Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Burrows v R [2012] NSWCCA 113 Hearing dates: 7 May 2012 Decision date: 04 June 2012 Before: Whealy JA at [1] Hidden J at [2] Schmidt J at [3] Decision: 1. Leave to appeal be granted. 2. The appeal be dismissed. Catchwords: CRIMINAL LAW - appeal - indecent assault and sexual intercourse with a child - whether the verdict was unreasonable and unsupportable on the evidence - whether verdict involved a miscarriage of justice because it involved an inconsistent verdict with the acquittal on count 2 in the indictment Legislation Cited: Criminal Appeal Act 1912 Cases Cited: MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 MFA v R [2002] HCA 53; (2002) 213 CLR 606 FB v Regina; Regina v FB [2011] NSWCCA 217 Category: Principal judgment Parties: Terrance Burrows (Applicant) Regina (Crown) Representation: Counsel: Mr A Metcalfe (Applicant) Ms M Cinque (Crown) Solicitors: O'Brien Solicitors (Applicant) S Kavanagh, solicitor for Public Prosecutions (Crown) File Number(s): 2009/248314 Publication restriction: None Decision under appeal Date of Decision: 2011-03-25 00:00:00 Before: Sweeney DCJ File Number(s): 2009/248314 Judgment 1WHEALY JA: I agree with Schmidt J. 2HIDDEN J: I agree with Schmidt J. 3SCHMIDT J: Terrance Burrows, the applicant, seeks leave to appeal his conviction on three charges. On 8 February 2011, he was convicted by a jury of counts 1, 3 and 4, having pleaded not guilty to the following charges: "Count 1: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at the time of the assault did commit an act of indecency on her. (Section 61M(2) Crimes Act 1900) Count 2: On or about 31 October 2009 at Sylvania in the State of New South Wales, did have sexual intercourse with [the complainant], a child then under the age of 10 years, that is, of the age of 7 years. (Section 66A (1) Crimes Act 1900) In the alternative Count 3: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at the time of the assault did commit an act of indecency on her. (Section 61M(2) Crimes Act 1900) Count 4: On or about 31 October 2009 at Sylvania in the State of New South Wales, did have sexual intercourse with [the complainant], a child then under the age of 10 years, that is, of the age of 7 years. (Section 66A (1) Crimes Act 1900) In the alternative Count 5: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at the time of the assault did commit an act of indecency on her." (Section 61M(2) Crimes Act 1900) 4Two grounds of appeal were pressed: "1. The verdict was unreasonable and unsupportable on the evidence. 2. The verdict involved a miscarriage of justice because it involved an inconsistent verdict with the acquittal on count 2 in the indictment." 5On a conviction appeal the Court's power is that given by s 6(1) of the Criminal Appeal Act 1912: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the applicant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." The circumstances in which the offences occurred 6On appeal it was not in issue that the complainant was aged 8 years at the time that she gave her evidence in February 2011 and 7 years on 31 October 2009, at the time of the events in issue. She was questioned by police on 1 November 2009 and then medically examined. The police interview was recorded and the DVD played to the jury at the trial, when the complainant gave her evidence. Her parents, Mr SH and Mrs BH gave evidence, as did the applicant and his partner. There was also police and character evidence led. 7DNA testing was conducted on the complainant's underpants and expert evidence was given about what was found by Ms Trabuio, a senior forensic biologist. The biologist Ms Wevervang also gave evidence about why no other DNA was found on testing of the complainant. Dr Hurwitz, who examined the complainant on 1 November 2009, was not available to give evidence, but the DVD of her examination of the complainant on 1 November was also shown to the jury. Dr Tzioumi, who examined the complainant on 6 November 2009, did give evidence. 8In written submissions for the applicant it was accepted that the jury was entitled to accept the complainant's evidence, together with the evidence of her parents and the DNA evidence, to conclude beyond reasonable doubt that the applicant had kissed the complainant on the mouth, put his tongue into her mouth, his hand into her underpants and that he had touched her bottom. 9The factual issue on appeal was confined to the question of whether the applicant also put his hand, specifically his finger or fingers, into any part of the complainant's anus, or whether he only indecently assaulted her by placing his hand under her underpants and grabbing her bottom in a way that did not involve penetration. 10There was no issue on appeal that the evidence was that on 31 October 2009 the applicant and his partner visited the complainant's family home, where they stayed that night. They and the complainant's family went to the beach that afternoon, where the complainant and her sister attended 'Nippers', (a lifesaving association event). They all returned to the family home at about 6pm and had dinner. The complainant and her sister went to sleep in their bedrooms at about 8pm. The adults spent the evening together. Alcohol was consumed and they all went to bed at about 1am. 11There were beads hanging in the doorway of each of the sisters' bedrooms, which made a distinctive noise when anyone went through the doorways. Mr SH's evidence was that he and his wife could identify and recognise the sound which the two sets of beads made, when touched. During the course of the evening Mrs BH heard the beads of the complainant's room at about 10.40pm. She spoke to the applicant who told her that he had knocked the beads as he was swaying and had lent into them. 12Later the applicant again left the room where the adults were and when his partner went to check on him, she saw him emerge from the complainant's room. He then told Mrs BH that he had heard the complainant yelling in her sleep and that he had gone in to pat her and had kissed her on the forehead. Mrs BH then checked on the complainant who was awake and told her that the applicant kept waking her up and asked her mother to stop him coming into her room. Mrs BH told her husband and asked him to keep an eye on the applicant. 13The following morning the complainant told her parents that the applicant had assaulted her, describing what he had done. She also demonstrated what he had done to her, on her mother. Mr SH confronted the applicant, who denied having done anything wrong. Mr SH asked the applicant and his partner to leave. Police were then contacted. 14The complainant was interviewed and later medically examined by Dr Hurwitz at the child protection unit at the Prince of Wales Hospital. Two lacerations were found in the skin folds of her anus, the 'rugae', which could only be seen by parting the buttocks. Dr Hurwitz's findings were documented and recorded on DVD. The complainant was examined again by Dr Tzioumi on 6 November, after complaining to her parents that her bottom was still sore. Dr Tzioumi found that the lacerations had healed. 15The DNA evidence came from profiles taken from the back of the inside of the complainant's underpants. DNA from two people was located and a test for the presence of saliva was positive. The major DNA profile matched the applicant's profile and the minor profile that of the complainant. There was a strong possibility that the major DNA profile came from the saliva, but Ms Trabuio could not say for certain which of the two DNA profiles the saliva matched. Ground 1: The verdict was unreasonable and unsupportable on the evidence 16In my view this ground of appeal was not established. The test 17In MFA v R [2002] HCA 53; (2002) 213 CLR 606, it was observed at [25]: "[25] Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen [(1994) 181 CLR 487]. That test was accepted and applied by this Court in Jones v The Queen [(1997) 191 CLR 439. See also Gipp v The Queen (1998) 194 CLR 106 at 123 [49] per McHugh and Hayne JJ.]. In M, it was pointed out [(1994) 181 CLR 487 at 492-493] that it was once common for expressions such as "unsafe or unsatisfactory", or "unjust or unsafe", or "dangerous or unsafe" to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said [(1994) 181 CLR 487 at 493]: "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." 18The task of the Court is that discussed by Whealy JA, with whom Buddin and Harrison JJ agreed, in FB v Regina; Regina v FB [2011] NSWCCA 217: "115 The task of the Court of Criminal Appeal in an "unreasonableness" appeal has recently been restated by the High Court of Australia in SKA v R [2011] HCA 13; 85 ALJR 571. In the plurality judgment of French CJ, Gummow and Kiefel JJ, it was stated at [11] - [14]:- 11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R (1984) 181 CLR 487 at 493 by Mason CJ, Deane, Dawson and Toohey JJ: 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. 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R (2002) 213 CLR 606 at [58], McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say (at 494): In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. .... 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality" (Morris v R (1987) 163 CLR 454 at 473). In M, Mason CJ, Deane, Dawson and Toohey JJ stated (at 492 - 493): In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand". 116 In the present matter, having regard to the ground of appeal relied on by the appellant, it is this court's task to make an independent assessment of the whole of the evidence, paying special attention to those matters relied upon by the appellant in its submission, to determine whether the finding of guilt by the trial judge can be supported. 117 In making its own assessment, this court must, however, bear in mind the important qualification referred to in M at 493:- 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. 118 In the present context, this means that, in making the independent assessment of the evidence, this court must recognise that the trial judge had the benefit of having seen and heard the witnesses, and that he was the tribunal entrusted with the primary responsibility of determining guilt or innocence. 119 The qualification is further discussed in M at 494:- In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced." The parties' cases 19There was no suggestion on appeal that the complainant's evidence was not credible, to the contrary, the applicant relied upon it to establish his case. That case was that he ought to have been acquitted of both sexual intercourse charges, given that the complainant's evidence as to his actions was essentially the same in respect of both assaults; that she was a very articulate person, despite her age; and that she had emphatically denied that he had put his finger into her bottom. In the result, the evidence was only capable of establishing indecent assault, not sexual intercourse. 20The difficulty with the applicant's case, so put, was that it took no account of the parties' cases and the other evidence which the jury had to consider. 21At trial the Crown's case was that on 31 October the applicant entered the complainant's bedroom on two occasions. On the first, he inserted his tongue into her mouth and kissed her (count 1). He then put his hand on her bottom and inserted his finger or fingers partly into her anus (count 2) or in the alternative, he indecently assaulted her by placing his hand on her bottom. (count 3). On the second occasion he again placed his hand on her bottom and inserted his finger or fingers partly into her anus (count 4) or in the alternative, he indecently assaulted her by placing his hand on her bottom (count 5). 22The defence case was that the applicant was entitled to be acquitted of all charges. The applicant denied all of the allegations. His evidence was that he had entered the bedroom only once, when his partner saw him coming out of the room; that he had not assaulted the complainant; nor had he told her father the following morning that he had patted her bottom. 23As to the sexual intercourse charges, there was insufficient evidence to conclude beyond reasonable doubt that penetration of any part of the complainant's anus had occurred. The evidence left open the possibility that the lacerations she had suffered could have been caused by sand irritation, or hard poo, because of constipation. The applicant relied on the complainant's denial that he had put his finger into her bottom where poo comes out. That evidence, when considered with Dr Tzioumi's evidence, gave rise to a reasonable doubt that the lacerations had been caused by the applicant penetrating the complainant's anus with his finger. It was possible that the lacerations had been caused by the child's buttocks having been separated and quickly pulled apart. Accordingly, the sexual intercourse charges could not be found proven. 24This conclusion was supported by other considerations, which were submitted to include that the complainant never referred to a finger going into her bottom; her hand gestures when demonstrating what the applicant had done were not consistent with penetration; there was no evidence led from the Crown that she had been mistaken in her denial of penetration; that her complaint to her father was that the applicant had grabbed her bottom and on her re-enactment, she had squeezed her mother's bottom; that she never complained of specific pain in the anus; that she had not later communicated to prosecution lawyers that it was her anus which was sore, but indicated her buttocks; and that there was no positive result for the anal swab, even though saliva was a rich source of DNA. 25Submissions were also advanced as to the possible explanations for the results of the DNA and saliva testing, including the applicant touching the complainant's underpants while she was getting changed at the beach, when the underpants were passed to her; stepping on them when they had been left on the floor; or DNA being transferred from the carpet where the applicant had walked bare footed; or from his sweat on a mattress; or when she had jumped on him during the course of the weekend. It was also suggested that she could have sucked her thumb and scratched her bottom. 26It was also submitted that the jury would accept the applicant's evidence. He gave an immediate explanation for being in the complainant's room, without hesitation, when Mrs BH spoke to him. He had voluntarily given his evidence at trial, denying the allegations. He was a person of good character, whose evidence was supported by the character evidence given by his partner and his manager, Mr Redden. 27The jury did not accept the defence case, so advanced. 28The Crown's case at trial did not rest only on the evidence of the complainant. The Crown submitted to the jury that sexual intercourse was established not only by the complainant's evidence, but by other evidence, including the medical and DNA evidence. It was submitted that the only explanation for the applicant's DNA and saliva being found on the inside of the complainant's underpants, came from the complainant's account. The evidence suggested that at the time of the assaults the applicant had been intoxicated to the point of disinhibition. The applicant's evidence in cross-examination showed that his account was a fabrication and that he was trying to make up an innocent explanation for having been observed coming out of the complainant's bedroom. 29It was submitted for the Crown that it had to be considered that the complainant's evidence was a child's account of what had happened to her. Other evidence confirmed that the applicant had been in her room. It was relevant that the complainant had told her mother that night that the applicant kept coming into her room and waking her up and made immediate complaint of the assaults the following morning. There was no suggestion that words had then been put into the complainant's mouth. She gave a consistent account of the assaults, including when interviewed not long afterwards by police. The injuries she had suffered, as well as the medical evidence, supported the complainant's account of what had occurred to her, as did the DNA and other testing and Ms Trabuio's evidence as to what that had revealed. The evidence 30The applicant's case on appeal rested on the complainant's answer to the question of whether the applicant had inserted his finger 'where the poo came out'. That answer has to be considered in the context of her description, in her own words, of what the applicant had done to her on the two occasions that he entered her bedroom that night, waking her from sleep; together with the evidence of her injuries; the evidence as to the saliva and DNA found on examination of her underpants; the evidence as to how her injury could have occurred; and how the applicant's DNA came to the deposited on the inside of her underpants. 31The jury had to consider the evidence that in October 2009, the complainant was a 7 year old girl, who on medical examination on the day after the assault was found to have two fresh shallow lacerations on the skin of the rugae of her anus, one 4mm in length and the other 5-6mm. The rugae are the skin folds near the external sphincter, which Dr Tzioumi described in her evidence as: "It's just the skin folds around the anus. Most people are familiar with that, even you know when you change a baby's nappy probably is the time most people see it, where the anus is, where the hole is, where the pieces of poo comes out. Around it it's got little skin, the skin is sort of folded together the rugae is the Latin name for those skins folds around there." 32The lacerations could not be seen without parting the complainant's buttocks. The doctor explained: "Q. Could you see those lacerations without parting the child's buttocks? A. No. When the child is lying there with her - in the normal neutral position, relaxed position with nobody touching her you can't because they're deep, deeper into the anal canal, so you have to part the buttocks of the child and stretch those skin folds, the rugae, to be able to see those two small lacerations." 33The second examination was conducted by Dr Tzioumi at the request of the complainant's parents, given her complaints of continuing pain after the initial examination. In cross-examination Dr Tzioumi said that there had been no bruising found on the complainant's bottom 34Dr Tzioumi explained that the lacerations were fresh on 1 November, with no evidence of healing. On her examination, they had healed in accordance with the normal repair processes. Dr Tzioumi also explained that the lacerations were not consistent with chronic lacerations caused by constipation, which have a distinctive appearance different to the fresh lacerations found on 1 November. Nor were they consistent with a rubbing injury caused by friction. 35The lacerations were considered to be superficial, not deep, as would have been the case if made with a sharp object. Dr Tzioumi's opinion was that there were two possible ways in which those lacerations could have been caused. They were the result of the forceful pulling apart of the skin, so that the rugae were stretched aside forcefully. Such an injury could be caused either by someone quickly pulling and forcing the buttocks apart, or by someone pushing something inwards between the folds. In her opinion, they could have been caused by a blunt object, such as a finger. 36When she gave her evidence the doctor was read extracts from the complainant's evidence, including her answers to the question of whether the applicant had put his finger into her bottom, where the poo comes out. The doctor was asked to comment on this evidence. She said: "The injuries are external to the internal sphincter as I mentioned earlier and the sensation of the poo come(sic) out is through the inner sphincter, the internal sphincter and these two lacerations are outside that, so that's correct in way where these lacerations are you will not get the sensation that the finger has gone where the poo comes out because that's further in. Q. And what about her other explanation - I withdraw that. Her answer, "He was moving it side to side but he was pressing it down really hard as he can because it really hurt". If you'll accept from me that when she gave that evidence and said he was pressing down really hard she demonstrated with the palm of her hand. Is there anything you can tell the Court about that answer given the injuries that you've seen? A. All I can comment from the answers that from what you read if you press very hard that will account for blunt forced trauma as I explained earlier in my answer, but the mechanism of this injury, if you push really hard and push apart the skin fold, the rugae, you can cause those injuries. Now the child, how the child experience without seeing the part of the hand and exactly which part of the hand was pushing against into her bottom as it was the earlier part the answer into the bottom, it - for me looking at the injuries that description fits. Q. What does it fit? A. That pressure from the outside into the bottom to the point of hurting could explain the injuries." 37In cross-examination, Dr Tzioumi was again taken to the complainant's description of what the applicant had done, including her demonstration of the applicant's hand movements. Her evidence was: "Does the record of hand movements that I've just indicated to you [the complainant] - well asked you to assume [the complainant] made during the interview with police, the absence of any reference at anytime contrary to what you've been told, of any finger being put in the bottom and the denial of the finger going into the bottom and the account that it was "only at the outside". Do any of those things affect any of the evidence that you've given about the cause of the injury" A. The cause of the injuries indicated originally in my original answer is that a blunt force trauma and as stretching or forceful pushing, that's what can cause those injuries. Q. And by blunt force trauma, what we mean is something not sharp? A. That is correct." 38Dr Tzioumi later answered 'yes' when asked 'Is it your opinion that the injuries you saw are consistent with the insertion of a finger or fingers into the child's anus?'. 39The jury saw the DVD of the complainant's account to the police of the assaults and also saw her give her evidence. Her account to police began with: "And, and when he came in, he, he put his tongue into my mouth and I didn't' like it, and he put his hand in my, to my bottom and I didn't like it either." 40She said that the applicant woke her up when 'he put his hand in my bottom' (A 154). She demonstrated how she put her teeth together, to stop him putting his tongue in her mouth; how he tried to open her mouth with his tongue; and how she put the sheet over her mouth to stop him; She then said that 'then he was trying to turn me around' (A164). She said: "Q175 O.K. All right. And after he was trying to turn you over, what's the very next thing that he did? A. He put his hand into my bottom." 41She said he put his hand inside her undies and: Q187 O.K. All right. All right. And can you tell me, because I wasn't there and it's really important that I find out, what was his hand doing when it was touching your bottom? A He was, he was squashing it and moving it around. Q188 O.K. All right. Now how did that feel to you? A It really hurt. Q189 It really hurt? A And I was trying, I said, Don't, to him two times or three, he --- 42Later she said again that he was using his hands and she felt 'his hand going into my bottom' (A 198) and: Q198 O.K. You tell me what you felt. A His hand going into my bottom. Q199 O.K. All right. And tell me how that felt? A Really, it, he, he was, he was moving it to side to side but he, he was pressing it down really hard as he can --- Q200 Mmm. A --- 'cause it really hurt. Q201 O.K. And you, you definitely think that went inside your bottom? A (NO AUDIBLE REPLY) Q202 And what does that mean when you go like that? A Yes. Q203 O.K. Good girl, thanks for that. O.K. How long do you think he had his hand inside your bottom for? A I don't know because he took it out, then put it back in, took it out, put it back in, took it out, put it back in, took it out and put it back in heaps of times. 43After the applicant left her room the complainant went back to sleep. She woke again later and he 'did the same thing' (A 235). Then she said: Q236 O.K. All right. Now what did, what's the very first thing he did when he came back into your room? A He put his hand in to my bottom. Q237 O.K. All right. Now this second time when he put his hand into your bottom, what did he do with his hand? A He moved it around, then squashed it, and then came back out, in, out, in, out, in, out. Q238 O.K. All right. This second time that he came into your room did he put his hand into your underwear or on the outside? A Into my underwear. Q239 O.K. And did he put his hand into your bottom? A Yes. Q240 And what makes you think that it went inside your bottom? A Because I heard my undies smack me like really hard. Q241 O.K. And is there anything else that makes you think that he put his hand into your bottom? A. No. Q242 O.K. This second time that we're talking about, did it, how did it feel? A It felt he was moving around and he was. Q243 Yeah, O.K. A. Then he squashed it. Q244 You know how you told me that the first time it hurt, did it hurt the second time? A Yes." 44The complainant was also asked: Q245 O.K. All right. O.K. Now do you think he put his, you know, O.K. You know how you go to the toilet? A Yes. Q246 O.K. And you know how you do a poo? A Yes. Q247 O.K. Do you think he put his finger into your bottom where the poo comes out? A No. Q248 O.K. All right. You know the first time where we, when we were talking, O.K., do you think he put his finger into your bottom where the poo comes out? A No. Q249 O.K. All right, good girl. I just need to check that, O.K. A It went to the back, not the front. Q.250 It went to the back as well, O.K. All right. At any time did he put his finger into your bottom? A No. Q251 No. A Only at the outside. Q252 The outside, O.K. Good girl. All right. Now this second time when he, he's done it again and he's putting it in and out and in and out, what's the next thing that happened? A He was keep doing it. Q253 O.K. All right. And when he, how long do you think he was doing it for the second time? A I don't know. 45The complainant also said that she noticed that the first time that his hands were wet. She said that: 'Q268 O.K. His hands were wet. And how do you know they were wet? A Because he went to the toilet. Q269 O.K. An could you feel they were wet? A Yes. Q.270 Yeah, And where did you feel that they were wet? A Inside, on my pants, wiping it onto my pants." 46The complainant drew a picture, identifying that the applicant had touched her on the bottom and not the vagina. When the complainant gave evidence at the trial, she identified on another drawing, where she said it really hurt when the applicant touched her. She circled her bottom, not just her anus. 47The complainant was shortly cross-examined. She said that she had not scratched her bottom during the night; that she did not call out in her sleep; that she did not have nightmares about someone squeezing her bottom; and that no-one else had ever scratched her bottom. She said that when the applicant came into her bedroom, he had put his hand on her bottom and put his tongue into her mouth. 48In her evidence Ms Trabuio explained what DNA testing of several areas of the complainant's underpants had revealed, having been provided with samples of the DNA of both the complainant and the applicant. She explained that it is expected that skin cells will be deposited on a garment by its wearer. The DNA testing had found DNA of only two people on the underpants, a male and a female, with a major and a minor contributor. The major profile matched the applicant and the minor profile the complainant. The female DNA found was most likely to have originated from skin cells transferred from the complainant during normal wearing of the underpants. 49Ms Trabuio also explained that an amylase test had found the presence of saliva. Amylase is an enzyme found in saliva. This test did not identify whose saliva was on the underpants, but Ms Trabuio explained that saliva is a very rich source of DNA. Her opinion was that given that the major contributor of the DNA found on the underpants was not the complainant's DNA, there was a strong probability that the DNA from the major male contributor came from a DNA rich source such as the saliva found on the underpants. There was no other DNA source such as semen or blood found there, nor were faeces found. 50Ms Trabuio was cross-examined about the nature of DNA testing. She agreed that different people shed cells at differing rates. She was examined as to the possibility of transfer of the applicant's cells to the underpants from the carpet, or a mattress, or a wet source of DNA such as spittle transferred from a forehead to clothing or buttocks, all of which she accepted were possible. In re-examination, however, she explained that for DNA transfer to result from friction, so that a major DNA profile was left on the underpants, would require substantial rubbing. A light touch would not leave detectable DNA, or only very little. 51The jury also had to consider the applicant's evidence, which was that he had entered the complainant's room only once while she was asleep, when he heard her yell out. He described what he had done, patting her and kissing her on the forehead, which was entirely inconsistent with the complainant's account. His account was tested in cross-examination, when he denied the complainant's version of what had occurred. He also denied telling her father the next day that 'I only kissed her on the cheek and patted her bottom', as was Mr SH's evidence of their discussion, after he confronted the applicant about the complainant's disclosure to her parents. The applicant denied assaulting the complainant; he denied causing the lacerations she had suffered; he could give no explanation as to how his saliva or DNA could have been found in her underpants. He said it was just a coincidence that his DNA was found there. He also denied having licked his finger, before putting it into her underpants, in order to lubricate the insertion of his finger into her anus. The Jury was entitled to conclude that penetration had occurred 52On appeal the applicant accepted that the jury was entitled to prefer the complainant's evidence over his account. The only issue was whether the jury was entitled to conclude on the evidence, that there had been any penetration of the applicant's anus, given her answer to the question of whether the applicant had put his finger into her bottom where the poo came out. That evidence had to be considered in light of the other evidence which the complainant gave, as well as the fact of the lacerations, the evidence Dr Tzioumi gave as to how they could have been caused and the DNA evidence. 53It was not the applicant's case that given their location, the lacerations which the complainant suffered were not located in her anus, nor that partial penetration of her anus was not sufficient to establish the sexual intercourse charge. His case was rather that the lacerations might have been caused by the other possible way in which Dr Tzioumi explained the skin folds surrounding the complainant's anus could have been moved apart, so that the rugae were stretched aside so forcefully, that the skin of the anus was lacerated. That being so, the applicant was entitled to the benefit of a reasonable doubt and acquittal of both sexual intercourse charges. 54It seems to me that on all of the evidence, the jury was entitled to come to the conclusion that there had been partial penetration, as was Dr Tzioumi's opinion. On medical examination the complainant's buttocks had to be moved apart, in order for the lacerations in her anal canal to be observed. No bruising was found on the buttocks. The major contributor of the DNA found on the inside of the underpants was that of the applicant. A likely source of that amount of DNA was his saliva. 55On the complainant's evidence, it is apparent that she could not see what the applicant was doing to her bottom on either occasion when he entered her bedroom and woke her from sleep. She described what she could feel him doing when he put his hands down her underpants. She described squashing, pushing down hard and putting his hand 'in and out' of her bottom. She described feeling pain. Her evidence was not, as was submitted for the applicant, that the applicant was only putting his hand in and out of her underpants. 56That the complainant did not distinguish that it was her anus, which hurt, rather than her buttocks, when asked to indicate on a drawing where she was hurt, does not establish that there was no penetration. Given the complainant's description of all of the applicant's acts, the lacerations in the rugae and the absence of bruising on the buttocks, that she did not isolate feeling pain in her anus, other than generally in her bottom, sheds no light on what penetration occurred. 57There was no evidence that the lacerations were caused by the applicant forcefully pulling her buttocks apart, the other way in which Dr Tzioumi explained that such lacerations could have been caused. As Dr Tzioumi explained it, that would have involved a pulling action. That this was what had occurred was not suggested to the complainant in cross-examination. Nor did the applicant give such an account. Nor does it seem consistent with the complainant's descriptions of the applicant's acts, nor her action, at one point, of demonstrating with an open hand what the applicant had done. 58The complainant was a 7 year old child. I consider that due allowance had to be made for her age and the difficulty of her being able to describe precisely what she felt the applicant doing with his hand in her underpants during the two incidents. Her evidence of experiencing pain is consistent with the infliction of the lacerations in the skin folds of her anus. Her description of the various things which the applicant did to her, which included a side to side movement and various pushing actions, including, as she put it, the applicant pushing his hand repeatedly 'in and out' of her bottom, included no account of him moving her buttocks forcefully apart. 59Her answer, when asked if he had pushed his finger into her bottom where the poo came out, was no. As Dr Tzioumi explained, however, her other descriptions were consistent with applicant using his hand with a pushing motion 'into her bottom', that is pushing between her buttocks, forcing the skin folds of the rugae so far apart that they lacerated near the exterior sphincter, but not pushing his finger into the anal canal as far as the interior sphincter, where poo coming out is felt, that being located higher up the anus. Dr Tzioumi's explanation was not challenged. It was not suggested to her in cross-examination that it was implausible, or an overly technical explanation of how faeces are passed, inconsistent with a child's understanding of the question she was asked, as was submitted on appeal. 60In my view, given the DNA and saliva found on the inside of the complainant's underpants; the two lacerations in the anal canal, consistent with the complainant's description of the applicant moving his hand 'in and out' of her bottom; her description of having been caused pain; having in mind the evidence as to how such an injury could be caused by a pushing action; and the absence of any evidence that the complainant's buttocks were forcefully pulled apart with a pulling action, that being the other way in which such an injury could be caused, the evidence left no reasonable doubt that at some point during the two incidents, there had been partial penetration of the complainant's anus. 61In the result it may not be concluded that the jury's verdict was unreasonable or unsupported on the evidence. Having made an independent assessment of the evidence, in my view there is no doubt as to the guilt of the accused in relation to the sexual assault charge of which he was convicted. In my opinion it was well open to the jury, as a matter of fact, to be satisfied beyond reasonable doubt of the guilt of the applicant on that charge. I do not consider that there is any danger that an innocent person has been convicted of that charge. Ground 2: The verdict involved a miscarriage of justice because it involved an inconsistent verdict with the acquittal on count 2 in the indictment 62The applicant was charged with two counts of sexual intercourse. He was acquitted of the first charge and convicted of the second. The applicant's case was that in the result the verdicts were inconsistent, given the complainant's description of both assaults in similar terms. There were no distinguishing features in the evidence as to the two assaults. In the absence of other evidence which could rationally explain the differing verdicts in relation to each assault, the inescapable conclusion from the first acquittal was that there had been some compromise reasoning by the jury. There was no other way to reconcile the two verdicts. 63In my view this ground of appeal was also not established. The test 64Reliance was placed on the observations in MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348: "5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty [R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983) at s15.212, requiring that the verdicts be "so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion": R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser (1845) 13 M and W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153.]. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law [R v Zundel (1987) 35 DLR (4d) 338 at 401-402 applying R v McShannock (1980) 55 CCC (2d) 53 at 55-56; cf Mack v Elvy (1916) 16 SR (NSW) 313]. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside [R v Drury (1971) 56 Cr App R 104 at 105]. It is impossible to state hard and fast rules. "It all depends upon the facts of the case"." 65In that case the Court was not satisfied that the verdicts returned by the jury were so inconsistent as to render the resulting convictions of the applicant unsafe or unsatisfactory, even though at first sight, the differentiation between the verdicts appeared a little difficult to understand, given an element of factual inconsistency. That conclusion rested on a consideration of the other general propositions which had been outlined, in addition to the fifth proposition quoted above, in the context of the particular facts of that case. 66The other propositions were that firstly, there is a distinction which must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency, which are more difficult to resolve; (factual inconsistency being the complaint advanced in this case). The second proposition related to persons tried separately in relation to connected events, which does not arise here. The third was: "3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone [Unreported, 13 December 1954 per Devlin J] is often cited as expressing the test [See eg R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence and Practice, 43rd ed (1995) vol 1 at para 4-para 457]: "He 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." 67The fourth was: "4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense [See Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172.]. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted [R v Wilkinson [1970] Crim LR 176]. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury [Hayes v The Queen (1973) 47 ALJR 603 at 604-605]. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt [R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40]. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries [R v Hunt [1968] 2 QB 433 at 436]. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation [Castles, An Australian Legal History (1982) at 56]. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman [(1987) 44 SASR 591 at 593], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed: "[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty." 68The sixth proposition is that the onus falls on the applicant to establish inconsistency. The directions 69In this case the jury was directed as to the elements of the various counts and the onus which fell on the Crown to establish each element. It was directed to consider each count separately and to consider the alternate counts, only if a unanimous decision that the sexual assault had not been proven was reached. An express warning against reaching compromise verdicts in respect of counts 2/3 and 4/5 was given. An explanation was given as to the evidence on which the Crown relied to establish the sexual assaults, including the results of the medical examinations and the evidence of Dr Tzioumi, which provided an explanation for why the complainant did not give evidence of penetration of her anus by the applicant's finger. The jury was instructed that: "You will only draw the conclusion the Crown asks you to draw, that the lacerations were caused by the accused putting his finger into the child's anus, if you are satisfied of that beyond reasonable doubt, and if you are satisfied that it is the only conclusion which can be drawn from the evidence beyond reasonable doubt. If you draw that conclusion it must be by a rational, logical thought process, not involving any speculation of conjecture. If you are of the view there is another reasonable explanation for the evidence of the lacerations than that the accused put his finger into [the complainant's] anus the Crown will not have proved those charges beyond reasonable doubt, and you must acquit the accused counts 2 and 4. The Crown submitted you will find there is no other reasonable explanation of the lacerations, when you consider Dr Tzioumi's evidence, than that they were caused by the accused penetrating [the complainant's] anus with his finger on each of the two occasions. Counsel for the accused submitted that you could reasonably find that Dr Tzioumi's evidence' and [the complainant's] evidence established that the accused only touched her bottom, but did not penetrate her anus with his finger." 70The jury was also instructed as to the DNA evidence: "The Crown asks you to conclude that the only reasonable explanation for the accused's DNA being on the inside of the back of [the complainant's] underpants is that he put saliva on his finger before putting it into [the complainant's] pants, and into her anus, and therefore you would be satisfied beyond reasonable doubt that that occurred. Mr O'Gorman-Hughes suggested the possibility of the accused's DNA being transferred because the accused touched the underpants [the complainant] put on at the beach. In order for you to find that that was a reasonable explanation for the accused's DNA being inside the back of [the complainant's] underpants you would have to have some evidence that the accused touched the underpants, and, as Madam Crown reminded you in her address, no witness gave any positive evidence that that occurred. Mr O'Gorman-Hughes raised other possible explanations for you to consider for the accused's DNA being in [the complainant's] underpants; that the accused's DNA was transferred from his walking on the carpet where the underpants were later found, from [the complainant's] playing on the accused's mattress in the back of his van when they stopped at the shops on the way home from the beach, or from [the complainant's] jumping on the accused, given that Ms Trabuio said DNA can be found from a small number of cells. Again you can only draw the conclusion the Crown asks you to draw if it can be drawn beyond reasonable doubt by a rational, logical thought process, and if it is the only conclusion to be drawn from the evidence, considered with all the other evidence, if, in your view, there is no other reasonable explanation of the evidence than that the accused's saliva was found on the back of the underpants, and got there in the way the Crown suggested. If you think that there is another reasonable explanation for the accused's saliva being on the inside of the back of [the complainant's] underpants than the one the Crown suggests then the Crown will not have satisfied you beyond reasonable doubt and you would find the accused not guilty of those charges." 71Directions were also given as to the applicant's evidence, including as to his good character and how that could be taken into account. There was no suggestion on appeal that any of these directions were inadequate. The evidence 72The jury had evidence before it of assaults during the course of two separate incidents. I have earlier outlined the complainant's evidence as to what occurred. The first occurred after the applicant had gone to the bathroom at about 10.40pm. The complainant could not say how long he was in her room, but her evidence was that the applicant's hands then felt wet. When he left she went back to sleep. Mrs BH heard the beads at the doorway to the bedroom being moved. She spoke to the applicant, but he explained that he had only swayed into the beads as he passed by. The second occurred during a period which was so long that the applicant's partner went to check on him. She then observed him coming out of the bedroom. Mrs BH spoke to him again and he gave her an account which left her concerned, so that she asked her husband to keep an eye on him and she went in and spoke to the complainant in her bedroom. The applicant's case is not established 73Again, the applicant relied on the complainant's denial of penetration and in relation to the theory of saliva being used as a lubricant, submitted that the only evidence of wetness possibly consistent with a lubricant, was in relation to the first incident, that being when the complainant said that she felt that the applicant's hands were wet. 74These submissions may not be accepted. As the Crown submitted, on the evidence the jury's verdicts are capable of rational explanation, consistent with the jury having followed the direction to consider the prosecution case in respect of each count separately. Consistently with that approach, the jury appears to have given the applicant the benefit of doubt in respect of count 2. 75That could have been the result of a reasoning process which considered that the nature of the lacerations; the complainant's evidence, when considered with Dr Tzioumi's evidence as to how as the lacerations could be caused; and the DNA evidence, provided a cogent basis for the conclusion that the Crown had proven beyond reasonable doubt that the applicant had penetrated the complainant's anus, but that it had not established two such acts of sexual intercourse. That, it seems to me, provides an obvious explanation of the differences between the verdicts on the two sexual intercourse counts. 76It was open to the jury to conclude that there had been penetration. Given the nature of the lacerations, the jury could also have concluded that they were inflicted on only one occasion and that it was more likely that this occurred during the second incident. 77On the evidence it was open to the jury to reason that having in mind the amount of applicant's DNA found in the underpants, together with saliva, the applicant had not used saliva during the first incident, when his hands were still wet, after going to the bathroom, but that this had occurred during the second incident, when the lacerations were inflicted and his DNA deposited in a considerable amount on the inside of the underpants. 78In those circumstances, it cannot be concluded that no reasonable jury which applied its mind to the evidence, could have been satisfied beyond reasonable doubt of the applicant's guilt on count 5, the second sexual intercourse charge, notwithstanding their unwillingness to convict him on the first, count 3. Indeed, on the evidence, that might have reflected a merciful outcome. 79In those circumstances, it must be concluded that the onus falling on the applicant in respect of this ground has not been met. Orders 80For the reasons given I would order: 1. Leave to appeal be granted. 2. The appeal be dismissed. ********** 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: 04 June 2012