Senior Counsel for the applicant identified a number of areas where it was submitted the evidence was deficient. These were largely, and appropriately, addressed to the credibility and reliability of Sarah's evidence. Any reasonable doubt attaching to Sarah's evidence is likely to be fatal to the prosecution case. Senior Counsel also identified a number of aspects of the trial, including questions of admissibility and directions given in the course of the summing up, that were said to be relevant under this ground of appeal. It is doubtful that such matters can properly inform the Court's consideration of a ground asserting that the verdicts were unreasonable (although Brennan CJ took an "absence of adequate direction" into account in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 at 446). Generally, if such matters are to be relied upon to impeach a conviction, they will be subject to a discrete ground of appeal. I will deal with those matters first.
[2]
Lack of balance in the summing up
In spite of the absence of any ground of appeal relating to the summing up, the applicant submitted that the summing up was unbalanced. It was suggested that the trial Judge failed to remind the jury of the criticisms of Sarah's evidence made in counsel's address or the suggestion that her mother asked her leading questions. It was also submitted that the trial Judge failed to place sufficient emphasis on the lack of support for Sarah's account in the DNA and medical evidence.
The contention that the summing up lacked balance and failed to emphasise matters favourable to the defence is without merit. The trial Judge, briefly and succinctly, reminded the jury of the submissions made by counsel for the prosecution and defence. In neither case were all of the arguments summarised. Her Honour reminded the jury of a number of inconsistencies in Sarah's evidence relied on by counsel for the applicant and specifically raised the fact that it was the mother who introduced the expression "front bottom" (which, significantly, Sarah did not adopt). Her Honour told the jury "the Crown case is based exclusively on [Sarah's] evidence. Mr Bruce and Dr Hotton's evidence does not take the Crown case any further…" She went on to remind the jury that defence counsel submitted that the DNA results were "consistent with the accused's account."
A fair reading of the summing up shows that it was balanced and fair. No complaint was made at the trial and, as I have already emphasised, no ground of appeal was raised suggesting that the lack of balance resulted in a miscarriage of justice.
[3]
The admission of the recording of Sarah's conversation with her mother
The applicant's written submissions analysed the admissibility of "complaint evidence" at common law and under the Evidence Act 1995 (NSW). Criticism was levelled at the complainant's mother for asking leading questions and reference was made to evidence that there were some problems in the relationship between Mr and Mrs Scott and their daughter-in-law. This part of the written submissions concluded with the bold proposition:
"In this case, questions had been raised about previous friction between [Sarah's mother], and the Appellant and his wife, [redacted], and about the extraordinary taping of [the] discussion with [Sarah]. In those circumstances, where the complaint was made in response to leading questions then the evidence should have been excluded or its use should have been limited by her Honour."
Again, there was no ground of appeal asserting that the wrongful admission of evidence, or failure to limit its use, constituted an error of law or otherwise resulted in a miscarriage of justice. If such a ground had been raised it would have been devoid of merit. The conversation with the mother was clearly admissible. Nobody at the trial suggested otherwise. It included a number of asserted facts made when the 20 December 2016 incident was fresh in the complainant's memory: Evidence Act, s 66. The fact, if it was accepted, that there was friction in the family did not make the evidence inadmissible. Nor did the fact that there were some, very limited, leading questions. As can be seen, when the mother asked directly whether the kiss was on the "front bottom" Sarah responded in the negative and indicated that it was on her "middle" bottom.
The suggestion that the recording of the conversation was "extraordinary" must also be rejected. This seems to be a similar criticism to that made by trial counsel, as to which see above at [40]. Senior Counsel submitted in writing on the appeal
"She then took [Sarah] to another room and, without checking with the police or her husband, pressed record on her phone and asked her to tell exactly what had gone on."
The implication behind this submission, and the submission made at trial referred to at [40], seems to be that an adult woman should have checked with her husband or the police before taking action when she had information suggesting that her eight year old child had been indecently assaulted. With great respect to counsel, the submission is of no substance.
[4]
R v NZ [2005] NSWCCA 278
The applicant submitted that the trial Judge erred in failing to comply with the "cautions referred to in NZ" in dealing with the audio recording of the conversation between Sarah and her mother. In other words, under the umbrella of the ground asserting an unreasonable verdict, it was submitted that the trial miscarried because the recording of the conversation between Sarah and her mother was tendered as an exhibit and available to the jury during its deliberations.
NZ was concerned with allowing the jury unlimited access to a recording of the complainant's evidence that had been given in earlier trial proceedings: R v NZ [2005] NSWCCA 278; see also Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, CF v R [2017] NSWCCA 318. These and other cases that have considered these issues are concerned with recordings that comprise the evidence of a complainant. They relate to formal interviews with the police that become the evidence in chief of the complainant, evidence given in earlier trial proceedings where there is a re-trial, or cases where the evidence is pre-recorded. The recording made on Sarah's mother's 'phone was of a different character.
In the present case, neither the police interview with Sarah (which became her evidence in chief, MFI 3) nor the pre-recorded evidence (MFI 15) was tendered as an exhibit or permitted to go with the jury during its deliberations. However, Mr Scott's ERISP (Exhibit 9) and the recording of the conversation between Sarah and her mother (Exhibit 5) were marked as exhibits and, presumably, were available to the jury during the deliberations. There was no lack of balance or concern that the evidence of one witness would receive predominance in the jury's deliberations. Those are the kinds of concerns that underpin decisions such as NZ and the cases that have followed.
No complaint was made at the trial and no separate ground of appeal was raised. The fact that the recording was marked as an exhibit and available to the jury is not a matter that adds anything to the ground asserting that the verdict was unreasonable.
[5]
Inconsistencies in Sarah's evidence
The applicant drew attention to a number of inconsistencies in Sarah's evidence in relation to the earlier events that constituted counts 1-3. The applicant relied on changes in her description of whether she was wearing pants and whether the kisses touched her skin. For example, in her earlier account she said "normally" he kisses her "with my pants on" and that the kiss was "sort of on my pants but sort of on my skin. Mostly on my pants though." In the pre-recorded evidence she said "I remember now it was more on my skin than on my pants." It was submitted that "this change of evidence also contradicted what [Sarah] told Detective Watkins." In relation to count 2 it was submitted that Sarah changed her evidence "in a significant way" when she said "from what I remember I'm pretty sure the majority of the time they [her pants] were more off than on".
It was also submitted that the "specific detail" of the three earlier offences was not clear.
It was also submitted, in relation to count 4, that Sarah contradicted herself as to whether she went for a swim. She told Detective Watkins that she didn't go for a swim because she had a "tummy ache". However, in cross-examination she said she was in the pool for two to five minutes and in re-examination she said she went into the pool after the events that constituted count 4. The applicant referred to the importance of this evidence in the context of the forensic evidence that the applicant's DNA was not located.
Other inconsistencies in Sarah's evidence were detailed in the written and oral submissions made on the applicant's behalf. For example, it was suggested she changed her story and was untruthful about whether the applicant kissed her on the legs. It was also submitted that she changed her evidence concerning whether the applicant's tongue came into contact with her skin or clothing.
[6]
The absence of supporting evidence
The applicant relied on the absence of any supporting evidence in the form of DNA or medical evidence. It was submitted that the evidence that there was no DNA located was consistent with the applicant's account that there was no kissing or licking in the area of the vagina.
[7]
The applicant's ERISP, good character and co-operation with the police
The applicant relies on his good character and his immediate and firm denial of the offences. Senior Counsel stresses that in agreeing to provide a sample of his DNA, the applicant was confident that his saliva would not be present on Sarah or her clothing.
[8]
Sarah was not "coached" by her mother
The applicant submitted that Sarah used language in the police interview "which suggests she had been coached by her mother". Senior Counsel drew attention to the fact that Sarah said, non-responsively, that "my grandfather did something to me that was a bit inappropriate". The word "inappropriate" was used by her mother toward the end of the conversation recorded on her telephone. I do not accept that this was evidence of "coaching" but I do accept that Sarah was at times influenced in her choice of words by things other people said to her.
A more significant example of this arose out of her first interaction with police. In the conversation with her mother, Sarah referred to her "middle bottom", as well as her "front bottom" and 'back bottom". When she told Senior Constable Watkins that her grandad kissed her "on the bottom" and "down there" while "pointing at her vagina area", the police officer asked her "on your vagina?" That was the first time the word vagina had been used. When she came to make the formal interview, she described what happened the day before using that word: "he kissed me in the vagina".
[9]
Conclusion on the general assertion that the verdicts were unreasonable
I have undertaken a review of all of the evidence adduced in the trial and considered the submissions made at the trial and on the appeal. I am satisfied that it was open to the jury, in the sense discussed by the High Court in M v The Queen and Pell v The Queen, to be satisfied beyond reasonable doubt that Mr Scott kissed the complainant on or in the area of her vagina on the four occasions charged in the counts in the indictment. I will deal separately with the question of sexual intercourse in count 4.
There is no doubt that Mr Scott had the opportunity to commit the offences. I have considered his wife's evidence at the trial which gave the impression that such opportunity was limited. However, there were a number of sleepovers during the relevant period, and the incidents described by Sarah were all very brief. On the last occasion, Mr Scott was alone with the children and on earlier occasions his wife was elsewhere in the house.
Sarah's description of the incidents was generally consistent. It was not particularly detailed, but there was little detail to provide. The fact that Sarah defended her grandfather - saying things like he would not have been trying to hurt her, or was just expressing his love in an inappropriate way - enhanced her credibility. I have taken into account the inconsistencies and changes in her evidence but do not find that these greatly impacted on her truthfulness or reliability. I reject the suggestion that she was "coached" although I have taken into account her adoption of words used by others and her susceptibility to influence.
I have taken into account the delay in Sarah complaining about the first three incidents but note that the delay was not extensive and that there are many reasons why she may not have made a complaint. She was eight years old and trusted and loved her grandfather and may not have known that what was happening was wrong. If she did know it was wrong, she may not have known what to do and might not have wanted to cause trouble in the family. There was evidence that she was troubled by this when she spoke to her mother and to the police.
Sarah's description to her mother on 21 December 2016, of the incident the day before, was capable of providing some direct support for the allegation in count 5 (indecent assault), although more will need to be said of that in terms of the allegation in count 4 (sexual intercourse).
I have taken into account Mr Scott's previous good character, his denials when interviewed by police and his co-operation with the police. These were important matters for the jury, and this Court, to consider. However, they do not, either individually or collectively, raise a reasonable doubt if Sarah's account is accepted beyond reasonable doubt. This is not a case like Pell v The Queen, where the High Court accepted that the jury found the complainant to be credible but found the verdict to be unreasonable on the basis of evidence that established objectively that the evidence may have been inaccurate or unreliable in a significant respect. In this case, there is no such objective evidence suggesting that Sarah's account was unreliable.
I have also considered Sarah's age, her susceptibility to influence and the evidence of discord in the family.
Having undertaken that review of the whole of the evidence, I am unable to conclude that it was not open to the jury to be satisfied that the incidents occurred as Sarah alleged, or that an innocent man was wrongly convicted. The evidence does not leave me with a reasonable doubt that the incidents occurred.
In reaching these conclusions, and in accordance with the High Court's judgment in Pell v The Queen, I have considered the advantages enjoyed by a jury of 12 people, sharing their subjective views of the witnesses, especially Sarah, and reaching unanimity.
[10]
Count 4 and the allegation of sexual intercourse
Count 4 raises a particular concern and it is necessary to deal with it separately. The concern is whether the evidence established beyond reasonable doubt that "sexual intercourse" occurred. Sexual intercourse is defined to include "cunnilingus": Crimes Act, s 61HA. As the trial Judge directed the jury, cunnilingus means "the oral stimulation of the female genitalia with the mouth or tongue." The jury was also directed "before you could find that there was sexual intercourse, you must be satisfied beyond reasonable doubt that there was some contact between the accused's mouth and [Sarah's] bare genitalia". If the jury was not satisfied that "sexual intercourse" was established, the applicant was not guilty of count 4 and the jury would be required to consider whether the evidence established an indecent assault.
Similarly, if this Court formed the view that the verdict on count 4 was unreasonable, but that the evidence established an indecent assault, it is open to the Court to substitute a verdict of guilty on count 5. Section 7(2) of the Criminal Appeal Act 1912 (NSW) provides:
"(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity."
The difficulty of proof in relation to count 4 arises from the language used by the eight year old complainant and the way in which her description of the incident changed between the time she told her mother what happened and the time she made the police interview which became her evidence in chief. This is no criticism of her and is explained by her age. I have already set out the evidence on this issue but it is worth repeating some of the significant details.
When Sarah spoke with her mother, her mother asked "So he kissed you on the front bottom the first time?" Sarah replied "Ah, middle." A short time later she said, referring to the incidents going back several weeks, "It's not always front bottom, it's not always back one, it's not always middle."
When she spoke to Senior Constable Watkins at the Chatswood Police Station, she said "he has kissed me on the bottom a few times". She was asked "where on the bottom does he kiss you?" and Sarah said "down there". Ms Watkins said she asked what she meant and Sarah "while indicating with her head and her hand, said, 'down there' while pointing at her vagina area." Ms Watkins then asked directly, "on the vagina?"
It was after this conversation that Sarah told the investigating police in the recorded interview that Mr Scott "kissed me in the vagina". Later she was asked "what part of your body did his mouth touch?" and she said "My vagina."
When she was cross-examined she said that "front bottom" meant her "vagina" and that "back bottom" meant her "actual bottom". She said that her "middle bottom" was "kind of in-between the back bottom and the front bottom."
In the absence of some of Sarah's gestures and demonstrations in the recorded interview, I would have held that her words and language were not capable of establishing beyond a reasonable doubt that cunnilingus occurred. I would have been left with a doubt whether Sarah knew what the word "vagina" referred to, as the earlier reference to "middle bottom" did not seem to refer to the vagina.
However, when she was interviewed by police she was asked a series of questions attempting to identify where on her body she was kissed. On two occasions she pointed directly at her genitalia or vagina (QQ 290-291 and 295-296). She was also asked where her legs were positioned. She demonstrated by lying down on her back with her legs straight out and together. In that position, the applicant could not have kissed her in the area between her vagina and anus (the "middle bottom" as Sarah defined it).
It is true that Sarah was uncertain as to whether she had her swimmer bottoms on or off. She seemed to change her account as to this detail on several occasions. However, at all times she was clear that the kissing on 20 December 2016 was directly on the skin. She repeatedly emphasised that this was what distinguished the final incident from those that occurred earlier.
For those reasons, I am satisfied that it was open to the jury to conclude beyond reasonable doubt that sexual intercourse was established in relation to count 4.
[11]
Conclusion as to ground 1
For the foregoing reasons, I am unable to accept that the verdict was unreasonable and ground 1 must be rejected.
[12]
Disposition of the appeal against conviction
I propose that leave to appeal against the conviction be granted but the appeal dismissed.
[13]
Appeal against sentence
The applicant relied on three grounds of appeal against the sentence:
(5) Her Honour erred in finding that the appellant was not subject to extra-curial punishment.
(6) Her Honour erred in finding that the hardship caused to the appellant's wife as a result of the appellant's incarceration is not exceptional.
(7) The sentences imposed were manifestly excessive.
[14]
Grounds 5 and 6
The applicant's written submissions did not identify the "extra-curial" punishment to which Ground 5 referred. Rather, the submissions focussed on the offender's advanced age (70 years) and frail health to come to the conclusion that a gaol sentence will weigh more heavily upon Mr Scott. It was submitted that the sentencing Judge also erred in failing to find that hardship to the applicant's wife resulting from the imposition of a gaol sentence was exceptional.
In the sentencing hearing, Senior Counsel submitted in writing that the applicant was suffering "non-curial punishment" as a result of:
1. The split in his family;
2. His concern for the welfare of his wife who was struggling to cope; and
3. The grave damage to his reputation in the wider community, especially the Sri Lankan community.
In relation to the hardship to a third party, Senior Counsel relied on the statement of a Dr Brener and submitted that the hardship to the applicant's wife was "exceptional". Dr Brener's report noted that Mrs Scott was very dependent on her husband and that their separation due to his incarceration on remand was "devastating for her". She said Mrs Scott was "extremely depressed and at times suicidal" and that her medical health was "frail with low blood pressure and high cholesterol and a family history of heart disease". She had always relied on her husband to look after her and the case had caused estrangement from her son and his family. Another son remained supportive but had limited time.
The sentencing Judge considered the evidence on these issues and concluded:
"Although I accept that Mrs [Scott] is vulnerable physically and mentally, and I will take this into account as part of the general subjective mix, I am not satisfied that the hardship to her as a result of the offender's incarceration is exceptional.
I am also not satisfied that the matters Mr Smith suggested amounted to extra-curial punishment can be characterised in that way, and again I take them into account as part of the general subjective mix."
There is no error in her Honour's approach.
The matters relied on as "extra-curial" punishment are not properly so categorised. Rather, insofar as they were established on the evidence, they are the consequences of the offending behaviour. This was not a case where there was evidence of any particular public opprobrium visited on the applicant. He was not subject to physical assaults or pillorying in the media. None of the testimonials tendered on sentence suggested that he was outcast from his community or subject to shaming. The referees themselves continued to support the applicant and regard him as a man of impeccable character. I am unable to identify anything in the evidence that can properly be categorised as "extra-curial punishment" as that expression is generally understood: see, for example, R v Allpass (1993) 72 A Crim R 561, R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 at [29]-[63], Silvano v R [2008] NSWCCA 118; 184 A Crim R 593 at [29]-[30] and R v Wran [2016] NSWSC 1015.
In relation to the impact on Mrs Scott, her Honour correctly identified that the matters in the doctor's report formed part of the subjective case and were entitled to some weight in determining the appropriate sentence. Because of the objective seriousness of the offending, the impact on Mrs Scott was not capable of leading to a non-custodial sentence. It was submitted to her Honour that a 2 year suspended sentence may be appropriate. However, such an outcome would have represented a manifestly inadequate response to a case where an eight year old child was indecently abused on four separate occasions by her grandfather. Her Honour's approach was consistent with a number of New South Wales authorities that have followed the case of R v Edwards (1996) 90 A Crim R 510.
Grounds 5 and 6 should be rejected.
[15]
Ground 7: The aggregate sentence is manifestly excessive
Ground 7 asserts that the aggregate sentence was manifestly excessive. No submissions were directed specifically to this ground either in writing or on the hearing of the appeal. Even so, the ground is pressed and should be evaluated in accordance with well-established principles.
Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), Judge Flannery SC indicated that, had she not imposed an aggregate sentence, she would have imposed a sentence of 3 years with a non-parole periods of 21 months for each of the indecent assault offences. For the sexual intercourse offence, her Honour indicated a putative sentence of 5 years with a non-parole period of 3 years. Mr Scott was sentenced to an aggregate sentence of 6 years with a non-parole period of 3 years and 6 months.
To succeed on an argument that the sentence is manifestly excessive the applicant must show that the sentence is plainly wrong or unjust. There is no single correct sentence and it is not sufficient that individual judges of this Court may have imposed a less severe sentence. Sentencing judges are entrusted with a broad discretion to impose a sentence that falls within a wide range that may be appropriate given all the circumstances of the case. To evaluate this ground, it is necessary to consider the objective criminality of the offending and to take into account the particular and individual circumstances of the offender.
The maximum penalties and standard non-parole periods that apply to the offences must be kept firmly in mind throughout this Court's consideration of this ground of appeal. Counts 1, 2 and 3 carried a maximum penalty of 10 years with a standard non-parole period of 8 years. The sexual intercourse offence attracted a maximum penalty of life imprisonment and a standard non-parole period of 15 years. As Judge Flannery SC explicitly found, there was no alternative to the imposition of a sentence of full time imprisonment. However, as her Honour implicitly concluded, the sentence appropriate to the individual circumstances of this case did not need to come close to the severity of the maximum penalties and standard non-parole periods that applied.
Judge Flannery SC made a number of observations about the facts of the case which demonstrated that, objectively, each of the offences fell below, and I would say substantially below, the mid-range of objective seriousness for offences of their kind. In particular, her Honour noted the following factual circumstances which reduced the objective criminality of these offences relative to other offences of their kind:
1. Each offence was of short duration. The most serious offence took place for about 10 seconds on the victim's estimate.
2. No force or coercion was used: see R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [25]-[26] (Simpson J, as her Honour then was).
3. On 20 December 2016, when the victim asked the applicant to stop because she was feeling uncomfortable, he stopped.
4. In relation to count 4, the victim was "not well below the statutory age of 10".
To these matters, it might be added that there were no threats or pressure applied to the complainant to force her to involve herself in the activity and there were no immediate signs of distress demonstrated by her: AJP at [25]. Further, while Sarah thought the applicant may have used words like "beautiful" or "beautiful skin" at the time of one or more of the offences, there was no evidence of sexual gratification. The motive for the offences was mysterious and the conduct inexplicable and out of character. As Wilson J said recently in RC v R; R v RC [2020] NSWCCA 76 at [241]:
"The absence of any evidence to establish a sexual motivation in the commission of the offence is a relevant feature to the determination of the objective gravity of the crime, and lessens it …"
On the other hand, and as Judge Flannery SC found, the offence was aggravated by the egregious breach of trust involved in a series of indecent and sexual assaults committed by a grandfather charged with the care of his eight year old granddaughter. In the case of counts 1-3, the victim was "well below the statutory age of 16".
The applicant presented a formidable and compelling subjective case on sentence. At the time of the offence he was 68 years old and was 70 at the time of sentence. He had no previous criminal history of any kind and he presented with a very impressive array of testimonials.
He was described by his other son - that is, not the father of the victim - as a "loving, protective and generous parent". This son expressed concern as to the separation of his own children from the applicant during the period of incarceration.
A senior academic from Sydney University described his involvement in the Sri Lankan community and said Mr Scott "played a key role in the reconciliation of different ethnic groups who migrated to Australia following three decades of ethnic unrest in our motherland". The professor described the applicant's "special qualities of kindness unfailing politeness and willingness to help others without expecting anything in return". A former Crown Prosecutor knew the applicant from Sri Lanka as a Rugby International. He said they maintained contact in Australia and the applicant always "behaved in a sober and responsible manner, and showed no behavioural impropriety in company with adults and children". Another referee spoke of the applicant's "philanthropy" and success as a metallurgist and businessman. He "has helped countless people over the years to find employment and settle into life in Australia". He arranged a container load of supplies to be shipped to Sri Lanka after the tsunami in 2004 and also organised events from which donations were sent to aid the reconstruction of Colombo. There were other testimonials to a similar effect.
While the sentencing Judge referred to the Prosecutor's submission that "less weight is given to an offender's good character where there has been sexual offending against young children", that principle has greater resonance in a case where the offender has used their position or good character to commit the offence: Crimes (Sentencing Procedure) Act, s 21A(5A), AH v R [2015] NSWCCA 51 at [22]-[25] and, see generally as to the position at common law, R v PGM [2008] NSWCCA 172; 187 A Crim R 152. The applicant did not use his good character or his position in the community to commit the offences. It was his position of trust as a grandfather that was abused and this was taken into account as an aggravating feature in assessing the objective seriousness of his offending. Mr Scott's good character, and more importantly his history of charitable works and substantial contributions to the community, were matters entitled to substantial weight in a determination of the appropriate sentence: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.
A psychologist's report was tendered. It noted a number of health concerns "including cataracts, high cholesterol, reflux, enlarged prostate and arterial fibrillation". There was no relevant psychological condition although Mr Scott suffered "mild claustrophobia", a matter that Judge Flannery SC took into account. The psychologist expressed the opinion that Mr Scott "has little in common with men who reoffend sexually". He considered he was a "very low risk of sexual recidivism" and said Mr Scott's "experience of custody … would be subjectively more onerous than the 'average' inmate." This was based on the applicant's age, the fact that he was charged with child sex offences and had never been to prison before, and his claustrophobia.
There was evidence concerning the medical conditions of both the applicant and his wife. The applicant has a cataract in his left eye which required surgery. It was considered unwise to postpone the surgery due to the risk of "angle closure glaucoma". A general practitioner listed his medical conditions as "anxiety with depression, benign prostatic hypertrophy and hypercholesterolemia". As has been observed, Mrs Scott had low blood pressure, high cholesterol and a history of heart disease. She was born in 1950 and is now 70 years old. She was extremely distressed following the verdict, "very dependent" on the applicant and felt, at times, suicidal.
A pre-sentence report tendered by the prosecution assessed Mr Scott as a "low risk of re-offending". It noted deterioration in Mr Scott's mental health since he went into custody. The report confirmed a number of medical issues namely "high cholesterol, reflux, an enlarged prostate with an additional requirement for surgical intervention and impaired vision as a result of cataract damage". It also referred to "a history of fibrillation".
Ordinarily, an aggregate sentence of 6 years with a non-parole period of 3 years and 6 months would fall well within the range of an appropriate sentencing discretion for four offences involving kissing an 8 year old child on or near the genitalia when the perpetrator stood in a position of trust. The maximum penalties and standard non-parole period applicable would suggest the sentence was a modest one. However, this is an exceptional case both in terms of the objective features and the personal case of the offender.
In terms of objective seriousness, each of the offences occurred over a very short period of time, appeared to be opportunistic and was not accompanied by any overt act or suggestion of sexual gratification. In terms of the most serious offence, the applicant stopped as soon as the child said she felt uncomfortable.
Subjectively, the offender presented a most compelling case. His charitable works and contributions to the community over many years are remarkable. He was 70 years old with no previous criminal offences of any kind. He is most unlikely ever to come before a criminal court again. He had a number of medical conditions reflective of his age and his wife was dependent on him for care and support.
In the exceptional circumstances, I am satisfied that the aggregate sentence is manifestly excessive. Accordingly, ground 7 is made out. I would grant leave to appeal against the sentence and allow the appeal.
[16]
COVID 19 Pandemic and re-opening of the case
Since the case was heard, Australia, along with the rest of the world, has fallen into the grip of the COVID-19 pandemic. The applicant filed written submissions urging the Court to take this into account if it was necessary to consider the application for leave to appeal against sentence. The submissions referred to the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) and amendments made to the Crimes (Administration of Sentences) Act 1999 (NSW) allowing for the Commissioner to order early parole for some low risk prisoners. However, the legislation specifically excludes prisoners charged with a serious sex offence, which includes the offences of which the applicant was convicted. [4] It was submitted:
"[Mr Scott] is 72 years of age and is currently suffering a number of ailments including breathing difficulties caused by Asthma. He has been prescribed Ventolin and Symbicort by Justice Health. He is also on medication for high cholesterol. He has [an] enlarged prostate and is due for surgery on his knee and cataract. In the current COVID-19 pandemic he falls into the most vulnerable category and his prolonged incarceration together with a large number of inmates places him in a high-risk category to contract the virus. If he does, on the current statistics, his life is in danger."
Contrary to well established authority, these submissions were filed without the leave of the Court: see, for example, Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258; [1981] HCA 20, Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 143 [28]-[31]; [2003] HCA 28, Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230 at 267. No evidence was filed to substantiate the facts asserted in the submissions.
In accordance with the Court's directions, the Registrar wrote to the parties seeking further information, submissions and the evidentiary foundation of the submissions filed without leave.
The applicant then filed "submissions seeking leave". Attached to those submissions was a facsimile transmission from Justice Health listing the medical conditions of the applicant as at 8 April 2020. Most relevantly, the applicant suffers from asthma, "Pre-Type 2 diabetes" and atherosclerotic disease.
The submissions included a number of links to websites on which articles, reports and papers about the pandemic have been published on the internet. Some of these publications were from reputable sources. Others were not. It was not clear whether these articles were meant to become evidence on the appeal or cited as some kind of authority. One of the articles hyperlinked to the applicant's submissions seeking leave to file further submissions suggests that diabetes is a condition that makes a patient more vulnerable to COVID-19. However, I am not sure what is meant by "Pre-Type 2 diabetes" (as described in the facsimile from Justice Health) and the credentials and reliability of the website known as "WebMD" is a mystery to me.
The respondent filed submissions and relied on an affidavit of the solicitor with carriage of the matter. The respondent did not raise any objection to leave being granted to the applicant to rely on the additional submissions. Accordingly, leave was granted in chambers allowing the applicant to ventilate these issues.
The respondent objected to reliance being placed on the various media articles. The basis of the objection was that the material was second hand hearsay or evidence of expert opinions offered by people whose qualifications were not established. I accept the respondent's submissions and have disregarded the material contained in the media articles, opinion pieces and the web-pages extracted from "WebMD". The respondent raised no objection to the material from Justice Health or from the websites of government departments such as NSW Justice Health and the Commonwealth Health Department.
The respondent's solicitor annexed to her affidavit further material from the Commonwealth and State Health Departments and a report by the Director of Corrections Strategy, Department of Health relating to the Department's response to COVID-19. There was also an email from the Nursing Unit Manager at Kirkconnell & Oberon Correctional Centres (Ms Allen) dealing with the applicant's particular circumstances.
The evidence supports the submission that Mr Scott's age and some of his medical conditions make him more susceptible to complications if he contracts the virus. Ms Allen stated "the patient is a 71 year old man who has a few chronic health conditions" and "he does fall into the category that is most at risk for contracting Covid 19". On the other hand, the evidence establishes that there have been no confirmed cases of COVID-19 in the NSW prison population. There have been three cases in staff members, one at the Long Bay Prison Hospital and two at the Forensic Hospital. The staff members affected and those who had contact with them are (or were) in self-isolation and will undergo testing and monitoring. The evidence suggests that Corrective Services NSW have implemented a range of strategies calculated to minimise the risk that the virus will enter the NSW prison system. Some of those strategies, such as the suspension of all personal visits, make the conditions of incarceration of current inmates more onerous. It must also be accepted that the applicant, due to his age and medical conditions, will "experience a level of stress, anxiety, and even fear at the potentially fatal consequences to him were he to be infected with the COVID-19 virus in prison" that is far greater than a younger, healthier, inmate: see RC v R; R v RC at [254].
The respondent objected to the evidence and submissions being relied on as "fresh evidence" because it arose after sentence was imposed and was properly within the province of the executive government: cf R v Munday [1981] 2 NSWLR 177 at 178; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11]. However, there are exceptions to the general propositions established by the cases relied on by the respondent: see, for example, R v Abbott (1985) 17 A Crim R 355, R v Smith (1987) 27 A Crim R 315, R v Goodwin (1990) 51 A Crim R 328 and R v Ehrenburg (Court of Criminal Appeal (NSW), 14 December 1990, unrep). In Betts v The Queen, the High Court, in affirming the general propositions concerning the admissibility of fresh or new evidence in sentencing appeals, observed at [10]:
"None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice."
Having concluded that the sentence is manifestly excessive, it is unnecessary to decide whether the evidence is admissible as an exception to the general rule as to the admission of additional evidence on a sentence appeal. Nor is it necessary to consider the possibility that the applicant seeks to raise an additional ground of appeal relying on the concerns arising from the COVID-19 pandemic. No such ground was raised and no application to amend the grounds of appeal was foreshadowed. I will take the additional evidence and submissions into account on the "usual basis", that is, on the question of re-sentence.
[17]
Re-sentencing
In considering the appropriate sentence now to be imposed, I have taken into account the relevant objective and subjective features detailed in the course of this judgment including at [134], [139]-[152]. I have kept in mind the maximum penalties and standard non-parole periods applicable to each offence. In the course of this judgment I have analysed the matters relevant to an assessment of the objective seriousness of the offences and described the personal circumstances of the applicant. The sentence must reflect the objectives of punishment at common law and under s 3A of the Crimes (Sentencing Procedure) Act. In sentencing for offences against young children deterrence must play a significant role.
As to the new material arising out of the COVID-19 pandemic, of particular relevance is the applicant's advanced age (he is now 71) and the fact that he has asthma and other medical conditions that make him more vulnerable to potentially grave complications should he contract the virus. Custodial institutions have particular problems in controlling the spread of a virus such as COVID-19. However, to this point no inmate has tested positive in any Corrective Services facility in New South Wales and, it seems, any cases amongst staff at the hospitals have been contained. There is no evidence that the virus has spread further or made its way into the general prison population. The Department says it has taken steps to minimise the risk of the virus entering the prisons. One of those steps has been to suspend all social and family visits, a matter that makes the conditions of incarceration of most inmates more onerous. I have taken these matters into account in re-sentencing.
An offender's advanced age and ill-health are always relevant to the length of a custodial sentence, particularly where those matters make a gaol term "significantly harder" for the particular individual: see, for example, R v Simon [2003] NSWCCA 147; 142 A Crim R 166 at [33]. Further, for an elderly person "[e]ach year spent in prison represents a substantial portion of the remaining years of life which [he or she] may expect": R v DB [2001] NSWCCA 320 citing R v Hunter (1984) 36 SASR 101.
Like the sentencing Judge I would find special circumstances and adjust the length of the parole period to take into account the applicant's advanced age, the putative partial accumulation of sentences, the applicant's medical conditions and his wife's circumstances. I will give effect to the finding of special circumstances in the aggregate sentence and the indicative sentence for count 4.
For the purpose of s 53A(2)(b), I indicate the following sentences that I would have imposed if an aggregate sentence were not imposed:
1. Count 1, 2 and 3 - in each case a sentence of 2 years with a non-parole period of 18 months.
2. Count 4 - a total sentence of 4 years with a non-parole period of 2 years.
I would impose an aggregate sentence of 5 years with a non-parole period of 2 years and 6 months.
[18]
Orders
For those reasons, I propose the following orders:
1. Leave to appeal against conviction granted.
2. Appeal against conviction dismissed.
3. Leave to appeal against sentence granted.
4. Appeal against sentence allowed.
5. Quash the sentence imposed in the District Court and in lieu thereof:
6. The applicant is sentenced to an aggregate sentence of 5 years commencing 5 June 2018 and expiring 4 June 2023, with a non-parole period of 2 years and 6 months expiring on 4 December 2020.
7. The applicant will be eligible for release to parole at the expiration of the non-parole period.
FAGAN J: I agree with all that Hamill J has written and with the orders his Honour proposes.
My agreement that the sentence imposed was manifestly excessive derives both from the objective features of the offending and from the applicant's compelling subjective claims to lenience. The two aspects provided grounds for mitigation of penalty that were unusually strong for crimes of this type.
Relative to much more serious instances of sexual offending against young children that are frequently seen in this Court, the applicant's conduct as found by the learned sentencing judge was at the lower end of the range both for the offences charged under s 61M(2) and for the single count under s 66A(1) of the Crimes Act (as in force in late 2016). The acts in the present case were almost fleeting. The small number of instances occurred over a closed period of weeks. The applicant's conduct overall was indecent but not heavily sexual. As described by the complainant in her recorded interview and as found by the judge, it appears that the applicant came to his senses and retreated in the face of the complainant's protest on the last of the occasions in question.
The interview showed the complainant to be a remarkably intelligent, perceptive and level-headed child. The learned sentencing judge had regard to a victim impact statement prepared by the complainant's mother on her behalf. This describes lasting deleterious effects upon her state of happiness and adjustment. From the victim impact statement it is extremely difficult to distinguish between adverse emotional and psychological effects caused by (a) the applicant's criminal conduct; (b) the complainant's engagement with the prosecution process and (c) the fracturing of family relationships that has resulted from these events, especially given the previous close involvement between the complainant's immediate family and her paternal grandparents, the applicant and his wife. It may be inferred that the complainant's disturbance has been contributed to by tension and division amongst members of her wider family resulting from the applicant's denial of her allegations. Whatever has resulted from that contributory cause cannot be regarded as harm done by the offending. Segregation of causes was not the subject of evidence in the sentence proceedings.
On the basis of the testimonial evidence it can be said that the applicant's conduct was an extraordinary and inexplicable aberration, late in the life of a man of unblemished good character. At the time of the offences he was living with his wife of 42 years. The sentencing judge accepted the opinion of Mr Sheehan, psychologist, that there was nothing in the applicant's report of his own history that could offer any insight into the commission of the offences. There is nothing from any other source to explain the behaviour. The judge concluded that the applicant is unlikely to reoffend.
Of the purposes for which a court may sentence an offender, as prescribed in s 3A of the Crimes (Sentencing Procedure) Act, I consider that this case attracted only the objectives of (a) ensuring adequate punishment; (e) making the offender accountable for his actions; (f) denouncing his conduct and (g) recognising the harm done to the complainant and the community.
The applicant's offending was so anomalous in his otherwise blameless life that I cannot regard him as a suitable vehicle for fixing a penalty with any significant component for general deterrence of other prospective offenders (par (b) of s 3A). The level of sentence should not be materially influenced by the consideration of protecting the community, given the improbability of further offending (par (c)). In these two respects I respectfully differ from the learned sentencing judge.
Her Honour was satisfied that the applicant's advanced age and ill-health would make time in prison harder for him than for others. That aspect of the matter warrants emphasis. For such a man to be imprisoned, even for a relatively short term, on such charges, at his stage of life, with all his concerns about his own failing health and that of his wife, is severe punishment indeed. Six years of it, with a non-parole period of 3 years and 6 months, was excessive in all the circumstances of this case. I agree with the lesser sentence that Hamill J proposes.
[19]
Endnotes
Summing up (SU) 12, Appeal Book (AB) 17.
SU 11 (AB 16).
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, CB 314; T.8
See the definition in the Crimes (High Risk Offenders) Act 2006 (NSW).
[20]
Amendments
29 April 2020 - [83] Amendment to quote
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: 29 April 2020
R v Abbott (1985) 17 A Crim R 355
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Allpass (1993) 72 A Crim R 561
R v Daetz [2003] NSWCCA 216; 139 A Crim R 398
R v DB [2001] NSWCCA 320
R v Edwards (1996) 90 A Crim R 510
R v Ehrenburg (Court of Criminal Appeal (NSW), 14 December 1990, unrep)
R v Goodwin (1990) 51 A Crim R 328
R v Hunter (1984) 36 SASR 101
R v Munday [1981] 2 NSWLR 177
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
R v PGM [2008] NSWCCA 172; 187 A Crim R 152
R v Severo Dossi (1919) 13 Cr App R 158
R v Simon [2003] NSWCCA 147; 142 A Crim R 166
R v Smith (1987) 27 A Crim R 315
R v Westerman (1991) 55 A Crim R 353
R v Wran [2016] NSWSC 1015
RC v R; R v RC [2020] NSWCCA 76
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Silvano v R [2008] NSWCCA 118; 184 A Crim R 593
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category: Principal judgment
Parties: Mr Scott (Appellant)
Regina (Respondent)
Representation: Counsel:
G Smith SC (Appellant)
E Balodis (Respondent)
Initial complaint and conversation with her mother
There was no dispute that Sarah and her brother stayed with Mr Scott and his wife on 20 December 2016. The children returned home on 21 December. In the context of the children kissing the new baby, Sarah's brother, then aged four, said something along the lines of "but not on the bottom, not - not like [Mr Scott] kisses on the bottom". When the mother asked him to explain what he meant, the little boy said "not me, [Sarah]". The mother then asked Sarah about this and she said "Oh just sometimes when he's giving me a massage". She asked if "it was the back bottom or the front bottom" and Sarah said "in the middle". At that stage, according to the mother, she started to record the conversation on her telephone.
This recording was tendered (Exhibit 5), played to the jury and a transcript was provided as an aide memoire (MFI 4). The transcript recorded the following:
"DETECTIVE SENIOR CONSTABLE WATKINS
Q1 This is an electronically recorded, electronic recording between [Mother] and Detective Senior Constable WATKINS at Chatswood Police Station. The date is Friday 23rd of December 2016. The time is 10.47am. [Mother] just for the purpose of transcription can say your name and spell your surname for me please?
[MOTHER]
A [Mother]
Q2 Thankyou [Mother] and my name is Suzie WATKINS, surname spelt W-A-T-K-I-N-S and I am a Detective Senior Constable at Chatswood Police Station. Now [Mother] as I've already explained to you, what we want to do today is get a recording of a recording that you took with, um, your daughter, [Sarah]…
A [Sarah].
Q3 [Sarah], yep, ah, now [Sarah] had a conversation with you on the twenty first of the twelfth 2016 is that correct?
A That's right.
Q4 Okay, and what we're gunna do just for the recording is we're gunna play this recording. So what I'll get you to do is just play that recording for me.
RECORDING IS PLAYED AND THE VOICE OF [SARAH] AND [MOTHER] IS HEARD
[SARAH]
A …..he was kissing me and then he went up…..
[MOTHER]
Q5 He was kissing you where?
A on my legs…..
Q6 He was kissing you on your legs?
A I think, I can't remember.
Q7 You just, you just tell me and I won't interrupt.
A …..I can't really remember. He was just giving me a massage and then he, I, I don't know, he just did it and I didn't say anything so, ah, I guess it became a thing.
Q8 So he kissed you on the front bottom the first time?
A Ah, middle.
Q9 In the middle area. Okay, um, and for a long time or just a quick one?
A Just a quick one.
Q10 Ok, all right, and then what, so each time you stayed over?
A Mmmmmmmmmmmm, sort of but sometimes I didn't really want to and I just said no thankyou, not tonight.
Q11 So he would say, 'do you want a massage tonight?'
A Mm
Q12 Yep. Is that what he said? A massage?
A Yeah
Q13 Okay. Yes.
A Yeah and I guess after that one time, um, he would just assumed that that's what I wanted when I said can I have a massage.
Q14 Right, Okay, so he would kiss you on the bottom..…
A …..Yeah..…
Q15 …..as well as the massage?
A Mm. Is it concerning.
Q16 Yeah, my baby, well it's just not the right behaviour as mummy said, Yeah? [Sarah's brother] baby…
[SARAH'S BROTHER]
A (NO AUDIBLE ANSWER)
[SARAH]
A One thing you can't do…
[MOTHER]
Q17 I know, I just need to speak to [Sarah] for a second…
A One thing you can't do is get [Mrs Scott] involved because that might…..
Q18 So tell me, yeah, tell me the whole thing with [Mrs Scott] and [Mr Scott]. What has [Mr Scott] said about [Mrs Scott]?
A [Mr Scott] said, [Mrs Scott], if [Mrs Scott] hears, cuz she's already had suspicions that something's wrong with me and she might get divorced with me and I'll have nothing and to all of that.
Q19 All right…..
A …..and so yeah…..
Q20 Okay and…
A …..and mum…..
Q21 Yep
A I don't know what's really happened with them but something's happened.
Q22 Something's happened…..
A Yeah.
Q23 Okay, and with telling mummy and daddy?
A [Mr Scott]'s like, they prob…..they're going to get really angry at me and I could possibly even go to gaol and I don't wanna be in gaol and then [REDACTED] and [REDACTED] will stop seeing me and stuff like that and he was really worried.
Q24 Yeah. Okay baby, so he told you not to tell anyone?
A At least not until New Year and after New Year he said just say once when we sit, when I was massaging you, I accidently kissed you on the back bottom.
Q25 Right, but it wasn't the back bottom?
A Well I, he does, he does…..
Q26 …..off there [Sarah's brother] please…..
A …..either one. It's not always front bottom, it's not always back on, it's not always middle.
Q27 O.K. and are they just quick kisses?
A They're medium
Q28 So kissing for like, awhile?
A Like, ah, 10 seconds.
Q29 Okay baby.
A Is that it?
Q30 Well is there anything else that you want to tell mummy about?
A No, not that I know of.
Q31 No. Do you have any feelings about it? What are you thinking?
A I'm just feeling a bit nervous because like, I know [Mr Scott] is part of the family and I should trust him and the stuff that he was saying was a bit nerve racking because, like, if I did, if I didn't tell you I probably wouldn't be able to sleep and have stomach pains like I did last night, and yeah. But then on the other hand if I did tell you [Mrs Scott] might find out, they might divorce and the family will go a bit haywire.
Q32 Right, my baby, yeah. But if somebody has done the wrong thing my angel, what happens after that is because of them, not because of you. Do you understand?
A Yeah
Q33 Okay. Good. [Sarah's brother] stop doing that please. [Sarah's brother] Stop.
[SARAH'S BROTHER]
A (NO AUDIBLE ANSWER)
MOTHER
A When I was about to go for a swim then I started getting nervous and had a big talk to [Mr Scott] and [Mr Scott]'s eyes were almost crying, shaking.
Q34 But what talk were you having baby? Telling him what?
A I was telling him that I normally, whenever I feel like I'm hiding something or something like that and yeah.
Q25 Okay. [Sarah's brother] please stop doing that. [Sarah's brother], right now or you're going to get into trouble. Yes, so that's what brought on the tummy ache yesterday baby was it?
A Yeah maybe, I…..
Q36 You felt like you were hiding something and you had a chat…I'm really going to get cross [Sarah's brother]…..
A I think it was also the food, like a mixed combination.
Q37 Sure, sure my baby. Okay, munchkin I'm so, so sorry that I didn't come and pick you up last night…..
A ..…yeah…..
Q38 …..and I'm sorry that anything that's happened…..
A …..it's fine, I understand…..
Q39 …..has made you feel upset or awkward…..
A …..I understand, it um, I didn't want to tell you because like I didn't want the family to break up…..
Q40 Of course not my baby of course not. Yeah. Okay
A I don't want anything bad to happen
Q41 Yeah of course not my angel. I know you're such a good girl. Such a good girl. Can I say though you've done the right thing by telling me. Yeah? You've done the right thing. This is the right thing to do munchkin okay?
A …..might get to angry?
Q42 Baby, daddy and I will have a talk about it and we'll work out the best way to hand this. Yes, but very inappropriate behaviour by [Mr Scott]. Okay?
A ……..
Q43 Mmmmm
A Even the fact it wasn't right and that he just wanted to love me he didn't know how to do that or show that. I don't know why this has happened but…..
Q44 .….yeah…..
A …..and besides, he's um, [Sarah's brother], matchsticks
[SARAH'S BROTHER]
A (NO AUDIBLE ANSWER)
[MOTHER]
Q45 No you can't play with fire put that down please
A (NO AUDIBLE ANSWER)
Q46 No [Sarah's brother], no. Give me the matches, where did you even get those
A …..in the kitchen.
Q47 No, we are never, ever, ever allowed to touch matches. Do you understand? It's very hard to have this very important talk with your sister.
[SARAH]
A (NO AUDIBLE ANSWER)
Q48 Yes, my baby, yes me too. All right you guys.
A What are you doing?
Q49 I'm just checking my….
DETECTIVE SENIOR CONSTABLE WATKINS
Q50 Okay, that's the end of the recording, um, Do you have any other recordings on [there] [Mother]?
A In regards to this?
Q51 Yeah
A No
Q52 No. Okay, the time is now 10:56am and I'm going to stop the video tape.
RECORDING CONCLUDED."
Review of audio visual evidence
An issue that arose on the hearing of the appeal was whether the members of this Court should watch and listen to a number of the recordings that were tendered at the trial. These included:
1. The recording of the conversation between Sarah and her mother,
2. Sarah's interview with police,
3. Sarah's pre-recorded evidence, and
4. The electronically recorded interview with Mr Scott.
Senior Counsel for the applicant submitted that the Court should view the material to place itself in the same position as the jury. He did not identify any particular forensic reason that the Court should view the material: cf SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at 410-411; Pell v The Queen [2020] HCA 12 at [35]-[39] (decided after the hearing of the appeal). Counsel for the respondent said the Director would not "stand in the way" of the Court viewing the material. He pointed to a number of occasions in the police interview where the transcript recorded Sarah making gestures. Further, the kind of imbalance that troubled the Court in SKA did not exist where the cross-examination and the applicant's ERISP were also available for viewing.
Since this case was argued the High Court decided Pell v The Queen. In that case members of the Victorian Court of Appeal viewed the recordings of the complainant over the objections of counsel for the appellant (the accused). The High Court said:
"35. In this Court, the applicant maintained the position that it was unnecessary and undesirable for the members of the Court of Appeal to have watched the recordings of any of the witnesses. Nevertheless, the applicant was not disposed to contend that the course taken by the Court of Appeal was itself an appealable error. The respondent maintained the position that the existence of the recordings was enough to make it 'appropriate' for them to be watched by the Court of Appeal.
36. The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court."
Relevant principles
In his affidavit, Mr Scott expressed his belief that the conduct of his counsel "amounts to flagrant incompetence". Senior Counsel used the same language in some of his submissions. Such language, and similar epithets such as "egregious error", was used in some of the earlier cases in New South Wales and England. However, in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 the High Court made it clear that this is not the correct focus of the inquiry. Gleeson CJ said:
"29. Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial - 'fresh evidence', as it is usually called. The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be 'flagrant incompetence', an 'egregious error', 'extreme conduct' or 'significant fault'. Thus it was that the argument in the present case was premised on counsel having made a 'wrong' decision.
30. Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s 6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether 'on any other ground ... there was a miscarriage of justice'. The words 'on any other ground' do not postulate the demonstration of error. Rather, they simply require that 'something occurred or did not occur' in the trial.
31. As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of 'flagrant incompetence', 'egregious error' or the like.
32. An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial."
See also McHugh J at [80]-[83], Hayne J at [108]-[109] and see Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [16] (Gleeson CJ) and [24] (Gummow and Hayne JJ).
Grounds 2, 3 and 4 must be rejected
I am unable to accept that a miscarriage of justice was occasioned by the decisions made by trial counsel and by his failure to conduct the case on the basis of the "alibi" said to be established by the calendar and supporting testimony and documents. There are several reasons for this, some of which are interrelated.
Contrary to the thrust of the appellant's submissions, the evidence presented on the appeal was not capable of establishing an alibi in relation to any of the counts on the indictment. Taken at its highest, the evidence may have reduced the number of Friday nights when the children stayed over at Mr Scott's home in the two months leading up to the final incident. That may have impacted on the complainant's credibility. However, the prosecution did not assert, and was not required to prove, that any of the offences were committed on a Friday night, let alone on any particular Friday night. The allegations on their face particularised a range of dates in each of the first three counts. Sarah's evidence (at QQ 401-402) included the possibility that she and her brother stayed over on a Saturday night as well as on "every second Friday night". Her mother was asked in evidence if the sleepovers were on "any particular night" and she replied that it "varied". She was asked if the sleepovers were always on weekends or weekdays and she repeated that it "varied". The applicant's wife's evidence was that "mostly it was on the Fridays" but she also said "or Saturday and one could have been". Mr Scott told police the children stayed over "six or seven times" under an arrangement that was in place for "a couple of months".
The prosecution was not bound by the eight year old child's memory that the indecent assaults occurred on every second Friday leading up to the 20 December 2016. Time was not "of the essence" in this trial: cf R v Severo Dossi (1919) 13 Cr App R 158, R v Westerman (1991) 55 A Crim R 353 and Director of Public Prosecutions (NSW) v Knight [2006] NSWSC 646; 162 A Crim R 555. Even assuming the prosecution was required to establish beyond reasonable doubt that the offence occurred within the dates nominated in each count, the evidence tendered on this appeal is not capable of raising a doubt about Mr Scott's opportunity to commit the offences. Both his account in the interview with police and his wife's account in evidence proved that the opportunity existed.
Count 1 was alleged to have occurred between 20 October 2016 and 6 December 2016. On Friday, 21 October 2016, the evidence establishes that the Scott's had dinner at a friend's place but it says nothing as to where they stayed on the Friday night and where they may have been on the Saturday night. The respondent asserted there may have been a sleepover on Saturday, 22 October 2016 although Mr Scott denied this in cross-examination on the appeal. How he could know this, three years down the track, is questionable.
Legal approach
The approach the Court must take to this ground of appeal is well established: see for example, M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The position was summarised in Guo v The Queen [2020] NSWCCA 40 at [3]:
"The question we must ask ourselves is whether we think 'that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty': M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. This is more than a question of the sufficiency of the evidence. The Court is required to 'make its own independent assessment of the evidence': M v The Queen at 492 and SKA v The Queen (2011) 243 CLR 400 at 408; [2011] HCA 13. In doing so, the Court must bear in mind 'that the jury is the body entrusted with the primary responsibility of determining guilt or innocence': M v The Queen at 493. A reasonable doubt experienced by this Court will, in most cases, be a doubt that the jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt: M v The Queen at 494."
In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said at 494-495 (authorities omitted):
"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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
Most recently, in Pell v The Queen, a unanimous High Court explained the correct approach and the limits on the jurisdiction in the following passage:
"37. Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
38. It should be understood that when the joint reasons in M v The Queen spoke of the jury's 'advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
39. The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt."
This evidence was admitted as evidence of the truth of the allegation in count 4, and the alternative charge in count 5: Evidence Act 1995 (NSW), s 66, Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37. [1] It was not so admitted in relation to counts 1, 2 and 3 and the jury was directed that the delay in making the complaint in respect of the earlier incidents may be taken into account in assessing Sarah's credibility. [2]
In the present case, I formed the view that it was appropriate that this Court view and listen to the material. A critical issue in the present case is whether the guilty verdict on count 4 is unreasonable. This involves careful consideration of the complainant's version(s) of where Mr Scott kissed her. As can been seen from the review of the evidence undertaken above, the complainant used different terminology in relation to this issue. Initially she said it was the "middle bottom" and her use of the term "vagina" only arose after a police officer asked directly if that is what she meant. In the course of the interview, which became her evidence in chief, the complainant used gestures on a number of occasions. What she was indicating or, in some instances, pointing at "can only be discerned visually": Pell at [36]. Once I determined that it was appropriate to watch the complainant's interview (evidence in chief), balance and fairness required that the cross-examination and the appellant's ERISP should be subject to the same scrutiny.
Accordingly, I have watched and listened to the recorded material set out at [50]. I have done so at the urging of the applicant and for the particular purpose of understanding the gestures made by the complainant in the interview. In making an independent evaluation of this evidence, I have not lost sight of the fact that the jury found the complainant to be credible and reliable and have not attempted to "duplicate the function of the jury in its assessment of the credibility of the witnesses": Pell at [37]. As the High Court said in Pell at [37]:
"...The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function."
In Nudd v The Queen, Gummow and Hayne JJ said at [24]:
"As four members of this Court explained in TKWJ v The Queen, describing trial counsel's conduct of a trial as 'incompetent' (with or without some emphatic term like 'flagrantly') must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code. 'Miscarriage of justice', as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial."
The question is whether the failure of counsel to call the applicant, to lead evidence about the calendar, and to call witnesses and other evidence that could provide support for the entries that limited the number of Friday nights when sleepovers might have occurred, may have led to a miscarriage of justice. In other words, as Gummow and Hayne JJ put it, whether there was a "material irregularity" and whether there was a "significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial".
Count 2 was alleged to have occurred between 3 November 2016 and 6 December 2016. The calendar has an entry suggesting there was a sleepover on Friday, 4 November 2016.
In respect of both counts 1 and 2, the evidence concerning Friday 11 November 2016, which related to the procedure concerning Mr Scott's eye, did not rule out the possibility of a sleepover. The hospital notes suggest he left the hospital in the middle of the afternoon and the evidence was silent as to what he did afterwards.
Count 3 was alleged to have occurred between 17 November 2016 and 6 December 2016. The calendar has no entry on Friday, 2 December 2016. The spreadsheet regarding this date includes the assertion "NO KIDS" but the source of this information is not known and the author of the document did not give evidence on the appeal. The information available to counsel at the trial was that the calendar did not rule out the possibility that there was a sleepover on Friday, 2 December 2016. There was no evidence of "alibi" for this date, let alone for the range of dates nominated in the indictment.
The foregoing analysis merely demonstrates that there were dates within the range nominated for each count where Mr Scott may have had the opportunity to commit the offences. As trial counsel said under cross-examination as to why he did not advise the filing of an alibi notice:
"Because, as I've said, there were sleep overs, that's not in issue, and the real issue was whether or not the assaults occurred, and we had the last incident which is shortly before he was charged with the matters. So that's obviously not the subject of this of course, but I didn't form that view.
…
Well, as I've said, she couldn't pinpoint the days. I mean what else - she says that they're Fridays, I don't know. … Just because she's firm about a Friday sleepover doesn't mean it's a Friday".
Counsel's opinion that there was no issue that there were sleepovers was based on the contents of Mr Scott's ERISP and the evidence of his wife. The ERISP was clear:
"Q 141 So how long has that arrangement been in place?
A Maybe a couple of months.
Q 142 Yeah. So how many times do you think that they've stayed at your house overnight.
A. Six or seven times."
He provided a similar account in answer to questions 120-126.
Putting aside the shortcomings of the evidence tendered on the appeal, the fact that there were holes in the calendar evidence, and the fact that Mr Scott acknowledged there were six or seven sleepovers in the relevant period, the decision to conduct the trial in the manner that was adopted constituted a tactical decision in which both the solicitor and the client were involved. The written instructions establish that Mr Scott was aware of the decision and the reasons it was made. While I have no doubt Mr Scott was nervous and reliant on the advice he was receiving, there is nothing to support the proposition that he did not understand the decisions that were taken or that he was under duress.
Further, there was a completely rational explanation for counsel's tactical decision. To have called the applicant, and relied on the calendar to suggest that there were insufficient Friday night sleepovers for the offences to have been committed, would have invited cross-examination about the answers given in the ERISP. Those answers cannot stand with any suggestion that the applicant did not have the opportunity to commit the offences, let alone that there was an alibi.
I am not satisfied that there is a significant possibility that the advice and decisions of counsel complained of under these three grounds of appeal, affected the outcome of the trial. Grounds 2, 3 and 4 must be rejected.