Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: GD v R [2018] NSWCCA 18 Hearing dates: 9 February 2018 Decision date: 21 February 2018 Before: Macfarlan JA at [1]; Hoeben CJ at CL at [86]; Garling J at [87] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the applicant's conviction of the offence charged in Count 4 of the indictment filed on 20 March 2017. (4) Direct a judgment and verdict of acquittal on that charge. (5) Direct that the applicant be released from custody forthwith. Catchwords: CRIME – appeal against conviction – applicant acquitted of three counts of indecent assault committed in the presence of a person under 10 years of age but convicted of sexual intercourse with person under 10 years of age – whether jury verdict unreasonable or cannot be supported by evidence – relevance of delay in complaint Legislation Cited: Crimes Act 1900 (NSW), ss 61M(2), 66A Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), s 294(2)(c) Evidence Act 1995 (NSW), s 66(1) Cases Cited: Dickson v R [2017] NSWCCA 78 Jarrett v The Queen (2014) 86 NSWLR 623; [2014] NSWCCA 140 Kilby v The Queen (1973) 129 CLR 490; [1973] HCA 30 M v The Queen (1994) 181 CLR; [1994] HCA 63 Nguyen v R [2017] NSWCCA 145 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 Romolo v R [2018] NSWCCA 3 Suresh v The Queen [1998] HCA 23; 72 ALJR 769 The Queen v Lillyman [1896] 2 QB 167 Category: Principal judgment Parties: GD (Applicant) Regina (Respondent) Representation: Counsel: T Game SC / G Scragg (Applicant) S Dowling SC (Respondent) Solicitors: Redmond Hale Simpson (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/350056 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 29 May 2017 Before: North DCJ File Number(s): 2014/350056 Judgment 1. MACFARLAN JA: In March 2017 the applicant, GD, was tried in the District Court before a judge and jury on the following charges: 1. That between 1 January 2005 and 31 December 2005 he assaulted the complainant, and at the time of the assault committed an act of indecency on the complainant, the complainant then being a person under the age of 10 years (s 61M(2) Crimes Act 1900 (NSW)). 2. That between 1 March 2006 and 31 August 2007 he assaulted the same complainant, and at the time of the assault committed an act of indecency on the complainant, the complainant then being a person under the age of 10 years (s 61M(2) Crimes Act). 3. That between 1 March 2006 and 31 August 2007 he assaulted the same complainant and at the time of the assault committed an act of indecency on the complainant, the complainant then being a person under the age of 10 years (s 61M(2) Crimes Act). 4. That between 1 January 2007 and 12 November 2007 he had sexual intercourse with the same complainant, the complainant then being a person under the age of 10 years (s 66A Crimes Act). 1. The complainant in respect of each charge is the applicant's daughter. She was born in November 1997 and accordingly turned eight at the end of 2005. The first offence was alleged to have been committed at the family home at which the applicant then lived with his wife, the complainant and a younger son (referred to in the evidence as the "Nancy" home). The remaining offences were alleged to have been committed at another home to which the family moved in March or April 2006. The applicant gave evidence denying any misconduct. 2. The jury returned verdicts of not guilty on Counts 1, 2 and 3 but found the applicant guilty on Count 4. 3. The applicant seeks to appeal to this Court against his conviction on the following ground: "The jury's verdict of guilty on count 4 is unreasonable in all the circumstances and cannot be supported by the evidence having regard to the not guilty verdicts on counts 1-3, and the evidence relied upon in support of all counts." 1. As this ground does not involve a question of law alone, the applicant requires leave to appeal (s 5 Criminal Appeal Act 1912 (NSW)). 2. As the jury's verdicts of acquittal on Counts 1, 2 and 3 are material to the applicant's case that his conviction on Count 4 was unreasonable, I refer as follows to the significant evidence and other aspects of the trial relating to all four counts. Count 1 – 2005 1. The complainant gave the following evidence-in-chief of an indecent assault that occurred in 2005 when the family was living in the Nancy house: "Q. Tell the jury what happened please. A. … So we used to have this game that my dad would play with me where he would wrap his arms and legs around me and trap me and I had to escape. I could never escape. It wasn't really a game, I was just stuck. Sometimes he would tickle me as well, which made it even worse because I couldn't go anywhere. But this one time I remember we were in my bed and his hand went inside my pyjamas, I was wearing a nightie, and he started to touch me on my bottom and on my vagina … " 1. The complainant could not remember the applicant saying anything. She said the touching continued for "[m]aybe a few minutes" and there was "[r]ubbing, pinching a little". She said that she and the applicant were "in the covers" of the bed. 2. She gave the following evidence-in-chief about other incidents that occurred in the Nancy house: "Q. Did any other incidents happen at the Nancy house? A. I think that same thing might have happened a couple of times but nothing different, no – oh actually, are we only talking about what I said on 18 November [the date of her last Statement to police]? Q. No, I am asking you – you are talking about the first incident that you remember in the Nancy house, and now I am asking you whether any other incidents occurred in the Nancy house? A. After that? Q. Yes? A. No, I don't think so. Q. How long did you live in the Nancy house for? A. A year, or a year and a half-ish. Q. Sorry, what did you mean when you said 'nothing different' in answer to a question a minute ago? A. 'Cause when we moved to the next house it got kind of a bit rougher, like it never got rougher in that house. Does that make sense? Q. Perhaps I will just ask you this question, did it happen only once in the Nancy house? A. Maybe two or three times. Q. And can you say what happened on the other occasions in the Nancy house? A. The same thing that I just said, the game holding me with his legs and arms, the tickling, the rubbing, that's it." 1. The complainant said that she recalled that when they "played that game" the applicant said once in the Nancy house, "but only once", that he would hurt the complainant's mother if the complainant told her what occurred (transcript p 76). 2. In opening, the Crown Prosecutor said that "this type of incident happened quite often in [the Nancy house] and on some occasions [the applicant] would pinch and pull her vagina and that would hurt her, she would tell him it hurt her and she would tell him to stop". No reference was made to a threat to hurt the complainant's mother. Count 2 – 2006/7 1. The complainant gave evidence that this incident occurred after the family moved to the second house referred to above. In that house she had a double bed that "had a light purple cover on it and poles around it that held like a curtain, a light purple curtain". What occurred "was pretty much the same as what happened in the Nancy house". She said: "We played the same game … [w]here he held me with his arms and legs wrapped around me. At this stage I was still wearing a nightie but I had undies now because I was a bit older, and he put his hand inside my undies and rubbed me around my bottom and my vagina." 1. She said that this occurred for a few minutes and that she was "pretty sure" that she told the applicant to stop. She said it happened a couple of times and that the applicant said he would hurt the complainant's mother if the applicant told anyone about what had occurred. 2. In opening, the Crown Prosecutor said that this conduct occurred "a number of other times" and that during the incident the applicant said "Don't tell your mum, don't tell her or I will kill her, you know I will do it". 3. The applicant's record of interview with the police ("ERISP") records that the interviewing police officer said that he was going to "read out to you the allegations" (Q78). One of the "allegations" was that incidents similar to what became the subject of Count 2 occurred 10 to 15 times. 4. As the applicant submitted on appeal, this was evidence that the complainant had complained to the police in these terms (see s 60(1) Evidence Act 1995 (NSW)). At the trial, the applicant's counsel addressed on this assumption without objection. 5. The complainant's mother gave evidence that the applicant was "quite often" under the complainant's bedcovers. The applicant denied that he was ever under "the proper bed covers" but said "[m]aybe a blanket, maybe a doona or blanket I may have put over my legs". Count 3 – 2006/7 1. The complainant gave evidence as follows of an incident that occurred when she was in Year 4 at school: "A. … I was in my room playing on the floor next to the bed there. I was playing with a little toy with tiles and you make pictures, like a mosaic, and he came into my room and asked me to help him so I could, 'Okay'. I followed him into the ensuite and he told me he needed help to go to the toilet. I remember being confused, but I did as he said. Q. What did he say and what happened, please? A. He took his – he was wearing jeans and a T-shirt. He took his penis out of the zipper of the jeans and asked me to help him, to hold it, so I did. Q. How did you come to hold it? A. He asked me to grab around it like that (demonstrating)." 1. She said that the complainant had his hand on her hand and that her hand was moving up and down on his penis. 2. The applicant's mother gave the following evidence in cross-examination: "Q. … A few weeks later were you lying in [the complainant's] bed and was she on a mattress on the floor in her room? A. Yes, that's correct. Q. And there was some conversation and did you ask her a question to this effect, had she touched her father? A. Yes, I did ask her that question. Q. And did she say to you words to this effect, one day he was sitting on the toilet and he made her hold his penis? A. Yes." Count 4 – "winter" 2007 1. The complainant gave the following evidence-in-chief in relation to this Count: "A. So it was winter and we bought a new bed cover because the other one was like summary [sic] light colours so we bought a new one that was dark purple and had flowers on it and we took down the poles and the curtains and made it look a bit more wintry. When we changed the bed cover the same thing was happening, he was still coming into my room and touching me, but there's this one time I remember that I felt his finger go inside of me. I didn't know what it was, I just knew that it really hurt. Q. When you say you felt his finger go inside of you, inside of you where? A. I'm pretty sure it was in my vagina. Q. And what had happened leading up to that? A. The same thing as normal, the rubbing and the touching. Q. And did you say anything? A. I know I said 'Ow', I said 'stop', but I think he just said 'shh'. Q. And what happened after that? A. I can't remember. Q. What were you wearing at the time? A. Still a nightie, but I don't remember what it looked like. Q. And how was he positioned when this was happening? A. He was still laying behind me. He always lay behind me. Q. And was he under the covers or not under the covers? A. Yes, under." 1. In cross-examination, the complainant explained her evidence-in-chief that she was "pretty sure it was in my vagina" as follows: "I knew it went in, but I didn't know – I was only young, I didn't even know that I had a hole there until I learnt about tampons at school and then I put 2 and 2 together and I realised that's where it must have gone in, that's why it hurt so much." 1. In opening, the Crown Prosecutor said that "[i]t really hurt [the complainant] but she could not remember saying anything or [the applicant] saying anything". No reference was made to any words being exchanged during the course of the event relating to Count 4. 2. The applicant's ERISP records that the complainant told the police that "similar incidents occurred about a further 10 times" (Q125). It was not however clear from the ERISP whether this allegation related to the Count 4 incident only, or to the other alleged conduct of the applicant. Altercation between the applicant and his father-in-law – 18 May 2007 1. In the recorded interview by the police of the complainant on 16 August 2008 referred to below, the complainant described the following incident that occurred on 18 May 2007 (which she referred to erroneously as probably occurring in August 2007): "A. Well last year in probably August or something me and [the complainant's brother] were sleeping in my room, and mum was sitting on the bed, and then daddy came in, and he started banging on the bed, and then he hit my ankle so, and it really hurt so I started to cry. And then he, mum looked at him like the way that she does when she's like angry kind of angry, and, and, then he pulled her off the bed so I screamed, and then Pop [the applicant's father-in-law] came in, and then he said, leave my family alone. And then dad kicked him, and Pop fell over, and then he, dad tried to punch him but he hit the door, and he broke his finger, and then we called the ambulance, and they, and they called the police, and then, yeah. Q. What happened then? A. And they took him away, and they took Pop away to the hospital, and then he was allowed to see us, and he was allowed to call us, and he was trying to convince us to tell anyone that we had to that he didn't do much, like he was trying to, and he kept on taking us to toy shops like trying to buy us back. And, yeah, and then one day mum was at work, and then when she came back he just moved back." 1. The applicant said that she spoke to the police on the day of that incident or the next but did not give a statement. She said that she also told the police officer about an earlier incident in which she said that the applicant held her mother over the balcony stairs railing. This is to be contrasted with the complainant's mother's evidence that the balcony incident occurred in June 2008. 2. As indicated in the passage quoted above, the applicant moved out of the family home immediately after the altercation with his father-in-law. He returned at the end of August 2007. The "steak and chips" incident – June 2007 1. The complainant gave evidence of the following incident that she said occurred whilst she was having dinner with her parents and brother, apparently in June 2007: "A. Okay, we were having a dinner, as I said, we were having steak and chips. He – my dad brought my plate to the table. There was some, like, steak juice on the plate, I guess you would say, and I didn't know what it was. I lifted my steak to look underneath to see what it was and he saw that and he said to me, 'Why are lifting the steak? That's a criticism. I don't like to be criticised. You shouldn't criticise [..] the chef' or something along those lines and he got very angry and I said, 'Oh, I'm sorry'. Then I can't remember what else, conversation, went on between that. And then he picked up the salt shaker and threw it down the hallway and told me to go and get it. I went and got it, I sat back down again. Then he said – he was still angry. He took my chips from my plate and put them in with the dog bowl, then sat back down. He was very angry. I can't remember what was being said, but I remember his face was really, really red just from being so angry. I ate my steak and then he brought the chips back and put the bowl like over my face. (Indicated). I can't remember if I ate them or not. Q. When he put the bowl over your face what did you mean by that? A. Like (indicated) like squashed the chips into my face, into my nose when they'd been in the dog bowl. Q. Did that hurt? A. Yeah, I think so from memory." Emails exchanged between the applicant and complainant – mid 2007 1. A number of emails exchanged between the applicant and complainant between 27 March and 24 August 2007 were in evidence. They are friendly in tone. The complainant's emails of 27, 29 March, 3 April and 24 August concluded "Love [the complainant]". That of 5 August 2007 concluded "Love ya" and "Love [the complainant]". Her 7 August 2007 email concluded similarly. 2. When it was suggested to the complainant that the emails from her showed affection between her and her father, she replied: "A. No. I didn't have a choice whether I wrote those or not. And can I also just say that he had the password and everything for those email accounts. I don't remember writing these, which could just be because they were a long time ago, but he did have the password. He set up those emails for me." 1. In later answers she said that she did not know whether she wrote them and they may not have been written by her. Applicant's return to home and subsequent holidays 1. The applicant returned to the family home in late August 2007. In October 2007 the family had a holiday on the Gold Coast and in April 2008 in the United States. The tongue in mouth incident – June 2008 1. The complainant gave evidence of an incident that appears to have occurred in late June 2008 in which the complainant says that the applicant lay on top of her on a lounge and "started licking my face, he put his tongue inside my mouth, licked my face more". She complained to her mother about the tongue being put in her mouth only about five days later because she thought that her mother had seen, not only the licking, but also the applicant put his tongue into the complainant's mouth, when apparently she had not. The complainant's interview with the police on 1 July 2008 1. The complainant's parents separated on 30 June 2008, from which date an apprehended violence order ("AVO") against the applicant became effective. 2. The police interviewed the complainant on 1 July 2008. A typed statement was prepared but it was not in evidence. The record of a later interview, of 16 August 2008, that was in evidence, recorded that at the 1 July interview the complainant told police about the "steak and chips" incident and the "tongue in mouth" incident. The complainant's interview with the police on 16 August 2008 1. The DVD recording of this interview was played to the jury and a transcript of it was marked for identification. I viewed the DVD for the purpose of determining the appeal. The complainant appeared to be relaxed during the interview. At times during it she smiled and laughed. 2. She said in evidence that she felt comfortable talking to the lady police officer. She said that although she knew that her father would find out whatever she said, she was prepared to willingly cooperate with the police. 3. At the commencement of the interview, the principal interviewing officer, Detective Senior Constable Sandra McLachlan, asked the complainant why her mother had brought her to speak to the police on that day. The complainant's answer was "Because I said that I didn't tell you everything" (Q24). DSC McLachlan responded by saying: "So when you say you didn't tell me everything what I'd like you to do is to start from the beginning right to the end, I'm not going to interrupt but if you don't mind I'll take some notes" (Q25). 1. The complainant then described the 2007 altercation in which her grandfather was injured. She then volunteered a description of an incident in 2006 when her parents starting "fighting a bit" and the applicant "tipped the table over on us, and then everything fell off, and we all, and there was glass, and everything everywhere" (Q30). After responding to questions about these two incidents, the complainant also volunteered a description of an incident that she said occurred when she was 5 or 6 when, at the dinner table, her fork accidentally hit the applicant near the eye as she was playing around, with the result that he dragged her by her hair into the bedroom, yelling at her as he did. 2. DSC McLachlan concluded by asking the complainant whether there was "anything else that you would like to tell us today?" (Q204). In response, the complainant volunteered a description of yet another incident, which she said she could not fully remember, in which, during an argument between her parents, the applicant threw a tray and hit the door in the loungeroom with it (Q205). The complainant's further statements to the police 1. On or about 3 December 2009, the complainant went with her mother to the police station to complain that the applicant had breached the AVO to which he was subject. As a result, the applicant gave a statement dated 3 December 2009. She agreed in cross-examination that she knew that the applicant's conduct of which she informed police "might possibly be a criminal offence". 2. On 20 October 2011 the complainant gave the police a further statement in relation to another alleged breach of the AVO by the applicant, on 2 December 2009. Complaint about the charged events 1. The complainant gave evidence that she did not tell the police about the events the subject of the present criminal charges until November 2014. In evidence-in-chief, she gave the following explanation for not doing so earlier: "A. I was scared. Also when I was younger I didn't understand what was happening was wrong. I didn't understand what was happening, I thought it was just tickling, a game. Q. Why were you scared? A. Because he had said to me 'don't tell anyone', 'don't tell anyone', so I didn't. Q. When had he told you that? A. When he was leaving my bedroom at night mainly". 1. In cross-examination, she said that she did not complain earlier because she was "too scared" and was "embarrassed". In re-examination, she said that she was scared because the applicant "told me if I ever tell anyone he would hurt my mum" and that she was embarrassed "[b]ecause I was only a kid and it's embarrassing and I didn't want anyone to know that this happened". In opening, the Crown Prosecutor said that the complainant did not complain earlier due to fear of the applicant arising out of his threats and violence to members of the family. He did not give embarrassment as a reason. 2. The complainant's mother gave evidence that the complainant complained to her in September 2014 via text messages when they were together in the loungeroom of their home. Presumably, the complaint related to the conduct the subject of Counts 1, 2 and 4, and similar conduct, as the complainant only told her mother about the Count 3 conduct later, in the circumstances described in [20] above. 3. A print-out of the text or texts was marked for identification at the trial, but neither party tendered it. The complainant did not give evidence that she communicated the complaint by this means because she was embarrassed to talk about the incidents. In fact, the complainant did not suggest in her evidence that she communicated the complaint to her mother by text. Rather, she said that she and her mother were at home alone and that "I was telling my Mum". 4. The complainant also gave evidence that, so the complainant thought, at the same time that she told her mother "everything else", she told her that "a long time ago" the applicant had said to her "[o]h, I can't wait till you grow boobs so I can play with them". The complainant's mother gave evidence to similar effect of a conversation that occurred sometime after 30 June 2008, whilst she and her daughter were in the car stopped at a set of traffic lights. 5. The complainant's mother gave evidence that a few weeks after the text messages were exchanged on 11 September 2014 she asked the complainant whether "she touched her father". She said that the complainant responded in the terms set out at paragraph [20] above. 6. On 13 November 2014 the applicant sent flowers and a present to the complainant. On 18 November 2014 the complainant made the complaints concerning the present criminal charges in the course of an interview with the police. The evidence does not indicate when the police were first contacted by the complainant or her mother. 7. In cross-examination, the complainant agreed that in the course of Family Court proceedings between her parents, she had taken the side of her mother. Her evidence continued: "Q. As the proceedings in the Family Court proceeded through you developed, is it the case, a strong dislike of your father? A. Didn't develop. It was already there, but, yeah. Q. You developed sort of a hatred of your father? A. Didn't develop. It was already there." DETERMINATION OF THE APPEAL Relevant principles 1. The principles applicable to an unreasonable verdict ground of appeal were recently re-stated by Bathurst CJ (with the concurrence of Johnson and Fullerton JJ) in Dickson v R [2017] NSWCCA 78 at [84]-[86] as follows: "84 The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own 'independent assessment of the evidence'. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced' and '[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred': see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. 85 As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. 86 In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48]." 1. In Romolo v R [2018] NSWCCA 3 at [24], after quoting these paragraphs, I pointed out (with the concurrence of Button J): "In light of these principles, the ultimate question raised by the applicant's ground of appeal is not whether the jury could have had a reasonable doubt, but whether it should have had such a doubt. In other words, if, after its independent assessment of the sufficiency and quality of the evidence, this Court has a reasonable doubt as to the applicant's guilt, his conviction should be quashed unless the jury's verdict can be explained by its advantage in having seen and heard the witnesses giving their evidence … " 1. The applicant did not contend that he should be granted leave to appeal, and his appeal allowed, simply upon the basis that the verdicts of not guilty on Counts 1, 2 and 3 were inconsistent with the verdict of guilty on Count 4. As Simpson J observed in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [121]-[126], such a contention is different to one where, as here, a verdict is asserted to be unreasonable due to the insufficiency of the evidence. Verdicts will not be found to be inconsistent if there is a logical and reasonable basis upon which the verdicts may be reconciled (see Nguyen v R [2017] NSWCCA 145 at [34]-[48]). 2. The applicant did argue however that the acquittals formed part of the material for this Court to take into account in considering whether the conviction on Count 4 was unreasonable. This is undoubtedly correct and necessitates consideration of possible explanations for the different verdicts. 3. As, for the reasons I give below, the delay in the making of the complaint about the charged matters assumes particular importance on this appeal, it is necessary to make the following observations concerning evidence of delays in complaints of sexual offences. 4. In The Queen v Lillyman [1896] 2 QB 167 at 170-1 Hawkins J referred to the statement in Hawkins' Pleas of the Crown, in relation to charges of sexual offences, that "[i]t is a strong, but not a conclusive, presumption against a woman that she made no complaint in a reasonable time after the fact". In Kilby v The Queen (1973) 129 CLR 460 at 469; [1973] HCA 30 Barwick CJ said in relation to this "presumption": "The word 'presumption', in this connexion, is not, of course, a reference to a presumption of law but is no more, in my opinion, than a statement that a tribunal of fact might well consider that a woman who made no complaint was not to be believed when she gave an account of events to which she gave no consent." 1. In M v The Queen (1994) 181 CLR 487 at 514-5; [1994] HCA 63 Gaudron J, consistently with Barwick CJ's observation, pointed out that the "presumption" is not a presumption of law but an assumption of fact and is no longer seen as conclusive. Her Honour noted that that assumption was still accorded respect and continued: "Because complaint continues to have significance in relation to sexual offences, it is important for the assumption which justifies that significance to be formulated in terms which indicate that it is neither sex-specific nor of general application, as for example in the statement that 'the true victim of a sexual offence will, under normal circumstances, complain at the first reasonable opportunity'. However, circumstances vary greatly and there may be different views as to what is normal and, also, as to what constitutes reasonable opportunity. So much so, in my view, that there is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts with directions to the jury being fashioned to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms but which, clearly, cannot hold good in all cases" (citation omitted). 1. Her Honour then pointed out that an assumption of the kind adopted in Hawkins' Pleas of the Crown certainly cannot be adopted in cases of sexual assault on a child by a person who has the child's trust and confidence as there are frequently good reasons for no complaint being made. 2. In Suresh v The Queen [1998] HCA 23; 72 ALJR 769 at [5] Gaudron and Gummow JJ referred to the assumption that the victim of a sexual offence will complain at the first reasonable opportunity as being of doubtful validity, particularly in cases of child sexual assault. Basten JA referred to this passage in Jarrett v The Queen (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [37]. As his Honour pointed out, reference now needs to be made in this context to s 294(2)(c) of the Criminal Procedure Act 1986 (NSW), introduced in 2006. That section provides that on the trial of a person for prescribed sexual offences, such as here, the trial judge "must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning". The trial judge considered that such evidence existed in the present case and gave such a warning to the jury. He did so without objection by the Crown. 3. In light of s 294(2)(c) and the authorities to which I have referred, I approach my independent assessment of the evidence in the present case on the basis that, whilst delay in complaining is capable of casting a reasonable doubt on the complainant's reliability, the particular circumstances of the case, including the complainant's stated reason for delay, need to be carefully considered. Observations concerning the evidence Counts 1, 2 and 3 1. There were significant discrepancies between the evidence that the Crown foreshadowed in its opening would be given by the complainant in relation to Count 1, and that which the complainant in fact gave. These were that, in opening, the Crown said that the conduct described in Count 1 occurred at the Nancy House "quite often", whereas in evidence the complainant said that it occurred "two to three times". Further, in opening, the Crown foreshadowed evidence that the complainant told the applicant to stop what he was doing but the complainant did not give that evidence. On the other hand, the complainant gave evidence that the applicant said that he would hurt the complainant's mother if the complainant told her what had happened, whereas there was no reference to that evidence in the Crown's opening. The complainant also gave evidence that the Count 1 conduct was a "game" but that description was difficult to reconcile with her evidence of the applicant's threat to hurt her mother. 2. In relation to Count 2, the complainant again gave evidence that the applicant said that he would hurt the complainant's mother if the conduct was disclosed. The Crown's opening however foreshadowed evidence that the applicant said that he would kill the complainant's mother if the complainant told her what had happened. Further, the complainant gave evidence that the conduct occurred a "couple of times" whereas in opening the Crown said that it occurred "a number of other times". 3. The complainant's evidence was partially corroborated in respect of both Count 1 and Count 2 by her mother's evidence that the applicant was "quite often under the bedcovers". 4. As to Count 3, the complainant's evidence that the applicant was standing whilst the conduct occurred was inconsistent with the evidence of her mother that the complainant told her that the applicant was sitting on the toilet. 5. It is possible that these particular matters that I have identified in relation to Counts 1, 2 and 3 led the jury to acquit the applicant on those counts, rather than the jury acting on a more generally founded view that it would be unsafe to convict on the evidence of the complainant. Thus, the Crown contended on appeal that there were logical and reasonable reasons why the jury might have returned verdicts of acquittal on Counts 1, 2 and 3 and one of guilty on Count 4, with the result that it cannot be assumed that the jury found the complainant's evidence unreliable as a whole. Count 4 1. There were no similar inconsistencies between the complainant's evidence and the Crown's opening in relation to Count 4, nor between her evidence and any other evidence. Whilst the Crown said in opening that the complainant could not recall the applicant saying anything when the conduct occurred, that was not obviously inconsistent with the complainant's evidence that the applicant said "shh" and that the complainant told him to stop what he was doing. 2. The applicant's ERISP recorded that the complainant told the police that "similar incidents occurred about a further 10 times" but as I noted above (see [24] above) it was not clear whether this allegation related to the Count 4 incident only or to the other alleged conduct of the applicant as well. In evidence, the complainant did not suggest that Count 4-type conduct occurred more than once. If the ERISP allegation related to Count 4, it was thus inconsistent with the complainant's evidence. If it related to all of the sexual conduct, it was inconsistent with her evidence that the Count 1 conduct occurred two or three times, that the Count 2 conduct occurred a couple of other times and the Count 3 and 4 conduct occurred only once. I agree with the applicant's submission on the appeal that the police officer's assertion recorded in the applicant's ERISP about what the complainant had told the police was, although double hearsay, evidence of what the complainant had said (see s 60 Evidence Act 1995 (NSW)). 3. The applicant contended that the complainant gave inconsistent evidence about when the Count 4 incident occurred. He submitted that her description of it as occurring in "winter" raised a question as to whether it did occur because in the winter months (June, July and August) the applicant was not living at the family home. He moved out after the incident in which the complainant's grandfather was injured on 18 May 2007 and only returned at the end of August 2007. 4. In her evidence however the complainant nominated May as a month in which the incident possibly occurred and related her recollection of its timing to the change of her bedding from summer to winter mode. She said that as a matter of practice that change occurred each year when daylight saving ceased and that the Count 4 incident occurred after the change in 2007. As it was clearly open to the jury to draw on its own general knowledge to conclude that daylight saving would have ended before the commencement of June there was in my view no inconsistency or inherent unlikelihood in the complainant's evidence on this topic. 5. The applicant further submitted that the complainant's evidence in relation to Count 4 was unreliable because she said that it occurred after the poles on her bed were taken away and, so the applicant submitted, if the poles had been taken away, the bed would have collapsed. However, the jury was well entitled to take the view that the complainant's evidence was consistent with that part of the poles that was above the bedstead being removed. This was a sensible and obvious explanation for what she said and was supported by apparent joins in relevant places on the poles at the bedhead. These were apparent from the coloured photograph of the bed that was before the jury. 6. The applicant further submitted that the manner in which the complainant described the Count 4 incident in evidence revealed a lack of certainty that penetration occurred. However, I do not consider this to be so. The applicant stated without qualification that she "felt his finger go inside of me". The only possible equivocation was in her following statement "I'm pretty sure it was in my vagina" (see [21] above). In later evidence the applicant explained that apparent equivocation in what I consider to be a satisfactory manner (see [22] above). The 2007 emails 1. A further item of evidence comprised copies of emails passing between the complainant and the applicant in mid-2007. The affection that the complainant shows for the applicant in them is difficult to reconcile with her later complaints about substantially contemporaneous events. It must be borne in mind however that the applicant was aged nine at the time and may, in the words of Gaudron J in M v The Queen at 515, have been "reluctant to resist the offender or to protest and, on that account, reluctant also to complain". Nevertheless the emails constitute a significant part of the evidence which is to be assessed in its totality. 2. I add that the emails are in my view of considerably less significance than the complainant's police interviews in mid-2008 to which I refer below. As well as being a year older, she accepted that during those interviews she felt safe. For these reasons, and because of the features of the 16 August 2008 interview to which I refer below, it is considerably more likely that if the conduct referred to in the present criminal charges had occurred then the complainant would have referred to it in those interviews. Delay in complaint 1. If the evidence to be considered had finished at that point (that is, without evidence of delay in complaint), I would not have concluded that the verdict on Count 4 was unreasonable. As I have indicated, there were particular inconsistencies and discrepancies at the trial in relation to Counts 1, 2 and 3 that may have led the jury to acquit the applicant on those counts without taking a generally adverse view of the complainant's reliability. As a result, the acquittals on Counts 1, 2 and 3 are of limited significance in considering the reasonableness of verdict on Count 4. 2. For the reasons I have given above, none of the particular matters to which the applicant pointed on appeal in relation to Count 4 provided compelling support for his appeal. What to my mind however tips the balance from a view that the jury could have, but need not have, had a reasonable doubt about the Crown's case on Count 4 to one that it should have done so is the evidence of the complainant's delay in complaining. I fully acknowledge the caution with which evidence of this kind must be approached, particularly, as relevant here, in the case of child sexual offences. In my view however the particular circumstances of this case, when taken in the context of the evidence as a whole, should have led the jury to return a verdict of not guilty on Count 4. His conviction on that count is accordingly unsafe and unsound. 3. The complainant first spoke to the police on about 18 May 2007 in connection with her father's infliction of injury on her grandfather (see [26] above). Secondly, she was interviewed by the police on 1 July 2008, at least about the "steak and chips" incident and the "tongue in mouth" incident (see [35] above), the latter having an apparent sexual connotation. 4. Thirdly, she was interviewed by the police on 16 August 2008 (see [36]-[40] above). There are a number of significant features of this interview, as follows. 5. First, the complainant appeared relaxed during the interview, and said in evidence that she was. Secondly, she was prepared to cooperate with the police notwithstanding that she knew that her father would find about what she said. Thirdly, the interview came about because, as the complainant said, she had not told the police "everything" when she spoke to them previously. Fourthly, the interviewing officer noted that the complainant had said that she did not previously tell the police "everything" and indicated that the complainant should "start from the beginning right to the end". Fifthly, the complainant volunteered descriptions of two incidents without being led to them by the police officer. Sixthly, the interviewing officer concluded by asking whether there was anything else that the complainant "would like to tell us today" and this led her to give a description of yet another incident. Seventhly, the complainant did not make any reference to the alleged sexual assaults of which she complained in 2014, notwithstanding that she had complained to the police on 1 July 2008 about the "tongue in mouth" incident which appeared to have a sexual connotation. The complainant referred to this incident again in the interview on 16 August 2008. 6. The complainant gave further statements to the police, on 3 December 2010 and 20 October 2011, about alleged breaches by the applicant of the AVO that was in force (see [41]-[42] above). She did this notwithstanding that she knew that the applicant's conduct of which she informed police "might possibly be a criminal offence". 7. In her evidence-in-chief, the complainant gave two reasons for not complaining earlier. 8. The first was that she was scared. However, this explanation is not easy to reconcile with the fact that any fear of her father she may have had did not deter her from making repeated complaints to the police about serious misconduct of her father, including potentially criminal conduct. 9. Secondly, she said that "when I was younger I didn't understand what was happening was wrong" and she thought "it was just tickling, a game". That explanation however is difficult to reconcile with the threats that she said the applicant made at the time of the incidents (see [10] and [13] above). 10. In cross-examination, the complainant, for the first time, gave embarrassment as a further reason for not complaining earlier. She repeated that in re-examination. It is however difficult to give much weight to that explanation as it was not proffered in evidence-in-chief and was not referred to by the Crown Prosecutor in opening. He referred only to the complainant's fear arising out of the applicant's threats and violence to members of the family. Conclusion 1. My independent assessment of the proceedings at the trial has left me with a reasonable doubt as to the applicant's guilt of the offence charged under Count 4, that being the only offence of which he was convicted. I do not consider that the doubt is one that can be explained by the jury's advantage in hearing and seeing the evidence being given. Whilst there were some inconsistencies in the evidence, and the emails that the complainant wrote in mid-2007 are not easy to reconcile with her evidence, the aspect of the Crown's case that causes me most concern, and leads me to the conclusion that it did not prove its case beyond reasonable doubt, is the evidence concerning the complainant's delay in making complaints and her professed reasons for not doing so. I fully acknowledge the need to take account, as I have done, of the complainant's tender age at the time of the incident and of the police interviews, she only being 10 years of age when the most significant interview took place on 1 July 2008. 2. For these reasons, I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the applicant's conviction of the offence charged in Count 4 of the indictment filed on 20 March 2017. 4. Direct a judgment and verdict of acquittal on that charge. 5. Direct that the applicant be released from custody forthwith. 1. HOEBEN CJ at CL: I agree with Macfarlan JA and the orders which he proposes. My independent assessment of the proceedings at trial has left me with a reasonable doubt as to the applicant's guilt of the offence charged under count 4. I do not consider that the doubt is one that can be explained by the jury's advantage in hearing and seeing the evidence given at trial. 2. GARLING J: I am grateful to Macfarlan JA for setting out comprehensively all of the facts and matters relevant to the determination of this appeal. I will refrain from simply repeating them. 3. As the ground of appeal relied upon is that the verdict is unreasonable or cannot be supported having regard to the evidence, it is necessary that I make my own assessment of all of the evidence adduced at the trial, which I have done. 4. For my part, setting aside any criticism of the Crown case by reference to the issue of the complainant's delay in making her first complaint, I am nevertheless left with a real doubt about the applicant's guilt. The complainant's evidence about the events constituting Count 4 was, in my view, quite unsatisfactory. Her evidence about the terms of her 2007 emails, even for a person of her young age, was unpersuasive. Neither of these features could be explained by the jury being able to see the complainant give evidence, an advantage which I do not have. 5. Accordingly, I agree with the orders proposed by Macfarlan JA. ********** Amendments 22 February 2018 - Coversheet: Change made to Representation field 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: 22 February 2018