Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: ML v R [2015] NSWCCA 27 Hearing dates: 16 February 2015 Decision date: 05 March 2015 Before: Hoeben CJ at CL at [1] Johnson J at [72] Davies J at [73] Decision: Leave granted to the appellant to rely upon Ground 2 of the appeal. Appeal dismissed. Catchwords: CRIMINAL LAW – conviction appeal – sexual intercourse and attempted sexual intercourse with child under 10 years – appellant convicted of attempt offence but acquitted of sexual intercourse offence – whether jury verdicts were factually inconsistent and unreasonable – whether "unreliable evidence" warning should have been given with respect to the evidence of the complainant – no factual inconsistency between verdicts – no need for warning under s165 of the Evidence Act 1999 – no miscarriage of justice. Legislation Cited: Criminal Appeal Act 1912 – r 4 Evidence Act 1999 Cases Cited: MFA v The Queen [2002] HCA 53; 213 CLR 606 R v DBG [2002] NSWCCA 328; 133 A Crim R 227 R v TK [2009] NSWCCA 151; 74 NSWLR 299 Category: Principal judgment Parties: ML – Appellant Regina – Respondent Crown Representation: Counsel: S Odgers SC - Appellant G O'Rourke – Respondent Crown Solicitors: SE O'Connor – Legal Aid NSW - Appellant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2011/185228 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29 November 2013 Before: Payne DCJ File Number(s): 2011/185228 Judgment 1. HOEBEN CJ at CL: Charges and outcome The appellant stood trial at Tamworth District Court on 30 October 2013 on an indictment containing three counts that between 1 and 13 May 2011 at Tamworth he: 1. Had sexual intercourse with a child under 10 years and under his authority, contrary to s66A(2) Crimes Act 1900; 2. Attempted sexual intercourse with a child under 10 years, contrary to s66B Crimes Act 1900; 3. [In the alternative to Count 2] Aggravated indecent assault of a child under 16 years, contrary to s61M(2) Crimes Act 1900. 1. On 6 November 2013 the appellant was found not guilty on count 1, but guilty on count 2 (thereby no verdict was required on the alternative count 3). 2. On 29 November 2013 the appellant was sentenced to imprisonment with a non-parole period of 4 years and 9 months, commencing 1 November 2013 and expiring 31 July 2018, with a balance of term of 2 years and 9 months, expiring 20 April 2021. 3. The appellant has appealed against his conviction as follows: Ground 1 – The verdicts of the jury are factually inconsistent and unreasonable. Ground 2 – The trial judge erred in failing to give a warning to the jury in respect of the evidence of LB (the complainant). FACTUAL BACKGROUND 1. It was the Crown case that the appellant sexually assaulted his girlfriend's 4 year old daughter when babysitting her alone on Mothers Day, 8 May 2011, by attempting to penetrate her vaginal/anal area with his penis and also putting his penis into her mouth. The appellant denied all wrongdoing. 2. The complainant (LB) was aged 4 years and 3 months on 8 May 2011 and there was no dispute that the appellant was looking after the complainant on that day. 3. Evidence of "complaint" was adduced relating to things the complainant said on 13 May 2011 and in addition, a video recorded interview conducted with the complainant on 18 May 2011, was admitted as part of her evidence in chief, pursuant to s306U Criminal Procedure Act 1986. 4. In the video recorded interview, the complainant gave the following evidence: "Q.46 … Now who do you live with at your house? A. I live with my mummy and I live with my friend ML. A.50 Last week, he put a nana up my bottom yesterday. Q.52 So where were you when he put a banana up your bottom? A.52 Last week, last week. Q.53 Last week? A.53 Yes. Q.54 Yeah? A.54 Yesterday. Q.78 Yeah. What don't you like about ML? A.78 He's silly. Q.79 Silly, yeah, why is he silly? A.79 Because he put a nana up my bottom already. Q.81 So when you say "banana" where did he get the banana from? A.81 Out of his pants. Q.95 Where were you when ML put a banana up your bottom? A.95 I was resting. Q.109 Yeah, where were you resting? A.109 In mummy's bed. Q.126 Now what were you wearing when ML put a banana up your bottom? A.126 I was wearing Dora. Q.127 Dora? A.127 Dora The Explorer [pyjamas]. Q.149 Sick yeah are you able to describe how were you feeling sick? A.149 When he put a nana up my bottom. Q.150 Yeah. A.150 Then I tried nana juice. Q.152 Tell me about banana juice. A.152 No juice was inside my mouth but it all down there [gesturing]. Q.153 Right. A.153 And last week I saw a black girl put a nana inside her mouth and it was disgusting. Q.156 How did the nana juice get into your mouth? A.156 I just I suck it. Q.159 Where did you suck the nana juice out of? A.159 Out of him [sic] body. Q.160 Out of his body? A.160 Yes. Q.163 Yeah and so you sucked it out of his body yeah and then what happened? A.163 I don't know. [The interviewer showed the complainant a picture of a boy and asked her to mark where she sucked the juice out of – the marked picture is exhibit A.] Q.180 Okay is there a name for that, what did you say call it private part? A.180 It's a private part where you suck the juice. Q.187 So is that the private parts where you sucked the banana juice from? A.187 Yes. Q.188 And did ML say anything about sucking banana juice from his privates, did he say anything to you? A.189 He said – Get up, he makes, he put chocolate on him [sic] nana juice. Q.190 He puts chocolate does he? A.190 Yes. Q.193 Right, what sort of chocolate did he put on his banana juice? A.193 Some lubricant [word disputed by defence] chocolate. Q.194 Lubricant chocolate? A.194 No, nut chocolate. Q.195 Where did he get the chocolate from? A.195 Out of the cupboard. [The interviewer showed the complainant a picture of a girl and asked her to mark where the banana went – Exhibit A is the marked picture.] Q.231 Yeah, so how many times did this happen? A.231 He just did only one. Q.232 Yeah. What did he do only once? A.232 He did another one with, with just, with chocolate. Q.233 Yeah. So did that once. What about the banana up the bottom, up your bottom? A.233 I'm getting tired, when you do all that talking. Q.234 How many times did ML put his banana up your bottom? A.234 That many. Q.235 Three? Q.235 Yeah. Q.251 Who have you told about what happened with ML? A.252 ML just put a nana up my bottom. Q.253 Who did you tell about that? A.253 ML said "I don't want to tell my mummy". Q.254 ML said that? A.254 Yes." 1. When the complainant gave evidence at the trial on 31 October 2013 she was aged 6 years and 9 months. Her memory was poor. 2. The following is a summary of the evidence which she gave at the trial. She had been sleeping on her mother's bed when the appellant woke her up and told her to get up. The appellant got the banana out of his pants. She sucked the banana juice out of his "biddie widdie", which is what he wees out of. He put hazelnut chocolate which he got out of the cupboard on the banana juice. She did not remember anything else. 3. She did not remember telling anyone about what the appellant did. She kept the secret for "a hundred years". She did not remember telling her mother. She did not tell her uncle. She said that she and her mother did not want the appellant to come back because "I think we don't want him to do that again what he did before". She did not remember the appellant showing anything to her on his phone. 4. In cross-examination the complainant did remember speaking with the lady and the police officer as shown on the DVD. (Earlier she had said that she did not remember.) 5. When she was 4, she could work the DVD player at home and she had lots of DVDs, but none of them had rude things on them. She was allowed to play on her mother's old phone but she did not remember watching any videos on it. When asked whether it was on her mother's old phone that she saw a video of a black haired girl sucking nana juice from a banana she said both "No" and "I don't remember". 6. The following cross-examination occurred at T.32.1-34.26: "Q. So you're saying went in your bottom three times, is that what you're saying? A. Yes three times. Q. See are you making this up about ML putting a banana in your bottom? A. No. Q. You don't remember it though? A. Yeah I just don't remember. Q. You do remember now? A. Yes and no. Q. What do you remember? A. I don't know, sometimes I don't remember. Q. Can you remember anything about it? A. No, I just remember he put the banana up my bottom three times. Q. You don't remember where you were? A. Yeah I don't remember where I was. … Q. Did you have any clothes on? A. I don't remember if I had clothes on or I didn't have clothes on. Q. And do you remember whether you were standing up or you were sitting down or you were lying down, do you remember that? A. No. Q. Can you describe this banana that you have referred to? A. I can't describe. Q. You can't describe? A. I just don't know how to describe. Q. Did you see it? A. I don't know if I saw it. Q. So you don't know whether you saw it at all? A. I don't remember if I saw the banana. Q. Why do you call it a banana if you maybe didn't see it? A. I think he was behind me. Q. Why do you call it a banana though? A. I don't know. Q. Well can you tell us what colour it was? A. No I don't remember colour. Q. Can you say how big it was? A. No I can't, I don't know how big it was either. Q. Do you remember if the banana touched your body? A. No, I don't remember it touched my body. Q. You said that you sucked some nana juice is that right? A. Yes. Q. You don't remember where you were when you did that is that right? A. Yeah I just don't remember where he did it. Q. No but where in the house you were? A. I don't remember where I did it in the house. Q. Do you actually remember sucking nana juice at all now? A. I just remember sucking it out of his biddie widdie. Q. What's a "biddie widdie"? A. Where he does the wee. Q. Was that different from a banana? A. Yes. Q. Tell us what the biddie widdie looked like? A. I don't remember what it looked like. Q. Can you tell us how big it was? A. No, I don't know how big it was either. Q. You said it had, he put hazelnut chocolate on it? A. Yes. Q. Whereabouts on it did he put the hazelnut chocolate? A. I don't know. … Q. … Do you think you might have just had a dream or imagined that ML put hazelnut chocolate on his biddie widdie and you sucked nana juice from it? A. I don't remember. Q. Do you remember what time of day? A. No. Q. Whether it was the morning or the night time or anything like that? A. I don't remember any of that. Q. You don't remember any of that? A. Yeah." 1. The complainant did not remember getting into trouble at the Milestones Early Learning Centre (Milestones). She remembered telling her teacher that the appellant had pushed her off her chair but she did not know if the appellant had ever done this. 2. The Acting Director of Milestones, Ms Watters, gave evidence. She said that in February 2011 the complainant was acting inappropriately and would often not comply with teachers' requests. She said that in April 2011 the complainant became very affectionate towards the teachers and would often try to kiss them on the lips or on the breasts. She had made three online reports to DOCS in April and May. 3. Ms Watters said that on 13 May 2011 the complainant's teacher brought the complainant to her because the complainant was swearing and telling her teachers not to touch her. She got the complainant to do some drawing and during that time the complainant said to her "ML put a banana up my bottom". She asked the complainant "Did you have clothes on?" to which the complainant replied "No and it really hurt". She asked "Did you tell your mum?" and the complainant replied "No and ML's naughty". This was the first time any explicit complaint was made. 4. Under cross-examination she said that the first record of strange behaviour by the complainant was on 17 February 2010 when the complainant was noted as yelling out "fuck" over 20 times, hitting teachers and kicking and spitting. The next record was 9 November 2010 for kicking, hitting, screaming and swearing and thereafter the complainant's behaviour had progressively deteriorated. 5. The complainant's mother gave evidence that she knew the appellant from high school when she had a relationship with him. She renewed that relationship for about a month in April/May 2010 during which time the appellant lived with her and her daughter. During that time, she was working at Subway but the appellant was not working. 6. The following is a summary of the evidence which the complainant's mother gave at trial. There was only one occasion when she left the complainant in the care of the appellant. This was on Mothers Day, 8 May 2011. The complainant and the appellant had made chocolate cupcakes with icing which were for dessert. 7. On the morning of 13 May 2011 after a "poker night" she was still "pretty much asleep" and in bed when the complainant came into the bedroom and used the words "ML" and "banana". When she did so the appellant quickly cut off the complainant and told her to shut up. 8. That afternoon, when she picked the complainant up from day care, she asked the complainant what she had meant by "ML" and "banana" to which the complainant replied that ML had put a banana up her bottom (T.59.35). When they got home and they were alone she asked the complainant again and the complainant said "ML put a banana up my bottom and banana juice in my mouth". The complainant said that the appellant got the banana from "in his pants". She rang her friend, Amanda Gill, and asked her to come over and the complainant told Ms Gill the same thing as she had told her. 9. Later that day, a conversation took place between her and the appellant when the complainant was present. "A. I - Amanda and Scott were still outside and I said to ML, "We have to talk" and he responded, "Okay" and I said to him, "You will probably be offended" and he said - I think he said, "What about" and I said, "[the complainant] said you put a banana up her bottom I think" and I was pretty upset at that stage, I - he said he didn't, [the complainant] then - I am pretty sure - like because [the complainant] was there, she could hear it, she said, "He did." He leant down in her direction and said he didn't, then he said to - looked me straight in the eye and said he didn't do anything. My response was, "What am I supposed to do?" Q. When he bent down and looked at [the complainant] and said he didn't, did she say anything back to him? A. Not - pretty sure she replied again that he did, but then it was left at that, I think. She was pretty adamant that something had happened." (T.50.35) 1. The appellant then left the house. She said that at the time she did not have any bananas in the house because it was just after the Queensland storms and bananas were too expensive. She did have chocolate icing, but not chocolate itself. She had Nutella hazelnut chocolate spread, but nothing that could be described as "lubricant chocolate". 2. The next day (14 May), she asked the complainant again what had happened and the complainant replied that she had seen a dark-haired girl do it. When asked on what, the complainant said "on ML's phone". The complainant's mother remembered that while the appellant was staying with her, he had used her old phone. When she checked the phone, after some difficulty, she found two video files which appeared to have been sent from a pornographic site. One of them contained a black-haired girl engaging in fellatio. The phone was later handed to the police. 3. When cross-examined, the complainant's mother said that during 2010 until February 2011 the complainant was attending Milestones twice a week. Thereafter, the complainant attended three times a week. The complainant was reported as swearing, being angry and refusing to comply with requests. She said that when she found the pornographic video on her old phone, she asked the complainant "Did ML wake you up?" and "Did he show you this and ask you if you would do it?" to which the complainant nodded her head but did not say anything. 4. In re-examination she said in May 2011 the complainant did not have a good appreciation of days and dates. 5. Amanda Gill gave evidence that when she went to the complainant's house on 13 May 2011, the complainant's mother asked her to repeat what she had told her. The complainant said that ML had stuck his banana in her bum. When Ms Gill asked when, the complainant replied "last night". Ms Gill said that on the same day, the complainant's uncle spoke to the complainant and when he asked her what she meant by "banana", she pointed at his crotch. 6. The complainant's uncle gave evidence that on 13 May 2011 when he had gone to the complainant's home, he heard a conversation between his sister and the appellant in which he heard the appellant say "No I didn't" and the complainant say "Yes you did". He heard the appellant again say "No I didn't" to which the complainant said "Yes you did". He then saw the appellant leave with a bag of belongings. 7. The uncle said that the complainant's mother asked her to tell him what had happened to which the complainant said "ML stuck a banana in my butt and my mouth" and that he got the banana from "his pants". He said that later she told him that the appellant "tried to stick a banana in my butt and stuck it in my mouth" and that he got the banana from his "pants". There was no mention to him of chocolate being involved. 8. The JIRT caseworker, who interviewed the complainant on 18 May 2011, gave evidence that when she asked the complainant to identify on the drawing of a boy where the banana had come from, the complainant pointed to the genital area on the front of the boy. In cross-examination, she said that before the interview there had been no mention of chocolate being involved in the allegations. If there had been, she would not have used the example of a chocolate cake at the beginning of the interview. 9. Dr Andrew Gardiner examined the complainant on 19 May 2011 at the Tamworth Rural Referral Hospital. He reported that the complainant "… appeared quite hyperactive. She was extraverted in the extreme with apparently none of the usual reticence that a four year old would be expected to exhibit towards a stranger … She was chatty, loquacious, buoyant in her mood, laughing and giggling. Further she was indiscriminately and inappropriately affectionate … The indiscriminately affectionate behaviour … is seen in children with reactive attachment disorder and suggests a degree of preceding emotional deprivation. It also renders them more susceptible to exploitation by adults." 1. He said that: "Inspection of her ano-genital region was normal … The hymen was thick and folded and the transverse hymenal diameter was 2 millimetres, these are normal findings. Inspection of the anus and perianal region subsequently in the left lateral position revealed normal appearances with normal anal tone and reflex … The normal ano-genital findings neither support nor disprove the suggestion that anal penetration might have occurred." 1. The "Dora the Explorer" pyjama top, which the complainant said that she was wearing, was given to the police on 24 May 2011. It was subjected to DNA testing but no semen or any male DNA profile was located. 2. The appellant gave evidence and was cross-examined. The following is a summary of his evidence. There was only one day when the complainant was left in his care, which was Mothers Day on 8 May 2011. After the complainant's mother had gone to work, he made the complainant breakfast which was Nutella on toast. Some time later they decided to make cupcakes. They went to the nearby supermarket for icing and chocolate chips. The complainant was wearing her "Dora the Explorer" pyjamas and a dressing gown. Back home they made the cupcakes and cooked them, then the complainant put icing on and the appellant put little icing messages on them. The complainant ate the left over mixture. 3. He did remember an occasion on the morning of Friday, 13 May 2011 when the complainant came into their bedroom and started talking. He could not remember what she was talking about but he told her to shut up. It was on the evening of that day that the complainant's mother told him that the complainant had made allegations that he put a banana up her bottom, which he denied. He said that the complainant turned around and said "Yes he did". He replied to her "No I didn't". When he asked the complainant's mother whether she believed him, she said that she did not know what to believe. He decided that he was not going to stay where he was not trusted and left. 4. He agreed that while he was staying with the complainant's mother, he had used her old phone and that once or twice he had watched a porn video on it, including one that showed a dark-haired woman having sex with a man including fellatio. He denied ever showing the complainant that video. He denied ever placing his penis near the complainant's bottom or mouth or putting chocolate or Nutella on his penis and presenting it to the complainant. 5. The trial commenced on 30 October 2013. No evidence was called until 31 October 2013. The evidence concluded on 4 November 2013 and the jury retired at 9.21am on 6 November 2013 to consider its verdict. The jury returned at 2.24pm with a not guilty verdict on count 1 and a guilty verdict on count 2. 6. In the course of the summing up, the following exchange took place between counsel and her Honour: "HIS HONOUR: ... Now, what are the other directions you want, Mr Carty? Or, anything so far, Mr Crown? CROWN PROSECUTOR: No, your Honour. HER HONOUR: No, thank you. CARTY: Well, obviously the Murray direction and the Markuleski direction. I think you've already given that. The main thing that I wanted to ask for, your Honour, was a warning under section 165 of the Evidence Act in relation to [the complainant]. I know it can't be based only on her age. HER HONOUR: No because we've got the section that says - the very section, what is the section? CARTY: 165B. HER HONOUR: Yes. All right, well, why do you say? Because-- CARTY: There's a number of factors. There's the evidence that she had symptoms of reactive attachment disorder, that she was extraverted in the extreme, indiscriminate and inappropriate affection, which suggested preceding emotional deprivation. And there's the evidence of her behavioural problems at the Milestones Early Learning Centre. HER HONOUR: Yes. CARTY: There's the fact that she didn't recognise herself when shown the interview in June 2012. There's her evidence in court where she couldn't remember any detail about the allegations, including where she was, what her body position was, if she saw the banana, how big was the banana, what colour was the banana. She said she couldn't remember if the banana touched her body. HER HONOUR: Mr Crown? CROWN PROSECUTOR: In my submission they're all simply matters that the jury will take into account when they're assessing the credibility of the witness. They're not matters that require your Honour to give a warning under 165B." 1. By judgment, dated 5 November 2013, her Honour rejected the application for a s165 warning. Her reasons were as follows: "HER HONOUR: In respect of this matter, Mr Carty has made application that I give an unreliable evidence direction in respect of the complainant. He says so not on age alone but that together with other features. The Crown says those features he has identified are matters that the jury would take into account in assessing the credibility of the complainant and says the direction is not required. In my view, there are good reasons why the direction need not be given. Some of those matters Mr Carty has just stated really relate to the age of the complainant and in the original interview and in terms of her recent complaint she was quite clear. The other difficulty is that not only did the doctor say she may well have suffered from that condition, he also clearly said it made her more open to exploitation. In any event, in all of the circumstances, those matters are ones in my view where the jury will completely understand them; they will apply them in assessing her credibility and determining whether to believe her and the Murray direction will suffice in the circumstances of this case. Accordingly, the request for that direction is denied." 1. In the course of her summing up her Honour gave warnings in the following form: "Now ladies and gentlemen of the jury, you must consider each of the offences separately, and only in relation to the evidence concerning that offence. It may be that the verdict you bring in in respect of one offence is different to the verdict you give in respect of another offence. There is no difficulty with that, if there is a logical reason for it. It is the position though, ladies and gentlemen of the jury, that if you had a concern about the credibility of the complainant, and that led to you returning a verdict of not guilty in respect of one count, then it would be essential that you give consideration and weight to that when considering another count in the indictment." (SU 8.1) "Now, just going back to the essential elements of the offences, I got up to count 2 and I said I would be giving you a direction concerning attempt, but before I do I just remind you again that you should give separate consideration to the individual counts. That means that you are entitled to bring in a verdict of guilty on some counts and not guilty on other counts, if there is a logical reason for that outcome. If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts." (SU 21.3) "For example, it would be quite wrong for you to find the accused guilty of the alternative count simply because some of you found that the accused was guilty of the principal count but others were not so satisfied and would enter a verdict of not guilty of that charge. It would be unfair and contrary to your oaths to decide to break the deadlock by convicting the accused on the alternative count." (SU 25.1) "I remind you of separate consideration and remind you that the crucial matter for you to understand is that any doubt you may form with respect to one aspect of the complainant's evidence ought be considered by you when assessing the overall credibility of the complainant and therefore when deciding whether or not you have a reasonable doubt about the complainant's evidence with respect to another count. The complainant's evidence includes reliability, credibility and truthfulness in any regard." (SU 27.5) "Again, it is for you to decide whether this complaint was made but if you are satisfied that it was then the question you should ask yourself is did the complainant act in the way you would expect her to act if she had been assaulted as she says she was? Is what she did the sort of conduct you would expect of a person who has been assaulted in that way? If you think that the complainant has done what you would expect someone in her position to do that may support the Crown case because you may find that there is a consistency between the complainant's conduct and the allegation she makes against the accused. On the other hand, if the complainant has not acted in a way you would have expected someone to act after being assaulted as she described, then that would indicate that the allegation is false. … Of course, the fact that a person says something on more than one occasion does not mean that what he said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion and I have told you that that is what has taken place in this case." (SU 31.9) "Now, of course, ladies and gentlemen of the jury, the defence say in considering what I have told you that you would not consider that the evidence of complaint or the complaint here is not one which would assist you because of these considerations: Firstly, when the complainant said to Miss Gill "last night" that is not consistent with the other evidence; that, as I have reminded you, [Miss Gill] specifically asked her "When did this happen?" and [the complainant] said, "Last night"; that at the time of any of these conversations she did not show any distress. She told [Miss Watters] that she did not have any clothes on but in her interview she said she had on the Dora pyjamas. And prior to the first complaint to [Miss Watters] she had made a different complaint about ML pushing her off a chair and that he had told her to lie to her mother about it. But what she said concerning that is different and the defence says contradicted by what [her mother] said about that and that is that she was there when her daughter accidentally fell off the chair." (SU 33.4) "Now, ladies and gentlemen of the jury, in this case the Crown relies upon the evidence of the complainant … . Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, it is important that the jury are told that they should exercise caution. That is what I am going to tell you now. You must exercise caution before you convict the accused because the Crown case largely depends on you accepting the reliability of the evidence of a single witness. This being so, unless you were satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account she has given, you cannot find the accused guilty. Before you can convict the accused on any offence in the indictment you should examine the evidence of the essential Crown witness, the complainant, very carefully in order to satisfy yourselves that you can safely act upon that evidence and to the high standard required in a criminal trial. That caution is not based upon any personal view that I have of the essential Crown witness, the complainant. I told you at the outset of this summing up that I would not express my personal opinions on the evidence. But in any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, a jury must also always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown. I am not suggesting to you that you are not entitled to find the accused guilty upon the evidence of the essential Crown witness, the complainant. Clearly, you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt." (SU 34.6) 1. Apart from providing the warnings and guidance referred to, the trial judge accurately and comprehensively summarised the defence case. Relevant to the issues raised in the appeal were the following parts of that summary: "Now, the key points for the defence, the defence submits that you would have significant doubts about the reliability, accuracy and truthfulness of the complainant. The complainant was at a tender age of 4 years and 3 months and she had been exhibiting behaviour problems for some time prior to the accused moving in in April 2011. And in particular, she had been showing overly affectionate behaviour towards teachers and other students. When the complainant complained on 13 May 2011 she did not show signs of distress or fear. Her complaint to Miss Watters that she had no clothes on is inconsistent with what she said in her recorded interview. Her complaint to Amanda Gill, in the presence of her mother, that it happened "last night" is contradicted by the other evidence that shows that the accused had no opportunity to do anything on the night of 12 May 2011. The fact that the complainant made a false complaint to Miss Watters that ML had pushed her off a chair and told her to lie to her mum about it shows that she was prepared to tell lies about the accused. It is significant that that lie was told shortly before the complainant told Miss Watters "ML put a banana up my bottom." In the recorded interview made on 18 May 2011 the complainant did not give any details about the allegations. She had said it happened at night time. The complainant was not able to be fully tested in cross-examination in this court. She could not remember where the alleged offences occurred in the house, her body position, if she saw the banana, how long was the banana, what colour was the banana, whether the banana touched her body. …" (SU 45.2) 1. Defence counsel in his address to the jury said: "Not only that, but she said that he told her to lie to her mother and tell her mum that she fell off and you'd consider that at least a reasonable possibility because of the lack of detail in the initial complaint and her complete inability to fill in any of the gaps at a later stage. I mean, it's not the accused's fault that she wasn't brought back in early, you know, maybe a month later after the first interview to seek to clarify what she'd said. They were just content to leave it at that, and then of course by the time we get to court she has no memory at all and is unable really to be effectively tested about her account." (T.5.11.13 p18.49 – 19.6) That proposition was not challenged by the Crown at any time during the trial. THE APPEAL Ground 1 – The verdicts of the jury are factually inconsistent and are not reasonable. 1. The appellant submitted that by reference to logic and reasonableness as an exercise in fact finding the two verdicts cannot stand together. This was because of the following considerations. 1. Both counts relied entirely upon the account of the complainant. On the prosecution case, both counts related to events that occurred on the same occasion and were part of the same course of conduct. 2. In the complainant's testimony at trial, there was no significant difference in her allegations with respect to the two counts. She testified that she "sucked it [the banana juice] out of his biddie widdie" (T.16.4) and "He put the banana up my bottom three times" (T.32.18). 3. There was no significant difference in the initial complaint. While there was no reference to the fellatio in what was said to Miss Watters on 13 May 2011, the Acting Director decided not to elicit a full account from the complainant but decided to refer the matter to DOCS. On that same day, the complainant told her mother "ML put a banana up my bottom and banana juice in my mouth". That same day she told her uncle that the appellant "stuck it in my mouth and tried to stick it in my butt … he tried to stick a banana in my butt and stuck it in my mouth". 1. The appellant submitted that if the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that the fellatio occurred, it was difficult to see how they could have been satisfied that the attempted penile penetration occurred. He submitted that there was no evidence in the trial which raised a doubt in respect of the fellatio allegation while not necessarily raising a similar doubt in respect of the attempt count. While accepting that a Markuleski warning had been given, the appellant submitted that it was difficult to understand how evidence which led to doubts about the alleged fellatio would not have also led to doubts about the attempted penile penetration. Consideration 1. The principles applicable when considering "apparent" inconsistent jury verdicts were comprehensively analysed in MFA v The Queen [2002] HCA 53; 213 CLR 606. Those principles have not been qualified in later cases. The plurality (Gleeson CJ, Hayne and Callinan JJ) recognised the advantage of a jury over an appellate court in relation to certain evidence: "23 The case was one in which the jury's assessment of the three principal witnesses, the complainant, MA, and the appellant was vital. The alleged offences arose out of sexual activities between the appellant and boys of a much younger age. The activities were not brought to notice as a result of any complaint by the boys. When first approached by the police, they denied the activities. In court, they sought to explain this by fear and shame. Furthermore, in evaluating the effect of the evidence of MA, the jury were entitled to take account of his age at the time of the alleged events, and the possibility of some confusion on his part. None of this relieved the Court of Criminal Appeal of its responsibility in scrutinising the evidence, and making its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court would properly have been conscious of the fact that there were aspects of the case that would not be reflected adequately in the written record." 1. The plurality also stressed the importance to be accorded to a jury verdict: "34 Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. …" 1. More recently, observations to similar effect were made by Simpson J (with whom McClellan CJ at CL and Latham J agreed) in R v TK [2009] NSWCCA 151; 74 NSWLR 299 at [135]: "135 … But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open "upon the whole of the evidence". It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury's thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant's veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris). 136 In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations …" 1. On the facts of this case, there are at least two reasonable bases for the jury distinguishing between counts 1 and 2 without necessarily forming an adverse view to the complainant's reliability or veracity. The lack of precision in her evidence and what she said in May 2011 is explained by her age at the time. The jury might also have had some doubts as to the accuracy of the evidence of family members such as her mother and her uncle, neither of whom reported the matter to the police and in circumstances where her mother had been in a relationship with the appellant. It was open to the jury to give more weight to the evidence of the non-family members, i.e. Miss Watters and Ms Gill, both of whom gave evidence that the complainant had only complained of the appellant putting "a banana in my bottom". Alternatively, it was open to the jury to give greater weight to the initial complaints, than to those made later. The first explicit complaint was made to Miss Watters and it was restricted to "a banana in my bottom". The initial complaint to her mother was also limited to putting a banana up her bottom. The first time that she told anyone about there being any "juice in my mouth" was when she spoke to her mother again later that evening when they were both alone at home. 2. Another point of distinction on which the jury may have relied was the evidence relating to the confrontation between the complainant and the appellant. There was evidence from the mother and from the uncle that when she confronted the appellant with the complainant's allegation that he had put a banana up her bottom and he denied it, the complainant intervened and said "He did". The complainant maintained her allegation even when the appellant stared intently at her. It was well open to the jury to regard this as significant evidence of the appellant confronting his accuser and the complainant not being intimidated but staunchly maintaining her position. 3. Another potential point of distinction is the confusion relating to the evidence of fellatio when compared to that relating to the banana in the bottom. There had been the early unfortunate mention of chocolate in the recorded interview of 18 May. The evidence concerning the banana juice and its relationship to chocolate in the recorded statement of 18 May 2011 was simply not clear. Most importantly, however, there was the evidence from the complainant and on the pornographic video of the girl with dark hair engaging in fellatio which the complainant had seen. Given the strong case put forward by the defence as to the impressionability of the complainant, and a tendency on her part to confabulate, the jury may well have thought that there was a reasonable hypothesis that the complainant's evidence as to fellatio related to what she had seen on the video and not what had happened. 4. It follows that it was open to the jury to distinguish the two counts on any of the above bases without disbelieving the complainant thereby giving rise to an inconsistency and an unreasonable verdict. This ground of appeal has not been made out. Ground 2 – The trial judge erred in failing to give a warning to the jury in respect of the evidence of LB (the complainant). 1. In order to understand the submissions on this ground, it is necessary to set out the relevant sections of the Evidence Act 1999. "165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) applies, … (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with subsection 165A(2) and (3)." "165A(1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following: (a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses, (b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults, (c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child, (d) in the case of a criminal proceeding - give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. (2) Subsection (1) does not prevent the judge, at the request of a party, from: (a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and (b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it, if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information. (3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury." 1. The appellant submitted that warnings should have been given pursuant to s165 because of the forensic disadvantage caused to him by the complainant's inability to remember at trial what she had said in her statement of 18 May 2011. The forensic disadvantage was that the appellant was not able to cross-examine the complainant effectively as to what she had said in the statement. 2. The appellant submitted that by analogy the situation was the same as that identified by Howie J in R v DBG [2002] NSWCCA 328; 133 A Crim R 227. At [37] – [38] Howie J (with whom Meagher JA and Simpson J agreed) described how delay in complaint could forensically disadvantage an accused and for this reason, it was necessary for a warning to be given so as to ensure that a fair trial took place. While accepting that no delay had occurred here, the appellant submitted that the same issue arose, i.e., he was unable to properly cross-examine the complainant because of her lack of memory which was almost the same situation which would arise if significant delay in complaint had occurred. 3. When asked by the Court to formulate the warning which should have been given by the trial judge, the appellant responded as follows: "… Evidence has been given by the complainant in the trial in which it is clear that she has been unable to provide details of the offences, and indeed asserts that she has no substantial memory of those events and no memory whatsoever of what she told the police in the interview with them in May 2011. I must warn you that in those circumstances where she asserts that she has no memory or no substantial memory, that her evidence may be unreliable in the sense that it will be difficult, if not impossible, for the defence to test that evidence, either to test the details of the allegations that were made to the police in May 2011, or to elicit further detail which might be sought to undermine the reliability or to undermine the evidence of the complainant. It is something that is well accepted within our courts that one of the purposes of cross-examination, and one of the reasons why the defence is permitted to cross-examine witnesses is to allow the defence to test evidence adduced by the prosecution for the purposes of seeking to demonstrate weaknesses in that evidence, or to elicit further material to raise, as I say, a doubt with respect to those allegations. The defence is substantially unable to do that in this case for the reason that the complainant, perhaps not unreasonably given her age, says that she has no real memory of what happened two and a half years ago. This is no criticism of the complainant, it is merely a warning I give you that it puts the defence in a very difficult position, and I warn you of the need for caution in determining whether in the light of those forensic difficulties confronted by the defence whether or not you do ultimately accept the evidence of the complainant, and I warn you that you should bear in mind when you are assessing the weight you give to the complainant's evidence those difficulties confronted by defence counsel." (AT 4.36 – 5.13) 1. The appellant submitted that her Honour had erred in rejecting the defence's application for a warning under s165. He submitted that the fact that the complainant's lack of memory at trial may have resulted from her age was not a good reason for declining to give the warning. This was because the warning did not relate solely to the complainant's age. He submitted that the warning was not being sought because of the complainant's age but because of the forensic disadvantage caused to him by the complainant's inability to remember what had occurred in May 2011. 2. The appellant submitted that a warning was necessary because the jury would not have understood the significance of the forensic disadvantage to which he was exposed because of the complainant's lack of memory. He submitted that this was a subtle disadvantage which required a specific warning from the trial judge. On that issue, he relied upon what was said by Howie J in R v DBG at [37] and [38]. He submitted that where such a forensic difficulty arose, it was necessary for the trial judge to bring home to the jury the consequences which that forensic difficulty gave rise to, i.e. the inability to test a fundamental part of the Crown's case. 3. The appellant submitted that it was not sufficient for the trial judge to summarise the defence submissions and to specifically refer to that forensic disadvantage in that summary. He submitted that what was required was for the judge to give a specific warning along the lines which he suggested which carried with it the specific endorsement of the Court. The appellant submitted that what was needed was a warning to the effect that the evidence might be unreliable and that there was a need for caution in determining whether or not to accept it and the weight to be given to it. Consideration 1. As was raised in oral submissions before the Court, a proper reading of the application made at trial and how her Honour dealt with it in her judgment, makes it clear that the application was made pursuant to s165A(2). What counsel at trial was seeking was a warning which related specifically to the complainant and the various personality and psychological problems which she had which might render her evidence unreliable, i.e. the matters referred to by Dr Gardiner, i.e. that she was indiscriminately and inappropriately affectionate and may well have had a reactive attachment disorder based on some degree of preceding emotional deprivation. 2. If that were the application made at trial, it was appropriately dealt with by her Honour. As her Honour pointed out, a crucial issue in the trial was the reliability of the complainant. Her unreliability and tendency to tell untrue stories was the basis of the defence case. There was no useful purpose to be served by her Honour providing a warning beyond those which she had already given in circumstances where the warning would simply restate a primary issue to be decided in the trial. The other difficulty as her Honour recognised was that the complainant's age was inextricably linked to the arguments directed at her reliability. The psychological issue which the defence sought to include as part of the warning was two edged. It also meant that the complainant would be more liable to exploitation of the kind which occurred which might also explain her lack of distress when relating to various persons what she said the appellant had done to her. 3. To the extent that this ground of appeal is based on the actual application made at trial, it should be dismissed. 4. From the oral submissions in the appeal, and most particularly from the formulation of the warning which the appellant says should have been given, the issue raised in Ground 2 is different to that raised at trial. Although defence counsel at trial was aware of, and submitted that the complainant's lack of memory gave rise to a forensic disadvantage for the defence, that was not the basis of his application for a warning. 5. If that is the case, Ground 2 raises an issue which was not raised at trial and leave is required under r 4 of the Criminal Appeal Act 1912. Because the matter was fully argued and it was asserted to give rise to a miscarriage of justice, I would grant leave. 6. While there is an initial plausibility to the analogy which the appellant seeks to draw between the need to provide a warning in the case of delay, such as arose in DBG and the circumstances of this case, there are important differences. 7. The forensic disadvantage for the appellant in not being able to cross-examine the complainant in relation to her statement was inextricably linked to the complainant's age. That issue arises in most cases where sexual offending occurs to a very young child. In this case, there was nothing subtle about the forensic disadvantage. It was obvious to the jury for a number of reasons. Defence counsel had specifically referred to it. Her Honour had set it out more precisely in her summing up. The responses by the complainant in cross-examination further highlighted the issue. 8. Importantly, and unlike the situation which arises in the case of delay, the defence had available to it evidence of contemporaneous complaints and a lengthy statement made within 10 days of the offending. There were differences and inconsistencies in that evidence which provided the defence with fertile ground for comment and challenges to the complainant's reliability. Apart from the appellant's denials in evidence, it was this which formed the core of the appellant's defence. The jury were well aware of the issue of the complainant's reliability since it was stressed, not only by the defence and her Honour, but by the Crown. 9. The appellant's submissions and the analogy sought to be drawn with the situation which arises where delay has occurred, significantly exaggerate the extent of the forensic disadvantage. With delay, such as occurred in DBG, an accused is prevented by the effluxion of time from making any meaningful challenge to the complainant's evidence. He or she may not remember where they were, what they were doing and any other surrounding circumstances. That was not the case here. The appellant was fully aware of all the circumstances and able to meet them by his direct evidence and by his ability to cross-examine other witnesses besides the complainant. One also needs to keep in mind that cross-examination of a 4 year old complainant (such as is postulated here) even close in time to when complaints or statements were made may well be unproductive, or even counter-productive, as a result of the complainant's age and the nature of the offending. 10. It follows that a fair trial took place and that there was no miscarriage of justice. The jury were clearly aware of the fundamental issues, particularly the reliability of the complainant since that had been stressed by the parties and by her Honour's forceful Murray direction. To the extent that the appellant suffered a forensic disadvantage by not being able to cross-examine the complainant on her statement, that disadvantage was modest given the availability of contemporaneous material relating to the complaint. It is a trite observation that a fair trial does not mean a perfect trial. 11. I have concluded that, in the circumstances of this case, no further warning was required by her Honour to ensure a fair trial and that no miscarriage of justice took place. This ground of appeal has not been made out. 12. The orders which I propose are: 1. Leave is granted to the appellant to rely upon Ground 2 of the appeal. 2. The appeal is dismissed. 1. JOHNSON J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his Honour. 2. DAVIES J: I agree with Hoeben CJ at CL. ********** Amendments 06 March 2015 - Further anonymisation in par [8]. 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: 06 March 2015