The evidence at the trial
6Having regard to the nature of the grounds of appeal it is necessary, in my view, to consider the evidence placed before the Court at the trial, the closing by each of counsel for the Crown and the appellant, and the directions given by her Honour to the jury.
7Primary reliance was placed by the Crown on the evidence of the complainant MW. In fact, she did not give evidence at the trial but rather a DVD of her evidence at a previous aborted trial for the same offence was played before the jury.
8The evidence given by MW in chief primarily consisted of verifying a record of interview which took place between her and a Detective Senior Constable Aitken on the evening of 22 March 2008, the day the incident in question occurred.
9During the course of the interview MW said she was playing hide-and-go-seek with the appellant's seven year old son, LR, at the rear of the appellant's premises. She said she went to hide in the shed, which she described as a room with a microwave, air-conditioner, PlayStation, TV, blanket, lounges, tools and clothes. She said the appellant was in the shed, that he was wearing bluey black pants and a shirt, and that "there was a hole in his pants too when he did it ... where his rude part was" (interview Q 144 - Q 148). She said he was standing in front of her and she was also standing (Q 230). She stated that he covered her mouth with his hand so she could not say anything, put a red blanket taken from the lounge over her head, told her to open her mouth wide and then put his "rude part" or "doodle" in her mouth (Q 90 - Q 230). In the interview, she said she knew that "dick" was another word for "the rude part" or "doodle" (Q 159), and circled where his "rude part" was on a diagram of a boy given to her by the police officer (this diagram was in evidence before the jury). She said that she had said no to the appellant but he just yelled at her and she had to do it (Q 175). She said that he moved it back and forward in her mouth for a little while (Q 179 - Q 181), and had his hands on top of her head "tight ... Just holding it down" (Q 235 - Q 237). She said that "nothing came out of his doodle before he stopped" (Q 201). When he stopped she asked if she could watch a movie with LR inside (Q 189) and he said yes (Q 202). She stated he said "Don't tell our secret", "don't tell anybody" (Q 137, Q 203). MW said she felt terrified "Cause he did it"(Q 209 - Q 210). She said when she went with LR to watch the movie she then said "can I go to mum first and then [LR] said yes" (Q 202). She said she then went home and told her mother what had happened (Q 139 - Q 140).
10During the course of the interview the following exchange occurred:
"Q78 OK. So, can we make an agreement today to only tell the truth, to only tell what actually happened?
A About [the appellant]?
Q79 Yep, yep. Just tell, tell the truth. Can we make an agreement to do that?
A He forced my head, pushed my head down, made me suck it.
Q80 OK.
A That's the real truth.
Q81 OK.
A I ... the words, ... mum ... going ... ..., say 'em.
Q82 Yep. OK.
A I said, I know the words mum."
MW's mother, LW, was not in the room at the time of interview. Defence counsel relied upon this exchange, particularly the words "I know the words mum", in closing to suggest that LW had coached or otherwise influenced MW's evidence.
11In cross-examination she was asked if she had practiced what to say with her mother or anyone else before going to see the policeman:
"Q: And before you went to see the policeman that night did you practice what you were going to say to the policeman?
A: No.
Q: Did you practice with mum or anyone else?
A: No."
12In cross-examination it was suggested to her that she was playing with LR at the front of the appellant's house but she maintained she was playing at the back. She agreed that she often played hide-and-seek with LR, sometimes outside, sometimes in LR's house and sometimes in the shed. She agreed that on the day in question she was playing dirt castles with LR and got dirty hands and dirty clothes and that the appellant told her and LR to go inside and wash their hands because the rain was getting heavy. She agreed that thereafter she went inside to watch a DVD, but the power and lights were off for a time and then the lights subsequently came back on. She agreed that after the DVD started she said to LR she wanted to go home to see her mother.
13Subsequently in her cross-examination she stated that she played hide-and-seek before she and LR washed their hands. She rejected the suggestion that the hide-and-seek game could have taken place on another day. She also stated that she was sure that the blanket she saw in the shed was a red one, not a blue one.
14MW was then asked whether she recalled an incident which occurred on another day. She agreed she remembered playing hide-and-seek and on that day she was sitting on the appellant's lap under a red blanket. She said that she was not sure whether the blanket in question on that day might have been blue not red. She again, however, asserted that she was sure she was playing hide-and-seek on the day in question. At the conclusion of her cross-examination the following exchange occurred:
"Q: [MW], nothing bad happened on this day, did it?
A: I'm not sure.
Q: Well you've told use that [RR] made you suck his doodle?
A: Yeah.
Q: And you're only a little girl and I don't want to get you confused. Do you remember telling the police that?
A: Yeah.
Q: [RR] really didn't do that, did he?
A: I didn't hear you.
A: [RR] didn't really do that, did he?
A: I'm not sure."
15However, in re-examination she was asked the following question without objection:
"Q: Now at the end of my friend's question of you, he asked you - he said to you 'You told the police that [RR] sucked your doodle - [RR] made you suck his doodle' and you said yes. And then he put to you that he didn't really do that and you said you weren't sure. Now what did you mean by that? Are you saying to the jury that you aren't sure whether [RR] made you suck his doodle that day?
A: He did."
16The appellant's mother LW gave evidence. She said that she and her family including MW lived across the road from the appellant and that on the day in question she gave MW permission to go to the appellant's premises and play with LR.
17She said she was away from her house for about 15 minutes and she saw MW about 2 1/2 minutes after she returned. She stated that MW appeared to be white, scared, crying and angry and that she told her that "[RR] made me suck his cock". She said MW told her that:
"she was playing hide-e-go-seek with [LR] and [LR] was counting and that she had asked [RR] where to hide and [RR] said 'You can hide here in the shed' ... She said that he had made her, he yelled at her for her to suck his dick and then she continued saying how he was making her, he was going back and forth motion. She told me that she didn't like it and I told her that what he had done wasn't right and that we would talk to the police about it and get something done about it. ... She told me that [RR] was standing in front of her, he told her to hide in the shed and to sit down on the lounge or chair that he had in the shed he threw a blanket over the top of her head, and then he did the back and forth motion and nearly made her feel sick ... I'd asked her where [LR] was at the time and she said she didn't know, that she'd just come straight home to tell me."
18She stated that she went to the appellant's home and that the appellant was standing in the doorway saying, "I didn't do it. I didn't do it" or "I didn't know nothing about it". She claimed she said "That's not what my daughter's saying to me at the moment. She's come home in a hysteric mess and she's confused and upset and she's just told me that this is what you made her do". She said that the appellant said MW had walked into the toilet while he was having a pee.
19After this occurred she rang the police and told them her daughter had been sexually assaulted.
20LW was then permitted to refresh her recollection from a statement she made on the date of the incident. She said having read that statement that MW said that the appellant was yelling at her while he was in the process of doing it to open her mouth wider and that he told her to keep it a secret.
21LW was cross-examined extensively about the terms of the conversation that she had with the appellant. She agreed that as she approached him she said "You, you bastard" and that the appellant said, "What have I done". She stated that when MW came to her house she used the word "doodle" not "rude part".
22She rejected the contention that RR did not say to her anything about taking a pee in the toilet. However, she agreed that after the appellant denied the incident she said, "That's a load of crap she's in tears" and that he said, "That's not true, that's not true" and "I didn't do it. I didn't do it". She agreed that her statement to the police did not talk about taking a pee in the shed but she denied that was a lie. She agreed that she spoke to MW about the incident after the police arrived and before the formal interview, but maintained that MW told her about RR "making her suck his doodle" before LW asked her about it.
23In those circumstances, the critical challenges to MW's evidence were first that the appellant said to her "What have I done" rather than "I didn't do it" when he was initially challenged, and that she lied when she said that the appellant said to her that MW came across him when he was in the toilet in the shed.
24The appellant's son LR gave evidence. In chief he said that he was playing dirt games and monkeys in a barrel with MW in the little patch of dirt in his backyard. He said at the time his father was either in the shed or standing in front of the shed. He said that when RR was in the shed he was sitting down.
25LR said that at some point the appellant asked him and MW to go inside. They did and he (LR) put a DVD on, but MW said she would check if her mother was home.
26In cross-examination LR did not accept that he was playing with MW out the front but repeated that they were playing dirt castles near the shed. He stated that the appellant told him and MW to go and wash their hands and after than that they had a go at hide-and-go-seek and then they put on a video or DVD.
27He was asked about a previous interview in which he had participated and recalled that he had told the interviewer about a hide-and-seek in the shed and that he had found MW in the shed and under a blue blanket. He affirmed that it was his recollection that this happened on 22 March, which he recalled as the "police incident day" and the "third day of Easter", and that he found MW on the appellant's lap on her knees facing away from the appellant, under the blanket. He said he then had a go at hiding, she found him, they played dirt castles again, and then they went inside. He said that his dad's clothes were sometimes on the floor of the shed, and that when his dad came into the house after they had been sent inside, he had changed clothes.
28The former de facto partner of the appellant gave evidence that the appellant kept his work clothes in the shed, that they were rarely washed, and often strewn about the floor. She said the complainant and her son, LR, often played in the shed.
29A Detective Sergeant Lawson gave evidence. He attended the home of LW and MW on the afternoon of 22 March. He observed MW sitting with her mother holding her tightly. He recalls MW mumbling something and MW saying, "Blanket over head". He also recalled her saying, "I couldn't see he yelled at me open your mouth". The appellant gave Detective Sergeant Lawson permission to search the shed, which he did. He said the shed was untidy and contained a number of blue blankets. He stated in cross-examination that there were no red blankets there, and that on first arriving at the W premises LW summarised what she said MW had recounted to her, in front of MW.
30A Mr Bruce, an analyst at the Division of Analytical Laboratories, gave evidence. He gave evidence that no testing was done on the blankets he received. Testing of semen was conducted on the complainant's dress but no semen was detected.
31He gave evidence that DNA was recovered from a tape lift taken from the inside right front area of the appellant's jeans. He said that the DNA appeared to be a mixed profile that originated from two individuals, one male and one female. He stated that the female contributor had the same DNA profile as the complainant and the male contributor of the DNA matched the DNA profile of the appellant. A similar result was obtained from a tape lift taken from the inside left front fly area of the jeans.
32Samples were also recovered from tape lifts taken from the outside right front area of the jeans and the outside left fly area. The DNA appeared again to be a mixed profile that originated from two individuals. The major profile was consistent with originating from the appellant and the complainant could not be excluded as the minor contributor. Mr Bruce said the most likely source of the minor contributor's DNA was a high yield source such as saliva, blood, semen or vaginal secretions. Three centimetre-square pieces of the jeans were taken from the inside fly area and tested for the presence of saliva, but none was found.
33In cross-examination Mr Bruce agreed it was possible that the minor contributor to the DNA on the inside of the jeans could have deposited that DNA by touch, although it was more likely the source was a high yield source such as saliva, blood, semen or vaginal secretions. He agreed he could not say how long the DNA had been on the jeans.
34The appellant did not give evidence but an electronically recorded interview between him and Detective Senior Constables Aitken and Cornes was admitted into evidence.
35The appellant stated during that interview that he had come home from his work at the wrecking yards and saw his son LR and MW playing in the front in a mud puddle near the tap (Q 99). He stated that he was in the backyard trying to work out why the power had cut out (Q 101).
36The appellant stated he did not take much notice of LR and MW until it started raining (Q 150 - Q 151) and then he walked around the front and told them to get out of the rain and wash their hands (Q 152 - Q 154). He stated that he probably went into the shed to grab some screwdrivers and to check the power board (Q 164).
37He stated that when MW went home he was sitting on the front step.
38The appellant was asked the following questions concerning whether either MW or LR had been in the shed that afternoon:
"Q213 Whilst you were out in the backyard, did you see [MW] or [LR] out in the backyard?
A Yeah, I told them to go and wash, wash their hands and that.
Q214 OK.
A 'Cause they were covered in mud and it was flogging down rain.
Q215 Yes.
A To get out of the rain.
Q216 And whilst in the shed, did [MW] come in the shed at all?
A No, not that I can recollect, no. No. No.
Q217 No.
A No.
Q218 OK. So whilst, because, I've been informed that whilst, did [MW] and [LR], did they play any games like hide and seek?
A Couldn't tell you.
Q219 OK. So you didn't ask, say, for, for, for [MW] to hide in the, she could hide in the, in the shed?
A No.
Q220 OK. So, I've just been informed that [MW]'s gone into the she [sic] where you were standing.
A No, no, no-one went into the shed this evening.
Q221 Well it's this afternoon I'm talking about
A Yeah. Well -
Q222 When [MW] was there.
A - yeah, well no-one's been in the shed."
39During the interview RR persistently denied the allegations against him. His denials are summarised in the concluding portion of his interview:
"Q228 Where you were standing and, facing, facing her, where you've asked her to open, open her mouth. What can you tell me about that?
A I can't tell nothing about it because it's something that never happened.
Q229 OK. She said then what's allegedly happened, that she said, No, so then you've yelled at her, where you've asked, told her to open her mouth, which -
A I don't even raise my voice to my own kids.
Q231 Then after you yelled at her, she has opened her mouth where you've pulled your penis out from a hole in you jeans, so the fly of your jeans, and placed it in her mouth. What can you tell me about that?
A I can't tell you anything, like, [LR], my son and her are thick as thieves.
Q232 Mmm hmm.
A And like wherever she is, he is. And like, you've got me at a loss, like -
Q233 OK.
A - [LR] spoke to his mother and, yeah, what.
Q234 Yes. OK. I'll just finish off. And once, once you've done that, this is what the allegations are, that you've placed a blanket over her head and put your hands on top of her head, put, forcing her head down, and then you've moved her [sic] penis in and out --
A You're kidding me.
Q238 Yes. OK. And then she's, you've told her not to say anything because it was, Our secret.
A No."
40Prior to counsels' addresses to the jury, the Crown Prosecutor indicated that she was relying on the material from answers 216-226 of the transcript of the interview of the appellant, where the appellant denied that whilst he was in the shed MW was in the shed with him at all, as a lie evidencing consciousness of guilt; this amounting to a claim that he had no opportunity to commit the offence as alleged by the complainant. Counsel for the appellant responded that he did not think that he could be heard against the Crown in that regard, although he stated that the evidence as recorded was open to at least two interpretations. However, he said he could not oppose a direction concerning consciousness of guilt and, at least implicitly, that the Crown could rely on the evidence for that purpose.
41Immediately prior to the commencement of closing addresses to the jury the trial judge said that she would not be "canvassing the evidence in detail with the jury in summing-up so that the parties should take the jury to such parts of the evidence as they see fit." There was no protest to this course.
42In her closing address the Crown relied on the following matters as evidence on which the jury could rely beyond reasonable doubt. First, that MW gave credible evidence and was not shaken on any of the key elements of the evidence. Second, the fact that MW made immediate complaint, relying on the evidence of LW and Detective Sergeant Lawson. Third, that MW's evidence was supported by the evidence given by LR, and that when LR came into the shed trying to find MW he found her under a blanket with the appellant. Fourth, the Crown said the DNA evidence supported its case and finally, that the interview with the appellant was at odds with the evidence of LR and MW on key elements. She stated (T 10) that if the jury found that the appellant was untruthful on the key issue of whether he was in the shed with MW and MW was under a blanket, and the jury found that his denial was a deliberate lie told by the appellant out of a consciousness of guilt, it corroborated the Crown case that sexual intercourse with MW occurred.
43Later in her closing (T 18-20) the Crown referred to questions 216-226 in the interview and said the jury could find those answers were lies arising out a consciousness of guilt. The Crown said, however, that the jury could only use that material in that way if they found that it was a deliberate lie, that it related to a material issue, that the motivation for telling it must be a realisation of guilt or fear of the truth and that it must be shown to be a lie by evidence independent of the complainant.
44Counsel for the appellant in his address requested the jury to look at the whole of MW's evidence, saying he did not propose to quote large lumps of it. However, he made specific reference to that portion of the evidence to which I have referred above where MW said she was not sure if the appellant "didn't really do that". He also referred to the re-examination and to MW's denial that anyone told her what to say coupled with her statement "I know the words mum" and her lack of recollection as to what she meant.
45So far as LW was concerned he pointed to the discrepancy in LW's evidence between her saying that after she confronted the appellant he said "What have I done" as compared to "I didn't do it. I didn't do it".
46In relation to the evidence of LR counsel for the appellant made the following remarks:
"Now the next witness to give evidence in that chronological order I was talking about, was [LR]. You might have noted that [LR] did not tell a story that might have come from his father. Despite his father telling the police that [MW] and [LR] were like - I'm using paraphrasing here, 'two peas in a pod', they were always together. You will recall that [LR] was not interviewed for some time. There is not one hint, not one suspicion that [RR] on returning home has gone and spoken to [LR] and said, 'This is what you must say'. [LR] has given his little boy version and you would not dismiss it. You would not be dismissive of any of it. You'd look at the contradictions to what is said by [MW], because they are important contradictions.
[LR]'s evidence should concern you because in the important things, they are largely at odds with [MW]. My friend wants to have them mirror images. They are largely at odds with each other. [LR] says that they were outside playing dirt castles, then they played hide-and-seek, this is in the back yard. Keep in mind they were in the front and we know they were playing near the tap, but outside playing dirt castles, then hide-and-seek. He found her in the shed, both my client and [MW] were seated, was [LR]'s memory. [MW] was on his knee. He described in detail the blue two toned blanket you will recall. He then talked about another game of hide-and-seek in which he got to hide. Remember he talked about hiding behind the lounge. Then there were more mud castles. You're dirty, it's going to rain. They washed in the cat's water and went inside and there was a game of hide-and-seek inside where [MW] hid and hid in his sister's bedroom. Then they went to put the DVD on and [MW], before it started, [MW] said she was going home to check if mum was there. Hurry back he said, or words to that effect, was his evidence. And as she went, dad was sitting on the step having a smoke and she went past him to go home. Not that can't sit with [MW]'s version. It can't sit with a terrible assault.
This is your life experiences, this is where your commonsense comes into it. If the crown's version is to be believed, [MW] was terribly assaulted, and then she played another game of hide-and-seek and then she played a game of dirt castles and then they washed their hands and went inside and then they played another game of hide-and-seek in the bedroom and then they put the DVD on and then she said she will go home. How does that sit with your life experiences and your commonsense? How does that sit with what you known to happen in the real world? It's not the way of these things. Commonsense might tell you say. Examination of the evidence would raise the doubt."
47So far as the DNA evidence was concerned, counsel for the appellant pointed out that Mr Bruce was not able to say how long it had been there, in what order it was deposited or how it was deposited. Counsel also pointed out that no saliva was detected, that MW's DNA could have been transferred by touch, that MW played in the shed often and that RR's clothes were often strewn about. He said:
"You might be surprised if [MW]'s DNA was not on it, seeing the kiddies apparently played in there regularly.
Certainly it's a shame that there's not tested for [LR]'s and others. Certainly a shame, which might give you great comfort if the inside leg for instance or either of these legs of these trousers had been tested and what say [LR]'s, or what say, what say [MW]'s DNA was found down the back of the calf somewhere... You don't know because the evidence is silent."
48In answer to the record of interview and in particular the questions relied on as evidence of consciousness of guilt, counsel for the appellant made the following remarks:
"But let me put it to you that you have a look at what he said and have a look at the way he said it. Have a look at his demeanour, his presentation. He is, in my respectful submission, an open book. 'And whilst in the shed did [MW] come in the shed at all?' Page 18, question 216. 'No, not that I can recollect, no, no, no.' He'd just been finished asking about 'Did you go in the shed? You'd probably been in and out of the shed?' 'Yes, more than likely.' He's not saying, 'I didn't go anywhere near the shed.' He's the one that volunteers about urinating behind the shed but says 'No one walked in on me.' What a great excuse, what a great excuse, maybe that's where she got the seed of the idea of this terrible allegation. He's not looking to create that sort of lie."
49The trial judge, in her summing-up, referred to the evidence of Dr Bruce and stated that it was not challenged and, accordingly, "unless it was unbelievable, you [the jury] would have to have a good reason to reject it" (SU 7). In relation to the evidence of MW she emphasised that the Crown depends on her word and therefore it was necessary to look very carefully at her evidence. She referred to MW's evidence in chief and stated that counsel for the appellant relied particularly on the last question "[RR] didn't really do that did he" and MW's answer "I'm not sure". She also referred to re-examination by the Crown Prosecutor, who asked MW "Are you saying that you aren't sure whether [RR] made you suck his doodle that day?", to which MW answered 'He did".
50Her Honour noted that in his record of interview the appellant absolutely denied that he committed the offence. She also noted that there was a complete denial of the allegation that he was in the shed with MW.
51After referring to this denial the trial judge again emphasised that the Crown case depended very heavily on accepting MW as a witness of truth. She then referred to other evidence which the Crown said supported MW's evidence, the first being immediate complaint. In this context she referred to the evidence of LW, but referred to the fact that counsel for the appellant suggested LW would not be accepted as a reliable witness.
52Her Honour then referred to the evidence of LR. She stated that counsel for the appellant suggested LR's evidence did not support the Crown case. She said that counsel for the appellant had reminded the jury that LR said he found MW seated not standing, whereas MW said she was standing in her first account, and that LR's evidence was that she was under a blue blanket whereas the complainant's evidence was that it was a red blanket. She also referred to the fact that counsel for the appellant had reminded the jury that LR's evidence was that they had played other games before MW went home, and that if that was accepted it was inconsistent with MW having been sexually assaulted as she said.
53In relation to the DNA evidence her Honour pointed out that counsel for the appellant had referred to the fact that there was no blood, semen or saliva found in testing by the laboratory, and the testing did not establish when the cellular material was placed on the jeans, how long it had been there, or how it came to be there. She also referred to the suggestion that it may have arisen from touching.
54Her Honour then returned to that portion of the evidence said to establish consciousness of guilt. In that context she gave a direction consistent with what was suggested by the High Court in Edwards v R [1993] HCA 63; (1993) 178 CLR 193 at 210-211.
55At the conclusion of the trial judge's address, counsel for each party were asked whether they wished her to add anything. Counsel for the appellant said that he did not require anything more to be said.
56In their deliberations the jury had available to them the DVD of the appellant's interview of 22 March 2008, the DVD of MW's interview of that date, the transcript of the evidence of MW at the previous trial and a transcript of LR's first interview with the police.