Short v R

A SKETCH OF THE EVENTS

1. Jane's mother, Sarah, and the appellant, were in a relationship for years preceding and during the period of the allegations the subject of the Counts. At times, Jane slept with Sarah in her mother's bed, whilst the appellant was also in the bed. There were five children in the household, each of whom on occasion, would sleep in the bed with Sarah. In the lounge room of the house, on occasion, the family would fall asleep whilst watching television. On the Crown case, the appellant would, on occasion, fall asleep on the lounge to which there was a chaise. The appellant denied this. His evidence being that if he fell asleep in the lounge room, it was on a blow‑up mattress on the floor, and usually with Sarah. As will be seen, in my opinion, whether or not the appellant could sleep on the couch, was not an issue of significant bearing, in the assessment of the credibility of Jane's evidence.
2. Sarah had been assaulted at work prior to the alleged events, from which assaults she suffered physical and mental health issues, which required her to take medications to assist her to sleep. The appellant suffered night terrors or nightmares.
3. In relation to Count 1, Jane, at about the age of 10 years, did not like sleeping in her own bed in her bedroom, which brought her on occasion to sleep in Sarah's bed. The Crown case, based on Jane's evidence, was that on an occasion which she thought was the first time that she slept with Sarah whilst the appellant was in the bed and whilst sleeping between the appellant and Sarah, he touched her in the area of her vagina. Her reaction was to try to turn away. He pulled his hand back and replaced it to touch her in the same way. Sarah remained asleep.
4. In relation to Count 2, the Crown case based upon the evidence of Jane was that the appellant, whilst positioned below Jane on the chaise, Jane being at the top of the chaise, and Jane's family also in the lounge room having fallen asleep whilst watching television, the appellant reached up and placed his hand in the area of Jane's vagina. Jane's reaction was to sit up. The appellant pulled his hand away and 30 seconds to a minute later appeared to wake up, noisily stating that he had experienced a night terror involving him being struck by a truck.
5. The appellant's evidence was unqualified denial that either of the events of touching, the subject of Counts 1 and 2, occurred.

CONDUCT OF THE APPEAL - PROCEDURE

1. Neither party argued that his Honour failed to apply adequate trial directions during his reasons. I adopt his Honour's directions. The appeal is as of right pursuant to s 11 of the Crimes (Appeal and Review) Act 2011 NSW, hereinafter referred to as the Act.
2. Pursuant to s 18 of the Act the appeal is by way of re-hearing on the basis of evidence given in the Local Court. There is no fresh evidence. The Crown tendered without objection a conviction appeal bundle, exhibit A. I have already referred to striking out of Jane's evidence at questions 177 to 180 in the JIRT. At the commencement of the appeal the parties informed the Court that it was not required to consider the whole of the transcript of the hearing, but that the Court might limit itself to so much of the transcript as was referred to in the parties' written submissions.
3. I informed the parties that I would also read the whole of the evidence of Jane and of the appellant. This course was agreed to and has been followed, with the exception that because of his Honour's judgment referral to the Family and Community Services document, herein exhibit 6, I have included reference to that.
4. The Crown's written submissions are MF1 1, appellant written submissions are MFI 2, the Crown supplementary written submissions are MFI 3, appellant supplementary written submissions are MFI 4.

CONDUCT OF APPEAL - OBJECTION TO JIRT VIEW

1. The Crown sought to play the recorded JIRT interview which was viewed and became evidence‑in‑chief of Jane at the hearing. The appellant objected on the basis that because cross‑examination of Jane and evidence of the appellant was recorded in written transcript only, my consideration of the visual and auditory evidence of Jane in chief risked an imbalance of presentation in favour of Jane's credibility. The appellant relied principally upon the caution identified in reasons for the guideline practice for playing a JIRT to a jury in R v NZ [2005] NSWCCA 278 for this point, and also argued that because the recording of a JIRT was not properly an exhibit in the hearing, it was not "evidence". The parties' submissions were principally conveyed by emails, which were marked Crown exhibit B in this appeal.
2. My reasons for permitting the JIRT to be played appear in the transcript of Friday, 1 February 2019. Shortly stated, the Court of Criminal Appeal in the NZ case did not determine the latter point (in particular see [193]). I considered myself bound to follow and did apply DPP v Al-Zuhairi [2018] NSWCCA 151 at [54]. In that case the Court of Criminal Appeal determined that the content of such a recorded interview, which at the hearing was marked for identification only and was not made an exhibit, "Met the description of 'evidence given in the original Local Court proceedings' within the meaning" of s 18(1) of the Act. That there was no transcript of the JIRT in Al-Zuhairi does not distinguish application of the Court of Criminal Appeal decision in Al-Zuhairi, here.

CONDUCT OF THE APPEAL, A BROWNE v DUNN QUESTION

1. The appellant's submissions, paras 36 and 42(2) argued, as stated at [36]: "That in cross‑examination it was never directly put to the appellant that he 'touched' the complainant while the complainant was sleeping between Sarah and the appellant. Nor was it put to the appellant that he 'touched' the complainant while both he and she were lying on the "couch' in the lounge room."
2. The first sentence of the submission refers to Count 1 and the second sentence to Count 2. The appellant conceded that he was on notice of the particulars of the Crown case. Those submissions raised the issue of whether or not the Crown had satisfied its obligation in cross‑examination of the appellant to put its case, Browne v Dunn (1893) 6 R 67, and caused there to be supplementary written submissions by each of the parties; MFI 3 and MFI 4. During argument on Tuesday, 5 February 2019, I took the parties to the relevant transcript, particularly in the cross-examination of the appellant at transcript 6 June 2018, pp 42 to 46.
3. In relation to Count 1, during oral argument the appellant refined his submission to, that the Crown had failed in its duty to challenge in cross‑examination the particular of the Crown case that the touching occurred whilst Jane was in the position of the middle of the bed, that is between the appellant and Sarah.
4. At transcript 6 June 2018 p 29 line 38 to p 39 line 40, the appellant was emphatic in his denial that any of the children ever slept in the bed between himself and Sarah. That denial having been given, it was not incumbent upon the Crown to put that fact to him in cross-examination. The transcript shows that the appellant repeatedly denied any inappropriate touching of Jane, specifically touching in the region of the vagina whilst in bed. The appellant conceded this during argument.
5. That at the hearing the Crown did not specifically put to the appellant that he had touched Jane in the area of the vagina whilst Jane was between himself and Sarah did not in those circumstances create unfairness in the procedure of the hearing. It did not create unfairness in the process of fact finding: AL v Regina [2017] NSWCCA 34 at paras 188 to 196. On the contrary, the Crown had satisfied its obligation in cross-examination.
6. In relation to Count 2 in evidence-in-chief, the appellant conceded that on occasion he and the family would fall asleep while watching TV in the lounge room. He said that "generally" he would watch TV from a blow up mattress on the floor beside Sarah. His evidence was that because of his being tall and there being uncomfortable parts of the lounge chaise, he referred to "futon" like, he could not fall asleep on it. He was emphatic in his denial that he ever fell asleep on the couch and chaise, transcript 6 June 2018 p 30 line 34 to p 31 line 7. He could stretch out on the chaise with his feet up only if there was no one else on it, transcript p 35 lines 16 to 31.
7. The Crown case was as depicted in a sketch drawing by Jane (drawing number 3 in Hearing exhibit 4) that Jane was on the couch at the head of the chaise above the appellant. In cross-examination Jane said that she could not say whether the appellant's legs hung over the end of it. Cross‑examination of the appellant, particularly at transcript p 42 line 5 to 42 line 34 contains his emphatic denial of ever having touched Jane on top of her clothing or anywhere around her vagina area or under her clothing whilst in the lounge room or on the couch.
8. In my opinion that at the hearing the Crown did not specifically put to the appellant that whilst he was on the couch he touched Jane in that way did not in those circumstances create unfairness in the procedure of the hearing. It did not create unfairness in the process of fact finding: AL v R supra. My conclusion is that the Crown did satisfy its obligation in cross-examination.
9. I would add that the appellant did not deny being on the couch whilst in the lounge room watching television and as the appellant conceded, it is not an essential fact that he had fallen asleep prior to the Count 2 offending. Jane had given evidence that he was asleep but she conceded that she, having been asleep; it was her assumption that others in the lounge room including the appellant were also asleep. Indeed, that the offending occurred is a proposition assuming that the appellant was awake. For that reason, whether or not the appellant was able to sleep on the couch and its chaise is not a central fact in the determination of his guilt or innocence.

NATURE OF THE APPEAL

1. Determination of this appeal comes down to whether the Crown has satisfied its burden of proof beyond reasonable doubt. When weighing the whole of the evidence of Jane and of the accused and so much of the evidence of Sarah as is referred to in the appellant's written submissions, I am required to form my own judgment of the facts whilst recognising the advantage enjoyed by his Honour who saw and heard the witnesses called and to observe the natural limitations stemming from proceeding on the transcript and the visual and auditory evidence of Jane in-chief only in the form of a JIRT recording, exhibit C: Charara v R [2006] NSWCCA 244 at paras 17 to 22, DPP v Al‑Zuhairi [2018] NSWCCA 151.
2. I am obliged to give the judgment which in my opinion ought have been given at first instance bearing in mind the disadvantage of my determining the matter on the record when compared with his Honour's better opportunity to get a feel for the credibility and reliability of witnesses by viewing them in the Courtroom, in particular Jane by AVL during cross-examination and the appellant in person, Fox v Percy [2003] 214 CLR 118, [2003] HCA 22 at paras 23 to 27.
3. For the record it should be noted that I was informed that no visual record of Jane's AVL evidence in the Local Court was made. Whilst his Honour's reasons for judgment are not part of the evidentiary record, recourse may be had to his Judgment since the appellant function could not properly take place without reference to them: Charara supra at paras 23 to 24. I repeat that I do not have to find error in the judgment below but rather to give judgment on the evidence.
4. There is only one real ground of appeal in relation to both Count 1 and Count 2. The appellant submits that the prosecution did not discharge its onus of proof beyond reasonable doubt.
5. The appellant's essential submissions as summarised at para 16 of his written submissions are: 1. The complainant's overall account is vague, inconsistent and in major respects lacking in reliability and credibility; 2. The prosecution case does not contain any "complaint evidence"; 3. At an early point in time the complainant refuted the suggestion of any inappropriate "touching" on the part of the appellant; 4. The appellant is a person of good character; 5. The appellant denies all allegations; 6. There are no good reasons to totally reject the appellant's account.
6. As to points 2 and 3 above, it is not contested that Jane did not complain to Sarah or to anyone else until 2017. Indeed in 2014 when asked by Sarah if the appellant had ever touched her, Jane answered "no".
7. Jane's evidence is that she was embarrassed and that is why she did not answer her mother in the affirmative in 2014. She was then 12 years of age. She said that as a 10 year old she thought she might have imagined the touching but employed the precaution of avoiding sleeping in her mother's bed for a period and thereafter sleeping only on the side of her mother opposite the appellant. Giving evidence as a 15 year old, describing her thoughts and emotional processes as a 10 year old, in my opinion Jane's testimony of embarrassment and a lack of appreciation of the seriousness of the touching is a believable response explaining why she did not complain more contemporaneously. I bear in mind s 294 Criminal Procedure Act (NSW).
8. His Honour properly stated in his reasons that he, as do I now, took into account the appellant's good character in his favour as relevant to the likelihood of his having committed the offences alleged in that a person of good character is unlikely to have committed the offences and, further, that his good character weighs in support of his credibility as a witness in that a person of good character is less likely to lie or give a false account. However, none of that good character reasoning provides some kind of defence.
9. Sarah's evidence of observations was confined to the alleged touching in late 2014. That evidence was in relation to Counts 3, 4 and 5, not counts 1 and 2 as I have stated.

DEMEANOUR

1. In his reasons for judgment at pp 9 and 10, his Honour gave his observation of Jane in the following terms: "I will make some brief points about my impressions of the complainant as a witness. What was clear in this case (was) that she answered each question directly. She made it clear when she did not understand a question. She gave forthright answers even when she was under distress. She was consistent and steadfast in the reasons why she did not complain at the time and later when she was asked why she did not raise the matter when asked by her mother and cousin. As I mentioned before, s 294 applies. The other point that must be made in this case is the limitations of the aide-memoire. It does not show the complainant's reactions and pause in considering the questions put to her. It records only audible replies. It does not record when the complainant agrees or disagrees by way of nod. It is an aide-memoire, it does not represent the evidence completely."
2. Exhibit A, Tab E in the (agreed) Crown bundle in this appeal, includes transcript of the JIRT interview being Jane's evidence-in-chief. That transcript does include descriptions of head nodding indicating the affirmative and head shaking indicating negative responses. My view of the JIRT, Crown exhibit C in this appeal, showed the pauses and distress exhibited by Jane during her evidence‑in‑chief only.
3. Of the appellant the magistrate assessed: "The accused was an unimpressive witness. This assessment is based on his demeanour in the witness box and the implausibility of some of his evidence. I acknowledge the case law, particularly the statement of Bell J in DL v R [2018] HCA 26 at [85], 'Demeanour is not always a sound guide to reliability'. In this case the demeanour concern included the accused laughing at different points during his evidence. This could have been a product of nervousness. But in the context of the trial, it did not assist him. Further, the manner in which he replied to allegations put to him was at times less than convincing. For example, at one point he testified, 'I don't think that happened'. But there are aspects of the accused's evidence which I find to be simply implausible."

THE EVIDENCE

1. On 2 December 2014, Sarah attended Hurstville Police Station and informed police of concerns regarding the appellant, including of his touching of herself and of her daughter in October 2014 and when the daughter was sleeping on the opposite side of Sarah to the appellant. Sarah did not make a formal report. Nothing is recorded in the COPS report (Hearing exhibit 3) of Sarah having informed police of Counts 1 or 2. In 2014 Jane, when asked by Sarah, denied that the appellant had touched her.
2. On about 25 July 2017, Family and Community Services received a report that Jane had disclosed that when she was 8 or 9 years of age the appellant had "sexually assaulted her". According to the summary contained in the Department's Secondary Assessment Stage 2 Report (Hearing exhibit 6 at p 6 of 9) when Jane was asked if the appellant had ever penetrated her with any part of his body including his hand she answered: "yes".
3. Family and Community Services forwarded information to police. On 15 August 2017 Jane participated in the JIRT at her school. A Department Case Worker attended.

JANE'S DESCRIPTION OF TOUCHING IN RELATION TO COUNTS 1 AND 2

1. At one point Jane described the touching as the "same" in Counts 1 and 2. When being asked about Count 2 following her evidence in relation to Count 1 she gave the following evidence: "Q 332. So did he do the same thing as what he did last time or did he do something different? A. The same thing".
2. I approach the evidence as if a re-hearing to form my own impression of it.
3. His Honour carefully considered the evidence of touching given by Jane in relation to Counts 1 and 2. In particular he addressed the challenge to her in cross-examination that there was inconsistency between her descriptions of being touched on top of and of being touched underneath her clothing. He accepted as reliable and truthful Jane's following evidence at cross‑examination transcript pp 42-43 to resolve that challenge and he found that beyond reasonable doubt Jane's evidence described touching under her pyjamas and on top of her underwear.
4. Throughout these reasons it will be read that I accept Jane to be a truthful witness, but find that at the required standard of proof beyond reasonable doubt, her testimony does not convince me that she possessed an actual recollection of the touching.
5. On the central issue my assessment of the evidence disagrees with his Honour's assessment after having provided myself the caution of acknowledging the advantage which he had of observing Jane give her evidence during cross‑examination, whereas I could observe the evidence-in-chief only and have only the transcript of cross-examination.
6. In my opinion that advantage is diminished in this case because as I have said his Honour took into consideration Jane's description of what she felt the appellant's hand to do at questions 177 to 180 JIRT. Her answer "rub" at question 178, having been struck from the record, it did not form part of the evidence. Jane's evidence during cross-examination at transcript 42 was: "Q. And you said - you were then asked, 'I know it's really difficult, Jane'? Answer, 'Just put his hand under my clothes'. That was your answer, wasn't it? A. Yes. Q. So you then later say in your evidence that it was on top of your clothing that first time? A. Under my pants, not my underwear. Q. I beg your pardon? A. Under my pants, not my underwear. Q. When you say on one occasion he's put his hand under my clothes, the first time you answered that in relation to the first incident I've just taken you to that, yes? A. Yes. Q. And later when asked to describe what happened on the first occasion at page 14 your answer is that his hands were on top of your clothing? A. Yes. Q. They both can't be true, can they? A. Yes, they can, meaning, under - but not on top of my underwear. On top of my underwear, sorry. Q. Well, just go back to page 11, at the top. Your answer is, 'Just put his hand under my clothes.' Correct? That's your answer? A. Yes, yes."
7. On to page transcript 43: "Q. You go on - you're asked again, 'Put his hand?' and you say, 'Under my clothes', correct? A. Yes. Q. Then on page 14 you're asked, as part of the bigger question, 139, 'Question. Was it on top of your clothing or underneath your clothing?' And you said, 'It was on top'. That's what you say there, isn't it? A. Yes. Q. You don't say in respect of either of those answers that there was a difference between 'clothes' meaning underwear or not, do you? A. No, I thought I did, but I didn't. But Detective Bronwyn did refer to 'under my clothing' as skin-to-skin, so when he did, I did say that. Q. Well, if that is what happened, why didn't you say that the very first time you were asked about this particular event? A. Say what? Q. That it was underneath a particular part of your clothes? A. I didn't think it was relevant. I was just saying what happened. When she was referring to skin-to-skin, I said skin‑to‑skin, and it's in..(not transcribable).. Q. If she was referring to skin-to-skin you say in one answer that he's touched you on top of your clothes and you say on another answer it was underneath your clothes in relation to the first incident. Which one is it? A. Under my pants, on top of my underwear. And if we were referring to skin-to-skin, that's what I would say. Q. Well, there is no - I want you to just, in fairness to you, look back at pages 10 and to the top of 11 which I took you to-- A. Yes, in-- Q. --and then just look again at question 139 on page 14? A. Yes. Q. There is no reference in those questions that you were asked about this incident about skin‑to‑skin or the nature of that kind of contact, is there? A. I recall being asked about skin‑to‑skin later, like if I said skin‑to‑skin then it was skin‑to‑skin. Q. Well, this is just go back to what you were asked. A. Okay, but I didn't say skin‑to‑skin meaning it wasn't. Q. You were asked, 'What did he do when he reached over' and eventually you answered in the first instance at page 11, 'Just put his hand under my clothes', right? A. Yes. Q. Then later you were asked on the very first time that you remember when you first went and slept in the room with you and your mum, 'Was it on top of your clothing or underneath your clothing', that is how you were touched, and you said, 'On top'? A. Yes. Q. There's no mention in any of the question about skin-to-skin or not, is there? A. No, not in those because it wasn't skin‑to‑skin. Q. You were just asked about what happened, correct? A. Yes. Q. And in one answer you said it was under clothes, correct? A. Yes. Q. And in another answer you said it was on top of clothes, correct? A. Yes. Q. And you don't say in respect of either of those answers that clothing meant underwear or not underwear, do you? A. No, I'm sorry but that's what I meant. If I meant skin‑to‑skin I would have said it like I did with the couch incident."
8. Transcript p 44: "Q. So if you meant skin‑to‑skin and that's what you meant on this occasion-- A. Skin to - no, on the first occasion I didn't mean skin‑to‑skin, as I said. Q. Well, if you didn't mean skin‑to‑skin why did you say in your evidence that he put his hand under your clothes? A. Like I said, he put his hand under my pants, not under my underwear. If he did, I would have said skin‑to‑skin. Q. So you're saying that it was skin‑to‑skin, are you saying it was skin‑to‑skin or not skin‑to‑skin on the first occasion? A. No, sorry, I didn't specify but that's what I meant. Q. Well, I suggest to you that you can't recall what precisely happened on this occasion and that is why you have given two different answers? A. No. Q. And that if you recall what in fact happened, there would only be one answer, it would either be under my clothes or on top of my clothes, isn't that the position? A. Could you repeat that, please? Q. I suggest to you if you did remember what occurred that you would give one answer in relation to the first incident and that answer would either be under my clothes or on top of my clothes? A. Well, I didn't. Sorry that I didn't specify. Q. And you didn't specify, I suggest to you, because you do not recall what happened, do you? A. No, I do. Q. You cannot be sure of what has occurred, can you? A. I am."
9. I have highlighted some questions and answers above only to assist the reader to locate those particular answers. I have not highlighted in order to select those responses as if not part of the whole composition of evidence of the witness. Locating those particular passages of evidence will assist the reader to understand my assessment of Jane's explanation during cross‑examination of her answers in chief, describing touching on top of clothing, underneath clothing and skin‑to‑skin.
10. The cross‑examination was careful and provided ample opportunity for Jane to provide an explanation of what she recalled. Her evidence that her answers meant on top of underpants and under pyjamas was given by her firstly in cross-examination during being challenged as to those inconsistencies of description of the touching in her evidence in chief, the JIRT. Her evidence conveys an attempt to defend against those inconsistencies rather than to answer with a description of actual recollection. Indeed at transcript p. 43 an available interpretation of her evidence is that she did mean "skin‑to‑skin" in relation to Count 2. If that was her meaning, it was inconsistent with her evidence at JIRT question 332 that the Count 1 and Count 2 touching was "the same. "
11. In order to accept her explanation one must accept that as a 15 year old, when interviewed by police with the support provided in the environment of the JIRT interview, she did not think "relevant" the different degrees of wrongfulness of the touching, that it was on top of her underpants or skin‑to‑skin in the region of her vagina, Jane 's answers appear as defensive.
12. Whilst it is directing attention to the evidence out of turn, I now go to passages of Jane 's evidence in chief whilst the cross-examiner's challenges as to inconsistency are borne in mind. As to Count 1 Jane 's evidence included: "Q 101. So tell me what happened that first night? A. (no audible reply) (crying)." "Q 103. Cause if you are not ready to talk about it we don't have to do it today, we can do it another time. A. Umm, I don't know, he just reached over." "Q 104. Okay, what did he do when he reached over? A. (no audible reply) (crying) Q 105. I know it is really difficult, Jane. A. Just put his hand under my clothes." "Q 106. Put his hand? A. Under my clothes." "Q 107. Under your clothes? A. (no audible reply) (crying)" "Q 108. Yeah, what did he do when he did that? A. Sorry? "Q 109. What did he do when he put his hand under your clothes? A. I don't want to say." "Q 110 (13.23). You don't want to say? A. (no audible reply) (shakes head)" "Q 111. If I showed you a picture, would you be able to mark on a picture where he touched you under your clothes? A. (no audible reply) (nods)."
13. At this point Jane was very upset and received encouragement by the witness intermediary and by Senior Constable Clarke to provide a description, then to write on the diagram the name of the body part identified by her as "touched".
14. The diagram is number 2 in the collection of diagrams within hearing exhibit 4. On that page, Jane has drawn a circle in the region of the vagina, on the picture of the front of a female child and written beside the sketch, "vagina". "Q 133. I will write my name on there as well, so I know - I know - this is really difficult for you but it is really important that I know what happened. So just in your own time, what did he touch you there with? A. Hands." "Q 134. Hand and what did he do with his hand when he touched you there? A. (No audible reply) (crying)." "Q 135. Did he touch you on the outside or the inside or something else of your vagina? A. The outside." "Q 136. The outside? A. (No audible reply)." "Q 137. Was it on top of your clothing or underneath your clothing? A. Both." "Q 138. Both? A. ...". "Q 139. So on that first time that you remember when he first went and slept in the room with you and your mum, was it on top of your clothing or underneath your clothing? A. On top." "Q 140 (17.01). So, what did you normally wear to bed? A. Ah, it was cold, so I wore like long pants." "Q 141. Okay. So it was cold. It was when you - it first happened was it? A. (No audible reply) (nods)." "Q 142. Okay. Okay. So that was on top of your pants? A. (No audible reply)." "Q 143. And how long did his hands stay there for that first time? A. I am not sure." "Q 144. And how did you feel when that happened? A. I don't know. I was kind of in shock." "Q 148. Okay. So that first night you slept between the two of them, so how - do you know how long he had his hand there for? A. Mm...I can't... ." "Q 149. What did you... ? A. Remember." "Q 150 (18:16). What did you do when that happened? A. I just tried to turn around." "Q 154. So when he's touched you and you said you tried to turnaround, what did he do with his hand when you tried to turnaround? A. Mm pulled it back but...went back... ." "Q 155. That is okay, so he pulled his hand, moved, then went back to this area of our body on your vagina. Is that right? A. (No reply)." "Q 157 (as said). What did he do when he put his hand back? A. Mm just the same thing." "Q 157. And what was he doing with is fingers there on top of your clothing? A. (No audible reply)." "Q 158. What did it feel like he was doing? A. (No audible reply)." "Q 160. What sort of motion do you think he was doing with his hand? A. (No audible rely)." "Q161 (19:09) ... : "A. (No audible reply)." "Q 162. Can you show me on your arm what he was doing with his hand? A. (No audible reply) (shakes head)." "Q 163. No? A. (No audible reply)." "Q 164. Do you remember the next time that that happened? A. (No audible reply) (shakes head)." "Q 165. How often do you think it happened? A. I'm not sure Like, um, I don't remember. I just don't know. It was a lot." "Q 173. Okay. So you said that sometimes it was on top of your clothing and sometimes it was in, underneath your clothing. What did he do when he was hand was underneath your clothing? A. Just the same thing." "Q 174. Same thing? A. (No audible reply) (nods)." "Q 175. Okay. Did he - so when his hand's underneath your clothing, is it skin to skin? A. (No audible reply) (nods)." "Q 176. What did he do with his hand when it was skin to skin? A. (No audible reply)."
15. Earlier in these reasons, I included the transcript of Jane explaining in cross‑examination, what she meant by descriptions of, top of clothing, underneath clothing and skin to skin. I referred to the opportunity provided in cross‑examination for her, to fairly address her answers in‑chief. At transcript p 36, lines 39 to 44, Jane was referred to the questions and answers by reference to pages of the Aide Memoir transcript of her JIRT. Her evidence was: "Q. But when you gave evidence about what happened on the first night earlier in the recorded interview, you said, 'he put his hand under my clothes'. It's at page 10 and 11, your Honour. You recall giving that answer? "A. Yes, referring to other times as well. But the first time, as much as I can remember, it was only on top."
16. I have again placed passages in bold so that the reader might better understand these reasons. However, I have considered those answers in the context of the whole of the evidence.
17. I now turn to Jane's JIRT and evidence in‑chief, describing the essential element of the Crown case of touch in relation to Count 2 which preceded her above quoted cross examination evidence of explanation of what she meant by her answers. Her evidence was: "Q 330. So when he touched you on that occasion, was it on top of your clothing, underneath your clothing, or something else? A. I think underneath." "Q331. Okay. So he's touched you skin to skin? A. (No audible reply) (nods)." "Q 332. So did he do the same thing as what he did last time or did he do something different? A. The same thing". "Q 333 [41:28]. And how long did that last for? A. Um, I don't know. I was in shock so I don't know. I couldn't move and-- "Q 348. How long do you think he touched you on that time before he - he woke up and said he was having a nightmare? A. 30 seconds to a minute. Cause I don't know - I was just in shock so I just quickly jumped up".
18. In cross-examination she gave the further description. Transcript 14 May 2018, page 26, line 43 to page 27, line 7: "Q. If the appellant is lying further down from you on that couch, and you were long enough for your feet to be off the chaise, wouldn't that mean that a significant portion of his body is falling off that chaise? A. I don't know. I guess. Q. And it is your evidence that he has fallen asleep in that position, isn't it. A. As far as I know he's asleep. Q. It is your evidence that he has fallen asleep and has manoeuvred his hand underneath your clothing, that is your evidence, isn't it. A. Yes. Q. That would require, would it not, for him to stretch further up the couch, would it not? A. Yes."
19. It will be remembered that a FACS document within Hearing exhibit 6 recorded Jane to have said she was penetrated by the appellant and his Honour referred to that evidence. Jane's evidentiary description of the Count 1 and Count 2 incidents did not include description of penetration. She was not asked about penetration during evidence-in-chief or in cross-examination. This is because it was only after the conclusion of the oral evidence that exhibit 6 was tendered. In these circumstances I concur with his Honour's finding it cannot have been evidence of a prior inconsistent statement.

CONCLUSION

1. After allowing for the evidence being that of a 15 year old girl, given at times in a distressed state, the evidence when taken as a whole, including her agreement to the suggestion that the touching had been skin to skin, her inconsistent answers of on top and of underneath her clothing; does not leave the Court with a reliable description of touching such that the allegations are proved beyond reasonable doubt.
2. Jane's explanation in cross-examination that she was describing underneath her pyjamas and on top of her underwear, does not comfortably fit with her agreement to the police officer's leading question, and other answers, that the contact was skin to skin.
3. Her evidence is vacant of description of the mechanics or movement involved in the allegation of touching by the appellant's hand. It is devoid of any description of what she felt. Her evidence does not include, as it were, direct description of an experience as sensed by her, other than the very general descriptive of "touch".
4. This is not to say that touch in the region of, and on top of her underpants, would not make out the offence. It is that I find her evidence not convincing to the standard of beyond reasonable doubt that the touching in each of Counts 1 and 2 actually occurred.
5. This concern is not removed by her description of her reaction to the Count 1 allegation, being that she turned over on the bed and the appellant's hand pulled back before returning to the same area of her vagina.
6. Those descriptions are again superficial in that they lack expression of what she felt and merely describe, without adding detail, actions of the appellant. It is to be remembered that after Count 1 she wondered herself whether or not she had imagined the touching and whether or not it had really occurred.
7. It is obvious that given ample opportunity to describe the movement of the appellant's hand and fingers and what she felt, she provided no evidence of these things. She became distressed, however her distress is not a source of evidence convincingly in the affirmative that an act of assault and act of indecency occurred, otherwise not specifically described.
8. The advantage of his Honour in assessing reliability of the evidence on this point, diminished as it is by his accepting description of a rubbing action in the absence of evidence of that, as described by the High Court in Fox v Percy supra is not such that I am not in a sufficient position to make these assessments of the reliability of her evidence.
9. This is not to say that Jane was a dishonest witness. It is not to say that she believed when interviewed on 15 August 2017 and when cross-examined that something had not occurred. It is to observe that in this case Jane's evidence does not describe the act the subject of the offending with detail of description as might be given had she more than a belief that she was touched, and was possessed of an actual and reliable recollection.
10. Her evidence was that she could not recall how long the touch lasted. She provided no replies to questions investigating what the appellant was doing with his hand and with his fingers. She provided no reply to questions enquiring of what she felt and of what she thought his hand was doing in terms of motion. When invited to demonstrate on her own arm what the appellant's hand was doing she was unable to do so.
11. I do not find convincing, at the standard of beyond reasonable doubt, Jane's explanation of under pyjamas and on top of underpants to satisfactory resolve inconsistency between her various descriptions of on top of clothing, underneath clothing, skin to skin, the same touching in Counts 1 and 2, and different touching in Count 2 compared to Count 1.
12. This, in combination with the vacancy from all of her evidence of the touching to describe it in terms of what she sensed, leaves me with a reasonable doubt as to whether the touching alleged in Counts 1 and 2 actually occurred.
13. Mindful of s 294 Criminal Procedure Act, a further matter which adds to my concern of whether or not Jane's evidence is of an actual recollection of a real event, is the course adopted by her after Count 1. Immediately after she ceased sleeping with Sarah because she did not want what she then thought might have occurred to happen again. But then returned to her sleeping with Sarah because she thought she had imagined it or that it was not real. As a precaution she slept not in the middle of the bed but on the opposite side of Sarah from the appellant. While she could not remember when it first occurred she said the touching continued to occur a lot over subsequent years by the appellant reaching over Sarah.
14. The reaction of a child of 10 years to her mother's partner touching her on the vagina would no doubt vary from one child to the next. Wondering whether or not she was imagining things might be such a reaction; however, resumption of the touching when she returned to her mother's bed as she claimed, would surely have confirmed it was real.
15. That she continued to sleep in her mother's bed whilst she considered it to have happened a lot would appear to be consistent with a continuing doubt as to whether or not it was real, and to be inconsistent with the course she originally chose of not sleeping in her mother's bed when she was not sure if it really had occurred.
16. There is no suggestion in the evidence that the appellant ever attempted to interfere with Jane in her own bedroom. There is no suggestion, on the evidence, that the appellant held influence over Jane. There is no evidence of grooming or of any form of persuasion. The only evidence is that Jane chose to sleep in Sarah's bed, when she did, on her own volition and without influence by the appellant or anyone else.
17. The appellant complains that Jane's evidence should be assessed as unreliable, also because of what the appellant described as inconsistency in her evidence as to the timing of the Count 1 incident. I disagree. Giving evidence as a 15 year old, the impression gained from the evidence is that she was doing her best to place in time events which occurred when she was about 10 years of age. In any event she did not give emphatic evidence that the Count 1 incident had occurred the first time she slept in the bed with the appellant in Sarah's bed. Worldly experience would suggest such a recollection would only be had by a 10 year old if there was something about the incident which identified with the first time in bed with them. There is no such evidence in this case. Indeed Jane's answer was, "I think it was the first time I slept with mum and the appellant was there." The word "think" is not an emphatic and precise expression.
18. The appellant submits that there was a change in Jane's evidence from sleeping on the other side of her mother from the appellant to sleeping in the middle. This submission includes reference to JIRT answers, questions 145 and 146. During the appeal counsel for the appellant frankly disclosed that he had not viewed the JIRT recording. He was not in the hearing below. He had not seen the vision of Jane providing those answers when he drew the submission. The submission is wrong. The JIRT shows that when answering question 145, Jane pointed to the diagram drawn by her to indicate that she slept in the middle at the time of the Count 1 incident. Her having done so is incorporated in question 146 when the police officer asked, "Okay, so you're in the middle this night?"
19. Finally the appellant points to the absence of complaint by Jane of the Count 1 and Count 2 incidents until 2017, even though she had matured over the course of those five years, and from late 2014 the appellant had not lived in Sarah's home. There was no reason for her to be fearful of the appellant. Jane explained that when she was younger, "I just didn't think much of it, I didn't know what any of it was." She said that it was because of embarrassment that she answered in the negative when in 2014 Sarah asked if the appellant had ever touched her. I repeat that I do not consider her evidence to have been untruthful. I am mindful of the warning which I must give myself pursuant to s 294, Criminal Procedure Act. I do not consider this ground of complaint a basis for doubting the truthfulness of Jane.
20. An additional point in the appellant's submissions in relation to Count 2 is that Jane did not make complaint of touching whilst on the couch, until in the course of the JIRT on 15 August 2017 at question 312. The evidence does not permit there to be found any significance in this appellants submission. This is because in the absence of the Family and Community Services Case Worker record of interview of Jane there is no basis for assuming or inferring that prior to the JIRT, Jane participated in a thorough interview in which she was afforded the opportunity of describing all incidents. Not only is there no evidence of these matters, but worldly experience is that the Department's Case Workers, once informed of an allegation of touching in a sexual manner, and having determined to refer it for police action, may well have adopted the course of leaving the investigative process to Police. As above, noted, a Family and Community Services Case Worker was present on 15 August 2017 with police at the JIRT.

OTHER CONSIDERATIONS

1. It is common ground that the appellant is six foot two inches, about 188 centimetres. A significant part of the cross-examination of Jane and of the appellant went to whether or not the appellant would be able to position himself comfortably on the chaise extension of the couch whilst Jane was lying at its head. It appears that in the hearing the parties joined in there being significance in the issue of whether or not the appellant was asleep, because Jane had described the incident in terms of him being asleep and waking up claiming to have had a bad dream just after touching her.
2. The appellant's case was that he never fell asleep on the couch and that on occasions when he did fall asleep in the lounge room watching TV, it was on a mattress on the floor. In the end, Jane's evidence was that she had only assumed the appellant was asleep. That concession was, with respect, to state the obvious given that in her evidence and on the Crown case she was asleep at the time of the offending. In a state of sleep she could not have been aware of whether the appellant was himself awake or asleep. There is no significance in the contest, in my opinion.

OTHER MATTERS

1. At judgment at p 10 lines 44-47, his Honour recorded his finding that the appellant was not AN impressive witness and his evidence lacked a degree of reliability. He identified what he considered to be implausible evidence given by the appellant and then summarised his assessment of the appellant's evidence denying the alleged incidents in Counts 1 to 5 as not of persuasion such that on his acceptance of Jane's evidence, he was not dissuaded from the view that the Crown had proved its case in relation to Counts 1 and 2 beyond reasonable doubt, that I have concluded that the evidence of Jane does not satisfy me beyond reasonable doubt as to the guilt of the appellant in relation to Counts 1 and 2, considered separately, is sufficient to dispose of this appeal. No further substantial consideration of evidence is required.
2. Bearing the requirements of reasons stated in DL v R [2018] HCA 26 at para 32 and for completeness, I will deal briefly with what his Honour considered to be implausibilities in the appellant's evidence. His finding of implausibilities in the appellant's evidence would reasonably be expected to have influenced his assessment of the reliability of the appellant's evidence.
3. The appellant bore no burden of proof, but in my opinion, the points of concern identified by his Honour do not indicate implausibility. 1. The appellant overstated the position by denying that he never fell asleep on the couch. Response: The appellant described that if he was in the position depicted of him on the chaise, in the Crown case, his feet would hang over the end of the chaise and in addition to this there was usually washing on that part of the couch and it, or part of it, was futon-like and uncomfortable. That he could not position himself supine in the position the subject of the Crown case was a believable proposition and there was no evidence to the contrary. Jane's evidence conceded that fact. Whilst there might be an element of exaggeration in the appellant's absolute denial of ever nodding off while situate on the couch in front of the television, in my opinion that is a matter of small moment in the context of the Crown allegation being that he was asleep at the time of Count 2 occurring on the couch. 1. The appellant's evidence that all children from time to time slept in Sarah's bed. Response: This evidence did not in my opinion, as his Honour found, convey exaggeration or implausibility. It was not inconsistent with the evidence of Jane. It was not seriously challenged in cross-examination. 1. The appellant's evidence that he had no memory of being confronted by Sarah about an alleged assault after the last of the Count 3, 4 and 5 events. Response: His Honour's concern for implausibility inherently contemplates his acceptance of Sarah's evidence that the confrontation occurred. He considered Sarah's evidence to be corroborated by Jane's evidence, of her belief that the appellant was removed from the home by Sarah because of his touching Jane. Jane did not witness the confrontation. Her evidence does not amount to a true corroboration. His Honour found Sarah's evidence in relation to Counts 3, 4 and 5 to be inconsistent such that he was not satisfied beyond reasonable doubt. When confronted in 2014 by Sarah, Jane denied that the appellant had inappropriately touched her, and on the evidence she did not complain of the touching until 2017, years after the appellant had left the home. At the time of the confrontation, Sarah alleged there had been a substantial period of no intimacy in the cohabitation of the appellant and Sarah. His evidence was that he was asked to leave the home in circumstances of a dispute over his leaving a boat on the property. That explanation was not, on the whole of the evidence and in the circumstances of platonic cohabitation, wholly implausible.

ORDERS 1. Appeal allowed. 2. On Count 1 that between 1 April 2012 and 1 October 2012 did assault another person Jane and at the time of or immediately before or after the assault, committed an act of indecency on or in the presence of Jane being a person under the age of 16 years, s 61M(2) Crimes Act 1900; I find the appellant not guilty. 3. On Count 2 that between 1 October 2012 and 1 April 2013 did assault another person Jane and at the time of or immediately before or after the assault, committed an act of indecency on or in the presence of Jane being a person under the age of 16 years, s 61M(2) Crimes Act 1900; I find the appellant not guilty. 4. Convictions entered 27 July 2018 be set aside. 5. Orders of sentence made in the Local Court of New South Wales on 14 August 2018 be set aside. 6. I return the exhibits.

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: 15 March 2019