Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tikomaimaleya v R [2017] NSWCCA 214 Hearing dates: 3 July 2017 Decision date: 01 September 2017 Before: Simpson JA at [1]; Harrison J at [101]; Davies J at [104] Decision: (1) Leave granted to rely on Ground 3 of the Notice of Appeal. (2) Appeal against conviction dismissed. Catchwords: EVIDENCE – witness evidence – children's evidence – whether trial judge erred in allowing the complainant to give sworn evidence EVIDENCE – witness evidence – children's evidence – where examination-in-chief given by a complainant in a recorded interview with police – whether witness required to be competent at the time of the interview CRIME – appeal – whether verdict unreasonable or unsupported by evidence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A Crimes Act 1900 (NSW), s 66A Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 1 Criminal Appeal Act 1912 (NSW), ss 5, 7 Criminal Procedure Act 1986 (NSW), ss 306U, 306V, Ch 6 Pt 6 Evidence Act 1995 (NSW), ss 12, 13, 21, 59, 61, Ch 3, Pt 3.2 Cases Cited: Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MK v R [2014] NSWCCA 274 SKA v R; R v SKA [2009] NSWCCA 186 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 Category: Principal judgment Parties: Talemo Tikomaimaleya (Appellant) Regina (Respondent) Representation: Counsel: W C Terracini SC (Appellant) N J Adams (Respondent) Solicitors: Archbold Legal (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2013/386241 Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A) Decision under appeal Court or tribunal: District Court Date of Decision: 18 June 2015 Before: King DCJ File Number(s): 2013/386241 HEADNOTE [This headnote is not to be read as part of the judgment] On 27 February 2015 the appellant was convicted of one count of sexual intercourse with a child under the age of 10 years. He was later sentenced to imprisonment for 9 years, with a non-parole period of 6 years. The appellant was the husband of a child care centre operator, who operated the service from their home. The complainant was between 4 and 5 years old at the time of the offence, and attended the child care centre twice a week. The complainant complained to her father, and later her mother, that one day when she had been asleep on a lounge watching television, the appellant sat next to her and inserted his finger into her vagina. Her parents notified police, and the complainant was interviewed. The interview was video recorded. The complainant gave evidence at the trial; she was then approximately 6½ years of age. Her competence under s 13 of the Evidence Act 1995 (NSW) was raised but not resolved before the jury was empanelled. When called to give evidence, the transcript records that the complainant was "affirmed" by the court officer. The Crown prosecutor then asked her a number of questions relevant to her capacity to give evidence. The video recording of her interview was then played to the jury. Pursuant to s 306V(1) of the Criminal Procedure Act 1986 (NSW), this constituted the complainant's evidence-in-chief. Following this, and in the absence of the jury, a discussion took place regarding the complainant's competency to give sworn evidence (no issue was raised as to her competency to give unsworn evidence). The trial judge then asked the complainant a number of questions to elicit whether she was competent to give sworn evidence. Those questions included whether she understood that she had made an agreement to tell the truth when she had previously been affirmed by the court officer, to which the complainant replied "yep." The trial judge determined that the complainant was competent to give sworn evidence, and provided his reasons. On appeal, the appellant submitted that the trial judge was in error in determining that the complainant was competent to give sworn evidence. However, no specific error in the trial judge's reasons was identified. The effect of any such error was said to be that the trial had not been conducted according to law. The appellant also submitted that s 61(1) of the Evidence Act required that it be established that the complainant was competent to give evidence at the time of the video recorded interview, otherwise s 59 of the Evidence Act prohibited the admission of the recording. Finally, the appellant submitted that the verdict was otherwise unreasonable and unsupported by the evidence. In determining this ground of appeal, the Court undertook an independent assessment of all of the evidence at trial, including the evidence given by the parents of the complainant, a police officer involved in the investigation, the wife of the appellant and a friend of the appellant. Held Simpson JA at [1] (Harrison J at [101] and Davies J at [104] agreeing) allowing leave to appeal on Ground 3, but dismissing the appeal (1) The trial judge was not in error in determining that the complainant was competent to give sworn evidence. Evidence Act 1995 (NSW), ss 12 and 13 considered; The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 considered. (2) In any event, if the trial judge had been in error, he would not have been required to give the jury directions regarding the effect of giving unsworn evidence, and, accordingly, no miscarriage of justice could be demonstrated. The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 applied. (3) Sections 59 and 61 of the Evidence Act 1995 (NSW) did not apply to the admission of the video recording of the complainant's interview, the recording being admitted by operation of s 306V(1) of the Criminal Procedure Act 1986 (NSW). Evidence Act 1995 (NSW), ss 59 and 61 considered; Criminal Procedure Act 1986 (NSW), s 306V(1) applied. (4) Having made an independent assessment of all the evidence, the verdict was not unreasonable or unsupported by the evidence. Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 considered; Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4 considered; M v The Queen (1994) 181 CLR 487; [1994] HCA 63 applied; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 considered. Judgment 1. SIMPSON JA: On 23 February 2015 the appellant was arraigned in the District Court on an indictment that alleged one count of sexual intercourse with a child under the age of 10 years, and, in the alternative, a count of aggravated indecent assault on a child under the age of 16 years, committed between 1 June 2013 and 19 December 2013. He entered pleas of not guilty to each count, a jury was empanelled, and a trial proceeded. On 27 February 2015 the jury returned a verdict of guilty on the principal count, and accordingly did not deliver a verdict on the alternative count. 2. Sexual intercourse with a child under the age of 10 years is an offence against s 66A of the Crimes Act 1900 (NSW), and carried a maximum penalty of imprisonment for 25 years. (Section 66A has since been amended, prescribing a maximum penalty of life imprisonment: see Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 1.) By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), a standard non-parole period of 15 years is specified. On 18 June 2015 the appellant was sentenced to imprisonment for 9 years, commencing on 24 March 2015, with a non-parole period of 6 years, which will expire on 23 March 2021. 3. The appellant appeals against the conviction. He has not sought leave to appeal against the sentence imposed. The Crown case 1. The Crown case may be outlined as follows. 2. The appellant is the husband of Mary Nair, who conducted a family day care centre in her home in a Sydney suburb. The complainant, who was born in September 2008 and turned 5 years of age in September 2013, attended the day care centre on Tuesdays and Wednesdays, with two other children. The appellant worked and was in the habit of returning home during the afternoon. (When interviewed, the appellant said that he normally arrived home at just after 3.00pm, or 3.15pm.) 3. On a day specified in the indictment as "between 1 June 2013 and 19 December 2013" (that is when she was 4 or 5 years old) the complainant fell asleep on a lounge while watching television. The appellant sat next to her and inserted his finger into her vagina. The complainant told him not to do it. 4. On 18 December, which was the last day of her attendance at the day care centre, the complainant told her father, and then her mother, what had happened. The circumstances in which this happened will be set out under Ground 3 below. The complainant's parents notified the day care centre, which in turn, notified police. 5. On 23 December 2013 the complainant, in the presence of her mother, took part in an interview which was conducted by Ms Justine Rusk, of the Joint Investigation Response Team (a joint initiative of Family and Community Services, NSW Police and NSW Health). The interview was video recorded. It will be necessary to refer to the interview in some detail below. 6. The following day the appellant attended the local police station where he, too, took part in a recorded interview. He denied the allegations. The trial 1. The trial commenced on 23 February 2015. The complainant was then not quite 6½ years of age. Before proceeding further with an account of the trial, it is necessary to make reference to some relevant statutory provisions. 2. Chapter 6, Pt 6 (ss 306M-306ZP) of the Criminal Procedure Act 1986 (NSW) contains detailed provisions concerning the manner in which evidence may be given by "vulnerable persons" (a term which is defined to include children). For present purposes, it is only necessary to note that the provisions of Pt 6 permitted the complainant's evidence in chief in the trial by playing to the jury the video recording of the interview with Ms Rusk. However, by s 306U(3) it was necessary that the complainant be available for cross-examination and re-examination, either in the courtroom, or by closed circuit television from a remote location, under arrangements specified in Div 4 of Pt 6 of Ch 6. 3. The effect of s 306V(1) is that the answers given by the complainant to Ms Rusk's questions in the interview were admissible as evidence of the facts asserted by her. 4. The necessity for the complainant to be available for cross-examination and re-examination meant that consideration had to be given to the manner in which she was to give oral evidence. Section 21(1) of the Evidence Act 1995 (NSW) provides that, before giving evidence, a witness in a proceeding must either take an oath or make an affirmation in a prescribed (or similar) form. By Sch 1 of the Evidence Act, the form of the oath or affirmation is a promise, in familiar form, "to tell the truth the whole truth and nothing but the truth". However, by sub-s (2) of s 21, an exception is made in relation to a person who gives unsworn evidence under s 13. 5. Section 12(a) of the Evidence Act provides that, except as otherwise provided, every person is competent to give evidence. Section 13 makes provision for a relevant exception. I set out s 13 in full: "13 Competence: lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. Note. See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience." 1. The position may be summarised as follows: (i) a proposed witness is presumed to be competent to give evidence (s 12(a)); (ii) a person who lacks capacity to understand a question about a fact, or to give an intelligible answer to a question about a fact, where that incapacity cannot be overcome, is not competent to give evidence about that fact (s 13(1)); (iii) a person who is not competent to give evidence about a fact may nevertheless be competent to give evidence about other facts (s 13(2)); (iv) before giving evidence, a witness must take an oath or affirmation to tell the truth (s 21); (v) a person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if he or she lacks capacity to understand the obligation to give truthful evidence (s 13(3)); (vi) a person who lacks capacity to understand the obligation to give truthful evidence may give unsworn evidence if advised by the court: 1. of the importance of telling the truth; 2. that questions to which he or she does not know or remember the answers may be answered accordingly; and 3. that he or she should feel under no pressure to agree with propositions that he or she believes to be untrue (s 13(5)). 1. It will be seen that the Evidence Act draws a distinction between evidence that is "sworn" (which includes given on affirmation) and evidence that is unsworn. That distinction is at the heart of the first ground of appeal and will be considered below. 2. In a discussion that took place before the jury was empanelled, defence counsel mentioned that the issue of competence would arise, and, in particular, the question of whether the complainant's evidence would be sworn or unsworn. 3. The transcript then records the Crown prosecutor as saying: "During the course of the record of interview she was only five and she didn't answer questions relevant to that issue when she got to the detail. It may be necessary for your Honour to look at that part of the record of interview. I want to avoid any situation that occurred in MK." "That issue" was the capacity of the complainant to give sworn evidence, as provided by s 13(3). The reference to "MK" was a reference to the decision of this Court in MK v R [2014] NSWCCA 274. In MK it was held that a failure to give directions in accordance with s 13(5) to a witness who was held not to have capacity to give sworn evidence meant that the trial had not been conducted according to law (at [74]). 1. I return now to an account of the course of the trial. The complainant was 6 years and 5 months old at the time of the trial. After the jury had been empanelled, the trial commenced with the trial judge making some conventional opening remarks to the jury; the Crown prosecutor then opened the Crown case, and defence counsel outlined the defence case. It was intended that the complainant would be the first witness, and that she would give her evidence in chief in the manner provided by the provisions set out above – that is, by playing to the jury the recording of the interview conducted by Ms Rusk. The complainant was in a location equipped with CCTV facilities, and available for cross-examination in accordance with s 306U(3) of the Criminal Procedure Act. Present in the location with her was a court officer. The transcript records that the trial judge asked the court officer to "swear or affirm" the complainant. The officer asked the complainant if she understood, to which she replied "No". Nevertheless, the transcript then records that the complainant was "affirmed". 2. The Crown prosecutor asked the complainant a number of questions, apparently designed to establish her capacity to give evidence. These included asking the complainant her age, to which she accurately replied "Six", and whether she knew what her birthday was (to which she replied in the negative). She was then asked if she remembered talking to Ms Rusk. She said that she did. She said that she had, in the previous week, watched the video recording of the interview. She was then asked if she remembered what she told Ms Rusk. She said that she did. The following two questions and answers should be set out: "Q. What did you tell Justine about? A. What Lemo did. Q. And what did Lemo do? A. He touched me in the privates." ("Lemo", it was common ground, was the name by which the complainant knew the appellant.) 1. All of this took place in the presence of the jury. 2. Before the issue of competence proceeded any further, and before any determination as to competence was made, at the suggestion of the Crown prosecutor, and without dissent from defence counsel, the video recording was played to the jury. 3. There followed, in the absence of the jury, discussion concerning the complainant's competence, as expressed by defence counsel, "to give sworn evidence". At no stage was any reservation expressed about the complainant's competence (within the meaning of s 13(1)) to give evidence. The only question was whether her evidence would be sworn or unsworn. 4. The Crown prosecutor suggested that the trial judge ask the complainant questions in order to assess her competency, and added that, if he were not satisfied that she was competent to give sworn evidence, it would be necessary that he give the complainant "directions" in accordance with s 13(5). 5. The trial judge complied, and asked the complainant a number of questions. These included questions about her school and the subjects she was taught. He asked questions designed to elicit whether she understood the difference between truth and falsehood. He then asked the complainant about the occasion on which she had been affirmed, at the commencement of the trial. The transcript records the following: "HIS HONOUR: Do you remember him [the court officer present with the complainant] saying something like this: 'Do you swear to tell the truth, the whole truth and nothing but the truth?' Do you recall him saying that? WITNESS: Yep. HIS HONOUR: And do you recall him asking you to say after him the words, 'I do'? WITNESS: Yep. HIS HONOUR: Did you understand that, when he was saying that to you, he was asking you, in effect, to make an agreement that you would tell the truth to us today? WITNESS: Yep." 1. The complainant then, in answer to further questions, said that the answers she had given on that day were the truth and that, if she were to tell lies, [to her parents] she might get into trouble. She agreed that, when asked further questions in the trial, she would give truthful answers. 2. There appeared at that time to be an assumption in the court that the complainant's evidence would be unsworn. That emerges from something said by defence counsel: "… If your Honour is of the view that it is going to be unsworn, then I don't think there is anything else to say." The appearance that such an assumption existed is strengthened because the trial judge then said to the complainant: "Do you understand, [name of complainant], that when you answer questions in Court that you need to tell the truth?" to which the complainant replied "Yes". The questions went on: "Q. Do you understand that if you don't tell the truth you might get into trouble? A. Yep. Q. Do you understand if you don't tell the truth we might get very upset with you? A. Yep." 1. The Crown prosecutor then reminded the trial judge that the complainant could only give unsworn evidence once she had been given all of the instructions required by s 13(5). His Honour noted that, prior to that taking place, there was a "preliminary question", of competence to be determined. Nevertheless, in response to the Crown prosecutor's request, he went on to say: "Q. [Name of complainant], can I say this to you and I will probably repeat this to you tomorrow morning before you continue with your evidence. We are going to stop in a few minutes time. But first of all it is important that in answering the questions, that's giving your evidence you tell the truth. You may be asked questions that you do not know or cannot remember the answer to and if that happens you should tell us if that occurs. That is if you cannot remember or you can't answer the question. You may also be asked questions that suggest that something is true or untrue and that you should agree with that statement or question. I am sorry. I will repeat that. You may be asked questions that suggest certain statements are true or untrue. You should agree with statements that you believe are true but you should feel under no pressure to agree with statements that you believe are untrue …" 1. His Honour then said: "I will say this, before I examine the transcript more carefully, I have not reached the opinion that the witness is incompetent to give evidence. In which case it is unnecessary to inform the witness of those matters under s 13(5). But I don't say in any event it can't hurt." 1. Defence counsel reinforced his position that there was no issue about the complainant's competence to give evidence. He said: "It is not suggested she is not competent but the secondary question is whether she is competent to give sworn evidence and we submit she is not competent to give sworn evidence. She does not, we submit, and has not indicated or really shown the capacity to understand her obligation to give truthful evidence in the sense of legal obligation." Counsel then referred to his own observations of the complainant when first affirmed, and argued that she had not demonstrated an understanding of an obligation "in a legal sense" to tell the truth. After further discussion the court adjourned overnight. 1. The trial judge determined that the complainant was competent to give sworn evidence. He gave reasons in a judgment prepared overnight. 2. The transcript records that, in the presence of the jury, the complainant was "recalled and re-affirmed". (Although there is a superficial discrepancy between the decision that the complainant was competent to give sworn evidence, and the transcript record that she was "reaffirmed", it is clear that all that means is that she was permitted to give evidence in the manner envisaged by s 21(1), and not the manner provided by s 13(5).) 3. The Crown prosecutor asked some additional questions by way of examination-in-chief and the complainant was cross-examined. 4. Evidence was then given in the Crown case by both of the complainant's parents, by a police officer, and by a co-ordinator of the day care centre. 5. The appellant did not give evidence. Evidence in the defence case was given by his wife (Ms Nair, the operator of the day care centre) and by a longstanding friend of the appellant, Michael Maran. 6. After counsel addressed and the trial judge summed up (about which no complaint is made), the jury returned a verdict of guilty. The grounds of appeal 1. Three grounds of appeal were pleaded. They are: "1. The learned trial Judge erred in holding that the complainant was competent to give sworn evidence. 2. The admission of the complainant's pre-recorded interview resulted in a failure of procedure going to the root of the trial and a consequential miscarriage of justice. 3. The verdict is unreasonable and cannot be supported by the evidence." 1. Senior counsel who appeared for the appellant chose, in written submissions, to argue Grounds 1 and 2 together. The issues raised and the arguments in support, however, are quite distinct and the one needs to be disentangled from the other. Ground 1 1. By Ground 1 error on the part of the trial judge was asserted in the conclusion that the complainant was competent to give sworn evidence. 2. In considering this ground it is necessary to emphasise that the question is not whether the complainant lacked competence to give evidence (that she was so competent was accepted by defence counsel) but whether she was competent to give her evidence under oath or affirmation. The test to be applied in that determination is stated in s 13(3) as whether she had the capacity to understand that, in giving evidence, she was under an obligation to give truthful evidence. 3. The trial judge stated the question correctly. He said, in his brief reasons: "The question is, of course, not whether she understands the difference between a truth and a lie, but whether she has the capacity to understand that in giving evidence, she is under an obligation to give truthful evidence." 1. He then referred to the questioning of the complainant, and said: "After careful consideration, including careful consideration of the whole of the transcript so far in relation to her evidence, I am of the view that the witness, on the balance of probabilities, is competent to give sworn evidence about the facts. I accept she understood in taking the oath that she was, in effect, making an agreement that she would tell the truth in her evidence, and that, as she asserted, she had in fact given truthful answers during the course of her evidence in the presence of the jury and also in the absence of the jury on the voir dire." 1. It is not easy on the written submissions filed on behalf of the appellant (which were only briefly elaborated upon in oral argument) to discern any basis on which error is asserted. A bald submission was made: "That the complainant was not competent to give sworn evidence, and as such, the admission of the complainant's evidence as sworn evidence meant that the trial was not conducted according to law." 1. Paragraph [22] of the decision of the High Court in The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 was cited as support for (at least the second part) of this proposition. It is plainly an erroneous proposition. In [22] of GW the High Court was reciting the findings and conclusions of the Court of Appeal of the Australian Capital Territory, which it went on to reject. 2. No factual or legal basis was advanced for the proposition that the complainant was not competent to give sworn evidence. The submission did no more than state a conclusion contrary to that which the trial judge had reached, for which he gave reasons. No attempt was made to identify any error in the reasoning process or the conclusion. 3. The assessment of the complainant's competency to give sworn evidence was one the trial judge was entitled, and, indeed, required, to make. By s 13(8), for this purpose, the court may inform itself as it thinks fit. The trial judge did this by questioning the complainant and drawing conclusions about her capacity to understand her obligation to tell the truth. No error has been identified. Ground 1 must, in my opinion, fail. 4. It is necessary, however, to add this. On the hearing, senior counsel was pressed by the Bench to identify what consequence, causative or potentially causative of a miscarriage of justice, flowed from what was said to be the erroneous conclusion, none having been identified in the written submissions. Senior counsel's response was that it would have been obligatory for the trial judge to direct the jury that there is a distinction between sworn and unsworn evidence, and that, in effect, unsworn evidence is of a lesser character or value. 5. That proposition is directly contrary to the conclusion of the High Court in GW. After considering a contrary conclusion of the ACT Court of Appeal, the High Court said: "46 … The appellant is correct in submitting that the Evidence Act is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn." (The Evidence Act there under consideration was the Evidence Act 2011 (ACT) which is in the same terms as the NSW legislation here in question.) Specifically on the topic of a direction to the jury regarding the distinction between sworn and unsworn evidence, the High Court said: "56 The Evidence Act does not treat unsworn evidence as of a kind that may be unreliable. Had a direction been requested under s 165(2), there was no requirement to warn the jury that [the complainant's] evidence may be unreliable because it was unsworn. Nor was there a requirement under the common law to warn the jury of the need for caution in accepting [the complainant's] evidence and in assessing the weight to be given to it because it was unsworn. Nor was there a requirement under common law, falling short of a warning of that kind, to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of [the complainant's] evidence." 1. The result is that, even if the complainant were not competent to give sworn evidence, the directions to the jury would have been no different from those that were in fact given. Ground 1 was founded upon a misconception. As indicated above, Ground 1 must be rejected. Ground 2 1. Ground 2 equally was founded upon a misconception. 2. It was submitted that the complainant had not been asked, in her oral evidence, to verify or confirm the answers she had given in the interview with Ms Rusk, and that this was fatal, since there was thus no evidence of the facts concerning the appellant's conduct. 3. Reliance was placed on s 61(1) of the Evidence Act, which provides as follows: "This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13(1)." 1. The reliance on s 61 was misplaced. Section 61 appears in Ch 3 Pt 3.2 of the Evidence Act. Chapter 3 deals with the admissibility of evidence. Part 3.2 is concerned with hearsay evidence. By s 59 ("the hearsay rule"), hearsay evidence is not admissible to prove the truth of a hearsay representation. However, succeeding sections provide for a number of exceptions to the hearsay rule. The effect of s 61(1) is to exclude from the various exceptions contained in Pt 3.2 evidence of a representation made by a person who was not, as provided by s 13(1), competent to give evidence, at the time the representation was made, about a fact, whether by reason of incapacity to understand a question about the fact, or incapacity to give an intelligible answer to a question about the fact, and the relevant incapacity cannot be overcome. 2. The complainant's answers given to Ms Rusk in the interview were, within s 59, previous representations, evidence of which is (prima facie) made inadmissible by the hearsay rule. Evidence of those representations was not made admissible by any of the exceptions in Pt 3.2 of the Evidence Act; it was made admissible by the specific provisions of s 306V(1) of the Criminal Procedure Act. It was never suggested that anything in Pt 3.2 permitted the representations made by the complainant to Ms Rusk to prove the existence of the facts asserted. Section 61 is irrelevant. 3. In any event, the argument involving s 61 depended upon an untested and unproven assumption, that assumption being that, at the time of the interview with Ms Rusk, the complainant was not competent to give evidence about a (relevant) fact, by reason either of incapacity to understand a question about the fact, or incapacity to give an intelligible answer to a question about the fact. 4. It was never part of the appellant's case, as advanced at trial, that, at the time of the interview with Ms Rusk, the complainant lacked either of the required capacities. Had the question been raised, the trial judge would have been obliged to make a finding about the complainant's capacity at the time of the interview. That could most readily have been done by observing the recording of the interview itself, but it could also, in accordance with s 13(8), have been done by the trial judge obtaining information from other sources. Since no issue was raised about the complainant's capacity or competence at the time of the interview, the trial judge was not asked to make, and did not make, any determination as to her competence at that time. 5. In my opinion Ground 2 must fail. Ground 3: unreasonable verdict 1. Senior counsel for the appellant acknowledged that, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), leave is required for this ground to be argued. In my opinion it is an appropriate case for leave to be granted. 2. The test to be applied where a verdict of guilty is said to be unreasonable or not supported by the evidence is well-known, and has been stated on a number of occasions; the most commonly cited is the passage from M v The Queen (1994) 181 CLR 487; [1994] HCA 63, in the following terms (at pp 493-495): "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 … 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. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty …" (internal citations omitted) See also Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 618-619; [1984] HCA 7; Chidiac v The Queen (1991) 171 CLR 432 at 443-444; [1991] HCA 4; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. 1. The written submissions filed on behalf of the appellant purported to identify "some of the matters [that] should have caused a properly instructed jury to experience doubt on both counts on the indictment". What followed in the submissions was singularly uninformative. It included, for example, "Unreliability of complainant's evidence (see summary of complainant's evidence above)". This did not identify any aspect of the complainant's evidence said to be unreliable. Reference was also made to "internal inconsistency of complainant's evidence regarding digital penetration (see summary of complainant's evidence above)". This was followed by: "i. When referring to the [sic] being touched 'in' something, the complainant may have been referring to the appellant putting his finger 'in' her underpants. The interviewer did not seek to clarify this evidence in the record of interview, nor did the Crown Prosecutor during the complainant's evidence in chief during the trial. These questions and answers were on the assumed premise that the child meant 'inside my vagina.' Yet at no stage in the interview had she said that he put his finger in her vagina, or her private part, or the 'middle bit.' She had, on the other hand, said that the appellant had touched inside the undies. Note particularly the complainant's answer that the appellant had touched her private part on the 'outside' (A329) and 'inside her undies' (A 332). The interviewer (and the Crown Prosecutor during the trial) assumed that the complainant was referring to her vagina, despite the complainant had [sic] repeatedly and specifically stated that there had been no digital penetration." 1. The submissions did not direct attention to any other internal inconsistencies with respect to digital penetration. A further assertion was that there was "inconsistency in complaint evidence" and inconsistency about the timeframe. Again, little expansion on these bald assertions was made. 2. Although the Crown made reference to s 7(2) of the Criminal Appeal Act, which permits substitution of a verdict of guilty of "some other offence" (including a lesser offence), no attempt was made on behalf of the appellant to suggest that this Court ought (should the primary appeal fail) to substitute a verdict of guilty of the alternative offence on the indictment for the verdict of guilty on the principal offence. 3. The substantive difference between the two offences was the element of digital penetration. 4. Notwithstanding the sparsity of detail in the submissions, in fairness to the appellant it is necessary to examine closely the evidence in order to identify (in the language of the High Court in M) any discrepancies or inadequacies and to determine whether the evidence is tainted or otherwise lacks probative force. It is necessary to do this in some detail (see SKA). The complainant's accounts of the conduct she attributed to the appellant including the evidence of complaint 1. I will deal with these matters chronologically. 2. The first person to whom the complainant reported the events was her father (to whom it will be convenient to refer as "G"). This she did on the last day of her attendance at the day care centre, 18 December 2013. 3. G's evidence was that, on the complainant's return from the day care centre, he and the complainant took their dog for a walk and played in the park for a time. On the way home, the complainant said: "Talemo wanted to massage me, but I don't like the massage." His evidence was that the following conversation took place: G: "So where does he massage? Is it your back?" COMPLAINANT: "No, it's my bottom." G: "So, is it the outside of your bottom or the inside?" COMPLAINANT: "The inside." 1. G's evidence went on: "I then asked if her undies were on. She said, 'Yes.' And then she volunteered that his hand was on the inside." He said that he told the complainant that she would need to repeat that to her mother (to whom I will refer as "K") when they returned home. 1. He said that he then took the complainant home and told K that she had to "hear this". K's took the complainant to the bathroom for a bath and continued to ask questions. G entered the bathroom. K asked: "Where did he touch you?" G described the complainant's response in the following way: "… she – both hands to her vagina region." He said at that stage he left the bathroom and made notes of what had happened. 1. K gave evidence to similar effect. She confirmed that the disclosure by the complainant took place on 18 December, and that G had told her "you've got to hear this". Her evidence was that the complainant told her: "Lemo massaged me." She asked where and the complainant, with her hands, indicated her vagina. 1. She said the complainant was upset, began crying, and said that she hated Lemo. She took the complainant to the bath to relax her and asked again where the appellant had touched her, and that the complainant said: "… either side of my vagina, and a little bit inside" 1. The complainant told K that she had kicked the appellant away. She said that the incident had occurred in the sitting room of the day care centre. 2. Neither of these witnesses was cross-examined. The complainant's interview with Ms Rusk on 23 December 2013 1. I have watched the video recording of the interview. A transcript, as to the accuracy of which no issue was taken, was available to the jury to assist their understanding. I considered it appropriate, in this case to watch the video; contrary to the position I took in SKA v R; R v SKA [2009] NSWCCA 186. In this case, there could be no imbalance, as the appellant had not given evidence. 2. Both the video recording and the transcript indicate that, at the commencement of the interview, the complainant was extremely reticent. The transcript records numerous questions to which there was "no audible reply". That is confirmed on the video. However, as time went on, the complainant became more forthcoming. 3. Ms Rusk asked a number of questions, apparently designed to relax the complainant and gain her confidence. During the course of the interview Ms Rusk showed the complainant outline representations of a female body, and asked the complainant to name various body parts. One of these was the vagina, which the complainant said was used "to pee". The questioning continued. I now propose to extract all those questions and answers that deal with the allegation made against the appellant: "Q282 So you told me before that you use that to pee, has anyone ever touched you on the private bit? A Yes, Lemo. … Q302 … So when we were looking at that body part a minute ago, you said to me that Lemo touches you on your private part, your private bit, which you didn't really have a name for but you told me that you use that to pee, is that correct? A Yeah. Yeah. Q303 OK. Tell me a bit more about that? When did Lemo touch you on the private part? A Ah, my first time. Q304 First time? A The first time. Q305 Yeah. What, tell me about the first time that happened? A I don't really know about it. … Q320 Whereabouts were you at day care when Lemo touched you on the private part? A In the sitting room. … Q323 OK. What were you doing? A Watching TV and I was falling asleep. … Q326 … How did you know Lemo was touching you on the private part, when you were sleeping? A Cause he did it ….. Q327 Did you see him touching you on there or did you feel him or something else? A I felt it and it really hurted. Q328 OK. OK, you felt it. What did Lemo use to touch you on the private part? A With his hands. Q329 OK. OK. So when he was touching you on the private part with his hand, was he touching you - - - A ….. Q329 - - - inside, outside or something else? A Outside. … Q332 So was it inside your undies, outside your undies or something else? A Inside my undies. … Q338 … So did you say anything to Lemo when he was touching you on the private? A I said, 'Don't do it. Don't do it. Don't do it', and he keeped saying, 'Come on, come on, come on'. … [The complainant said that she started kicking the appellant, and demonstrated holding her legs together.] A So he doesn't - - - do it. [Ms Rusk asked how many times the appellant had done this, to which the complainant replied "Once", but then said he had done so six times in one day. She said that the appellant kept saying "tomorrow, tomorrow, tomorrow"] Q372 … A And then the third day after, he wanted to do it again. [The complainant said that that was the day that she went home and told her dad] Q381 And Lemo's come in and touched you while you were sleeping, do you know what I mean when I say inside or outside your private part? … A He did it a little bit inside but not really inside. … Q383 OK. Inside what? A I don't know. … Q389 When Lemo touched you, did he touch you on the outside, like, the bit that you can see when you're looking straight on or the bit that's inside? A Outside. Q390 Outside. OK. So he didn't ever put his hand into the bit that's in the middle? A No. … Q392 OK. So when he was touching you on the outside here ….. was it hard, soft or something else? A Hard. Q393 Hard. And what was he using? A His hand. Q394 His hand. What was he touching you with? His whole hand, his fingers or something else? A With his fingers. … Q409 OK. Did Lemo ever say that he was massaging you? A He did massage me like that. Q410 … Is that the first time he's massaged you? A Yes. … Q423 Can you describe what Lemo's hand does when it touches you on the private? A He normally does it with his whole hand sometimes. … Q445 What part did you show where Lemo had put his fingers? A On outside ….. Q446 On the outside, was it? A [NO AUDIBLE REPLY] Q447 OK ….. All right. So only ever on the outside, never on the inside? A Yeah. Q448 Do you understand what I mean when I say on the inside? A [NO AUDIBLE REPLY] … Q514 … So earlier on, when you were telling me about Lemo touching you on the private part - - - A Yeah. Q515 And it made it hurt. A Yeah. It did. Q516 Yeah? Um, can you describe that for me? What, why did it, why did it hurt - - - A Huh? Q517 What was hurting? What was hurting when Lemo was touching you? A He was actually hurting me inside. Q518 Oh, OK. And then did he, and then I said 'Stop it'. OK. So he hurt you - - - A And then he laughed at me. Q519 Did he? So he hurt you inside? A Yeah. Q520 So did he put something inside? A No. He put his whole finger in. Q521 OK. So earlier on when I asked you if he got on the inside, the outside - - - A Yeah. Q522 And you said, 'Just the outside'? Is that not correct? He actually put his hand on the inside, did he? A And the outside, both. Q523 OK. Both. A Yeah." 1. Also in evidence was another account given by the complainant, on 13 November 2014 to her mother, which her mother tape recorded. The transcript of that conversation (made by the police officer in charge of the investigation) was admitted without objection. No ground of appeal complains of the admission of this document. It is relevantly in the following terms: "[K]: Ok so where were you? [COMPLAINANT]: I was at Mary's house. [K]: Yeah, and what did who did who did anyone do something to you at Mary's house? [COMPLAINANT]: I think so. [K]: Who was it? [COMPLAINANT]: I think it was Lemo. I forgot his name. [K]: What's his name? [COMPLAINANT]: I think it's Lemo, yeah Lemo. [K]: And what did he do? [COMPLAINANT]: He stuck it that far in. [K]: What did he stick in? [COMPLAINANT]: His finger. … [K]: But what did he stick it in? [COMPLAINANT]: In my vagina. [K]: In your what? [COMPLAINANT]: Vagina … [K]: What else? How did it feel darling? [COMPLAINANT]: Very, very sore. [K]: Did it. [COMPLAINANT]: I was at Mary's. What should I write? [K]: Whatever you want to darling, whatever the truth is. [COMPLAINANT]: He stuck it that far deep in me. [K]: Did he. [COMPLAINANT]: Yep. [K]: Do you want show me how far? [COMPLAINANT]: That far [K]: How do you know that? [COMPLAINANT]: Cause I saw how much it felt. [K]: How did it feel? [COMPLAINANT]: It felt really really sore. I had tears dripping out of my eyes. …" 1. Although further questions were asked of the complainant in examination-in-chief in the trial, and she was cross-examined, there was no further elaboration or explication of the conduct said to have constituted the offence. Disposition 1. I have set out, at somewhat tedious length, the various answers given by the complainant to questions concerning the conduct of the appellant. There are, undoubtedly, inconsistencies and discrepancies. The inconsistencies and discrepancies do not relate to her assertion of an incident of sexual impropriety on the part of the appellant. They relate to the assertion that that incident extended to penetration – and therefore the critical distinction between the two counts on the indictment. The question which must be examined is whether the evidence was capable of satisfying a jury that digital penetration occurred. 2. A number of circumstances in the evidence persuade me that it was. The complainant's first account, to G, was that the "massage" was "on the inside". It is true that G did not state explicitly that his question was directed to the outside or the inside of the complainant's vagina. But that was clarified when the complainant told K that the appellant had touched her "either side of my vagina and a little bit inside". 3. The second aspect of the complainant's evidence that powerfully supports the allegation of penetration is her evidence, in the interview with Ms Rusk, that "I felt it and it really hurted". It is true that this was immediately followed by an answer that the appellant was touching her "outside" her "private part", but this does not explain why touching outside the vagina would hurt the complainant. Later the complainant said that the appellant was "actually hurting the inside", and "he put his whole finger in". 4. A third aspect is the complainant's evidence that, after she kicked the appellant, she held her legs together tightly. 5. The evidence of penetration substantially outweighs the contrary evidence of the absence of penetration. Bearing in mind that only a small degree of penetration is necessary to establish the principal offence, I am satisfied that it was open to the jury, having seen the complainant's recorded interview, and having seen her oral evidence (which did not advance this issue) to accept that there had been the requisite degree of penetration. Further, I am satisfied the evidence established beyond a reasonable doubt that penetration occurred. 6. I should add that, in coming to this conclusion, I have attributed no weight to the recorded conversation with K, which became Exhibit 8. There are, in my opinion, difficulties with this recorded conversation which was, as I have indicated above, admitted without objection. The evidence discloses very little of the circumstances in which the conversation took place, or what had preceded it. 7. A further point sought to be made on behalf of the appellant concerned inconsistencies with respect to the "timeframe" in which the incident was said to have taken place. Two matters were raised. The first was that, in the interview, the complainant said that "on the third day after, he wanted to do it again" and that that was when she told G. Taken literally, it was submitted, that must mean that the offence the subject of the indictment was committed on either 15 or 16 December, which were days on which the complainant did not attend the day care centre. 8. While I accept that due weight must be given to this anomaly, it is not, in my opinion, sufficient to overcome the other evidence. Given her age, little can be attributed to the complainant's mention of "the third day after". What is important is her account of the events she asserted took place. 9. The second aspect concerning the "timeframe" related to the screening of an African television programme. 10. The complainant said that the incident occurred when she was in the sitting room, alone with the appellant, watching television and falling asleep. She said that, prior to falling asleep, she had been watching "an animal show", and later, in an unresponsive answer, she said: "Well, actually, a African show." 1. Presumably as a consequence of this answer, Detective Paul investigated broadcasting on the ABC of any "African show" during the relevant time. It emerged that on 17 December 2013 a programme called "Shamwari: A Wild Life" was televised from 2.32pm and ran for 26 minutes. From this, it was argued, no credence could be placed in the complainant's answers, because the appellant did not arrive home until a time after that programme would have concluded. 2. That places rather too much weight on the complainant's answer. It was given in a context when Ms Rusk was attempting to ascertain the length of time over which the complainant said the appellant was behaving inappropriately. She was asking questions about other children's programmes in order to give the complainant a frame of reference for estimating the time. The reference to an "African show" was something the complainant injected into those questions, and it is not apparent from that evidence that the complainant intended to convey she was watching the "African show" as the incident occurred, nor that the African show was on the ABC. In any event, the appellant told police that he had watched an African show with the children. 3. In cross-examination Detective Paul agreed that he had not made inquiries of any other television channels. He was unable to explain why he had so limited his investigation. But it was put forcefully to him that the complainant had never said that the programme she had watched was on the ABC. 4. The complainant also said that, while the incident was occurring, Ms Nair was putting the other children to sleep. Ms Nair gave evidence that the children sleep in the morning, and not in the afternoon, and this was confirmed by "sleep records" maintained by the day care centre. Ms Nair also said that she and the other children, together with the complainant and the appellant, watched an African programme at the end of term. 5. In cross-examination Ms Nair was taken to entries in the "sleep records" which recorded children sleeping in the afternoon on occasion. She accepted she had been incorrect in her earlier evidence that the children only slept in the morning. She further accepted that she would let the children into the living room, despite this being in breach of the applicable childcare regulations. 6. The appellant submitted that as he did not arrive home from work until approximately 3.30pm, the complainant's evidence that the offence had taken place while Ms Nair was putting the other children to sleep should not be accepted. 7. Without making any finding as to the credibility of Ms Nair as a witness, I do not accept that her evidence gives rise to a reasonable doubt as urged by the appellant. While her concessions in cross-examination were appropriate, they also demonstrate that the submission for the appellant is over-stated. Indeed, the "sleep records" indicate children sleeping throughout the afternoon, and as late as 3.30pm, on several occasions. I am satisfied it was open to the jury to prefer the evidence of the complainant in this regard. 8. The appellant also relied on Ms Nair's evidence that she never left the complainant alone with the appellant. Ms Nair did not retreat from this proposition in cross-examination, despite the Crown suggesting that Ms Nair breached other childcare regulations and possibly breached one in leaving children alone with the appellant, a person who was not registered as a carer. 9. Further, the appellant relied on evidence of good character. Mr Maran gave evidence that he knew the appellant and his family very well. He described the appellant as "a loving person" and well-respected. He also gave evidence that the offences with which he was charged "[went] against all expected norms that he's renowned for. It is totally against the grain. It is not him.". 10. This is a case in which the jury's advantage in seeing and hearing the witnesses is of some significance. The evidence does not give rise to a reasonable doubt. I am satisfied that it was open to the jury to reach the verdict that it did. Having made my own assessment of the evidence, I am satisfied that the appellant was rightly convicted. 11. Accordingly, I would grant leave for this ground of appeal but dismiss the appeal. 12. The orders I propose are: (1) Leave granted to rely on Ground 3 of the Notice of Appeal. (2) Appeal against conviction dismissed. 1. HARRISON J: I agree with Simpson JA that Grounds 1 and 2 must fail. 2. In considering Ground 3, I have reviewed the transcript of the trial. Unlike her Honour, I have not reviewed the video recording of the interview with the complainant. However, based upon my review of the trial transcript, including the transcript of the recorded interview with the complainant, I am satisfied that the evidence does not give rise to a reasonable doubt. I am also satisfied that it was open to the jury to reach the verdict that it did. Having made my own assessment of the evidence, I am satisfied that the appellant was rightly convicted. 3. I agree therefore with the orders proposed by Simpson JA. 4. DAVIES J: I have read the judgment of Simpson JA. I agree with her Honour's reasons in relation to Grounds 1 and 2. 5. In relation to Ground 3, I am satisfied from my own reading of the evidence that it was open to the jury to be satisfied of the guilt of the applicant. I have not viewed the DVD of the complainant's interview with Ms Rusk but I have read the transcript of that interview. For the reasons given by Simpson JA I do not have a reasonable doubt about the jury's verdict. ********** Amendments 15 March 2018 - [2] - "2016" replaced by "2015" [15](vi)(c) - pinpoint reference inserted 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: 15 March 2018