJ) noted that the applicant there had called alibi evidence in respect of the occasions nominated by the complainant for when the offences occurred. They held that the date of those offences was an essential element in the Crown case and that the alibi evidence, which was not challenged by the Crown, precluded the applicant from being able to commit the offences on the dates alleged by the complainant (SKA v Regina at [315] - [318]).
In contrast, the alibi evidence in this case was challenged effectively by the Crown. Accordingly, the evidence as to the date on which the offending occurred which had to be assessed, was that of the complainant. It is for that reason that the applicant's submissions focused on what he asserted was the unreliability of the complainant's evidence generally and as to particular matters identified in his submissions. This was not a case where there was objective (or unchallenged) evidence establishing that the offence could not have taken place on 14 September 2004.
The reliability of the complainant's evidence that the offence took place on that day fell to be considered as part of her overall account of events and the reliability of that account. The issue before the jury and this Court was whether the matters raised by the applicant were of such significance, when considered collectively, as to give rise to a doubt that the jury should have experienced about the complainant's evidence.
The way in which the complainant identified the date of the offending is important. She did not remember what time of the year it was when the offence occurred, but she did remember that it was early in the week and "it would have been a Tuesday" because she had been on a school excursion to a farm with "like, a weird name" (Q. & A. 65 - 69). The complainant recalled being in kindergarten with a teacher, Mr Pearce. Subsequent investigations revealed that the complainant's kindergarten class, taught by Mr Pearce, had been on an excursion to the Featherdale Wildlife Park on Tuesday, 14 September 2014.
The complainant did not adamantly adhere to any particular account of events which was demonstrably inconsistent with the offending having occurred on 14 September 2004. There were a number of matters upon which she accepted that she might have been inaccurate or imprecise. While the complainant did initially nominate "Dragon Ball Z" as the cartoon she was watching at the time of the offence, she used the expression "I think" in the police interview. In cross-examination she agreed that she was not certain that it was that particular cartoon that she was watching.
Similarly, the evidence of the complainant concerning the time of day when the offending occurred was not internally inconsistent. The diary entry (which was written when she was aged 13) was "I will never forget that night". Her evidence at trial was that it was late afternoon with the sun going down when the offence occurred. When cross-examined about that evidence, the complainant agreed that she had used different descriptions but expressed the view that there was not a significant difference between them.
The evidence was:
"Q. And you wrote that I would suggest to you "I'll never forget that night" because you were intending to convey that it happened at night?
A. It was late afternoon it just went - it was dark when it happened.
Q. You say it was dark when it happened?
A. The sun was going down when I got there.
Q. Well [complainant] was it dark, was it getting dark, or was it night?
A. When I arrived there the sun was like nearly gone so yes it was night.
Q. I thought you said it was late afternoon as part of your answers to me?
A. Isn't that the same thing.
Q. I don't know I'm asking you the question.
HER HONOUR: No, it only works if questions are asked and then you give answers because otherwise the system doesn't work. It's nearly 4 o'clock, we'll be going home at 4 o'clock for the day but if you could just try and concentrate on the questions [complainant], okay.
…
Q. [Complainant] your answer in the record of interview was that it was getting dark, correct?
A. Yes.
Q. Your answer to me a few questions ago just before we turned the screen off was that the sun was setting but it was late afternoon, correct?
A. Yes.
Q. Sorry, I beg your pardon?
A. I said "Yes".
Q. And your diary entry says "I'll never forget that night"?
A. Yes.
Q. And you wrote "I will never forget that night" because I suggest to you you're trying to convey that it happened at night?
A. Yes.
Q. So in your diary an entry which was made in the year that you spoke to the police you say that it was night, correct?
A. Yes.
Q. Well which of those answers that you've given today "it was late afternoon, the sun was setting, it was getting dark, it was dark, it was night" which of those is correct?
A. It was getting dark." (T.47.25 - 48.22)
The difference between "it was getting dark" and the statement "I will never forget that night" are not matters of such import as would lead me to regard the complainant as unreliable. This is particularly so when the evidence came from a witness who at the age of 13 made the relevant entry in her diary and in the interview with the police said "it was getting dark". This was evidence of observations made 8 years before when the complainant was aged 5 years and 10 months. I do not regard her evidence on that point as unreliable. It was open to the jury to reach a similar conclusion, i.e. that there was not a significant difference between the two statements in relation to which the complainant was being cross-examined given the circumstances in which the observation was made.
The same can be said about the complainant's recollection of her age at the time of the offending. The complainant recorded in her diary at "age 6 I was raped". In fact she was aged 5 years and 10 months. The jury might well have regarded that as a distinction without a difference, particularly because children often describe themselves as older than they are, e.g. when asked their age it is not unusual for a young child to respond "almost six". I do not regard that apparent "inconsistency" as a matter of importance.
The complainant freely conceded that she was mistaken in some of the evidence she gave. She accepted that at the time of the incident, neither her aunt nor her mother was pregnant, her mother having given birth in February of 2004. Similarly, the complainant did not assert in dogmatic terms that the cartoon which she was watching was "Dragon Ball Z". Rather the terminology she used was that she thought that this was the cartoon she was watching. In cross-examination she accepted in both cases that she might have been mistaken.
In relation to such matters, it needs to be remembered that the surrounding circumstances of the offence, i.e. whether her aunt and mother were pregnant at the time and who was driving the car were being perceived by a child aged five years and 10 months and then recalled by a 13 year old child more than seven years later and then again when she was aged 16 during the course of the trial. In those circumstances, some inaccuracies might well be expected. It would be extraordinary if there were not such inaccuracies.
The complainant's apparent mistake as to her mother driving the car on 14 September 2004 is readily understandable when one has regard to the whole of the evidence. While her mother did not have her licence at that time, she did have a driving permit which had been renewed and she was driving in 2005 and subsequently. There were occasions at this time when the complainant's grandmother (who lived opposite the applicant) would pick her up from school and then drive her home. Also during 2004 both SD and JH's husband (her then partner) were driving vehicles in which the complainant travelled. However the complainant was transported to the applicant's house, it is clear that there were occasions in 2004 when she was at his home after school in her school uniform (T.84.22). Apart from SD whose evidence was unreliable on this issue, there was no evidence to the contrary.
The fact that JH could only remember two specific occasions when she left the complainant at the applicant's home and went out with her sister SD says more about JH's memory than that of the complainant. Keeping in mind the difficulties which JH subsequently experienced with drugs, that evidence meant no more than that JH could not remember another occasion, not that another occasion did not occur. Put another way, it went no further than a submission that JH's evidence did not corroborate that of the complainant on this issue, not that it contradicted it (T.104.1 - .19).
The complainant's recollection enabled 14 September 2004 to be identified with some particularity. She remembered the name of her teacher, Mr Pearce; she remembered that she was in kindergarten; and she remembered that she had been on a school excursion to a farm with a "like, a weird name" on the day on which the offending occurred. These recollections are consistent with what one would expect from a child aged 5 years and 10 months rather than the more general background material in relation to which the complainant's testimony was challenged.
It is true that there was an inconsistency between the evidence of TS and that of the complainant as to where they were at the time complaint was made and the date on which complaint was made. Apart from the fact that TS was older than the complainant, and was able to remember the date by reference to her working at Pizza Hut, having commenced there in July 2012, there was nothing else to suggest that the evidence on these issues by TS was to be preferred to that of the complainant. Importantly, however, their evidence as to the content of the complaint was the same. There was no exaggeration. TS's evidence as to what she was told by the complainant was in accordance with the transcript of the complainant's interview with police and with the complaint to JH.
Inconsistencies in the complainant's evidence or variations among the Crown witnesses about matters such as how long the complainant was left alone with the applicant on the occasion of the offence or precisely where and when the complainant made her complaint to her cousin, TS, are in essence peripheral matters. They are examples of matters which might well not be fully remembered by a child who had no particular reason to direct her attention to them. They are not matters which one would expect a child aged 5 years and 10 months to remember accurately, particularly after the effluxion of more than 7 years.
What is important is the consistency of recollection of what occurred during the offending. There is no inconsistency between what is contained in the police statement, the complaint to TS and the complaint to JH. The differences to which the applicant has referred were in relation to peripheral detail and even then the differences were not great. They went no further than mistakes as to the pregnancies, whether the mother drove and the location and circumstances of the complaint to TS. The asserted inconsistencies as to her age and the time of day involved minor discrepancies at most.
The jury saw and heard each of the witnesses and in particular the complainant whose credibility and reliability was of the utmost importance. The issue of her reliability was stressed not only by counsel in their addresses, but in the summing up. In circumstances where there were aspects of the evidence which were in some respects inconsistent, considerable weight has to be given to the jury's advantage in seeing and hearing the witnesses to resolve those inconsistencies. By way of illustration, the jury were in a far better position to assess the responses of the complainant and the extent to which she understood questions or was becoming tired when giving her evidence. This was an advantage which this Court does not have. It can be seen in the evidence set out at [68] hereof when the complainant was being cross-examined as to the time of day when the offending occurred.
The matters raised by the applicant, both individually and collectively, do not cause me to conclude that the jury's verdicts were unreasonable or unsupportable. The matters upon which the applicant relies essentially relate to peripheral issues. No inroads of any substance were made in relation to the evidence concerning the offending. These were issues which one might readily accept as inaccuracies or inconsistencies which were not determinative of the complainant's truthfulness and reliability. It follows that on the whole of the evidence, I am satisfied that it was open to the jury to find beyond reasonable that the applicant was guilty of the offence charged. It is not sufficient for the applicant to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt beyond reasonable doubt.
The orders which I propose are:
1. Leave to appeal against conviction be granted.
2. The appeal is dismissed.
WALTON J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his Honour.
R A HULME J: The various points raised by the applicant that are set out in detail in the judgment of Hoeben CJ at CL do not lead me to conclude that the jury ought to have had a reasonable doubt about the applicant's guilt. The reasons provided in his Honour's judgment accord with my own assessment.
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Decision last updated: 13 April 2017