New South Wales Court of Criminal Appeal CITATION: Conway v R [2010] NSWCCA 31 HEARING DATE(S): 3 February 2010 JUDGMENT DATE: 2 March 2010 JUDGMENT OF: Grove J at 1; Simpson J at 2; RA Hulme J at 88 DECISION: Appeal against conviction dismissed. CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – indecent assault in circumstances of aggravation – sexual intercourse without consent in circumstances of aggravation – CRIMINAL LAW – appeal against conviction – verdicts of guilty open to the jury and not unreasonable - verdicts of guilty could be supported having regard to the evidence – appeal dismissed LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment CASES CITED : M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 PARTIES: Garry Allan Conway (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/12369 COUNSEL: R Pontello (Applicant) P Leask (Respondent) SOLICITORS: Dignan & Hanrahan (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/12369 LOWER COURT JUDICIAL OFFICER: Coorey DCJ LOWER COURT DATE OF DECISION: 15 December 2008 IN THE COURT OF CRIMINAL APPEAL 2007/12369 GROVE J SIMPSON J R A HULME J 2 March 2010 Garry Allan CONWAY v R Judgment 1 GROVE J: I agree with Simpson J. 2 SIMPSON J: In February 2008 the appellant was tried in the District Court in Campbelltown on an indictment containing two counts. The first count was of indecent assault in circumstances of aggravation, brought under s 61M(1) of the Crimes Act 1900. The second count was of sexual intercourse without consent in circumstances of aggravation, brought under s 61J(1) of the same Act. In each case the circumstance of aggravation was that the alleged victim (to whom I will refer as the complainant) was under the age of 16 years. She was in fact 12 years of age. Each offence was alleged to have been committed during the period between 1 November 2006 and 15 December 2006. 3 The jury returned a verdict of guilty on each count. The appellant was duly sentenced (to an aggregate term of imprisonment for 7 years, with a non-parole period of 2½ years). He now appeals against the conviction. He does not seek leave to appeal against the sentences. The Crown case 4 What immediately follows is an account of the case, stripped to its essentials, sought to be made on behalf of the Crown (which may, by reason of the verdicts of guilty, be taken to have been essentially accepted by the jury). 5 Despite the brevity of the following account, it will be necessary in due to course to deal in some detail with the evidence. 6 The complainant was born in June 1994. She had a mild or moderate intellectual disability. She lived with her mother (LA) in Warwick Farm. In 2006 she attended the Miller Public School, enrolled in a special class. In 2007 she attended Lurnea High School. It may be that LA also had some intellectual impairment, although the evidence is not clear on that. 7 In 2006 LA had commenced a relationship with the appellant. From time to time the appellant stayed overnight or for weekends at the home occupied by LA and the complainant. On other occasions LA and the complainant stayed overnight at the appellant's home. 8 On an occasion between 1 November 2006 and 15 December 2006, while the complainant was in the bath at her home, the appellant digitally penetrated her vagina. Using two hands, he parted the labia and inserted a finger that touched the complainant's clitoris. This constituted the offence of sexual intercourse without consent, the second count on the indictment. 9 On another occasion during the same period the appellant used his fingers to touch the complainant's nipple and squeeze her breast. This constituted the offence of indecent assault, the first count on the indictment. 10 The complainant told her mother that the appellant had said to her that he wanted "to lick her out". She did not report to her mother the conduct the subject of the charges. 11 The Department of Community Services and police became involved (in circumstances that were not elucidated in the evidence). The complainant was twice interviewed by Senior Constable Lainie Shipway, then of the Joint Investigation Response Team, commonly known as JIRT, Liverpool. The first interview took place at the Miller Public School on 12 December 2006, the second at Lurnea High School on 26 April 2007. Each interview was audio recorded, but not video recorded. The first interview was recorded on two tapes, the second of which was at least partially inaudible. 12 On 19 December 2006 Constable Shipway spoke to the appellant. He declined to be interviewed, saying: "I didn't do nothing, so I have nothing to say of the matter." The trial 13 The trial commenced on 21 February 2008, before Coorey DCJ and a jury. The complainant gave evidence on affirmation from a remote location. Her evidence in chief was given, pursuant to s 9 of the Evidence (Children) Act 1997 (substantially re-enacted as s 306U of the Criminal Procedure Act 1986), by the tapes being played to the jury. She was cross-examined by counsel for the appellant (via closed circuit television). It will be necessary to return to a more detailed examination of her evidence when considering the sole ground of appeal. 14 Evidence was also given by Ms Sandra Martin, the principal of Miller Public School, by the complainant's mother (LA), and by Senior Constable Shipway. 15 The appellant did not give or call evidence. 16 The evidence concluded on 25 February 2008, and counsel addressed. 17 On 26 and 27 February 2008 his Honour summed up. The jury retired at 11.25am on the latter date. At 12.10pm the jury requested transcripts of the audio recorded interviews with the complainant (specifically requesting the transcript of the inaudible tape recording). At the same time they directed two questions to the judge. They were read on to the transcript by the judge as follows: "Who did [the complainant] report 'the incident' to? How long had [the appellant] known [the complainant] before the alleged incident occurred?" (The jury note was not included in the papers provided to the Court. Whether the transcript accurately records the reference, in each question, to "the incident" in the singular is not clear.) 18 Very fairly, Coorey DCJ decided that the transcript of the audio recordings (which was the complainant's evidence in chief) ought to be accompanied by the transcript of the cross-examination of her. This was done. 19 Unfortunately, the transcripts of the interviews provided to the jury were not identified, either by being marked for identification, or as exhibits. That has created a complication, because the original transcripts appear to have been subjected to some editing. One rather odd feature, which is said in some way to have resulted from the editing, is that the numbering of the questions and answers is not always sequential. 20 The Court was not convinced that the copies of the transcripts of the interviews contained in the appeal papers were in fact the same as the copies given to the jury. Those actually given to the jury had been destroyed. Eventually the parties provided the Court with documents that they agreed were copies of documents identical with those that had been made available to the jury. It is apparent, however, that these were not identical with those from which the complainant was cross-examined, and it is likely that they did not coincide entirely with the audio recordings that had been played. 21 After discussion with counsel about other matters, his Honour told the jury that there was no evidence of the complainant having reported "the incident" to anybody; and that, on the evidence of LA, the complainant must have met the appellant some time in 2006, on a date that was not specified. The first of these was not quite accurate; there was some evidence in the first interview of the complainant having made a report to her mother. The error is inconsequential, and, in any event, favoured the appellant. 22 The jury not having reached a verdict by 4.00pm on that day, his Honour released them for the evening. They resumed deliberations the following morning and returned the verdicts of guilty at 12.05pm. The appeal 23 The sole ground of appeal is that the verdicts are unreasonable and cannot be supported having regard to the evidence. 24 The task of an appellate court in determining that ground is well known. It is to ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged: M v The Queen [1994] HCA 63; (1994) 181 CLR 487. 25 The test has been endorsed in numerous cases since publication of the judgments in M. In MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, the High Court emphasised the "special respect and legitimacy" accorded to juries deciding contested factual questions concerning the guilt of accused persons in serious criminal trials. 26 In this case, as is usually the case where this ground of appeal is raised, a consideration of the evidence is required. It is convenient to turn to that now. The evidence has some particular features in this case which will become apparent. The evidence 27 As might be expected in the circumstances (having regard to the complainant's intellectual capacity) her evidence was not always completely coherent or even consistent. In order to do justice to the ground of appeal, it is necessary to set out significant portions of the evidence, beginning with the answers the complainant gave to Senior Constable Shipway in the recorded interviews. The first interview 28 After some preliminary questions, Senior Constable Shipway asked the complainant about the appellant. She asked firstly, what the complainant liked about the appellant; then about anything she did not like about him. To this she said "that's easy". She then said that she did not like his language, because "he swears a lot"; then she said: "Well, what I don't like about him is his behaviour …" (A 159) 29 Asked for more information about this, she said: "He touches me on the, the rude part whatever …" (A 161) 30 Senior Constable Shipway asked for more information about that, to which the complainant replied: "… like he touches me on my rude part when my mum isn't around or when my brother's around (sic) and that's it." (A 164) 31 There followed a lengthy part of the interview in which Senior Constable Shipway asked the complainant about what she meant when she referred to "the rude part". Initially the complainant said she did not know the name of it. Constable Shipway showed her a frontal drawing of a naked female figure and asked her to put a red cross on "the rude part". The complainant marked the drawing in the area of the vagina, but then said: "I think it's there, but I don't know … I'm not quite sure" (A's 178-179) 32 Constable Shipway then asked if the appellant touched her anywhere else. She said that he did. Constable Shipway asked the complainant to mark on the drawing in blue the areas of this touching. The complainant placed two blue crosses on the breast area on the drawing, which she identified as "the boobs". 33 Constable Shipway then asked more about the red crosses. The complainant said that that was the part of the body used "to do your wee or something"; Constable Shipway asked if she had a name for that place and the complainant said: "I think it's called a pussy but I don't know" (A 200) 34 Constable Shipway then asked about what happened when the appellant touched her "pussy". The complainant replied (I reproduce the answer as transcribed): "O.K. First off he opens whatever … the sides. I think it's called the lips but I don't know. And then he looks inside at it my, do you know the hole? … whatever that is. I think it's called a vagina, yeah it's called a vagina hole … he show me and then he touched me and I said, Don't touch me there. I told him that I was going to have a bath so I went into the bathroom and he turned the water on, first he put the plug in and then put the water on both of them, the hot and cold. And then he, then I hopped in – the bath. Afterwards I got … I'm remembering. Got it. I went into the bathroom … Yeah, I was in the bathroom. I think it's called a bathroom. I'm not sure – where the toilet is … I went into the bathroom and then I hopped in where the plug is and the water was … then he opened it again and he looked inside and he said, you know what the round circle is and I said, No, and he told me it was a vagina hole, whatever that is. And after I … because I thought it was cold so I got out, put my top on and I asked mummy if I could watch a DVD …" (A's 203-208) 35 A little later, in answer to a question from Senior Constable Shipway about anything else that the appellant might have said while he was touching her, the complainant said: "He said that, When you get older can I lick it … and I said, No, and he said, Why, and I said, Because you can't do it now because I'm just a little girl, I'm at (sic) 12 year old, and he said, Well I do it to your mum, and I said, yeah but mum's not a kid anymore, she's grown up, and that's all I said." (A 259) 36 Constable Shipway then asked about any other occasions and the complainant referred to an occasion in her brother's room when her brother was not present (A 264). She said: "Well I … was in my brother's room and I was sitting down and dry my, my legs because my top part was all dry. I putted my top on, I, I was wiping my legs and all those places … and then he came in, [the appellant] came in and said, do you, when I get older do you want to have sex, and I said, No because I might find another man …" (A 268) 37 Constable Shipway then asked the complainant if she had told anybody. She said that she had told her mother (A 281). When asked what she had said, the transcript records that she replied: "I said, Mum [the appellant] was touching me on my rude part, and then my [sic; "mum" omitted] said to him, You shouldn't be doing that because you should've told me first, she said that to him and that's it." (A 282) 38 The complainant then said that her mother had told her that she had told the appellant not to do it again, and if he did he would not be coming to their house anymore. When asked about staying overnight at the appellant's home with her mother, the complainant said that she and her mother went to sleep on the floor there. The second interview (26 April 2007) 39 The second interview also commenced with a number of preliminary questions, in some of which the complainant was reminded of what she had said previously. Constable Shipway then asked about the occasion when, according to the complainant, the appellant had touched her on the breasts. She asked how he did this. The complainant said he did it with one hand, using his finger, which she described as "the rude finger", adding "which ever that is". I will set out the ensuing questions and answers in full (as they appear in the transcript provided to the jury): "Q94 And how did his rude finger touch your boob? A He pointed with his, like that. Q95 O.K. So, did [the appellant's] rude finger touch your boob? A Yep. Q96 O.K. What part of your boob, did his rude finger touch? A Ah, the middle part. Q97 O.K. And what does the middle part look like? A I don't know what it looks like? Q98 You describe it to me in words. A (NO AUDIBLE REPLY) Q99 Does it look different than another part of your boob? A No. Q100 Looks the same, does it? A Yep. Q101 So, why does it look the same? A Ah, because, it's the same colour. Q102 Ah hmm. And what colour's that? A I think it's pink. Q103 Ah hmm. A I'm not sure. Q104 And what's the other part of your boob, what colour is it? A Purple, or bruised I think. Q105 O.K. So it's the pink part of your boob? A Yep. Q106 And what does that part of your boob look like? A Round. Q107 Round. And how else would you describe it? A Ah, circle. Q108 Ah hmm. Do you know any other names for that part of your boob? A Uh-uh. Q109 Was that a yes or a no? A No. Q110 O.K. So, how long did [the appellant] touch the circle part of your boob for? A One. Q111 One what? A One minute. Q112 One minute. A Yeah. Q113 O.K. So how did his finger touch your circle part on your boob? A Ah, he pointed at it, saying, he used his rude finger to, the, the, the, go like, like that - - - Q114 All right. A - - - on, yeah. Q115 O.K. So he put his rude finger on the circle part of your boob? A Yeah. Q116 And what did his rude finger do then? A Then, oh, I forget the rest. Q117 You forget? A Yeah. Q118 And you said it was on there for about a minute. A Yeah, a minute. Q119 O.K. What did it feel like when his rude finger was on your boob? A Ah, um, sore. Q120 Why was it sore? A Because. Q121 Because why? A See the, the, the, the, pink, the pink thing? Q122 Yeah. A Yeah, he used his rude, he used these two like these two - - - Q123 Ah hah. A Yeah and he went like, squeezed it - - - Q124 O.K. A - - - hard." (A's 93-124) 40 Constable Shipway then turned to the sexual assault allegation and read part of the complainant's earlier answers (A's 203-208 of the first interview). She asked if the description she had there given had been correct. The complainant said that it was. Constable Shipway then asked how the appellant opened the complainant's vagina hole. The complainant said "With his fingers" (A 133). She said he used two hands. The following is extracted from the transcript of the interview: "Q144 O.K. So you said that he used on both his hands, his rude fingers and his index fingers to open up the lips and he showed you, your vagina hole. A Ah hmm. Q145 So what part of your vagina hole, or your vagina or the lips, did [the appellant] touch? A Ah, see the, see when you open the thing and it's pointy - - - Q146 Ah hmm. A - - - that little thing, whatever it's called. Q147 Do you know a name for that little thing, that's pointy? A No. Q148 Mmm A Yeah. Q149 So, what, what happened with that part? A He was wiggling it. Q150 Wiggling it? A Up and down, up and down. Q151 O.K and he, what was he wiggling it with? A With, the same, this finger, his thumb. Q152 His thumb? A Yep, hid (sic) thumb. Q153 O.K. So you have said that he's opened the lips. A Yep. Q154 And then he's used his thumb to wiggle - - - A The - - - Q154 - - - the pointy bit? A Yeah. Q155 So whereabouts - - - A The pointy bit. Q156 Whereabouts is that pointy bit? A I think it's in the middle. Q157 In the middle. What part of your body are we talking about now? A The bottom part. Q158 The bottom part. A Yeah, this part. Q159 O.K. O.K. So, are we still talking about your vagina? A (NO AUDIBLE REPLY) Q160 Is that a yes or a no? A Yep. Q161 O.K. So, he's opened up the lips and inside you said that there's the pointy bit? A Yeah. Q162 And he was using his thumb to wiggle that around? A Yep. Q163 O.K. And how long was he doing that for? A Five minutes. … Q165 O.K. And you had also told me that he opened up the lips and he showed you what's called a vagina hole? A Yep. Q166 O.K. So, what parts of your body did he touch when he showed you your vagina hole? A Um, he touched the vagina hole and then he asked some questions. Q167 O.K. So, what parts of your vagina hole did he touch? A Ah, he touched the vagina um, he touched that squiggly thing, whatever you call it. Q168 Ah hmm. A Um, he only touched two parts, that's all I can remember. Q169 So, those parts of your body, that, that he, the squiggly bit and the vagina hole, are they parts of your body that your undies touch, or are they deeper inside your body? A I don't know. Q170 Mmm, can you think about it? Are they parts that, that the material of your undies would touch? A. I think so. Q171. Right, and were [the appellant's] fingers inside your vagina or on the outside of your vagina? A Out. Q172 O.K. And what did you feel when his fingers touched your vagina hole? A Sore. Q173 Why was it sore? A Ah, he, when the lips were closed, right - - - Q174 Ah hmm. A - - - he squeezed it. Q175 Ah hmm. A Yeah, then - - - Q176 He squeezed it? A Yeah. Q177 O.K. And when he squeezed it, how did that feel? A Sore. Q178 Ah hmm. Why was that sore? A Ah, he was squeezing it and it felt sore. Q179 Ah hmm. A Um - - - Q180 What did you say when he did that? A I told him, I told him to stop it. Q181 Hm. O.K. So you said, his hands or his fingers were on the outside of your vagina hole but you described to me that he'd opened your lips, so, did his fingers touch just the outside of the lips or inside the lips. A I think it was in, I'm not sure. Q182 O.K. And what makes you think it could be inside the lips? A Oh, because he looked inside - - - Q183 Ah hmm. A - - - the lips and he said um, I wish I had that part. Q184 Mmm. And when he touched the squiggly part, inside your vagina - - - A Yeah. Q184 - - - the middle part, what did that feel like? A Sore. Q185 Sore. And why was it sore? A Only because he like, ah, it was sore because - - - Q186 Why was it sore, [M…]? A Because um, he like, err, like um twist it with these two. Q187 So what fingers there are you pointing too (sic)? A That one. Q188 What's that? A A thumb and - - - Q189 Your pointer finger? A Yep." 41 The complainant gave no additional evidence in chief in the trial. She was cross-examined. 42 I will deal firstly with the cross-examination directed to the actual events the subject of the two charges. 43 Counsel asked the complainant about the allegation she had made in the interview that the appellant had touched her on the breast. The trial transcript records the following exchange: "Q Do you say that he touched you on the boobs sometime? A Yes. Q What do you remember about that? A I can't remember. Q Can you remember where it happened, do you say? A I think it was in my brother's room or the bathroom. Q You're not sure which of those rooms? A I'm not sure. Q Can you remember what you were doing just before that happened? A I was playing my computer and that was it. Just playing my computer. Q Where was the computer? A In my room. Q Did [the appellant] come into your room? A No. Q Where do you say he touched you – which room were you in, when you say he touched you on the boob? A Ben's room. Q So did you go from your room to Ben's room? A Yes. Q Why did you do that? Can you remember why you did that? A To play – to watch my cartoons. … Q What do you say happened when you say [the appellant] touched you on the boob? A I can't remember. Q Do you say that he touched you with some part of his body on your boobs? A Yeah. Q What do you say, what part of his body do you say. A His hands. Q His hands? A Yes. Q What do you say he did with his hands? A I can't remember. Q You can't remember anything about that? A Nah. Q You want to have a think about that. A No. Q It might help if you think about that for a little bit? A Yeah. Q Alright, so it's just he touched you with his hands, you say, on the boob? A Yeah. … Q Did he say anything to you when that was happening? A I'm not sure. Q Did you say anything to him when that was happening? A I'm not sure. Q Did you say anything to him when that was happening? A Yeah. Q What did you say? A I told him to stop it. Q Is that all you said? A Yeah." (T pp 28-30) 44 A little later counsel asked the complainant what she was wearing when this happened and she said she was wearing "a top"; she then said she was wearing a top and a pair of shorts. But that was immediately followed by her saying that she thought she was wet from having had a bath. 45 Counsel then turned her attention to the allegation of sexual assault (the digital penetration of the vagina). The complainant said that that happened when she was having a bath. Counsel then asked her to recount exactly what it was that the appellant had done. The complainant said: "I can't remember that part." (T p 33) 46 She said she was sure she was in the bath, and that the incident was on a different day to the day the appellant touched her on the breast. She could not remember how far apart in time these events occurred. She did, however, say that the vaginal penetration incident occurred before the breast touching incident. 47 On a number of occasions counsel put directly to the complainant that the offences had not occurred. I extract below those questions, although I emphasise that they are not sequential and are drawn from different parts of the transcript. The questions and answers relevant to this issue are: "Q I'm saying to you he didn't touch you on the boob, is that right? A He – he did. Q I'm saying to you you've made that up, you've made up the story about [the appellant] touching you on the boob, is that right? A I'm not sure. Q Do you understand what I'm saying to you? A No." (T p 40) 48 Counsel then prepared a foundation for some further questions by asking the complainant about making up stories as part of her schoolwork. This was done to focus the complainant's attention on the distinction between a truthful, factual account of events, and a fictional, or fabricated, account. The transcript records the following questions and answers: "Q You told us yesterday that, you say that [the appellant] touched you twice, that's what you say? A Yep. Q And you say that he touched you on the boob on one occasion? A Yep. Q Is that a made up story? A No. Q Is that something you've made up in your head like the stories that you write at school sometimes? A No. Q You've also told us that [the appellant] touched you on the pussy you said? A Yep. Q Remember saying that, is that a made up story like the stories you write at school sometimes? A No. … Q [M…] if you told us that the story about [the appellant] touching you on the boob, if you told us that that was a made up story do you think that you'd get in trouble? A Yes. Q And why do you think you'd get in trouble? A I don't know. Q If you told us that the story about [the appellant] touching you on the pussy was a made up story, do you think you'd get in some trouble? A Yes. Q That would be changing your story wouldn't it? A Yeah. Q It would be different to what you said to the police, that's right? A Yep. Q And do you think you'd get in trouble because that would mean changing your story? A Yep. (T pp 68-69) … Q I'm saying to you that [the appellant] was never in the bathroom when you were in the bath tub, am I right about that? A Yeah. Q Do you understand what I'm asking there? A Yeah. Q I'm saying that there was never a time when you were sitting in the bath tub in your house and [the appellant] was also in the bathroom with you, that's what I'm saying. Is that right? A Yeah." (T p 77) 49 Two pages later, the transcript records the following questions and answers: "Q [M…] I'm saying that there was never a time that you were in the bath tub at your house and [the appellant] was also in the bathroom, that's what I'm saying, do you understand that? A Yeah. Q Do you agree with me? A Yes. Q Is that how things happened? A Yes Q So there was never a time that you were in the bath tub and [the appellant] was in the bathroom with you? A Yes." (T p 79) 50 There was also cross-examination of the complainant about whether she had told her mother of these incidents, and, if so, what she had said. It will be remembered that, in the first interview (Q 282), Constable Shipway asked if she had told anybody (this was specifically in the context of the allegation about what occurred in the bathroom). The complainant said that she had told her mother. Constable Shipway asked what she had said. The complainant said that she had told her mother that the appellant "was touching me on my rude part". 51 She also said (in the interview) that her mother had talked to the appellant and told him that if he did it again he would not be coming to the house anymore. 52 The complainant was cross-examined about this. She was asked if she claimed to have talked to her mother about the breast touching incident and she said that she had. She could not remember when she had done so. Nor could she remember what she had said. When asked what her mother had said to her, she said: "She said that he couldn't do that and that she would tell him not to do it again." (T p 32) She then assented to the proposition that she had "definitely" spoken to her mother about the appellant touching her on the breast. 53 She was then asked whether she talked to her mother after the bathroom incident. She said that she had, and that she had done so on the day after it had happened. She said: "I told her and then she said that she's going to tell him. … I told her that he touched me again and she wasn't very happy with that." (T p 34) She was not sure whether she had told her mother where the appellant had touched her. She did not know whether her mother had asked her any questions, and could not remember anything she said about that conversation. 54 Counsel then asked the complainant this question: "Q [Constable Shipway] asked you, 'when [the appellant] touched you in the bathroom did you tell anybody that time?' and you said, 'No', do you remember that?" (T p 38) The complainant replied "Yeah". 55 Counsel, before asking the question, identified the question to which she referred as being question 336 in the first interview. The first interview, as presented to the jury, ends at Q292. The question to which counsel referred does not appear in either of the transcripts of interview that were before the jury. 56 It may be that that question appears in what may have been able to be made out of the tape described as having been inaudible. In any event, it must have been confusing, both for the jury and for the complainant. 57 The cross-examination then continued: "Q Can you remember why you said that? A No. Q Because you're telling us today that you told your mum about [the appellant] touching you in the bathroom. That's what you say? A Yeah. Q One of the things you said to [Constable Shipway] is that you didn't tell anybody about that? Can you see that they are two different stories? A Yeah. Q And the story you're telling us today, you say that you told your mum about what happened in the bathroom, that's right? A Yeah. Q One of the things you told [Constable Shipway], was that you didn't tell anybody about what happened in the bathtub? A (NO VERBAL REPLY) Q Do you understand that? A Yeah. … Q You didn't talk to your mum about – you didn't say to your mum, '[the appellant's] touched me in the bathroom on the pussy', did you? You just didn't do that? A No. Q Do you understand what I'm asking you? A Yeah. Q I'm saying to you that you did not talk to your mum about [the appellant] touching you on the pussy? A Yeah. Q Am I right about that? A Yeah. Q You tell us today that [the appellant] touched you on the boob, that's what you say? A Yeah. Q And you also tell us today that you talked to your mum about that afterwards. Is that what you say? A Yeah. Q Do you understand what I'm asking? A Yeah. Q I'm saying to you you didn't talk to your mum about [the appellant] touching you on the boob, is that right? A Yeah. Q You sure you understand what I'm asking you? A (NO VERBAL REPLY) Q If you're a bit confused just tell me. Are you a bit confused? A Yeah. Q I'm saying you didn't – you just didn't talk to your mum? A Yeah. Q You didn't say to your mum, '[the appellant] touched me on the boob'? A Yeah. Q I'm saying to you he didn't touch you on the boob, is that right? A He - he did." (T pp 39-40) 58 LA's evidence was quite different. In her evidence in chief she was asked, in general terms, about being told anything by the complainant in 2006. Her attention was directed to the allegations against the appellant. The only thing she recounted the complainant having said to her was: "A Yeah [the complainant said] that [the appellant] wanted to lick her out." 59 In cross-examination she was asked: "… she certainly didn't come to you and say that [the appellant] had touched her on the vagina, she didn't say to you that [the appellant] touched her on the breast or boob?" She answered: "No." 60 There is another sequence in the cross-examination to which it is necessary to make reference. 61 Counsel quoted a question asked by Constable Shipway in the first interview, and the answer there given by the complainant. The question concerned the last time the appellant had been in the complainant's house. The answer she gave was: "Probably last – I think it was two weeks ago. I'm not sure. I'm just guessing. Like I have always …" (A 232) 62 In cross-examination the complainant agreed that she had said that, and that she had heard that when the tape recording was played to the jury. Counsel then asked: "Q Is that one of the things that you were guessing?" 63 Presumably, what counsel was referring to by "that" was the last time the appellant had been at the complainant's house. The complainant replied "Yeah". The next questions and answers are put forward as of considerable significance. They are: "Q Were you guessing about what happened in the bath tub when you say [the appellant] touched you? A Yeah. Q Were you guessing a bit about what happened in the bedroom when you say [the appellant] touched you on the boob? A Yeah. Q Were you guessing because you weren't sure what happened in the bedroom? A Yeah. Q Do you understand what guessing is? A No. Q What do you think the word guessing means? A Um – um I don't know." (T pp 35-36) 64 Counsel then asked a number of questions about the meaning of "guessing". The complainant (to my mind, not surprisingly) was unable to give a definition. 65 Finally, it is necessary to refer to some questions directed to the complainant's credibility. 66 In one sequence of questions it was put to her that she had made up the stories of the two incidents. On each occasion she denied that proposition. 67 She was then asked some questions suggesting to her that she was aware that if she admitted that the account she had given was false she would be "in trouble". She agreed that she did think that admitting that she had made up the stories would mean she would be "in trouble", but was not able to say why. This was a somewhat recurring theme in the cross-examination. It is unnecessary here to reproduce all of the questions and answers; I will provide some examples at a later point in these reasons. 68 The complainant was then asked about her attitude to the appellant, and agreed that she did not really like him. She assented to a question which suggested that she wanted him to "go away" and to stop seeing her mother. It is, however, convenient to reproduce one further small passage of transcript: "Q Did you make up the story about [the appellant] touching you because you wanted him to go away? A Yes. Q I'm sorry what did you say? I'll ask you again [M …] A Yeah. Q Did you make up the story about [the appellant] touching you because you wanted [the appellant] to go away? A No. Q You sure? A Yeah." (T pp 79-80) The argument on appeal 69 In support of the appeal, counsel for the appellant drew attention to three specific aspects of the complainant's evidence. These were: her evidence about the incident alleged to have taken place in the bathroom; her evidence about "guessing" (T pp 35-36); her evidence about complaint to her mother. 70 As to the first of these it was submitted that: "On the complainant's own account the incident comprising Count 2 on the indictment could not have occurred." 71 In support of this, reliance was placed upon what was described as the complainant's "unequivocal" evidence that there was never a time when she was in the bath tub at her house while the appellant was also in the bathroom. Those questions and answers are extracted above, from T pp 77 and 79. 72 I explain below why it is that little weight can be attached to the complainant's evidence in response to questions framed as were those which prompted these answers. 73 As to the second point, I would similarly place no weight upon the complainant's inability to define "guessing". Indeed, the word is so well understood that an adult might have difficulty in providing a definition. Nor, again for reasons explained below, would I accept at face value the affirmative answers to questions about whether she was "guessing" when she described the two incidents. In relation to those descriptions, the concept of "guessing" is inapt; either the incidents occurred or they did not; the complainant was either right or wrong in her description; but she could not have "guessed" them. Perhaps it was the disconnect between the concept of "guessing" and the relating of events that she said happened that caused the complainant to respond as she did. Whatever the explanation, I am quite satisfied that her assent to the proposition does not undermine her direct evidence about those events. 74 The conflict in the evidence concerning complaint to the complainant's mother might appear to be of more significance. However, the complainant's mother gave evidence that she was in receipt of a disability pension because: "I'm sort of on the borderline of not understanding." (T 25/2/08 p 7) and that she had been told that she had "a borderline intellectual impairment". 75 The Crown did not, as I understand the way it presented its case, advance what the complainant claimed, in the interview, to have told her mother as evidence of complaint as it is understood in prosecution of sexual offences. It did not call evidence from LA of complaint, and did not rely on the complainant's answers to questions 281 and 282 in that way. The issue really emerged in cross-examination, in relation to the complainant's credibility. Complaint was not a major issue in this case, although I acknowledge that the conflict is relevant to the assessment of the complainant's credibility. It was, of course, fully before the jury. I do not discount it in the assessment of the reliability of the verdicts. 76 It is clear that questions of any degree of complexity were beyond the capacity of the complainant to comprehend. It is equally clear that, on many occasions, she gave answers (usually affirming the substance of what was put to her) to questions she did not fully understand. The questions about "guessing" to which I have already referred are illustrative. Two further illustrations will suffice. They are: "Q I'm saying to you, you don't want to tell us that you made it up because you think you're going to get in trouble, is that right? A Yes. Q Do you understand what I'm saying? A No." (T p 71) and: "Q [M…] what I'm saying to you is this. I'm saying to you that the story about [the appellant] touching you on the boob, that you've made that up but you can't tell us you've made it up, because you think you'll get into trouble. Am I right about that? A Yes." (T p 73) 77 Each of these questions contained at least four concepts: (i) "I'm saying to you …"; (ii) "you've made it up …"; (iii) "because you think you'll get into trouble …"; (iv) "Is that right?"/"Am I right about that?" 78 What did the complainant understand "that" in (iv) to refer to? The possibilities are: "I'm saying to you"? (Yes, counsel was saying something to the complainant – the affirmative answer was correct); "you've made it up"?; "… you think you'll get into trouble …"? (the complainant had agreed that she thought, if she had made up the story, she would be in trouble. The affirmative answer was correct.) 79 One could not be confident that her affirmative answers represented assent to all components of the complex composite propositions that were put to her. 80 But when questions were simplified and direct, her responses were different, and equally direct. For example, she was asked: "Q And you say that he touched you on the boob on one occasion? A Yep. Q Is that a made up story? A No. Q Is that something you've made up in your head like the stories that you write at school sometimes? A No." (T p 68) and: "Q [M…] what I'm saying to you is that the story about [the appellant] touching you on the boob, I'm saying you made that up, is that right, am I right about that? Did you make up the story about [the appellant] touching you on the boob ? A No." (T p 74, italics added) 81 Contrast this latter question and answer with those which immediately followed: "Q I'm saying to you that you can't tell us that you made up that story because you think you're going to get in trouble, am I right about that? A Yes." 82 In making these observations about the way questions were framed I do not intend any criticism of counsel. She, to her credit, did not attempt to exploit the situation, and she appears to have attempted to frame her questions as simply as possible. But her strategy (of suggesting that the complainant had, in effect, painted herself into a corner with a fabricated story because she wanted the appellant out of her life, and that, having done so, she feared the consequences of confession of her misdeed) called for complex ideas to be put to the complainant. It was when this was done that the answers, which appear to favour the appellant, become unreliable. 83 Of course, it is not the function of this Court to construe the complainant's answers, or evaluate her credibility. That lies in the realm of the jury. Because of the difficulties in eliciting evidence from the complainant, their evaluation was critical. Unlike this Court, they had the advantage of observing the complainant. In this case that advantage was more than usually significant. 84 And the course of the trial shows that the jury went about their task with considerable care. Their deliberations occupied (assuming normal court hours were kept) 4 hours and 40 minutes. This is a not insignificant length of time, when one considers that, although her evidence was given over two consecutive days and was interrupted for a fairly lengthy legal argument, the complainant's cross-examination is recorded in only 29 pages of transcript. 85 Further, the jury at an early stage asked two pertinent questions, indicating that they were alive to the issues they had to decide. 86 I am satisfied that the verdicts of guilty were well open to the jury. I do not experience any doubt about the appellant's guilt which ought to have been shared by the jury. 87 I propose that the appeal against conviction be dismissed. 88 R A HULME J: I agree with Simpson J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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