TDP v Attorney General of New South Wales

Supreme Court of NSW|2022-09-02|Before: Button J, Adams J

Introduction

This is an application for an inquiry to be conducted into a conviction entered in the District Court of New South Wales against TDP (a pseudonym adopted to protect the identity of a complainant of child sexual assault; the applicant), brought pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act).
Many years ago, the applicant appeared for himself in an appeal against conviction in the Court of Criminal Appeal, and mounted a ground of appeal that was similar but not identical to this application: see TDP v R; R v TDP [2013] NSWCCA 303.
He has also had a previous application pursuant to the Act dismissed: see the judgment of N Adams J in Application by TDP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 1698. Again, that was founded upon arguments that are similar but not identical to those placed before me.
In those circumstances, I do not accept the submission of the Attorney General of New South Wales that I should refuse to deal with the matter, pursuant to s 79 of the Act. I believe that the current submissions of the applicant should be dealt with on their merits. Having said that, for the following reasons, I shall deal with the application quite concisely.
First, as I have said, the Court of Criminal Appeal and a judge of this Court have rejected similar arguments.
Secondly, the many other offences of child sexual assault against the same complainant of which the applicant was convicted are not placed in dispute before me. The conviction under discussion is one of many for grave sexual offending against the same young girl. That means that there is no reputational damage arising to the applicant from the particular disputed conviction.
Thirdly, the applicant received a sentence of imprisonment for the disputed conviction that was wholly concurrent with the sentence for a number of other, undisputed convictions for offences against the same complainant. In other words, even if the disputed conviction were ultimately quashed, it would make no difference to the structure of the sentence imposed upon the applicant.

Background

The applicant stood trial between 7 and 15 May 2012 in the District Court of New South Wales sitting at Armidale before Judge Toner SC and a jury. The indictment contained 11 counts, all of them alleging child sexual assault against his stepdaughter, whom I shall call Clarissa. Counts 6, 8, 9, 10, and 11 were also expressed in the alternative. The earliest offending was alleged to have occurred after 1 August 2007, and the last offending was alleged to have occurred before 17 December 2010. Clarissa was born in April 1994, which means that at the time of the earliest alleged offending she was aged 13 years and 4 months, and at the time of the latest alleged offending she was aged 16 years and 8 months.
At the conclusion of the trial, the jury returned verdicts of guilty on all counts.
The disputed conviction is on count 8. It alleged that "Between 31 October 2010 and 16 December 2010 near Armidale in the State of New South Wales [the applicant] did have sexual intercourse with [Clarissa] without her consent, knowing she was not consenting, [Clarissa] being then under his authority." (I shall not trouble to recount the alternative, upon which no verdict was taken.)
Judge Toner imposed sentence on 3 August 2012. In remarks on sentence, his Honour described the disputed conviction as follows: "I turn now to Count 8, an aggravated sexual assault contrary to s 61J. Sometime after [that is, count 7, which was said to have occurred on or about 31 October 2010 after a sleepover party at the home of a friend of the complainant], the complainant went with the offender to Armidale to visit her Pop, the offender's stepfather. On the way the offender pulled off the road. It was daylight and he put towels on the windows of the Ute so nobody could see in. The offender got into the back seat and took off his pants. The complainant was in her school uniform. She got in the back, took her stockings, pants and skirt off and got on top of him with her legs around his. The offender then had penile/vaginal intercourse with her. The offender got a phone call from the complainant's mother and he told her they were just coming into Armidale. During the intercourse the offender told the complainant to talk about what she had done with [Samantha] and so she made something up for him. Afterwards she wiped herself with a towel, dressed and they continued on to Armidale."
As I have said, the applicant was sentenced to imprisonment for count 8. The head sentence was imprisonment for 7 years to commence on 15 May 2015 and expire on 14 May 2022, with a non-parole period of 4 years, to expire on 14 May 2019. That sentence was of the same length, and completely concurrent with, the sentences imposed for counts 6, 9, 10, and 11.
The total sentence imposed upon the applicant for all offences was a head sentence of imprisonment for 10 years, to commence on 15 May 2012 and expire on 14 May 2022, with a non-parole period of 7 years, to expire on 14 May 2019.

Conspectus of material placed before me by both parties relating to count 8

Because of the way in which the disputed conviction is impugned by the applicant, it is necessary to set out in a little detail a summary of the evidence in the trial, with a very tight focus on that pertaining to count 8.
The following is a synthesis of the materials placed before me by the applicant and the Attorney General.

Recorded interview of complainant

On 23 February 2011, the complainant participated in a recorded interview with police. With respect to the timing of what became count 8, the following was said: "Complainant A426: …It happened, it happened definitely not near Christmas. Detective Taber Q427: Ok so you think this time happened before like October last year? Complainant A427: Yeah."

Examination-in-chief of complainant

The complainant gave evidence about count 8 between page 35 line 23 of the trial transcript (TT 35.23) and TT 37.22.
In summary, she recalled a time when she and the applicant went to visit the stepfather of the applicant in Armidale. That was in answer to a question that posited the incident as being "after this", a reference to a sleepover that was connected with the commission of count 7, and which could be dated to the last days of October 2010.
They travelled in a motor vehicle owned by the applicant. She described it as being around winter but "it wasn't in winter I don't think". She gave evidence that it was after school hours, that she was still in her school uniform, and that she was wearing stockings, from which she inferred that it was still "a little bit fresh".
She described the applicant stopping the motor vehicle at a location at or near the "turnoff to go to Armidale". The two of them got in the back of the vehicle, and he blocked the windows with towels. Thereafter, he subjected her to penile/vaginal intercourse. Whilst that was occurring, her mother rang the mobile phone of the applicant, who took the call.
During the intercourse, the applicant asked the complainant to describe sexual contact that she had purportedly had with a friend, whom I shall call Samantha, in order to increase his arousal. In fact, there had been no such sexual contact between the two young girls.
The complainant did not want to have sexual intercourse, but complied because she was afraid of the applicant.
The sexual intercourse came to an end, the complainant wiped herself with a towel, they both dressed, they continued to Armidale, and they visited the stepfather of the applicant.
In her evidence-in-chief, the complainant did not go further in seeking to ascribe a date or date range to the offending underpinning count 8.
Having said that, the evidence from the complainant that the applicant had asked her to describe purported sexual contact with Samantha played a role in dating the allegation. That is because there was firm evidence from the complainant that she had not met Samantha until 30 October 2010, when they had both been guests at a teenage sleepover. Evidence was given regarding the precise date of this sleepover. And it was established by the jury delivering a verdict of guilty on count 7 (leading to a conviction which is not disputed in this application) that the applicant committed an indecent assault upon the complainant in the hours after the sleepover in question. That is because count 7 was averred to have occurred "on or about 31 October 2010".
At TT 30.47 to TT 31.6, the complainant gave the following evidence regarding her first meeting with Samantha: "Q. Do you remember going to a friend's party? A. Yes, [Julie], she's a friend of mine, I went - Q. School mate or just a friend? A. Yeah school mate and we went to her house for her 16th or 17th birthday and a girl named [Samantha] was there and - Q. Was [Samantha] someone that you had known before that night? A. Oh not long no, she was only new to our school. She was Brazilian and she hang [sic] out with us and that.
The complainant also gave evidence that during the indecent assault forming the substance of count 7, the applicant had asked about the complainant's conduct with Samantha: at TT 31.36-40.

Cross-examination and re-examination of the complainant about count 8.

The cross-examination of the complainant by defence counsel with regard to the disputed conviction commences at TT 92.11 and concludes at TT 97.21.
In summary, the complainant said that it was "around winter, sometime, I still had stockings on".
As for the year in which it occurred, she was taken to her recorded interview with police of 23 February 2011. She agreed that she had told them that it was "maybe last year, early last year or the year before". She agreed that that must mean that it had occurred either in early 2010 or 2009.
She was taken through the details of the allegation again: that they had travelled in a particular motor vehicle belonging to the applicant; that they went "the Bundarra way" to Armidale; that it was after school hours and she was in her school uniform; that it was "in broad daylight"; that the vehicle was stopped at a roadside parking bay; and that the applicant blocked the windows with towels.
Defence counsel suggested to her that there was a time when the two of them went to visit "pop but [they] didn't stop anywhere on the way" (TT 94.18-19). The complainant rejected it, saying, "that is false" (TT 94.20).
As for the friend Samantha, she had been a new girl at the school. She had been at the school when a "social" had taken place. The complainant also agreed that, in her recorded interview, she had agreed with the proposition of the police that the request of the applicant that she talk about purported sexual contact with Samantha meant that this offence "had to have happened after October 2010" (TT 96.08). Despite some uncertainty at the time of the interview, she confirmed in cross-examination that the applicant had indeed asked her to speak about Samantha in sexual terms.
The following further exchange occurred in cross-examination, at TT 96.33-39: "Q. Right. And now you say do you that you remember that he did in fact ask you about [Samantha]? A. Yes Q. Even though you think that that occurred prior to October 2010? A. It would have happened after I had met [Samantha], because he told me to talk about [Samantha] while we were in the back of the [car].
She agreed that, at the time of the interview in February 2011, she had answered in the affirmative to the question "so you think this time happened before like, October last year" (TT 96.41-42).
In re-examination, the complainant gave evidence that she had "a distinct memory" of the applicant asking her to talk about what she had purportedly done with Samantha, on the occasion underpinning count 8 (TT 112.28).

Evidence-in-chief of the applicant about count 8

The applicant gave evidence about the disputed conviction between TT 329.15 and TT 330.20.
He agreed that there was a time when he went on a trip by car to visit his stepfather in Armidale, and that he took the complainant.
He said that "that was around about, probably a couple of weeks before he stayed at our house, so around about August in 2009, 2010. 2010."
He agreed that they left for the trip to Armidale after school and on a school day. He was driving the particular vehicle alleged by the complainant. They took the Bundarra route.
They did not stop at any parking area near the Armidale turnoff, and they certainly did not have sexual intercourse. The visit was concluded, and they returned home.

Cross-examination of applicant about count 8

The relevant cross-examination of the applicant is between TT 386.03 and TT 388.30.
The applicant agreed that he and the complainant travelled alone to visit his stepfather. They left at about 3:30pm. The time of year was "sort of between warm and cold, I'm not sure".
In answer to the question "just after October and the sleepover party, wasn't it?", the applicant replied "Possibly yes" (TT 386.38). He agreed that the complainant was in her school uniform, and he had picked her up straight after school. He denied that he stopped the vehicle, that he sexually assaulted the complainant, and that he asked her to talk about Samantha. He agreed that a phone call was received from the mother of the complainant, but said that it was whilst they were driving.
There was no relevant re-examination.

Events in proceedings on sentence

According to the remarks on sentence, defence counsel tendered a report from a psychologist who had been qualified by the defence legal team. This psychological report was not put before me on this application, but portions of it are relevantly extracted in the judgment of the Court of Criminal Appeal, which was placed before me. That report was dated 15 July 2012; that is, after the return of the verdicts of guilty.
In it, admissions were noted by the psychologist, importantly: "…[the applicant] indicated that it was not that he was attracted to younger people, but that he was specifically attracted to his stepdaughter. … He informed me that he believed his stepdaughter was a willing participant in the sexual contact and it was his perception that she wanted to engage in this behaviour with him given that she "never said no". I informed [the applicant] that consent also referred to the fact that even if a child appears to consent by not saying no to sexual behaviour this is arbitrary, given that children are not cognitively sophisticated enough to make adult-like decisions about engaging in sexual behaviour. He said "I was aware of that but I didn't think about it". … [The applicant] advised that he had developed what he perceived to be an intimate bond with his stepdaughter and felt that he could always talk to her and had a good relationship with her. He noted that this led to sexual behaviour which continued for three years and which he apparently believed she was a willing participant in. Indeed [the applicant] indicated that he perceived his relationship with the victim as that of a friend rather than a father and he reported to me that he did not perceive her as his daughter. He indicated that he felt "love" for the victim and that the offences were engaged in out of a sense of intimacy rather than in order to achieve sexual gratification. He said that the offending behaviour included oral, vaginal and anal sexual intercourse and it seems that he used the relationship with his stepdaughter in order to groom her into different sexual acts, by removing her from her mother and taking her to hotels or remote areas, alone where she could not seek help. [The applicant] advised me that he felt that the lack of emotional reciprocation that he received from his father may have impacted the offending behaviour, given that he had a "confusion about being close to others" and how to display love."
As can be seen above, the psychologist recounted an interview with the applicant in which he admitted his guilt of having sexual contact with his stepdaughter when she was under the relevant age of consent. The psychological report bespeaks no differentiation on the part of the applicant. By that I mean, it is not as if the applicant accepted his guilt of some counts and denied his guilt of others; in particular, his guilt of count 8.

Grounds

In his application, the applicant sets out the following grounds: "Ground 1. The Office of Public Prosecutions contravened section 16, subsection (1), (g) of the Criminal Procedure ACT 1986, when presenting the one and only indictment ever presented to the applicant, Ground 2. The NSW Police withheld alibi evidence, for an offence convicted on, dated between 31st October 2010 and 16th December 2010. Ground 3. A miscarriage of justice occurred, being withheld evidence, which shows the applicant was not at the time and place of the offence dated between 31st October 2010 and 16th December 2010."

Submissions

The following summary is derived from both the original application of 23 August 2021, and also the written submissions in reply of the applicant of 20 January 2022.
As for ground 1, the proposition is that s 16 of the Criminal Procedure Act 1986 (NSW) was contravened, as follows.
Count 8 was alleged to have occurred between 31 October 2010 and 16 December 2010. And yet, in her recorded interview of 23 February 2011, the applicant had answered in the affirmative to the question "So you think this time happened before like, October last year?". And that affirmation had been emphasised by defence counsel in cross-examination by way of his question at TT 96.37, and its answer, quoted above.
It was said that this disjunction between what the complainant had said in her recorded interview and the dates in the indictment rendered that count "invalid".
In fact, it is asserted, time - pursuant to the dates specified on the indictment - was of the essence, and the Crown was and is to be strictly held to proof that the offence occurred between the two averred dates.
Nothing that occurred at trial "validated" or otherwise solved this assertedly intractable problem for the Crown.
As for ground 2, the submission was that the New South Wales police had withheld evidence that would have established an alibi for count 8.
The submission was that, in failing to provide the defence legal team with all of the call charge records (CCRs) regarding his mobile phone in the possession of the police pertaining to the period delineated by the dates in count 8, and in providing only the records that pertained to 30 and 31 October 2010, the police had withheld exculpatory evidence from the applicant.
As well as that, the police had seized from the former wife of the applicant a copy of his diary or calendar that showed his commitments throughout 2010, including between 31 October 2010 and 16 December 2010. Again, only a small portion of it relating to April 2009 had been served upon the defence legal team.
To the extent that, during the trial, the Crown relied upon other CCRs to show that there was a surprising degree of phone contact between the applicant and his stepdaughter, that demonstrates the general cogency of such evidence.
As for ground 3, it was submitted that evidence, including maps, from "an expert in electronics" establishes that the now available CCRs show that on no date and at no time between the dates in count 8 could the applicant have received a telephone call from the mother of the complainant at the location at which the offence was said to have been committed. In short, that crucial feature of the allegation has been disproven, or at the least one must experience a reasonable doubt about it.

Determination

In my opinion, ground 1 has no merit, for the following reasons.
First, I accept that it was the case that it was incumbent upon the Crown to prove that count 8 had occurred between 31 October 2010 and 16 December 2010. But nothing had occurred in the trial to require greater specificity between those dates: see generally R v Westerman (1991) 55 A Crim R 353; Scott v R [2020] NSWCCA 81; Hamilton v DPP [2020] NSWSC 1745. And it is noteworthy that there is nothing to suggest that defence counsel at trial submitted that greater chronological specificity was required, whether as a matter of fairness, or for any other reason.
Secondly, the origins of s 16 of the Criminal Procedure Act are back in the mists of time, though they certainly predate the commencement of the Crimes Act 1900 (NSW), and I believe that they are part of the general reaction against excessive formalism in the criminal law that occurred in England and Wales, and New South Wales in the 19th century.
But the point is that the section is facilitative not prohibitive, in the sense that, unless time is otherwise of the essence, an indictment does not inherently give rise to such a requirement. But as I have said, a particular time and date - so long as it was between the two pleaded dates - did not become of the essence for any reason in this trial.
Thirdly, the combined effect of the evidence of the complainant and the applicant was as follows. They did indeed travel alone to Armidale by motor vehicle, in order to visit the stepfather of the applicant. And that could indeed very well have been after "October and the sleepover party", on the evidence of the applicant himself. And there was indeed a telephone call from the mother of the complainant received at some stage during the journey. Furthermore, there was separate powerful evidence that the sleepover had occurred at the very end of October 2010.
In other words, the occasion giving rise to the opportunity for the commission of the offence between the dates pleaded in the count on analysis was not denied by the applicant; the question was merely whether the Crown could prove beyond reasonable doubt that the offence had been committed.
Fourthly and finally, it is quite true that, in her recorded interview of February 2011, the complainant agreed with a somewhat nebulous question to the effect that the offence in count 8 occurred before the date parameters in count 8. But that is of no great moment: it was incumbent upon the jury to be satisfied on all of the evidence that the offence occurred during the pleaded time. And it is not uncommon for witnesses, especially young witnesses, to express a degree of reticence or inconsistency about dates and times. Certainly, on all of the evidence that I have recounted - not least that of the applicant - one was well able to be satisfied that the trip by motor vehicle to visit the stepfather of the applicant occurred after 31 October 2010; in other words, in her recorded interview, the complainant was simply mistaken.
In short, taken as a whole - and bearing in mind not least the evidence of the applicant himself, the evidence about when it was that the complainant first became friendly with Samantha, and the established date of the sleepover - I regard the question and answer in the recorded interview of the complainant upon which the applicant places so much weight for the purposes of ground 1 as having little probative value.
Turning now to ground 2, material placed before me well establishes to my mind that the defence legal team was aware of the availability of all of the CCRs of the mobile phone of the applicant. I refer to paragraph 5 of the statement of Senior Constable Taber of 24 April 2012 (contained in Annexure A of the applicant's current application), which one can readily infer was part of the prosecution brief served upon the defence legal team. And speaking more generally, one would expect a legal team defending an accused person in the circumstances to assume that the police had obtained without difficulty all such records in any event.
Separately, the CCRs now placed before me by the Attorney General in fact show that there were a number of occasions between the dates in count 8 when, after school hours, a call was received by the mobile phone of the applicant from a phone associated with the mother of the complainant. Far from detracting from proof of the disputed count, that material goes some way to supporting it.
Separately again, the calendar of the applicant has negligible probative value in demonstrating that the offence did not occur between the pleaded dates. That is not only because its contents are intractably neutral in terms of ruling out directly or indirectly the opportunity for the commission of the offence between the pleaded dates. It is also because, as I have shown, the applicant himself in sworn evidence agreed that there was such a car trip, and it could have been at the relevant time.
Turning now to ground 3, the applicant relies upon CCRs, combined with the typewritten note of an asserted expert, to assert that the mobile tower locations, to which his mobile phone was connecting at the various times when it received calls from a telephone number associated with the mother of the complainant, are inconsistent with him being at the Armidale turn off parking bay, when the call of which the complainant gave evidence was received from the mother of the complainant.
But, respectfully, the note relied upon, featuring as it does nothing as to the training, study, or experience of its author, possesses very little probative value in terms of ruling out, or even raising a reasonable doubt about, the possibility of such a call being received at the alleged location between the dates pleaded in count 8.

Overarching matter powerfully adverse to application

In short, as can be seen from my pithy discussion above, none of the grounds nor submissions in support thereof, whether individually or in their combined effect, lead me to experience "a doubt or question" as to the applicant's guilt: see the central test in s 79(2) of the Act.
And in any event, as I have shown, for over ten years there has existed compelling evidence that the applicant was guilty of all of the counts of which he was found guilty, including count 8. And that evidence was tendered for the applicant; by his counsel; emanated from an expert witness qualified by his own legal team; and came from his own mouth. Respectfully, the current assertions of the applicant to the contrary are devoid of probative value.
Inevitably, that evidence plays a decisive role in my dismissal of the application.

Conclusion

For all of those reasons, I decline to order an inquiry, or take any other step pursuant to the Act, other than dismissing this application. ***** 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: 08 September 2022

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