TWM v R - [2018] NSWCCA 276 - NSWCCA 2018 case summary — Zoe

NSWNSWCCA

TWM v R

[2018] NSWCCA 276

Court of Criminal Appeal (NSW)|2018-04-20|Before: Fullerton J, Davies J, Adams J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-04-20

Before

Fullerton J, Davies J, Adams J

Catchwords

[1994] HCA 63 MC v R [2017] NSWCCA 274 MacKenzie v The Queen (1996) 190 CLR 348
[1996] HCA 35 Merrick v R [2017] NSWCCA 264 R v Jefferies [1969] 1 QB 120 R v Markuleski (2001) 52 NSWLR 82
[2001] NSWCCA 290 R v Rowe [1955] 1 QB 573 R v Stringer [2000] NSWCCA 293 SKA v The Queen (2011) 243 CLR 400
[2011] HCA 13 Sen v The Queen (1991) 30 FCR 173 Stanford v R [2018] NSWCCA 249 TK v R (2009) 74 NSWLR 299

Source

Original judgment source is linked above.

Catchwords

[1994] HCA 63 MC v R [2017] NSWCCA 274 MacKenzie v The Queen (1996) 190 CLR 348[1996] HCA 35 Merrick v R [2017] NSWCCA 264 R v Jefferies [1969] 1 QB 120 R v Markuleski (2001) 52 NSWLR 82[2001] NSWCCA 290 R v Rowe [1955] 1 QB 573 R v Stringer [2000] NSWCCA 293 SKA v The Queen (2011) 243 CLR 400[2011] HCA 13 Sen v The Queen (1991) 30 FCR 173 Stanford v R [2018] NSWCCA 249 TK v R (2009) 74 NSWLR 299

Judgment (15 paragraphs)

[1]

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/379765 Decision under appeal Court or tribunal: District Court Date of Decision: 23 September 2016 Before: Armitage DCJ File Number(s): 2013/379765

[2]

Judgment

FULLERTON J: The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal his convictions after a jury returned verdicts of guilty on 7 of 10 counts alleging a range of sexual offences between 2004 and 2010 committed against KR, a child aged between 4 years and 10 years at the time of the offending.
On 15 December 2016 the applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years.
The appeal was heard on 16 March 2018. The Court reserved its decision on that day. In late May 2018 the Court was advised that the applicant died of natural causes on 13 May 2018.
The indictment presented at the applicant's trial in September 2016 contained the following counts and attracted the following verdicts: 1. Between 9 September 2004 and 8 September 2005, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). The applicant was found not guilty. 2. Between 9 September 2004 and 8 September 2005, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act. The applicant was found guilty. 3. Between 9 September 2004 and 8 September 2005, inciting an act of indecency by the complainant then aged under 10 years, contrary to s 61O(2) of the Crimes Act. The applicant was found guilty. 4. Between 1 October 2005 and 31 October 2005, inciting an act of indecency by the complainant then aged under 10 years, contrary to s 61O(2) of the Crimes Act. The applicant was found guilty. 5. Between 1 October 2005 and 31 October 2005, aggravated indecent assault with the complainant then aged under 16 years, contrary to s 61M of the Crimes Act. The applicant was found guilty. 6. Between 1 October 2005 and 31 October 2005, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act. The applicant was found not guilty. 7. Between 28 June 2010 and 31 October 2010, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act. The applicant was found guilty. 8. Between 28 June 2010 and 31 October 2010, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act. The applicant was found guilty. 9. Between 28 June 2010 and 31 October 2010, aggravated indecent assault against the complainant, contrary to s 61M(1) of the Crimes Act. The applicant was found guilty. 10. Between 28 June 2010 and 31 October 2010, aggravated indecent assault against the complainant, contrary to s 61M(1) of the Crimes Act. The applicant was found not guilty.
At the hearing of the appeal the applicant contended that the verdicts on Counts 2 - 5, and 7 - 9, were unreasonable and unable to be rationally supported having regard to the jury's verdicts of not guilty on Counts 1, 6 and 10.

[3]

The evidence

The conduct comprehended by all ten counts occurred between September 2004 and 31 October 2010 at the complainant's home and at her grandmother's home. The complainant is the applicant's niece by marriage.
The complainant's evidence in chief was adduced in the form of two interviews conducted by a joint investigation response team (JIRT) on 22 November 2011 (the 2011 interview) and 26 November 2013 (the 2013 interview). The complainant was aged 11 at the time of the 2011 interview and aged 13 at the time of the 2013 interview. She was aged 16 at the time of the trial.
The applicant gave evidence at trial in which he denied sexually misconducting himself with the complainant.
The 2011 interview was conducted after the complainant disclosed to her parents that the applicant put his hands down her pants before touching her vagina. That disclosure was made on 30 October 2011 following a visit by the applicant with the complainant and her family for the last of what had hitherto been a series of family occasions over a number of years. The only conduct complained of in the 2011 interview was ultimately the subject of Count 1 on the indictment; namely, conduct which the complainant described as having occurred some years earlier, and as to which the jury returned a verdict of not guilty. She did not complain, at that time, of an incident which she later described as having occurred that very day. That conduct ultimately became the subject of Count 10 on the indictment; a count which also attracted a verdict of not guilty. The delay in complaining of the conduct the subject of Count 10 (it was the subject of detailed complaint in the 2013 interview) and the conduct the subject of the balance of the counts on the indictment, was said by the applicant, both at trial and on the appeal, to be seriously undermining of the complainant's credibility such as to raise a reasonable doubt as to the applicant's guilt in respect of all counts on the indictment.
It was in that connection that particular emphasis was placed upon what the complainant said in her 2011 interview when asked the following questions: Q269. … So has anything like this … ever happened before with [the applicant]? A. Not really. Q270. What do you mean? When you say not really, what do you mean by not really? A. Nothing really happened. I mean, I still talk to him and everything, and I still treated him like my uncle, because I thought he was family.
Later in the same interview when asked whether "anything like [the applicant] putting his hand down … your pants … happened before?", the complainant responded: No, it only happened the once.
The applicant was neither arrested nor charged following the 2011 interview. The complainant participated in a further interview with police after making a further disclosure to her father in 2013. That disclosure was precipitated by the complainant experiencing bullying at school, and her school counsellor's encouragement to, in the complainant's words, "tell ... the other parts of the story". That encouragement was offered after the complainant asked her school counsellor whether a further disclosure would "make a difference". The complainant's further disclosure to her father occurred over a period of approximately one week.
In the complainant's 2013 interview, in addition to the isolated conduct she complained of in the 2011 interview, she described four additional incidents of sexual misconduct involving the applicant. In that interview she maintained her account that the incident she described in her 2011 interview had occurred, but told police that it was the first occasion on which the applicant assaulted her. The four additional incidents were the conduct the subject of Counts 2 and 3, Counts 4, 5 and 6, Counts 7, 8 and 9, and Count 10 on the indictment.
The applicant's claim that his conviction was unreasonable and unable to be supported having regard to the evidence obliges this Court to consider the complainant's evidence in support of each count on the indictment, both for its sufficiency in accordance with settled principles where a jury's verdict is under challenge on this basis and to examine whether the verdicts of the jury can be rationally reconciled.
In Merrick v R [2017] NSWCCA 264 at [78]-[79], the Court restated the obligation on the Court when considering an appeal under s 5(1) of the Criminal Appeal Act to do so referable to the settled principles laid down by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, summarised by a majority of the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
The test to be applied is settled and frequently restated. The starting point is the decision of the High Court in M v The Queen where, at [493], the Court said: 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. (citations omitted)
As Simpson AJA observed most recently in Stanford v R [2018] NSWCCA 249 (at [52]-[55]): 52. It may therefore be seen that two competing considerations arise: regard that must be paid to the constitutional role of the jury in the determination of the guilt or otherwise of an accused person and the duty of an appellate court to make its own independent assessment of the evidence both as to its sufficiency and quality: Morris v The Queen (1987) 163 CLR 454 at 473, cited at [14] of SKA; MacKenzie v The Queen (1996) 190 CLR 348 at 365. 53. A particular line of authorities has developed in the application of those principles where the unreasonableness of the verdict is said to arise from inconsistency of verdicts - that is, where a person accused of multiple offences is convicted of one or more, but acquitted of another or others. In those circumstances the court must be astute to ascertain whether there is a proper way to reconcile the verdicts (MacKenzie at p 367); Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [8]. The test is one of logic and reasonableness: MacKenzie at p 366. That assessment must be made in the light of the facts and circumstances of the particular case: MFA at [34]. 54. In Jones v The Queen (1997) 191 CLR 439 a jury convicted an accused person of two out of three counts on an indictment, but acquitted on one count. The Crown case in respect of each count depended on the evidence of the complainant. The High Court found no basis for thinking that the quality of her evidence was higher in respect of the counts that led to conviction than it was in respect of the count that resulted in acquittal. When that circumstance was combined with two other factors - a lengthy and unexplained delay by the complainant in making complaint, and the uncorroborated nature of the allegations - the High Court concluded that the convictions were (in the language that then prevailed) unsafe and unsatisfactory (at p 455). 55. As comprehensively explained by Spigelman CJ in Markuleski, the decision in Jones is not authority for a generalised proposition that a mix of verdicts in a trial where multiple offences have been charged is indicative of the unreasonableness of verdicts of guilty. In MFA, a submission that Markuleski was wrongly decided was rejected (at [32]). Where the evidence on all counts is that of a single witness, however, careful scrutiny of the surrounding circumstances is required.
Earlier, in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128] Simpson J (as her Honour then was) said (McClellan CJ at CL and Latham J agreeing), "the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals".
In MC v R [2017] NSWCCA 274 Hoeben CJ at CL (with whom Davies and Bellew JJ agreed) said: 90. Under the single ground of appeal, the applicant contends that the guilty verdicts on Counts 1 - 4 are also unreasonable because they are inconsistent with the not guilty verdicts returned by the jury in respect of Counts 5 - 6. The approach to be taken by this Court when such an assertion is made is well established: Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366 [31] - [32]; R v Markuleski at [219] - [221]; TK v R [2009] NSWCCA 151; 74 NSWLR 229 at [2] - [8]; Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 at [1] - [24]; Lepine v R [2017] NSWCCA 83 at [31]; Abbey v R at [38] - [40]; Nguyen v R [2017] NSWCCA 145 at [34] - [47]. 91. Ultimately, the test is one of logic and reasonableness. The applicant must establish that the different verdicts cannot stand together in the sense that no reasonable jury that applied their minds properly to the facts could arrive at that conclusion. If there is a proper way by which the verdicts can be reconciled, assuming a conclusion that the jury performed their functions as required, that conclusion will generally be accepted (MG v R [2017] NSWCCA 14 at [88]).

[4]

The first bedroom incident - Not guilty verdict on Count 1

In the 2011 interview the complainant said the conduct the subject of the first count on the indictment occurred "a couple of years ago" when she was "about six or seven". She said that she was at her grandmother's home for a "family get-together" and was playing with her cousins in a bedroom upstairs. When her cousins left the room the complainant remained behind and was sitting on the bed when the applicant entered the room. The complainant alleged that the applicant began "tickling [her] tummy" and then put his hands down her pants and inside her underpants. She said the applicant touched her vagina causing her to "freeze". He then removed his hand and said "something like that he liked that smell". The complainant said that she ran to the bathroom, locked the door and washed her face. She said that she remained in the bathroom for about three minutes before going downstairs after which she stayed close to her parents.
In the 2013 interview, the complainant referred again to this incident which she said happened when she was "probably only four". In describing the incident in that interview she said she was close to the doorway of the bedroom when the applicant approached and led her into the bedroom, after which he closed the door behind them and instructed her to sit down. She said she could not remember whether she sat on the bed or on a chair. She said the applicant then knelt between her legs, placed his hand over her mouth, lifted her skirt to her stomach and "started rubbing … in between" her vagina. She said he then smelt his fingers and told her "he liked it or he liked the smell or something like that", after which he stood up and the complainant left the room.
There were other inconsistencies between the complainant's account of the "first bedroom incident" in the 2011 and 2013 interviews, some of which are apparent from the summary above. There are other inconsistencies to which the applicant referred which also warrant noting. 1. The complainant's age - In the 2011 interview the complainant said she was six, while in the 2013 interview she said she was "probably only four". In cross-examination (she was then aged 15 - 16, her birthday having coincided with her cross-examination) she said "[i]n all honesty I can't tell you because the age, of, the date where everything happened is very confusing and I'm really unsure". 2. Where the complainant was when the applicant approached her - In the 2011 interview the complainant said that she was sitting on the bed, while in the 2013 interview she said she was "in the doorway" and was led into the bedroom by the applicant. 3. Whether the applicant said anything to the complainant during the incident - In the 2011 interview she said, "No [he didn't say anything], he just, like, I can't really remember…". In the 2013 interview she said "He told me that this was our secret". 4. The nature of the indecent act - In the 2011 interview the complainant said the applicant "just touched [my vagina] and then it came back out". In the 2013 interview she said "he just kept like rubbing his fingers up and down [my vagina]". In cross-examination the complainant accepted there were differences between the two accounts and agreed that the account given in the first interview "was a lie". No explanation was given as to why the complainant lied. Her concession that she lied was elicited in the following exchange: Q. And then if you can have a look at the 2013 interview, question 152, it's on page 13. You were asked "And when you said that he touched your vagina how did he touch your vagina?" Your answer was "He just kept like rubbing his fingers up and down the first time" Correct? A. Correct. Q. So your evidence in 2011 was that he just kind of touched it but you couldn't remember where; correct? A. Yes. Q. And your evidence in 2013 was that he was rubbing his fingers up and down; correct? A. Yeah. Q. Now they can't both be true can they? A. I agree. Q. Which of those is false? A. The one where he just touched it. Q. So you knew in 2011 at the time when you said that he just touched it that that wasn't true? A. Yes. Q. So that was a lie, was it? A. Yes. 1. The manner in which the applicant put his hand into the complainant's underpants - In the 2011 interview the complainant alleged that the applicant put his hands down into her underpants. In the 2013 interview she alleged that he moved her underpants to the side. 2. The clothing the complainant and applicant were wearing - In the 2011 interview the complainant said that she could not remember what she or the applicant was wearing. In the 2013 interview she stated that she was wearing a pink skirt and a singlet and the applicant was wearing a dark coloured polo shirt. 3. In the 2013 interview the complainant alleged, for the first time, that the applicant placed his hand over her mouth. 4. The complainant made no reference to playing with Lego in the 2011 interview, but in the 2013 interview said of her cousins, with whom she was playing before they went downstairs, "I think we were playing with Lego or something". 5. The applicant made no reference to have been tickled in the 2013 interview.
It was the complainant's evidence at the applicant's trial that the 2013 account was the more accurate account of the incident charged as the subject of the first count on the indictment.

[6]

The second bathroom incident - Guilty verdicts on Counts 4 and 5 and a not guilty verdict on Count 6

The only account of the second bathroom incident was in the complainant's 2013 interview. The complainant alleged the incident occurred at her grandparents' home in the same bathroom as the first bathroom incident. She said she "might have turned 5" when the incident occurred, it having happened "eleven months … before [her] 6th birthday".
The complainant alleged that she was washing her hands in the bathroom when the applicant walked in. As he entered, he closed the door behind him and "nudged" the complainant (later the complainant indicated he did this by "forcing" or "pushing" her down by her shoulders) to sit on the toilet seat, which he had lowered. The complainant recalled the applicant was wearing a dark coloured shirt with "thin stripes that went around" and that "buttoned up at the collar".
After the complainant was seated on the toilet seat the applicant, who was then standing in front of her, asked whether she wanted to "touch his penis and … whether [she] wanted to suck it" (the conduct the subject of Count 4). She did not say anything in response, following which the applicant positioned himself on his knees between the complainant's legs, moved her legs into the air so she was leaning back against the toilet cistern and removed her underwear.
The complainant alleged that the applicant then began to rub two fingers up and down against her vagina for a period of about two minutes (the conduct the subject of Count 5), following which he inserted his right index finger into her vagina "just past his fingernail" while using his left hand to cover her mouth (the conduct the subject of Count 6). The complainant alleged that as the applicant inserted his finger into her vagina she made a sound, but did not "think it was loud enough to be a scream". She assessed the extent to which the applicant inserted his finger into her vagina by reference to him removing his finger from her vagina and putting "the end of his finger in his mouth". The complainant alleged that throughout her assault the applicant said "this [is] our secret".
After the applicant placed his index finger into his mouth, the complainant put her underwear back on and left the bathroom.
The second bedroom incident - Guilty verdicts on Counts 7, 8 and 9
The only account of this incident was in the 2013 interview. She nominated the incident as having occurred between 28 June 2010 and 31 July 2010, referable to the birth of one of the applicant's children and the applicant having returned to Australia from Hong Kong for the celebration.
The complainant had been in the bathroom adjoining her parent's bedroom which was accessible via her parents' bedroom and the laundry. The complainant entered the bathroom from the laundry, and on leaving observed that a lamp was on in her parents' bedroom. She entered her parents' bedroom and found the applicant putting his newborn child to sleep on the bed. The complainant recalled that the newborn was surrounded by pillows to prevent her from rolling off the bed. The complainant recalled that the door to the bedroom was closed.
The applicant told the complainant, "in a soft voice", to sit on the bed. The complainant lay on her side, positioning herself so that she could see the newborn. The complainant recalled wearing white leggings and a singlet, and that the applicant was wearing jeans.
The complainant alleged that the applicant moved closer to her and moved her so that she was lying on her back with her feet off the end of the bed. He then pulled down her leggings and began to rub two fingers from his right hand back and forth "inside of [her] vagina … about 10 times" (the conduct the subject of Count 7). She said that the applicant told her to "be quiet" and repeatedly "shushed" her. The complainant alleged that she and the applicant were "lying diagonally" and that he used his right hand to rub her vagina while leaning back, supporting himself with his left arm resting on his left elbow.
After rubbing her vagina ten times, the complainant alleges that the applicant "stuck his pointer finger up my vagina, but this time [unlike during the second bathroom incident] it was the whole of his finger" (the conduct the subject of Count 8). She described this conduct as having continued "for about a minute and a half", during which time she began to cry and breathe heavily. She described the incident as follows: [H]e would move his finger … up and down. He wouldn't take [his finger] out [of my vagina] but he got to … the top of his finger … and then he just continued to do that.
The complainant said the applicant then removed his hand and put his finger in his mouth. She then pulled up her underwear and tights. She said the applicant then asked her "whether [she] wanted to suck his penis or if [she] wanted to touch his penis", as to which she said, and repeated during the course of conduct that followed, "[n]o, I don't want to, I'll get in trouble". The applicant then directed the complainant to sit up as he unbuckled his belt and lowered his pants permitting him to remove his penis from his pants. He then took the applicant's right arm by her wrist and placed her hand over his penis, forcing her to rub his penis. This continued for three to five minutes during which time the complainant described the applicant as having made "moaning" noises (the conduct the subject of Count 9). She said she then "yanked" her hand away from the applicant. She said that the applicant said "this is our secret. Don't tell anyone" and that "[he] never threatened me but I felt threatened by it". The complainant then left the bedroom and washed her face in the bathroom after which she went downstairs into the kitchen where her parents were washing the dishes.

[8]

The delay in making the complaints

Before the first complaint of sexual misconduct on 30 October 2011 (albeit, at that time, limited to the conduct the subject of the first bedroom incident the subject of Count 1), the complainant had not disclosed the applicant's repeated sexual misconduct over a period of years. In her evidence at trial she described her feelings towards the applicant at that time as "confused". She said: He was family and our family is very family-oriented. … it was a real mixture, but I probably only showed that I like him … I never expressed hate towards him.
When asked during the 2013 interview why, in her 2011 interview, she had only disclosed one instance of the applicant's sexual misconduct, despite it being her evidence that it was the first of a repeated sequence of sexual misconduct, she said: I saw what … damage it had already created and I saw how hard it was for everyone in my family and how so much had changed and I didn't want to make it worse. And I was really terrified that he could come, he would come after me because I had told, told someone our secret.
When asked during the 2013 interview why she had decided to disclose the other incidents at that time and for the first time she said: I was carrying this huge burden around and it was getting to a point where … it was ruining how I function every day and I had spoke[n] to my parents about it, it'd come out and I had told them. I didn't tell them everything … they don't know about … me playing with his penis…
As to what had prompted her to make the further delayed disclosure, she said: I was getting bullied at school and my dad couldn't figure out why I was letting this get to me and why I was being so sensitive for. And he can always tell when I'm upset and I was really stressed out and I was stressed out because I didn't know whether I should tell anyone about the other parts of the story and I remember seeing my school counsellor and talking to her saying, would it make a difference if I told anyone else, um, the different part of this story and she had told me that, um, that it would make me feel safer. And so a couple of weeks later, dad had come in and he was speaking about how school was and I had told him that there are more parts to the story and over that period of week I gradually explained to him what had happened. Q. Ok. A. And then, um, when all of that was happening, that was maybe last month, I didn't want to go to school, I didn't, I couldn't sleep, I wasn't really eating for about a week and it just got to a point where I was, I wanted to self-destruct because it had put me through so much, yeah.

[9]

The competing submissions of the parties

The applicant submitted that his acquittal on Counts 1, 6 and 10 are significant for what they reveal about the challenge to the complainant's credibility generally, particularly given that the conduct the subject of the first count was the only occasion in respect of which the jury had available to it a previous version against which the complainant's honesty, accuracy and reliability could be assessed. The applicant submitted that the competing versions of the events the subject of the first count were replete with material inconsistencies (as to which see [22] above) which ought to have so seriously undermined the complainant's credibility to have necessitated the jury acquitting him not only of the offence the subject of the first count, but to have deprived her evidence of the credibility and cogency necessary to support a finding of guilt beyond reasonable doubt in respect of the balance of the counts on the indictment.
The Crown submitted that after consideration of all of the evidence the jury's verdict is rationally supportable, in large part due to the complainant's explanation in her evidence for the limited disclosure of the applicant's sexual mistreatment of her in her 2011 interview. The Crown emphasised that it was open to the jury to have accepted the complainant as an honest witness who was making a genuine attempt to give accurate and reliable evidence about the serialised sexual abuse she had been subjected to over a period of years, but that they may nevertheless have found that her account of the offending the subject of the first count was of insufficient weight and certainty, in particular as to point in time, to justify them returning a verdict of guilty beyond reasonable doubt.
On the appeal the Crown emphasised that in her evidence the complainant expressed some uncertainty as to when the sexual misconduct the subject of Count 1 occurred. While at trial the parties apparently reached agreement that the issue of the chronological timing of the first bedroom incident would not be treated as significant, it was unsurprisingly treated as an issue of legal significance in the trial judge's directions to the jury (as to which, it is noted, no issue was taken at trial or on the appeal). Those directions are as follows: Charges 1, 2, 6, 7 and 8 are that the accused had sexual intercourse with [the complainant], a child under the age of ten years, namely on charge 1, four years; charge 2, four years; charge 6; five years; charge 7, nine years; charge 8, nine years. The Crown must prove beyond reasonable doubt that between the dates and at the place alleged [the applicant] had sexual intercourse with the complainant. (Emphasis added.)
Later, his Honour directed the jury as follows: If you are satisfied beyond reasonable doubt on the charge concerned that the accused had sexual intercourse with the complainant between the dates and at the place alleged then you must consider the second element. (Emphasis added.)
On the appeal the Crown submitted that once the jury were directed that time was a particular to be proved by the Crown beyond reasonable doubt, it was inevitable that the Crown could not establish to the criminal standard that the conduct the subject of Count 1 occurred between the dates particularised, given the inconsistency in the complainant's evidence as to when the incident occurred; an inconsistency which is patent from her evidence summarised at [22(1)] above.
On the appeal the Crown also acknowledged the manifold discrepancies between the complainant's account of the incident the subject of Count 1 in her 2011 and 2013 interviews as a further basis upon which the jury may have been left with a reasonable doubt as to the applicant's guilt providing, in turn, a rational basis upon which the verdicts may be reconciled. Of further significance, the Crown accepted that the allegation that the applicant "rubbed" his fingers "between" the complainant's labia in her 2013 interview was sufficient to satisfy the element of penetration in a charge of sexual intercourse, whereas the touching of the complainant's vagina as she detailed in the 2011 interview was not. With no alternative count of attempted sexual intercourse or indecent assault available to the jury, the Crown submitted (and in my view, persuasively) that, presented with competing scenarios as to what the complainant alleged occurred, the jury may not have been satisfied the evidence was sufficient to support a verdict of guilty without a reasonable doubt as to the applicant's guilt on the first count impeaching the complainant's credit generally so as to undermine the verdicts of guilty returned on the other counts.

[10]

The competing submissions of the parties

The applicant submitted that the acquittal on Count 10 also had the capacity to undermine the reliability of the complainant's evidence generally, and together with the concerns raised in respect of the applicant's acquittal on Count 1, should have given rise to a reasonable doubt as to the applicant's guilt on all counts.
The applicant emphasised that in both the complainant's 2013 interview and her evidence under cross-examination, she said that she told her parents about the applicant's indecent assault of her that day in the context of her disclosure of the applicant's sexual misconduct more generally. Her account in the interview was as follows: Q738. … When did you finally tell your mum and dad about what had been going on with [the applicant]? A. Um, when, the last time I saw him, when he was tickling me. After he had left I had told my mum that [the applicant] was acting really weird, that he was tickling me and then I said, "That's not the first time he's tried to do something", and I remember telling my mum that because dad had gone and had a shower and I can't remember her reaction but she told me to explain the story and then her and dad went into the bedroom and, um, I had only told my parents about the first bathroom scenario, ah, about, um, the one where we were upstairs and with my cousins and I remember dad, um, came in and I had to explain the story to the, to him. And then we went and saw a counsellor and then we came and saw you.
When the complainant was asked during cross-examination whether she recalled giving the answer extracted in the preceding paragraph, she responded as follows: Q. … Do you remember giving that answer? A. Yes. Q. So, basically you say in that answer that you told your mum that day, the very last incident, the last time you saw [the applicant], the tickling incident if I can call it that. You told your mum about that the very same day that it happened? A. Yes. Q. So there was absolutely no reason then to keep that incident to yourself, because you had already told your mum, would you agree with that? A. Yes. Q. You don't mention that tickling incident at all in your 2011 interview, do you? A. No. Q. No. Your family already knew about that allegation, so it couldn't do them any further damage could it? A. What do you mean? Q. Well you are saying, you said that one of the reasons you didn't tell the police about anything other than that one incident was because you could see the damage that had been caused and you didn't want to them anything else [sic]? A. Yes. Q. But your family already knew about the tickling incident, so there was no reason to be worried about the effect of telling the police? A. Yeah but the way they reacted to that, the way they questioned me about it, made me think well what happens if I was to tell them the rest of it. Q. Perhaps we're at cross-purposes here. I am just asking you about that tickling incident. Your family knew about it already? A. Yeah. Q. So whatever damage was going to be done by them finding out about that incident was already done, would you agree with that? A. Yes. Q. But you still told the police that there was only one incident? A. Yes. Q. So I am suggesting that you didn't tell the police about that tickling incident because it didn't happen, do you agree? A. But it did.
The applicant submitted that the complainant's account of disclosing the "tickling incident" to her parents was inconsistent with their evidence. The complainant's father, when asked whether in October 2011 the complainant disclosed "a single incident" (referring to the conduct the subject of Count 1) he said "yes". The complainant's mother gave similar evidence: Q. I'll just ask you then about when [the complainant] disclosed to you the first time in 2011; you've given some evidence today about what she said to you and that was about a single incident that happened where [the applicant] had put his hand down her pants; that's correct? A. Yeah.
The applicant submitted that the inconsistency between the complainant's evidence and that of her parents can only be rationally explained on the basis that contrary to her evidence she did not disclose the tickling incident to her parents at all. In the applicant's submission, a failure to complain of this event is inexplicable given that, according to the complainant, it happened on the same day that she disclosed the applicant's sexual misconduct and, in addition, it was, on any view, the least serious of all the allegations of sexual misconduct and not one that she would have any reason to understate or overlook.
In the alternative, so it was submitted, were she to have complained about it to her parents as she contends, there was no rational explanation for the failure to complain of the same incident in the 2011 interview, nor any satisfactory explanation for her account in that interview that the applicant only sexually misconducted himself once and many years earlier. The applicant submitted that the explanation offered by the complainant that she had seen the "damage" her disclosure had caused and "didn't want to make it worse" had no traction, particularly given that the applicant claimed to have already disclosed to her parents that the applicant had tickled her in a sexual way such that the disclosure to the police of that incident could not seriously have made the context of her general complaint about the applicant's misconduct any worse.
The applicant also submitted that because the tickling incident was the last in time, its comparative recency allowed the jury to meaningfully compare the complainant's evidence with the recollection of her parents and others. In this respect, the complainant's account was that the applicant's visit to her home on the day in question was preceded by a visit to Seven Hills RSL Club. This was not an account that was supported by any other witness. The applicant gave evidence of having visited an RSL Club but suggested that occurred in 2005.
The Crown submitted that the acquittal on Count 10 could be rationally reconciled by the jury having a reasonable doubt as to a sexual connotation in the complainant's description of the tickling incident such as to have created a reasonable doubt as to guilt for that offence.
The Crown also submitted that the acquittal may equally have been a product of the jury's rational concern that the complainant may have been exaggerating her description of the applicant's tickling of her at the culmination of what had been, by that time, a serialised course of sexual misconduct, but not in such a way as to negatively impact on her credit generally. The Crown referred to R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 where, at [235], Wood CJ at CL identified a number of situations where a not guilty verdict would not lead to a conclusion of inconsistency, including: (e) it is fair to assume that, in relation to a count or counts in respect of which the accused was acquitted, there was room to suppose that the complainant or central witness resorted to a degree of exaggeration in order to reinforce his or her account.

[12]

The competing submissions of the parties

On this count, the parties directed submissions not to issues of credibility per se, but to the sufficiency of the constituent elements of the offence, allied with the trial judge's directions to the jury as to how they should approach their assessment of the evidence consistent with those directions.
The applicant submitted that the only reasonable conclusion to be drawn from the jury acquitting the applicant on Count 6 was that they were not satisfied beyond reasonable doubt of the complainant's evidence of the entire episode of sexual misconduct which was relied upon for proof of each of Counts 4, 5 and 6 on the indictment, there being nothing in her evidence to distinguish between the conduct relied upon by the Crown in proof of all three counts. On this analysis, the applicant submitted that the verdict of not guilty on Count 6 is only susceptible to rational explanation as being contrary to logic and common sense and strongly suggestive of the jury taking a dissociative approach to their consideration of individual counts on the indictment contrary to MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35. The applicant submitted that the jury must have failed to afford weight to their generalised doubts about the credibility of the complainant in finding a doubt as to the applicant's guilt on Count 6 in their consideration of Counts 4 and 5 in particular, and more generally in their consideration of the balance of the counts on the indictment on which verdicts of guilty were returned.
The Crown submitted that the acquittal on Count 6 was readily susceptible to rational explanation by reason of the objective lack of cogency in the complainant's evidence of the penetration of her genitalia - an essential element of the conduct charged as Count 6. Section 61H(1)(a) of the Crimes Act provides: [S]exual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person … (Emphasis added.)
The Crown also submitted on the appeal that the submissions of both counsel, and his Honour's directions, created "a false issue" of the type identified in R v Stringer [2000] NSWCCA 293 at [18]-[19] given the trial judge's direction that in order to convict the applicant of Count 6, the jury would need to be satisfied beyond reasonable doubt that the applicant inserted his finger into the complainant's vagina to some extent. Clearly enough, his Honour's direction, extracted below at [67], was contrary to law in that penetration is constituted not by penetration to any extent of a female's vagina, but a female's genitalia.
The complainant's evidence as to what occurred in the course of the incident relied upon by the Crown at trial in support of Count 6 of the indictment is confined to the following account in the 2013 interview: A. [A]s he was rubbing his finger up and down he took, um, he took one of his fingers off and he tried to stick it up but it, it was only, like, just past the fingernail. … Q. OK. How do you know that it was just past his fingernail? A. Um, because when he took it out he put it in his mouth but he only put the, like the ends of his finger in his mouth. (Emphasis added.)
The "false issue" contended for by the Crown on appeal arose by reason of the Crown Prosecutor opening to the jury in the following way: Count 6 you see return to the concept of sexual intercourse, she says that he then inserted a small part of a finger into the actual vaginal canal using the pointer finger just to the fingernail is what she estimates in the interview. (Emphasis added.)
The trial judge compounded the Crown's error by directing the jury as follows: Charges 1, 2, 6, 7 and 8 are that the accused had sexual intercourse with [the complainant], a child under the age of ten years … … Sexual intercourse means in law in the current context penetration of the vagina of the complainant by the finger or fingers of the accused. The Crown does not have to prove that full penetration occurred or that the accused ejaculated or that the sexual intercourse was for the accused's sexual gratification. If the Crown has failed to satisfy you beyond reasonable doubt that there was sexual intercourse as I have explained the accused must be found not guilty of this charge. … On charge 6 the Crown relies on the evidence of the complainant who stated in her second JIRT interview (at question 353) "Like he tried to put one of his fingers up my vagina but it wasn't very far". (Emphasis added.)

[14]

Orders

I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.
DAVIES J: I agree with Fullerton J.
N ADAMS J: I have had the advantage of reading in draft the judgment of Fullerton J. Before indicating my judgment in this matter I consider it necessary to raise the threshold question of whether this court has jurisdiction to publish this judgment in circumstances where, as Fullerton J has noted at [3], the applicant is deceased. The Registrar was informed of the applicant's death by a solicitor from the Office of the Director of Public Prosecutions in mid May 2018. A letter from the NSW Coroner's Court confirming that the applicant died on 13 May 2018 was provided to the Registrar at that time and that letter was subsequently provided to the judges sitting on this appeal. For reasons that will become clear, I do not consider it necessary to address the question of whether this "fresh" evidence is properly before the court.
As a general rule a convicted person's right of appeal abates on death. The relevant principles were discussed by Bathurst CJ (with whom Hall and Button JJ agreed) in the decision of this court in A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102. His Honour stated at [17], "It is clear that at common law a convicted person's right of appeal against conviction and penalty abates on death, with the possible exception of the case where the relevant penalty is a fine for which the estate of the deceased convicted person is liable: R v Rowe [1955] 1 QB 573 at 575; R v Jefferies [1969] 1 QB 120 at 124". His Honour went on to state at [18]: "In Sen v The Queen (1991) 30 FCR 173, the appellant lodged an appeal against his conviction for murder but died before the appeal was heard. The relevant provision giving rise to the right to appeal (s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth)) was silent as to the fate of the appeal in these circumstances. The Full Court of the Federal Court following R v Rowe supra and R v Jefferies supra held that the right of appeal conferred by the statute abated on the death of the appellant: Sen supra at 175. However, the Court indicated that s 475 of the Crimes Act (the predecessor to s 77 of the Act) might well provide a means by which the correctness of such a conviction may be examined and afford a means by which a deceased family may have the correctness of a conviction considered: Sen supra at 176".
It is to be accepted that in this matter, unlike in the decision of Sen v The Queen, the applicant was still alive at a time when the appeal was heard. There were no more steps required for him to take in order to prosecute his appeal. On that basis it may well be the case that the general principle that a convicted person's right of appeal abates on death does not apply in such a matter.
Both Fullerton and Davies JJ have proceeded on the basis that the court does have jurisdiction. In addition, neither the Crown nor any person representing the applicant has been afforded the opportunity to be heard on this threshold question. In those circumstances I have concluded that it is neither necessary nor appropriate for me to determine any threshold question of jurisdiction. I shall proceed on the same basis as Fullerton and Davies JJ that the court does have jurisdiction in this matter.
Turning to the appeal itself, I agree with her Honour that the appeal should be dismissed for the reasons provided by his Honour. I too am not persuaded, for the reasons set out by her Honour, that the jury ought to have entertained a reasonable doubt as to the appellant's guilt on counts 2 - 5, and counts 7 - 9 because of their verdicts of not guilty on counts 1, 6 and 10.
As her Honour has observed (at [18]) the focus of the enquiry is upon any explanation for the acquittals rather than the convictions.
The applicant's acquittal on count 1 is explicable on a number of bases. There were numerous inconsistencies between the complainant's account in the 2011 and 2013 interviews respectively. Her Honour has set out those inconsistencies at [20] - [22]. One of those inconsistences was as to whether the complainant was four years of age or seven years of age at the time of the alleged offence. The acquittal on count 1 is to be considered in the context that the trial judge directed the jury that time was a particular to be proved by the Crown beyond reasonable doubt.
The applicant's acquittal on count 6 is also explicable. It was an allegation of digital penetration of the complainant's "actual vaginal canal." The high point of the complainant's evidence of digital penetration was that the appellant inserted his finger "up my vagina but it wasn't very far." The complainant also described this incident as one where the appellant "tried" to insert his finger into her vagina. As Fullerton J has noted at [68], the trial judge directed the jury (incorrectly) that this allegation would be constituted by penetration "to any extent of the female vagina". The direction should have referred to penetration "to any extent of the genitalia" of the complainant.
Finally, the applicant's acquittal on count 10 is explicable on a number of bases. It was an allegation of tickling starting from the complainant's neck moving towards her waist and concluding with the "top" of her vagina (the "triangle" part). It was entirely possible that the jury was not satisfied that there was a sexual connotation in relation to this incident. In addition, neither of the complainant's parents recalled her complaining of this incident in 2011 even though it was alleged to have occurred on the same day that first complaint was made to them.

TWM v R

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Legislation Cited (3)

Cases Cited (22)