Stuart v R [2015] NSWCCA 285
M v The Queen [1994] HCA 63
(1994) 181 CLR 487
MacKenzie v the Queen [1996] HCA 35
Source
Original judgment source is linked above.
Catchwords
Stuart v R [2015] NSWCCA 285
M v The Queen [1994] HCA 63(1994) 181 CLR 487
MacKenzie v the Queen [1996] HCA 35
Judgment (3 paragraphs)
[1]
Solicitors:
C Peters (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)
File Number(s): 2013/384642
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 13 February 2015
Before: Syme DCJ
File Number(s): 2013/384642
[2]
Judgment
HOEBEN CJ at CL: I agree with Button J.
PRICE J: I agree with Button J.
BUTTON J: On 12 December 2014, Darren James Parkinson (the applicant) was found guilty by a jury in the District Court of New South Wales at Newcastle of a number of offences of child sexual assault. He was subsequently sentenced to imprisonment by her Honour Judge Syme. There is no application for leave to appeal against that sentence. He has notified and pressed two grounds of appeal against conviction.
One of them asserts a misdirection in the summing-up. Because no redirection was sought by defence counsel at trial, reliance upon the ground requires leave, pursuant to r 4 of the Criminal Appeal Rules (NSW).
The other is based upon contentions of fact - namely, that the verdicts are unreasonable and unable to be supported, not only in light of the evidence as a whole, but also in light of a number of verdicts of acquittal that the jury returned at the same time - and therefore also requires a grant of leave.
In order to explain the bases of the ground of appeal founded on questions of fact, and my resolution of it, it will be necessary for me to quote from, and to summarise, the evidence in the trial at length.
Indictment
On 8 December 2014, the applicant was arraigned before her Honour and a jury panel on an indictment containing the following counts.
Count one averred that, between 1 December 2012 and 31 December 2012, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 13 years (s 66C(1) of the Crimes Act 1900 (NSW)).
Count two averred that, on or about 12 January 2013, the applicant provided the complainant, a child then under the age of 14 years, with an intoxicating substance with the intention of making it easier for him to procure her for unlawful sexual activity (s 66EB(3) of the Crimes Act).
Count three averred that, on or about 12 January 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 61M(2) of the Crimes Act).
Count four averred that, on or about 12 January 2013, the applicant incited the complainant, a person then under the age of 16 years, to commit an act of indecency upon him (s 61N(1) of the Crimes Act).
Count five averred that, on or about 8 March 2013, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 13 years (s 66C(1) of the Crimes Act).
Count six averred that, on or about 8 March 2013, the applicant incited the complainant, a person then under the age of 16 years, to commit an act of indecency upon him (s 61N(1) of the Crimes Act).
Count seven averred that, on or about 21 April 2013, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 13 years (s 66C(1) of the Crimes Act).
Count eight averred that, on or about 21 April 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 66M(2) of the Crimes Act).
Count nine averred that, on or about 29 April 2013, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 13 years (s 66C(1) of the Crimes Act).
Count ten averred that, on or about 29 April 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 66M(2) of the Crimes Act).
Count eleven averred that, on or about 29 April 2013, the applicant incited the complainant, a person then under the age of 16 years, to commit an act of indecency upon him (s 66N(1) of the Crimes Act).
Count twelve also averred that, on or about 29 April 2013, the applicant incited the complainant, a person then under the age of 16 years, to commit an act of indecency upon him (s 66N(1) of the Crimes Act).
Count thirteen averred that, between 10 June 2013 and 30 June 2013, the applicant had sexual intercourse (by way of her performing oral sex upon him) with the complainant, a child then aged 14 years (s 66C(3) of the Crimes Act).
Count fourteen averred that, on or about 29 September 2013, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 14 years (s 66C(3) of the Crimes Act).
Count fifteen averred that, on or about 29 September 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 66M(2) of the Crimes Act).
Finally, count sixteen also averred that, on or about 29 September 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 66M(2) of the Crimes Act).
At the end of the trial, the jury returned verdicts of guilty on counts three, five, seven, eight, ten, and fifteen. The jury returned verdicts of not guilty on counts one, two, four, six, nine, eleven, twelve, thirteen, and fourteen.
Overview of evidence and trial
Before turning to a detailed analysis of the evidence placed before the jury with regard to each count (including those counts upon which the applicant was acquitted), it is convenient to provide an overview of the evidence.
The complainant, aged between 13 and 14 years at the time of the offences, and 15 years at the time of the trial, was the daughter of a woman who was friendly with the female partner of the applicant. Each family had children in the household. The two families socialised together, and on occasion the family of the complainant stayed at the home of the applicant. Indeed, on occasion, the applicant, a man then aged about 50 years, slept on a lounge with the complainant, a girl then aged 13 or 14 years.
On Christmas Day 2012, the complainant received an iPod as a Christmas present. Thereafter she made a number of entries in that device that were in the nature of reasonably contemporaneous electronic diary entries. On occasions, she and young friends made entries in the device by way of a "conversation" between the two of them; for example, when they wished to communicate surreptitiously in a classroom, they did so by typing into the device in turn whilst hiding it under a desk.
Between January 2013 and April 2013, the complainant made a number of entries in the iPod that strongly suggested on their face that she had had sexual contact with the applicant shortly before the making of each entry.
On 3 October 2013, the mother of the complainant discovered the entries on the iPod. She confronted the complainant. The complainant remonstrated with her mother for invading her privacy. On 5 October 2013, the mother of the complainant brought the matter to the attention of the police.
On 8 October 2013, the complainant sent a Facebook message to the applicant, which became trial exhibit 3. It strongly suggested that she had deep romantic feelings for him.
Thereafter, on three separate occasions, the complainant engaged in recorded interviews with the police: on 11 November 2013; on 25 November 2013; and on 9 January 2014. Those interviews constituted, in due course, the bulk of her examination-in-chief in the trial.
At the trial, the complainant gave supplementary oral evidence-in-chief on 8 December 2014, and was thereafter cross-examined by counsel then appearing for the applicant. The case advanced at trial by defence counsel was that the contents of the diary were fantasies, and furthermore that, as a result of a combination of her mental and emotional conditions with prescribed medications, the complainant was prone to hallucinations.
Other witnesses gave evidence in the prosecution case, including the mother of the complainant, the partner of the applicant, the police officer in charge of the investigation, and a close friend of the family of the applicant. Still and all, the iPod entries and the evidence of the complainant that they were (to a large although not complete degree) accurate, formed the centrepiece of the Crown case.
The applicant gave evidence in the defence case. He denied committing any sexual offence against the complainant. He also raised character by way of leading evidence that he had never been convicted of a crime in his life.
To conclude this brief thumbnail sketch, it was accepted by both parties on appeal that there had been a significant misapprehension about the evidence at the time of the trial. In short, a document tendered in the Crown case derived from the digital interrogation of the iPod showed the dates and times at which diary entries had been made. Although it was assumed by both parties at the trial that those times reflected the time in New South Wales, in fact they reflected Coordinated Universal Time (UTC), which used to be referred to as Greenwich Mean Time. In other words, although the point was never made to the jury, one needs to add on to the times recorded in the diary a period of something in the order of ten or eleven hours (depending on whether Daylight Saving Time was in operation) to obtain the time in New South Wales.
Grounds of appeal
The following grounds of appeal were notified and pressed at the hearing:
1. The verdicts of guilty on counts 3, 5, 7, 8, 10 and 15 are unreasonable and cannot be supported having regard to the evidence generally and to the verdicts of not guilty on counts 1, 2, 4, 6, 9, 11, 12, 13, 14, and 16.
2. In the circumstances of the case the trial judge's directions as to complaint (Summing up p 16 - 18) were inappropriate and misleading.
The evidence in support of each count
I now provide a detailed summary of what was said by the complainant about each individual count. Generally, I shall recount the statements given in chronological form, quoting (verbatim) first the iPod entry if any; thereafter moving through the three interviews; and concluding with what was said by the complainant in her oral evidence-in-chief and in her cross-examination. I shall also emphasise by italics the portions that are significant to my determinations, for the reasons that I shall explain later in this judgment.
It is convenient to group the counts in accordance with whether or not they were said by the complainant to be part of a single incident that included other counts.
Count 1 (digital penetration)
This count was not said to be part of an incident that founded other counts.
It will be recalled that the jury returned a verdict of not guilty on this count.
The complainant made no entry in her iPod in relation to this count.
In the first interview, the complainant said the following about this count:
…
Q 561 O.K. So did this, this, the very first incident, whereabouts did it take place?
A At his new house.
Q 562 New house?
A Yeah at Charlestown.
Q 563 And what happened then?
A I don't remember. I only just know the first time that he did it to me.
Q 564 Yeah.
A I can't, yeah really remember what happened or anything.
Q 565 All right. So - - -
A But he would only like touch me around my vagina. Like he wouldn't finger me.
Q 566 Yeah.
A Like he would touch my boobs, around my vagina, but he wouldn't finger so.
...
Q 578 And what can you remember him doing to you in that, that time?
A [Darren's partner] was there at that time and mum and [Darren's partner] and Darren were just like talking and having like a drink, and all that. And I was just hanging out with [the son of Darren's partner] and [complainant's brother] and we were on the trampoline and we were, I don't know we were just hanging out and playing the PS3 and, and then, like I can't really remember what happened between then. But I only really that night. He was asleep on the same lounge as I was - - -
Q579 Yeah.
A - - -and he started fingering me. Like I, I woke up to it.
…
Q 588 Yeah. And you woke up.
A I woke up to him fingering me and I was really, really shocked 'cause it's like I've had nothing, like that's ever happened to me before. I didn't know what to do. I didn't know how to deal with it.
Q 589 Yeah.
A I was just scared and I was just too scared to tell anyone.
Q 590 O.K.
A So yeah then I started writing it down in my iPod.
Q 591 Righto. O.K. So that's the very first incident that something happened to you - - -
A Yeah.
…
Q 597 Yeah. So when you woke, what could you feel?
A I felt something really weird and I, I knew something was different and, and like, and then I sat up and I saw him and - - -
Q 598 O.K.
A Yeah.
Q 599 So like lets, lets [sic] just talk about you. So you, you felt something weird?
A Yeah.
Q 600 Tell me about that.
A It was just a really different feeling. Like - - -
Q 601 Where was thing feeling?
A Like down near my, in my, like near my vagina.
…
Q 610 So you could feel something down your vagina?
A Yeah.
…
Q 617 O.K. So could you see Darren fingering your, your vagina?
A Yeah.
Q 618 What could you see?
A I could just see him laying down and then fingering me, and I just got like really like freaked out.
…
Q 622 O.K. So how was, how was Darren fingering you?
A He was just laying down and doing it.
Q 623 O.K. What was he using to finger you?
A His finger.
Q 624 O.K. So was he fingering your vagina on the outside of your clothing, the inside of your clothing or something else?
A Inside.
Q 625 Inside. Whereabouts was his hands or his finger and his hand compared to your clothing?
A I don't know. All I know is that like, like I knew that he was fingering me.
…
Q 630 O.K. All right. What made that stop?
A I don't know. He just went back to sleep. I can't remember. I only know that he went back to bed and I couldn't, I didn't know what to do. I was really scared.
Q 631 O.K. So you said that was in December.
A Yeah.
…
Q 636 O.K. All right. But it was definitely before Christmas?
A Yeah.
…
Q 638 O.K. What about, you said that he went back to sleep that's what made it stop.
A Yeah.
Q 639 Yeah. What did you do?
A I was really scared and shocked. I couldn't move. I was freaking out, but I didn't want to tell anyone. I didn't, I didn't want to tell mum - - -
Q 640 Yeah.
A - - - so I just writ it down in my iPod.
…
Q 647 O.K. So when did you put something in your iPod?
A When it first happened, I'm pretty sure.
Q 648 O.K.
A I really, it did happen in December, but I've only got that one for the 1st January.
…
In the second interview, the complainant said the following relevant to count one:
…
Q 88 Yeah. Um, was that a Christmas present you got that iPod for?
A Yeah. I got it off my dad.
Q 89 O.K. On the 24th? Is that, so the day that you made that, on the 24th, so it's Christmas Eve.
A I suppose. I don't know, 'cause I got it on Christmas Day
.
Q90 [10:28] You got it on Christmas Day?
A Yeah.
Q91 O.K. All right. So, um, when you got the iPod, if we, if we use the iPod as a reference point, had um, Darren, put his finger in your vagina before then or after then or something else? For the very first time?
A It was, it was after, like, I wrote my first note.
Q92 It was after you wrote the first note?
A Yeah.
Q93 So the very first note that you wrote on your iPod was "Hey. I got an iPod."?
A Yeah.
Q94 O.K. All right. So the very first incident then, we could say that it
happened after Christmas Day?
A Yeah.
Q95 So the 25th of December 2012?
A Yeah. It, yeah, it happened after Christmas.
Q96 O.K. All right. And do you know whether it happened, um, into the
New Year, so after January 1 of 2013?
A I don't know.
Q97 'Cause that's a week period.
A I don't remember.
Q98 You don't remember.
A I don't remember what date I only know that it happened.
…
There was no evidence with regard to this count in the third interview.
The complainant did not say anything about the first count in her oral examination-in-chief.
In cross-examination, the complainant was asked about what she had said in the first interview about the first count. In response to a question suggesting the complainant was deliberately evasive in her interview, she replied that she did not "know what comes out of her mouth when I don't take my medication but I know that this happened" (09/12/14 trial transcript (TT) 64.4 - 64.6).
The discrepancy between questions and answers 565 and 566 and question and answer 579 (recorded in the trial transcript as 759) in the first interview was also raised in cross-examination. The complainant maintained that she did not make up the incident (09/12/14 TT 64.35 - 65.4).
Count 2 (provision of alcohol to procure sexual activity), Count 3 (indecent assault), and Count 4 (incite act of indecency)
These counts arose from the one incident that was said to have taken place around 12 January 2013.
It will be recalled that the applicant was found guilty of count 3, but not guilty of count 2 and count 4.
The relevant iPod entries are as follows:
Entry 77:
13/01/2013 5:41:54 AM (UTC + 0): LOVED LAST NIGHT HAHA GOT DRUNK WITH DAZZ BAHAHAHA
Entry 80:
14/01/2013 5:11:03 AM (UTC + 0): Hahah I loved Saturday night it was awesome because dazz slept wif meand we had a bit of fun if u know what I mean HAHAHAHA and we got drunk together it was so fun but I didn't get much sleep that night because we had a bit of fun together I felt his dick☺OMG like it so good hahah then dazz started touching between my legsand started touching my Virginia☺and all that it was so good like yea hahaha it was the best night [codecs omitted]
[emphasis added]
The complainant did not discuss these counts in the first interview.
In the second interview, the complainant said the following:
…
Q100 [10:30] Can you tell me about that? So that relates to that incident, that note that you've talked to me, ah, written in there, on the 13th, relates to being at [Darren's partner]'s house on the evening of Saturday the 12th. Can you tell me what you meant by that. "You got drunk last night with Daz."?
A He gave me like a couple of drinks.
Q101 Yep. What was that?
A Urn, like the drink?
Q102 Yep.
A Like bourbon.
Q103 O.K. What were you drinking bourbon with?
A I have no idea. I only know it was bourbon and I think Tooheys. Tooheys New.
Q104 Yep.
A I think that's all.
Q105 And how many Toohey's New did you have?
A Ah, one.
Q106 Yeah. And so was that out of a, or what did that come in?
A Can.
Q107 Can.
A And I had the bourbon with something, I don't remember what it was but I had two glasses of, of it.
Q108 Two glasses, O.K. And who got you those drinks?
A Darren.
Q109 Who else was there at that time, on the 12th?
A Urn, it was, it was only me and him. I don't know where, I don't where, I think [Darren's partner] and mum were downstairs and the other kids and all the kids were like in the rooms. I'm pretty sure [Darren's partner] and mum were downstairs.
Q110 [17:05] What were they doing downstairs, do you know?
A I think they were just have a drink and talking.
Q111 Yeah. O.K. And what were you and Darren doing?
A Um I was just on the lounge watching TV and he asked if I wanted a drink and I said "Yeah" and yeah, he gave me a drink.
Q112 O.K., so what did you have first?
A A bourbon.
Q113 O.K. So you had two glasses of bourbon and a can of Tooheys New?
A Yeah.
Q114 Yeah. And what time of the day or night was this?
A Um it was, I don't know, it was like at night but I don't know what time, about 10.00, 10.00 or 9.00, I don't know.
Q115 All right. And did anything happen on that night?
A No, I don't think so. I don't remember, I only know that he gave me a drink.
Q116 O.K. All right. So I want to take you to an entry on the 14th of January that you typed, I'll just show you this one. This is at 5.11 in the morning as well and it says "Ha, I love Saturday night. It was awesome because Daz slept with me. We had a bit of fun if you know what I mean, ha ha ha. We got drunk together, it was so fun but I didn't get much sleep that night because we had a bit of fun together. I felt his dick. OMG, like it so good, ha ha. Then Daz started touching me between my legs, started touching my" now it says Virginia there "and all that, it was so good like yeah, ha ha, it was the best night". So tell me about what that relates to?
A I don't know. He just touched me and I touched him.
Q117 O.K. So tell me, obviously [name of complainant] I wasn't there, can you tell me everything that happened from beginning to end, try not to leave anything out.
A I don't know how it started. I don't know.
Q118 O.K. So you said you got drunk together.
A Yeah.
Q119 Is that relating to the can of Tooheys and the two glasses of bourbon
you had?
A I don't know, I'm pretty sure.
Q120 [19:51] Did you have anything else to drink?
A Um I don't know but there was something that he gave me with the, the bourbon I had, I don't know what it was though.
Q121 What do you mean by that, what was the something?
A I don't know if it was like wine or something, I don't, it was something that, I don't know what it's called but he gave me something else with the bourbon.
Q122 With the bourbon?
A Yeah. Or something, I don't know.
Q123 So in the same glass?
A I'm pretty sure.
Q124 O.K.
A I don't know what it was though.
Q125 Yeah. All right. So how did the alcohol make you feel?
A Um it made me feel really weird.
Q126 Ah hmm.
A I don't know how to explain it but it made me feel like a bit tipsy and all that.
Q127 All right. So you said you didn't get much sleep?
A Yeah. Because he kept on waking me up every five minutes.
Q128 So whereabouts were you?
A On the lounge.
Q129 Yeah. And where was, how come he was waking you up every five minutes?A I don't know, he just kept on waking me up.
Q130 [21:06] Yeah.
A Like he'd wake me up and then he'd just walk away and I'd go back to bed and then he'd wake me up and like do some stuff to me and then walk off, I'd go back to bed and then he'd wake me up again.
Q131 O.K. So what type of stuff was he doing to you?
A Touching me.
Q132 Whereabouts?
A Vagina.
Q133 So how was he doing that?
A I don't know he was just touching me there.
Q134 O.K. So you said that we had a bit of fun together, I felt his dick and he started touching me between the legs, so tell me about that?
A I don't know he just touched me between the legs and then he made me grab his dick.
Q135 O.K. So what positions were you in?
A Oh I have no idea.
Q136 Yeah. How did this feel when you were doing it? And I ask that cause it says that, it says "Like it was so good, it was the best night". So were you, were you having fun when you were doing this?
A I don't know, O.K. I don't want to talk about it.
Q137 O.K. So when you said that he was touching you between your legs and you started touching my Virginia, what does Virginia mean to in there?
A I was supposed to write vagina.
Q138 Vagina, O.K.
A Yeah.
Q139 So when he was touching your vagina, what was he using to touch?
A His hand.
Q140 [22:49] O.K. What was he, what was he doing when he was touching your vagina?
A I don't remember. I only just know that, I only, I don't know.
Q141 O.K. So you told me before that, or what part of his hands was he using to touch your vagina?
A Just his hands.
Q142 Yeah. Any other, any certain part of his hands?
A [NO AUDIBLE REPLY]
Q143 O.K. What was his fingers doing?
A I don't know.
Q144 O.K. So was his hands touching you on the inside or the outside of the clothing or something else where your vagina is?
A Outside.
Q145 Outside of the clothes, O.K. And you said that you felt his dick?
A ohh.
Q146 Was that on the inside or outside of his clothes or something else?
A Um I don't know, I think um, I don't know.
Q147 O.K. What else do you remember about that night?
A I don't remember.
Q148 So you told me that the very first time that he sexually assaulted you he put, you woke up to having his finger inside your vagina?
A Ah hmm.
Q149 Did that happen on this occasion? Did he have his finger inside your vagina?
A No.
Q150 [24:37] He didn't?
A No.
Q151 So where was he touching?
A I don't know ok.
…
The complainant did not give evidence in support of these counts in the third interview.
These counts were not specifically discussed in the examination-in-chief or cross-examination of the complainant at the trial.
Count 5 (digital penetration) and Count 6 (incite act of indecency)
These counts arose from the one incident said to have taken place around 8 March 2013.
It will be recalled that the applicant was found guilty of count 5, but not guilty of count 6.
The relevant iPod entries are as follows:
Entry 585:
9/03/2013 11:14:28 PM (UTC + 0): OMFG I loved last night because I was on the lounge and daz started fingering me it was so good then I was wanking him fuck it was good
Entry 586:
9/03/2013 11:18:04 PM (UTC + 0): Fucking hell it was good
Entry 587:
10/03/2013 4:03:20 AM (UTC + 0): Oh yess it was good
(It should be noted that it was ultimately not disputed at the trial that the phrase " " is a digital artefact, and that it had not been entered into the iPod by the complainant.)
The complainant did not give evidence in support of these counts in the first interview.
In the second interview, the complainant said the following:
…
Q187 Yeah. "I loved last night because when I was on the lounge and Daz started fingering me it was so good, then I was wanking him. Fuck, it was good". So tell me about that?A I don't know, I can't remember.
Q188 O.K., so when you say "Daz started fingering me", what did you mean by that?A He fingered me.
Q189 Yeah.
A Well I don't remember, I only know, I only wrote it, I don't remember.
Q190 [32:28] Yeah, that's all right, O.K., you don't remember. I just need you to tell me, when you say, when you type the words "fingering me", what was he doing to you?A Fingering me.
Q191 What did, what does that mean? When you say fingering me, what does that mean?A Like why do I have to say it, I don't want to.
Q192 O.K.
A O.K., I didn't even want to come here today.
Q193 What part of his body was he using to finger you?
A Like his fingers.
Q194 And what, where was he putting his fingers when he fingered you?
A Inside me.
Q195 And where's inside you, what part of your body?
A Vagina.
Q196 Sorry, what was that?
A My vagina.
Q197 Your vagina, O.K. And then you say "It was so good", then "I was wanking him, fuck it was good", what do you mean by wanking?
A He made me wank him.
Q198 O.K. Yeah. I just need you to, so I know what - - -
A I don't know O.K.
Q199 So I know what you understand wanking to be, I need you to tell me what you did?
A Do I have to talk about it? I really don't want to.
Q200 [33:35] I understand - - -
A No, you don't. Have you ever had this happen to you?
Q201 No, but I've - - -
A Like last time I friggen had nightmares because of this and I don't want to talk about it.
Q202 Yeah.
A Because I didn't want to come here.
Q203 O.K. Why don't you want to talk about it?
A Because I don't, I hate it.
Q204 Yeah.
A I cry every day because I still think of it. O.K., I don't want to ever talk about it.
Q205 How do you feel about Darren?
A Well I hate him, O.K., I hate him. I don't want to call him, I don't want to have anything to do with him.
Q206 Yeah. How did you feel about him at the time? How did you feel about Darren at the time this was all happening?
A I thought he cared about me but he doesn't.
Q207 Yeah. O.K. And I guess it's important for us just to understand what you've gone through.
A I know, well you've got all the notes there.
Q208 I know, I know I have got all the notes, I just need you to clarify for me - - -
A Well I'm not going into detail.
Q209 I don't want you to go into detail, I need you to do is tell me what the word wanking means? What did you have to do to him?
A I don't want to answer it but.
Q210 [34:40] O.K. I know you've typed it all here and I appreciate that but I just need to clarify [name of the complainant], that's all.
A I don't want to, O.K. I've had enough, I just don't want to talk about it. I want him to get spoken to.
Q211 Yeah.
A Or he's just going to get away with it.
Q212 Yeah.
A Well what do you want me to do, God.
Q213 O.K. I guess I just need you to start with talking to me here - - -
A I don't want to talk any.
Q214 I know you don't want to talk about it and I know how you feel about, you're being used.
A You don't know how I feel like.
Q215 O.K.
Q216 I understand that.
A I just don't want to talk about it.
Q217 Yeah.
A O.K.
Q218 [35:43] Yeah. I understand that but I guess for us to - - -
A Well if you, all the proofs there. [sic]
Q219 Ah hmm.
A O.K.
Q220 Yeah.
A I don't know why I writ everything, O.K., I was stuffed up then.
Q221 Yeah.
A I wrote things that weren't true.
Q222 O.K., well ---
A I wrote things that…..
Q223 O.K. So the Saturday on the 9th, was that true that you wrote, was that true? Did that happen?
A Yes.
Q224 O.K. Righto.
A That's all I'm saying.
Q225 Yeah.
A O.K.
Q226 That's all right. So I just need you to, I need to know so I can go and talk to him about what the word wanking means, what you think it means and what you have to do to him. It could be something totally different to what I'm thing [sic] about, that's all. All I just need you to do is tell me what you physically did to him to wank him, O.K.? I don't want you to go into the detail if you don't want to, I obviously - - -
A But technically you are going into detail, I don't want to talk about it.
Q227 Yeah.
A O.K. I don't want anything to do with him. I don't want to talk about this ever again.
Q228 [36:46] O.K. Well I - - -
A It's the reason I have nightmares every night.
Q229 After you finish here, hopefully you don't have to talk about it ever again. O.K., this is the point of talking about it and recording it on the DVD, all right. So can you tell me just so I know - - -
A I don't know.
Q230 What part of your body did you use?
A My hand.
Q231 O.K. And what part, what did your hand touch to wank him?
A His penis.
Q232 O.K.
A That's all I'm saying.
…
In the third interview, the complainant said the following about these two counts:
…
Q143 Yep. I understand that. That's perfectly fine to get embarrassed, O.K. I understand that. I guess one specific one that I wanted to ask you about is, is a question that I asked you in the second interview and it was talking about a, a note that you typed on the 9th of March, 2013.
A 9th of March.
Q144 Yeah. About the, it says, I'll just read it to you. You typed, "OMFG," -
- -
A Oh, yeah. I know.
Q144 - - - which standed for oh my fucking God. "I love [sic] last night because when I was on the lounge - - -
A Yeah, I know.
Q144 - - - yep, Daz started fingering me. It was so good. Then I was wanking him. Fuck it was good." And I said to you, "Can you tell me about that?" And you said, "I don't know. I can't remember." Can you tell me why you - - -
A I still don't remember what happened then.
Q145 Yep.
A But I know all that's true because I wouldn't have writ it if it wasn't true.
Q146 Yep.
A Except for the doggy style. I don't know why I writ that.
Q147 O.K. So it did happen to you?
A Yeah, it happened to me.
Q148 Can you tell me later, you, you go on to describe to me about, you tell me about him fingering you. You just don't provide me with any, any details about the background of how it happened or the, that actual incident. Is that because you, as you said, or, or, or tell me why you, you couldn't tell me that?
A About the one on the 9th of March?
Q149 Ah hmm.
A 'Cause I didn't remember.
Q150 [10:30] O.K.
A Look, I don't remember half, any of that but I know it's true. If it wasn't true I wouldn't have writ it.
These counts were not discussed in any detail in the oral evidence-in-chief or cross-examination of the complainant at the trial.
Count 7 (digital penetration) and Count 8 (indecent assault)
These counts arose from the one incident said to have occurred around 21 April 2013.
It will be recalled that the applicant was found guilty on both count 7 and count 8.
The relevant iPod entries are as follows:
Entry: 819:
21/04/2013 12:49:40 PM (UTC + 0): This properly has to be the best night ever I have been fingered by daz like three times fucking hell it was soooo good like OMG ha ahahah and then he was feeling my boobs and I was like oh yeah harder and he was fingering me that hard like I was cumming
Entry: 823:
22/04/2013 11:03:24 AM (UTC + 0): Omfg I still can't get over what me and daz did last night it was a dream come true we were like doing doggy style I was wanking him and he was fingering me fuck it was the best thing ever like I mean ever but it was awkward when daz said is this fun and I'm like fuck yes ahah
The complainant did not say anything about these counts in the first interview.
In the second interview, the complainant said the following:
…
Q248 [41:29] O.K. All right. So it says here that Daz was fingering you - - -
A Yeah.
Q250 - - - three times, is that three different incidents during that night or all
at the same time?
A I don't know.
Q249 Sorry?
A I don't want to talk about that one.
Q250 O.K. How come?
A Because I just, the reason I don't want to talk about all this is I get really bad nightmares I panic a lot, O.K., I get really bad anxiety attacks.
Q251 Yeah.
A O.K., I don't really want to have one and I don't want to panic.
Q252 O.K.
A And I don't even want to think about the cunt, I hate him.
Q253 All right. O.K.
A And I'm not ringing him either, I'm not going to court for this shit.
Q254 O.K.
A I'm not you maybe think I could have a go at ringing but you don't know, he's not like any other guy, he will just hang up, he'll just tell me to fuck off and hang up.
Q255 O.K.
A He's not like any other guy, he's got a really bad attitude.
Q256 Yeah.
A So I'm not ringing him and I'm not going to court for all this shit because it, it's not my fault.
Q257 No, that's right.
A But it's his.
Q258 [42:48] Yeah.
A So he can go to court, I'm not going.
Q259 Yeah.
A I don't want to talk about this shit. I'm over it. I have fucken nightmares every night. I think about it every day. I cry every day.
Q260 Yeah.
A O.K. So I don't even want to talk about it, especially that one.
Q261 O.K. What's so different about that one?
A I don't know it's because, I don't know, I just don't want to talk about
that one.
Q262 O.K. Is that because you made a reference to "Like I was, it was
good and that you were enjoying it and - - -
A Yes. I was talking to…..
Q263 O.K. All right. And you said it's not your fault?
A Yeah so why do I have to go to court for it?
Q264 O.K., well we can talk about that after we finish talking today.
A I'm not ringing him either.
Q265 O.K.
A He can go get fucked. I hate him.
Q266 O.K. I just, there's another one you've typed up here - - -
A Can I read it?
Q268 - - - on the 22nd, yeah, it says "Oh my fucking God, OMFG, I still can't
get over what me and Daz did last night. It was a dream come true, we were like doing doggie style and I was wanking him and he was fingering me. Fuck, it was the best thing ever, like I mean ever but it was awkward when Daz said that this is fun - - -
A Yeah.
Q268 - - - and like "Fuck yeah". So and it finishes with "and NBSP" which my understanding of that NBSP is no bullshit please.
A I didn't write that in any of the notes.
Q267 O.K. Because there's a few of the notes that I notice that it finishes. I understand what fingering is, you've told me about and I don't need you to tell me about that anymore - - -
A Yeah. And I know what wanking is too.
Q269 - - - and wanking, and I know, yeah.
A I know what it is
Q268 [44:59] Yeah. And I know what you mean it is now and I don't need to talk about that.
A So what ok good I don't want to talk about.
Q269 All right. All I need you to do to clarify this one is that you said you were like doing doggie style, tell me about that?
A Yeah I know, I write things that weren't even true. I haven't been raped by him I promise O.K.
Q270 I ..
A If I was raped I would have told you.
Q271 There's no mention of the word rape.
A I know the doggie style, technically rape.
Q272 No, I just need you to tell me, I'm not referring to being raped or
anything like that. I just want you to clarify for me - - -
A Yeah, well I don't know.
Q274 - - - and you say doing doggie style, what position is that?
A I don't know, I was retarded back then. I wasn't thinking because I had no brain.
Q273 When you say that it was awkward, but it was awkward?
A Yeah. It was because he kept on asking me all these questions if it was good or not.
Q274 O.K. Yeah. You told me in the first interview that he never put his penis inside your vagina?
A No, he didn't.
Q275 He didn't?
A No.
Q276 O.K. So what was awkward about that? Was it the position that you were, that he was doing stuff to you in or - - -
A I don't know.
Q277 O.K. So he was fingering your vagina, you've got it was doggie style. So what position is doggie style?
A I don't, I don't know, O.K., I write things that weren't true.
Q278 [46:32] So is this true or not true?
A What, the whole thing?
Q279 Yeah.
A No, the, ah it was true but the doggie style wasn't.
Q280 O.K. All right. So just the doggie style?
A Yeah.
Q281 Everything else in there, "I was wanking him and he was fingering me", that was true?
A Yes.
…
The complainant did not give specific evidence about these counts in the third interview.
These counts were not discussed in the evidence-in-chief or cross-examination of the complainant at the trial.
Count 9 (digital penetration), Count 10 (indecent assault), Count 11 (incite act of indecency), and Count 12 (incite act of indecency)
It is unclear on the evidence whether these counts arise from one incident or two separate incidents on the same day, on or about 29 April 2013.
It will be recalled that the applicant was found guilty of count 10, but not guilty of counts 9, 11 and 12.
The relevant iPod entries are as follows:
Entries 845-850:
29/04/2013 1:15:52 PM (UTC + 0): Omfg it just happened again yessss oh yeah
29/04/2013 1:17:35 PM (UTC + 0): Fuck yess
29/04/2013 1:18:09 PM (UTC + 0): Yess ahhh omfg hehehe I love it when daz touches my pussy yess
30/04/2013 12:56:03 AM (UTC + 0): OMFG I woke up fucking 4:30am in the morning and daz was up do [sic] I sat on the lounge cause [the son of Darren's partner] was kicking me and then daz came over and pulled the blanket off me and started feeling my boobs so I grabbed his dick and I was wanking him and feeling his nuts and his dick omfg it was sooooo fuckin good
30/04/2013 12:58:42 AM (UTC + 0): OMG last night I was in the hall way and daz came down the hall way and saw me then he started fingering me and I grabbed his dick and I was wanking him then he started making sex noises and he started licking my neck like OMFG it was amazing ;
30/04/2013 1:01:16 AM (UTC + 0): Me and daz last night doing doggy style best feeling ever I mean EVER hehehe
The complainant did not give evidence of these counts in the first interview.
In the second interview, the complainant said the following:
…
Q282 O.K. So the 29th, or the 28th, it says "Went to [Darren's partner]'s" before the 28th of April and then the 29th of April at 9.09 in the morning it says "At [Darren's partner]'s, yay". And then there's another one at 1.15pm "OMFG" so oh my fucking God, "it just happened again, yes, oh yeah". And then 1.17 "Fuck yes". And at 1.18pm "Yes, oh my fuckin God, he, I love it when Daz touches my pussy, yes". And then on the 30th at, the 30th of April, 12.56am it says "OMFG, I woke up at fucking 4.30am in the morning and Daz was up - - -
A Yes, I know.
Q284 - - - sitting on the lounge.
A I just don't want to talk about it.
…
Q290 Yeah. Are you able to clarify for me this incident, because there's a few and I'll show you the things, I won't read them out to you, all right.
A Can I just read it then?
Q291 I need you to know, I need to know, well I need to read them out to be on the record for the interview, O.K. It says "I woke up at 4.30am" so this is on the 30th of April at 12.56am. So it says "I woke up at 4.30am" so that would be the morning before, that would be the 29th "Daz was up do I sat on the lounge because [the son of Darren's partner] was kicking me", who's [the son of Darren's partner]?
A [Darren's partner]'s son.
Q292 O.K. And then "Daz came over and pulled the blanket off me and started feeling my boobs, so I grabbed his dick and I was wanking him and feeling his nuts and his dick. Oh my fucking God, it was so fucking good". And then at 12.58 you type another note, A.M. that is, "Oh my God, last night I was in the hallway and Daz came down the hallway - - -
A Yes, you don't have to read it, I know.
Q293 O.K. I just need to, "And saw me and started fingering me and grab, I grabbed his dick and I started wanking him. He started making sex noises and he started licking my neck. Like OMFG it was amazing". And then at 1.01am "Me and Daz last night doing doggie style, best feeling ever, I mean ever". So is that all one incident or is there different times? So you refer to on the lounge and then you refer to the hallway?
A I don't know.
Q294 Is it one? Was that one continual incident at 4.30am? Or was there
two, two different incidents there?
A I don't know.
…
The complainant did not say anything about these counts in the third interview.
These counts were not discussed in the oral examination-in-chief or cross-examination of the complainant at the trial.
Count 13 (fellatio)
This count stood alone.
It will be recalled that the applicant was found not guilty of this count.
There were no iPod entries with regard to this count.
In the first interview, the complainant said the following:
…
Q664 [1:33:58] O.K. Are there any, are there any times where he's asked
you to do anything to him?
A Yeah.
Q665 O.K. Have you done anything to him?
A [NO AUDIBLE REPLY]
Q666 What's that mean when you do that?
A I, I have 'cause I've been too scared like to say no to him.
Q667 O.K. What have you done?
A Sucked his dick.
Q668 O.K. All right. When was the last time you, you sucked his dick?
A I don't know. I think it was before the last time, before September.
Q669 O.K. Do you make reference to those, to like you sucked his dick in here, in, in your notes that you made in your iPod?
A No. I haven't written anything about that, but I've written about what, like the other things that's happened to me. But I don't think I've written about, yeah.
…
A All right. So when was the last time you had to suck his dick?
A I don't know.
Q674 O.K. This year?
A Yeah it was this year. Like heaps of times this year, but I don't know when.
Q675 How many times do you think you've had to do that?
A Probably about like five or six times.
Q676 Five or six times?
A Yeah.
Q677 O.K. So do you remember the first time you had to do, do that?
A Yeah. He made, he grabbed my head and he made me do it.
Q678 O.K. So tell me, how old were you when that happened?
A I think I was 14 or 13.
…
Q682 [1:36:50] Yeah. And where were you when it happened?
A I was, 'cause they've got like a, yeah I was in the spare room - - -
Q683 Yeah.
A - - - when it happened.
Q684 O.K. What were you doing in the spare room?
A I was like playing, 'cause they've got exercise equipment, equipment in there - - -
Q685 Yeah.
A - - - and I was sitting there playing on it and like, 'cause like yeah we don't have any at home. So I was sitting there playing on it and then he come, he came in and he, he, he went on the computer 'cause they've got a computer in there too.
Q686 Yeah.
A And he went on the computer and then he turned around and yeah, he made me do it and I didn't know what to do.
…
Q695 O.K. So you said that he turned around and made you do it.
A Yeah.
Q696 What did he make you do?
A He made me suck, like suck his dick.
Q697 All right. So [name of complainant] I wasn't there again when that happened in the spare room when Darren came in and played the computer and you were on the exercise equipment when he turned around and made you suck his dick. Can you tell me everything that happened from the start to the finish? Try not to leave anything out.
A I, I don't. I only know that, that's what he did.
Q698 Yeah.
A I don't remember going. I, I don't, I don't even remember going there. I only remember that happened.
…
Q725 O.K. So when he pulled his pants down, was he sitting on the chair or standing up or something else?
A Sit, sitting on the chair.
Q726 O.K. And where did his pants come down to when he pulled them down?
A Like only there, like knees basically.
Q727 O.K. What could you see then?
A His dick.
Q728 O.K. What did it look like?
A I don't know a normal dick.
Q729 Yeah. Was it, was it soft, hard or something else?
A I don't know.
Q730 O.K. So when, what did he do then when you could see his dick?
A And then he like, when he got closer and then he like, he grabbed my head, but like he didn't do it rough. He just grabbed my head and then he pulled my head closer, and then he made me do it.
Q731 O.K. So how did he get closer to you?
A He just, well he was on the computer chair and then he pulled the computer chair closer and then, yeah.
Q732 [1:45:13] O.K. What, did he say anything?
A No.
Q733 What did you think when you could see his dick?
A Well I really didn't know 'cause I didn't know what to do - - -
Q734 Yeah.
A - - - so I just stayed calm, and just did what he said.
Q735 O.K. So what did he say?
A Well he didn't say anything. I just did what he wanted me to do.
…
Q755 O.K. So you knelt on the ground?
A Yeah.
Q756 And what happened then?
A And then he grabbed my head and then he made me do it to him.
Q757 All right. What did you think was going to happen when you saw his, his penis or his dick?
A I have, I, I didn't know. Like it was the first time he's done that.
Q758 Yeah.
A So I didn't know.
Q759 O.K. So tell me what you had to do?
A I had to suck his dick.
Q760 O.K. So when he grabbed your head, what did he do then?
A He pulled it closer.
Q761 To where?
A To his dick.
Q762 [1:48:26] O.K. Did he say anything then?
A No.
Q763 No. What did you do then?
A I just did what he wanted me to do.
Q764 O.K. So when you say you sucked his dick, what part of your body did you use to do that?
A Mouth.
Q765 O.K. And what went into your mouth?
A His dick.
Q766 O.K. Did you put your mouth over his dick or did he put his dick inside your mouth?
A He put his dick inside my mouth.
Q767 O.K. And what happened then?
A And then he kept on grabbing my head and yeah.
Q768 All right. And when he grabbed, you said, you said he kept grabbing your head. What was he doing when he was grabbing your head?
A Putting his dick in and out of my mouth.
Q769 O.K. And how did that feel?
A I don't know. I was shocked 'cause I get [sic] that. Like I didn't know that would happen.
…
Q773 O.K. What made it stop?
A [Darren's partner] walked, like walked passed. Like the door was closed, but she walked passed and then he quickly pulled is pants up, and then told me to get back on the equipment. And I did and he was back on the computer.
Q774 How many times do you think his mouth went in and out of your, sorry his dick went in and out of your mouth?
A I don't know.
Q775 O.K. Did anything else happen with his dick when you were sucking it?
A No.
Q776 Did you see anything come out of his dick?
A [NO AUDIBLE REPLY]
Q777 What's that mean when you do that?
A No, no.
Q778 Has there been any times where you've seen anything come out of
his dick in any of the times?
A No.
…
In the second interview, the complainant said the following:
…
Q70 in the Notes section of your iPod. A lot of it doesn't refer to, to Darren, but there's stuff that I've highlighted that I wanted to talk to you about. Um, now, before we do that I just wanted to, to talk about, you told me about the last time that, sorry, the first time that, um, he put, um, his penis in your mouth. Can you tell me, um, the last time that he put his penis in your mouth?
A Um, it was only that time when I came out of hospital.
Q71 It was only that time?
A Yep.
Q72 How many other times, you told me that there was lots of times in that first interview that you were, that, um, he put his penis in your mouth.
A No. That was the only time.
Q73 That was the only time?
A Yeah.
Q74 O.K. All right. So it's only been once where you've, um, you've been
made to put your mouth on his penis?
A Yeah.
Q75 O.K. All right. So you told me on the 12th, and we're talking about
the very first time that something happened, - - -
A Yep.
…
In the third interview, the complainant said the following:
…
Q47 O.K. So I just want to clarify some stuff with you, [name of complainant], in relation to your second interview. So first of all in the first interview on the, the, the 12th of November last year - - -
A Yeah.
Q47 - - - you told me that one of the incidents involved you having to suck the penis of Darren Parkinson at his house at Charlestown.
A Ah hmm.
…
Q50 [10:14] You told me in the first interview that those type of incidents where you had to suck Darren Parkinson's penis happened on five or six other occasions.
A I don't remember saying five or six.
Q51 O.K. In the second interview that you did with me on the, the 25th of November you told me that it only happened once, as you, as, as the incident you described to me in the first interview. Is that the truth?
A The truth is it happened three times.
Q52 The truth is it happened three times.
A Yeah.
…
Q54 All right. Well how about you tell me the last time that you had to - - -
A Yeah. Um, I don't remember the, I only remember the first time that I was in the room, the playroom thing um, exercise room. I don't remember the second time it happened. I know it happened three times though but the third time it happened was when, I think it was the last time I saw him was in September and um, [Darren's partner] wasn't home. That was that time. And we slept over.
Q55 Yep. O.K.
A And um, I went to bed and woke up, he woke me up at 4.00 and yeah, he made me do it.
Q56 O.K. So that's an incident that we've discussed in detail in the first interview.
A Yeah, but I didn't tell you about that did I? I don't know if I did or not.
Q57 I wasn't aware that, that, that you had - - -
A Yeah.
Q58 - - - had to suck his penis on that time, you hadn't told me that. So I guess, can you tell me everything that happened in relation to that incident, so just the incident where you had to suck his penis, from beginning to end?
A How am I supposed to do that….
Q59 O.K., so I guess the second, in the first interview on the 12th of November you talked about, in detail about an incident where it was the very last time that you'd been at Darren's house, Darren and [Darren's partner]'s house?
A Yeah.
…
Q61 And you stayed over. Your mum had some alcoholic drinks with Darren.
A Yeah.
Q62 And you stayed over that night and on two separate occasions he sexually assaulted you.
A Yep.
Q63 You've just told me now that part of the second incident which was around 4 o'clock in the morning - - -
A It was the, this whole thing that I had to do to him - - -
Q64 Yep.
A - - - was in the last one. I didn't tell you because I was too
embarrassed.
…
Q66 Just tell me from the - - -
A When he woke me up?
Q67 Yep. That's fine.
A Oh, I don't know. He, he woke me up at, l went to bed at like 12.00 and he fell asleep next to me and then went into his room. And then he woke me up at, I think 'cause he had to go to work early in the morning - - -
Q68 Ah hmm.
A - - - and he woke me up before, he woke me up at 4.00 or something. And like, yeah, he was, he woke me up at 4.00 and he was getting ready for work. And I was just laying on the lounge, I was really cold and everything and I went to the toilet and came back, I sat on the lounge for a bit playing my iPod and he came over and like, he came over and then like, he grabbed my head and pulled down his pants and made me do it. And then he heard something and he pulled his pants up and walked out. And then no one was there. And then he did it again for about I think like five minutes. And then he had to quickly go get ready. And then he um, walked over to me and said, "See you. I've got to go to work." And went to work.
…
Q79 O.K. So tell me about, you, you used the words that he grabbed your, your head. Or he pulled your pants, he pulled his pants down first?
A Yeah, he pulled his pants down and then like, grabbed my head.
Q80 [10:20] So when he pulled his pants down what did he use to pull his pants down?
A Hands.
Q81 O.K. And what could you see when he pulled his pants down?
A Him taking his pants off.
Q82 Yep. What else could you see when he took his pants off?
A Penis.
Q83 Yep. And what did his penis look like?
A How am I supposed to answer that?
Q84 O.K. Well just describe it to me.
A I don't want to describe a penis. It was just a normal one.
Q85 O.K. So was it hard, soft or something else?
A I don't remember.
Q86 O.K. So you said that he grabbed your head.
A Yes.
Q87 Tell me about that.
A Well he like, grabbed me round there and like - - -
Q88 Yep. So where's there, where are you describing?
A There, and then pushed - - -
Q89 Yep. What part of your head's that?
A The back of my head.
Q90 [10:21] Yep.
A And pushed me forward like, to his penis. And then - - -
Q91 O.K. What did you do then?
A Well, I didn't know what to do because I couldn't yell out to anyone and I didn't want to tell anyone what happened so I just did it.
Q92 Yep. What did you do?
A Put my mouth on his penis.
Q93 O.K. And you said that that lasted for about five minutes, is that right?
A Yeah, the first time he did it like, it happened twice. Like - - -
Q94 Yep.
A - - - he did it for about two minutes and then he heard something. He thought like, someone was awake so he went down the hallway and checked. And then no one was awake and he came back and did it for about five minutes.
Q95 O.K. So did you hear the noise that he heard?
A Yeah. It sounded like someone was getting up, but he pulled his pants up quickly and looked in the hallway and then came back.
Q96 O.K. So when he came back what did he do?
A Did the same thing as the first time.
Q97 O.K. Did he say anything to you?
A No. He doesn't say anything to me when this happens. I don't think so.
Q98 All right. So when he came back to you what did he do?
A Did the same thing.
Q99 Yep. What was that?
A Pulled his pants down, grabbed my head and made me do that.
Q100 [10:23] O.K. And the second time when you say made you do that what did you have to do?
A Suck his penis.
Q101 O.K. What did you use to suck his penis with?
A My mouth.
Q102 All right. And you said that that lasted for five minutes.
A Yeah.
Q103 Yeah. What made it stop?
A He had to go to work or he would be late.
Q104 O.K. When you were sucking his penis did anything else happen?
A No. Don't think so.
Q105 O.K. So he stopped because he had to go to work.
A Yep.
Q106 What happened after that?
A He went to work.
Q107 O.K.
A And that was the last time I saw him.
Q108 So that's the last time you saw him?
A Yeah, 'cause we had to get up early for some reason. We got, mum woke me up at 7.30.
Q109 Righto. So the time you described an incident where you had to suck his penis in your first interview with me on the 12th of November.
A Yeah.
Q110 [10:24] And you said that it happened three times. Do you remember the third time?
A That was the third time.
Q111 The one that you just told me about was the third time. The one - - -
A I, I don't remember, I only know the first time. I've already told you about that one.
Q112 Yep.
A I don't remember the second time but I know it happened three times.
…
The complainant did not give any oral evidence-in-chief relevant to this count.
In cross-examination, the complainant accepted the (incorrect) proposition that she had made no mention of being made to perform fellatio on the applicant (09/12/14 TT 55.21-55.36). In fact, as I have shown, there is evidence of that nature in the first interview, and counsel asked questions about portions of the first interview dealing with this count in cross-examination.
The complainant was asked about the number of times she claimed that the act of fellatio had occurred, in light of the discrepancy between her answers in the first interview, in which the complainant alleged that it occurred 5 or 6 times (09/12/14 TT 65.43-65.49); the second interview, in which the complainant alleged that it occurred only on one occasion (09/12/14 TT 66.1-66.33); and the third interview, in which the complainant alleged that it happened on three occasions (09/12/14 TT 66.35-67.28). In cross-examination the complainant gave evidence that "it did happen three times" (09/12/14 TT 67.36-66.38).
The complainant was also asked in cross-examination about the evidence she gave in her first interview as to why she stopped performing oral sex on the applicant, as well as whom and what she saw at that time (09/12/14 TT 70.14-73.10). The focus of the cross-examination was upon her evidence that she had seen another person through a keyhole the diameter of a pen, and heard that person walk past the room.
Count 14 (digital penetration), Count 15 (indecent assault), and Count 16 (indecent assault)
These counts arise from the one incident, said to have occurred on or about 29 September 2013.
It will be recalled that the applicant was found not guilty of count 14 (digital penetration of the complainant), guilty of count 15 (touching the complainant's breasts), and not guilty of count 16 (kissing the complainant on the lips).
There were no iPod entries in relation to these counts (the complainant received a new iPod on or about 7 June 2013, which was not available at the trial).
In the first interview, the complainant said the following:
…
Q116 Can you tell me everything that happened from the beginning to the
end?
A Like that, that night.
…
Q126 Yeah.
A And it was about 2.00 or 1.00 in the morning Darren woke me up and he, he started touching me around my boobs and all that and like I was really uncomfortable. And like he was really rough, and like I was too scared to say no to him because I thought he would get angry. So I just laid there and then he did it for about half an hour - - -
Q127 [10:29] Yeah.
A - - - and then he went to bed. He got up and went in his own room to go to bed and then I went straight to sleep. And he woke me up again. He came out and woke me up again 'cause he does, he works at like early, early in the morning. So he, when he, when he got for ready he woke me up again and then he started touching me around in the, like near the vagina. And that was for about, like that wasn't
…
Q347 O.K. All right. So you said you went to sleep and you think it was about 1.00 or 2.00 in the morning that Darren you said, "Woke me up". So how did he wake you up?
A I, I heard someone and then he came up to me, and like I think he like grabbed me or something and I, I woke up, and then he, he said, "Good morning", and I was still like half sleep 'cause he only just woke me up. And he was finished getting ready for work and then he started touching me on the boobs and all that.
Q348 O.K. You tell me before when I asked you about to start from the beginning to the end.
A Yeah.
Q349 You said to me that he woke you up and then he started touching you on the boobs, and you said that he was really rough.
A Yeah.
…
Q354 [54:30] Or O.K. So when he started to, how did he. I'll start that question again. How did he start to touch you?
A Like he just reached and then he just grabbed my boob like with one hand, and then like he pushed me onto the lounge and then like, he was like got both hands and he was just really rough. And like I didn't know, I didn't know what to say.
…
Q362 O.K. All right. So I just, I'm, I'm a little bit confused and may be that's me. But initially you told me that he woke you up - - -
A Yeah.
Q368 - - - and I'm not sure whether we're talking about the same incident here. O.K. 'Cause you said that around 1.00 or 2 o'clock in the morning he woke you up and he started touching me on the boobs. It was really rough. I just laid there and he did it for about half an hour and then you said he got into, he got up and went into his own room and went bed, and I went back to sleep. Then you said he gets up early for work. He woke me up again touching me on the vagina about twenty minutes. He gave me a kiss, then he went and got ready for work. So I just wanted to talk about - - -
A Yeah I think I was a bit mixed up with the first time - - -
Q363 Yeah.
A - - - and like 'cause it happened twice in that night.
…
Q366 Lets talk about, lets [sic] talk about the first time then
A O.K. The first, the first time - - -
Q367 Yeah
A - - - he was, he was touching me on the boobs.
Q368 Yeah.
A I'm pretty sure and then early in the morning he was touching me in the vagina.
Q369 O.K. So lets talk about the boobs. And that's how the order that you told me in and that's where I was trying to get to before.
A Yeah.
Q370 'Cause you said it was around - - -
A Yeah.
Q376 - - -1.00 or 2.00 in the morning and you said Darren woke me up. Yeah. So how did he wake you up that time when he touched you on the boobs?
A Like before, like the first one when he did?
Q371 Yeah.
A That one.
Q372 Yeah.
A Well he, he woke up and I was already awake, and he woke up - - -
Q373 Yeah.
A - - - and then he started touching me on the boobs.
Q374 [57:56] O.K. So where was he at this time?
A He was still on the lounge.
Q375 O.K. right.
A The same lounge that I was on - - -
Q376 Yeah.
A - - - the first time - - -
Q377 Yeah.
A - - - and - - -
Q378 O.K.
A - - - he, he woke up.
Q379 Yeah.
A I was already, I was watching the last five minutes of that TV show - - -
Q380 Yeah.
A - - - and, and yeah I was already awake, and, and then he woke up,
and then he started touching me on the boobs.
…
Q384 [58:34] O.K. So tell me what, how, how he touched you on the boobs?
A He like, he grabbed me. Like he reached for 'em and then with one hand, and then he got both hands and was doing it rough like, yeah.
…
Q428 Was he doing anything else to you at that time?
A No he was only just feeling my boobs.
Q429 O.K. All right. What made that stop?
A Yeah. It was about half an hour and then he got up and went to bed.
Q430 O.K.
A So he's just got up and went to bed.
Q431 Yeah. So at that, during that incident he only just your breasts, is that right?
A Yeah.
…
Q466 Yeah. What happened then?
A I woke up and then he was just finishing getting ready for work, and then yeah he came over and started touching.
Q467 O.K. So tell me about the touching.
A He was just touching my vagina. Like he wasn't doing it rough though like the first time.
Q468 So rough. What the first time, was that when he was touching your
Boobs - - -
A Yeah, yeah.
Q474 - - - or was that another time?
A No when he was touching my boobs.
…
Q496 O.K. And then you said that he, he touched you on your vagina. What did he use to touch you on your vagina?
A His hands.
Q497 O.K.
A Like he fingered me.
Q498 He fingered you?
A [NO AUDIBLE REPLY]
Q499 O.K. So tell me about that. When you say fingered you, what do you mean by that?
A Like he used his fingers.
Q500 Yeah. And what did he use his fingers to do?
A Like touch inside me and all that.
Q501 O.K. So when you say touch inside me.
A Like, like he was fingering. Like, in here.
Q502 O.K. When you, where was his fingers? Where did he fingers go?
A Inside.
Q503 Inside where?
A Me.
Q504 [1:12:03] Yeah. When you say me.
A Inside my vagina.
…
Q517 Do you know what hand he was using to put his fingers inside your vagina?
A No.
Q518 O.K. Could you see him doing this?
A No.
Q519 Did you just feel it?
A Yeah.
…
Q530 O.K. You said that he gave you a kiss. Tell me about that.
A He just like before he went to work, he just kissed me and said, "See yah", and that's about it
Q531 Whereabouts did he kiss you?
A On the lips.
Q532 O.K. And how would you describe that kiss?
A Just a normal one.
Q533 Yeah. Where does, how, how would you describe your relationship with Darren?
A I don't know. I have no idea.
Q534 [1:15:35] O.K. So was it, was it appropriate did you think that the way that he kissed you then?
A It was only like a, like a normal one. Like he, he said, like he's told me that your, like I'm really good kid and all this, and like he says that he would never do anything to me. Like he wouldn't rape me or anything, but yeah.
Q535 O.K. So when did he have that conversation with you?
A That was awhile ago.
Q536 O.K. Well we might get to that in a minute. So what did he used to kiss you with?
A His lips.
Q537 O.K. How long did that kiss last for?
A Only a couple of seconds.
…
The complainant did not provide evidence in relation to these counts in either the second or third interview.
During cross-examination of the complainant about these counts, the Crown prosecutor conceded that there was no iPod entry relating to them. It was also put to the complainant in cross-examination that what she had said in the third interview about these counts was not consistent with what she said about them in the first interview.
That concludes my summary of the evidence specific to each individual count. I now turn to discuss the evidence adduced generally in support of sexual contact between the complainant and the applicant. Again, I shall emphasize by way of italics those portions of the evidence that are significant to my determinations.
The evidence with regard to all counts
As I have said, the mother of the complainant gave evidence in the trial about her discovery of the entries on the iPod, and of her subsequent conversations with the complainant. At 10/12/14 TT 12.30-13.20, she said the following:
Q. And you said, "I've been through your iPod and I've seen the notes. You need to tell me the truth. Did he touch you?"
A. Yes.
Q. And she said, "Yes"?
A. Yes, that's correct.
Q. And you then said, "Whereabouts did he touch you?"
A. Yes.
Q. And she said, "Between my legs and my boobs"?
A. Yes, that's correct
Q. You said, "Did he touch you inside?"
A. Yes.
Q. And she said, "Yes". And at that point she lost it.
A. Yep.
Q. She threw a pen at the wall and said, "How fucking dare you go through my stuff. You were never meant to find out about it."
A. Yes, that's right, she was very angry at me for reading through her iPod.
Q. And you said that you're glad you did, or, "I'm glad I did".
A. Yes.
Q. She said, "He fucking cares about me."
A. Yes, that's correct.
Q. "Don't you dare get him into trouble. I will hate you for the rest of my life." A. Yep. That's exactly what she said.
Q. And she then said, "Are you going to tell [the partner of the applicant] about this?"
A. Yes.
Q. And you said, "Yes."
A. Yep.
Q. She became aggressive, and you didn't want her to hurt herself or property, so you stopped the conversation.
A. Yeah, it was a very uncomfortable conversation, understandably.
As I have said, part of the Crown case was a Facebook message sent by the complainant to the applicant on 8 October 2013 after the police had become involved. That message read as follows:
I miss you daz and I'm so sorry this has happened I guess u know know about what [Darren's partner] told you I wish I could take back time but…unfortunately I cant (its really hard for me to tell u the truth you are like a dad to me you have made me who I am today I would do anything just to see you one more time I guess I have liked you in a way no one can explain I cant stop thinking about you daz the times we had im sorry I mess things up its you that I seem to think about all the time. Love you so much xox <3 can u message me when you get this Love [complainant] xox
Other evidence relevant to all of the counts was as follows.
The complainant's mother and the complainant herself gave evidence that the complainant had been hospitalised in the Nexus Unit (an inpatient psychiatric unit) at John Hunter Hospital Newcastle on three occasions in 2013.
The complainant suffered from a form of depressive disorder, engaged in self-harm, and was prescribed Fluoxetine. It was agreed between the parties at trial that a side effect of that drug can be hallucinations in a very small percentage of patients.
As I have shown, in the first interview the complainant spoke of being on medication and writing things on her iPod that did not happen. As well as that, the complainant said in cross-examination that she understood what hallucinations were, and had indeed been suffering from hallucinations (9/12/14 TT 28.11-28.49).
It was put to the complainant in cross-examination that her allegations were fantasies, and that she had made up her evidence to the effect that the iPod entries were (generally) true because she did not want to tell her mother the truth; namely, that the entries were untrue. Initially the complainant agreed with this proposition; however clarification by her Honour showed that the complainant did not understand the word "fantasy", which was an important part of the questioning. Once the word was explained, the complainant denied that the iPod entries were fantasies (9/12/14 TT44-48).
Turning to the evidence of the applicant, as I have said he confirmed that he had never been convicted of a crime in his life. He denied all allegations that he had engaged in any behaviour of a sexual nature with the complainant. He also denied that he had ever provided the complainant with alcohol.
In cross-examination, he gave evidence that he would sometimes be alone with the complainant (10/12/14 TT40.48-40.50). He was close to her, and sometimes gave her "male advice": 10/12/14 TT41.15-41.33. He also gave the following evidence (at 10/12/14 TT42.10-42.20):
Q. Are there occasions that you would fall asleep on the lounge watching television?
A. Yes.
Q. And was it normal for [complainant] to sleep on the lounge?
A. Yes.
Q. You would wake up and she'd be the only person in the room?
A. Yes, on occasions.
The impugned direction
I now turn to set out the direction that forms the basis of the second ground of appeal. I also set out some of the context, with the precise direction that founds the ground bolded by me:
Importantly, the evidence contained in I think it was exhibit 2, the printout from her iPod, the complainant made notes on her iPod at various times and you have heard a lot of evidence as to how and when and where she made that. Clearly, a lot of those notes were made in the early hours of the morning. She told you about her sleeping difficulties. This is, according to the evidence and it is suggested by the Crown and probably not much in dispute, a type of diary entry that people of that age obviously make. They were electronic entries made documenting what she said were important things in her life, as or shortly after things happened.
Now, it is for you to decide what these entries mean. She gave you evidence of what these entries mean, it is for you to decide whether you accept what she said about that. It is for you to decide what weight you give these iPod notes.
In relation to those entries, the Crown suggested that she was embarrassed about them when they were discovered. She was embarrassed and angry with her mother when they were discovered. It is for you to decide, with your knowledge of people and human affairs, whether this is likely to be evidence that you would accept.
The Crown say that the entries support her version of events and the Crown have set out in their written document to you where, in each of the separate charges, the complaint is made in the record of interview and where, if it exists, it is supported by those diary entries.
Now, it is for you to decide what those iPod notes mean, it is for you to decide whether they support the complaints of sexual assault or not. If you find that the notes substantially support the version given by the complainant in her evidence, then you can use that evidence to support what the complainant said in her evidence, that those assaults did occur. That is, you can use the notes as some evidence independent of the evidence given to you about these incidents by the complainant in the witness box.
The law says that because of the circumstance in which the complaint was made, a jury is entitled to use what was said in those complaints, in those notes, if you find them to be complaints, as evidence of the truth of what was said by the complainant in her evidence in the witness box or in those three interviews.
A jury is entitled to find that the complaint was made at the time and the manner that it was made would indicate that the allegation was reliable and the allegation is less likely to have been fabricated by her, more likely to be accurate.
[emphasis added]
Ground two
It is convenient to deal with this ground first.
The basis of the ground was explained by senior counsel for the applicant as follows.
He did not submit that the iPod entries were inadmissible evidence. Nor did he submit that, if the complainant had said something about a count in her evidence-in-chief (whether by way of one or more of the recorded interviews, or orally before the jury), then that evidence could not be "supported" by an iPod entry, if any, about the same count.
But if the evidence-in-chief given by the complainant was nothing more than confirmation that the iPod entry made by the complainant was true and correct, then, senior counsel submitted, it was an error for her Honour to have told the jury that that evidence-in-chief could be bolstered by the iPod entry. That would constitute, he submitted, the form of circular reasoning colloquially known as "bootstrapping".
He submitted that the evidence in support of counts three, five, seven, eight, and ten fell into the category of featuring an iPod entry but no real examination-in-chief, and are therefore affected by the misdirection.
In response, the Crown accepted that, if it were the case that the evidence-in-chief founding a count on the indictment was merely confirmation of the correctness of the iPod entry, then the iPod entry could not support the evidence-in-chief. But it was submitted that her Honour had not asked the jury to approach the matter in that way, and the jury would not have understood her Honour as having done so.
Separately, it was submitted by the Crown that the particular impugned direction must be read in context. That context included the reference by her Honour in the preceding paragraph to a written document of the Crown, which had been provided to the jury at the trial, and a copy of which was provided to us at the hearing of the appeal. That document provided a summary of the evidence upon which the Crown relied in support of each count. With regard to those counts in which there was an iPod entry, that was set out in its entirety. With regard to those incidents in which there was no iPod entry, a summary of the evidence-in-chief was provided.
In other words, the Crown submitted, viewed in the context of the reference made by her Honour (moments before giving the impugned direction) to a document that clearly set out each of the counts, grouped them into incidents, and set out whether there was evidence-in-chief or an iPod entry that formed the basis of the Crown allegation, it could not be the case that the jury somehow used the direction to engage in illogical bootstrapping.
Separately, the Crown submitted that the direction, when seen in context, was not erroneous. That is because the direction made clear to the jury that it was only if, with regard to any particular count, there was both an iPod entry and evidence-in-chief that went beyond the iPod entry, that the former could support the latter. In other words, it was said that the jury would not have understood mere confirmation of the correctness of an iPod entry as having been a "version" given by the complainant in her evidence.
Turning to my determination, I accept the general proposition of the applicant that a prior representation of a witness cannot be used to corroborate or support subsequent evidence from that witness, if the subsequent evidence is nothing more than an assertion that the prior representation is correct. That would indeed be bootstrapping.
Here, however, I do not consider that her Honour was saying anything that had that flavour. Nor do I consider that the jury would have understood her Honour to have been doing so.
Seen in context, I consider that the direction was to the effect, and would have been understood by the jury as being to the effect, that, if there were an iPod entry, it could be used to support subsequent substantive evidence from the complainant about an incident. That is my reading of the portion of the direction that reads "you can use the notes as some evidence independent of the evidence given to you about these incidents by the complainant in the witness box". That is also my reading of the reference by her Honour to the jury being entitled to use the diary entries "as evidence of the truth of what was said by the complainant in her evidence in the witness box or in those three interviews".
Secondly, I consider that the fact that her Honour had, a very short time before, spoken to the jury of the document that set out clearly whether, with regard to each count, the Crown was relying upon an iPod entry, or substantive evidence-in-chief, or both, bolsters my interpretation of what her Honour was saying, and how the jury would have understood it.
Thirdly, the fact that defence counsel at trial did not raise any concern about the direction (with the result, as I have said, that r 4 of the Criminal Appeal Rules applies to this ground) supports the proposition that that is how the direction was understood by those who were present in the courtroom. To express that concept another way, if defence counsel had interpreted what her Honour was saying as illogical bootstrapping that was strongly adverse to the applicant with regard to some counts, one would have expected him to have complained about it and sought a re-direction.
In short, although I accept the submission made by senior counsel for the applicant as a general proposition, in the particular circumstances of this trial and this summing-up, I do not consider that the impugned direction has occasioned a miscarriage of justice.
For those reasons, I would not grant leave to argue this ground.
Ground one
Senior counsel for the applicant explained at the hearing of the appeal that the ground asserting that the verdicts of guilty are unreasonable or unable to be supported has two separate bases. The first is the proposition that the verdicts of guilty are unable to be reconciled rationally with the verdicts of not guilty. The second is the proposition that, when one considers the evidence in the trial in its entirety, each of the verdicts of guilty is unreasonable or unable to be supported.
It is convenient to consider each of the bases of this ground separately.
Inconsistent verdicts?
Senior counsel submitted that there is no rational basis upon which the jury could have drawn the distinctions it did between the counts and their verdicts. It was said that each of the counts was founded upon the evidence of the one complainant; that there was no evidence emanating from a source other than the complainant that could support the conviction counts but not the acquittal counts; and that there was no other basis upon which the jury could have drawn a distinction between the counts. It was said that, in those circumstances, the convictions founded upon the verdicts of guilty must be quashed.
Senior counsel for the applicant invited attention in particular to counts 7 and 9, each of which averred digital/vaginal penetration. Count 7 resulted in a verdict of guilty, and count 9 resulted in a verdict of not guilty. He asked rhetorically: what possible basis was there in the evidence for the jury to draw a distinction, by way of a verdict of guilty and a verdict of not guilty, between those two particular counts?
In response, the Crown submitted that there were indeed points of distinction within the evidence, and indeed within the nature of the counts themselves, that permitted the jury to differentiate in the way that it did. That submission was developed by way of a detailed analysis.
Turning to my determination of this basis of ground one, I accept the validity of the analysis provided by the Crown, and substantially adopt it. To my mind, if one works one's way carefully through the evidence and the counts, one can see that, although at first blush the submission made on behalf of the applicant is attractive, there was indeed a rational basis for the discernment made by the jury: see generally MacKenzie v the Queen [1996] HCA 35; (1996) 190 CLR 348. I proceed to engage in that analysis.
It will be recalled that count one, an allegation of digital/vaginal penetration, resulted in a verdict of not guilty. As can be seen from my summary of the evidence above, this count did not feature an iPod entry. That was a basis upon which the jury could draw a sharp and simple distinction with other counts upon which the jury returned a verdict of guilty.
Quite apart from that, my extended extract from the first interview shows that the evidence of the complainant as to whether or not there actually had been penetration of her genitalia was by no means clear. It would not have been surprising if the jury was not satisfied beyond reasonable doubt that there had been penetration founding this count.
Count two was allegedly providing a child with an intoxicating substance in order to procure unlawful sexual activity. It also resulted in a verdict of acquittal. There was a perfectly rational explanation for that verdict.
Neither the iPod entries; nor the verbal response of the complainant when her mother discovered those entries; nor the Facebook message, support the proposition that the applicant incited or forced or procured the complainant to engage in sexual contact with him. To the contrary, it was well open to the jury to find that the complainant purported to "consent" to the sexual contact with the applicant; of course, that provided no defence whatsoever to the counts that averred sexual contact with a person under the age of 16 years. But to my mind, the acquittal on count two can readily be explained on the basis that the jury were not satisfied beyond reasonable doubt that the applicant did anything with intention to "procure" sexual contact between himself and the complainant.
Count three was said to have occurred on the same occasion as count two. It alleged aggravated indecent assault, not digital/vaginal penetration. It resulted in a verdict of guilty. It was supported by the iPod entry of 5:11 AM UTC on 14 January 2013. Without recounting it again, the detail of that iPod entry provided a sound basis for the jury being satisfied beyond reasonable doubt that the applicant touched the complainant on the outside of her vagina.
Count four averred that the applicant had incited the complainant to commit a sexual act with him. The jury returned a verdict of not guilty. For the reasons that I have given in my analysis of count two, that verdict of acquittal was quite open in the context of convictions on other counts. On the evidence in the trial, it was quite rational for the jury not to be satisfied beyond reasonable doubt that the applicant incited the complainant to engage in sexual contact with him.
Count five alleged sexual intercourse by way of digital/vaginal penetration. It was founded on the iPod entry of 11:14 PM UTC on 9 March 2013, which I have extracted above at [57]. The jury returned a verdict of guilty, thereby demonstrating that it had found beyond reasonable doubt that there had indeed been penetration as alleged. I consider that there is force in the submission of the Crown that the complainant, in that entry, provided graphic details about the offence, including her emotional and physiological reaction to penetration. In those circumstances, the verdict of guilty can be rationally distinguished from verdicts of not guilty on other counts, including other counts averring digital/vaginal penetration.
Count six alleged that the applicant incited an act of indecency. It resulted in a verdict of not guilty. It required the jury to be satisfied beyond reasonable doubt that the applicant had incited the complainant to engage in sexual contact with him. I consider that it is open to the same analysis that I provided with regard to count two and count four. That analysis provides a sound rational basis for the verdict of acquittal in the context of convictions.
Count seven alleged sexual intercourse by way of digital/vaginal penetration. It was founded upon the iPod entry of 12:49 PM UTC on 21 April 2013, which I have extracted above at [64]. It was also founded upon what the complainant said in her very first interview with the police; again, I have extracted the relevant portion above. The jury returned a verdict of guilty on count seven.
Again, in light of the way that the complainant described in the iPod entry her emotional and physiological reaction to the sexual offence that was being committed against her, it was well open to the jury to be satisfied beyond reasonable doubt that there had indeed been penetration to some degree of her genitalia. Furthermore, I consider that the particularity of the iPod entry with regard to this count provides a rational point of distinction with those counts averring digital/vaginal penetration and with regard to which the jury returned a verdict of not guilty.
Count eight alleged aggravated indecent assault by way of the applicant touching the breasts of the complainant. It was founded upon the same iPod entry, along with what was said in the first interview. It resulted in a verdict of guilty. Because of the structure of the sexual offences in the Crimes Act, any consent to an indecent assault that the complainant may have purported to have given constituted, of course, no defence to the offence, in light of her age. But that was a different matter from the question of the jury being satisfied beyond reasonable doubt that the applicant had incited the complainant with regard to any count, or procured her to commit the act that founded any count.
Again, the level of detail and repetition with regard to the offence committed by the applicant provides a rational basis for the distinction drawn by the jury between this count and counts upon which a verdict of not guilty was returned.
Count nine averred sexual intercourse by way of digital/vaginal penetration. It was based upon an iPod entry of 12:58 AM on 30 April 2013, which I have extracted above at [71], along with what was said in the first interview. It resulted in a verdict of not guilty.
I accept the submission of the Crown that the evidence in support of count 7 was more detailed than the evidence in support of count 9. The evidence of the complainant in relation to count 9 did not go beyond her indicating that she was standing up and the applicant started to "finger" her. The complainant was not asked to expand upon or to provide a definition of what such activity involved. I consider that there was a rational basis in the evidence - that is, the particularity of the iPod entries with regard to count seven - that founded the verdict of guilty of counts seven and a verdict of not guilty on count nine.
Count 10 averred aggravated indecent assault. It was based upon an iPod entry of 12:56 AM on 30 April 2013, which I have extracted above at [71], along with what was said by the complainant in the first recorded interview. It resulted in a verdict of guilty. That verdict was supported by a detailed electronic diary entry, along with a detailed description in the first complaint made to the police. On that basis, the verdict of guilty is not irrationally inconsistent with any of the verdicts of acquittal.
Count 11 averred that the applicant incited the complainant to commit an act of indecency. It was founded upon the same iPod entry, and resulted in a verdict of acquittal. For the reasons that I have explained above with regard to other counts founded upon incitement or procurement, that verdict of acquittal was not inconsistent with other verdicts of guilty.
Count 12 alleged that the applicant incited an act of indecency on the part of the complainant. It was derived from the iPod entry of 12:58 AM on 30 April 2013, along with the contents of the first interview. It resulted in a verdict of not guilty. For reasons given previously, the fact that the jury acquitted on a count, an essential element of which was incitement, does not demonstrate any inconsistency with the counts upon which a verdict of guilty was returned.
Count 13 averred sexual intercourse between the applicant and the complainant, by way of her performing oral sex upon him. The jury returned a verdict of not guilty on this count. It was not the subject of any iPod entry at all. It is also the case that, as I have shown in my detailed collation of the evidence in support of this count, the complainant gave inconsistent evidence about how many times she had performed oral sex upon the applicant; I shall not repeat those variations. She also gave at one stage a version that was open to serious question, in that it featured the proposition that she was able to see a person through a keyhole. In light of the absence of a contemporaneous iPod entry, the diverging evidence as to how many times this particular sexual contact had allegedly occurred, and the assertion of being able to see through a keyhole, the verdict of not guilty is not inconsistent with any verdict of guilty returned on other counts.
Count 14 alleged sexual intercourse by way of digital/vaginal penetration. That was said to have occurred at about 4:00 AM one morning in September 2013. The jury returned a verdict of not guilty on that count. The complainant had made no iPod entry about it, but discussed it in her first interview. In that interview, she had given neither detailed evidence about penetration, nor evidence of her emotional or physiological response to it. That verdict of not guilty is not inconsistent with the verdicts of guilty with regard to other counts averring digital vaginal penetration, or any other verdicts of guilty. That is because those verdicts of guilty are founded either upon iPod entries, or upon graphic descriptions, or other evidence.
Count 15 averred an aggravated indecent assault by way of the applicant touching the breasts of the complainant. That was said to be after a motion picture had been watched on television, and both the applicant and the complainant slept on a lounge. It was not founded upon an iPod entry, but rather upon what the complainant had said in her first interview with police. It resulted in a verdict of guilty.
It was open to the jury to be satisfied that the applicant touched the complainant on her breasts, whilst at the same time not being satisfied beyond reasonable doubt that he had digitally penetrated her, and not being satisfied that the alleged kiss was indecent (that allegation is analysed immediately below).
Finally, count 16 averred an aggravated indecent assault, by way of the applicant kissing the complainant on her lips, again in September 2013. It was not the subject of an iPod entry, but had been discussed by the complainant in her first interview. The jury returned a verdict of not guilty.
I consider that that verdict can be rationally explained in a way consistent with the verdicts of guilty on other counts; namely, by way of the jury not being satisfied beyond reasonable doubt that it was contrary to community standards of decency for the applicant to kiss the 14-year-old complainant, who was "consenting" to that conduct, briefly on the lips. That basis of differentiation on the part of the jury is perhaps surprising; nevertheless, I consider that it is a rational one, especially bearing in mind the criminal onus and standard of proof.
In short, I consider that a detailed analysis of the counts, the verdicts, and the evidence demonstrates that there was a rational basis for differentiation with regard to each and every verdict of guilty and not guilty. Far from the jury simply disregarding its duty by returning verdicts capriciously or in order to give effect to an irrational compromise, I consider that analysis shows that there were indeed bases for the process of subtle and careful discernment in which I believe the jury engaged. For that reason, I consider that this basis of ground one is not persuasive.
Verdicts generally unreasonable?
I turn to consider the second basis of ground one; namely, the submission that the evidence as a whole was so lacking in cogency and persuasiveness that the verdicts of guilty cannot be maintained.
Submissions for the applicant
Senior counsel for the applicant submitted that there were a number of aspects of the evidence that would lead us to regard the verdicts of guilty as unreasonable or unable to be supported, and to quash the convictions. He made it clear that the submission was not dependent upon success with regard to the allegedly inconsistent verdicts. The following aspects of the evidence were emphasised.
First, whether one looked to the iPod entries, the Facebook post, the things said to the mother of the complainant, the interviews with police, or the evidence of the complainant in court, the fact is that the Crown case emanated entirely from one person.
Secondly, the complainant had suffered from mental and emotional problems sufficient for her to be an inpatient at a psychiatric clinic in a hospital.
Thirdly, she had been taking medication which, in a very small percentage of persons, can induce hallucinations.
Fourthly, during one interview with the police, she said that "Because I've got like a depressive disorder so, I see things", "And I hear things…", and "…that's why I writ stuff [sic]" (IV3 Q&A 126-128).
During cross-examination, she seemingly accepted that she suffered from "hallucinations" (9/12/14 TT28.14-28.49).
Fifthly, the iPod entries were a significant, if not central part of the Crown case. In those entries, the complainant recorded more than once that the applicant had had penile/vaginal sex with her from behind. There was nothing on its face to distinguish that written claim from the other claims of sexual crimes against the applicant. And yet, when interviewed by police, and when questioned on oath, the complainant firmly maintained the position that that claim was untrue. Furthermore, she was unable to provide any explanation as to why she had recorded something in her iPod diary that she subsequently stated was completely false.
Sixthly, the quality of the evidence taken as a whole, and including the evidence with regard to counts upon which there were acquittals returned, was concerning.
For example, as I have shown above, the complainant gave very inconsistent evidence as to how many times she had allegedly performed oral sex upon the applicant.
Separately, the evidence about the final incident that reflected counts 14, 15 and 16 was confused to the point of being very difficult to follow in terms of timing and circumstances.
As well as that, the iPod entry with regard to the presence of the son of the partner of the applicant was said by the complainant to be flatly wrong: her firm position in cross-examination was that that young person was simply not present at any relevant state.
With regard to the first count, the complainant told police that after it occurred she had made an iPod entry about it. In fact, there was none.
Seventhly, the complainant asserted in her evidence that when the offences occurred she was shocked, frightened, and on occasion frozen with fear. And yet the iPod entries do not suggest that at all; quite the contrary.
Eighthly, the applicant gave evidence, subjected himself to cross-examination, and raised character. There was nothing to suggest any previous criminality on his part, and certainly no suggestion of a sexual interest in children.
In short it was said that, leaving aside the question of the rational reconciliation of the verdicts of guilty and not guilty, the state of the evidence is such that this Court would come to the view that the verdicts of guilty are unreasonable.
Submissions for the Crown
The Crown accepted that the evidence emanates from one person, and that no doubt the jury needed to reflect upon that evidence with great care. It was said, however, that it was ultimately open to the jury to return the verdicts of guilty that it did. The following particular points were made.
First, one has to approach criticisms of the quality of the evidence of the complainant with an appreciation that the Crown case was that the complainant was a young girl who had been physically and emotionally taken advantage of by a much older man who was also a family friend. At the time she was mentally and emotionally fragile. On three separate occasions, she was taken in detail by police to entries in her iPod that she had never expected anyone to discover, and that were private details of her sexual contact with another person. After the contents of the diary were revealed, the complainant sent a message to the applicant that strongly suggested that she believed that she had romantic feelings for him, and that she regretted the revelation of what had occurred between them. Many of the criticisms of her evidence (whether given by way of interview or in the witness box) made on behalf of the applicant can be explained by reflection on that context.
Secondly, the Crown did not put forward on the appeal a hypothesis with regard to the claim made in the iPod of sex from behind said to support the credibility of the complainant. Still and all, it was said that her readiness to admit that it was false bolstered her credibility with regard to the allegations that were maintained.
Thirdly, as I have said, the Crown accepted that its case was founded on the evidence of one person. Nevertheless, it invited attention to the undisputed evidence that a middle-aged man would sleep on a lounge whilst a young girl would sleep on a lounge that was, at the least, part of the same lounge suite, whilst his romantic partner was sleeping alone in the same premises.
Fourthly, the point was made that the jury was in a position to undertake a collective assessment of the credibility of the complainant and of the applicant. It was said that, even bearing in mind that much (but not all) of the evidence-in-chief of the complainant was recorded, none of her oral evidence-in-chief or her cross-examination or re-examination was available in that form. Nor, of course, was the evidence of the other Crown witnesses, nor the evidence of the applicant. It was said that great weight should be given by us to the assessment of those matters by the jury.
Fifthly, in short it was accepted that this Court must make its own assessment of the evidence as a whole. But it was said that we would ultimately find that the verdicts were not unreasonable.
Determination
Although it was not the subject of controversy before us, and although the test to be applied is derived from a well-known decision of the High Court of Australia of over two decades ago, I think it appropriate to refer briefly to my understanding of the applicable test.
It was most recently reiterated by a plurality of the High Court of Australia in Filippou v The Queen [2015] HCA 29 as follows (in the context of an appeal from a trial by judge alone):
[12] Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:
…
Thereafter the High Court of Australia referred to a well-known passage from M v The Queen [1994] HCA 63; (1994) 181 CLR 487 which is as follows:
[9]…It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence…
Subsequently to the delivery of the judgment in Filippou v The Queen, in Glover v R; Stuart v R [2015] NSWCCA 285, McCallum J considered what was said in M v The Queen about how a Court of Criminal Appeal should approach this ground of appeal. Her Honour reflected on a possible tension between, on the one hand, this Court considering whether the jury must have had a reasonable doubt (in a sense, an error-based appeal), and, on the other hand, members of this Court reflecting upon whether they are satisfied beyond reasonable doubt of the guilt of an applicant (in a sense, a de novo appeal).
I think it worthwhile to extract the entirety of what her Honour said (without demur on the part of Basten JA, and with the agreement of R A Hulme J) about this question:
[97] Glover's appeal invokes the power of this Court under s 6(1) of the Criminal Appeal Act 1912 (NSW) to set aside the verdict of a jury if the Court is of the opinion that it is unreasonable, or cannot be supported, having regard to the evidence. Although the principles to be applied in determining such a ground are well-established, I wish to emphasise an aspect of the relevant jurisprudence which has influenced my conclusion. I am here in part repeating or refining what I said in Hawi v R [2014] NSWCCA 83 at [476] to [480].
[98] It is well-established that, in determining such a ground, this Court must make an "independent assessment of the evidence". The existence of that function has long been recognised: Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 516.1 per Barwick CJ; Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 at 534 per Gibbs CJ and Mason J; Morris v The Queen [1987] HCA 50; 163 CLR 454 at 463, 473, 478. It is clear that it is a function which must be discharged carefully, with a view to assessing the "probative value" of the evidence (Morris at 463 per Mason CJ) both as to its sufficiency and its quality (Morris at 473 per Deane, Toohey and Gaudron JJ).
[99] It is important to bear in mind the purpose for which that function is performed, which is to determine whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused: Chamberlain at 534.3; Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] per Hayne J (citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492 to 493). One of the issues considered in the joint judgment in M was whether, in stating the test in such terms, it was necessary to qualify the statement of Barwick CJ in Ratten that the same task could equally be expressed by reference to a doubt entertained by the appellate court itself. The majority in M did not think the difference mattered. It was in that context that the majority said, famously (at 494), "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced."
[100] That quote and the remarks that follow it are frequently cited in this Court as a seminal statement of principle governing appeals of this kind. There is no vice in doing so, provided the passage is read in context. The assertion as to what will be the position "in most cases" was not itself a statement of principle. It was the explanation for the view stated in the previous sentence that it is "possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested". The "qualification" was explained in the preceding paragraph:
To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
[101] If there is no difference between Barwick CJ in Ratten and Chamberlain, I prefer the formulation approved in Chamberlain, that is, whether the jury, acting reasonably, must have entertained a reasonable doubt or, as it was put by Hayne J in Libke at [113] (emphasis in original):
"the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt."
[102] My reason for preferring that formulation is that it is more accurate, since it acknowledges the function of the jury as the body entrusted with the primary responsibility of determining guilt or innocence (a point reiterated in an earlier passage in M at 493.8). In an appeal, the Crown does not have to discharge an onus of proof beyond reasonable doubt for a second time; this Court is entrusted with the function of undertaking an independent assessment of the evidence for a different purpose. Submissions invoking the frequently quoted-passage from M sometimes appear to suggest otherwise.
[103] For the reasons stated by R A Hulme J, my own assessment of the evidence has not persuaded me that the jury must or ought to have entertained a doubt as to Glover's guilt of the first two robberies.
[104] This Court is of course able to make an assessment of the sufficiency and quality of the evidence in a circumstantial case but the advantage enjoyed by the jury in such a case is, in my view, important. It is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their number, their diversity and their opportunity to hear the evidence continuously and to deliberate as a group in private throughout the trial, evaluating the evidence together as it is given rather than reading the transcript afterwards on one's own.
I respectfully agree with the entirety of what McCallum J has said in those paragraphs. In particular, I do not interpret what was said in M v The Queen and very many subsequent decisions of the High Court as meaning that I am to undertake a de novo process whereby the Crown must prove its case all over again. Rather, the question is whether, bearing in mind all of the advantages that the jury enjoyed, and the fact that it is the time-honoured tribunal of fact with regard to proof beyond reasonable doubt of serious offences, the applicant has demonstrated that, on the evidence, the jury must have experienced a reasonable doubt.
All of the points made by senior counsel for the applicant have sound force, and require serious reflection. In the ultimate, however, I am not satisfied that the applicant has made good this ground on the second basis. I say that for the following reasons.
First, the graphic, detailed, and intimate entries in the private iPod diary of a young girl constituted compelling evidence against the applicant.
Secondly, the fact that the complainant never expected those entries to be seen by a person in authority, and reacted angrily when her mother located them, adds probative weight to them. In other words, there could be no suggestion that the entries were made in order to inculpate the applicant falsely, for some reason or another. In fact, she wished very much to keep them secret, and was upset when her mother discovered them.
Thirdly, the entries about sexual contact between the complainant and the applicant are scattered throughout a much larger body of entries that are about any number of other topics. They certainly show that the complainant was suffering from emotional and perhaps mental difficulties. But a careful reading of the entirety of the iPod diary shows no entry inherently suggestive of delusions or irrationality.
Fourthly, the Facebook post - sent after discovery of the entries by the mother of the complainant, but before the intense involvement of the police - strongly supports the proposition that there had been an intimate and purportedly romantic relationship between the complainant and the applicant.
Fifthly, it is true that there are discrepancies and confusions in the evidence of the sexual contact. But that is to be expected with regard to a young girl who, with regard to a large number of incidents of sexual contact, was interviewed three times, on 11 November 2013, 25 November 2013, and 9 January 2014, and gave evidence-in-chief, was cross-examined and re-examined in December 2014.
Sixthly, it is true that at one stage in cross-examination the complainant agreed that she had been hallucinating. But at a later stage she denied that proposition, and firmly maintained that the vast majority of the iPod entries were true: see 9/12/14 TT28.14-28.49. There was also a crossed wire with regard to the meaning of the word "fantasy" in cross-examination. Taken as a whole, the cross-examination of the complainant showed that she was maintaining before the jury that everything in the iPod entries (except the claim of sex from behind) was correct.
Seventhly, the situation of a young girl being repeatedly asked to elaborate upon intimate and graphic diary entries detailing her sexual contact with a much older man by police officers in recorded interviews, and thereafter by lawyers in court, inevitably gave rise to embarrassment and shame on her part. And, in the unusual circumstances of this case, those consequences were far more pronounced than in the "usual" child sexual assault trial (in which the complainant alleges that he or she did not enjoy the sexual contact in any way whatsoever). Those emotional consequences surely played a role in the deficiencies in the evidence of the complainant and the jury surely assessed them.
Eighthly, it was quintessentially a matter for the jury to determine whether the good character of the applicant and his sworn evidence caused them to have a reasonable doubt with regard to the counts that resulted in a verdict of guilty.
Ninthly, it is true that the position of the complainant changed from proclaimed love for the applicant and enjoyment of their sexual contact (at the time of the iPod entries and the Facebook message) to hatred for him, and to a claim (at the stage of the interviews and the trial) that, at the time of the sexual offences, she was fearful and oppressed. But the jury was entitled to reflect upon the degree to which that change of position damages the credibility of the complainant, as have I. I think that one would expect such a change to be adopted by a young girl, in the unusual circumstances of this matter.
Tenthly, the withdrawal of the claim in the diary that the applicant had sexual intercourse from behind with the complainant, and the lack of any explanation whatsoever for the original making of the claim, is a very significant aspect of the evidence. It has caused me to reflect at length. Ultimately, however, I consider that it was the task of the jury to reflect upon possible explanations for a state of affairs whereby a young girl refers in a private diary to penile/vaginal intercourse in perhaps crude terms ("doggie style"); expresses in the diary her purported enjoyment of the sexual contact generally; thereafter sends a message to the applicant expressing her regret for the discovery of the diary entries by her mother, and her "love" for him; insists to the police that the man whom she had "loved" had not "raped" her; withdraws the particular claim and maintains that withdrawal; and, finally, is incapable of providing an explanation for the making of the original claim.
Eleventhly, and finally, one knows from experience as counsel and judge that transcripts of criminal trials are a very ineffective record of what actually occurred at the trial in the presence of the jury, in terms of capturing the demeanour of witnesses and the prevailing atmosphere. The undoubted advantages that the jury enjoyed in assessing the evidence in the trial over me deserve to be fully respected.
In short, the Crown case had undoubted weaknesses; apart from anything else, the fact that the applicant was acquitted on a large number of counts shows that. But I am not persuaded that the Crown case was so weak that the jury must have entertained a reasonable doubt with regard to the counts upon which verdicts of guilty were returned. In particular, I consider that the jury was entitled to be satisfied beyond reasonable doubt that the contents of the iPod diary were neither fantasies nor hallucinations, whether medication-induced or otherwise.
It follows that I do not consider that the second basis of ground one has been established.
Conclusion regarding ground one
Whether one considers each basis of ground one individually, or their combined force, I do not consider that the ground has been established.
Conclusion regarding appeal
No ground having been established, I consider that the appeal should be dismissed.
Orders
I propose the following orders:
1. Leave to appeal with regard to ground two refused.
2. Leave to appeal with regard to ground one granted.
3. Appeal dismissed.
[3]
Amendments
11 April 2016 - Catchwords.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 April 2016