"….You would have to have a reasonable doubt on the evidence, what little there is of it. It's not simply a case as the Crown invite(s) you to say, "Well I've seen [the complainant]. She looks impressive, therefore I'll accept her". That's a very simplistic approach, its an approach fraught with problems, and the only way you can assess her evidence is to put it to the test, and the test against the other evidence, including the evidence of [the appellant] and if you approach it in that light it's apparent that there are some major, major flaws in her evidence."
55 I believe that this is a case where rule 4 should apply. It seems to me that defence counsel did not see any prejudice arising to the appellant from the videotape being with the jury during their deliberations or with the directions given by the Judge about the jury's approach to the tape in the context of the summing up as a whole. I appreciate that in the present case, unlike NZ, the appellant gave evidence. Also unlike NZ the jury was not provided with a transcript of the cross-examination of the complainant. But also, unlike NZ, the jury verdict came a relatively short period of time after the conclusion of the summing up during which the judge had extensively reminded the jury of the cross-examination of the complainant, the evidence of the appellant and the criticisms made of the complainant's evidence by defence counsel. I do not believe that in those circumstances and in light of the contents of the further directions given to the jury including the s 165 warning that, even if the jury replayed the tape, it brought about an imbalance or unfairness in the trial giving rise to a miscarriage of justice.
56 As I shall indicate shortly when dealing with the next ground of appeal, the case had an unusual feature being that to a large extent the complainant's reliability was determined by a subsidiary issue that became central to the outcome of the jury's deliberation: were the jury satisfied beyond reasonable doubt that the incident of baby-sitting took place in 1999? The content of the tape had little to do with that issue.
57 I do not believe that a miscarriage of justice has been shown. I am unpersuaded that the jury's verdict would have been any different had they not had unrestricted access to the videotape during the course of their deliberations or had the judge given any further warning or direction as to the manner in which they were to approach the contents of the tape when replaying it. The ground of appeal should be rejected.
58 The second ground of appeal is that the verdict is unreasonable or cannot be supported by the evidence. The test to be applied by this Court in determining such a ground of appeal is well established by decisions of the High Court such as M v The Queen (1994) 181 CLR 487 particularly at 493-4 approved in Jones v The Queen (1997) 191 CLR 439 at 451. The issue is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
59 In support of the ground of appeal the appellant points to a number of aspects of the complainant's evidence in order to lead the Court to a conclusion that the jury ought to have entertained a reasonable doubt about her reliability. I accept that these matters should be considered in combination although it is necessary to consider each separately in order to see what strength each argument has in support of the general proposition that the verdict was unreasonable.
60 I note that the complainant's allegation was not corroborated. Insofar as the allegation of sexual assault was concerned, it was a case of word against word, that is the complainant's evidence had to be considered in the light of the sworn testimony of the appellant.
61 There was a delay in complaint from about May 1999 to November 2001. The appellant was also disadvantaged by the further delay before the allegation was brought to his notice in July 2003. However, as has already been noted, a major issue that arose was the date of the incident when the appellant looked after the complainant and her sister and the applicant relied upon documentary evidence obtained from the Health Commission and the RTA to support his assertion that it occurred in 1997 when he lost his wallet.
62 I do not find the delay before complainant in this matter to be exceptional or necessarily inconsistent with the complainant's allegation given her age, the nature of the relationship with the appellant and the fact that she had a disturbed family life by reason of the divorce between her parents resulting in her mother residing overseas.
63 Nor does it strike me as particularly significant that there was some later contact between the appellant and the complainant at family social events where her stepfather was present or that the complainant was prepared to pose, apparently quite happily, for a photograph with the appellant. This is a matter that has to be viewed realistically against the dynamics of relationships between young children and adults in extended family situations.
64 I note that the appellant called positive evidence of good character.
65 None of these matters are particularly unusual in cases such as the present. They are relevant to an assessment of the complainant's evidence but not decisive and must be viewed with due consideration of the jury's ability to evaluate the evidence before them from their common life experiences: R v Williams (1999) 104 A Crim R 260 at [48].
66 The evidence of the social worker as to her notes of conversations with the complainant about shoplifting was relevant to the general reliability of the complainant on a marginal issue but the suggestion that it indicated that the complainant might have been prone to fantasy was in my opinion far-fetched.
67 The principal matter relied upon by the appellant is that the complainant was unsure of the date of the commission of the offence and gave inconsistent accounts of the circumstances surrounding the incident giving rise to the charge. For example, she was not sure whether the appellant's estranged wife was pregnant at the time of the baby-sitting or whether the incident occurred before or after the complainant's birthday, which was on 26 May. However, she was unshaken in her belief that the incident occurred in Year 6 shortly before she went to Thailand in August 1999. She had been on other trips overseas including one of about a week's duration in 1997 but she did not recall those trips during her evidence. The 1999 trip appeared to be significant because of its duration, almost 6 months, and because she went to Hong Kong during the trip.
68 The trial judge told the jury that they could not convict the accused unless they were satisfied beyond reasonable doubt that the incident occurred in May 1999 and not in 1997. That direction was probably unduly favourable to the appellant because it is clear that the appellant and the complainant were speaking of the same event, that is the only time that the appellant ever baby-sat the complainant. It did not matter strictly when that event occurred.
69 However, this issue became of critical importance to the credibility of both the complainant and the appellant. If the jury concluded beyond reasonable doubt that the baby-sitting incident occurred in 1999, as the Crown witnesses asserted, this was of major significance in the determination of the charge. Of course it did not mean that by deciding that question in favour of the Crown the jury must find the complainant's allegation to be proved beyond reasonable doubt. But it did mean that they must have found against the appellant on the substantial part of his evidence and this would have had the effect of bolstering the reliability of the complainant on the crucial issue.
70 In my view it was well open to the jury to find, as they must have done, that the baby-sitting occurred in 1999 despite the documentary evidence indicating the loss of the appellant's licence and Medicare card at an earlier date. The appellant's wife gave evidence that at the time of the baby-sitting incident she was pregnant with her child Paige and she was hardly likely to be mistaken about that fact even if she was, as she admitted, not good with dates. She was adamant that the accused's wallet went missing after that date, so far as she was aware. As she and the appellant were married in 1997, the jury could have reckoned that she would have been aware if the incident of the baby-sitting had occurred in that year, as the defence asserted. The fact that she told the police that the incident occurred when the complainant was 11 or 12 was consistent with her recollection of when the event occurred. The circumstance that she was at the time of giving evidence undergoing a divorce from the appellant does not suggest to me that she would be untruthful in her account of the relevant events.
71 Similarly the evidence of the complainant's stepfather was that the baby-sitting occurred in 1999 when the complainant was in Year 6. The fact that he told the police that the complainant was "12 or 13" at the time was more consistent with the fact that the incident took place in 1999 than in 1997 when the complainant would have been 8 or 9.
72 In my opinion the ground should not be upheld. As I do not believe that either ground is made out, I propose that the appeal be dismissed.
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