Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: White v R [2018] NSWCCA 156 Hearing dates: 14 May 2018 Decision date: 27 July 2018 Before: Beazley P at [1] Button J at [2] Fagan J at [231] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – conviction appeal – child sexual assault – guilty verdict on single count in context of multiple acquittals – conviction said to be unreasonable and unable to be supported having regard to the evidence – asserted weakness of evidence of complainant – assertedly not open to jury to be satisfied that the offence occurred without the consent of the complainant and with knowledge of her state of mind – detailed analysis of evidence – rational and logical basis for differentiation of count 7 open to jury – satisfaction of aggravated offence open to jury – appeal dismissed Legislation Cited: Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) Cases Cited: Haines v R [2018] NSWCCA 11 Irwin v The Queen [2018] HCA 8 M v the Queen [1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 213 CLR 606 The Queen v Baden-Clay [2016] HCA 25; (2016) 258 CLR 308 Category: Principal judgment Parties: Shawn Raymond White (Applicant) Regina (Respondent) Representation: Counsel: M Avenell (Applicant) E Balodis (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/241652 Publication restriction: Non-publication order in relation to anything that might identify the complainant. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 11 August 2017 Before: North DCJ File Number(s): 2014/241652 Judgment 1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Button J. I agree with his Honour's reasons and proposed orders. 2. BUTTON J: Introduction 1. Between 6 and 13 February 2017, Mr Shawn Raymond White (the applicant) stood trial before his Honour Judge North and a jury of twelve in the District Court of New South Wales at Dubbo. 2. The indictment contained 11 counts, all of them pertaining to sexual offences that he had allegedly committed against the complainant, a young girl who was at the relevant times aged 12 or 13 years, and to whom I shall refer by the pseudonym Cathy. A number of alternative counts that did not appear on the indictment were also left to the jury. I shall discuss in detail the counts left to the jury shortly. 3. At the conclusion of the trial, the jury returned a verdict of not guilty on all counts except count 7. That count alleged that, between 18 December 2013 and 14 July 2014, the applicant had sexual intercourse with Cathy without her consent, knowing that she was not consenting to that sexual intercourse, in circumstances of aggravation constituted by her age. 4. His Honour subsequently sentenced the applicant to imprisonment. Because there is no application for leave to appeal against sentence, the details of that need not be recounted, except to say that the hearing of the appeal took place in May 2018, only three months before the non-parole period imposed upon the applicant was due to expire. Ground of appeal 1. The following single ground was notified and pressed: The verdict of guilty on count 7 is unreasonable and cannot be supported having regard to the evidence, in particular considering the not guilty verdicts on all other counts and alternative counts. 1. Because the ground is a question of mixed fact and law, the applicant requires leave: see s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and Haines v R [2018] NSWCCA 11. In my opinion, because of the importance of the question of whether his single conviction is sustainable, leave to appeal should be granted. The indictment 1. As I have said, the indictment contained 11 counts. 2. Count 1 alleged sexual intercourse, the applicant knowing that Cathy was not consenting, in circumstances aggravated by her age: s 61J(1) of the Crimes Act 1900 (NSW). An alternative count was left to the jury of sexual intercourse with a person under the age of 16 years: s 66C(1) of the Crimes Act. 3. This count and its alternative related to the applicant allegedly engaging in digital/vaginal penetration of Cathy during a camping trip before Christmas 2013 at which each of them were present, along with some of the sons of the applicant. 4. Count 2, count 3, and count 4 were all alleged to have occurred on the one occasion at a shed in Wagga Wagga at which the applicant conducted a car detailing business. I shall refer to that as "the first shed incident". 5. Count 2 alleged indecent assault, aggravated by age: s 61M(2) of the Crimes Act. It was alleged that, after the applicant collected Cathy from school, he gave her some flowers, took her to the workshop, and there touched her breasts. 6. Count 3 alleged sexual intercourse without consent in circumstances of aggravation, that being the age of Cathy: s 61J(1) of the Crimes Act. The alternative to count 3 alleged simple sexual intercourse with a person under the age of 16 years: s 66C(1) of the Crimes Act. This count and its alternative related to the applicant allegedly engaging in digital/vaginal penetration of Cathy. 7. Count 4 alleged sexual intercourse without consent, aggravated by the age of Cathy: s 61J(1) of the Crimes Act. The alternative to count 4 alleged simple sexual intercourse with a person under the age of 16 years: s 66C(1) of the Crimes Act. This count and its alternative alleged the applicant engaged in penile/vaginal penetration of Cathy. 8. Count 5, count 6, and count 7 were also said to have arisen from the one occasion, and relate to what I shall call "the second shed incident". 9. Count 5 alleged indecent assault, aggravated by age: s 61M(2) of the Crimes Act. It was alleged that Cathy was at the workshop of the applicant and he touched her breasts. 10. Count 6 alleged sexual intercourse without consent, aggravated by age: s 61J(1) of the Crimes Act. Its alternative alleged simple sexual intercourse with a person under the age of 16 years: s 66C(1) of the Crimes Act. This count and its alternative related to the applicant allegedly engaging in digital/vaginal penetration of Cathy. 11. Count 7 alleged sexual intercourse without consent, aggravated by the age of Cathy: s 61J(1) of the Crimes Act. Its alternative alleged simple sexual intercourse with a person under 16 years: s 66C(1) of the Crimes Act. The primary count alleged the applicant engaged in penile/vaginal penetration of Cathy in the absence of her consent. Cathy told the applicant that "she did not like that, she was too young and that it was not okay" (trial transcript (TT) 6.48). 12. A verdict of guilty having been returned on count 7, of course no verdict was taken on its alternative. 13. Count 8 and count 9 were also said to have arisen from the one occasion, and relate to what I shall call "the third shed incident". 14. Count 8 alleged sexual intercourse without consent, aggravated by age: s 61J(1) of the Crimes Act. This count related to the applicant allegedly engaging in digital/vaginal penetration of Cathy in the absence of her consent. Its alternative alleged simple sexual intercourse with a person under the age of 16 years: s 66C(1) of the Crimes Act. 15. Count 9 alleged sexual intercourse without consent, aggravated by age: s 61J(1) of the Crimes Act. Yet again, an alternative of simple sexual intercourse with a child was left to the jury: s 66C(1) of the Crimes Act. In a nutshell, the Crown case was that the applicant engaged in penile/vaginal penetration with Cathy when he knew that she was not consenting. 16. Count 10 alleged that the applicant caused or procured Cathy, a person then aged 13 years, to be used for the production of child abuse material: s 91G(1)(b) of the Crimes Act. The Crown case was that Cathy received a number of messages from the applicant, requesting intimate photos of her body. 17. Count 11 alleged the applicant engaged in conduct which exposed Cathy, a child aged 13 years, to indecent material with the intention of making it easier to procure Cathy for unlawful sexual activity with himself: s 66EB(3) of the Crimes Act. The Crown case was that the applicant sent Cathy a photograph and video images of himself naked and masturbating. Overview of evidence 1. Because of the inherent nature of the ground, because a part of it is alleged inconsistency of verdicts, and because each counsel engaged with the evidence in significant detail, it is necessary to provide a review of all of the evidence in the trial, with particular emphasis on that given by Cathy. 2. The picture is complicated not only by the multiplicity of counts, but also because of the fact that the evidence and versions of events of Cathy came from a number of sources: an interview in which she engaged with police on 17 August 2014 (the first interview); a further interview with police of 27 August 2014 (the second interview); her evidence-in-chief commencing on 6 February 2017; her cross-examination commencing on 7 February 2017; and complaints she had made to her mother (to whom I shall refer as Ms Moore), some of which had led to the latter reporting them to police by email. 3. Because of the way the hearing of the appeal developed, I shall provide more detail about the acts alleged to have underpinned count 4, count 7, and count 9 than the other counts. 4. Finally, in this review, it should be borne firmly in mind that the applicant was found not guilty by a jury and acquitted of all allegations against him except that underpinning count 7, and accordingly he is presumed to be innocent of them. Evidence-in-chief of complainant – first interview 1. Cathy was the first witness called in the Crown case. Her interview of 17 August 2014 was played shortly thereafter. 2. At the time of the interview she was 13 years of age. 3. She spoke of the applicant having touched her "[e]verywhere" (A 33). She also said that "[h]e made me have sex with him" (A 39). 4. She spoke of having been the girlfriend of his son at primary school. She spoke of developing a friendship with the applicant by way of social media. She gave evidence of the camping trip as being the first occasion on which something untoward happened. Her estimate was that that was about three months before the date of the interview (A 50 and following). The complainant spoke of the applicant touching her on the inside of her vagina (count 1). That was the first time that something happened. 5. The next occasion was "[p]robably about two months ago", that being about one month after the first occasion (A 72 and following). The complainant said "[h]e made me have sex with him". She described penile/vaginal penetration (count 4). She said that it occurred after school, during the day, the applicant having picked her up from school. The sexual intercourse was alleged to have occurred in the shed. She explained that she was present because "I always used to clean the cars and I liked doing cleaning the cars" (A 93). 6. The following exchange occurred: "Q98 Do you know if he um, if he wore a condom or not? A He did. Q99 Yeah. A And he hid them. I know where he hid them. Q100 He hid them? A And I know where. Q101 O.K. Whereabouts, did he hide them? A Um, when you walk in the door, in his work, like - -" 1. Later, she said that the condoms were secreted "[b]ehind the exit sign" (A 105). She described a whole box of condoms being located there, and said that the applicant threw away the ones that he had used. She thought that the applicant threw them "in the big skip bin" (A 111). She spoke of telling the applicant that she "didn't like" having sex with him (A 120). 2. Cathy explained that she had not told Ms Moore about what had occurred because the applicant had told her "bad things" about her mother (A 128). Cathy also stated that when the applicant picked her up from school on that occasion, he bought her red roses, and mentioned how the applicant had previously "brought me that ring" (A 136). 3. The complainant told interviewing police that, prior to the sexual intercourse, the applicant touched her breasts (count 2), and inserted his fingers in her vagina (count 3) (A 153 and following). In answer to the question "Is there a toilet at this shed?", the transcript records the complainant nodding her head (A 175 and following). Thereafter, the interviewer confirmed that the complainant had said that the applicant had worn a condom. When asked whether she remembered where the applicant put the condom at the conclusion of the sexual intercourse, the complainant replied "I think he put it in the bin", but was not sure (A 187 and following). 4. The following exchange occurred: "Q196 So how many times has Shawn done like things to you? A Like what do you mean? Q197 Like sex. A Twice. Q198 Yeah. So that was the first time? A But the next time he tried and I didn't let him. Q199 O.K. So tell me more about that? A 'Cause he tried doing it, it really hurt and I didn't like it." 1. The complainant went on to provide evidence of the second shed incident; that is, counts 5, 6, and the conviction count 7 (A 198 and following). 2. She said that the second shed incident occurred about a week and a half after the first shed incident. Again, it was said to have occurred at the shed, during the week, but on this occasion her mother had dropped Cathy at the shed. Again, the complainant told the applicant that she "didn't want to do it". Again, there was touching of her breasts (count 5), and digital/vaginal penetration (count 6). She said that she said to the applicant "…can you stop it I don't like it" (A 210). 3. With regard to the conviction on count 7, the following exchange occurred: "Q214 All right. And did his penis go inside your vagina or not? A Hmm? Q215 Did his penis go inside your vagina? A Yeah, he tried, he did it and then I told him to stop 'cause it hurt. Q216 O.K. Did, did you actually feel his penis go inside you or not? A Yeah. Q217 Yeah. And so what happened, what happened after that? A I told him I didn't want to do it. Q218 Yeah. And what did - - - A He said why. Q228 - - - say? A And I told him 'cause I don't like it. And I told him I was too young. He said no it's O.K. and I said no it's not." 1. The complainant went on to say that there were many other occasions on which the applicant indecently assaulted her. 2. The complainant was asked about the last incident of sexual contact (A 224 and following). She was confused as to dates. With regard to the third shed incident, she described it as "the last time when he tried having sex with me" (A 236). She confirmed that digital/vaginal penetration occurred (count 8). With regard to count 9, the following exchange occurred: "Q241 O.K. And did he want to have sex with you? A He wanted to but I didn't let him." 1. Later, with regard to count 9, she said "He tried to pull my pants down but I kept pulling them back up" (A 256). 2. She went on to describe the applicant meeting her in the morning before school, taking her to a lookout, and indecently assaulting her there. She also alleged the applicant "made me send pictures of me naked and my vagina and boobs and stuff to him. 'Cause I was scared he was going to hurt me if I didn't" (A 267). She described receiving sexual messages in response, along with sexual images of the applicant, and expressions of his love for her. 3. Cathy gave evidence as follows: "Q303 Mmm. A 'Cause he kept saying I was hiding something. Kept saying he's going to tell my mum and he was going to, he was going to kill himself. He sent me photos of his, he cut, one day not long ago, this was only like from, about a month ago, not even a month ago. He, 'cause I told him I was going to dob him in, he got a knife from his work. SENIOR CONSTABLE TINDAL Q304 Mmm. A Like a really, about that long. It's in his work and it's blunt. Q305 Yeah. A Like he, and he tried cutting his arm, there was like a huge mark up there and then the next morning he sent me [a] photo and he had all grazes there 'cause he cut himself with something … it looked. Q306 Yeah. A Glass. Q307 O.K. A And he punched a speaker in his house and smashed beer bottles and had big grazes along there. Q308 [20.28] Yeah. How often would you talk to him at night on Snapchat or Kik? A I'd talk to him every morning, every recess, every lunch and every time I got home, 'cause he, he'd get up me if I didn't talk to him. I, that's what I hate, hate being on my phone heaps. Q309 Yeah. And the reason why you um, - - - A If I didn't go on he'd get all angry. Q310 Yeah. And why would he get angry? A I'd have to make excuses up just to go to the toilet and stuff - - - Q311 Yeah. A - - - 'cause he'd always ask me for pictures and I didn't want to tell him I wasn't going to the toilet." Second interview 1. After the conclusion of the first interview, the second interview of the complainant was played to the jury. As I have said, it took place on 27 August 2014, about 10 days after the first interview. It may be summarised as follows. 2. The interviewer explained that the reason for the second interview was the fact that Ms Moore had told the police certain things (Q 22 and following). 3. With regard to what she had previously said about the condoms, the complainant said: "Q24 Righto. Can you remember what you told me about the condoms? A I think they were red and black or red and yellow. Q25 Yeah. A And there was a glow in the dark one. Q26 Yep. A A banana flavour and a chocolate flavour, extra thin and the glow in the dark was a pink and a green one. Q27 All right. So they were quite, quite coloured were they and different flavoured ones? A Yep. Q28 [11:14] And how do you know they were all, how do you know they were different colours and that? A Because he had them out of the box and he was picking one and I was looking at them. Q29 Righto. And what about the flavoured ones how did you know that they were flavoured? A Because it says banana flavoured. Q30 Righto. Whereabouts were these kept in his, in his shop? A Up above the exit sign. Q31 All right. What else was kept above that exit sign? A A strawberry lube and a pregnancy test. Q32 A strawberry lube and a pregnancy test? A (NO AUDIBLE REPLY - nodding head in an up and down motion) Q33 So why did, why was there strawberry flavoured lubrication? A I don't know. Q34 All right. When did you see that? A What? Q35 [11:15] When did you first see the lubrication? A The second time he tried, made me have sex with him. Q36 The second time he made you have sex with him? A (NO AUDIBLE REPLY - nodding in an up and down motion)" (I interpolate that A 35 must relate to the second shed incident, and count 7.) 1. Cathy went on to say the following about the lubricant: "Q38 So what, how did he use the lubrication or what did he do with the lubrication? A He squeezed it on his dick. Q39 Righto. And when you say squeezed it on his dick was he wearing any protection or not? A Yep. Q40 All right. What kind of protection was he wearing? A A condom. Q41 And what colour was that condom? A Red, I think. Q42 All right. So you're saying that he squirted the lubrications [sic] on his condom? A (NO AUDIBLE REPLY - nodding in an up and down motion) Q43 And then what happened then? A Then he made me have sex with him." 1. Again, there was no dispute before us that that evidence must relate to the conviction count 7. 2. With regard to the pregnancy test, the complainant said the following (A 44): "Well before he got the lube he made me have sex with him and he didn't use a condom and then he went down to Sam's and got a pregnancy test for $5 and then he made me do that. But I read it and it said it won't work unless you do it eleven hours after or something." 1. Again, it was not disputed before us that that reference to sexual intercourse must have been to count 4, within the first shed incident. 2. Later, the complainant confirmed that count 4 featured that "he made you have sex with him without a condom" (A 52). The following exchange occurred: "Q49 All right. So the, the first time or the second that, that you had, that you had sex with him did he not wear a condom or he did? A He didn't the first time. Q50 So the very first time that you, that he had sex with you he never wore a condom? A Nah. Q51 How do you know that? A Because he didn't have them. Q52 But how do you know? A Because he made me look at his dick. Q53 [11:18] Yep. And what did you see? A Pubic hairs and balls and a penis. Q54 All right. And was any lubrication used then? A No he didn't have that or the condoms or the pregnancy test then. Q55 Oh, O.K. I'll just get this monitor screen and make sure it's recording. Is that going around, that timer, just up here? DETECTIVE SENIOR CONSTABLE GOLDSTRAW Yeah. SENIOR CONSTABLE TINDAL Q56 Yep. O.K. Sorry about that I, I just wasn't quite sure if it was recording or not. All right. So the very first time you had sex with him you were saying that he made you look at his pubic hair and his penis and he never have any lubrication? A No. Q57 And he, he's had sex with you? A (NO AUDIBLE REPLY - nodding in an up and down motion) Q58 Whereabouts was this? A At his shed." 1. Yet again, it was not disputed before us that the complainant was discussing the first shed incident, and count 4. 2. The complainant went on to say that the second shed incident occurred one or two days after the first shed incident (A 59 and following). She described the applicant withdrawing his penis from her vagina before ejaculation during the first shed incident. She also said "he made me do it the next day", referring to count 7 (A 68). She confirmed that "he did it once without the condom and then two times with a condom" (A 69). (There was no dispute before us that the first of those allegations was count 4, and the latter two were count 7 and count 9). She described herself opening a condom, filling it up with dirt, and then throwing it in the bin. 3. With regard to the second shed incident, including count 7, she spoke of the applicant removing the condom after sexual intercourse and placing it in a grey or white plastic grocery bag (A 73 and following). She spoke of the pregnancy test and condom as having been purchased on the same occasion. She "went down to the toilet" and urinated on the pregnancy test. She claimed to have been with the applicant when he purchased the pregnancy test at "Sam's". She also spoke of the applicant having purchased a coffee maker for her mother on the same occasion so that it didn't "look funny". She was unable to identify with specificity the particular chemist from which the condoms were purchased (Q 88 - Q 95). 4. Again speaking of the second shed incident and count 7, Cathy said that, after the purchase of the condoms, they had sexual intercourse (A 97 and following). It was after the sexual intercourse that the two of them went to the shop where the pregnancy test and coffee maker were purchased. 5. The complainant was not sure when and where lubricant was purchased, but she believed she was present on that occasion (A 109 and following). 6. Later in the interview, the complainant confirmed that she had "grabbed one of the condoms and filled it up with dirt" (Q and A 122). 7. The complainant went on to explain her understanding of dates was based upon one of her suspensions from school, which she believed was for punching a girl in the face. Viva voce evidence-in-chief 1. I turn now to summarise the relevant portions of the evidence-in-chief of the complainant, by way of audio visual link, in the presence of the jury. 2. She confirmed that, in the first interview, she had spoken of being given a ring by the applicant (trial transcript (TT) 28 and following). She gave evidence that the applicant told her he had found it in a car. She had given the ring to a detective. A photograph of the ring was tendered, and became exhibit A. 3. She also identified a photograph as depicting the condoms that the applicant had purchased, along with the pregnancy test. She said that she had waited in the car whilst the applicant purchased the condoms from a chemist (TT 30.40). 4. She also identified photographs from the shed. One of them depicted the exit sign above the doorway to the workshop where she claimed the condoms, the pregnancy test, and the lubricant had been secreted. 5. She identified herself and the applicant in CCTV from a supermarket. She was not sure whether the CCTV depicted the day upon which the applicant purchased the condoms (TT 35.42 and following). She was shown a receipt, which became exhibit D, and which seemed to show more purchases than those about which she had given evidence. 6. Cathy identified a video from a McDonald's fast food restaurant that depicted herself and the applicant in his car. In the same vein, she identified a vehicle depicted in CCTV from a lookout as belonging to the applicant. Cross-examination of the complainant 1. In cross-examination, Cathy accepted that she got to know the family of the applicant through her relationship with his son. The two of them started out as boyfriend and girlfriend when they were 12. She agreed that she would spend time at the family home of the applicant as a result. 2. She also agreed that her mother became friendly with the applicant and his wife. She agreed that she developed a good relationship with the applicant and his wife, although she later got on poorly with his son. 3. The applicant and his wife were separated for a time. Cathy agreed that, after that separation, she enjoyed spending time at the shed with the applicant. That caused friction between the complainant and her mother. 4. She was taken to the detail of the camping trip allegation; because of the way the appeal was argued before us, that does not require discussion now. 5. At TT 50 and following, she was taken to the shed incidents. She spoke of occasions when she and the son of the applicant were with the applicant. Her mother would also drop by to check on her. On occasions the applicant would purchase things for the complainant and his son to thank them for working for him. 6. She denied that, when the applicant gave her the ring, he told her that it was in return for all the hard work she had done in the shed. She also denied that it was she who suggested to the applicant that he tell her mother a lie about having found the ring in a car that he had been working on (TT 53.44). 7. She confirmed that the applicant also purchased a battery for her mobile phone, but insisted that that was because he wished to be able to talk to her at all times. 8. She identified a photograph of the interior of the shed, which became exhibit 2. 9. With regard to the first shed incident, she insisted that the applicant had purchased her some roses. She was sure that they were thrown out by the applicant after two days. 10. She recalled telling the police in her first interview that, on the first occasion of sexual intercourse (count 4), the applicant did wear a condom. She confirmed that, in the second interview, her position had become that they had had sexual intercourse without a condom, and that the applicant had withdrawn his penis prior to ejaculation. Her position in cross-examination was that it was wrong to say that the applicant wore a condom on the first occasion (TT 59.20 and following). 11. With regard to the extra details about what the applicant did with the condoms after having used them, to be found in the second interview and not the first, the complainant said she was embarrassed at the former time. Later, she confirmed that the first occasion did not feature use of a condom, and that was why the lubricant and pregnancy test had been subsequently purchased (TT 60.48). 12. Cathy agreed that, between the first and second interview, she spoke to her mother, but only about dates. Her position was that she did not speak to her mother about what the applicant had done before the first interview. She eventually gave evidence that she did speak to her mother about the applicant putting a condom in a plastic bag in the bin after the first interview (TT 62.5). She was confronted with a document that was seemingly contrary to her evidence, and agreed that she did speak to her mother about what the applicant had done to her. She claimed that the passage of time had affected her memory (TT 63.5). 13. She agreed that she was aware that, the day after the first interview, the police searched the shed, and the day after that they took away the nearby skip bin. She denied that her mother had told her that she (the mother) had been present when the skip bin was taken away, and that the police had found condoms in the bin (TT 63.18 and following). She denied that she had "added the detail" of the plastic bags in the second interview based upon things that she had been told about the search of the skip bin. Her position was "I know he put it in there because I seen him put it in the plastic bag" (TT 64.25). 14. As for the second shed incident, she agreed that, in the first interview, she had said that it had happened one and a half weeks after the first shed incident, but in the second interview she said that it happened the very next day. That was after the complainant and her mother had worked out the dates (TT 64.26 and following). 15. With regard to the purchases discussed in the second interview, she was not sure whether the condoms were purchased just before the coffee maker, due to the passage of time (TT 65.39 and following). She was not sure whether the applicant purchased the condoms on the same day as the coffee maker and the lubricant. She agreed that the applicant must have purchased the condoms after the first shed incident. 16. Although unsure about the details of the purchase of the condoms, she confirmed that the coffee maker and the pregnancy test were purchased from the same store at the same time. 17. With regard to the purchase of the lubricant, the following exchange occured: "Q. But you do remember that he used the lube on the second occasion? A. The first time he ever tried I told him I didn't want to do it because it hurt and I didn't want to do it because I was too young and he said he'll make it better, and then he went and got some lube and tried to get me to do it again and I said no again and then he forced me to do it. Q. We're going to come back to that in a little while, but just in terms of my question. It was he only used the lube on the second occasion, right? A. Yep. Q. And he was wearing a condom when he used that lube? A. Yep." (TT 68.2-68.17) 1. She agreed that she was present with the applicant when he purchased the lubricant, and confirmed that it was within a particular mall in Wagga Wagga. She agreed that, if the working out of dates of her mother and herself was correct, the date of the purchase of the lubricant must have been 16 June 2014. 2. Later the same day, when cross-examination continued, her position was that she could not recall being with the applicant when the lubricant was purchased (TT 71.26 and following). She described herself at the time of the first interview as "mixed up", and also spoke of embarrassment (seemingly at the time of giving evidence). She maintained the position that she could not recall whether she was with the applicant when he purchased lubricant or not. Nor could she recall whether she had told her mother the details of the purchase of the lubricant. She agreed that the receipt that she had been shown earlier that day was from the Coles supermarket in the Sturt Mall, was dated 17 June, and showed the purchase of two "Mothers" (an energy drink). She denied the proposition that she was conveniently claiming lack of recall in order to avoid the discrepancy between her evidence and the receipt. When it was directly put to her that she never saw the applicant purchase lubricant, she replied "I know he bought it, but I just can't remember when" (TT 73.6). 3. It was put to her that her evidence about the purchase of the condoms and the pregnancy test were deliberate falsehoods, told so that it would "match up" with the items hidden behind the exit sign of the shed; she denied that proposition (TT 73.05 and following). She subsequently denied the proposition that her lack of memory about details of purchases was born of convenience. 4. She confirmed that the "big difference" between the first shed incident and the second shed incident was that a condom was used on the latter occasion (TT 74.26). She denied that the discrepancies about the second shed incident between the first interview and the second interview were to be explained by fabrication. 5. With regard to count 7, the following exchange occurred: "Q. Is it the case that you stopped him from having sex with you on the second occasion? A. He did have sex with me on the second occasion and I couldn't stop him because he forced me." (TT 75.18) 1. She was asked about the third shed incident, and count 9, and taken to the fact that she had spoken of continually pulling her pants up. She confirmed, however, "I was never once able to stop him from having sex with me" (TT 75.41). 2. Returning to the topic of speaking to her mother before the first and second interview, she agreed that she told her mother that the applicant bought Chinese takeaway food at the same time when he bought the condoms. Her position was that that was to do with "the second time he's done it" (TT 76.34). 3. With regard to the first shed incident and count 4, she agreed that she had told her mother that, on the first occasion, penetration had not occurred. In cross-examination, her position was that there was a degree of penetration, but "not properly" (TT 76.36 and following). 4. Having being shown a document that one might infer was a statement of her mother, she maintained the position that the Chinese food and the condoms were purchased on the second occasion (TT 77.48). When questioned further about things she may have told her mother, she said "Can't remember what I told my mum, but I know it happened" (TT 78.09). 5. She agreed that she never complained to her mother on each occasion when she returned to the family home after having been sexually assaulted. She denied the proposition that she came across the packet of condoms, the lubricant, and the pregnancy test whilst looking around the shed for anything interesting. She denied that she found the items on her own. She confirmed that she had clarified with the police that, during the first shed incident the applicant did not use a condom, but he did so during the second and third shed incidents. She confirmed having opened one condom and filling it with dirt. She denied the proposition that the applicant had "gone to the toilet" when she found the condoms (TT 79.48 and following). She maintained the position that she only ever played with one condom in that way. She denied ever having told the applicant that the condoms had a strange taste. 6. She was asked a number of questions about the trips to the lookout undertaken by a man in his mid thirties alone with a 12 or 13 year old girl. Although it was put to her that there was an occasion when the two of them went there in the evening, she could not recall that (TT 80.34 and following). She denied that it was not true to say that the applicant had placed his hand down her pants whilst the two of them were at a lookout alone. 7. She was asked a number of questions about the sending of images and messages; due to the way the appeal was run, I do not believe that evidence needs to be recounted. 8. She did not recall the wife of the applicant having made a complaint about her causing trouble in the family of the applicant (TT 84.18 and following). She agreed that, when first spoken to by police, she denied that the applicant had done anything untoward to her. She agreed that there had been an angry interaction between herself and the wife of the applicant, and his son. She agreed that it was after that episode of anger on her part that she first told anyone about the applicant sexually assaulting her. She agreed that, at the same time, her relationship with her mother was very poor. 9. There was no re-examination of the complainant. Evidence of the complainant's mother 1. Ms Moore, the mother of the complainant, then gave evidence. She described how her daughter became a close friend of the son of the applicant during primary school. Ms Moore became friendly with the wife of the applicant. From time to time, Cathy would stay over at the White family home. The witness knew that the applicant was operating a car dealing business, and visited the shed on occasion. Ms Moore was aware that her daughter assisted at the business. The wife of the applicant spoke to Ms Moore about her marriage, and was distressed. Ms Moore spoke to the applicant on more than one occasion about the amount of time he was sent spending with her daughter. Eventually, Ms Moore prohibited Cathy from spending time at the home of the applicant. The complainant hated her mother as a result. 2. On the weekend of 8 June 2014, Cathy was staying at the home of the applicant, and Ms Moore received text messages from the wife of the applicant to the effect that her daughter did not wish to come home (TT 95.21 and following). 3. Ms Moore confirmed that her daughter was in a special learning class at high school. She was informed by teachers that the applicant was coming to the school and having contact with the complainant. She agreed that text messages suggested that the applicant requested that he pick up the complainant from school on a particular occasion, and that Ms Moore was content for her daughter to work at the car detailing business. 4. She confirmed that Cathy loved working at the car detailing shed (TT 98.33 and following). She mentioned that her daughter suffered from attention deficit disorder. A Facebook conversation between herself and the applicant was tendered, which evidenced the lie that the applicant told the Ms Moore about having found the ring in a car upon which he was working. 5. As a result of a complaint made about Cathy by the wife of the applicant, the complainant ran away from home. She was later located with the applicant at his car detailing shed. 6. In late July 2014, Ms Moore went to the bedroom of her daughter, and found a new phone battery (despite the fact that Ms Moore was seeking to restrict the phone use of her daughter), and a ring box (TT 100.32 and following). Eventually, her daughter revealed that the applicant had purchased the phone battery. The ring box was secreted under the bed of the complainant. 7. Ms Moore agreed that, in between the first and second interview, the complainant was telling her mother things about what had occurred, and those complaints led to the second interview being conducted. 8. In cross-examination, Ms Moore confirmed that her daughter spent a lot of time at the White family home. She agreed that her daughter did not enjoy a close relationship with her father. It seemed to Ms Moore that the attendance of her daughter at the workshop was positive. She agreed that the wife of the applicant had her own struggles with depression, and at one stage tried to commit suicide. She agreed that her own relationship with the complainant was troubled. She agreed that her daughter suffered from a disability, was emotional, and would have "meltdowns and rip her hair and bite herself on the wrist and things like that" (TT 104.25). 9. She agreed that, on the occasion when her daughter ran away, Ms Moore attended the shed. Subsequently the applicant turned up in his motor vehicle and the complainant on a pushbike. She gave evidence that the applicant lied to her in text messages on that occasion (TT 106.24). She described the applicant as having "complete control over my daughter" (TT 107.39). 10. She confirmed that her daughter was medicated, and suspended from school at about the same time her medication was changed (109.42 and following). 11. Subsequently, she agreed that, when her daughter was at the workshop, Ms Moore would sometimes drop by unannounced (TT 115.34 and following). She gave evidence that she had trusted the applicant and his wife. She agreed that the applicant apologised, or at least tried to, for giving the complainant the phone battery (TT 117.7). 12. She was taken to the circumstances in which the complainant first disclosed the allegations against the applicant, and said "I was completely blown away as a parent. As you could imagine I was completely upset. I don't remember. I've pretty much blocked out a lot of the trauma" (TT 119.45). 13. She agreed that, after the first interview, she sent an email to police in which she described her daughter relating the following: "Q. And then it says "As far as she has disclosed, he bought Chinese on 16th, and condoms. Tried to penetrate her. She was really full from eating and it wouldn't go in". That accurately reflects what [Cathy] told you, isn't it? A. In my mind, in my words, I don't know if that's exactly how she said it but that's how I interpreted it the ..(not transcribable).. communicate." (TT 126.25) 1. Her understanding was that her daughter was speaking of the applicant having purchased Chinese food and condoms, attempting to penetrate her, but being unsuccessful (TT 127.21). 2. The following exchange took place: "Q. [Ms Moore], you then write "Tuesday, 17th, he went and comes and uses self-serve checkouts, he says maybe with the St George business card, PIN 3220, and brought some strawberry flavoured lube and two Mothers, so it didn't look funny. He had sex with her on that day." That again, is your reporting of what [Cathy] told you? A. My interpretation of what she was saying. That she was all over the place. Like she was confused. She'd go up and down like it was really hard. As you could imagine. And [Cathy] thought she had to remember stuff." (TT 128.26) 1. With regard to further emails, the following exchange occurred: "Q. Wednesday 18th, "Went and got two pregnancy tests used at a toilet near his work. He had sex with her and put condoms in the bin wrapped in paper". That, again, is your report to the officer-in-charge of what [Cathy] had said to you? A. Yeah, but the dates are the days that I was trying to work out. She was saying the next day, the next day on this day. Q. Yes, okay, that's exactly what I was getting at in previous questions. You were allocating dates based on [Cathy] telling you it was the next day following? A. Yes. Q. So what she was telling you is these events in order so, for example, this happened the first time. The next day this happened, the next day this happened? A. It wasn't always in order though. She might flip back and go ah but wait I remember he did this or - it was really hard. It was really hard and it was hard to try and make sure that the information that I did give was right - was what she was saying and which is why I wasn't - I didn't ask her anything. Once she - I sat there and just listened and then I would get my phone and I would go and sit on the front step in tears and try and write what my daughter had just told me. Q. So based on what she had just told you and the order in which she told you, you allocated the dates. That is how this work, didn't it? A. I tried to work out the dates myself from when-- Q. Yes, that's right, based on the order in which she was telling you? A. Not on the order, just the info. Q. The info which included the order in which she was telling you. A. It wasn't always in order. Q. Ms [Moore], you then say, "On Thursday 19th he tried again she told him she was too sore it hurts she had sore legs and vagina and she didn't want to do it again ever it was wrong it was too young and it hurt" that again was your report of what [Cathy] had told you occurred? A. Yeah." (TT129.43 – 130.30) Evidence of the applicant's wife 1. The wife of the applicant was the next witness in the Crown case. She agreed that she got to know the complainant through her son. At the time, the two children were 12 years of age. She also met Ms Moore. The complainant often stayed at the White family home. She recalled the camping trip. The relationship between her son and Cathy deteriorated. The applicant opened the car detailing business in March 2014. It was very common for the complainant to spend time at the shed. The witness came to discover that the complainant had access to the Facebook password of the applicant. The witness became concerned that the complainant was aware of things that had passed between the witness and her husband, and did not know how the complainant became aware of them. 2. The complainant began to harass the witness and her sons, after the applicant separated from his family. Eventually, the witness went to the police about the complainant. 3. By the time of the trial, the witness had reconciled with her husband. The witness was not concerned about the relationship between the complainant and the applicant. The harassment by the complainant got so bad that eventually the witness obtained an AVO against her. 4. In cross-examination, the witness confirmed that, on 16 August 2014, the complainant had access to her mobile phone and pretended to be the witness. When confronted, the complainant threw a tantrum and was attacking her mother. It was only then that the complainant disclosed that the applicant had committed offences against her. When the witness spoke to Ms Moore about the breakdown of the friendship between the complainant and the son of the applicant, Ms Moore told the witness that her daughter was suicidal when at home, and better off at the White family home. Evidence of detectives 1. Detective Goldstraw gave evidence of meeting the complainant and her mother on 17 August 2014. After the first interview of the complainant was conducted, the applicant was arrested on the same day. He exercised his right to silence. 2. On 18 August 2014, police attended the shed. They saw a large skip bin outside the business. It was searched. What appeared to be coloured condoms inside plastic shopping bags were located. The detective was shown a number of photographs. Photograph 3 showed what appeared to be a shopping receipt, what appeared to be two used condoms, one of which was green and the other of which was purple, and some condom packages. They had been located in a grey plastic bag in the skip bin. They were seized and secured. 3. Further photographs showed a white plastic bag containing what appeared to be a black coloured condom and packaging relating to the condom. It was noted that one condom wrapper was located that was red. The witness also linked the photograph that had become exhibit B with an exhibit bag that had been noted as containing a bottle of lubricant, two boxes of condoms, and one pregnancy test kit. 4. Later, a forensic procedure was undertaken upon the applicant. 5. In cross-examination, the witness agreed that during the search six condoms were located. It was agreed that no pregnancy test was found in the skip bin, and nor were any roses. 6. Senior Constable Gunthorpe gave evidence of the search of the work premises on 19 August 2014. The witness had been informed that the search was for "used condoms which were allegedly in plastic bags, which were knotted at the top" (TT 161.20). The witness gave evidence of the process of exhibit security and storage, and was not cross-examined. Evidence of a DNA expert 1. Thereafter, a DNA expert gave evidence in the Crown case. Her evidence-in-chief may be summarised by exhibit N, which was a certificate of analysis with regard to a number of unpackaged and unrolled condoms that had been located in the skip bin near the shed. I shall refer to the exhibits by way of an abbreviated exhibit number. 2. Condom X435 did not have semen detected on its inside or outside. DNA testing was unsuccessful on both of those locations. 3. Condom X436 did not have semen detected on its outside. It had semen detected on its inside. On the outside, a mixed DNA profile, which appeared to originate from two individuals, was recovered. It was overwhelmingly likely that the applicant and the complainant were the contributors to that mixed profile. 4. DNA was also recovered on the inside of condom X436. A single profile was located; it was overwhelmingly likely to be that of the applicant. 5. In summary then: condom X436 was extremely likely to feature on its internal surface semen emanating from the applicant, and to have on its external surface the DNA of the applicant and the complainant. 6. Condoms X437 and X438 were not examined. 7. Condom X439/5a, a purple condom, was found to have semen on its inside and outside. A DNA profile was recovered on both locations, and it was overwhelmingly likely to be that of the applicant. 8. Condom X439/5b, a green condom, was found to have semen on its inside and outside. Again, a single DNA profile was located on each surface, and it was overwhelmingly likely to be that of the applicant. 9. In cross-examination, it was confirmed that three condoms returned positive results. With regard to the condom that returned a mixture of profiles, the witness agreed that one could not really tell what was the inside or outside of the item, because one does not know how it was removed and handled following use. 10. The witness agreed that, in locations where DNA was located but semen was not, one could not tell what was the bodily tissue or secretion that was the source of the DNA. The witness also agreed that one cannot tell how DNA got onto an item; that secondary transfer can occur; that different individuals are more likely to leave DNA on an item than others; that secondary transfer means that one should not jump to conclusions about mechanisms of deposit; that various kinds of tissue and various secretions deposit DNA at different rates; that both condoms appeared to be used, for the simple reason that they were unrolled and tested positively for semen; that no female DNA was found on the green or purple condoms (though it was possibly there); and that the human vagina during sexual intercourse is a rich source of DNA. Officer in charge, and agreed facts 1. The last witness in the Crown case was the detective in charge of the investigation. His evidence-in-chief may be summarised as follows. 2. It was on 27 July 2014 – that is, well before the first complaint of Cathy – that he first spoke to the complainant and Ms Moore. 3. The police were conducting surveillance of the applicant and his place of work in late July 2014. They were also surveilling the complainant. Police observed the applicant and the complainant to park at a lookout above Wagga Wagga. No one else was to be seen in the vehicle. Later, police set up a video camera at that location. 4. On 17 August 2014, the detective contacted Ms Moore, who told him that the complainant had "flipped out". Later on that day, the first interview of the complainant was conducted. 5. The witness gave confirmatory evidence about the arrest of the applicant, and his exercise of his right to silence. The witness did the same with regard to the search of the work premises on the following day. The detective gave evidence of finding "a condom wrapped" behind the exit sign above the doorway. He also gave evidence of the conduct of the second interview with the complainant. 6. On 27 August 2014, the mobile phone of the applicant and the complainant was seized and examined, but nothing of relevance was located on either device. 7. The detective was aware that another police officer had spoken to the complainant on 28 June 2014, at which time she denied that the applicant had ever committed any sexual offence against her. 8. The witness confirmed that he went to a particular chemist in Sturt Mall, and enquired whether the particular brand of condoms found in the bin and the shed had been sold by that chemist at the relevant time. They had not. 9. In cross-examination, it was confirmed that the phones revealed nothing. It was also confirmed that, back on 28 June 2014, nothing had been found on the phone of the complainant. 10. It was also confirmed that the inquiries at the chemist shop were based upon what "seemed to match the general description that [Cathy] had provided (TT 190.25). 11. The witness confirmed that, during the search of 18 August 2014, he himself located two boxes of condoms, a bottle of lubricant, and a pregnancy test kit. 12. The final phase of the Crown case was a document setting out facts that were agreed between the parties. In a nutshell, they confirmed that DNA samples taken from the applicant and the complainant were reliable; that there was a garbage skip bin close to the car detailing shed, and it was not emptied between 16 May 2014 and 21 August 2014; that on 26 June 2014 an employee of a jewellery shop in Wagga Wagga sold, to an unknown adult male, a particular silver ring for the purchase price of $53.40; that the employee subsequently identified a ring shown to her by the detective in charge as being that ring; and, finally, that the motor vehicle in the possession of the applicant had a particular registration number. Examination-in-chief of the applicant 1. The applicant gave evidence in the trial. He said that he got to know Cathy through his son, that she would often stay overnight, and that his relationship with Cathy was "[v]ery good as one of the family" (TT 200.49). He described the business, and confirmed that the workshop was run at an area that contained a number of sheds. He agreed that all of the rubbish went into the skip bin. 2. The applicant explained how Cathy and his son would often help with work, however when they started to argue he would "[try] to have them there at different times so they wouldn't fight and argue" (TT 203.15). He also stated Ms Moore would "just show up" at the workshop to check on Cathy without contacting him beforehand. 3. The applicant agreed that condoms were placed near the exit sign to the workshop. They were there "[f]or my own pleasure". He used them so he "wouldn't ejaculate on the floor or you know places that you shouldn't. There's no bathroom actually in the shed" (TT 204.23). The lubricant found was also for the "[s]ame reason" as the condoms. 4. The applicant gave evidence that he had seen Cathy with the condoms, when he returned from the toilet, which was in a separate block to the shed. He described seeing Cathy sitting on the lounge, opening the condoms, and playing with them (TT 204.45). He explained how he got "cranky" at her, packed them back away in the bag, and that Cathy said "they tasted odd" (TT 205.8). In response to the question why he kept the opened condoms, the applicant stated that he didn't think "there was any harm in using them because they weren't like damaged or ripped or" (TT 205.14). 5. The pregnancy test, the applicant stated, was found by him in a car. He provided no explanation as to how the pregnancy test ended up in a bag along with the unused condoms and the lubricant, other than "I probably put it there" (TT 204.39). 6. During the applicant's separation from his wife, the main people in his life were Cathy and Ms Moore (TT 205.44). He agreed that he took Cathy to a lookout at Wagga Wagga to "[e]at breakfast and to take photos one night" (TT 207. 20). He agreed he used his mobile phone to talk to Cathy, as well as contacting her over Facebook, Snapchat, and Kik (a number of online messenger and photo sharing applications). He denied ever sending anything of a sexual nature to Cathy, but claimed to have received two topless photos from her (TT 208.10 and following). The applicant did not tell anyone about the photos or report it, as he "didn't want her to get in trouble over it" (TT208.30). He confirmed Cathy often had access to his phone. 7. In relation to the ring, the applicant agreed that he had bought it for Cathy, as "payment" for the help she provided with his work (TT 209.1). He agreed that he lied to Ms Moore about the ring, saying that he had found it in a car. He agreed he also bought Cathy a phone battery, and explained that he had told Ms Moore about it. He denied ever buying Cathy flowers. 8. The applicant agreed Cathy came camping once with him, his sons, and a friend of his sons. He denied entering the room of the tent in which Cathy was sleeping, or touching her at any time throughout the camping trip (TT 210.35). 9. The applicant denied ever touching or having sexual intercourse with Cathy at his workshop, or at all (TT 211.1). Cross-examination of the applicant 1. The applicant admitted that the explanation he had previously given to the complainant's mother of finding the ring in the car was a lie, and that he had instead paid around $50 for it (TT 211.38 and following). The applicant admitted: "Q. "I'm going to give it to [Cathy] because she's worked very hard at the shop"? A. Mm. Q. You didn't say that, did you? A. No, I didn't say that to her mother. Q. I'm sorry? A. I didn't say that to her mother. Q. That's-- A. I lied to her mother, I told you I lied and I shouldn't have, yeah." (TT 214.38 and following) 1. He also agreed that he had an arrangement with Cathy, whereby he would sometimes take her to school, and that she would wait for him at the bus stop at a particular time (TT 216.22 and following). The bus stop was some distance from Cathy's home, however the applicant denied that that was to prevent Ms Moore seeing him pick up Cathy, but rather was "just an arrangement that we had" (TT 217.39). 2. The applicant stated that Cathy had never seen him dispose of a used condom. His explanation as to the knowledge of Cathy regarding his disposal of the condoms was: "Q. How could she have known that, Mr White, unless either she saw you do it or you told her you'd done that? A. Possibly Facebook, because she had my password on Facebook. Q. What did you record on Facebook about that habit of yours? A. I often would talk to my wife about stuff like that even though we split up we still sort of talked a bit - ups and downs one day you talked about stuff and the next day you'd be fighting and arguing you know. Q. I don't mean to embarrass you, sir, but are you saying that there might have been an occasion when you wrote to your wife on Facebook and told her that you had masturbated into a condom while you were at the workshop and discarded it in a shopping bag into the skip? A. Yeah. Q. You might have said that on - wrote that on Facebook? A. Yeah. Q. But you're not sure that you did that? A. Well, I'm pretty sure I did. We always talked about stuff like that. Q. So you're pretty sure you did? A. Yeah. Q. You surmise that [Cathy] discovered that because she had somehow access to your Facebook account? A. Yes, she did have access to it, as we found out." (TT 218.24-50) (As my summary of the cross-examination of the applicant's wife shows, the remarkable proposition that the applicant sent one or more Facebook messages to his wife, detailing his asserted habit of masturbating into condoms at work, and disposing of them once used in the skip bin, was never raised by defence counsel with the latter in his cross-examination of her.) 1. The applicant denied that the reason for buying Cathy the phone battery was so that he could communicate with her (TT 219.22). 2. The applicant agreed that, following the deterioration of the relationship between Cathy and his son, he continued collecting Cathy from the bus stop and taking her to school (TT 221.11). He agreed that he was alone in the workshop with Cathy "very often" (TT 222.5). He also accepted that the effect of him giving her the opportunity to work on cars meant that he would be alone with her (TT 222.23). 3. The applicant explained that he disposed of the used condoms by wrapping them in a shopping bag and threw them in the skip, as it was the "best way to dispose of them". 4. In relation to the lubricant and pregnancy test, the applicant stated: "Q. Why did you have, sir, at the shop the lubricant? A. For my own pleasure as well. Q. I don't mean to be sarcastic, sir, but what about the pregnancy test kit? A. As I said, I found that in a car, it ended up on the table and I must have put it in that bag. Q. You found that in a car? A. I didn't want it laying around, I guess, I don't know. Q. You found that in a car? A. Yes. Q. That you were working on? A. Yep. Q. Why did you remove it from the car? A. Because that was my job to remove the rubbish out of the car and clean the car. Q. What made you think it was rubbish? A. Well, I didn't think it was rubbish if I put it on the table, you know, I don't know why I put it there. Q. It plainly didn't belong to you on that version, did it? A. The test? Q. Yes, it wasn't yours? A. No. Q. It was the property of the person who's [sic] car you were cleaning? A. Yeah, it was the car yard's car probably. Q. I'm sorry? A. It was a car yard's car probably. Q. But it was not your property? A. No, nothing in the car is my property. Q. So why did you take it out of the car? A. Well, you're to take everything out of the car to clean the car. Q. Why did you not put it back? A. Because you don't put stuff back in the car from a car yard, they want them clean and tidy. Q. So you're guessing about that being a car from a car yard, are you? A. Possibly, it would have been, most of my cars were from car yards. Q. Are you guessing about that? A. Not guessing, it's highly possible that it was from a car yard but I'm not saying exactly it is from a car yard." (TT 224.25-225.25) 1. The applicant was unable to explain how the lubricant, the pregnancy test, and the condoms all ended up in the same bag (TT 225.29). 2. In relation to the two topless photos that the applicant claimed Cathy had sent him, he agreed that he did not tell Ms Moore about them, but said that that was to avoid Cathy getting into trouble over them. He agreed that following that incident, he continued to see Cathy, pick her up, and take her to school (TT 228.28). 3. The applicant confirmed that after he had seen Cathy open the condoms at the shed, he took them from her and placed them back in the box (TT 229.15 and following). He confirmed that he used the condoms that were opened, stating "I obviously did because they're in the evidence" (TT 230.4). He had not noticed any drying out of the opened condoms when he subsequently used them to masturbate to ejaculation. 4. The applicant denied any sexual penetration occurring on the camping trip, or in the shed, and stated "it's all wrong" (TT 234.17). 5. In response to Cathy stating "I didn't know what lube was until he showed me", the applicant denied ever showing her the lubricant (TT 238.4 and following). 6. When shown a photograph of the shed, the Crown prosecutor stated "It's not a place where cleanliness is obvious…", to which the applicant replied "There's cleanliness and then there's cleanliness" (TT 238.40). He agreed there were stains and rags on the floor. He maintained his position that his use of a condom during masturbation was because "[i]t just feels a lot cleaner" (TT 239.3). 7. The applicant denied ever sending Cathy a video of himself masturbating (TT 239.5 and following). 8. The conclusion of his evidence closed the defence case, and the evidence as a whole. Ground of appeal 1. Turning from the evidence to the ground, the submissions of the applicant in support of the single ground had three bases. 2. The first was a detailed analysis of what was said to be the weakness of the evidence of the complainant generally. 3. The second was the proposition that, even if it was open to the jury to be satisfied that sexual intercourse took place between the applicant and Cathy on the occasion underpinning count 7, it was not open for the jury to have been satisfied that the offence occurred without the consent of the complainant, the applicant knowing (including in the well-known senses extended by statute and common law) that that was her state of mind. 4. The third was that the single verdict of guilty is inconsistent with the verdict of not guilty returned on every other count on the indictment (including, of course, the alternative counts that were left to the jury). In particular, the verdict of guilty on count 7 was said to be palpably inconsistent with the verdicts of not guilty on count 4 and count 9, each of which was underpinned by an allegation of penile/vaginal sexual intercourse at the shed. 5. With regard to the third basis, there was no dispute between the parties that the test for assertedly inconsistent verdicts returned by a jury was set out by the High Court of Australia in MacKenzie v The Queen (1996) 190 CLR 348 at page 366: "Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (31) is often cited as expressing the test (32): "He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand." In MFA v The Queen (2002) 213 CLR 606 at [89], the High Court further explained the test to be whether "there is a logical and reasonable basis for sustaining the differentiation that the jury drew." First basis – generally unsatisfactory evidence? 1. Counsel for the applicant, in her written submissions, asserted that the account of the complainant was "most unsatisfactory and lacking in cogent force". This was said to be due to a number of factors. They included: the inconsistency regarding what days the events the occurred, either separated by some time or on consecutive days; the fact that the complainant provided detail regarding the first shed incident, however required prompting regarding the second and third; statements by the complainant that the attempts to engage in penile/vaginal intercourse may not in fact have been successful; the changing evidence about the applicant wearing a condom, or whether he withdrew before ejaculating, on the first occasion; the evidence relating to the purchase of the lubricant, condoms, and pregnancy test being unreliable and contradictory to the Coles receipt, information from the chemist, and no used pregnancy test being located in the skip bin; the added detail in the second interview relating to the applicant's use of condoms and their disposal, the pregnancy test, and the lubricant; the denial by Cathy of some details regarding the condom disposal; her denial of speaking to her mother to any extent between the two interviews; the initial denial by the complainant to Senior Constable Cox of any wrongdoing by the applicant; the lack of contemporaneous complaint; the fact that the eventual complaint occurred within a background of tension with her mother and following an outburst of the complainant; and, finally, the fact no evidence of any indecent photographs allegedly sent by the complainant to the applicant, at his request, were discovered. 2. More specifically, with regard to count 7, it was submitted in writing that the quality of the complainant's account was not any better than her evidence about the other counts. Attention was drawn to the complainant's change in recounting the time between the first and second incidents from a week and a half to the next day, and how the complainant often described the second occasion with reference to the first, in it being the "same thing". 3. Furthermore, while the complainant gave details about the applicant touching her breasts or vagina, she did not explicitly state that his penis penetrated her vagina, instead only agreeing that it occurred when asked by the interviewing police officers. 4. Counsel for the applicant also submitted that there was evidence in relation to this count that penetration did not occur, and that whilst her lack of consent was more strongly expressed than for the other occasions, clearly enough, with regard to many counts, the jury was satisfied of neither lack of consent nor indeed penetration. 5. In oral submissions, the generally unsatisfactory nature of the complainant's evidence was said to be conceded by the Crown, as "the jury would have been reluctant to convict in the absence of some supporting material." Counsel emphasised a number of factors, including that the chemist identified by Cathy did not sell the condoms that were found at the shed or in the bin, and that the receipt tendered in evidence did not include the purchase of condoms, lubrication, or a pregnancy test. 6. In addition, counsel submitted that there were a number of specific difficulties in relation to the complainant's evidence in relation to count 7. Such difficulties included that there was a low level of detail in relation to the second shed incident involving count 7, in comparison to the first shed incident and counts 2, 3, and 4. It was in truth unclear whether penetration occurred, it was submitted. 7. The second difficulty identified in relation to count 7 was that the complainant originally stated a condom was used on the first occasion, however by the second interview, she stated that there was no condom on the first occasion, but rather the condoms were bought before the second occasion. Determination of first basis of ground 1. In my respectful opinion, far from being weak, the case that the applicant had sexual contact with the complainant was strong, if not compelling. I say that for the following reasons. 2. First, the applicant, a mature man in his mid-30s, developed – for some unexplained reason on his case – an obviously very close relationship with a young girl who had been a friend of his son, and who was not long out of primary school. They spent a great deal of time together. 3. He was in the habit of picking her up and taking her to school. It is noteworthy that the arrangement was that she would be picked up some distance from her home. 4. Remarkably, the two of them drove at least once alone together to a lookout of an evening, and parked there. 5. He gave her a phone battery when her mother was seeking to cut down the time her daughter spent on the phone. He appreciated that that was wrong, because he attempted to apologise for doing so. 6. Significantly, the applicant gave the complainant a ring, notoriously a signifier of affection. She hid it under her bed. Not only that, the applicant lied to Ms Moore about the provenance of the ring. And that, pertaining to an aspect of his contact with the complainant, admitted lie, significantly damaged his credibility generally. 7. Secondly, on his own evidence, the complainant sent him sexual photographs of herself, and his response was merely to delete them. He neither cut off contact with this young girl, nor raised with his wife nor even Ms Moore his concerns about having received such images from the child with whom he spent so much time. 8. Thirdly, in my opinion the items found in and near the shed constituted powerfully inculpatory evidence. 9. To explore that in more detail, the explanation given by the applicant for the presence of the pregnancy test kit – namely, that he had retrieved it as rubbish from a car upon which he had been working, and kept it for no good reason – did not make sense. On his case, he had no explanation whatsoever for how the pregnancy test came to be in a bag with unused condoms and lubricant. It is also noteworthy that the assertion about finding the kit in a motor vehicle is identical to the admitted lie about the source of the ring. 10. The hiding of the condoms and other items behind the exit sign had a strong flavour of concealment. 11. The assertion that the applicant was concerned to masturbate neatly by using a condom and lubricant was worthy of prompt rejection. The photographic exhibits show that the workshop was far from pristine. And although there was no toilet in the shed, there was one close by. 12. The more refined thesis that the applicant masturbated into a condom that had dried out (because, on his case, it had been removed from its wrapper by the complainant, thereby explaining the presence of her DNA on the outside and his semen on the inside) was particularly fanciful. 13. The applicant was able to provide no coherent explanation as to how Cathy knew that used condoms were to be found in the skip bin. The possibility that she accessed a Facebook message that he sent to his wife, detailing his asserted masturbation at work, including his particular method of disposal of used condoms, borders on the bizarre, and must be rejected. 14. The discrepancies between what the complainant told the police, and what she seemingly told her mother, are readily explained by the entirely natural emotional state of the speaker and the listener at the time of their conversations. 15. As for the receipt and the enquiry by police at the chemist, the complainant made it perfectly clear that she could not be sure about particular dates, times, and locations of purchases. 16. It may be accepted that there were difficulties with the evidence of the complainant; that there were inconsistencies between the first interview, the second interview, what she seemingly told her mother, and her oral evidence; that she suffered from various emotional difficulties; and that the pregnancy kit was seemingly not used. But those inconsistencies are themselves consistent with a young girl who had been sexually assaulted and manipulated by the offender; complete consistency would in truth have been suspicious. So also would emotional problems at the time of the commission of the alleged offences, and at the time of the complaints, be consistent with what the complainant said had occurred. Nor is it inconsistent with guilt for a child at first to deny that he or she has been sexually assaulted. And in any event, any concerns that arise from those matters are, in my opinion, set at rest by the compelling corroboration provided by what was found in and near the shed. 17. To repeat: the evidence of the complainant was that, after the first sexual intercourse featuring withdrawal before ejaculation, the applicant became concerned about pregnancy, purchased a pregnancy kit, condoms and lubricant, and thereafter used a condom when he sexually assaulted her by having penile/vaginal sexual intercourse to ejaculation with her. It is not merely the case that all of those items were found secreted in the very building where the complainant gave evidence that she had been sexually assaulted. It is also the case that a used condom was found that featured the semen of the applicant on what one can infer was its inside, and the DNA of the applicant and the complainant on its outside. In my opinion, that particular item was compelling evidence that penile/vaginal penetration featuring ejaculation had taken place between the applicant and the complainant at the shed, and that thereafter the condom that was used in that crime was discarded in the skip bin. 18. In my opinion, the verdicts of acquittal can be explained generally as the result of a combination of the jury approaching the criminal onus and standard of proof with the utmost seriousness, and the absence of specific corroboration for many of the counts. They do not dissuade me from the view that the Crown case was very strong that the applicant offended sexually against a vulnerable young girl. 19. In the circumstances, I do not propose to analyse in any depth the legal principles that were first discussed in M v the Queen [1994] HCA 63, and most recently returned to by the High Court of Australia in The Queen v Baden-Clay [2016] HCA 25; (2016) 258 CLR 308, and Irwin v The Queen [2018] HCA 8. In my opinion, the verdict of guilty on count 7 was in this general sense well open to the jury; separately, on this general analysis, I experience no reasonable doubt about it. The first basis of the ground is, in my respectful opinion, unpersuasive. Second basis – lack of consent, and knowledge thereof, not open? 1. As I have said, this basis for the ground was the specific proposition that it was not open to the jury to be satisfied about lack of consent and knowledge thereof with regard to count 7, as opposed to its simple alternative. 2. Counsel for the applicant, in her written submissions, asserted that the DNA evidence "said nothing about consent". 3. In oral submissions, counsel for the applicant accepted that the evidence of the complainant not consenting in relation to count 7 was "perhaps stronger" than with regard to other counts, but stated that it needed to be viewed in relation to the whole of her evidence. In particular, counsel noted the difficulties with her credibility in relation to the other counts, and submitted that they may lead one to not accept her evidence on consent. Further, the not guilty verdicts in relation to the lesser charges of indecent assault and digital penetration created an inherent implausibility, in that it was unlikely that the applicant had done neither of those two things, but instead only engaged in penile/vaginal intercourse without consent. Determination of second basis 1. In my opinion, it was well open to the jury to find that the complainant did not consent to the sexual intercourse underpinning count 7, and, at the least, the applicant appreciated a significant possibility that that was her state of mind. 2. Again, I do not consider that this ground requires extensive analysis. The fact is that the complainant repeatedly gave evidence that, during the second shed incident, she made it clear to the applicant that she did not consent to sexual intercourse with him; I have provided extracts of that evidence, for example, at paragraphs [41] and [90] above. And, of course, the applicant could give no contradicting evidence about his or her states of mind at the time of that sexual intercourse, for the simple reason that he denied completely that it had ever occurred. 3. It is true that, on all the evidence, one could infer that the applicant subjected the complainant to a significant degree of manipulation and exploitation, whereby the complainant came, on some level, to appreciate his attention. But the evidence that I have summarised above shows that it was well open to the jury to find that the sexual intercourse underpinning count 7 was knowingly forced upon the complainant by the applicant, especially bearing in mind that Parliament has defined consent as being "free and voluntary agreement", pursuant to s 61HA(2) of the Crimes Act. 4. Again, on the evidence I believe that it was well open to the jury to find that underpinning count 7 was a lack of consent that was communicated to the applicant, and I experience no reasonable doubt about it. Third basis – inconsistency, general and specific? 1. Counsel for the applicant submitted in writing that the evidence of the complainant's DNA being detected on the outside of the black condom, with the applicant's semen on the inside of it, was not capable of logically and rationally explaining the guilty verdict on count 7. It was submitted that the complainant's evidence about the use of a condom during both the second shed incident and third shed incident, and the inconsistency in the evidence as to whether the applicant wore a condom during the first shed incident, made it unclear how the jury could have "allocated" the black condom to the second occasion. 2. Further, the lack of evidence relating to the source of the complainant's DNA found on the black condom meant that the evidence that the complainant had been in contact with the condom, by either filling it with dirt (on her evidence) or playing with and tasting the condoms (on his), was plausible. The evidence of the state of the condoms was also submitted to be more consistent with the applicant's version than the complainant's. That was because there was only one condom found with the complainant's DNA, despite the complainant reporting that at least two occasions of alleged sexual intercourse involved a condom, and no condom had any traces of dirt on the inside. 3. In addition, as the jury found the applicant not guilty in relation to the other counts, being count 5 and 6, that allegedly occurred on the same occasion leading up to count 7, it was submitted that that made it inherently unlikely that non-consensual penile/vaginal intercourse occurred. 4. In oral submissions, counsel for the applicant invited attention to the complainant's first interview, whereby she provided details about the condoms and thought he put them in the skip bin. However, the second interview was the complainant's first mention of the details of lubrication and a pregnancy test. Such items were found in the search that was conducted between the two interviews, and may have been spoken of in the conversations that the complainant had had with her mother, who was present when the search of the skip bin took place. 5. A further inconsistency between the first and second interviews was that the complainant stated in the first interview that on the first occasion a condom had been used, but by the second interview stated she was mistaken, and that no condom was used in the first shed incident. In addition, in the second interview, the complainant stated that condoms were used on the second and third occasions, however, no condom other than the black condom was found to feature female DNA. Determination of third basis 1. I have already explained why I consider that the evidence of the contents of the shed, and the skip bin, and in particular the condom that included the semen of the applicant and the DNA of the complainant was compelling corroboration, and will not repeat myself. But the final question that needs to be answered is: was there a rational basis upon which the jury could experience a reasonable doubt with regard to counts 1 to 6, and counts 8 to 11, but be satisfied beyond reasonable doubt about count 7? In my opinion, the answer is yes, for the following reasons. 2. The used condoms containing the semen of the applicant could only specifically corroborate allegations of penile/vaginal sexual intercourse. They could play no direct role with regard to any allegation of digital/vaginal penetration, indecent assault, or the criminality underpinning grounds 10 and 11. 3. The jury was perfectly entitled to draw a sharp distinction between offences that were potentially corroborated by scientific evidence, and offences that were not. In other words, the verdicts of not guilty on all of the kinds of counts mentioned in the paragraph immediately above are readily explicable in a way that is consistent with the guilty verdict of count 7. That is a sufficient analysis to dispose of any asserted inconsistency based on verdicts of not guilty on any offence that did not include penile/vaginal sexual intercourse. 4. It is to be recalled, however, that the jury found the accused not guilty of count 4 and count 9, each of which did aver penile/vaginal sexual intercourse. Is there a rational basis upon which the jury could have failed to be satisfied beyond reasonable doubt of count 4 and count 9, but have achieved that state of satisfaction with regard to count 7? Yet again, in my opinion, the answer is yes. 5. That is because, as my extracts above show, the final position of the complainant with regard to count 4 was that the applicant did not use a condom on that occasion. It is true that there was some early equivocation about the topic. But the preponderance of the evidence was undoubtedly that the applicant did not use contraception during the first shed incident: see paragraphs [55], [78] and [79] above. And it is to be recalled that the whole thrust of the evidence of the complainant was that it was after the alleged commission of the offence underpinning count 4 – without a condom – that the applicant was concerned to purchase a pregnancy kit, condoms, and lubrication; and, indeed, that count 7 was the first occasion on which the latter two items were used: see the extracts at paragraphs [50], [51], [53] and [85] above. 6. In my opinion it was open to, and rational for, the jury to draw a distinction between count 4 and count 7 on the basis that the latter allegedly featured use of a condom, and the former allegedly did not. If the jury took that approach, there could be no scientific corroboration available with regard to count 4, but there could be with regard to count 7. 7. As for the verdict of not guilty on count 9, two points may be made. The first is that the jury may not have been satisfied that penetration actually took place, bearing in mind the extracts to be found at paragraph [44], [45] and [91] above. And the second is that the evidence with regard to the third shed incident, including count 9, was far less extensive and detailed than the evidence with regard to the second shed incident, including count 7. 8. On those two bases, the jury was entitled to draw a rational contrast between count 7 and count 9. That is because the complainant provided a substantial body of evidence in the first interview, the second interview, her evidence-in-chief, and her cross-examination, about the second shed incident and count 7. It is also because, although there was some initial lack of clarity about it, her firm ultimate position with regard to count 7 (as opposed to count 9) was that it did indeed feature penetration: see paragraphs [42] and [90] above. 9. Finally, it is to be recalled that only one used condom was found with the semen of the applicant on its inside, and the DNA of the complainant on its outside. In my view, the jury were entitled to "assign" that powerful piece of corroboration to the count averring sexual intercourse with use of a condom about which the evidence was most extensive and consistent: count 7. 10. In short, on careful analysis, I consider that the verdict of guilty on count 7 is not only consistent with the verdicts of not guilty on all of the other counts, but also consistent with the verdicts of not guilty on the other counts that alleged penile/vaginal sexual intercourse, count 4 and count 9. 11. To conclude, whether one analyses all of the submissions made by the applicant individually or in combination, I believe that it was open to the jury to find him guilty of count 7. Furthermore, on my own analysis, I experience no reasonable doubt about the correctness of that verdict, and the conviction based upon it. Conclusion 1. In short, in my opinion it was generally open to the jury to return a verdict of guilty on count 7. The evidence that the applicant committed a sexual offence against the complainant was strong. 2. In light of the evidence of the lack of consent of Cathy with regard to the sexual intercourse underpinning count 7, and her evidence of her clear communication of that state of mind to the applicant, in my opinion it was also open to the jury to find the applicant guilty of the aggravated offence constituting count 7. 3. Furthermore, in my opinion, it was open to the jury to draw a differentiation between count 7 and all other counts that, because they were not offences founded upon penile/vaginal penetration, were incapable of corroboration by the items found at the scene, or by scientific evidence derived from them. 4. Finally, in my opinion, it was open to the jury to draw a rational differentiation between count 4, count 7, and count 9, whereby count 4 and count 9 resulted in a verdict of not guilty, but count 7 resulted in a verdict of guilty, for the reasons that I have detailed above. Proposed orders 1. I therefore propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed. 1. FAGAN J: I agree with Button J. ********** 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: 30 July 2018