Thornton v R

Court of Criminal Appeal (NSW)|2016-11-15|Before: Ward JA, Campbell J, Adams J

Judgment

WARD JA: The appellant, Robert John Thornton, was found guilty on 9 April 2015 of two counts of aggravated indecency contrary to s 61M(2) of the Crimes Act 1900 (NSW), following a judge alone trial in the District Court. He was found not guilty of one count of attempted sexual intercourse with a person under 10 (contrary to s 66B of the Crimes Act). He had pleaded not guilty to each of the charges. The complainant (M) was the same for all counts.

Background

M was born in March 2004. Her mother (N) is the appellant's first cousin. The appellant was about 10 years older than N. When N was 16, and still in high school, the appellant and N commenced a sexual relationship that continued off and on until she was around 28 (ceasing when the appellant was arrested in January 2010 on charges of sexual misconduct with his daughter, H - see [14] below).
N met her first husband (DP) at the appellant's wedding to MB. In 2000, N moved in with DP in Londonderry. Living nearby in Londonderry at the time were the appellant and MB. N was in contact with the appellant and his wife while the respective couples were living in Londonderry.
N separated from DP in 2005, when M was a baby. N moved back (with M) to live first with her mother and then with her father. From about the time that M was two years old, M had nothing to do with DP. According to N, shortly prior to M's second birthday, DP disputed that he was M's biological father (T 39.2). It is relevant to note, particularly in light of the tendency evidence adduced at the trial, that the appellant believes himself to be M's biological father (see his written submissions on this appeal at [5]). In his electronically recorded interview with the police in 2013 (ERISP), which was admitted into evidence at the trial, the appellant stated that technically he was the biological father of M and that was how he knew her (Q/A 12-13). He said that he was in a "full on" sexual relationship with N casually over a 10 to 11 year period and that DP had a DNA test done in relation to M when he and N got divorced and the result was that DP was not the father and that the father must be a very close relative. M did not know that the appellant was her father or that there was a possibility that he was her father (Q/A 42-43).
In October 2005, the appellant and MB separated (according to the Agreed Facts tendered on the sentencing of the appellant for sexual offences concerning H - which were admitted as tendency evidence at the trial concerning M - "H Agreed Facts").
N met P in 2007. She was staying with her mother in Mascot at the time (T 40.2). She then moved to her father's house in Riverstone. Her relationship with P continued while she was living there (T 40). N's evidence was that M was with her some days but most days she was with N's mother (W) (T 40). This was because, on her own evidence, N was "too busy partying", taking drugs ("anything really from speed, cocaine, ecstasy pills"), going out and getting drunk (T 40/41). P moved in with N for a while at Riverstone. According to N, while she was at Riverstone, she saw the appellant a couple of times and he met P; the appellant and P formed a bond; and they would "always get together and have a couple of drinks late at night, stuff like that" (T 41).
In 2007, just before she fell pregnant with her second child (D), N and P moved with M to a house at Londonderry (which N described as an old shack or horse stable turned into a house) owned by P's father. D was born in September 2007. N said that she stopped using drugs after she fell pregnant with D but starting using drugs again on occasions after his birth (though she said less than before).
When M was roughly four years of age (so around 2008), there was a period of about 12 months when N did not allow her mother W to see the children. W also remembered a conversation with M (before the 12 month period when she was not allowed to see the children) when M was about four and was having a bath and M asked if babies grow in your bottom. W got N and asked M to repeat the question to her mother. W said N said to her something like "Until she's old enough to say who doing what to her I can't do anything". W said that it was at P's direction that she was not allowed to see the children for that 12 month period (T 92).
The timeline of events from around 2009 is somewhat confused on the evidence. As it assumes no or little importance, having regard to the challenges now made to the appellant's convictions, it is necessary to set out the evidence in some detail.
The first point to note is that, at some time (N did not remember when), the social relationship between N, P and the appellant became a sexual relationship in which the three engaged together in sexual activity. N said the sexual activity always involved P (as well as the appellant) and that it took place in her bedroom at Londonderry. N said that during the course of the sexual relationship between the three of them she did not watch pornography together with P and the appellant. She did watch pornography with P in her bedroom when the children were not around, either in the form of DVDs or streamed online. N said they probably had about four DVDs, which she threw out when P died in 2012 (T 56; 58; see [38] below).
N's evidence in relation to the sexual relationship was broadly confirmed by the appellant. In his ERISP, the appellant said that he, P and N "had threesomes all the time" (Q/A 38-41). He said that he had watched pornography movies in the N/P household; that he had streamed porn on the computer when N and P were there; and that that happened very rarely in the lounge room area when the kids were asleep upstairs. He also described the sites they looked at (Q/A 235-251). Asked whether he ever watched any pornography movies or DVDs, the appellant said it was "probably like once" and that it was generally internet stuff. He also said, "it was generally the night would start off drinking, then doing drugs, whatever we wanted to do ... And then end up being an orgy" (Q/A 252-256).
The second point to note is that (again according to the H Agreed Facts), on sentence in relation to the sexual offending by the appellant of his daughter H in March 2009, H told her grandmother that the appellant had been touching her and had been getting in and out of her bed when she and her brother stayed with him on access visits. H spoke to police and disclosed that at the end of November 2008, when she had just turned seven and when she and her brother were in the care of the appellant, the appellant rubbed her vaginal area before removing his pants and holding his penis; that he rubbed his penis on H's upper legs and vagina; and that he then performed cunnilingus upon her. H described a further incident in January or February 2009 which occurred in a similar manner. The H Agreed Facts noted that these acts were representative of a wider number of similar acts which were committed upon H by the appellant.
N became aware that allegations of sexual misconduct involving H had been made (though she denied being told of the "complete detail" of the allegations) at some time around late 2009. She placed her awareness of the allegations as being at some time after an occasion on which she had left her children in the appellant's care and had gone with P away for a weekend to Stockton Beach (the Stockton Beach trip). This was when M was around five and a half years old. That would put the Stockton Beach trip as occurring around September 2009, at which time D turned two.
N's evidence was that after (though it is not clear how long after) the Stockton Beach trip the appellant came to her house and told her that he had been accused of doing things to H that he had not done. N said that she was not aware of anything at all about that before he told her and that he did not go into "complete detail". N also said that, a couple of days after the appellant told her about the H allegation, MB (who N said had separated from the appellant in the time immediately before N was told about the H allegation) rang her and was a bit concerned with the appellant being at N's house with her children. N said that MB did not go into complete detail about what the sexual allegations were but offered to show her H's statement (an offer which N said she declined - T 59). In cross-examination, N said that the appellant came to see her the same day that MB rang her about this (T 75) and that she became aware of the allegation by H the day that it was made (T 76).
Pausing there, there are obvious inconsistencies in the timeline given by N in relation to when she learnt of the H allegations. First, from the H Agreed Facts, it appears that the appellant and MB had separated in 2005 but the H allegations were not made until March 2009 and related to conduct in November 2008. Therefore, on any view of things, it could not be the case that the appellant and MB had separated immediately before N became aware of the H allegations. Second, N's evidence is internally inconsistent in that she cannot have become aware of the H allegations on the day they were made given that they were made in March 2009 and she said she only became aware of them after the (late 2009) Stockton Beach trip. (She may of course have meant she learnt of them at the time the appellant was first interviewed by the police about them - see below - but that is not what was put to her in cross-examination and is not what she had there accepted.) Third, there is an internal inconsistency in N's evidence as to when MB rang her to express concern in relation to the appellant being with N's children at N's house - i.e., whether it was the same day that the appellant came to tell N about the making of the allegations or a couple of days after that. Insofar as N recalls that MB offered to show her H's statement, which presumably refers to a statement made to the police, it is not clear when H made a statement as to the allegations.
It was an agreed fact at the trial concerning M that the first police interview with the appellant in relation to the H allegations was conducted on 15 September 2009. It was agreed that there was a second police interview conducted with the appellant on 22 January 2010. It was also an agreed fact that H had commenced counselling by 12 January 2010 (according to a statement dated 15 April 2010 by her mother).
On the assumption that H had made a statement to the police prior to the September 2009 interview conducted by the police with the appellant, the most likely chronology of events is that the appellant (and MB) disclosed to N the making of the allegations some time around the time of the first police interview (and therefore close in time to the Stockton Beach trip).
In his police interviews the appellant denied the H allegations. N's evidence was that the appellant continued to come to her place after he told her about the H allegations (i.e., September 2009) but not as regularly. That is confirmed by the appellant's statement in his ERISP to the effect that the last time they (he and N) had sex was the weekend he "got arrested for [H]" (Q/A 14-33) because the appellant was not charged with sexual misconduct in relation to H until 22 January 2010 (see affidavit of the Crown's instructing solicitor, Scott Jaeger, Exhibit E at [5]). The charges were of two counts of sexual intercourse with a child aged under 10 years contrary to s 66A of the Crimes Act. Thus the evidence supports the conclusion that there was still some sexual activity between the appellant and N (and, since N said it always involved P, with P as part of the threesome) in the period from September 2009 to January 2010.
N said that she left the children in the appellant's care "a couple of times". Cross-examined on this, she said she thought she may have allowed the appellant to look after M because she trusted him when he said that he did not do anything to his own child. In context, this must refer to the time after N heard about the H allegations in about late 2009. She said she let the appellant look after the children on maybe a couple of occasions when she was going out (T 60).
N had made a statement to police on 28 May 2014 in which she said that the appellant "didn't look after the kids many times" and that "if [the appellant] was around the kids with me not there it would be a case of I'd gone out and left the kids with [P] and [the appellant] would come over". In cross-examination (T 68) she said that the statement was not wrong but that what she was saying was that the appellant did look after her children but not all the time by himself. N said that she told the police the one time that she could remember that the appellant looked after her kids alone and that that was all that she could remember off the top of her head. She said back then she was bad with drugs. She agreed that she was not bad with drugs on 28 May 2014. She could not remember exact dates (T 68).
In cross-examination N was asked whether she had a clear recollection of whether the appellant had minded the children after she found out about H's allegation; and she said "I can't remember, to tell you the truth. He may have looked after them, he may not have looked after them". She confirmed that the time she went to Stockton was the only time the appellant was alone with the children that she recalled at the time. She agreed that her memory had not really changed since 28 May 2014 (T 69-70).
N agreed that she did not go out of the house enormously often when D was two or three years old (i.e., when M was about five or six) (T 73). She agreed that the cessation of the sexual relationship between herself and the appellant after the Stockton Beach trip (the appellant himself put the cessation somewhat late in January 2010) reflected her becoming less close to him but not her wanting less to do with him (T 73). She agreed as soon as there was an allegation (i.e., the allegation relating to H) she was very much on her guard about leaving the appellant alone with her children but said that she gave him the benefit of the doubt and believed what he was saying because he was family (T 74).
N agreed in cross-examination that throughout the year 2010 she was getting more and more distant from the appellant. She said that she was not trusting the appellant less (somewhat inconsistently with her acceptance in cross-examination that, after she found out that the criminal investigation had finished and the appellant had been formally charged with the offences regarding H, she did not leave the appellant alone with her children - see T 80) but agreed that, as a result of seeing him less and less, he saw her children less and less (T 82). Also in cross-examination, N said that once the appellant was charged (which was in January 2010) he did not attend her house (T 80).
In re-examination, N said that at the start of 2010 (when D was two to three years old) she lived at Londonderry but that, before D turned three (which was in September 2010) she split up with P and she moved with her children to her mother's house at Minto. She said that she lived there for four or five months before returning back to Londonderry on her birthday (which was in November). She said she was not really in contact with anyone in that time, including the appellant (T 83). Taking the time of her return to Londonderry as the end of the four or five month period, on that timeline N was at Minto from about June or July 2010 to November 2010. (W's evidence was broadly consistent with this in that she said that, at some stage when she was living in Minto, N and her then two children (M and D) moved in with her. She said they stayed "a couple of months" and then N and P were "starting to date again" and N moved back out to Londonderry. W said that N was possibly pregnant (with J) when N moved in with her at Minto. She said there was more than one occasion when N, M and D moved into her house in Minto. Relevantly, however, on W's timeline of "a couple of months", the period N was at Minto was shorter - say, from October/November 2010.)
The appellant pleaded guilty to the charges relating to H on 7 March 2011. On 15 April 2011, his bail was revoked and he was taken into custody (see affidavit of Scott Jaeger, Exhibit E). He was sentenced by English DCJ on 29 July 2011.
The relevance of the timing of the appellant's guilty plea and the revocation of his bail is that N said that, after she became aware of his guilty plea, she sent the appellant a message via email or Facebook, telling him never to come near her and her children again and that he had lied (T 62). N said that after she sent that message the appellant never came back to her house and she became aware shortly thereafter that he had gone into custody in relation to the H allegations.
In cross-examination, N agreed that she made a decision not to let the appellant around her and her children after he pleaded guilty (T 74; T 81.30; T 84.16). She denied that she had cut off contact with the appellant a year prior to when he was found guilty (T 79) and denied that it was a year before he "got locked up" that he stopped coming around to her place (T 81). She agreed that she could not recall the date that the appellant stopped coming around to her house but put that date at "about six months before he was found guilty" (T 81.25). On that timeline, the appellant ceased coming to N's house around September 2010. Leaving out the time N was at Minto, this would mean that there was a period from September 2009 through to around June or July 2010 and then from around November 2010 to September 2011 when, according to N, there was still contact (albeit not sexual contact after January 2010) between her and the appellant.
Part of the difficulty in making sense of N's evidence as to the time of the above events is that there was evident confusion on the part of N as to the respective stages of the criminal justice process.
In answer to a question in re-examination as to what "being charged" meant to her, N said (T 84.11) "[w]hen he went into custody and was locked up in gaol". She accepted that in her mind there was no differentiation between the time the appellant was charged and when he pleaded guilty (T 84.20). She assumed that that was the same time (T 84.23).
In fact, as noted earlier, the appellant was first interviewed about the H allegations in September 2009; charged in January 2010; pleaded guilty in March 2011; and was taken into custody on 15 April 2011. Leaving aside the potential unreliability of N's memory due to her drug use (a factor to which the trial judge expressly had regard), it is by no means clear that N understood or was focussing on those different events when giving her evidence as to when (in advance of her final email or Facebook communication telling the appellant never to come near her again) the appellant stopped coming to N's house.
W agreed in cross-examination that she had a conversation with N after she heard that the appellant had been arrested in which she asked N not to leave her grandchildren with anyone and if she needed to go out to call her and she would come and get them (T 92.2; AB 353). She agreed that she specifically told N not to leave them alone with the appellant and that N told her that "she doesn't, she leaves [P] with them if she has to go out (T 92.6-11; AB 353).
The next relevant point to note in the chronology is that N said that, after she found out that the appellant had pleaded guilty to H's allegations, she spoke to M about the appellant. This is relied on by the Crown as the complaint evidence. N thought the conversation was when M had turned seven (which was on 14 March 2011) and the family had come to the Londonderry house to celebrate. N could not remember whether the appellant was there. (M's evidence was that he was there. The appellant in his ERISP denied that he was there.)
N's account of that conversation was that she asked M if anyone had touched her in an inappropriate way on her body and said that it was all right for M to tell her and that M had not done anything wrong. N said that M told her that nobody had. N said she continued to talk to M and that M kept telling her "No mum" but then M turned around and said, "Yes" and told N that the appellant and P had touched her in the bum. N asked her if she was sure that this was what had happened and M said "No". N said that she called P into the bedroom and that P swore to her that nothing had ever happened to M and nothing would ever happen to her. N said she then told M that if it was true they would have to pack their bags and leave the house straightaway; and that M then said "I was lying mum, sorry" (T 61). (M denied that part of the account of the conversation.)
In cross-examination, N agreed that M, after initially denying that the appellant had touched her private parts, said words like, "Uncle R [the appellant] had touched and dad [P] touched me down there" (T 77) and that she took M to be referring to her personal areas where nobody should be touching her. She agreed that when M disclosed this she immediately thought that M may have heard one of their conversations out the front about what was going on between the appellant and H. She agreed that she never specifically asked M about whether P had touched her (T 78).
N said that after she spoke with P she rang the appellant and asked him to come around and see her; that she told him what M had told her; and that he said that he never touched M and he never would (T 62). Seemingly inconsistently with this, in cross-examination N said that the conversation with the appellant when she asked him whether anything had happened with M was before he was charged - T 74; that, however, would place the conversation well before the date of the family celebration for M's seventh birthday, since he was charged in January 2010 - though, again, N's impression as to what was meant by "charged" must be kept in mind.
P died in a boating accident in March 2012. N said that between the time that she stopped having contact with the appellant (which on the above timeline seems to be a reference to March 2011 when she found out he had pleaded guilty to the H allegations) and the time of P's death, she never had any further conversation with P about what M had told her and she never brought it up with M again (T 63).
In March 2013, N and her children moved in with the appellant's father at Riverstone. N said that in that year she was told something by another cousin about M and that she told her mother (W). A "trust circle" was then conducted: N and her then partner sat down with M, M's brother, two other children (M's cousins) and their parents; and there was a conversation about sexual matters and the human body and about "who can touch you and see you naked".
N said that during the trust circle M came up to her; cuddled up to her on the lounge; and asked her if she (N) had ever kissed P on the private parts. N said she went into the bedroom with M where M disclosed that she had kissed P and the appellant on their private part; and said that she had put their private parts in her mouth and kissed them. N did not ask for any more detail. She said that she walked out of the room crying (which W corroborated); that W came up to her and asked her what was wrong; and that she (N) told W to go to M. W did so.
W's evidence as to the trust circle was broadly consistent with that of N. At some point W heard M say something to her mother about whether her mother had kissed P on his private parts. She said that M and N then went into a bedroom; that after about five minutes or so N came out and was very distraught with tears running down her face; and that N asked W to go to M. W asked M what she had told her mum. W could not remember the exact words M said but W said M implied that something had happened of a sexual nature. She said M said words to the effect that P and his friend Uncle R [the appellant] used to make her kiss their penis (T 90-91).
This occasion was also relied upon by the Crown as evidence of complaint.
The matter was then reported to Quakers Hill Police Station.
On 15 July 2013, a couple of days after that report, N and M attended the Joint Investigative Response Team (JIRT) offices at Emu Plains where an interview with M (at which N was not present) took place. N could not recall whether she had a conversation with M about the H allegations on the day that they went to the JIRT interview; said that she did not know of the contents of the JIRT interview and had not spoken to M about what she might have said during that interview (T 66).

JIRT interview of 15 July 2013

The recorded JIRT interview of 15 July 2013 was played in the trial (Exhibit G). The transcript of the interview was marked MFI 2. M was nine years old at the time of the interview. She gave her father's name as P and identified the appellant as her uncle and as "Mr Roberts" (Robert is the appellant's first name, not his surname). Throughout the interview, M referred to the appellant as her uncle and as Mr Roberts. The appellant confirmed in the ERISP that "uncle" and "father" was the way M referred to he and P, respectively.
When asked what she had come to talk to them (the police) about, M said "My dad and my uncle" (Q/A 53). When asked what it was about her dad and her uncle, she said: They used to try and do something to me, 'cause my uncle always tried to, I don't wanna tell you. (Q/A 54).
Asked about her response that "they do something to me", M said: Well, my uncle used to try and have sex with me. (Q/A 62) … He showed me these videos of it and I didn't wanna watch it and all that but he, he kept on making me, and so did my dad. And they just tried to kiss me and all of that. And I kept on tryin' to stop them but they wouldn't. (Q/A 63). (my emphasis)
M was asked when it happened that she had to watch movies and her dad kissed her. She said "When I was about, I think when I was five and seven" (Q/A 66) and explained that answer on the basis that "dad used to do it when I was little and then he, I kept on trying to stop him when I was seven" (Q/A 67). She said "I don't really know" when asked how many times this had happened (Q/A 70-71).
At Q/A 75-76, when questioned whether this was on one occasion or on separate days, M said: My, Mr Roberts, my uncle, he used to babysit me when dad went with mum on a, for dinner or anything, and then - ... - dad would do it when his mates weren't there and he was just looking after me when mum went out and all that with her friends.
When asked where her "uncle" was now, M said "In jail, 'cause he done it with his daughter too" (Q/A 77).
M said that the appellant started babysitting her from when she was two years old (Q/A 99). M was asked what she remembered happening with the appellant and she said: He showed me pictures like my dad and his beard and all that and - (Q/A 105 as corrected). (my emphasis)
M described the pictures that the appellant showed her (Q/A 106-112) as videos, saying that they were "gross and about sex and all that" (Q/A 106). She described the videos as "these big things that are, they're different to discs, discs" and as "square things" (Q/A 111-2). Asked how many times she watched this with her "uncle" she said "since he kept on babysitting me" (Q/A 113). She said the appellant looked after her at her home at Londonderry (Q/A 119-123).
Asked how old her brother D was when the appellant would babysit her and make her watch the movies, she said "Well he started showing when I was five so [D] would be zero years old" (Q/A 132).
M said that the appellant showed her the videos upstairs in the room she shared with D in which they had two separate beds (Q/A 139-143). She said there were three lounges in the room (a brown two-seater; a yellow brown one-seater and another yellow brown one-seater); a TV on top of the drawer; and a DVD and a video player (Q/A 150-168). M said the appellant "brought his discs without anybody noticing in a bag" and pretended it was "his stuff" and he would put the movies in the DVD player, which she said had one for the disc and one for the square thing and the appellant would put in the square thing (seemingly describing a VHS tape, not a DVD) (Q/A 176-183). M drew a diagram of the room (Exhibit A). She said the appellant would move the two-seater lounge diagonal to see the TV (Q/A 184-190). (Pausing there, M was questioned at the trial as to the layout of the bedroom and the drawings she had done (T 18/19), as was N (T 41-49), and as to the furniture in that room (T 70-72). However, ultimately it was not suggested that any inconsistency in the evidence as to the configuration or furniture in the room should have given rise to a reasonable doubt as to the appellant's guilt and it is not necessary to set out that evidence in these reasons).
As to how she came to be on the lounge with the appellant, M said: He would, he would, he would put me on his lap. … He would just sit down and grab me and put me on the single lounge and then he would sit, he would put me on the two seater and sit down and then he would grab me [around my waist] and putting on, he would put me on his lap (Q/A 192-196).
M seems (from the transcript) to have physically demonstrated how they sat. She then said that her legs would be on his legs (Q/A 198). She said the appellant made her watch these gross ("really, really gross"; "very, very gross") videos, describing boys coming up and kissing girls while they were dancing on bars [later described as "a dancing pole … [t]hat they do at a club or whatever" (Q/A 275)] and the girls had their clothes off and only had bras on (Q/A 200-203). She said that while she was sitting on his lap "[h]e pulls his pants down and makes me sit on him"; that he would sit down on the lounge, pull his pants down and make her stand up and pull her pants down and he would sit her on his lap; she said he told her to walk in front of him and he pulled her pants down and she was trying to pull them up but he just quickly pulled her onto his lap (Q/A 204-215). M described the pyjamas she was wearing at the time in some detail (purple with coloured spots) (Q/A 218-225). She said she had undies on and he pulled her pants and undies down to her knees (Q/A 226-228).
M said she could feel the appellant's legs and his "private" (which she said was also called a "willy" or "doodle"). She did not see his penis. Asked how she felt it, she said: "Because he put it, my bum on it. That's how I felt it" and then apparently physically gestured where she felt it (Q/A 229-235), marking the back of a picture of a girl to show where she felt it. She described his willy as "soft" (Q/A 243). Asked if the appellant touched her anywhere, she said "The nimmy" and described that as what she used for weeing (Q/A 5245-248). She then showed how his hand "goes like that at me on my - on my nimmy and he tickles me there. And that's all" (Q/A 248-249). After a couple of answers to the effect that she did not remember whether the appellant touched her "nimmy" where she "wee[d]" or how many times he touched her "nimmy", she confirmed that on the occasion when he moved the lounge he touched her "nimmy" for a short time; around two or three minutes (Q/A 250-257). M said that: And then he would just squeeze me and say, Are you enjoying the movie and I would be closing my eyes and not watching it and I would say, Yes so I would be lying to him (Q/A 258).
M said the movie would finish and the appellant "would pull his pants up and all that and then he would go back down 'cause mum would be back after, they [her mum and dad] would just go out for dinner and come back. It would take them about five or 10 minutes and that's how long that this took, five or 10" (Q/A 260).
M was taken again through a series of questions about the room; about what the appellant did; and about the movie she was made to watch. Asked about her statement that appellant "tries to have sex with me", she said: He tried to kiss me on the lounge and have sex and all that, have sex. … [it happened] All the times he babysitted me. … He would, he would watch the movies every time he would come and babysit me. (Q/A 283-285)
She confirmed that the time the appellant put her on his lap and rubbed her "nimmy" was the same time that he kissed her and tried to have sex with her. She said he used to do it all the time (Q/A 286-287).
M was asked a series of questions as to what happened when he kissed her on the lounge. She did not understand the question "Is it like a lip on lip kiss or is it something else". She said she was sitting on his lap and "he moved her head to the side and then he moves his head in front of me and kisses me" (Q/A 288-298). She explained what she meant by him trying to have sex with her as: He tries to hump me. … He humps me when I'm on his lap and he just, I don't remember the rest but - … He tries to what it's called, up and down, up and down (Q/A 301-303).
Asked what goes up and down, she said his "willy" and she then said that he goes "hump, hump, hump to me" and that his willy touched her bum; "it goes in my bum hole and yeah" (Q/A 304-310). She said his willy goes in her bum hole and then he humps her when it goes in there Q/A 310); that it felt bad but that it did not hurt (Q/A 311-313); that she did not really know how long his willy was in her bum hole for but, when asked to compare it to the time that he rubbed her nimmy, she said around five and three [minutes] (Q/A 314-318). She said it stopped when "[h]e pulls it out" (Q/A 321). She again was asked, and demonstrated, how they were sitting when it happened; and she said that when his willy was touching her "bum hole" it was "light"; "soft" (Q/A 330-331).
The conduct involving alleged penetration by the appellant of M's anus with his penis was the subject of count 1 (and the alternative count 1A of aggravated indecency) on the indictment. The conduct involving touching M's vagina and squeezing and kissing her during the movie was the subject of count 2 on the indictment.
Asked in the JIRT interview about her father, M said that: He just kissed me and done the same thing as Mr Roberts but he didn't show me these videos, he didn't show me the videos. … Try and have sex and do the same things [as the appellant] but didn't show me the videos. He done the same thing as Mr Roberts (Q/A 361-364). … He done the thing, the same thing, like tried to kiss me. (Q/A 365) … Kissed me, had sex with me, tried to and he putted his willy up my butt in the same way as Mr Roberts and that's all I remember from dad (Q/A 367)
M said that this happened with her father when she was six (Q/A 368-370). Asked whether she remembered whether her dad or "Mr Roberts" did something first, she said that "Mr Roberts started" (Q/A 372-374).
M said that she told N about what the appellant had done to her the day she turned seven, after her party. She said she did not tell her mother about her father when she was six because she was shy. She said she told her mother that the appellant tried to kiss her, that he tried to have sex with her and that he put his willy up her bum hole (Q/A 375-378). She said this conversation took place in the lounge room with the door closed while everyone was outside playing games. She said that her mother "called Mr Roberts 'cause he was at my birthday party and she got angry with him and told him to stay away from my daughter. And don't babysit her every [sic] again" and that the appellant replied, "Ok, I'll stay away from her" (Q/A 379-382).
M said she knew that the appellant was in gaol for doing the same thing to his daughter because her mother told her when they were having lunch before she came in for the interview. She said that they were talking about her (M) having to speak to the police and that she asked her mother whether there was anybody else he had done it to and her mother said, "yes, [H], his daughter" (Q/A 414-420).

M's oral evidence at trial

M gave evidence via CCTV at the trial. It was a few days before her 11th birthday. In her evidence in chief she answered questions as to her family members and when she lived in Londonderry; she identified the drawing she made during her JIRT interview of the house at Londonderry (which was marked Exhibit A); and explained what she meant by the word "nimmy".
She was asked very little else in chief. She agreed that in her JIRT interview she had told the police officer that, on the day she went to speak to the police, she had asked her mother whether the appellant had done it to anyone else and her mother had told her, "yes to H his daughter", but denied that her mother had told her any detail of what the appellant might have done to H (T 8.30-34). She denied that she and her mother had ever spoken about the appellant doing anything to H at another time before that conversation (T 8.37). She said she had not seen her cousin H after what she thought was her eighth birthday party and said she did not speak to H about what her dad might have done to her (T 8.41-50). She denied overhearing her mother speaking to anybody about what the appellant might have done to H (T 9.6).
M was then cross-examined, in the course of which she said that the last time she saw the appellant before her JIRT interview (in 2013) was "last year, two years ago" (T 10.13) and agreed that it had been a "fair while" (T 10.15). She agreed that earlier in her life there was a time when she used to see the appellant (T 10.23). She thought she was not seeing him anymore because her mother was angry at him (T 10.31). She did not know why her mother was angry at him (T 10.35). She agreed that she saw her mother get angry at him at the time of her seventh birthday party (T 10.37.41). She was asked various questions about her recollection of the birthday party and the complaint made to her mother on that occasion. She said that after her seventh birthday her mother didn't ever talk to her about the appellant.
Relevantly, she was cross-examined about the answer she had given in the JIRT (at Q/A 63) in which she had said, after saying that the appellant showed her the movies, "and so did my dad" (see #[47] above). M said that her dad did not keep on making her watch videos and repeated that "well my dad actually didn't show the - my - the videos. Only my uncle did" (T 17/18).
The appellant relies on, as critical, the evidence M gave during cross-examination as to what P did when he did the "bad touching". M said what he did was always the same. The cross-examiner then took M through a list of things and she agreed that: her dad sat down on the lounge; he pulled his pants down; he was on the lounge with his pants down; he got her to come over to in front of him; he held her around the hips (the cross-examiner physically demonstrating this in some fashion); he took her pyjamas and undies down; he made her sit on him; and she could feel his willy in her bum hole; nobody else was there when it happened; he rubbed her "ninny" and kissed her on the lips; and his willy went "hump hump hump, up and down"; and that was basically what happened "the same every time" (T 27). Pausing there, the cross-examiner did not put to M anything about watching videos in the list of things that he put to her had happened during the bad touching by P.
M denied that P sometimes showed her dirty videos in the house in Londonderry (T 29). She remembered that P did the bad touching on the lounge in her bedroom. When it was put to her that it was just her dad and not the appellant who did the willy on the bum hole and the bad touching things on the lounge, she said that was wrong (T 29).
She denied that when she was in the trust circle she said to her mother "Have you ever kissed daddy on his privates" and she denied that she said to N or W something like she had "kissed P and [the appellant]'s private parts". She agreed it would not be true to say that she had kissed P's and the appellant's private parts (T 24).
M agreed that she told the police that she could not remember how many times something happened with the appellant. She disagreed with the proposition that when her mum and dad went out for dinner they did not always take D with them. She agreed that it was true to say that there was only one time she remembered with the appellant. She said that her mum and dad went out for dinner "only sometimes" (T 26). She said the appellant didn't look after her and D at the same time, it was just her (T 27).
In re-examination M said that she only remembered that one time with the appellant and did not know whether there were other occasions when things happened with her and the appellant (T 29).

Tendency evidence

At the trial, the Crown relied on tendency evidence in respect of the offending by the appellant against his daughter H when she was seven years old.
It was the Crown case at the trial in relation to M that the pleas of guilty and the H Agreed Facts showed a tendency on the part of the appellant to have a sexual interest in female children aged six to eight years who he believed were biologically related to him; and that he had a tendency to act upon that sexual interest on occasions when he was the carer for such children and engaged in sexual conduct by touching them, exposing his penis to them and engaging in acts of other sexual natures. It was the Crown case that these tendencies made it more likely that the allegations made by M were true.

ERISP

The appellant did not give evidence at the trial. He relied on the electronic record of interview conducted by the police with the appellant on 18 December 2013 (Exhibit G). A transcript of the interview was marked as an aide memoire (MFI 6). Two diagrams of the premises drawn by the appellant during the interview were also tendered (Exhibit H).
The appellant denied M's allegations when put to him in the interview (Q/A 11; 220-233; 261-263).
He agreed that he went to the premises at Londonderry but could not remember babysitting M (Q/A 46-52).
He denied that he had babysat M since she was aged two and that she had had time alone with him. (He said when she was around two she was living next door and from that time he went to his dad's.)
Asked later in the ERISP about babysitting M, the appellant said he could not remember. He said at the time M was six he would have been investigated for H and that he kept N up to date with everything that was going on (Q/A 272-278). He said he "honestly couldn't remember" if he babysat M and that if he did it would have been a "very, very rare occasion" (Q/A 286-290). He said he could not even recall being alone with M (Q/A 294).
The appellant described the upstairs room in Londonderry. He said there were three beds; no lounges; and only a tallboy with a TV on top. He thought there was a DVD and a VCR player but said that most of the time it did not work (Q/A 121-154). He drew the layout of the room (Exhibit H; Q/A 155-172). The appellant said that N was constantly changing the room set up but there was never a lounge in there (Q/A 178-184).
Asked whether there was something that happened in that household involving M, the appellant said not in a sexual way but that M had seen things a five year old should not have seen (Q/A 344). He said P told him that M had seen P and N having sexual intercourse. The appellant said the chances of M seeing him with N and P (i.e., the threesome) would be "pretty high" if she got out of bed (Q/A 353-361). He said M would have seen him naked because occasionally he would shower there and there was no privacy (Q/A 362-365). He described the shower area which had no door and said that to dry off you were in the kitchen area (Q/A 367-378).
Asked whether there was anything that he wanted to say about the allegation, the appellant said "I'll probably be fighting it" (Q/A 389).

Defence case at trial

The appellant identifies the two principal aspects of the defence case at trial as relevant to this appeal as being: first, that the Court could not be satisfied that he had the opportunity to commit the alleged offences in the indictment period; and, second, that the Crown case depended on "an extraordinary coincidence of repeated, almost identical allegations" by M of abuse both by the appellant and P and that the Court could not exclude the reasonable possibility that M had conflated or comingled the appellant and P in her mind, and was honestly mistaken about who had abused her.
As to the first, it was submitted on behalf of the appellant that he would not have had the opportunity to commit the offending during the period on the indictment (i.e., between 14 March 2010 and 14 March 2011) because N lived at Minto for about five months during that period and N's evidence was that the appellant stopped coming around six months before he pleaded guilty and she saw him less and less throughout 2010. It was the appellant's case that there would not have been an occasion when the appellant minded M alone; rather, M's brother D would have been present. As to the second, the appellant argued that discrepancies in the complaint evidence add force to the argument that M had conflated in her mind the two men (the co-mingling argument).

Reasons for judgment

The trial judge delivered reasons for judgment orally on 9 April 2015. No complaint is made as to the manner in which the trial judge directed herself as to the applicable legal principles (although the appellant complains that the trial judge's reasons do not evidence an actual application of the warning her Honour gave in relation to scrutiny of a child's evidence and more generally as to the need to scrutinise the complainant's evidence (AT 8.46)).
The trial judge noted that the Crown case in respect of each charge depended on acceptance of the substance of M's evidence since there was no independent objective evidence confirming her testimony; and that it was necessary to scrutinise her evidence on each count very carefully (reasons p 3).
The trial judge summarised (reasons pp 7-13), the evidence relied upon by the Crown, having earlier noted that M gave her evidence in the form of a pre-recorded interview and then gave the remainder of her evidence in chief, and was cross-examined and re-examined by way of CCTV in the presence of a support person. Her Honour referred to the contents of the JIRT interview, then to the evidence given by each of N and W. Her Honour then referred to the tendency evidence led by the Crown (as to the appellant's conviction and sentencing for offences of a like nature against H).
Her Honour noted that, as was his right, the appellant had chosen not to give evidence but had asked that his police record of interview be taken into consideration and her Honour referred to the contents of the appellant's police record of interview (reasons pp 15-17).
The trial judge then set out facts which were not disputed (reasons pp 18-19) before identifying the areas of dispute raised on behalf of the appellant as being: The age of the complainant at the time of the alleged offences; whether or not there was opportunity for the accused to sexually assault the complainant as alleged, whether or not the accused ever in fact babysat the children of [N]; whether or not the accused ever babysat M alone; whether there has been comingling in the mind of M as to the identity of the perpetrator of the alleged sexual assaults upon her; whether or not the complainant was sexually assaulted by [P]; the timing of when [N] became aware of the arrest and charging of the accused relating to his daughter H; when she became aware of the change of plea and when she became aware he went into custody; what complaint was made by the complainant to [N] regarding the accused and [P] and what followed thereafter and what was the nature of the complaint made on the day of the circle of trust just prior to the allegations being raised with the police for the first time.
The trial judge, as noted earlier, found the appellant not guilty of the first count on the indictment but found him guilty of the alternate count of aggravated indecent assault and guilty of count two.
Her Honour found M to be a witness "who was both honest and accurate as to the important matters and doing her best from the outset to be honest and accurate, given her age". Her Honour acknowledged that there were discrepancies in M's evidence but did not consider them such as to cause doubt as to the reliability of the important matters (reasons p 19-20).
Her Honour found that M was clearly able to differentiate between P and the appellant and that her evidence stood up to the lengthy cross-examination and level of scrutiny to which she had been subjected (reasons p 20). Her Honour described M's account of what she said had happened to her as compelling.
As to the timing issue, her Honour found that the abuse by P and the appellant was persistent and ongoing and that it occurred during the period nominated in the counts on the indictment (reasons p 20).
Her Honour found M's description of sitting on the lap of a man naked from the waist down with a flaccid penis particularly telling (reasons p 21) and noted that M had described and demonstrated the appellant rubbing her in the area of her vagina and tickling her in that area, an act which her Honour said clearly had a sexual connotation. (The description of the appellant's penis as light or soft and the lack of sensation of pain were the matters which caused her Honour to have reasonable doubt as to the offence charged as count one.) The Crown in closing submissions conceded that in the absence of any description of pain, in combination with M's perception of the appellant's penis as soft, there would have to be some reasonable doubt as to actual penetration of the anus, but submitted that there was an attempt to penetrate her anus (T 4). The Crown submitted that there was clearly an aggravated indecent assault but reiterated "of course it would have to be within the timeframe" (T 4).
Her Honour considered that M's evidence was supported both by her complaint to her mother and by the tendency evidence (though noting that there were some differences in the charges to which the appellant had pleaded guilty in respect of H, namely the acts of cunnilingus in the case of H and that there was no discussion with M about keeping their activity secret) (reasons pp 21-22).
The trial judge found beyond reasonable doubt (contrary to M's evidence supported by that of her mother) that M's brother, D, was certainly in the premises at the time the assaults took place although her Honour could not be certain as to where he was in the premises at the time (reasons p 22).
Her Honour rejected the submission for the appellant that there was no opportunity for him to commit the alleged offences, saying (reasons p 22): The evidence of the complainant and her mother is that the accused babysat her and her brother on occasions. Indeed the accused himself, although clearly reluctant to admit that he may have done so, admitted that there was the rare possibility that he may have done so. There is no doubt in my mind that he certainly babysat not only the complainant but also her brother on occasion when their mother and [P] and some of their friends went away for a weekend [the Stockton Beach trip] but that is not at the time when these alleged offences are said to have occurred.
Her Honour noted that the appellant had in his police interview put himself at the premises taking showers (when explaining occasions when the complainant may have seen him naked), which her Honour found to be: …an endeavour on his part to undermine the complainant's credibility, a rather bizarre account given by him to police during the record of interview, rather like the entirety of the record of interview.
Her Honour said that there was consistency of evidence between the appellant and N that, following his charge for the assaults on H, N was being kept advised of the investigation and progress of the Court proceedings, if not the details of the allegations. Her Honour noted that the appellant had said in his record of interview that when he sexually assaulted H he was not intoxicated and that there was no suggestion of intoxication at the time of the assaults against M.
At pp 23-24 of her Honour's reasons, her Honour made express findings that: there were other occasions on which the appellant indecently assaulted M (though could not be satisfied beyond reasonable doubt of those occasions "other than to the extent that her evidence discloses other such occasions existed"); M did make complaint to N about the indecent assaults on her by the appellant and P at around the time of her seventh birthday, if not necessarily on that day; after the allegations about H, N chose to believe the accused's protestations of innocence rather than her own daughter and there continued to be a relationship between them, such that the appellant had the opportunity to assault M; M also raised allegations with N concerning P but M chose to withdraw her allegations following a discussion as to the consequence of reporting such matters; and all contact ceased with the appellant when he entered his pleas of guilty (in respect of the H charges).
The discrepancy between M's denial of making a complaint to the effect that she had kissed either the appellant's or P's penis did not cause her Honour to doubt the entirety of M's evidence. Her Honour said either N and W were mistaken or M was (reasons p 24). Her Honour was satisfied that there was no risk of concoction or contamination of M's evidence and that of H, or as between M and N (reasons p 25). Her Honour found that N was mistaken as to dates but noted that "life was chaotic at the time of these events" in terms of N's relationship with P and the appellant and with her own mother (W) and M; and that N "was someone who on her own admission had been abusing drugs over a very lengthy period of time" (reasons p 25).
The essence of her Honour's conclusion as to the guilt of the appellant on the alternate to count one and on count two of the indictment can be gleaned from the following (reasons p 24-25): [M's] evidence as to the important matters of the Crown case was compelling and entirely consistent throughout … Some aspects of her evidence had an extraordinary ring of truth to them, her description of a sensation of a male flaccid penis could only be something described from experience. Her reaction to being forced to watch pornographic videos was particularly telling, one of revulsion. Her recall of the incidents which form the counts on the indictment were very graphic as to what she says the accused did to her, what he said to her and how she felt about it. When the tendency evidence is taken into account it makes her version even more credible.

Grounds 1 and 2: Consideration of evidence/defence case; adequacy of reasons

These grounds were grouped together in the appellant's submissions and I will deal with them in the same fashion.
Numerous complaints were made of the trial judge's reasons. Counsel for the appellant accepted that if only grounds 1 and/or 2 were upheld then (subject to application the proviso) the appropriate ruling would be for the verdict to be quashed and for a re-trial. However, it was submitted that there is some interplay between these grounds and ground 3 (which if successful would lead to a verdict of acquittal (AT 10.18-11.14)).
First, as to the consideration her Honour gave to the evidence, the appellant raises the following matters.
As to M's evidence, the appellant accepts that the trial judge outlined much of the JIRT interview but says that there was no reference to the additional evidence in chief given by M in court, nor to the evidence given by her in cross-examination or re-examination. The appellant says that her Honour "barely referred" to the allegations M made about P and submits that this gave "a marked prominence and individuality" to the allegations about the appellant.
As the Crown points out, the additional evidence in chief given by M was uncontroversial introductory evidence prefatory to the playing of her recorded interview (T 1-5). Nothing turned on this evidence and there is no basis for any complaint as to the fact that her Honour did not refer to it.
As to M's cross-examination, the Crown points to the reference by her Honour to M being cross-examined at length about the assaults upon her by P and to M's ability to differentiate between the two men. The appellant does not point to any aspect of the cross-examination that it is contended should have been made the subject of express reference.
As to the re-examination of M, as the Crown points out, it consisted of three questions directed to confirming her evidence in chief that she could only remember one occasion of abuse (at the time of her giving evidence) by the appellant. (T 29). The Crown submits and I agree that there was no requirement for her Honour to refer to this evidence.
As to the complaint by the appellant that the trial judge "barely referred" to the allegations made about P, the Crown notes that the trial judge expressly referred to the fact that M made allegations about both men (reasons p 7-8) and had complained to N about both men (reasons p 11-13); that her Honour expressly made reference to the issue as to whether there had been comingling in the mind of M as to the perpetrator of the alleged assaults (reasons p 19); and dealt with the comingling argument by reference to the evidence (reasons pp 20-21).
It is submitted that, in light of her Honour's finding that M was persistently abused by both men and was well able to distinguish between the two, it was not necessary for her Honour to go into further detail about the allegations concerning P. I agree.
As to N's evidence, the appellant submits that the trial judge "left out or was incorrect in a few pertinent details".
In that regard, the appellant refers, first, to the fact that her Honour incorrectly referred in the context of the trust circle complaint (reasons p 12) to N's evidence of the discussion with M that they would have to leave the family home if what M was saying was true whereas that discussion occurred (on N's evidence) when M first made the complaint in March 2011. The appellant notes that later in her Honour's reasons the withdrawal of the allegation is not so linked (see reasons p 24).
Second, the appellant points to her Honour's reference to the confrontation between N and the appellant about the allegations raised by M (reasons p 12) and to her Honour's statement that after that the appellant "continued to attend their home but not as regularly as previously". The appellant notes that N's evidence was that she confronted P in M's presence but that M was not present when she confronted the appellant; and that N said that the appellant never returned to the Londonderry house after she confronted him in relation to M's allegations. It is not entirely clear what the appellant's complaint is in relation to this aspect of N's evidence. However, it seems to be as to the time at which N did give evidence that after the March 2011 conversation with M (which followed the appellant pleading guilty to the H allegations) she not only confronted P but she rang the appellant, asked him to come around and see her and confronted him with what M had told her (see T 62).
There is no basis for complaint as to her Honour's reference to there being a confrontation between N and the appellant about what M had told her. The trial judge made no reference in this part of her reasons to the confrontation being in the presence of M.
Where the trial judge may have transposed dates is that it was following the conversation between N and the appellant about the H allegations (which he denied) that N's evidence was he continued to attend their home but not as regularly, whereas after she found out about the plea of guilty (i.e., March 2011) N told the appellant never to come near her again (as the trial judge recorded later in the same paragraph about which complaint is made). Nothing turns on this.
Next, the appellant points out that her Honour did not refer at all to N's cross-examination or re-examination (placing some significance on the latter).
As to the matters that the appellant says were omitted or incorrectly stated in her Honour's summary of parts of N's evidence, the Crown submits that it was not necessary for the trial judge to deal with every aspect of N's evidence that was the subject of criticism by the appellant at trial (citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247), particularly where her Honour found N to be somewhat unreliable (reasons p 25). The Crown submits that the finding that N corroborated M's evidence in relation to opportunity (reasons p 24) was well open on the evidence and that it was open to her Honour to accept N's evidence that M did complain to her about the appellant's conduct but to reject other aspects of her evidence.
Apart from adverting to the transposition of dates referred to above, the appellant does not identify what parts of N's cross-examination or re-examination should have been expressly set out.
As to W's evidence, the appellant points to the omission of some details, namely that it was at P's direction that she did not see her grandchildren; and that (after she found out about the plea of guilty to the allegations) she had asked N not to let others babysit the children, especially the appellant.
The Crown submits that there was no obligation on her Honour to include reference to all the details of W's testimony. I agree. The significance of the fact that it was at P's direction that W not see her grandchildren for 12 months is not made clear in the appellant's submissions. The significance of W's request that N allow her (instead of others and especially the appellant) to babysit the children in future - and N's response - goes to the question of opportunity to commit the offences to which I will return in the context of ground 3.
The appellant submits that the inference to be drawn from the trial judge's approach in this regard is that her Honour was "excluding from consideration" evidence adduced by the defence as well as certain of the Crown's evidence relevant to the defence case.
No such inference can in my view fairly be drawn. Her Honour addressed the question of opportunity to commit these offences. The statement by W as to babysitting in the future goes to the period after the appellant pleaded guilty.
I do not consider that it can fairly be suggested that her Honour did not give proper consideration to the defence case.
Second, as to the adequacy of her Honour's reasons, the appellant criticises the trial judge's reasons as "somewhat rambling and repetitive". The complaint is that the reasons "do not address much of the volume of evidence not referred to earlier in the judgment". The appellant complains that the reasons state conclusions without much or any supporting analysis.
In particular, on the two principal issues identified as giving rise to a reasonable doubt as to his guilt (namely, the asserted lack of opportunity to commit the assaults and the identical nature of the allegations made by M against each of the appellant and P), the appellant refers to various findings by the trial judge in the course of which he makes the following complaints as to her Honour's reasons.
First, it is submitted that her Honour erroneously thought that N had disbelieved M "in favour of" the appellant (submissions at [58]). This relates to the statement by her Honour (reasons p 24) that: I find it was at the time that [N] became aware of the allegations raised by the accused about his natural daughter that she chose to believe the protestations of innocence by the accused rather than her own daughter.
There is force to this complaint but it is again simply referable to the transposition of timing as between the allegations (in 2009) and the March 2011 conversation.
Second, there is at least an implicit complaint that her Honour made a finding "without analysis and contrary to [M's] evidence, that D was home" at the time of the assaults and used that to facilitate the finding that the appellant took up the opportunity when, in N's absence, he was babysitting M and D, "just as he did when he sexually assaulted [H]" (reasons p 22).
I accept that the basis for a finding that D was present at the time of the offences is not apparent - due perhaps to the unlikelihood that N and P would go out for dinner or elsewhere taking with them a two year old (D) and leaving behind a six year old - but I do not accept that the trial judge used that finding "to facilitate" or support the conclusion that the appellant chose the opportunity to assault M.
Third, the appellant complains that her Honour did not, in the course of considering the issue of opportunity to commit the assaults, advert to the necessity that her Honour be satisfied of opportunity and the commission of the alleged offences within a relatively confined period (which the appellant puts as being between 14 March and late June 2010) with, it is said, no reliable reference point for the first date in that period.
This complaint raises an issue as to the basis on which the case was conducted by the Crown. The period specified on the indictment was between 14 March 2010 and 14 March 2011. Those dates correspond to M's sixth and seventh birthdays (the latter being the date on or about the time both M and N gave evidence as to the making of the first complaint). The appellant argues that in the Crown's closing address, the Crown effectively conceded that the date period specified on the indictment was to be treated as essential, i.e., an element of the offence, when conceding that the Court had to be satisfied that the alleged offences occurred within that period (see T 3). What the Crown prosecutor said was: In terms of the first count on the indictment the Crown says that there are effectively three elements. The first is it has to be within the time range that the Crown says. The second is that the accused attempted to have sexual intercourse with [M] and the third element is that she was under the age of 10 years.
Again, at T 4, the Crown prosecutor, conceding in effect that there might be reasonable doubt as to actual anal penetration having occurred, submitted that nevertheless there was an attempt (and that was clearly aggravated sexual assault), and said "of course it would have to be within the timeframe".
At T 10 , counsel then appearing for the appellant in his closing submissions noted the Crown's concession that her Honour would need to be "satisfied beyond reasonable doubt that the offences occurred in the indictment period while [M] was six years old". He submitted to the trial judge that the bulk of the evidence as to the conversation in the bedroom at Londonderry regarding P and the appellant (where M retracted her allegation that P and the appellant had touched her in the bum) could not have occurred after March 2010 (and therefore could not have related to an offence occurring during the period specified in the indictment) (T 10).
In this context the appellant submits that the finding by the trial judge of "persistent and ongoing abuse" (but not beyond reasonable doubt) was "curious, arguably unnecessary … suggestive of some tendency reasoning [and] … not supported by the evidence". The appellant argues that the available time period was much more limited than a year.
The Crown argues that the significance of her Honour's finding of persistent ongoing abuse is that this was not an isolated incident in the course of a long run of offending by the appellant. The Crown argues that therefore the date was not vital to the charge (referring to R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293 and Director of Public Prosecutions (NSW) v Knight; (2006) 162 A Crim R 555; [2006] NSWSC 646).
The Crown points to the recognition by counsel appearing for the appellant on the making of an application for a Prasad direction (R v Prasad (1979) 23 SASR 161 at 163) during the course of the trial (T 97.20) to the effect that: … if there was overwhelming evidence that [the appellant] committed all of the acts alleged but committed them when the complainant was five years and 365 days old, one day before the start of the indictment period then there's no dispute that [the appellant] would not be entitled to an acquittal on that basis. The issue would be ventilated … provided that [the appellant] was plainly put on notice by the content of the evidence and addreses then the inaccuracy to the date would be no bar".
The Crown says the submission put for the appellant at that stage was not that the date was an element of the charge but, instead, that the time was very significant in this case because it went to opportunity ("it goes to what was actually going on in the lives of [N] and [M] at the time so as to give rise to the asserted inaction with [the appellant], the asserted commission of the offence by [the appellant]. And it goes to the [P] point …").
The Crown submits that a specific date was not required to be identified for the offence, nor was the occasion of the charged conduct identified by M with particularity so that the appellant ran his case to meet a particular date. The Crown emphasises that the Crown case was put that, on an occasion within the indictment period (13 March 2010 to 12 March 2011), the appellant babysat the complainant and committed the indecent assaults.
The Crown points out that at the trial the Crown prosecutor submitted the following: The Crown says that in terms of the issue of cogency if there is a difficulty with the cogency of the Crown's evidence it only relates to the timing as set out in the indictment as to the time at which the offence occurred. That is between 13 March 2010 and 12 March 2011, being the year in which the complainant was six years old. And … the Crown says that it remains open for the Crown to run a case on the evidence before your Honour that the accused on a number of occasions committed sexual offences against the complainant as she indicated in her interview to police on 15 July 2013. (see T 101)
The Crown submits that both parties addressed the period from 2008 to 2011, which was when the Crown says the appellant occasionally babysat the complainant and when the appellant admits he maintained a sexual relationship with N.
On that issue, while I accept that the Crown should be bound by the forensic decisions made during the course of the trial, it was clearly accepted by the defence that the significance of the dates specified on the indictment was not that occurrence of the offences within that period was an element of the offence charged; rather, the significance lay in the opportunity to commit the offences. It was not suggested in this Court that the appellant would have conducted his defence differently had the Crown's misconceived concession not been made (indeed the "concession" came during closing submissions).
The appellant points to the fact that, during the JIRT interview, M could only recall the one specific incident with the appellant and by the time she gave evidence in Court she did not know whether there were others. The appellant argues that her Honour's reasons indicate that she did not consider N's evidence in its entirety. It is submitted that N's evidence cannot give confidence that there was much access (if at all) in the relevant period and that the appellant's response on this in the recorded police interview was "so nebulous" that it provided no support for the conclusion that there was such access.
Complaint is also made that her Honour did not consider M's evidence (of numerous occasions of babysitting) against the evidence pointing against the conclusion that he in fact had the opportunity to commit the assaults in the relevant period.
I consider in due course the issue of lack of opportunity when considering ground 3. Suffice it to say for the present that insofar as criticism is made of adequacy of reasons on this issue, it is not made out further simply because the trial judge did not set out the whole of the evidence. This does not mean her Honour did not consider it.
As to the second principal issue, the making by M of "repeated, almost identical" allegations of assaults by the appellant and by P, respectively, complaint is made as to various aspects of her Honour's reasons.
First, insofar as her Honour, when referring (reasons p 20) to M first making complaint about the appellant and P at around the time of her seventh birthday, said "although she was not believed or when discussions about the consequences of her disclosures were brought to her notice she withdrew her allegations at that time", the appellant points out that this was more N's version than that of M (the latter denying that N ever put the consequences of her disclosure to her); and the appellant says that it was not (on N's evidence) that M was not believed; rather, that M was unsure and then said she was lying.
Secondly insofar as her Honour later (reasons pp 23-24) said that the complaint (as evidenced by N and M) that both the appellant and P had touched her in the bum was made when "fresh in [M's] mind", the appellant complains that it is not clear what her Honour meant by "fresh in her mind".
Third, the appellant criticises her Honour's reference to M having differentiated between the appellant and P by reference to the former's use of pornographic VCRs (reasons pp 21; 25), on the basis that there was no further elaboration of this as a point of distinction.
Complaint is made that, apart from "some incidental references" when summarising the contents of the JIRT interview, her Honour did not state in her reasons what M said about P in that interview or in cross-examination. The appellant identifies the "very marked similarity" of the allegations as a crucial component of the defence case and argues that her Honour was required "at the least" to set out the allegations and to explain how "given the apparently extraordinary coincidence of the much the same conduct being committed against her separately and repeatedly by 2 people" her Honour had excluded the reasonable possibility that M was simply mistaken that there was an occasion on which the appellant was the offender rather than P. It is submitted that reliance on the complaint evidence and the distinction in relation to the use of pornographic VCRs does not suffice in this regard.
The appellant further submits that the fact that M's descriptions were considered by her Honour to be graphic and realistic for a child does not "delimit the source of [M's] knowledge" to abuse from the appellant; and that the tendency evidence "did not otherwise cure the case".
Finally, the appellant complains that, although her Honour found that N was mistaken as to dates, her Honour did not identify which dates or what was the significance of this (see reasons p 25).
The Crown submits that the requirement to give reasons does not require the trial judge to perform the functions now contended for by the appellant (of setting out in detail the respective allegations of abuse by each of the appellant and P and then giving an explanation of how the trial judge "excluded" the reasonable possibility that M was mistaken). It is submitted that it is sufficient for the trial judge to have stated generally and briefly the grounds which led her to the conclusions reached concerning the comingling question and to have set out her findings on the principal contested issues (citing Soulezmis v Dudley (Holdings) Pty Ltd).
The Crown argues that, while it is necessary that the judge articulate the essential ground or grounds on which the decision is based, there is authority that while in many cases the reasons for preferring one conclusion over another should be given, where the resolution depends entirely on credibility, it is (or may be) enough that the judge simply finds one way over another (citing Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280-281; W v R [2014] NSWCCA 110 at [147]; Siafakas v R [2016] NSWCCA 100 at [68]; Cutajar v R [2016] NSWCCA 222 at [12].
The appellant relies on Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34, where the High Court upheld an appeal as to the insufficiency of reasons. There, the Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) at [12] identified the error of the Court of Criminal Appeal of the Supreme Court of South Australia as being to view the appellant's trial as reducing to a case of "word against word" and went on to say: It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt.
The Court said (at [13]) that to dismiss the complaint as to sufficiency of reasons on the footing that the trial judge's acceptance of the complainant's evidence necessarily carried with it rejection of the appellant's evidence "was to overlook that the judge's acceptance of [the complainant] as truthful was not inconsistent with the existence of a reasonable doubt as to guilt" and that: Even if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true".
The failure in that case of the trial judge to record any finding rejecting the appellant's evidence left as one possibility that the judge "simply preferred" the complainant's evidence and proceeded to convict upon it, applying a standard less than proof beyond reasonable doubt ([14]). The absence of reasons sufficient to exclude that possibility was what constituted legal error. However, it was unnecessary for the Court to address the consequence of that error in circumstances where the challenge to the sufficiency of the evidence was successful, requiring the conviction to be quashed ([14]).

Determination

In the present case, the complaints as to adequacy of the trial judge's consideration of the evidence and/or the defence case and as to the adequacy of her Honour's reasons are not made good.
Pursuant to s 133(2) of the Criminal Procedure Act 1986 (NSW), the trial judge was required to include in the reasons for judgment the principles of law applied and the findings of fact on which her Honour relied. She was required to refer expressly to all warnings that would be required to be given had there been a jury. In other words, her Honour was required to expose her reasoning process (see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6]). Her Honour was also required to explain the reason for findings of fact (Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30]).
The obligation to give reasons has been considered in various authorities. Most often cited in this context is Soulemezis v Dudley (Holdings) Pty Ltd (albeit a case in the civil context). There, Kirby P said: This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.
In the present case, the trial judge did not fall into the error identified in Douglass of reducing the case to a "word against word" case. Nor did her Honour proceed on the basis that, if she accepted M's evidence, that alone would be sufficient to convict. Rather, her Honour did what the High Court in Douglass emphasised was necessary - considering M's evidence in the light of the whole of the evidence. Her Honour gave reasons for rejecting the comingling/conflation argument. Accepting that there is force to the criticism that on some issues (such as the presence of D at the time of the offences) her Honour's reasoning involved simply a statement of conclusion, there was in my opinion a sufficient statement of reasons for her Honour's ultimate satisfaction beyond reasonable doubt as to the appellant's guilt on the indecent assault counts.

Ground 3: unreasonable verdict ground

As to the final ground of appeal, the appellant argues that the trial judge's advantage in seeing M give evidence could not, in the circumstances, ameliorate the difficulties with the Crown case, which should have compelled a reasonable doubt.
This argument is based on the two issues identified earlier: lack of an opportunity to commit the assaults in the indictment period and the co-mingling argument based on the similarity of the allegations made against the appellant and P, respectively (coupled with the discrepancies in the complaint evidence). I consider each in turn.

Lack of opportunity

The appellant emphasises N's evidence as to the following: that throughout 2010 she and the appellant were getting more and more distant and seeing each other less and less (T 81-82); that N moved with her children back to her mother's home in Minto for about five months when she split up with P, returning on her birthday on 22 November 2010 (T 83); that she did not see the appellant while she was living at Minto (T 83); and that she was not in contact with the appellant when she returned to Londonderry, and that he did not come around for about six months before he pleaded guilty (T 81, 83).
The appellant argues that this effectively excluded from consideration the period from late June 2010 and therefore that the Court had to be satisfied that the alleged offences occurred in the limited period between 14 March 2010 and late June 2010.
As to the evidence of babysitting, the appellant argues that M's evidence (that the appellant had babysat her since she was two years old (Q/A 99-102) and to the effect that he had babysat her alone on numerous occasions (Q/A 54, 62, 63, 75, 113, 205, 284-285; read with Q/A 137; T 26-27)) is not consistent with that of N. He points to N's evidence in chief that the appellant babysat her children a "couple of times", including in about mid to late 2009 when she and P went away to Stockton Beach for the weekend (T 54-55) in contrast with her statement to police to the effect that the appellant did not look after her children on many occasions, and if he were around them with her not there it was a case of her going out, leaving the children with P and the appellant coming over (T 67-68). At the time of making the statement, N recalled only one occasion when the appellant babysat alone, that being the Stockton Beach trip (on which occasion the incident could not have happened).
The appellant notes N's evidence that after the Stockton Beach trip, the sexual relationship with the appellant stopped and they became less close (T 55, 73) and that it was some time after the Stockton Beach trip that N became aware of the H allegations (T 55).
After MB's call to N, N said she trusted the appellant's denials, and thought she may have allowed him to babysit her children on "maybe a couple" of occasions (T 59) but, when cross-examined on her recollection of the appellant babysitting after she became aware of the allegations, she said "I can't remember, to tell you the truth. He may have looked after them, he may not have looked after them" (T 69).
W's evidence was that when N reported to her that the appellant had been arrested over H's allegations, she (W) asked N not to leave M and D with anyone, specifically the appellant, and she says that N replied "she doesn't, she leaves [P] with them if she has to go out" (T 91-92). The appellant also points to the evidence that N had a friend who helped babysit and that she and P did not go out together much in the evening (T 73).
In his ERISP, the appellant said he could not remember if he babysat M. Later, he denied that he babysat her from when she was two or three or had alone time with her. Later again, he said he could not remember whether he did or didn't, and if he did, it would have been a "very, very" or "super rare" occasion. He could not remember being alone with her.
The appellant submits that N's evidence, coupled with W's evidence and his own statements in his ERISP, did not support M's evidence that he babysat her on numerous occasions, including alone. Apart from the Stockton Beach trip, there was no specificity as to when the appellant might have babysat her. It is submitted that there was no compelling evidence that the appellant babysat M much or, by the indictment period, at all.
It is submitted that, since M lived with P, who did care for her in N's absence, M's belief in repeated babysitting by the appellant ought to have raised reasonable doubt as to whether she had mistakenly transposed the appellant for P.
The Crown points out that it is not uncommon in child sexual assault matters for a complainant to be able to describe in detail only one specific incident of sexual misconduct (referring by way of example to HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16).
The Crown points to the statements by M in her JIRT interview that the appellant "always tried" to do something to her (Q/A 54); that he "used to try and have sex with me" (Q/A 62); that, when asked how many times she watched the videos with her "uncle", she said "Since he kept on babysitting me" (Q/A 113); and that "[h]e tried to kiss me on the lounge and have sex and all that, have sex", that he did this "[a]ll the times he babysitted me" and that "And he used to do it all the time" (Q/A 283; 283; 287).
The Crown also refers to the evidence of M that the appellant started babysitting her when she was two years old (Q/A 99) (based apparently on her mother taking her with her when she was one and that her mother had said the appellant could take care of her when she was two years old - Q/A 100; though she denied this was something that her mother had told her recently) and that it stopped at around her seventh birthday (see Q/A 381 as to the complaint and her mother confronting the appellant). The Crown notes that N confirmed that the appellant did babysit the complainant on occasions; and points to the appellant's answers in his police interview.
It is submitted that this evidence provided the basis for the finding that the abuse was persistent and ongoing.
The Crown argues that the appellant's assertion that the offences could only have happened between 14 March 2010 and late June 2010 (and that the period from June 2010 is effectively excluded from consideration) (see appellant's submissions at [16], [59]) is based on the acceptance of the whole of N's evidence but points to the finding by the trial judge that N was mistaken as to dates due to her chaotic lifestyle and drug abuse, a finding well open on the evidence. The Crown also points to the statement of the appellant that he continued to have a sexual relationship with N until the "weekend I got arrested for [H]" (Q/A 31) [which was 22 January 2010 - see Scott Jaeger [5]) Exhibit E].
The Crown also points to the following admissions by the appellant in his recorded interview as support for M's complaint: that he watched pornography at N's home (Q/A 234); on a VCR (Q/A 254); 40, that (if he did babysit her) it would have been a very, very rare (super-rare) occasion (Q/A 290; 293) (earlier having said he honestly could not remember if he did or if he did not babysit M - (Q/A 286)); and that M would have seen him naked (Q/A 363).
The Crown submits that the finding that there was contact between N and the appellant until the appellant pleaded guilty (7 March 2011) was a finding which was open on the evidence and was consistent with M's evidence that he was at her birthday party on or around 14 March 2011.
Thus the Crown submits that it was well open to her Honour to find that the appellant had the opportunity to commit the offences.

Repeated, almost identical allegations

The appellant notes that in the JIRT interview M suggested that the appellant's sexual misconduct occurred on multiple occasions (referring to Q/A 50, 102-103, 272, 286-294, cf 206-208) but that, when giving evidence in cross-examination and re-examination, M remembered just the one occasion with the appellant, and did not know if there were others (T 26, 29).
The appellant emphasises that both in the JIRT interview and at the trial, M spoke about abuse committed upon her by P. It is suggested that the JIRT officers may have been more interested in finding out about the appellant because by then P was dead (submissions [27]).
The appellant notes that in the JIRT interview, M described the appellant's appearance but says that she did so "not in any distinctive, compelling way" (she said he was tall; she did not know his hair or eye colour; she said that he wore jeans and joggers, and a green shirt - see Q/A 338-340). He points out that M was not asked to, and did not, describe what P looked like.
He points out that the conversation to which W gave evidence as to M asking whether babies grow in your bottom was put as being when M was four and that there was then a year-long period when W was not allowed to see her grandchildren (at P's direction) (T 92).
He also refers to N's evidence that she and P watched pornography together in her bedroom, on probably about four DVDs and the internet; and that she threw out the DVDs when P died, and did not remember their content (T 55-56.58); though noting that M said she never watched videos on the computer (T 18).
The appellant argues that there was no suggestion that the appellant and P orchestrated separately to abuse M in an almost identical fashion and that the suggestion that they did separately abuse her in an identical fashion is extraordinary. He points out that initially M said twice that P also played her pornographic videos and that there was pornography available in the house. It is submitted that the rest of M's account of the repeated acts of abuse was essentially the same.
It is submitted that, coupled with M's questionable belief in repeated babysitting, and that she could only separately identify one incident involving the appellant and by the time she gave evidence did not know if there were others, heightens the inference that she confused them for this one occasion, when it was P who was systematically abusing her.
As to the complaint made by the appellant as to her Honour's findings in light of the similarity of the accusations made about P, the Crown emphasises that M consistently (both in the JIRT interview and in evidence at the trial) complained that she had been abused both by the appellant and by P; and that a major point of distinction between her description of the abuse was that the appellant showed her pornography and P did not (referring to Q/A 362, 363; T 17.40, 18.5, 29.5).
The only suggestion to the contrary is from early in the JIRT interview at Q/A 62-63: Q62. OK. Now, you said some, They do something to me. A Well, my uncle used to try and have sex with me. Q63 Yeah. A He showed me these videos of it and I didn't wanna watch it and all that but he, he kept on making me, and so did my dad. And they just tried to kiss me and all of that. And I kept on tryin' to stop them but they wouldn't. And that's all I could remember of that one. (my emphasis)
However, it is clear by the time the detailed description is given of watching the movies that M is speaking about the appellant; and (at Q/A 362; 363) M said that P kissed her "and done the same thing" as the appellant and that he "tr[ied] and have sex and do the same things" but did not show her the videos. Cross-examined on this (T 17/18), M was (at least on paper) adamant that P did not show her the videos, only the appellant did. M answered without qualification in the JIRT interview that the appellant had started doing something to her first (before P started) (Q/A 372).

Complaint

As to the evidence of complaint, the appellant argues that it did not provide much support for the Crown case and can be seen as furthering the argument of comingling by M of the appellant and P. The appellant contrasts M's version with that of N.
As to M's version, in the JIRT interview, M said that at her seventh birthday party, in the lounge room at Londonderry while others played outside, she complained to N about the appellant (but not P as she was shy) (Q/A 370, 375-380). Her complaint was in similar terms as what she said P did. M said the appellant was at the birthday party, and N called him into the room and got angry with him and told him to stay away from her and not babysit her again (Q/A 381-384). In cross-examination she said that N tried to punch him (T 11, 13).
In evidence-in-chief N could not remember if the appellant was at M's seventh birthday party, but when told the year of 2011 in cross-examination said that he was not. (The appellant points out that this is consistent with her evidence that she saw the appellant less and less and that she cut off contact when he pleaded guilty, which would have been about a week earlier) (T 60-61, 79).
In cross-examination, M agreed that she told N about what P had done at the house in Londonderry; that she was seven years old; and that P was still alive. M did not remember what she said to N nor N's reaction but recalled that N got P to come straight into the room, yelled at him and "told him everything". M did not remember what he said back (T 15-16). After P died, she again complained to N about P (T 23-24). There is no suggestion that she then complained about the appellant. When cross-examined, N denied that M had made a second complaint about P (T 80).
The appellant refers to N's evidence of M's complaint; including that, when she spoke to M in her bedroom before the appellant had pleaded guilty to offences against H, M had initially said "no" when asked if anyone had touched her inappropriately; had then said both the appellant and P "had touched her in her bum" and then, when asked whether she was sure and telling the truth, M said "no" (T 61). In cross-examination, N agreed she asked M about "Uncle Robert" but not specifically "Dad". N thought M may have overhead conversation between P, his then wife MB, the appellant and herself as to what was going on between them and H (T 77-79). The appellant submits that the combination of these circumstances do not provide reliable evidence of complaint against himself.
The appellant submits that N's evidence of her confrontation with the appellant suggests that M has mistaken a scene she witnessed with P for one with the appellant.
There was also an inconsistency between N's and W's evidence about the trust circle held on 13 July 2013 (in which they both recounted a complaint by M to the effect that both P and the appellant had put their penises in her mouth or made her kiss their penises) (N at T 64-65; W at T 90-91) and M's denial that she complained in these terms, or that it was the truth (T 24).
The appellant notes that neither N nor W said that M ever made a complaint about the appellant in separate or in different terms from that against P.
The Crown points out that the assessment of the credibility and reliability of the evidence of witnesses in the present case was quintessentially one for the trial judge to determine (referring to what was said by RA Hulme J in Atai v R [2014] NSWCCA 210 at [134]). The Crown emphasises the advantage her Honour had in seeing not only the complainant M but also her mother N give evidence. The Crown also points to the significant support for the Crown case found in the tendency evidence, namely the tendency of the appellant to have a sexual interest in young girls aged between six and seven who were in his sole care and that he was prepared to act on that interest. The Crown points out that, at roughly the same time as the appellant was babysitting M, he was sexually abusing his seven year old daughter H (and on at least one of those occasions he was babysitting H when her mother went out).

Determination

In Filippou v The Queen, the majority (French CJ, Bell, Keane and Nettle JJ) made clear (at [11]-[12]) that the finding of guilt in a judge alone trial is to be treated as if it were a jury's finding of guilt. In the absence of a misdirection leading to a miscarriage of justice, such a finding is not to be disturbed unless, relevantly, there is no or insufficient evidence to support the finding, or the evidence is all one way or the finding is otherwise unreasonable. This Court has applied this principle recently in Parton v R [2016] NSWCCA 291.
In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493, the High Court (going on to recognise (at 494) that a doubt experienced by an appellate court, making full allowance for the advantage enjoyed by the trial judge, will be a doubt which the trial judge ought to have experienced) said that: 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. (footnotes omitted)
In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) said (at [113]): It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt. (my emphasis; footnotes omitted)
In Filippou, at [12], the plurality adopted and adapted the following from M v The Queen: It is only where a [judge'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. ... 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 [judge], 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."
I have carefully reviewed the transcript of the proceedings and exhibits admitted into evidence at the trial, though I have not had the benefit of observing the recording of the JIRT interview or the ERISP.
That material, and particularly the cogency of the description by M of the sexual and indecent acts that were done to her, leaves me in no doubt that she was subjected to sexual abuse; and on more than one occasion. As the trial judge noted, her description of the flaccid penis against her anus is particularly telling; so also is her graphic description of the video she was made to watch during the one incident that she remembered with particularity. So too is her description of the "hump hump hump" motion as the penis went up and down. But for the description of the penis as light and soft; and the fact that though it felt bad it did not hurt, the description of the abuse stopping when "he pulls it out" of her "bum hole" would have supported a conclusion of anal penetration.
Here, the trial judge's undoubted advantage in seeing and hearing the evidence of M, through both the JIRT interview and during her evidence on CCTV, cannot be underestimated. Not only did M describe what happened to her in terms that her Honour accepted, and understandably so, were particularly telling, M also demonstrated the rubbing/tickling in the area of her vagina that her Honour considered clearly demonstrated an act with a sexual connotation. As I read the transcript, M also demonstrated the manner in which she was pulled onto the perpetrator's lap and how they were sitting. Similarly, the trial judge was in the position to see both N and W give their evidence.
The appellant does not seek to persuade this Court that sexual abuse of the kind comprised in counts 1A and 2 did not occur. Rather, he argues that the trial judge should have had (and this Court must have) a reasonable doubt as to whether the offences occurred in the indictment period and as to whether he was the offender or, which he contends, whether M had conflated him in her mind with P (against whom she made almost identical allegations).
As to the asserted lack of opportunity, there is no doubt that N was unreliable in her recollection of dates - perhaps in part caused by her confusion or misunderstanding as to the stages in the criminal justice process; perhaps also by the fact that for a period of time she acknowledged she had a drug abuse problem.
Taking W's evidence (that N stayed with her in Minto for "a couple of months" - T 88.45, until she and P "were starting to date again"), the period in which there would have been opportunity for the offences to be committed cannot necessarily be confined to the three month period contended for by the appellant. On W's evidence the period in which access was possible during the indictment period would have been from March 2010 through to about September 2010.
Nor is the happening of the offence during the indictment period properly described as an element of the offence. In that regard, it is relevant to note that the appellant's access to M clearly extended back at least to September 2009 and for a time before that when he was involved in the sexual relationship with P and N (when he admits that he was at the Londonderry house). He had a familiarity not only with the layout of the house but of matters such as that the VCR player in the bedroom did not work (according to him). And his denial of having babysat M at the age of two can be contrasted with his acceptance that he may have babysat her or the children at Londonderry.
There was sufficient evidence for the trial judge to be satisfied beyond reasonable doubt (as she clearly was) that on at least one occasion around March 2010 (or thereabouts) when M was around six years old, through to somewhere towards the end of that year, the offences happened.
As to the conflation or comingling argument, the most striking point to note is that the allegation of abuse by both men was made by a child who lived with one of the men she was accusing (and who she thought was her father) and the other was familiar to her as someone she thought was her uncle. It beggars belief that she would not know the difference between the two men. There was certainly no suggestion that they were so alike in their features that they might have been confused.
The complaint made in March 2011 when (as the trial judge pointed out) conduct occurring sometime during the previous year would have been fresh in her mind. At the very least it would have been more fresh than it was when she had her interview with JIRT and, later, when she gave evidence at the trial in March 2015. That complaint extended to conduct by both P and the appellant. True it is that there were discrepancies in the complaint evidence -particularly, whether N told M at the time of the first complaint that if it were true they would have to leave the home and whether M referred to kissing the appellants' penises at the time of the "trust circle" complaint. However, the touching of her bottom was common amongst the differing accounts given of M's two complaints.
The significance attributed by the trial judge to the differentiation made by M as to who showed her the videos was in my opinion well placed. I accept that in the JIRT interview M twice suggested that P had also made her watch videos. However, it was (seemingly emphatically) denied both when the account was clarified at the end of the JIRT interview and at the trial. The reference to "so did my dad" was in response to a question exploring what she meant by saying "[t]hey do something to me", to which M had said "well, my uncle used to try and have sex with me" and then elaborated on that answer by referring to the videos. In that context, it is possible that the words "and so did my dad" related to him trying to have sex with her. It would be necessary to see the recorded interview in order to form an opinion as to how that was said at the time. The corrected answer at Q/A 105 ('like my dad") is, at least on paper, a clearer response linking P to the showing of pornographic videos. That makes more critical the ability to have seen the manner in which M answered the various questions because later in the interview it was M who volunteered that P did not show her the videos (about which she was later cross-examined).
If M had indeed conflated the two men in her mind there would have been no occasion for her to have distinguished between them in this regard. Nor is there any obvious reason for her to have deliberately sought to introduce such a distinction. Moreover, her description of the appellant bringing the videos in a bag (coupled with her detailed description of how the movie was shown on the video player) is again particularly telling.
Where the appellant's submission has some force is in the unlikelihood that two men would separately abuse M in precisely or almost precisely the same way. Counsel for the appellant emphasised, more than once, the extraordinary or inherent unlikelihood of the same "peculiar" allegation being made in relation to two men (using "peculiar" in the sense of "particular", not in the sense of "strange"). I accept that there was no suggestion of any orchestration between the two men. However, there need not have been orchestration between them to give rise to the possibility that each separately engaged in substantially the same acts with M (even though their common participation in other joint sexual activity was with an adult not a child). Counsel for the appellant accepted that this was a factor that might be taken into account (AT 7.24) but maintained that it nevertheless did not lessen the unlikelihood of the two men independently doing the same thing to M (other than, if M's evidence is accepted, showing her the videos).
That said, he evidence said to be critical in emphasising the identical nature of the allegations was in truth a list of things put to the appellant by defence counsel (and largely accepted by M in monosyllabic answers), but not including the one differentiating factor that M was not shaken on in cross-examination (the showing of the videos).
In those circumstances, having regard to the tendency evidence, to M's familiarity with the men, and to the fact that from the time of the first complaint M identified both men as having abused her, I am not persuaded that there is a significant possibility that the appellant has been wrongly convicted. When full allowance is made for the advantage enjoyed by the trial judge in that regard, I am not persuaded that the evidence is such that the trial judge must have entertained a reasonable doubt as to the appellant's guilt; nor that there has been a miscarriage of justice.
Leave is required to appeal on the basis of ground 3 (s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)). As that ground is linked with the first two grounds of appeal for which leave would not be necessary, I would grant such leave in relation to the third ground of appeal but would dismiss the appeal.
CAMPBELL J: I agree with Ward JA.
N ADAMS J: I have had the advantage of reading in draft the judgment of Ward JA. I agree with her Honour that the appeal should be dismissed.
With respect to grounds 1 and 2, I am not satisfied that the trial judge's reasons were inadequate or that she failed to consider all of the evidence and the defence case for the reasons set out by Ward JA.
With respect to ground 3, I too am not persuaded, for the reasons set out by her Honour at [209] - [222], that the trial judge ought to have entertained a reasonable doubt as to the appellant's guilt. My agreement with her Honour on this ground was reached after an independent examination of the trial evidence. In particular, I have had regard to the complainant's interview and evidence at trial, which are summarised by Ward JA at [45]-[76].
This ground was based on a submission that the trial judge ought to have had a reasonable doubt about when the offences took place and also as to whether the complainant had conflated or comingled the appellant with [P]. It was not suggested that the trial judge ought to have entertained a reasonable doubt as to whether the indecent assaults had occurred. This is no doubt because the description of the assaults given to police by the complainant when she was nine years old was so compelling. I share the trial judge's observation that some of the complainant's evidence had an "extraordinary ring of truth" to it (see extract at [106] above).
I have had close regard to the complainant's evidence regarding the allegations made against both the appellant and [P]. I am satisfied that, although the complainant was cross-examined at length about the assaults upon her by [P], she was nonetheless able to differentiate between the two men by the appellant's use of pornographic videos. In her interview, the complainant was also able to state that, out of the two men, it was the appellant who did something to her first. I am not satisfied that the trial judge ought to have entertained a reasonable doubt concerning the appellant's guilt on the basis that the complainant also made complaints about [P] at the same time. The complainant was familiar with both men and was able to differentiate between them.
Despite this, as Ward JA has pointed out at [229], there is some force in the appellant's contention that it is unlikely that two men would sexually assault the complainant in such a strikingly similar manner. I have had particular regard to this submission. As Ward JA has noted, the two men in question had regularly engaged in sexual activity together with the complainant's mother. It seems to me that this fact reduces the unlikelihood that both of them would independently act towards the complainant in the same particular way. The appellant's argument would carry more weight if the two men were strangers. In addition, the complainant did not volunteer two separate accounts that were substantially the same in her JIRT interview; it was only in cross-examination that the child agreed with a list of propositions that were put to her by defence counsel.
The Crown relied upon tendency evidence at trial. The appellant had pleaded guilty to sexually assaulting his own daughter when she was seven years old at about the same time as the allegations concerning the complainant, at which time the complainant was aged six years old. The appellant told police in his ERISP that he believed that the complainant was also his biological daughter. The tendency relied upon was that the appellant had a sexual interest in young girls aged between six and eight years of age whom the accused believed to be biologically related to him. This evidence adds further support to the Crown case.
In Filippou v The Queen (at [12]) their Honours stated that, to "adopt and adapt the language of M v The Queen", it is only when a trial judge'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. I agree with Ward JA's observation at [210] that this is a matter in which the trial judge's advantage in seeing and hearing the evidence of the complainant, both in the JIRT interview played as her evidence in chief at trial and her cross-examination at trial, cannot be underestimated. The trial judge described the complainant as "honest and accurate" and stated that she gave an account that was "reliable" and "compelling". The trial judge concluded that the complainant's evidence stood up to the level of scrutiny required. I have had regard to the advantage experienced by the trial judge when considering the trial evidence. I am not satisfied that the trial judge ought to have entertained a reasonable doubt in this matter.

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: 03 May 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (21)

Cited By (2)