White v R

Court of Criminal Appeal (NSW)|2019-07-12|Before: Leeming JA, Hulme J, Davies J

The applicant's evidence

The applicant said that his parents separated when he was aged eight. In 2016 and 2017, he was living "on and off with mum and dad, but mainly dad's". When he lived with his mother, he attended School 1. He was also attending that school when he lived with his father, but at the end of October 2016 he changed to School 2 (i.e. 25 October 2016 - see Exhibit O). At the start of 2017, he went to School 3. He had moved to his mother's home two weeks beforehand. [60]
The applicant was asked whether, when he was living with his mother and attending School 1, he went and stayed at the complainant's home. He replied, "Very rarely. Maybe once or twice that year" (i.e. 2016). As to whether he had stayed many times before then, he said, "Over the years, yes". [61]

The applicant's father's evidence

The applicant's father confirmed that he was separated from the applicant's mother and that the applicant (and his brother) lived variously with their mother or himself. Initially the applicant was attending School 1 but in the last term of 2016 he was enrolled in School 2 (25 October 2016 - Exhibit O). [72]
He confirmed that his birthday was on 7 December. In 2016, they celebrated by going out for dinner. They usually went out for birthdays "before or after [or] on the day". In 2016, the applicant did not come because he had a rash and stayed at home. His father said he had to pick him up from school; he had the day of the birthday and two subsequent days off school. [73]
On New Year's Eve, one of his sons was with him - he could not recall which - and their mother came and picked whoever it was up. He could not recall where they were going. [74]
He recalled that the applicant went back to live with his mother; and in relation to when school started back, he said it was "probably a week before or something". (In cross-examination, he agreed with "about a week or so".) There was discussion about the applicant wanting to go back to School 1 because it was in the same suburb as where his mother lived with her parents. He only found out later that the applicant had enrolled at School 3 instead. [75]

Summing up

There was no complaint about any aspect of the trial judge's summing up to the jury. It was in conventional terms in relation to its legal content.
The judge gave the standard direction that the jury could accept part of the evidence of a witness while rejecting another part. Rejection of some part did not require rejection of the balance of what the witness said. [76]
Of course, his Honour directed the jury as to the accused being presumed innocent and of the requirement of proof to the standard of beyond reasonable doubt before any verdict of guilty could be returned. [77]
His Honour mentioned a number of times that the jury were entitled to deliver differing verdicts for the various counts in the indictment; for example: "There is no requirement that your verdicts be the same for all counts and it is open for you to find the young person guilty of some charges and not guilty of others". He directed that "the evidence in respect of each of the charges must be considered separately". [78]
The judge specifically gave what is often termed a "Markuleski direction" (derived from R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290). His Honour directed the jury: [79] "I have now made clear to you on a number of occasions that you must consider the evidence in respect of each charge separately. It follows from that, that if you have a reasonable doubt as to the truthfulness and accuracy of one of the Crown witnesses in respect of one count, then you can use that reasonable doubt to determine whether you have a reasonable doubt in respect of the other counts that you are considering."
It would have been obvious to the jury that this related specifically to the complainant. Counsel for the applicant raised no complaint, then or now, as to the adequacy of this direction.
The jury asked a question after they had retired to deliberate: "Can we clarify that we don't have to match particular counts with particular dates, that we are considering the whole timeframe between 1 December 2016 and 1 February 2017."
After discussing the question with counsel in the jury's absence, his Honour responded to the jury by saying: [80] "The answer to that question is that you do not have to match particular counts with particular dates and that you are considering the whole of the timeframe. That having been said, two dates emerged in the evidence and you will consider the evidence in relation to those two dates in considering whether or not the Crown have been able to prove their case beyond reasonable doubt."
The question above was received about an hour after the jury had retired to deliberate on the Friday. Deliberations were resumed the following Monday when the judge received the following question: [81] "Is count 1 specifically related to [the complainant's] bedroom? Is count 2 specifically related to her parents' bedroom? Is count 3 specifically related to the lounge room?"
With the agreement of counsel, the judge replied in the affirmative to each question. [82]

Principles

The principles to be applied in respect of a ground of appeal asserting that a verdict of guilty is unreasonable are well known. I set out a number of propositions emerging from well-known authorities in Crickitt v R [2018] NSWCCA 240 at [12]. Those relevant to the present case are: 1) This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality. [83] 2) It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence. [84] 3) If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside. [85] 4) A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the appellant's guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion. [86] 5) A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. [87]
The importance of the role of a jury in a criminal trial must be acknowledged as this Court reviews the evidence solely on the basis of words on the printed pages of the transcript. The advantage of the jury in seeing and hearing the manner in which the witnesses were questioned and responded is one that is almost entirely denied to the members of this Court. Occasional comments and observations made by the judge and counsel that appear in the transcript provide only limited insight.
The High Court has emphasised the fundamental role of a jury in resolving disputed questions of fact in a criminal trial and of determining whether guilt has been proved beyond reasonable doubt. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, it said (at [65]-[66]): "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (Footnotes omitted)
Where the basis of the asserted unreasonableness is inconsistency with other verdicts, a recent summary of the principles was usefully provided by Gleeson JA in Roos v R [2019] NSWCCA 67 (at [42]-[45]): "The legal test to be applied to the appellant's contention is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie). In MacKenzie at 366, Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone (unreported, 13 December 1954). In order to succeed on this ground, the appellant: '… must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.' Nevertheless, if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MacKenzie at 367 (Gaudron, Gummow and Kirby JJ). It is also to be kept in mind that a verdict of 'not guilty' does not necessarily imply any 'want of confidence' in the complainant but 'may simply reflect the cautious approach to the discharge of a heavy responsibility': MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). As Spigelman CJ had earlier remarked in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]: 'In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above.' There is a further important consideration to a challenge to the verdicts based on inconsistency. As stated by Simpson J (McClellan CJ at CL and Latham J agreeing) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]: 'In determining whether convictions are unreasonable ... the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least on that basis.' Simpson J continued at [130]: 'Before … an appellate court, faced with adverse verdicts on multiple counts, must intervene to set aside the convictions, the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. … The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.' See also: Jafary v R [2018] NSWCCA 243 at [37] (Leeming JA and Walton and Wilson JJ); Walker v R [2019] NSWCCA 4 at [10] (Hoeben CJ at CL, Rothman and Price JJ agreeing)."
In the present case, the principal witness for the prosecution was a child, aged seven at the time of the trial and aged five or six at the time of the events in question. There are some practical matters that the jury might be expected to have acknowledged and that this Court must also bear in mind. Observations recently made by Walton and Wilson JJ in AZ v R [2018] NSWCCA 294 are pertinent.
In AZ v R, the trial concerned offences against a seven-year-old boy which were alleged to have occurred between 1 January 2014 and 2 March 2015. Disclosure occurred on 2 March 2015 and the boy was interviewed by police on 12 March 2015. The recording of that interview comprised the child's evidence-in-chief for five of the charges. A further interview six months later became his evidence for six more charges. There were a further two interviews in the fortnight before the trial in February 2017. The issues on appeal related to inconsistencies in the complainant's accounts, including concessions in cross-examination that some of the alleged acts of the appellant did not in fact occur. The appeal was dismissed by a majority. In relation to the complainant's evidence, Walton and Wilson JJ made the following general observations (at [161], [167]-[168]): "Unlike adults, the memories and thus the evidence of young children may be expected to deteriorate with the passage of even a relatively short period of time, a matter that a jury, taking into account its members' experience of life and understanding of people, would be entitled to have regard to. … The fact that there is a contradiction or concession by a child in cross-examination is not of itself necessarily an indication that the child is not a credible witness. Such concessions do not necessarily dictate that a jury must have held a reasonable doubt; much less should they dictate that an appellate court must overturn the verdicts returned by the jury. The question turns on a careful examination of the whole of the evidence placed before the tribunal of fact, to determine whether it was open to the jury to be satisfied of an appellant's guilt beyond reasonable doubt, bearing in mind the jury's advantage of having sat in the jury box, and observed the proceedings as they took place."

Submissions

The applicant submitted that the acquittals for Counts 2 to 4 cannot be reconciled with the verdict of guilty on Count 1, particularly having regard to the inherent weaknesses and substantial inconsistencies in the evidence relating to Count 1. Further, the evidence in relation to Count 1 was the least compelling, having regard to the major inconsistencies in the evidence of the complainant in comparison with the evidence led with respect to the other Counts. [88]
The applicant highlighted a number of asserted inconsistencies between what the complainant said in her police interview and what she said in her evidence in court. Submissions also referred to evidence given by the complainant's mother, the applicant, and the applicant's brother that were suggested to support the proposition that there was reasonable doubt about the applicant's guilt. [89]
Inconsistencies in the evidence relating to Count 1, were said to include: [90] ● What the complainant was wearing. ● Whether the incident took place in the bedroom or the bathroom. ● Whether she had been in the lounge room or bedroom when the incident began. ● Where in the bedroom it occurred. ● Where her room was located in the house. ● Whether it happened on the bed or in the corner of the room.
The applicant also referred to aspects of the evidence relating to Counts 2 to 4, presumably in support of the proposition that the evidence relating to Count 1 was no better in terms of quality and reliability. [91]
It was submitted that in relation to the other Counts, there was evidence of opportunity and corroboration for the applicant and the complainant having been alone together (in the parents' bedroom and the lounge room), but no evidence aside from that given by the complainant about them ever being in the complainant's bedroom. Reference was made to the complainant's mother having seen the complainant and the applicant in the parents' bedroom together and the applicant having given evidence of such an occasion (although differing in some details). The complainant's mother also gave evidence of occasions when the complainant and the applicant were alone together in the lounge room. [92]
It was submitted that the evidence for the other Counts was relatively consistent, in contrast with the evidence for Count 1. The evidence for Count 1 was the weakest in terms of consistency and corroboration. [93]
The Crown submitted that the jury's verdict of guilty on Count 1 was not unreasonable and that there were a number of reasons why it was not irreconcilable with the acquittals on the other counts. [94]
It was submitted that there was more detail given in evidence in relation to the incident in the complainant's bedroom that constituted Count 1 than there was in relation to the two other incidents.
The Crown (correctly) referred to there being a live issue at the trial about whether the applicant had stayed overnight at any time during the period covered by the indictment. Counts 2 to 4 were concerned with events that were alleged to have occurred during the evening, but an important distinguishing feature for Count 1 was that it concerned an event at around 8 o'clock in the morning. [95]
Contrary to the applicant's contention, the Crown submitted that there was evidence supporting that of the complainant as to the applicant having been in her bedroom with her. The Crown referred to the evidence of the applicant himself that the complainant had involved him in brushing the hair of her doll and there was evidence that her doll's house was in her bedroom. [96]
The Crown acknowledged that there were inconsistencies between what the complainant had said in her police interview and what she said in her evidence. However, the Crown pointed to the fact that the interview occurred soon after the events in question, while the trial occurred over 15 months later. That was submitted to be a significant period of time for a child so young. The Crown also argued that the complainant remained consistent throughout about the core features of her account; that she had been sexually penetrated and that it was the applicant who had done so. She was supported in this respect by the evidence of her complaint to her mother. [97]

Consideration

A starting point for consideration of the ground of appeal is to acknowledge the directions given by the trial judge to the jury. There can have been no doubt amongst the jurors that it was entirely up to them whether to accept or reject evidence as they chose fit, including accepting parts of what a witness said while rejecting other parts. Furthermore, the jury were repeatedly directed that they must consider each count separately and that they could deliver different verdicts if they thought fit. Underlying all of this was the clear instruction that no verdict of guilty could be returned unless the jury were unanimously satisfied of guilt beyond reasonable doubt.
Having regard to these directions, there is no basis to consider that the jury may have approached its task capriciously or recklessly. There is also no room to consider the possibility of some compromise being involved in the jury's decision-making. The applicant has not suggested otherwise. This is no answer to the questions posed by the ground of appeal. It does, however, tend to dispel any possibility that an unreasonable verdict was returned as a result of the jury misapprehending their task.
The experience of the complainant giving evidence is something of which the jury would have been well aware. This Court is left to glean what it can from the transcript.
The transcript shows that she commenced her evidence on the day she was called at 9.48am. The following table is a chronology of her evidence, indicating the frequency that breaks were taken and the comments that were made concerning her attentiveness. The judge indicated that he intended to take 5 minute breaks at 20 minute intervals so it may be assumed that the breaks designated as "short" were of about that duration. Transcript Time Event 62 9.48am Evidence-in-chief commenced (replay of recording of interview) 70 10.17am Break (short) 71 Replaying of recorded interview resumed and completed 72 Break (short) 76 Cross-examination commenced - introductory and general 86 - count 1 87 Morning tea Break (20 minutes) 89 ~11.45am - count 1 continued Counsel said that before the break she was asking about the complainant's bedroom and she was going to ask more about that. The complainant replied, "I can't focus before because I was a little bit hungry." 93 - count 2 (including at T94-95, general order of incidents) 98 Counsel observed, "I think we're a bit distracted now … Perhaps that might be an appropriate time." Break (short) 101 - count 2 continued 112 Lunch Break (lunch) 114 - complaint to mother 118 - count 1 120 Break (short) Judge observed, "Perhaps afternoons aren't the best … she's a little bit distracted I think. A bit more distracted this afternoon than she was this morning." Counsel agreed. 122 - count 1 continued 128 Judge asked if "we might go a little bit longer". Prosecutor agreed but suggested monitoring "because she appears to be yawning and whatnot so she may be getting tired". 129 - count 3 School bell heard ringing. Judge said, "It must be 3 o'clock". 135 Break (15 minutes) Prosecutor observed, "She appears to be getting a little bit more fidgety and certainly going off track and it just seems to be a little bit hard to keep her on track … Which makes it difficult for everybody." Judge determined to allow 15 minutes and then "try and squeeze another 15 or 20 minutes out". Counsel hopes to finish in that time. 138 - count 1 142 - general 143 Complainant: "What time is it? I'm tired." 144 Conclusion No re-examination.

It is clearly the case that there were inconsistencies between the complainant's description in her police interview and her cross-examination at trial as to the various circumstances attending the commission of the offence in Count 1. The applicant cited a number of them in both written and oral submissions (see above at [109]).
Most of the inconsistencies related to the location of the incident, what the complainant was doing beforehand, and what she was wearing. The jury were entitled to have regard to the delay between the event and the complainant's questioning at trial. It was well open to the jury to consider that the applicant's touching and penetration of her genitalia would be the one thing the complainant would recall well and be consistent about (which she was). Surrounding detail would not be something that a very young child would necessarily retain as part of her memory. For example, it would be understandable that her recollection at the time of her interview was that the applicant took her from the lounge room to her bedroom, but 15 months later that detail might well have been lost from her recollection. It would not have been surprising that the clothing she was wearing - which had no bearing upon what happened - would not have been of any significance to her. Whereabouts in the bedroom it occurred was more directly related to the alleged offending, but whether it would have been of such particular significance that it should have been recalled with precision by a young child was a matter for the jury to weigh.
The jury were entitled to have regard to the relative clarity with which the complainant's account of this incident was given in the more contemporaneous police interview: see above at [20]. They were entitled to have regard to aspects of the account which may have rung true for a young girl describing such an event. For example, she said, "he tried to touch there and it was, it, and I didn't want that to happen". She said, "it feels weird". When asked "how did he touch" she replied, "Um, with his fingers and I don't really want that. I really don't like it." She volunteered, "And I said, I, and I, after he said, 'You keep a secret'. And I, and I lied to him. I told him to my mum." [98]
The passage in the cross-examination that the Crown suggested was significant might also have resonated with the jury as indicative of a true and reliable recollection of a little girl: [99] "Q. Did you like [Tom] when he came to visit you? A. Yeah, but the thing I don't like when he comes to visit me when he touches my private parts. Q. Did he touch your private part every time he came to visit, or only sometimes? A. Only sometimes when no one's looking."
Counsel for the applicant placed emphasis upon the complainant's assertion at one point that the incident occurred in the bathroom. She addressed the jury in relation to this (and the judge reminded the jury of this argument in his summing up). The evidence on this subject is included in the earlier review of cross-examination in relation to Count 1 (above at [26]ff). In my view, it would have been open to the jury to regard it as a product of mistake or confusion. The bathroom aspect, and the question of where within the bedroom the incident occurred, may well have been regarded as having been influenced in part by the complainant's failure to recall the manner in which the furnishing and layout of her bedroom had changed: see the evidence of her mother summarised above (at [64]).
The applicant contended that the evidence supporting Count 1 was no stronger than that supporting the acquittal counts and so that cannot be an explanation that reconciles the differential verdicts. A particular point that the applicant sought to make was that the acquittal counts were supported by evidence from other sources, whereas there was no such support for Count 1. The complainant's mother had seen the applicant with her daughter in the parent's bedroom. She had also seen them together in the lounge room. The applicant himself acknowledged that he had been alone with the complainant in the lounge room.
There was no positive evidence from other sources that the complainant and the applicant had not been alone together in her bedroom. If they spent time together, which was common ground, there was no reason for them not to be there. It may well have been that if the applicant brushed the complainant's doll's hair, this might have occurred in her bedroom where her doll's house was; but the jury need not have been satisfied that this was a necessary inference to draw.
In any event, evidence from someone other than the complainant of the applicant having been with her in a particular room on some other occasion [100] neither supported, not detracted from, the complainant's evidence that he was present in such a room when one of the alleged incidents occurred. It was not the case that the applicant was forbidden from being in any of those rooms, or that anyone would have thought it was unusual for him to be there with the complainant.
There was a particular issue that may have affected the jury's confidence in being satisfied beyond reasonable doubt in relation to Count 2, despite accepting that the incident occurred in the circumstances described by the complainant. Her account included that her father was present in the bedroom before and after the applicant was there. Her father was not called to give evidence. [101] The applicant's counsel addressed the jury about police not having obtained statements from "people that were also in the house at the relevant period of time". [102] She nominated some, "such as" the applicant's mother, his brother, and the complainant's brother. The jury could have thought that this was a non-exhaustive list and that the complainant's father was also in this category. The trial judge (at counsel's request) directed the jury that they should not speculate about what these persons may have said if they had given evidence, but that the jury could take this into account in determining whether the Crown had discharged its onus of proving guilt beyond reasonable doubt. [103]
A particular feature that distinguished Count 1 from the incidents in Counts 2 to 4 was the question of when they occurred. Counsel for the applicant acknowledged in this Court that the incidents alleged in relation to Counts 2 to 4 were said to have occurred during the evening, while the incident alleged in relation to Count 1 was said to have occurred in the morning. [104]
It was clearly the applicant's case that he did not visit the complainant's home in December. Although this was not raised in counsel's closing address to the jury, some significance was placed in this Court upon the complainant's evidence that the event in Count 1 occurred "before Christmas". In short, it was submitted that the event could not have happened if it occurred before Christmas. Counsel submitted that, "whilst the applicant certainly did not run a positive case that he didn't visit the home in January 2017, the Crown case is the evidence from the complainant was that this had actually occurred prior to Christmas". [105] She described Christmas as "a pretty big event for a child, like a birthday … it's a good marker as well as a birthday". [106]
However, it was not the Crown case that Count 1 occurred before Christmas. The Crown did not at all embrace the complainant's evidence as confining the time when it occurred. It is curious that for such an unreliable witness, on the applicant's case, the complainant's recollection in relation to Count 1 having occurred "before Christmas" is relied upon as being precisely correct. The context in which she gave that evidence was available for the jury to consider. It was given in cross-examination after lunch, shortly before the first short break was taken in the afternoon. The preceding answers the complainant gave may have been regarded by the jury as significant: [107] "Q. Did you go to school that day? A. It was a Sunday. Q. So this-- A. I mean, today's the - I can't remember - yeah, it was on school holiday, it was on school holiday, it was Thursday. Q. Why do you think it was a holiday, a school holiday? A. Because, because it was near like Christmas or something. Q. School holidays near Christmas? A. Yeah, yeah. Q. Why do you think it was a Thursday? A. I just, I think it's a Thursday because I just, I think, I just think so. I don't, I don't - because I know it's Thursday, because, because I remember it was Thursday. Q. Is there something special that happens on Thursdays? A. No. I mean at school we have something special, we have to go to the library. Q. But you just remember it was Thursday? A. Yeah. Q. Is that something you're sure about or are you not sure about? A. I'm sure about. Q. Was it before Christmas or after Christmas? A. Before."
Immediately after the short break that followed this passage of evidence, the complainant was asked if the event occurred before or after her birthday (about a week before Christmas). She said she could not remember. [108] This suggests that the complainant's birthday was not a "good marker" like Christmas as the applicant's counsel submitted.
The reference in the above extract to Sunday, then Thursday, and then being "sure about" Thursday, does not inspire confidence about what day of the week the event occurred on. There was nothing about Thursday that explained why that day of the week would be recalled after such a lengthy passage of time. The reference to it being on a school holiday, because it was near "like Christmas or something" also does not necessarily inspire confidence. It would have been open to the jury to regard "before Christmas" as more of a guess than a reliable actual memory.
The applicant did not positively assert that he did not visit the complainant's home in January. His evidence was that he could not recall (see above at [81]-[86]). It was the defence case that there was no overnight stay in either month, but the defence case did not deny that the applicant was otherwise at the complainant's home during January: see above at [69]).
In response to the jury's question about whether they needed to "match particular counts with particular dates", the judge directed that they did not but that "two dates emerged in the evidence and you will consider the evidence in relation to those two dates in considering whether or not the Crown have been able to prove their case beyond reasonable doubt". Counts 2 to 4 were alleged to have occurred on occasions when the applicant stayed overnight and it emerged that the only occasions on which he may have done so were on the two dates to which the judge had alluded, 6 December 2016 and 23 January 2017. There was a positive defence case that potentially raised doubt about whether he did. But there was no positive defence case as to the applicant otherwise being at the complainant's home whereby the offence in Court 1 may have occurred. In other words, there was no contradiction in the defence case as to the applicant having had the opportunity to have committed this offence.
It would have been well open to the jury to accept the account given by the complainant at a far more contemporaneous time, that is, in her police interview of 22 February 2017, and to have given little or no regard to the inconsistencies and contradictions that emerged in her evidence 15 months later in the course of her cross-examination at trial.
The complainant's account in her police interview was clear and consistent; that the applicant touched her genitalia underneath her underwear on a number of occasions, including on three occasions that she particularised. That account was completely consistent with the account she gave to her mother on 13 February 2017. The evidence given by her mother, and by her mother's sister, about the terms of the complaint was also consistent. There was no real reason why the jury could not have accepted it. The complaint did not include any nomination of any particular occasion; but it was evidence which supported the general assertion of multiple sexual assaults by the applicant upon the complainant.

Conclusion

It was well open to the jury to be satisfied that the applicant sexually assaulted the complainant in the manner she described. It was open to the jury to accept that this occurred on multiple occasions. However, while accepting the veracity and reliability of the complainant in this respect, it was understandable for the jury to hesitate in being satisfied to the criminal standard in relation to Counts 2 to 4. This is most particularly because of the evidence suggesting that there may have not been opportunity for the applicant to have offended on the two particular occasions identified. However, in the absence of such contradictory evidence in relation to Count 1, it was well open to the jury to be satisfied beyond reasonable doubt that this incident did in fact occur as the complainant had described.
There is a "rational explanation for the acquittals other than doubt about the complainant's credibility": TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130] (Simpson J). The verdicts are a reflection of the jury taking a cautious approach to the discharge of a heavy responsibility, rather than a want of confidence in the evidence of the complainant: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ).
I am satisfied that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the offence in Count 1: M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63.
The issues raised by the applicant are not without merit. They required a thorough examination of the evidence and the issues in the trial. Leave to appeal should be granted.

Order

I propose the following orders: 1. Leave to appeal against conviction granted. 2. Appeal against conviction dismissed.
DAVIES J: Having examined the evidence in the case, I agree with R A Hulme J for the reasons he gives.

Endnotes

Tcpt, 23 May 2018, p 45(40).
The Crown Prosecutor described this in his closing address (Tcpt, 25 May 2018, p 293(15)): "she moved her finger, bent at the knuckle, and she was doing the backward and forward movement".
MFI D, Q251-295.
MFI D, Q329.
MFI D, Q 236-249.
MFI D, Q 304-321.
MFI D, Q334-359.
MFI D, Q368; 372-3.
Tcpt, 22 May 2019, p 86.
Tcpt, 22 May 2019, p 86(42)-(43).
Tcpt, 22 May 2019, p 89(30).
Tcpt, 22 May 2019, pp 89(35)-91(25).
Tcpt, 22 May 2019, pp 123 (36)-124(1).
Tcpt, 22 May 2019, p 126(25)-(27).
Tcpt, 22 May 2019, p 127(39)-(48).
Tcpt, 22 May 2019, p 123.
Ex J.
Tcpt, 22 May 2019, p 141(1)-(19).
Tcpt, 23 May 2019, p 199(20).
Tcpt, 22 May 2019, p 95(33)-(36).
Ex D.
Tcpt, 22 May 2019, p 97(11)-(12).
At tcpt, 22 May 2019, p 98(1)-(5), she said the "aunt" was "my mum's BFF". In her police interview (at MFI D, Q203-205), she described the applicant's mother as an aunt, saying she was not her mother's real sister but rather her "BFF" or "Best Friends Forever".
Tcpt, 22 May 2019, p 101(43)-(44).
Tcpt, 22 May 2019, pp 102-103.
Tcpt, 22 May 2019, pp 105(33)-106(11).
Tcpt, 22 May 2019, pp 106(15)-108(40).
Tcpt, 22 May 2019, p 110(10)-(16).
Tcpt, 22 May 2019, p 129(21)-(25).
Tcpt, 22 May 2019, p 130(12)-(47).
Tcpt, 22 May 2019, p 131(40)-(41).
Tcpt, 22 May 2019, p 133(1)-(29).
Tcpt, 22 May 2019, p 93(1)-(2).
Tcpt, 22 May 2019, p 114(37)-(39).
Tcpt, 22 May 2019, p 117(3)-(20).
Tcpt, 22 May 2019, pp 93-94.
Tcpt, 22 May 2019, pp 94 (12)-95(24).
Tcpt, 22 May 2019, p 142.
Tcpt, 22 May 2019, p 142(44)-(50).
Tcpt, 23 May 2019, pp 151; 155(16)-(2).
Tcpt, 23 May 2019, pp 152-154; 166-167.
Tcpt, 23 May 2019, pp 157-159.
Tcpt, 23 May 2019, pp 159-160.
Tcpt, 24 May 2019, pp 288-289.
Tcpt, 23 May 2019, pp 160-163; 242.
Tcpt, 23 May 2019, pp 163-164.
Tcpt, 23 May 2019, pp 165.
Tcpt, 23 May 2019, pp 165.
Tcpt, 23 May 2019, pp 166(30)-(31).
Tcpt, 23 May 2019, pp 166; 172-173.
Tcpt, 23 May 2019, pp 155(43)-156(14).
Tcpt, 23 May 2019, pp 181-183.
Tcpt, 23 May 2019, pp 186; 192.
Tcpt, 23 May 2019, pp 193-196.
Tcpt, 23 May 2019, pp 204-206.
Tcpt, 23 May 2019, pp 231-232; 234-235.
Tcpt, 23 May 2019, pp 236-238.
Tcpt, 23 May 2019, pp 242; 246.
Tcpt, 23 May 2019, pp 247-251.
Tcpt, 24 May 2019, pp 262-264.
Tcpt, 24 May 2019, pp 265(7); (19).
Tcpt, 24 May 2019, p 266.
Tcpt, 24 May 2019, pp 266-269.
Tcpt, 24 May 2019, pp 269(47)-270(8).
Tcpt, 24 May 2019, p 270.
Tcpt, 24 May 2019, pp 271(38)-272(14).
Tcpt, 24 May 2019, pp 272-273.
Tcpt, 24 May 2019, p 273.
Tcpt, 24 May 2019, pp 274(33)-275(44).
Tcpt, 24 May 2019, p 276(3)-(47).
Tcpt, 24 May 2019, p 277(33)-(36).
Tcpt, 24 May 2019, p 279.
Tcpt, 24 May 2019, pp 280-281.
Tcpt, 24 May 2019, pp 281-282.
Tcpt, 24 May 2019, pp 282; 284.
Summing up, 25 May 2018, p 3.
Summing up, 25 May 2018, p 5-6.
Summing up, 25 May 2018, pp 67-7; 9.
Summing up, 25 May 2018, p 14.
Summing up, 25 May 2018, p 37.
Summing up, 28 May 2018, p 3.
Summing up, 28 May 2018, p 3.
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at 473; M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-493; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14].
SKA v The Queen at [13].
SKA v The Queen at [13]; M v The Queen at 494.
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing).
M v The Queen at 492; SKA v The Queen at [14].
Applicant's written submissions (AWS), pars 17-18.
AWS, pars 22-49.
AWS, par 71; tcpt, 12 July 2019, p 5(4)-(6).
AWS, par 50-64.
AWS, pars 67; 69-70.
AWS, pars 68; 73.
Crown's written submissions (CWS), par 8.
CWS, pars 85; 87.
CWS, par 92.
CWS, pars 95-96; tcpt, 12 July 2019, p 15(14)-(27).
MFI D, Q & A 256; 260-261.
Tcpt, 22 May 2018, p 142(44)-(50).
The applicant's counsel clearly explained in her closing address that the occasion when the applicant was seen in the parents' bedroom was not the occasion when the incident in Count 2 was alleged to have occurred: tcpt, 24 May 2018, pp 305-306.
The father was going to be called as a witness by the Crown but an incident occurred (the details of which are presently irrelevant) which led to a decision that he not be called. It was agreed between the Crown Prosecutor and the applicant's counsel that nothing would be said to the jury about this: tcpt, 24 May 2018, pp 259.
Tcpt, 24 May 2019, p 311.
Summing up, 25 May 2019, p 27.
Tcpt, 12 July 2019, p 17(50).
Tcpt, 12 July 2019, p 2(10).
Tcpt, 12 July 2019, p 18(8).
Tcpt, 22 May 2018, p 119(4)-(33).
Tcpt, 22 May 2018, p 122(21)-(23). 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: 02 August 2019

HEADNOTE [This headnote is not to be read as part of the judgment] Following a jury trial, Mr White (a pseudonym for the applicant) was convicted of an offence of sexual intercourse with a child under the age of 10 years (Count 1), but was acquitted of three similar counts (Counts 2 to 4). The mothers of the complainant and applicant were old friends, and the applicant was a regular visitor at the complainant's house. Count 1 was an allegation that the applicant (a juvenile at the time) had touched the complainant (aged between 5 and 6 years) underneath her underpants and digitally penetrated her vagina. Counts 2 to 4 involved similar conduct. The alleged offences occurred in the complainant's bedroom (Count 1), her mother's bedroom (Count 2), and the lounge room (Counts 3 and 4). A few weeks after the period in which the alleged offending occurred, the complainant told her mother that the applicant had been touching her "fanny". The complaint was reported to police, the complainant was interviewed nine days later, and the applicant was charged soon after. The trial took place 15 months after the complaint was reported, when the complainant was aged seven. The applicant applied for leave to appeal against his conviction. The ground of appeal was in the following terms: "The verdict of guilty on count 1 was unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 2, 3 and 4." The Court held, granting leave to appeal but dismissing the appeal: Whether the verdict of guilty on Count 1 was unreasonable and cannot be supported having regard to the evidence The principles in relation to unreasonable verdicts are well-known. [1] (Leeming JA); [101] (R A Hulme J); [145] (Davies J). Crickitt v R [2018] NSWCCA 240 at [12], per Bathurst CJ, R A Hulme and Davies JJ, referred to. The advantages of a jury in a criminal trial in seeing and hearing witnesses compared with an appeal court which reviews the evidence solely on the basis of words on the printed pages of the transcript must be acknowledged. [1] (Leeming JA); [102] (R A Hulme J); [145] (Davies J). Where the principal witness is a child, the jury is to be taken to have acknowledged certain practical matters, which an appeal court must also bear in mind. [1] (Leeming JA); [105]-[106] (R A Hulme J); [145] (Davies J). AZ v R [2018] NSWCCA 294 at [161] and [167]-[168], per Walton and Wilson JJ, referred to. Although the correctness of the trial judge's jury directions does not provide an answer to the questions posed by the ground of appeal, it does dispel the possibility that an unreasonable verdict was reached as a result of the jury misapprehending their task. [1] (Leeming JA); [119] (R A Hulme J); [145] (Davies J). The child's age, the manner of cross-examination, the nature of a child's memory, the passage of time, and the consistencies and inconsistencies between the child's evidence given to police and later at trial were matters relevant to the jury's assessment of the complainant's evidence. [1] (Leeming JA); [120]-[126] (R A Hulme J); [145] (Davies J). Whether the verdict of guilty on Count 1 was unreasonable on the basis of inconsistent verdicts of not guilty on counts 2, 3, and 4 Where the basis of the asserted unreasonable verdict ground is inconsistency with other verdicts, the principles were usefully summarised in Roos v R [2019] NSWCCA 67. [1] (Leeming JA); [104] (R A Hulme J); [145] (Davies J). Roos v R [2019] NSWCCA 67 at [42]-[45], per Gleeson JA, referred to. The evidence in the trial provided a "rational explanation for the acquittals other than doubt about the complainant's credibility", such as the evidence that the applicant may not have had the opportunity to committed Counts 2 to 4 on the particular occasions identified in the evidence. [1] (Leeming JA); [130]-[137], [140]-[141] (R A Hulme J); [145] (Davies J). TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130] (Simpson J), applied. The verdicts are a reflection of the jury taking a cautious approach to the discharge of a heavy responsibility, rather than a want of confidence in the evidence of the complainant. [1] (Leeming JA); [141] (R A Hulme J); [145] (Davies J). MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ), applied. On the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the offence in Count 1. [1] (Leeming JA); [142] (R A Hulme J); [145] (Davies J). M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ), applied.

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