Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CJW v R [2018] NSWCCA 80 Hearing dates: 16 April 2018 Date of orders: 04 May 2018 Decision date: 04 May 2018 Before: Hoeben CJ at CL at [1]; Fullerton J at [89]; Davies J at [91] Decision: (1) Leave to appeal granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – conviction appeal – assault with an act of indecency on a person under the age of 16 years – whether jury verdict unreasonable and cannot be supported having regard to the evidence – no reliance placed on inconsistent verdicts – basis for appeal was that the evidence did not support the offence occurring within the narrow timeframe available – submission that date of offending in the indictment an essential element for the Crown to establish – whether timeframe for offending as narrow as asserted by applicant – open to jury to find offence proved beyond reasonable doubt – leave to appeal granted but appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) – s 61M(2) Cases Cited: Cawthray v R [2013] NSWCCA 105 Hawi v R [2014] NSWCCA 83 M v The Queen [1994] HCA 63; 181 CLR 487 R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 SKA v The Queen [2011] HCA 13; 243 CLR 400 Stringer v R [2000] NSWCCA 293; 116 A Crim R 198 Category: Principal judgment Parties: CJW – Applicant Regina – Respondent Crown Representation: Counsel: P Rosser QC/A Mooney – Applicant B Hatfield – Respondent Crown Solicitors: G Betts – Applicant C Hyland – Solicitor for Public Prosecutions File Number(s): 2014/240335 Publication restriction: Non-publication order re the identity of the complainant. Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29 September 2017 Before: Buscombe DCJ File Number(s): 2014/240335 Judgment 1. HOEBEN CJ at CL: Offence and sentence The applicant was found guilty by a jury on 13 February 2017 that between 3 May 2008 and 7 May 2009 at Lake Haven he assaulted CW and at the time of such assault, committed an act of indecency on CW, who at the time was under the age of 16 years, namely 8 or 9 years (count 5). The offence is contrary to s 61M(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 10 years with a standard non-parole period of 8 years. 1. In the trial which concluded on 13 February 2017 the applicant was found not guilty of counts 1 and 4 and the jury were unable to agree on counts 2, 3 and 6. The applicant was re-tried before another jury in May 2017 in respect of counts 2, 3 and 6 was found not guilty of those counts. 2. On 29 September 2017 the applicant was sentenced by Judge Buscombe in respect of count 5 to imprisonment with a non-parole period of 2 years, commencing 29 September 2017 and expiring 28 September 2019, with a balance of term of 1 year expiring 28 September 2020. 3. The applicant seeks leave to appeal from his conviction on the ground that in all the circumstances of the case, the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. Crown case and factual background 1. The Crown case can be summarised as follows: 1. The applicant is the complainant's maternal step-grandfather. As a child the complainant used to spend a lot of time with her grandparents who lived in Lake Haven. Her grandmother ("Nan") passed away on 3 May 2008. From then until the applicant moved away on 3 April 2009 the complainant visited him regularly. She frequently slept over at his house and when she slept over, they shared a bed. The Crown alleged that the applicant had a sexual interest in her. 2. There was an occasion after Nan passed away when only the complainant and the applicant were present at the house in Lake Haven. They were in the applicant's bedroom together. The applicant put his hands into the complainant's underpants and touched her vagina with his finger. This gave rise to count 5 on the indictment. 1. Counts 1, 2 and 3 arose out of one incident (the first incident). Counts 4 and 5 arose out of a separate incident (the last incident). Chronologically, count 6 occurred between counts 1 – 3 and counts 4 – 5. 2. The counts are as follows: Count 1 – Sexual intercourse with a child under the age of 10 years, namely 8 or 9 years. Count 2 – (In the alternative to count 1), assault with act of indecency on a child under the age of 16 years, namely 8 or 9 years. Count 3 – Sexual intercourse with a child under the age of 10 years, namely 8 or 9 years. Count 4 – Sexual intercourse with a child under the age of 10 years, namely 8 or 9 years. Count 5 – (In the alternative to count 4), assault with an act of indecency on a child under the age of 16 years, namely 8 or 9 years. Count 6 – Commit act of indecency towards a child under the age of 10 years, namely 8 or 9 years. The complainant 1. The complainant was aged 17 at the time of the trial. She was born in February 2000. She participated in a police interview on 7 March 2014. The DVD of the interview was played to the jury and marked MFI 3. A transcript of the interview was also provided to the jury (MFI 4). 2. The applicant was Nan's (maternal grandmother's) husband. Nan died in 2008. Before Nan's death when the complainant slept over at Nan's house, she stayed in Nan and the applicant's bed. After Nan died, the complainant continued to stay in the applicant's bed because it allowed her to feel close to Nan. The complainant attended the interview in order to tell police how the applicant, "Pop", used to touch her. It always happened at the house in Lake Haven. The applicant stopped touching her when he moved away on 3 April 2009. 3. The complainant summarised how the assaults began in the police interview. "It all started after my Nan died so he said that he missed Nan and that she, that he used to be able to do stuff to her but he can't anymore and he said that I'm probably the closest thing to him that he can do it to me. And then he started and then he like took my pants off and, and said he, it would feel good and so he started to feel down there with his fingers and then he licked down there and then it would happen a few like other times, like every time I stayed in the same bed as him, he would put his hands down my pants at night." (MFI 4, A.48) Counts 1, 2 and 3 – The first incident 1. In her police interview, the complainant described what gave rise to counts 1, 2 and 3. She was at the applicant's house after school. The applicant told her that her uncle (Uncle R) was at work and that he and she were the only ones at home. The complainant felt "awkward" when the applicant touched her. It happened at night time and they went to bed afterwards. The complainant could not recall what day it was. It may have occurred in the first half of 2010. 2. The complainant described the incident as follows: "Um, that was the first time he did it, and he checked if anyone was home, but no-one was home, and then we were watching TV, I think, I'm not too sure, and then, um, he, he took my pants off, and then he said that it would feel good, and then he, like, licked, like, he would, he said, "It'll feel good, trust me", and then he started licking down there on, on my clitoris". (MFI 4, A.122). 1. It happened in the lounge room. The complainant drew a picture of the room and marked herself sitting on the long lounge. The complainant was watching television with the applicant. Initially, the applicant was also sitting on the lounge, then he got off and sat in front of her. He was wearing a blue robe. The applicant got up and checked the front door to see if there was anyone outside. He returned to the lounge and knelt down in front of the complainant. He told her it would "feel good". The complainant could not recall what pyjamas she was wearing. The applicant removed her pants and her underpants. The applicant did not say anything when he did this and the complainant did not say anything either. The applicant licked the index finger on his right hand so it was wet and he "touched it". The applicant moved his finger "over it a bit". Then he put his tongue "on there" and "moved it from side to side". The complainant felt awkward. She was not sure how the incident ended. She thought she pushed him off. Neither of them said anything (MFI 4, Q/A.136-Q/A.205). Counts 4 and 5 – The last incident 1. The complainant was in the applicant's bedroom, going to sleep. It was around 7.30 or 8.00pm. The complainant thought this incident occurred around the middle of the year, a few months after her birthday. No-one else was in the house at the time. She drew a picture of the applicant's bedroom. She felt the applicant touch her with his fingers. She felt one or two fingers. She did not know which hand he used to touch her. The complainant usually wore a nightie or shorts and a singlet. If it was cold she wore long pants. She drew a picture of the applicant's bed. It was a king-size bed and had one red sheet on it. The bed was covered with a black and red doona. There were two pillows and some teddy bears. Nothing was said while the incident occurred by either the complainant or the applicant. The following morning, the applicant said "Don't tell anyone" (MFI 4,Q/A.53-94, Q/A.103-114). Count 6 – The masturbating incident 1. The applicant told police that the incident which gave rise to count 6 occurred at some point between the first and last incidents. There was an occasion in 2010 when the applicant and the complainant were in the applicant's bedroom. It was about 7.30 or 8.00pm. The applicant was lying on his back on the bed and he removed his underpants. The complainant was lying on her side on the bed, facing the wall. She was wearing pyjamas. She saw the applicant masturbating. He was "going up and down on his penis ... just moving his hand up and down". The applicant climaxed and "semen went everywhere". The complainant rolled over and pretended to go to sleep. The applicant also went to sleep (MFI 4,Q/A.213-241). (It should be noted that the dates in the police statement, given by the complainant, were incorrect. At the time she erroneously believed that Nan died in 2009. It was common ground that Nan died in 2008.) Context evidence 1. One summer the applicant invited the complainant to go with him to a nude beach. He showed her a picture of "naked old people" at the beach. The complainant said that she did not want to go. The applicant appeared to be disappointed by this (MFI 4, Q/A.244-251). Complaint evidence 1. The applicant told the complainant not to tell anyone because he would go to gaol or get in trouble. He also said that she would get into trouble and "because he rode a motorbike, he would, like, come and ask me if I wanted, if I told anyone, and I would say no, because I haven't told anyone". That was why she did not tell anyone before the police interview. Later in the interview, the complainant explained that when they went riding together, the applicant "would just double-check" that she had not told anyone. Then he would change the subject (MFI 4, Q/A.94-96, Q/A.113, Q/A.209). 2. The complainant told her best friend, CB, about what the applicant did to her. The complainant mentioned it years ago, when she was upset. They were at school, walking together to class. The complainant told CB that Pop touched her (MFI 4, Q/A.254, Q/A.275-281). 3. The complainant told her ex-boyfriend, WM, about it one day when they were walking home from his house. She told WM that the applicant "touched [her] and stuff" (MFI 4, Q/A.254, Q/A.282-286). 4. The complainant told her current boyfriend, SO, about what the applicant did to her. She told him while she was going out with WM, towards the end of their relationship. She was best friends with SO at the time. They were in year 8, and she told him near the end of term 2 in 2013. They were in the hall at school. The complainant told SO that the applicant touched her when she was little (MFI 4, Q/A. 254, Q/A.287-296). Complainant's evidence at trial Evidence in chief 1. The complainant had watched the DVD of her interview twice before giving evidence. She watched it in April 2016 and again the week before the trial in 2017. During her examination in chief, she was asked for more details about the incidents described in the interview. In relation to the touching in counts 4 and 5, the complainant's evidence was: "Q. I'm going to take you to the point in the interview where the questioner Shannon was asking you to describe the last time that it happened. Do you remember that point of the interview? A. Yeah. Q. I'm going to ask you some specific questions about that last time that it happened, does that make sense? A. Yep. Q. Just for the jury's benefit, it was at question 76, just after you'd had the document signed, you were asked this question: "Q. And I'll also sign it, okay. So you've told me that he would start feeling down there, what could you feel? A. Just his fingers touching me." Where were his fingers touching you? A. On my clitoris. Q. How did he do that? A. I don't remember. Q. Can you say for how long that he did it? A. I don't remember that either." (T.52.13) 1. The complainant was asked to explain in greater detail the licking incident, which gave rise to counts 1 and 3. "Q. … In relation to that incident, can you remember as you sit there now, anything else about that incident? A. I remember at the beginning that we weren't watching TV but he walked into the room and I remember he was wearing his dressing gown and he asked if I wanted to touch his penis and I said no and then he went and kneeled down in front of me." (T.53.7) 1. When asked about the incident giving rise to count 6, the complainant was not able to provide any further information: "Q. So in terms of the point in time, just for the jury's benefit, it's at 2.11. The end of the question was, "So you've told me about the last time it happened and about the first time." And your answer was, "Um." Then the question is, "Can you tell me about your answer as well the times in between?" This is question 213. Your answer begins, "One time he started to masturbate in front of me once and then he finished and he went to bed" and your answer goes on. So that's the incident that I'm asking you the question about. A. Yep. Q. As you sit there today, can you remember anything else about that incident? A. No." (T.53.18) Cross-examination of complainant at trial 1. The complainant read her written notes from 21 April 2016 and 1 February 2017. These were notes she had written when she watched the DVD of her interview with police. The complainant accepted that her Nan died in 2008, not 2009 as she had previously thought. The complainant agreed that the last time the applicant touched her was in 2009 before he moved away, not in 2010. It also meant that the first time the applicant did something to her was in 2009, not 2010. 2. The complainant was asked a number of questions in order to better establish the timeframe within which the offences were said to have occurred. Her evidence on this issue was: "Q. Would you have a look at your answer to 126? The police officer had asked you what time of the year and you said "I'm not exactly too sure, it would probably be like the start or the middle of the year"? A. Yes. Q. Can you help us a bit more about when it was? A. No, I don't remember. … Q. In 2009 you turned nine? A. Yes. Q. You turned nine on 13 February? A. Yep. Q. Was it before or after your birthday? A. I think it was after my birthday. Q. Just after, a week after, a month after, couple of months after? A. I'm not too sure. Q. Sorry? A. I'm not too sure. Q. You said in the course of that interview which was played yesterday that it happened a number of times, or rather that he touched you a number of times, is that right? A. Yes. Q. One stage you said that every time you stayed overnight, he put his hand down your pants, is that right? A. Most nights, yes. Q. How many times in total? A. I'm not too sure. Q. Two, three four? A. I don't remember. Q. 15, 20, 25? A. Not that much. Q. You told the police that it happened at least five times, is that right? A. Yes. Q. That was in answer to question 210. Just check that if you like? A. Yep. Q. You told the police that on 7 March 2014, is that right? A. Yep. Q. Is that the way you remembered it at the time? A. Yep. Q. You couldn't be any more precise and to say "at least five times"? A. No." (T.65.43-T.66.47) 1. The complainant was asked further questions concerning the timing of the offences. "Q. I'll come back to that in a moment but the first time you say you believe it happened after your birthday and that would be your ninth birthday? A. Yes. Q. How long did it go on for? You know what I'm talking about? This touching that you claimed happened? Was it going for a week or months? A. It would go over a couple of months because it would happen every week. Q. When you say a couple of months do you mean two, three, four or do you mean five, six, seven? A. Like two, three, four months."(T.67.30) 1. After her Nan's death, the complainant was not sure if she stayed at the applicant's house for a night every other weekend. She did not recall if she stayed there during the week or what clothes she took with her. The complainant agreed that she went there to visit the applicant and spent time with him. No-one forced her to go there. Even after the first incident, she continued to visit the applicant and stay over at his house. After the first time she felt "awkward". The complainant denied knowing it was a bad thing but she knew it was not the right thing. Even though the applicant kept touching her, she continued to visit him because "he was [her] Pop and [she] wanted to see him". The complainant missed the applicant when he moved away in April 2009 (T.79.42, T.80.26-.49, T.81.17-.31). 2. The complainant gave evidence about the occasion when she first complained to her mother. She made that complaint to her mother at a time when there was a quite a lot happening in her life and she was subject to many stressors. She was having troubles with her biological father. She was being bullied at school. She had a boyfriend, who was self-harming. The complainant agreed that she had made a complaint to her mother when they were in the middle of a "big argument". 3. Her evidence on this issue was: "Q. You turned 14 on 13 February 2014, didn't you? A. Yes. Q. In any event, with all these things - these things had been going on in your life for some time had they? A. Yes. Q. You weren't getting on that well with mum, is that fair to say? A. We didn't really fight a lot but we had a big argument that day. Q. I mean, you were 13 and 14 years old and things were difficult? A. Yes. Q. Before the night that you said to mum "[C] touched me" she had asked you "Has [C] ever touched you?" hadn't she? A. I don't think it was the night before. It would have been like maybe like a year before. Q. Well, she'd asked you more than once if [C] had ever touched you, hadn't she? A. Yes. Q. On the night that you said to your mum "[C] touched me" you knew that by saying that it would make a big impact on your mother, didn't you? A. Yes. Q. You said it in the course of a big argument with your mum? A. Yes. Q. With all of these other things happening in your life? A. Yes. Q. You still didn't want to go to the police, did you? A. No. Q. But mum insisted? A. Yes. Q. I'm wondering if this is what happened at the - you got carried away by the story? A. No. Q. You've told mum something and now you've got to come up with a story? A. I was scared to come forward to tell mum because I didn't know how she was going to react about it. Q. I'll just make it clear now, the fact is that your grandfather [C] never touched you sexually at all, did he? Did he? A. He did." (T.69.25-T.70.23) 1. That line of cross-examination was continued as follows: "Q. The time you were speaking to Ms Hogan and to the police, you have decided you've got to come up with some allegations, is that the fact of it? A. No. Q. You decided to place those allegations in the year after your nan died, is that right? A. No because that's what happened. Q. You decided, I suggest, to say that they happened in the year after your nan died and to say that they went on for a few months in that year? A. Yes. Q. That they finished when he moved to Muswellbrook at the end of the year, is that right? A. Yep. Q. Started sometime after your ninth birthday, is that right? A. Think so, I don't remember. Q. You told the police about that timetable, because you believed that he moved to Muswellbrook at the end of 2009, is that right? A. Yes, but I don't remember exactly when he moved there. Q. I'm going to suggest to you that the evidence is that he moved to Muswellbrook late in March 2009. If that's the case, what do you say about that? A. I don't know. Q. If that is the case, could I suggest to you that what you've done is picked the wrong year in which to place your allegations. What do you say to that? A. I don't remember, I don't remember exactly what year it was. Q. I'm going to suggest to you that he wasn't living on the Central Coast from end March 2009? And that he could not have been living in the house at xxxx Close through that year when you say that he was committing sexual acts against you? A. I know it all happened— … Q. You found yourself having to make up a story, didn't you? A. I couldn't hear that? Q. You found yourself having to make up a story, didn't you? A. No, I found myself trying to find out what year it was because I couldn't remember. Q. You picked the wrong year, didn't you? A. I don't know, I don't remember." (T.87.49-T.89.4) Evidence of complainant's mother 1. The complainant's mother was Nan's oldest daughter. The complainant's mother agreed that the complainant used to start off sleeping in her own room at Nan's house and then end up in bed with Nan and the applicant. She did not know if this sleeping arrangement continued once Nan died. After Nan passed away in 2008, the applicant, Uncle R and Aunt K remained living in the house. The complainant used to stay over at the house three or four times a week. On those occasions, the applicant was responsible for getting her to school. Sometimes she would drive the complainant to the applicant's house. 2. The complainant's mother gave evidence about a barbeque which she had hosted about a year after Nan passed away. The applicant and the complainant had attended that function, as did a number of family and friends. A couple of weeks after the party, some of the people who had attended told her that the applicant had kissed the complainant on the neck at the party and that the complainant had sat on the applicant's lap. The applicant's mother said that this behaviour was not uncommon and that the applicant and the complainant were always affectionate towards each other. 3. The complainant's mother gave evidence of an occasion in February 2014 when she and the complainant were arguing about an iPod. The complainant was then aged about 14. The complainant was very upset and the mother asked why. The complainant said that nothing had been right since Nan died and that she had been bullied at school, and was having problems with her father. She was also dating someone who was self-harming. Their conversation continued for about half an hour and towards the end, the mother told the complainant that she could say anything to her. The complainant responded that she was worried that her mother would be angry or disappointed with her. 4. It was in the course of that conversation that the complainant told her that the applicant had touched her "down there". The complainant was crying and distressed at the time. The mother asked if the applicant had asked the complainant to touch him. The complainant said that the applicant said that she could touch him if she wanted to. The touching happened in the bedroom and the lounge room at Nan's house after she died. The complainant said it happened a lot. There was no-one else present during this conversation between the complainant and her mother. The mother had once previously asked the complainant whether the applicant had touched her and the complainant had said "no". 5. The complainant's mother suggested that they go to the police, but the complainant did not want to get the applicant into trouble and she did not want him to go to gaol. The following day, the mother rang the police station and she and the complainant attended and spoke to a police officer. 6. It was the mother's recollection that the applicant moved from Nan's house to Muswellbrook in early April 2009. The mother and her partner helped him move and they stayed over in Muswellbrook for a couple of days. The mother remained in contact with the applicant after he left Lake Haven. He visited her often and she and the complainant used to visit him in Muswellbrook. In cross-examination the mother agreed that the complainant and the applicant had remained in contact after the applicant moved away. Other witnesses 1. WM was aged 17 at the time of the trial. He met the complainant when they were both in year 7 at high school in about 2012. They started dating during the second term of that year and dated for about three months. When they had been dating for about a month, there was an occasion, after school, when WM and the complainant were in WM's bedroom. The complainant told WM that her pop had "sexually harassed her" when she was nine or ten years old. "[H]e used to say to her to be naked in bed with her pop when she went over for sleepovers. That he touched her and licked her vagina and this happened every time that ... she used to go over there for sleepovers". The applicant used also be naked. The complainant was scared and sad when she told WM what had happened. They spoke for about ten minutes about it and then the complainant tried to change the conversation. The complainant told WM not to tell anyone. They only spoke about this once. 2. Aunt S is the complainant's mother's sister. She lived in the house at Lake Haven on and off until she moved out in 2004 when she was aged 21. When the complainant was aged somewhere between two and four, she used to sit on the applicant's lap. Aunt S saw the applicant rubbing his hands up and down the complainant's thigh. He had one hand on the complainant's torso and he rubbed his other hand up and down her inner thigh, all the way to her vagina. It lasted about five minutes. He used to do this "a lot". Aunt S did not see the applicant touch the complainant's vagina. Aunt S did not tell anyone about seeing the applicant touching the complainant because she saw him doing the same thing to his daughters. She agreed that the applicant used to tickle his daughters and that he was a physically affectionate person. 3. Uncle R was the complainant's uncle. He is the younger brother of the complainant's mother. He moved into the house at Lake Haven when he was aged 11. There was an occasion in 2005 when Uncle R came home from work and noticed the applicant sitting on a chair at the end of the dining room. The complainant was sitting on the applicant's lap. The applicant had his right hand on the complainant's thigh and he was rubbing it up and down her leg. The complainant was wearing a short dress. The applicant's thumb was on top of the dress and his index finger was underneath the dress, in the region of her upper thigh. The applicant was wearing black shorts. The touching continued for a few minutes while the applicant had a casual conversation with Nan. Uncle R saw this touching happening on a number of occasions. 4. After Nan died in May 2008, Uncle R was still living at the home in Lake Haven. The applicant and Aunt K also lived at the house. Uncle R recalled seeing the complainant sitting on the applicant's lap after Nan's death. Uncle R had seen the applicant touching his daughters in the same way. He thought it was "normal but creepy". 5. At the time of the trial, Janine Riley had known the complainant's mother for about 10 years and she knew the complainant. In 2008, she used to see the complainant and her mother regularly. There was an occasion when Ms Riley attended a child's birthday party at the mother's house. It was around November or December, after Nan died. Also in attendance were the complainant and the applicant. 6. Ms Riley was sitting outside in the pergola area when she noticed the applicant pulling the complainant onto his lap. The complainant was about eight at the time. The applicant put his arms around the complainant in a cuddling motion, "like when you're in a relationship and ... you sit on your boyfriend's lap and they put their arms around you and pull you closer". The applicant kissed the complainant on her neck. The kiss lasted for a couple of seconds. It was a "tender kiss that lasted a bit longer than what it sort of should have ... it made [Ms Riley] feel really uneasy". The applicant held the complainant on his lap for a while and then she got off and went to play. Two weeks after the party, Ms Riley saw the complainant's mother at the shopping centre and spoke to her about the party. 7. Detective Senior Constable Sarah Murphy (DSC Murphy) was the officer in charge of this investigation. She worked in the child abuse squad. The complainant and her mother first spoke to police on 19 February 2014 and the complainant was interviewed on 7 March 2014. During the interview, the complainant mentioned that she had spoken to her friend, CB, about the matter. DSC Murphy contacted CB who did not wish to make a statement. DSC Murphy made inquiries in relation to the complainant's boyfriend at the time, SO. She was unable to obtain a statement from SO. Records from the Roads & Maritime Services (RMS) in relation to the applicant showed that he lived at Lake Haven between 17 November 2004 and 6 May 2009. He then lived in Muswellbrook until 26 May 2010. RMS records are based on when people notify RMS of a change in address. On 15 August 2015 the applicant voluntarily attended the police station and was charged in relation to this matter. The applicant's case at trial 1. The applicant's case may be summarised as follows. 2. The applicant did not have a sexual interest in the complainant. He never touched her in a sexual way. He was an affectionate man who showed affection towards the complainant in the same way that he showed affection towards his natural daughters. 3. The applicant gave evidence in the trial. He was born in 1957. At the time of the trial, he lived in Muswellbrook with his new wife. He was previously married to Nan. He and Nan met in 1995 and were married in 1997. When they met, he had two daughters of his own, RS and KG, and Nan had four children of her own, including the complainant's mother. The applicant, Nan and her four children lived together. The applicant's children did not live with him but they visited regularly. 4. The complainant lived in the same house as the applicant and Nan from when she was born until she was aged about five. The applicant played an active role in her life. They had a close bond. The complainant's mother returned to school after the complainant was born so Nan played a big part in the complainant's upbringing. The complainant and her mother moved out of the Lake Haven house in about 2005 or 2006. 5. After the complainant and her mother moved out, the complainant was a regular visitor to the Lake Haven house. She had her own bedroom, which was bedroom number two. She used to sleep in her bedroom overnight and in the morning she would wake up and climb into bed with Nan and the applicant. The complainant used to ask the applicant if she could stay over at their house. The applicant did not instigate the sleep overs. 6. In 2005 Uncle R worked as a "trolley boy". The applicant used to finish work at 3pm. He was asked about an incident described by Uncle R, when he was alleged to have rubbed the complainant's thigh up to her vagina. The applicant denied this. The applicant said that the complainant used to sit on his right knee and he would have his arm around her. He used to pat the outside of her leg on her knee area. The applicant denied frequently touching the complainant's inner thigh and he denied having a sexual interest in her. 7. The applicant was asked about an incident described by Aunt S, when he was alleged to have rubbed the complainant's thigh towards her vagina, whilst sitting on the front porch. He denied that this occurred. The applicant agreed that he used to sit on the porch in a wrought iron chair, but only when he was smoking a cigarette. The complainant did not sit on his lap on the porch, because he did not want children near the cigarette smoke. 8. After Nan died, the applicant, Aunt K and Uncle R continued to live in the Lake Haven house. Aunt K moved out of the house three or four months later. The applicant still got on well with the complainant and he loved her. The complainant visited him about once a week or once a fortnight. She always visited on weekends and sometimes stayed over. In cross-examination he agreed that he saw the complainant more than a couple of times a week. She never stayed over at his house during the week because he left for work at 6.00am and there was no-one to take her to school. 9. When the applicant used to stay over, she slept in her own bed. Mostly she stayed in her own bed, but "on occasion" when the applicant woke up in the morning, the complainant was in his bed. He did not recall waking up in the night when the complainant got into the bed. He did not recall her asking permission to sleep in his bed with him. On the first occasion when he woke up in the morning to find the applicant in his bed, the applicant asked the complainant "You came into poppy's bed?" and she answered, "yeah, cause I woke up and I was missing nan so I came in". The applicant told the complainant that was fine. Every time the applicant woke up and found the complainant in his bed, he asked if she was worrying about Nan again and she said "yeah". The applicant did not tell her that she should not come into his bed without waking him. He denied that he wanted the complainant to sleep at the house because he was interested in her sexually. He denied touching the complainant in a sexual way after Nan died. 10. He remembered attending a barbeque where he met Ms Riley. The applicant remembered the complainant sitting on his lap at the barbeque but then said he did not have a memory of it. The applicant had kissed the complainant on her neck many times, but denied kissing her in a sexual way. He used to kiss her neck and rub his nose into her neck to tickle her. He did not recall kissing the complainant on the neck while they were at a barbecue. He denied kissing the complainant in the way that he would kiss his wife. 11. The applicant denied inviting the complainant to attend a nude beach. He denied saying that he would like her to take her clothes off, but she did not have to do so. The applicant said the complainant was in earshot when his daughter and his daughter's mother "were laughing about [him] going to sleep on a nudist beach". He denied taking part in that conversation beyond laughing. (T.159.48-T.160.13). She was about 10 years old at the time. 12. The applicant moved to Muswellbrook in April 2009 because his daughters lived there. He moved to Muswellbrook on Monday 3 April 2009. A number of his family and friends assisted with the move. 13. After he moved, the applicant stayed in contact with the complainant via Facebook messenger. The applicant used to ride his motorbike to visit the complainant on the weekend. The complainant was interested in the bike and went for a couple of joy rides with him. The complainant had also ridden on the bike before he moved away. He denied using the bike as a form of reward for the complainant or trying to win her trust. He denied speaking to her after they had gone for a ride, and telling her not to tell anyone what he had done to her. 14. The applicant denied ever touching the complainant sexually. He denied masturbating in her presence. He denied asking the complainant to touch him in a sexual way. He denied inviting her to go to a nude beach. He denied that there was an evening when he and the complainant were lying next to each other on his bed, when he removed his underwear and masturbated next to her. He denied rubbing the complainant's clitoris or licking it. He did not own a set of red and black coloured sheets. He had a queen size bed. 15. KG is the applicant's younger daughter. At the time of the trial, she resided in Muswellbrook with her husband and children and had been there for about 10 years. Her parents (the applicant and her mother) were divorced when she was a child. She saw the applicant every second weekend from the age of 10 until she was an adult. She described him as "rather affectionate". She sat on his lap until she was aged about 15 or 16 years old. She used to wrestle with the applicant. The applicant used to tickle her and her sister. This affection did not make KG feel uncomfortable and she did not think there was anything sexual behind it. The applicant had the same type of physical interaction with the complainant. The applicant touched the complainant on the outside of her leg, when she sat on his lap. The applicant did not touch the complainant on the inside of her leg from her knee to her vagina. The applicant kissed the complainant on the side of her face. He did not use his nose and poke it around KG's face. 16. RS is the applicant's older daughter. She used to live in Muswellbrook. At the time of trial, she lived in Kariong with her husband and children. Her parents separated when she was about 13 years old. She maintained contact with the applicant after the separation. She gets on well with the applicant. He is very affectionate. He used to kiss and cuddle her as a child, like a normal father. She used to sit on his lap and he patted her leg or rubbed her knee. The physical contact did not make her feel uncomfortable and she did not think it had anything sexual behind it. He never touched her leg on the inside up to the vagina. The applicant had normal interactions with the complainant. He was affectionate towards her. She sat on his knee and sometimes he patted her knee or the outside of her leg. She did not see the applicant touch the complainant on the inside of her leg between her knee and her vagina. THE APPEAL 1. Senior counsel for the applicant expressly eschewed any reliance upon inconsistent verdicts as a basis for the appeal. He submitted that the jury verdict was unreasonable and not supported by the evidence because of the narrowness of the timeframe within which the complainant alleged that the offending occurred. He submitted that the timeframe available for the offending was approximately seven weeks, i.e. 13 February 2009 until 3 April 2009. This was because 13 February was the date of the complainant's birthday and 3 April 2009 was the date on which the applicant left the Lake Haven property for Muswellbrook. In choosing those markers, the applicant relied upon the evidence of the complainant that all of the offending occurred in the year following her Nan's death, after her birthday, at a time when the applicant was residing at the Lake Haven property. 2. In particular, the applicant relied upon the following questions and answers from the police statement: "Q60 … And do you know when the last time it was that it happened? A. Mmm, no I'm not too sure. Q61 Mmm, so what year did you think, did you say? A. It would have finished in 2010 because he had to move off the Central Coast. Q62 Um, do you know what time of year that would have been? A. Probably the middle of the year. Q63 And how do you know that? A. Because my birthday's at the start of the year and it was a few months after that." (MFI 4) 1. While accepting that, as a general rule, allegations as to dates in an indictment are not of the essence (Stringer v R [2000] NSWCCA 293; 116 A Crim R 198; Cawthray v R [2013] NSWCCA 105) the applicant submitted that a review of the authorities in those two cases made it clear that issues arising from the evidence in a particular trial may make the date or range of dates set out in the indictment an essential element which has to be proved beyond reasonable doubt. The applicant submitted that this was one of those cases. 2. The applicant submitted that the conduct of this trial made it incumbent upon the Crown to prove that the offences charged, and in particular the last incident, occurred within that narrow range of dates. 3. In that regard, the applicant noted that the Crown accepted as the final date of the period for the alleged offending as 7 May 2009, being the date on which notification was received by the RMS. The applicant submitted that, as a matter of practicality, there was no challenge to his evidence that the actual date was 3 April 2009. 4. The applicant submitted that insofar as the starting point was concerned, the complainant asserted a sequence of events based upon the death of her grandmother which in fact occurred on 3 May 2008. Throughout the police interview, the complainant (on the mistaken basis that her grandmother had died in May 2009) located all of the offending in 2010, commencing after her birthday of that year. In cross-examination she readily accepted the adjustment of the years necessary upon the correction of the date of death. She specifically confirmed in testimony at trial that the offending commenced in the year after her grandmother died. She also agreed that the offending extended over a period of 2 – 4 months, with the last occasion occurring about the middle of the year. 5. The applicant submitted that the complainant's evidence of the sequence of events provides an extremely narrow window of no more than seven weeks for all the offending, i.e. between her birthday in 2009 (13 February) and the applicant's departure from the property where the offending was alleged to have taken place and moving to Muswellbrook (13 April 2009). The applicant submitted that the evidence of the complainant as to the offending and the time span over which it occurred was inconsistent with such a narrow window and consequently, a jury acting reasonably, should not on the evidence have been satisfied beyond reasonable doubt that the conduct, the subject of count 5, occurred at a time when he was still resident at Lake Haven. 6. The applicant submitted that his argument was not a technical one, but that the narrow seven week window went directly to the reliability of the complainant. He submitted it was not simply that she gave evidence of a single occasion, which gave rise to counts 4 and 5. Her evidence as to those matters was given as part of a sequence which began with the events giving rise to counts 1 – 3, sometime after her birthday in 2009. The applicant noted that in her police statement she referred to at least five incidents covering a two, three or four month period. The applicant submitted that this evidence placed the offending well outside the seven week window and went directly to the reliability of the complainant. The applicant submitted that in those circumstances, it was entirely unreasonable for the jury to accept that the events giving rise to count 5, being the last of the sequence, occurred during that seven week window. 7. The applicant submitted that the basis for his submission that time was of the essence in this case, was the way in which the complainant formulated her complaints and if that formulation was accurate, the events giving rise to count 5 simply could not have occurred within the seven week window. The applicant submitted that the jury could not reasonably have fitted the complainant's evidence as to the timing of the final incident within that very narrow window. Consideration 1. The manner in which this Court approaches an appeal of this kind is stated in M v The Queen [1994] HCA 63; 181 CLR 487 and SKA v The Queen [2011] HCA 13; 243 CLR 400. In SKA the plurality (French CJ, Gummow and Kiefel JJ) said: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." … 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."" 1. In Hawi v R [2014] NSWCCA 83 Bathurst CJ (with whom Price and McCallum JJ agreed) (at [308]) explained the application of the test of whether a verdict of guilty is unreasonable: "308 It is not enough for the verdict to be unreasonable that a review of the evidence shows that it was open to the jury to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]. However, it is equally clear that it is not sufficient that there was evidence on which a jury could convict. That was made clear in M, cited in SKA at [13]. If, after giving full weight to the primacy of the jury as the fact finder, 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 that doubt, that the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 (MFA) at [26] and [55]-[56])." 1. When considering the complainant's evidence, it is important to keep in mind her age at the time of the offending, her age when she made the police statement and her age at trial. She was 9 when the alleged offending occurred; 14 when the statement was made and was about to turn 17 when giving evidence in the trial. The perceptions of a 9 year old are different to those of an adult and there was a significant effluxion of time between the offending and both the police statement and the trial. Moreover, when considering the complainant's reliability, it should also be noted that until her cross-examination at trial, she was unaware that she was mistaken in the police statement as to the time of her grandmother's death. She was not assisted in any way at the time of the interview as to other relevant dates. 2. Against that background, the applicant has somewhat overstated the precision with which the "narrow window" can be established. There is no real difficulty with identifying when, according to the complainant, the offending ceased. In Q/A.45 of the police statement, the following was said: "Q.45 Okay, so when was the last time that he sexually touched? A. Um, um, I'm not too sure but he moved away. That's sort of when it finished." (MFI 4) The evidence concerning the commencement of the offending is, however, much less clear. 1. The only reference to her birthday in the police interview was at Q/A.60-Q/A.63 (set out at [61] hereof). That evidence is not to the effect that the offending commenced after the complainant's birthday. The answer was given in the context of identifying when the last episode of offending occurred. When the complainant was asked what time of year the last episode of offending occurred, she responded "Probably in the middle of the year". When she was asked how she made that estimate, she responded "Because my birthday's at the start of the year and it was a few months after that". The effect of that evidence goes no further than an assertion by the applicant that the last episode of offending occurred before the applicant left the Central Coast which the complainant estimated to be about the middle of the year. When asked to explain that estimation she did so by reference to a few months after her birthday. 2. In the police statement when asked about when the offending first occurred (Q.125) the complainant's responses were "I don't know". "Q.126 Okay, again do you know what time of year or … A. I'm not exactly too sure. It will probably be, like, the start or the middle of the year." (MFI 4) 1. When asked about those answers at trial, the following evidence was given: "Q. Can you help us a bit more about when it was? A. No, I don't remember. Q. In 2009 you turned nine? A. Yes. Q. You turned nine on 13 February? A. Yep. Q. Was it before or after your birthday? A. I think it was after my birthday. Q. Just after, a week after, a month after, couple of months after? A. I'm not too sure. Q. Sorry? A. I'm not too sure." (T.65.48-T.66.14 and set out at [25] hereof) 1. On the next occasion the matter is raised, the question is put in leading form on the assumption that the offending started after her ninth birthday: " Q. I'll come back to that in a moment but the first time you say you believed it happened after your birthday and that would be your ninth birthday? A. Yes. Q. How long did it go on for? You know what I'm talking about? This touching that you claimed happened? Was it going for a week or months? A. It would go over a couple of months because it would happen every week. Q. When you say a couple of months do you mean two, three, four or do you mean five, six, seven? A. Like two, three, four months." (T.67.30 and set out at [26] hereof) 1. Those questions and answers provide the foundation for the start point of the "seven week window" which is the basis of the applicant's submission. Significantly, the complainant in the police interview only gave the timing of the last incident by reference to her birthday. She did not relate her birthday to the commencement of the offending. At trial she was asked in leading form to nominate whether the offending commenced before or after her birthday. Importantly, her ninth birthday was not an event that she raised in terms of anchoring the occurrence of the first incident to any approximate time. Her responses are very qualified and in no way assert a certain or clear recollection. The first answer is prefixed by the words "I think" and when asked to estimate how long after the birthday the first incident occurred, the complainant's response is "not too sure, not too sure". 2. Given the very qualified nature of the complainant's responses and the elapse of over eight years since the alleged incident, I regard that evidence as an uncertain basis for the applicant's fundamental submission, i.e. that the offending must have occurred within a "seven week window". Importantly, the link between her ninth birthday and the commencement of the offending was never a matter volunteered by the complainant. 3. There must be similar reservations when one has regard to later evidence in the trial: "Q. You decided to place those allegations in the year after your nan died, is that right? A. No because that's what happened. Q. You decided, I suggest, to say that they happened in the year after your nan died and to say that they went on for a few months in that year? A. Yes. Q. That they finished when he moved to Muswellbrook at the end of the year, is that right? A. Yep. Q. Started sometime after your ninth birthday, is that right? A. Think so, I don't remember." (T.88.3 and set out at [30] hereof)) 1. Again the complainant's response, when compared to earlier answers, lacks any degree of certainty in relation to the asserted link between the occurrence of the first incident and the complainant's ninth birthday. 2. On that state of the evidence, it would not be open to the jury to find that any offending occurred after the applicant had left the Central Coast. The evidence would certainly not preclude the jury finding that the offending occurred earlier than the complainant's ninth birthday. Given the highly qualified nature of the responses, it would have been open to the jury to so find. 3. In the alternative, the applicant's "seven week window" even if established, would still provide ample time for the offending to have occurred. Making an appropriate allowance for the complainant's age at the time when the offences are said to have occurred, her appreciation of time based on her recollection is unlikely to have been as precise as that of an adult. In that regard, the complainant's estimate of the length of time over which the offending took place as "two, three or four months" is not necessarily inconsistent with the "seven week window". This is particularly so when there was evidence to the effect that the alleged offending occurred on approximately five occasions. The evidence of the complainant's mother was that the complainant was a frequent visitor to the applicant, attending his house approximately three times per week. 4. There is a significant difference between the facts of this case and those in Cawthray v R and R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34. In Cawthray the complainant described the dates and circumstances of the offending in terms which, when shown to be incorrect, placed considerable doubt upon her testimony. 5. R v Kennedy was a case where the complainant's lack of reliability as to the date upon which she said the offence occurred also went directly to her reliability as to whether it had in fact occurred. In that case, the complainant gave evidence that she was 100 per cent sure that the offence was committed after the live telecast of the Royal Wedding in 1981. 6. The difficulties relied upon by the applicant in relation to the occurrence of the events in count 5 do not rise to the level of those described in Cawthray v R and R v Kennedy. The complainant in this case did not insist that count 5 occurred on a particular date that was objectively unlikely, nor did the complainant give evidence of a set of calculations as to timing that she insisted were accurate. Her evidence was that the first and last incidents occurred while the applicant was still living on the Central Coast. Her description of when the first and last incidents occurred and the duration of time between them was not given with certainty. When considered together the complainant's account was simply that the offences were committed against her by the applicant in his home at Lake Haven in the year following the death of her grandmother when he was living there. The jury's advantage in seeing the complainant when she gave her evidence, both in the police statement and when giving evidence at trial, should also be given proper weight. 7. On the totality of the evidence, I am not left with a doubt as to the guilt of the applicant based on inconsistencies in the complainant's description of when the matters in count 5 occurred. No other reason why the verdict of guilty in relation to count 5 is unreasonable, has been relied upon by the applicant. To some extent the complainant's account was corroborated by WM. Apart from the complainant's imprecision as to dates, her evidence was otherwise not affected by discrepancies and inaccuracies. Her summary of what had occurred at MFI 4, Q/A.48 of the police statement (set out at [10] hereof) was entirely volunteered and is particularly poignant and carries considerable force. The jury, of course, was in the best position to assess that and other evidence. 8. Accordingly, I am not persuaded that the jury's verdict in relation to count 5 was unreasonable and cannot be supported having regard to the evidence. This ground of appeal has not been made out. 9. The orders which I propose are: 1. Leave to appeal granted. 2. The appeal is dismissed. 1. FULLERTON J: Having considered for myself the evidence adduced at trial going to proof of the applicant's guilt of count 5, and after considering the analysis Hoeben CJ at CL has applied to that evidence in the context of the applicant's challenge to jury's verdict as unreasonable, I am also satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. 2. I agree the leave to appeal should be granted and the appeal dismissed. 3. DAVIES J: I have read the judgment of Hoeben CJ at CL. I agree with his Honour's reasons and the orders he proposes. 4. As his Honour has demonstrated, the evidence did not support the applicant's submission that the offending occurred in a seven week period between the complainant's ninth birthday and the applicant moving to Muswellbrook in April 2009. The latter date certainly marked the end of the period but the highest the case could be put as to a certain commencement date was that the offending occurred in the year after the death of the complainant's nan, that is, during 2009. 5. Even if, however, the period was the seven week period from the complainant's ninth birthday to the date the applicant moved to Muswellbrook, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty, having regard to the evidence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2018