Stanford v R

Court of Criminal Appeal (NSW)|2018-10-12|Before: Walton J, Wilson J

Solicitors: Nyman Gibson Miralis Lawyers (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/228419 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 10 November 2016 Before: Her Honour Judge Payne File Number(s): 2015/228419

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was arraigned on an indictment that charged three offences of sexual intercourse with a child under the age of 10. The appellant entered a plea of not guilty to each count and a jury trial proceeded. The appellant was found guilty on the first and second counts, and not guilty on the third. The appellant raised two grounds of appeal against the convictions. First, that the trial judge erred in failing to give the jury a warning that the evidence of the complainant may have been unreliable pursuant to s 165 of the Evidence Act 1995; and, second, that the verdicts are unreasonable, or cannot be supported, having regard to the evidence. The appellant's submissions essentially focused on two aspects of the trial. The first was a number of inconsistencies in the various accounts of events given by the complainant. The second was the acquittal of the appellant on the third count, raising questions about the reliability of the complainant's evidence in general, and particularly with respect to the two counts on which the appellant was convicted. Per Simpson AJA (Walton J agreeing), upholding the appeal: Held at [49]-[65] (1) Where a verdict is said to be unreasonable or unavailable on the evidence the question which the Court must ask itself is whether it 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. In answering this question the Court must not disregard or discount the advantage enjoyed by the jury in having seen and heard the witnesses called at trial. However, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. M v The Queen (1994) 181 CLR 487 cited; Jones v The Queen (1997) 191 CLR 439 cited; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 cited; SKA v The Queen (2001) 243 CLR 400; [2011] HCA 13 cited (2) Where a person accused of multiple offences is convicted of one or more, but acquitted of another or others, the Court must determine whether there is a proper way to reconcile the verdicts. That assessment must be made in the light of the facts and circumstances of the particular case and is a test of logic and reasonableness. MacKenzie v The Queen (1996) 190 CLR 348 cited; Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 cited; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 cited. (3) The evidence lacked the degree of cogency necessary to sustain the convictions. On the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the two counts of which he was convicted. Per Wilson J, dissenting

Held at [78]-[83] (4) On the whole of the evidence any issue of doubt is resolved by the advantage enjoyed by the jury in seeing and hearing the witnesses called at trial. R v Baden-Clay (2016) 258 CLR 38; [2016] HCA 35 cited. (5) There was a rational basis for the difference in the verdicts returned by the jury. Factors leading to a heightened degree of caution regarding one count do not bespeak a wholesale rejection of the complainant as a credible witness. MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 cited; MacKenzie v The Queen (1996) 190 CLR 348 cited; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; MG v R [2017] NSWCCA 14.

Judgment

SIMPSON AJA: On 31 October 2016 in the District Court at Tamworth the appellant was arraigned on an indictment that charged three offences of sexual intercourse with a child under the age of 10. All offences were alleged to have been committed on one day between 17 January 2007 and 17 January 2008 at Walhallo in NSW. The appellant entered a plea of not guilty to each count and a jury trial proceeded.
On 7 November 2016 the jury returned its verdicts. It found the appellant guilty on the first and second counts, and not guilty on the third.
The appellant now appeals against the convictions. He has not sought leave to appeal against the sentences subsequently imposed.
The appellant raises two grounds of appeal against the convictions. The first asserts error in the directions given to the jury (specifically, failure to give a warning pursuant to s 165 of the Evidence Act 1995 that the evidence of the complainant might be unreliable). The second asserts that the verdicts are unreasonable or cannot be supported having regard to the evidence. The latter ground, raising questions of fact, requires the leave of the court (see Criminal Appeal Act 1912, s 5(1)(b)). The first, however, involving a question of law alone, is brought as of right (Criminal Appeal Act s 5(1)(a)). That being so, it will be convenient to continue to refer to the appellant as the appellant.

The Crown case

What follows is an account of the case presented by the Crown, and should not be taken as representing any findings of fact. There was, however, a good deal of background material that was not in dispute.
It is useful to commence by identifying some of the individuals involved. Many are members of an extended aboriginal family, some of whom lived in Moree, and others of whom lived in a township called Caroona. One part of Caroona is known as Walhallo.
Two generations of the extended family are involved. Relevant members of the older generation are Ms Ellie Porter (known as "Nan"), and her husband, whose first name does not appear but who was known as "Pop". Mr Porter died in September 2007. He had been ill for some time. He had a sister, Roma Stanford (nee Porter), who is the wife of the appellant. Jennifer Porter and Maria Slater (nee Porter) are daughters of Ms Ellie Porter and Mr Porter, and nieces of Ms Roma Stanford, and, by marriage, of the appellant.
Ms Ellie Porter and Mr Porter lived in Caroona, as did Jennifer Porter, and the appellant and his wife Roma Stanford. Maria Slater lived in Sullivan Place (commonly referred to as "Sullys") in Moree. The complainant was Maria Slater's foster daughter and lived with her at that address. She called Ms Slater "Mum". At times in her evidence she referred to Ms Slater as her "stepmother".
The complainant was born on 17 January 1999. She has a moderate intellectual disability. From about the age of 3 she lived in Moree with her foster mother, Maria Slater. She attended a primary school in Moree, and, later, the Moree Secondary College, where she was placed in a small class for children with a variety of disabilities.
The evidence does not disclose the distance between Moree and Caroona. There was evidence that Ms Slater at times travelled from Moree to Caroona to visit members of her family there. The Crown case was that on one of those occasions, when the complainant was 8 years old, she was left alone for a time in the care of the appellant, who then committed three acts of sexual intercourse with her.
On the Crown case the offences came to light in mid 2014, when the complainant was 15, and a student at the Moree Secondary College. An Aboriginal Learning Support Officer (Ms Brenda Richens) was conducting a class which might be described as a sex education class.
The complainant told Ms Richens that her uncle (who she thought was named Ron Smith or Porter) had made her take her clothes off while her mother and aunt were out. Ms Richens immediately terminated the conversation and took the complainant to a head teacher (Ms Meghan Baldwin). Ms Baldwin had a conversation with the complainant, as a result of which she reported the conversation to the principal of the school and to the Department of Family and Community Services ("FACS").
On 4 August 2014 the complainant took part in an interview with Detective Senior Constable Hinton, in the presence of an officer of FACS. She was then 15 years of age. The interview was video recorded and transcribed. Annexed to these reasons are lengthy verbatim extracts from the transcript of the interview.
At the commencement of the interview, and again, during it, the complainant gave her birthday as July 17. (It is, as indicated above, in fact January 17). At an early point in the interview, she acknowledged that she was there to talk about her "Uncle Ron" (answers to questions 42-45). When asked "what happened with Uncle Ron" she initially said that she did not know, but then said that he touched her on "the private parts" (which she identified as the vagina). She was asked where she was when this happened to which she replied "at Caroona". Caroona, she said, was near Tamworth. She said they were in Uncle Ron's house (answers to questions 76-79). When asked when "this happened", she initially said "a couple of weeks ago", then "… a long, long time ago (answers to questions 77-82).
Detailed analysis of the answers given by the complainant reveals that she gave a reasonably clear account of three discrete incidents (as reflected in the indictment). The first incident, (recorded substantially in the answers to questions 154-191), according to the complainant, took place in the lounge room of the appellant's home. The complainant was wearing shorts, underpants and a T-shirt. The appellant touched her vagina with his "whole hand", and inserted one finger into her vagina. "That" [it is not quite clear what the questioner intended, or the complainant understood, by the word "that"] lasted for about 2 minutes. The complainant told the appellant to stop it, and he threatened her that if she told anybody, he would do it again (answers to questions 193 and 195).
The second incident of which the complainant spoke emerges substantially from the answers to questions 228 to 285. It took place in the kitchen. The complainant said that the appellant closed the curtains and locked the doors, pulled down the complainant's pants (both shorts and underpants) (answers to questions 263, 265) and inserted two fingers (answer to question 278) into her vagina. (The complainant had earlier (answers to questions 85 and 86) spoken of the appellant closing the curtains and locking the doors, but had not then fixed this in the sequence of the events that she alleged).
These allegations were the subject, respectively, of counts one and two on the indictment, on each of which the appellant was convicted.
The complainant said that the appellant opened the curtains and unlocked the door when her mother (Ms Slater) came into the yard.
She was asked how many times her Uncle had touched her, to which she replied "two times" (answers to questions 251-153). However, she went on to give an account of a third incident.
The third incident of which the complainant spoke involved penile-vaginal penetration (answers to questions 297 and following). The complainant said that the appellant pulled his pants down, and inserted his penis a short way ("a little bit") into her vagina. In answer to some questions from the FACS officer, the complainant said that both she and the appellant were standing up, near the sink, but that no part of her body was touching the sink. This allegation was the subject of the third count on the indictment, of which the appellant was acquitted.
On 5 October 2015, by arrangement with police, the appellant attended the police station at Quirindi, where he was arrested. He received some legal advice not to participate in an interview. Police nevertheless, "in fairness …" outlined the allegations to him. The appellant denied each allegation.
In response to the allegation of penile-vaginal penetration he said: "Well, I've been almost impotent for ten years."
When asked in general terms if he wished to say anything else, the appellant replied: "I don't know nothing else about it."
He declined to make a hand written statement

The Crown case

The complainant was 17 at the time of giving evidence. Her evidence in chief was, pursuant to s 306S of the Criminal Procedure Act 1986, given by way of the recorded interview. She was briefly cross-examined. Inter alia, she said that she did not know whether Ms Slater ever left her at the appellant's house and could not remember ever staying with "Uncle Ron" by herself.
In answer to a direct question, she confirmed her allegation of penile-vaginal penetration of which she said she was sure.
Ms Richens gave evidence of the brief conversation she had had with the complainant. As Ms Richens described it, she was teaching the students of their entitlement to refuse physical approaches from others. When asked about the class, she said:: "We were talking about your body. 'It's your body and you say no', right. And that no one is to touch your body, other than, you know, yourself, and that, and you must, 'you say no', because we are talking with kids like, you know, and I always thought [the complainant], you know, in that sort of thing, vulnerable in that sort of way these kids are, you know."
She said that the complainant then said to her: "I have to tell you something." To which she replied: "Do you want to talk to me now?"
The complainant affirmed that she did, and Ms Richens took her to a "sensory room". She said that she asked the complainant what happened. The complainant replied: "My uncle Ron Smith, I think his name is Smith or Porter, when Mum and auntie went out, Uncle made me take my clothes off."
Ms Richens said that she then terminated the conversation and took the complainant to a head teacher, Meghan Baldwin. Ms Baldwin had a conversation with the complainant. At the conclusion of the conversation Ms Baldwin made a note of her recollection of what had passed between her and the complainant. She was permitted to read that document to the jury. It is necessary to set it out in full. The evidence Ms Baldwin gave was as follows: "'I said to [the complainant], 'Tell me about what happened', she said, 'Uncle Ron'. I said, 'Who's uncle Ron?' She said, 'Uncle Ron used to touch me years ago. I was little about 8 or 10'. I said 'What school did you go to?' She said, 'Moree Public'. I said, 'What uniform did you wear at the time?' She said, 'Blue and yellow'. When she said this I knew she was at Moree Public School. She said, 'He lived at Caroona. He would stay at our house in Sullys. He touched me in my private parts'. When she said Sullys I knew that it to be Sullivan Place, Moree where she lived. I said, 'What are private parts?' She said, 'Vagina. He showed me his penis. I said, no I don't like it'. It happened twice, he showed me his penis. I said, 'What was he wearing?' She said, 'A top, his pants were down'. I said, 'What were you wearing?' She said, 'Some of my clothes were off, my underpants and shorts. He closed the curtains and locked the door.' I said, 'At your house at Sullys?' She said, 'Yes it never happened before'. I said, 'What does twice mean?' She said, 'Two times'. I said, 'Is this how many times this happened?' She said, 'Yes, two times. I've never told anyone before today, except Brenda now and you.' I said, 'Do you see Uncle Ron anymore?' She said, 'We went to camp in Tamworth'. I said, 'The one I organised for you with Northcott at the end of last year?' She said, 'Yes'. Then we came back to Moree. We went to a funeral with Mum, then we went to Uncle Ron's house at Werris Creek. I talked to Uncle Ron, he's my best mate.' I said, 'How did you feel when you saw him?' She said, 'I felt sad that he did that to me'. I said, 'Why did you think of this today. It's good that you told me, what made you tell me today?' She said, 'Miss Lyn was telling us about our bodies and about how boys and girls make babies.' I said, 'Tell me what you know about that?' She said, 'The boy makes sperm in the girl'. I said, 'What part of the boy's body makes sperm?' She said, 'His penis'. I said, 'How does the sperm get in the girl?' She said, 'He puts his penis in her vagina'. I said, 'Is this what happened to you?' She said, 'No, he touched me with his fingers'. I said, 'Did he tell you or give you anything?' She said, 'No, but he told me if I told anyone he would do it again to me? So I never told anyone, he made me feel scared'. I said, 'And this happened when you were 8 or 10? Think about your body back then, did you have breasts and pubic hair or no breasts and pubic hair?' She said, 'No, not like now, none of that'. I said, 'Has this ever happened with anyone else?' She said, 'No, it never happened with anyone else'."
The complainant's foster mother, Ms Maria Slater, who gave evidence in the Crown case, said that at times she visited her sister (Jennifer Porter) at Walhallo, and, while there, visited the appellant and his wife Roma. On those occasions she took the complainant with her. She denied that there was any occasion when she left the complainant at the home of the appellant and his wife so that the complainant was left alone with the appellant.
In cross-examination she described the complainant as "a very clingy girl to me", who she could not let go. The complainant, she said, would not leave her at all. She said: "…Everywhere I went [the complainant] was always with me."
She recalled visiting the appellant and his wife when the complainant was about 7 to 10 years old, but said there was no occasion when the complainant was left with the appellant and his wife together, and no occasion when the complainant was left with the appellant alone. She was sure about that.
Ms Jennifer Porter also gave evidence in the Crown case, to similar effect. She recalled Ms Slater and the complainant coming to visit her at times, but could not recall any occasion when the complainant was at the appellant's home. She said the complainant "used to go everywhere with Maria".
In cross-examination she said that "wherever Maria went, [the complainant] went with her. She said: "She [Ms Slater] wouldn't let anyone watch [the complainant], she wouldn't let anyone watch her."

The defence case

The appellant gave evidence. To the allegation that he had digitally penetrated the complainant he said: "It never happened." He denied the allegation of penile-vaginal penetration.
He denied ever having been asked to look after the complainant by himself and said that, in the last 10 years, there had never been an occasion when that had happened. He said that he had never seen the complainant separately from Ms Slater.
He said he knew the name "Ron Smith" as that of a person who, he said, lived in Moree and who, so far as he could recall, he had never met. He thought that he was related to Ms Slater's side of the family.
In cross-examination it was put to him that the complainant had been taken to his house by Ms Slater and left there for a short time, while Ms Slater and Ms Roma Stanford visited Mr Porter. He denied that that had happened. He denied explicit suggestions put to him in terms of the allegations made by the complainant.
The appellant's wife, Ms Roma Stanford, also gave evidence. She recalled Ms Slater bringing the complainant to their home in Caroona but said "they'd be together all the time". She said they only called in briefly, on a few occasions. The following questions and answers as recorded in the transcript may be reproduced in full: "Q: Was there ever occasion when Maria bought [sic] [the complainant] around to your house and then you and Maria went out? A: Never. Q: Was there ever any occasion in the last 10 years when [the complainant] was left with Ron? A: Never, never, that would never happen because Maria did not like leaving [the complainant] with anybody. Q: Did Maria ever leave [the complainant] with you by yourself? A: Never. Q: To your knowledge did Maria ever leave [the complainant] with Jennifer by herself? A: Oh look, I, at the moment I can't remember but I don't think it would have been only if Maria had to, if there was something there like, someone died and that and Maria slipped around to see somebody, it would be for, it wouldn't be for long if it --- Q: But do you have any positive memory of that happening? A: No I don't. Q: So is it correct to say from your evidence that Maria and [the complainant] were generally together? A: Yes all the time.
She said she knew of a man called Ron Smith, who, she said, was a friend of Ms Slater's family and may have been related to them. The last she knew, he lived in Moree. She was asked if she had ever heard of him being called "Uncle Ron" to which she replied: "Oh a lot of kids called them uncles."
In cross-examination she agreed that, in Aboriginal communities, it was not uncommon for older males in an extended family to be referred to as "Unc" or "Uncle".
She also agreed that, in Aboriginal communities, it was not uncommon for children to be left for short periods of time in the care of extended family members. However, when it was directly put to her that there had been at least one occasion, when the complainant was about 8 years of age, in which she had been left by Ms Slater with the appellant for a few minutes while Ms Slater and Ms Stanford went to see Mr Porter, she said she did not think so. She said: "I don't, I'd be, Ron has never, ever had anything to do with [the complainant] by herself."
She said: "That wouldn't have happened because Maria would have wanted [the complainant] to be there with her - with her dad."

The appeal

The grounds of appeal are: "1. The trial judge erred in failing to give the jury a warning that the evidence of the complainant may have been unreliable pursuant to s 165 of the Evidence Act 1995. 2. The verdicts are unreasonable, or cannot be supported, having regard to the evidence."
It is convenient to commence with ground two.

Ground Two: Unreasonable verdict

The appellant's submissions in this respect essentially focused on two aspects of the trial. The first was a number of inconsistencies in the various accounts of events given by the complainant. I will come to these. The second was the acquittal of the appellant on the third count, raising questions about the reliability of the complainant's evidence in general, and particularly with respect to the two counts on which the appellant was convicted.
Before embarking on a consideration of the detail of the submissions, it is necessary to outline the principles of law applicable when a verdict is said to be unreasonable or unavailable on the evidence.
The test to be applied is well established, well rehearsed and well known. The starting point is the decision of the High Court in M v The Queen (1994) 181 CLR 487. It is worth repeating yet again what the High Court there said: "493. Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (internal citations omitted)
Their Honours, however, went on with some qualification of that principle. They said: "494. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (internal citation omitted)
These principles have been affirmed on many occasions since: for example, Jones v The Queen (1997) 191 CLR 439; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
It may therefore be seen that two competing considerations arise: regard that must be paid to the constitutional role of the jury in the determination of the guilt or otherwise of an accused person and the duty of an appellate court to make its own independent assessment of the evidence both as to its sufficiency and quality: Morris v The Queen (1987) 163 CLR 454 at 473, cited at [14] of SKA; MacKenzie v The Queen (1996) 190 CLR 348 at 365.
A particular line of authorities has developed in the application of those principles where the unreasonableness of the verdict is said to arise from inconsistency of verdicts - that is, where a person accused of multiple offences is convicted of one or more, but acquitted of another or others. In those circumstances the court must be astute to ascertain whether there is a proper way to reconcile the verdicts (MacKenzie at p 367); Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [8]. The test is one of logic and reasonableness: MacKenzie at p 366. That assessment must be made in the light of the facts and circumstances of the particular case: MFA at [34].
In Jones v The Queen (1997) 191 CLR 439 a jury convicted an accused person of two out of three counts on an indictment, but acquitted on one count. The Crown case in respect of each count depended on the evidence of the complainant. The High Court found no basis for thinking that the quality of her evidence was higher in respect of the counts that led to conviction than it was in respect of the count that resulted in acquittal. When that circumstance was combined with two other factors - a lengthy and unexplained delay by the complainant in making complaint, and the uncorroborated nature of the allegations - the High Court concluded that the convictions were (in the language that then prevailed) unsafe and unsatisfactory (at p 455).
As comprehensively explained by Spigelman CJ in Markuleski, the decision in Jones is not authority for a generalised proposition that a mix of verdicts in a trial where multiple offences have been charged is indicative of the unreasonableness of verdicts of guilty. In MFA, a submission that Markuleski was wrongly decided was rejected (at [32]). Where the evidence on all counts is that of a single witness, however, careful scrutiny of the surrounding circumstances is required.
In this case the two additional factors (delay and absence of corroboration) that, combined with the apparent rejection by the jury of the complainant's credibility in Jones, led the High Court to find the convictions unsafe and unsatisfactory are also present - requiring, therefore, the same careful scrutiny that the High Court said was required in that case (p 453).
There are features of the complainant's evidence that readily explain the verdict of not guilty on the third count. That was the count in which penile-vaginal penetration was alleged. The complainant's initial account to Ms Richens (brief and cut short as it was) made no mention of penile-vaginal penetration. Equally, it made no mention of digital penetration and could be seen to be inconsistent with her complaints as later articulated (to Ms Richens the complainant said that the appellant made her take her clothes off - she later said that, in the second incident, the appellant pulled her pants down). Perhaps more significantly, she expressly disavowed, to Ms Baldwin, penile penetration. Finally, the account she gave of the third incident is highly implausible. It was that while the two were standing in the kitchen, near but not touching the sink, the appellant (a grown man, and said in defence counsel's final address to be a large man) penetrated her vagina with his penis, she being an 8 year old girl at the time.
It is, therefore, scarcely to be wondered at that the jury did not accept the account of this offence given by the complainant in the interview, and affirmed by her in cross-examination.
The present question, however, is what, if any, impact the jury's rejection of the complainant's evidence in respect of this allegation ought to have on the assessment of her reliability in respect of the other two counts.
With considerable hesitation, I have come to the view that the evidence does not reach the high standard necessary for conviction. In coming to that view, I have been fully conscious of the advantage the jury had in observing both the complainant and the appellant, and of its constitutional role in the determination of guilt or otherwise of a criminal charge. I have been particularly conscious that while the complainant's intellectual disability may explain some of the hesitancies and inconsistencies in her accounts, it does not render her a witness unworthy of belief. I have paid particular attention to the injunction of the High Court in M that it is only where a jury's advantage is capable of resolving a doubt experienced by the court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. I have not reached that view.
For the reasons I gave in SKA v R [2009] NSWCCA 186, I have not watched the video recording of the complainant's interview. Particularly in circumstances where the appellant also gave evidence which was not video recorded, it seemed to me that to see one witness in video recording, and to read the evidence of another is potentially productive of unfairness to one or the other. The High Court did not find fault with that approach. SKA at [28]-[35], [116]-[117].
I am also conscious that there was no serious attack on the complainant's credibility in the sense of any suggestion of deliberate untruthfulness. So far as can be gauged from the transcript of the complainant's evidence she gave her evidence to the best of her ability. I mention also that, taken alone, the sequence of events up to the recording of the interview is suggestive of a spontaneous response to what she was being told by Ms Richens.
The evidence is that the complainant was prompted to disclosure by the discussion Ms Richens began in class, and she continued those disclosures to Ms Baldwin. However, her initial disclosure to Ms Richens included possible identification of another "Uncle Ron". Her disclosure to Ms Baldwin began by a clear assertion that the events had taken place at "Sullys" in Moree something she then confirmed in answer to a direct question by Ms Baldwin. It is not to be overlooked that, so far as there was any evidence of the existence of a "Ron Smith" it was that a person by that name lived in Moree, and that it was commonplace in Aboriginal communities for children to refer to men as "Uncle". (I have not overlooked the absence of any evidence, in cross-examination or otherwise, of Ms Slater of any association or connection with such a person).
There was also the consistent evidence, which cannot be discarded, of a lack of opportunity for the appellant to conduct himself as alleged. The evidence was also consistent that the complainant was a "clingy" child, attached to Ms Slater, and that Ms Slater did not leave her with other people.
In all of the circumstances I have come to the view that the evidence lacked the degree of cogency necessary to sustain the convictions. In my opinion, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the two counts of which he was convicted.
I would therefore uphold ground two, set aside the convictions, and enter a verdict of not guilty.
It is therefore unnecessary to address ground one.
The orders I propose are:
Leave to appeal against conviction granted;
Appeal allowed;
Verdicts of guilty set aside;
Verdicts of not guilty entered.
WALTON J: I agree with the orders proposed by Simpson AJA and the reasons for the judgment given by her Honour.
WILSON J: I have had the benefit of reading in draft the judgment of Simpson AJA. Her Honour has set out the factual circumstances of this matter, and the salient parts of the evidence of witnesses given at trial, and I gratefully refer to that summary. My conclusion with respect to ground 2 is, respectfully, different to that of her Honour. This is a brief statement of my reasons for the order I would make with respect to this ground, which is to grant leave to advance it, but dismiss it.
As noted by Simpson AJA, the appellant relies upon inconsistencies in the evidence of the complainant, together with the fact that the jury returned a verdict of not guilty with respect to count 3, to argue that the complainant's evidence was unreliable, and the guilty verdicts returned in relation to counts 1 and 2 thus unreasonable or unavailable on that evidence.
There were inconsistencies in the evidence of the complainant, and her evidence as to there having been an opportunity for the offences to have been committed was not supported by members of her former foster family. These are matters which give rise to a need for careful scrutiny of the complainant's evidence. The fact that the jury did not accept to the criminal standard of proof the allegations made by the complainant that grounded count 3 is another reason for close consideration of her evidence. This Court's obligation to conduct an independent assessment as to both the sufficiency and quality of the evidence must be discharged: Morris v The Queen (1987) 163 CLR 454 at 473; [1987] HCA 50, quoted in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14].
In common with Simpson AJA I did not view the recorded evidence of the complainant, following the approach adopted in SKA v R [2009] NSWCCA 186. To do so may lead to the complainant's evidence being given greater prominence and greater weight than that of other witnesses and, in particular, than that of the appellant, for whom there is no recording of the evidence.
Having given the evidence of the complainant and the evidence led at trial as a whole the careful scrutiny necessary to conduct an independent assessment of it, I do not conclude that the verdicts that were returned by the jury were not open.
It is important to bear in mind that the complainant had a significant level of intellectual disability, one which fell within the mild to moderate range for such a disability. This gives necessary context to evidentiary features that emerged at trial, and to the complainant's evidence more particularly. It also gives particular emphasis to the advantage that the jury enjoyed over the appellate court in observing both the complainant and other witnesses give evidence.
It is clear from an exchange between the Crown Prosecutor and the trial judge prior to the complainant being called to give evidence that her presentation and demeanour were unusual. Without demur from trial counsel for the appellant (who had, like the Crown Prosecutor, seen the recording of the interview with the complainant) the trial judge was told, […] from the moment [the jurors] see this witness and this witness is asked a question, they will think "This witness is not functioning at a normal level". By the time they have seen 30 seconds of the video of the interview with the complainant, they will be thinking, "This is a witness who is suffering from some level of disability". That's going to come out in the evidence.
In those circumstances, it may be reasonably concluded that the opportunity the jury had for observations of the witness as she was examined and cross-examined was highly significant.
Whilst there are issues with the complainant's evidence that could give rise to a doubt, for me, that doubt is resolved by the advantage enjoyed by the jury. The primacy of the jury's role in that regard was recently emphasised by the High Court in R v Baden-Clay (2016) 258 CLR 38; [2016] HCA 35 at [65] - [66], where it was said (with reference to Queensland legislation in similar terms to s 6(1) of the Criminal Appeal Act 1912 (NSW), It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] 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" (internal footnotes omitted).
The jury similarly enjoyed that advantage when assessing the evidence of Maria Slater, the complainant's former foster-mother; Ms Slater's sister, Jennifer Porter; and their aunt, Roma Stanford, the appellant's wife. Although neither Ms Slater nor Ms Porter gave evidence which was wholly favourable to the Crown case, each was called by the Crown, no doubt in compliance with its duty to call all witnesses "whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based": Whitehorn v The Queen (1983) 152 CLR 657, per Dawson J at 674. That duty extends to any witness other than one with respect to whom there is an identifiable basis to conclude that he or she is unreliable: see generally R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279.
In circumstances where Ms Slater, Ms Porter, and Mrs Stanford all had a continuing relationship with the appellant, and may have been regarded as partisan in their respective evidence, the demeanour of each would have been a critical feature in assessing the reliability of their vehement assertions that the complainant was never away from Ms Slater (other than when at school), and never at any stage alone with the appellant. This Court cannot replicate the jury's advantage in that regard.
All of the matters relied upon by the appellant in this Court to demonstrate the complainant's unreliability were before the jury, and carefully pointed out by trial counsel for the appellant in cross-examination, and in closing address. On the whole of the evidence, it was in my view open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt with respect to counts 1 and 2.
The differing verdicts do not cause me to alter that conclusion. There was a rational basis for the difference in the verdicts returned with respect to counts 1 and 2, and that returned against count 3, identified by Simpson AJA at [57]. I would respectfully add to that enumeration of relevant features what appears to have been a degree of uncertainty or even unknowing as to penetration. The extent of penile penetration alleged by the complainant was slight, described by her as "a little bit".
The jury's conclusion that count 3 had not been proved beyond reasonable doubt does not necessarily imply that the complainant was not believed in what she said about the incident in the kitchen. The factors noted at [57] and [16**], when coupled with her intellectual disability, could readily have led the jury to approach count 3 with a heightened degree of caution, that does not bespeak a wholesale rejection of the complainant as a credible witness: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], per Gleeson CJ, Hayne and Callinan J.
There being a proper and rational basis for the differing verdicts, the verdicts can logically and reasonably stand together in my opinion: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]; MG v R [2017] NSWCCA 14 at [88].
I would grant leave to the appellant to advance this ground, but it should be dismissed.
As I am the minority in that view, there is no utility in addressing ground 1 of the appeal.

ANNEXURE The transcript of the interview then records: "Q42: Can you tell me what we're here to talk about today? A: About my uncle. Q43: Your uncle? A: Yeah. Q44: Who's your uncle? A: Uncle Ron. Q45: Uncle Ron. Do you know Ron's last name? A: Um, no. Q46: No. Where does Uncle Ron live? A: In, um Quirindi. Q47: Quirindi. A: No, yeah, no Werris Creek. Q48: Werris Creek. A: Yeah. I don't know which one but. Q49: You're not sure, somewhere down there? A: Yeah. Q50: So it's Uncle Ron, do you know his other name? A: No. Q51: No. So what do you call him? A: Uncle Ron. Q52: Uncle Ron. A: Yeah. Q53: And how do you know Uncle Ron? A: Um, just mum, ah Nan's brother."

The complainant identified her foster mother as Maria Porter, Ellie Porter as her "Nan", "Uncle Ron" as "Nan's brother" (he is the husband of Mr Porter's sister) and Maria and Ellie Porter, as daughter and mother. She thought that "Uncle Ron" was a cousin of Maria Porter (Slater). (He is in fact her uncle.) Detective Hinton then asked: "Q66: ...What happened with Uncle Ron?" The complainant replied: "Um, he, he um, he um, he um, I don't know."
The following questions and answers are then recorded: "Q68: Is that one of those questions where you don't want to talk about it or is it a question where you don't know what happened? A: Oh yeah, he touched me on the private parts. Q69: He touched you on your private parts? A: Yeah. Q70: When you say private parts, what do you mean by private parts? A: Vagina. Q71: Vagina. So you said he touched you on your private parts, and you said that's your vagina, how many times did that happen? A: Um, two. Q72: Two times? A: Yeah. Q73: And where were you when this happened? A: At Caroona. Q74: At Caroona? A: Yeah. Q75: And where abouts is Caroona? A: Um, near um, near Tamworth. Q76: And where abouts at Caroona, were you in a house or a park or something else? A: No, a house. Q77: A house? A: Yeah. Q78: And whose house was that? A: His house. Q79: His house? A: Yeah. Q80: When did this happen? A: A couple of weeks ago. Q81: How long ago? A: A couple, no, um a long, long time ago. Q82: A long, a long time ago? A: Yeah. … Q84: Can you tell us everything that happened? A: Um, like he closed the curtains and stuff. Q85: He closed curtains. A: And he locked the um doors. Q86: He locked the doors. A: Then he did it to me. Q87: And then he did it? A: Yeah. Q88: And when you say he did it, what did he do? A: He pulled his pants down and … Q89: Pulled his pants down. A: And he showed his penis to me. Q90: Yes. A: Um, um, he touched me. Q91: Yeah. A: I forget. Q92: You forget? A: Yeah. Q93: Alright. So you said it happened a long, a long time ago? A: Yeah. Q94: Can you remember how old you were when it happened? A: 8. Q95: 8. A: Yeah. Q96: And how do you know you were 8? A: Um, I went to Moree Public School and I went um, I went to Moree Public School. Q97: So you were going to Moree Public School? A: Yeah. … Q102: And do you remember when you had your birthday when you were 8? A: July 17th. Q103: July 17th. So was this before your birthday or after your birthday or something else. A: After. After my birthday. Q104: After your birthday? A: Yeah. Q105: And was it before your ninth birthday or after your ninth birthday or something else? A: After the … um after my birthday we went down to Caroona. Q106: Which birthday was that? Was that your 8th birthday --- A: Yeah. Q107: ---or your ninth birthday or something else? A: After my 8th birthday. … Q121: …So when you went down there, where did you stay when you went down there? A: Um, we went to, um Mum's sister. Q122: And who's that? What's her name? A: Um, Jennifer. Q123: Do you know Jennifer's last name? A: Porter. … Q142: When did you go to Uncle Ron's place? A: Like in the afternoon, in the morning. Q143: Afternoons and mornings. … Q148: So tell me what happened once you got to Uncle Ron's? What did you do once you got there? A: Watched TV and stuff. Q149: Watched TV. A: Yeah. Q150: And what happened after that? A: Then he just did it to me. Q151: He did it? A: Yeah. Q152: Tell me all about what he did first? A: Um, like he was touching me first. Q153: Touching you first? A: Yeah. Q154: Where were you when he was touching you? A: In the lounge room. Q155: In the lounge room? A: Yeah. Q158: When he was touching you in the lounge room, where was your mum? A: Um … gone somewhere. Q157: She went somewhere? A: Yeah. Q158: So Mum left you there? A: Yeah. Q159: So when you said he was touching you in the lounge room, where was he touching you? A: Vagina. Q160: The vagina. A: Ah hmm. Q161: And was that on the inside of your clothes or the outside of your clothes or something else? A: In. Q162: Inside your clothes? A: Yeah. Q163: Can you tell me what you were wearing, can you remember what you were wearing? A: Shorts and a T-shirt. Q164: Shorts and a T-Shirt? A: Yeah. Q165: And were you wearing anything else? A: No, ah yeah, ah pants. Q166: Pants, what sort of pants? Do you mean underpants or long pants or something else? A: Yeah, no under. Q167: Underpants? A: Yeah. Q168: And what else? A: Um, that's all. Q169: That's all? A: Yeah. Q170: So when you said he touched you, did he touch the outside of your shorts or inside of your shorts or something else? A: Inside. Q171: Inside the shorts? A: Yeah. Q172: And was it inside your underpants or outside your underpants or something else? A: Inside. Q173: Inside? A: Yeah. Q174: And when you say he touched your vagina, did he touch the outside of your vagina or the inside or something else? A: Inside. A175: Inside. And when you say he touched the inside of your vagina, can you tell me what he did? A: Like a touching feeling. Q176: A touching feeling? A: Yeah. Q177: And what was touching you? A: His hand. Q178: His hand? A: Yeah. Q179: And what was he doing with his hand? A: He just touched it. A180: Just touch it? A: Yeah. Q181: Did he touch it with a whole hand or part of the hand or something else? A: The whole hand. Q182: The whole hand? A: Yeah. Q183: And you said it touched the inside of your vagina? A: Yeah. Q184: How much of his hand went inside the vagina? Was it a whole hand or a part of his hand or something else? A: A part. Q185: A part. And what part was that? A: The fingers. Q186: Fingers? A: Yeah. Q187: You said he touched the inside of your vagina with his fingers? A: Yeah. Q188: Was it one finger, two fingers or something else? A: One. Q189: One? A: Yeah. Q190: And how long did that go for? A: Um, about, about 2 minutes. Q191: About 2 minutes. And how did that make you feel? A: Bad. Q192: And why did you feel bad? A: Because he shouldn't do that to a girl. Q193: And did you say anything to him? A: Um, I said stop it. Q194: And what did he say? A: If you, if you tell anyone he will do it again to me. Q195: If you tell anyone, I'll do it again to you? A: Yeah. Q196: And did you say anything else? A: No. Q197: Did he say anything else? A: No. … Q199: No. So when that happened, was that at day time or night time or something else? A: Day. Q200: Day time? A: Yeah. Q201: And whereabouts in the house was it? A: First in the lounge room. … Q205: Yeah. And when this happened were you standing up, sitting down or something else? A: Standing up. Q206: And where were you standing up? A: In the kitchen. Q207: So this time where it's in the lounge room --- A: Yeah. Q207: --- where were you standing in the lounge room? A: Um, near the lounge. Q208: Near the lounge? A: Yeah. Q209: But after this one happened, what happened next? Can you tell me what happened next? A: That's all. Q210: That's all? A: Yeah. Q211: And you said he stuck his finger in your vagina for about 2 minutes? A: Yeah. Q212: And what made it stop? A: I moved his hand away. Q213: You moved his hand away. And what happened then? A: That's all then. Q214: That's all? A: Yeah. Q215: And what did you do then? A: Um, I don't know what happened after. … Q217: Did you stay at his house or did you leave or something else? A: I stayed for a little bit and then my mum come back then. … Q221: So this was the only time it happened? A: Yeah. Q222: When you first told us you said he touched you, you said he closed the curtains and locked the door? A: Yeah. Q223: Was that this time or another time or something else? A: That time. … Q225: When did he close the curtains? A: Um --- Q226: Was it before he touched you or after he touched you or something else? A: After. … Q228: And what did he do after he closed the curtains? A: Did it again to me. Q229: He did it again? A: Yeah. Q230: What did he do? A: Touched me. Q231: When you say he touched you, where did he touch you> A: The vagina. Q232: And was that the same day or a different day or something else? A: No, same day. … Q234: So you told us all about the first time, or this time, was that the first time when he touched you? A: Yeah. Q235: And did he touch you another time on that day? A: No. Q236: No. So this is the only time he touched you? A: Yeah. Q237: And you said he closed the curtains? A: Yeah. Q238: And was that before he touched you or after he touched you? A: After. Q239: After? A: Yeah. Q240: And you said he locked the door? A: Yeah. Q241: When did he lock the door? A: After he closed the curtains. Q242: After he closed the curtains? A: Yeah. Q243: And what happened after that? A: Um, then he did it again to me. Q244: He did it again. Can you tell me what he did again? A: Um, I don't know. Q245: You don't know? A: No. … Q248: So when your mum came, was the curtains open when your mum came back? A: Yeah. Q249: And was the door unlocked when your mum came back? A: Yeah. Q250: So you said he closed the curtains and locked the door, when did he open the curtains? A: When my mum um, mum into the um, into the yard. Q251: Yeah. And when did he unlock the door? A: When he knock on the doors. Q252: So you told us all about this time, how many times has your uncle Ron touched you? A: Two times. … Q254: Can you tell us when the second time was? A: When he closed the door and closed the door [sic]. Q255: He closed the door? A: Yeah. Q256: And what happened after he closed the door? A: He touched me. … Q258: So when you said he closed the door, was that after the first time he touched you? A: Yeah. Q259: And then you said he closed the door? A: Yeah. Q260: And he touched you again? A: Yeah. Q261: Can you tell us what happened that time? A: Um, he touched my vagina again. Q262: He touched your vagina again? A: Yeah. Q263: And when you say he touched your vagina again, was that on the inside of your clothes or the outside of your clothes or something else. A: He pulled the pants down. Q264: He pulled your pants down? A: Yeah. Q265: So when you say he pulled your pants down, what pants did he pull down? A: My undies and trousers. … Q267: Can you tell me what you wearing then? A: Um, trousers and shirt again. … Q275: And was that, when he touched the inside of your vagina with his hand was that all of his hand or a part of his hand or something else? A: Part, a part. Q276: A part. Which part was that? A: Fingers. … Q278: And was that one finger or two fingers or something else. A: Two. … Q280: And when you say you've got two fingers in your vagina, how did you feel? A: Sad. … Q283: So you said there was two times? A: Yeah. Q284: You told us the first time was in the lounge room? A: Yeah. Q285: Where was the second time? A: In the kitchen. … Q287: And where was your mum then? A: I'm pretty sure went to my pop's house. … Q296: And you said he pulled your pants down? A: Yeah. Q297: And what else happened? A: He pulled his pants down. … Q309: He touched your vagina. What with? A: With his penis. … Q311: And was his penis hard or was it soft or something else? A: Um, hard. … Q313: And you said he touched your vagina with your [sic] penis? A: Yeah. Q314: Did he touch the outside or the inside of your vagina with your [sic] penis or something else? A: In. Q315: And when you say he put his penis in, did it go in a long way or a short way or something else? A: Short. Q316: …And when I say short, how far do you think short is? Is that right in or not right in or something else? A: Um, only a little bit. … Q318: And how did that feel? A: Um, wrong. … Q320: And did you feel anything? A: No. Q321: What did it feel like? A: Bad. Q322: Bad. And when he did that, he did he do it for a long time or a short time or something else? A: A short time. Q323: A short time. And when he did it for a short time, do you know what made it stop? A: Um, he take it out. … [The Officer of the Department of Family and Community Services then asked some questions, recorded as follows]: Q375: I'm just wondering, you said when his penis went inside and you were in his kitchen, were you standing up or laying down or something else? A: Standing up. Q376: Okay. And where were you standing up? What part of the kitchen were you standing in? A: Near the sink. Q377: And was Uncle Ron standing up or laying down or something else? A: Standing up. … Q381: Where were you in the kitchen, sorry? A: Sink. Q382: Near the sink? A: Yeah. Q383: So was any of your body touching the sink? A: No. [Detective Hinton resumed the questioning] Q428: …And has anything like this happened with Uncle Ron since then? A: No. Q429: And has it happened with anyone else? A: No." 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: 07 November 2018

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