AB v R

[2022] NSWCCA 104

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

AB v R [2022] NSWCCA 104

Hearing dates:

27 April 2022

Decision date:

25 May 2022

Before:

Adamson J at [1]; Wright J at [101]; Dhanji J at [105]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal allowed.

(3)   The convictions on counts 1 and 2 on the indictment be quashed.

(4)   A new trial be ordered.

(5)   The matter is to be listed in the Arraignments List in the District Court at Sydney on 27 May 2022 at 9:30am.

Catchwords:

CRIME — Appeals — Appeal against conviction — whether trial judge reversed onus of proof — where trial judge stated Ewen and Murray directions — where no incorrect statement of principle

CRIME — Appeals — Appeal against conviction — whether inconsistencies in evidence were not taken into account by trial judge — whether reasons adequately addressed inconsistencies in evidence

CRIME — Appeals — Appeal against conviction — whether evidence of sexualised conduct taken into account by trial judge in the absence of findings — whether all evidence needs to be addressed irrespective of significance

CRIME — Appeals — Appeal against conviction — Unreasonable verdict

Legislation Cited:

Crimes Act 1900 (NSW), ss 66A, 66EB

Criminal Appeal Act1912 (NSW), s 6

Criminal Procedure Act 1986 (NSW), ss 133, 293A, 294AA

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Ewen v R [2015] NSWCCA 117

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Hopgood v R [2019] NSWCCA 246

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7

O’Connell v Director of Public Prosecutions (NSW) [2021] NSWSC 1519

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

R v BK [2022] NSWCCA 51

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v Murray (1987) 11 NSWLR 12

Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24

Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Texts Cited:

Criminal Trials Bench Book

Herbert Broom, Constitutional Law viewed in relation to Common Law and exemplified by cases (1st ed, 1866)

Lord Devlin, Trial by Jury (rev ed, 1966)

Category:

Principal judgment

Parties:

AB (Applicant)
Regina (Respondent)

Representation:

Counsel:
E Kerkyasharian / K Lloyd (Applicant)
G Wright SC (Respondent)

Solicitors:
Just Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/316869

Publication restriction:

Non-publication of any information or material that may lead to the identification of the complainant (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 July 2020; 3 December 2020

Before:

Traill DCJ

File Number(s):

2018/316869

Judgment

1. ADAMSON J: Following a trial by judge alone, AB (the applicant) was convicted by Traill DCJ (the trial judge) of the following offences committed with respect to the complainant:

Count	Charge	Facts
1	Sexual intercourse with child under 10 years under his authority contrary to s 66A(2) of the Crimes Act 1900 (NSW).	Digital penetration of the complainant’s vagina in late 2009 or early 2010 when complainant was 6 years old and under the applicant’s care.
2	Groom child under 14 years with unlawful sexual activity contrary to s 66EB(3) of the Crimes Act.	Showing the complainant images on television of naked couples (male and female) having sex and kissing while the applicant and the complainant were on his bed in his bedroom.

2. The applicant seeks leave to appeal against his convictions on the following grounds:

“1.    In considering the reliability and honesty of the complainant, the learned trial judge reversed the onus of proof.

2.    The learned trial judge failed to take into account the evidence of Ms Van de Vate that she did not observe the alleged sexual assault or in the alternative, failed to provide adequate reasons relating to the evidence in this regard.

3.   The learned trial judge erred in assessing and relying on the ‘complaint’ evidence of the complainant’s grandmother.

4.    The learned trial judge erred by not considering the cumulative effect of the inconsistencies with the complainant’s evidence and between it and other evidence in relation to count 1 or, in the alternative, by giving inadequate reasons in this regard.

5.    The learned trial judge failed to adequately express her findings and reasoning concerning ‘sexualised behaviour’.

6.    The verdict in relation to count 1 was unreasonable.

Count 2 specifically

7.    The verdict in relation to count 2 was unreasonable.

8.    The learned trial judge failed to consider the cumulative effect of the inconsistencies with the complainant’s evidence and between it and other evidence in relation to count 2.

9.    The learned trial judge failed to consider submissions on whether the material was indecent or in the alternative, provided inadequate reasons on the issue.”

3. Because of the breadth of the grounds, it is necessary to address in some detail the conduct of the trial which was conducted over three days, 29 and 30 June and 7 July 2020. The decision was delivered on 10 July 2020. The applicant was sentenced on 3 December 2020.

The Crown case at trial

4. The Crown adduced expert evidence from Dr Susan Hayes who opined that the complainant met the legal definition of a person who has a cognitive impairment and that, at the time of the alleged offences, she would have had a functional age which was lower than her chronological age. Her intellectual disability meant that she was functioning at a level lower than 99.7%, or 98%, of her age peers, according to the particular test applied.

5. The complainant was born in August 2003. The Crown case was, ultimately, that the offence in count 1 had been committed in late 2009 or early 2010 when the complainant was 6 years old.

6. The complainant’s evidence in chief comprised two Joint Investigation Response Teams (JIRT) interviews recorded on 25 May 2018 (when the complainant was 14) and 31 July 2019 (when the complainant was 15) and some short evidence in chief at the trial. The complainant was cross-examined at the trial on 29 June 2020 when she was 16 years old.

Count 1: digital penetration

The complainant’s evidence of count 1

7. The complainant’s evidence was that she was in her bedroom in her pyjamas, playing with her iPad when her “Dad” (the applicant, who was her stepfather) came in to her bedroom and pulled down her pants and started “putting [his finger] in then pulling it back out”. She said that she yelled and shouted. The neighbour “Melissa” [Van de Vate] came to the door of the bedroom and said, “What’s going on?” and the applicant told [Ms Van de Vate] to “leave the house”. The applicant told the complainant not to tell anyone.

Ms Van De Vate’s evidence of count 1

8. Ms Van de Vate lived opposite the applicant. She knew the complainant because the complainant and Ms Van De Vate’s daughter, who was about two years younger than the complainant, played together. The two had been playmates since the complainant was about four years old and Ms Van de Vate’s daughter was about two years old. The complainant spent a lot of time at Ms Van de Vate’s house, particularly on weekends, playing with her daughter.

9. Ms Van de Vate gave evidence that, in January 2010, she heard a female voice screaming and shouting. The sound was coming from the applicant’s house. She entered the house, walked down the hallway to the complainant’s bedroom and saw the complainant and the applicant sitting on the bed. Ms Van de Vate considered that the complainant, who was clothed, appeared to be “very frozen, frightened” and “trembling”. She observed the applicant “adjusting himself”, “crouched pulling pants up” and “fixing his belt”.

10. In cross-examination, Ms Van de Vate accepted that she had told police that she did not think that anything of a sexual nature had occurred but she believed that the applicant may have beaten the complainant with his belt. Ms Van de Vate said that she was “fairly sure” that she had called the police and the Department of Community Services (DOCS) on that occasion. Her evidence as to what she saw was not challenged.

Tendency evidence

11. The following tendency evidence was relied on by the Crown in support of both counts 1 and 2.

UM’s evidence

12. The Crown relied on the evidence which had been given in separate criminal proceedings against the applicant concerning offences against UM (who was the biological daughter of the complainant’s mother and the applicant and therefore the complainant’s half-sister). UM gave evidence in chief in those proceedings that in 2008, when UM was 11 or 12 years old and in year 7 at school, she was, on more than one occasion, in the applicant’s bedroom watching television with him while the complainant and their half-brother (who was between UM’s age and the complainant’s age) were asleep. UM gave evidence that, initially, the applicant masturbated in her presence, but on subsequent occasions he digitally penetrated UM’s vagina several times.

13. At the conclusion of UM’s evidence in chief in the separate criminal proceedings, the applicant pleaded guilty in the presence of the jury to all six counts on the indictment: aggravated act of indecency (count 1); aggravated indecent assault (counts 2-3); aggravated sexual assault (count 4); and aggravated sexual intercourse (counts 5-6).

14. The transcript of UM’s evidence in chief was tendered in the trial of the applicant for offences against the complainant and relied on by the Crown as tendency evidence.

Evidence of sexualised behaviour

Ms Van de Vate’s evidence of sexualised behaviour

15. Ms Van de Vate gave evidence that in about 2009 her daughter and the complainant were playing in her daughter’s room. She heard noises and went to see what was happening. She saw the complainant on top of her daughter “on all fours”, “thrusting and groaning and making … animal-type noises, … like a dog almost.” Ms Van de Vate’s evidence continued:

“And I said, ‘What are you doing?’ And [the complainant] said, ‘I’m playing tigers like I play with my father.’ And I said, ‘You need to get off,’ and she did. And she was laughing. And I was taken aback by what I had seen. And I kept thinking about how young –"

Tara-Ann Cassidy’s evidence of sexualised behaviour

16. Ms Cassidy had been friends with the applicant since she was about 11. UM moved into Ms Cassidy’s home on 5 March 2010 and lived with her for about two years. During 2010, the complainant would visit UM there and stay for a couple of nights at a time. On one such occasion, the complainant touched Ms Cassidy’s daughter on the vagina.

Expert evidence relating to sexualised behaviour

17. Dr Hayes gave evidence that sexual behaviour and sexual experimentation are common among children. She referred to a report of the American Academy of Paediatricians which said that “actions which explicitly imitate sexual intercourse” are “uncommon behaviours in normal children” and “touching peer or adult genitals” is “less common normal behaviour”. This evidence was relied on by the Crown as circumstantial evidence.

Complaint evidence

18. The Crown relied on the following complaints made by the complainant about the conduct which was the subject of count 1:

1. The complainant’s evidence that she told her grandmother, the applicant’s mother (Mrs B), shortly after the event (which was denied by Mrs B);

2. Complaints made by the complainant in 2017 and 2018 to Paula Daley, the foster mother of D, who became friends with the complainant (which was corroborated by the evidence of Paula Daley) and to Avryl Daley, Paula Daley’s daughter, who became the complainant’s carer in about 2016 (which was corroborated by the evidence of Avryl Daley).

Evidence about the complainant telling Mrs B about count 1, shortly after it occurred

19. The complainant’s evidence in the first JIRT interview about complaining to Mrs B about the conduct which was the subject of count 1 was that she had called her grandmother and caught the bus to her house, having told her that she was coming so that she could meet her at the bus stop. The evidence of the complaint was as follows:

“Q 228: And what did you say you told her?

A: She said that’s not good and he shouldn’t have done that.

Q 229: What did you tell her?

A: Dad tried to finger me, then I had run down to the soccer fields and before that I was yelling out and [Ms Van de Vate] came in. She was like, oh, ok.

Q 230: So did you tell your nan your dad tried to finger you or he did finger you?

A: That he did finger me.”

20. In cross-examination on 29 June 2020, the complainant adhered to what she had said in the JIRT interview.

21. Mrs B’s evidence was that if the complainant was coming to her place from school, she would catch the school bus and Mrs B would meet her at the stop just around the corner from Mrs B’s house, but that if the complainant was coming from home, the applicant would normally drive her. She described her relationship with the complainant (while the complainant was living with the applicant) as “[v]ery good” and “[v]ery close”. Mrs B denied that the complainant had ever spoken to her about being sexually assaulted by the applicant. She said that if the complainant had told her that the applicant had fingered her, she would immediately have called her daughter, Wendy, who was a DOCS carer.

22. Mrs B said that the complainant never called her and arranged to stay with her and that she could not recall her ever staying for more than one night.

Evidence of complaint to Paula Daley in around December 2017

23. Paula Daley previously worked as a JIRT officer. The complainant went to live with her for a few months after the applicant was charged with offences concerning UM. Paula Daley’s evidence was that, in around December 2017, the complainant told her that the applicant “used to touch me on my boobs and my private parts … on the outside [of my clothing]”.

Evidence of complaint to Avryl Daley in May 2018

24. Avryl Daley is the daughter of Paula Daley. The applicant went to live with Avryl Daley, after a short placement with Paula Daley. Avryl Daley gave evidence that on 3 May 2018, the complainant told her that when she was living with the applicant, “something inappropriate happened.” Avryl Daley made a note of the disclosure, which was tendered as an exhibit in the trial. It read:

“[The complainant] and myself were cooking dinner and she said

‘Hey Av when I was living at dads House he use[d] to touch me inappropriately’

‘I replied what does that mean?’

‘She replied on my boobs and vagina’

‘I replied where were you?’

[the complainant]) ‘when I lived in King Street’

A) ‘Can you remember much about it?

[the complainant]) She said she was laying on her Bed and her dad [AB] came in and sat on her Bed and would touch her on her vagina and boobs.

A) What does that mean?

[the complainant]) and she replied he would put his fingers in my vagina and rub my boobs with his hand.

A) I asked what did you do?

[the complainant]) she said I screamed and said NO.

A) I asked what did her dad do when you said that?

[the complainant]) he got up and walked out and said don’t tell anyone about this.

[the complainant] she replied I was scared and took off to the soccer fields and when she came home [AB] drove her to nans.

A) [the complainant] also mentioned that she was at home and walked into her dads room and asked to go to a friend[’]s house and he said no you can come here a (sic) watch this first. I asked what did you need to watch?

[the complainant]) [the complainant] replied he made me watch people having sex on Tv once it had finished he said you can go to your friends

3/may 2018

Avryl / [the complainant]

[the complainant] was quite upset.

Called hotline next day.”

Evidence of complaint to Delta Daley

25. Delta Daley was a contemporary of the complainant and lived with her mother, Avryl. Delta Daley gave evidence that the complainant told her that her father used to touch her inappropriately and touch her breast. Delta did not give evidence that the complainant had told her that her father had digitally penetrated her vagina or made her watch indecent material. Delta did not remember the complainant saying how many times it happened and was not sure whether the complainant had told her that he had touched her anywhere else.

Count 2: grooming

The complainant’s evidence

26. A few weeks after the events which were the subject of count 1, the complainant told the applicant that she wanted to go to her friend’s house. The applicant told her that before she could leave she had to watch something on television. She was in the applicant’s bedroom with him, watching people having sex and kissing. She described the people as being male and female naked couples. She was scared as she did not know whether the applicant would do something to her.

Tendency evidence

27. The Crown also relied on the tendency evidence referred to above in respect of count 2.

Complaint evidence

Complaint evidence of Avryl Daley

28. The complainant gave evidence that she told Avryl Daley about the events which were the subject of count 2. Avryl Daley’s evidence as to the complaint relating to count 2 is set out above together with her evidence as to the complaint relating to count 1.

The defence case

29. No evidence was adduced by the applicant (apart from a map of the location of his home). His case at trial was that the Court could not be satisfied of the complainant’s evidence because it was internally inconsistent, implausible and inconsistent with other evidence (as referred to in more detail below). The principal inconsistencies relied upon were:

1. the inconsistency between the complainant’s evidence that Ms Van de Vate came into her bedroom while the applicant was fingering her; and Ms Van de Vate’s evidence that she did not see anything of a sexual nature and that she saw the applicant adjusting his belt; and

2. the inconsistency between the complainant’s evidence that she told Mrs B what had happened and Mrs B’s evidence that no such complaint was made and that, if it had been made, she would have contacted DOCS.

The reasons for decision

30. Her Honour set out the elements of the offences in each of the two counts and defined relevant terms. Her Honour stated (in respect of count 2):

“The word ‘indecent’ means ‘contrary to the ordinary standards of respectable people in this community.”

[Emphasis in original.]

31. Her Honour set out the onus of proof (on the Crown) and the standard of proof (beyond reasonable doubt). Her Honour recited the directions she had given to herself, including as to the drawing of inferences, the duty to act rationally and the right of the applicant not to give evidence, a right which the applicant chose to exercise.

32. The portion of the trial judge’s reasons, entitled “Ewen direction”, was accepted to be a reference to the following articulation by Simpson J in Ewen v R [2015] NSWCCA 117 at [104] (Basten JA and Davies J agreeing) of the common understanding of what constitutes a Murray direction (named after R v Murray (1987) 11 NSWLR 12):

“The term ‘Murray direction’ tends to be loosely used, and to be undefined. As I understand it, it is most commonly used to refer to a direction that, in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care.”

33. In this portion, her Honour said:

“In this case, the Crown case in relation to both charges is based largely on the evidence of [the complainant]. There is some evidence from other Crown witnesses which support her evidence, in particular the neighbour, [Ms Van de Vate] and complaint witnesses. In respect of complaint, there is some evidence from [Mrs B] which contradicts [the complainant]'s evidence. However, in relation to the direct allegations of sexual assault in counts 1 and count 2 of grooming, the complainant is the sole witness. This is usual in cases of sexual assault allegations.

Scrutiny of the evidence is a necessary role for the judge of the facts. I accept that it is necessary to be extremely careful when assessing the evidence of the complainant, as in order to prove the case to the required standard, the judge must accept her evidence to that standard. She is the primary witness on the charges laid. In doing so, I would also assess [the complainant]'s evidence to inquire whether there is any evidence to support her evidence generally, such as what she said in her complaints and the version she gave to others. These other people include Ms Paula Daley, Ms Avryl Daley and Ms Delta Daley.

[The complainant] participated in her first interview with the police on 25 May 2018. Her second interview was conducted on 31 July 2019.

[The complainant] was cross examined by Mr Townsend on 29 June 2020. It is necessary to compare the contents of her JIRT interviews with [the complainant’s] oral evidence at the pre-recorded evidence hearing to assess her evidence for accuracy, consistency and reliability. It is also necessary to consider the entirety of her evidence in light of other evidence presented by the Crown, and assess whether corroboration exists or corroboration could properly occur, or for inconsistencies where inconsistencies may raise a doubt as to the reliability of the Crown case.

Further, in assessing [the complainant]'s evidence, I must remain aware that the complaints were made to Paula Daley in the Christmas period of 2017 to 2018, and to Avryl Daley on 3 May 2018.    In the Crown case, the most likely timeline for the alleged offending was the latter part of 2009 to March 2010. At that time, [the complainant] was six years old. In assessing [the complainant’s] evidence, I must remain aware that the complaints occurred a lengthy period of time after [the complainant] had ceased living with the accused.

Scrutiny of [the complainant’s] evidence requires scrutiny of evidence of the people to whom she complained on the first and subsequent occasions, and whether their evidence is also honest, accurate and reliable. [The complainant] said that she also told her grandmother, [Mrs B], about the alleged incident forming count 1 on the following day. In the context of this case, I must be aware that all the participants are attempting to recall incidents that occurred possibly nine to ten years ago, and that some of those participants were children and perhaps had no particular reason to recall an event or a particular timeframe within which an event occurred. I also consider the timeliness of the complaint and whether it was reasonable that [the complainant] did not complain earlier than she did.”

[Emphasis added to indicate the passages highlighted by the applicant in submission in this Court.]

34. As referred to in more detail below, the applicant argued that her Honour erred by looking for evidence which “supported” the complainant’s version rather than considering the whole of the evidence; reversed the onus of proof (by inquiring whether inconsistencies raised a doubt about the Crown case); and by taking into account the complainant’s evidence about telling Mrs B without referring to Mrs B’s evidence which denied any such complaint.

35. Her Honour also included directions as to the need to consider each count separately, a Markuleski direction (named after R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) and a direction regarding pre-recorded evidence. Her Honour also gave herself a warning under s 293A of the Criminal Procedure Act 1986 (NSW) which provides:

“293A Warning may be given by Judge if differences in complainant’s account

(1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability.

(2) In circumstances to which this section applies, the Judge may inform the jury—

(a) that experience shows—

(i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and

(ii) trauma may affect people differently, including affecting how they recall events, and

(iii) it is common for there to be differences in accounts of a sexual offence, and

(iv) both truthful and untruthful accounts of a sexual offence may contain differences, and

(b) that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.

(3) In this section—

difference in an account includes—

(a) a gap in the account, and

(b) an inconsistency in the account, and

(c) a difference between the account and another account.”

[Emphasis in original.]

36. When referring to the effects of delay, her Honour said in part:

“With respect to the delay of complaint, [the complainant] said she did not delay in complaining, but told her grandmother the following day. This is disputed by [Mrs B]. I keep in mind that if the alleged events occurred between late 2009 and 2010, then the complaint to Paula Daley was made in the Christmas period of 2017 to 2018, approximately seven years later. I remind myself that the delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of sexual assault may hesitate in making or may refrain from making a complaint about such an assault. However, the delay in making a complaint, if it is accepted that she did not complain to [Mrs B], is a matter that I may take into account in assessing the credibility of [the complainant]'s evidence as to what she said the accused did.”

[Emphasis added.]

37. The applicant submitted that the last sentence showed that the trial judge reversed the onus of proof by, in effect, requiring that the applicant prove that the complainant did not complain to Mrs B.

Evidence of count 1

38. Her Honour summarised the complainant’s evidence, including, with respect to count 1, as follows:

“[The complainant] said that when her neighbour was at the door of the bedroom, her dad was still fingering her, and her dad told her neighbour to get out of the house.”

39. With respect to the complainant’s complaint to Mrs B about count 1, her Honour referred to the complainant’s evidence in her JIRT interview that the day after it had occurred, she “caught the bus to [Mrs B’s] place, stayed there a few nights, told her what happened and then went home.”

Evidence of count 2

40. Her Honour summarised the complainant’s evidence with respect to count 2.

41. Her Honour also said:

“In assessing [the complainant’s] evidence as being truthful and reliable, I must also look to other evidence called on behalf of the Crown. The Crown also relies on the evidence of [Ms Van de Vate] in respect of count 1, complaint evidence of Paula Daley and Avryl Daley, evidence of sexualised behaviour observed by Ms Cassidy and Ms Van de Vate, and the tendency evidence of UM.”

Other lay evidence

42. After summarising the evidence of Ms Van de Vate, her Honour said:

“Ms Van de Vate’s evidence is important evidence as it corroborates, to some extent, the evidence of [the complainant] in respect of count 1. In respect of count 1, [the complainant] said that she screamed whilst the alleged offence was occurring and told the accused to stop, and Ms Van de Vate walked into her bedroom. Ms Van de Vate said that it was the screaming that drew her to the house in the first place. Ms Van de Vate also said she saw [the complainant] lying on her bed where [the complainant] has alleged the offence occurred. The accused also told her to leave.

Whilst there are inconsistencies between [the complainant’s] evidence and that of Ms Van de Vate regarding the presence or absence of CS at the house, and whether the timing of the event was in the morning or at dusk; those inconsistencies are understandable given the lapse of time between the alleged incident, the age of [the complainant] at the time (being probably six years of age), and the intellectual disability of [the complainant].”

43. After considering other evidence, her Honour addressed the evidence of Mrs B. Her Honour said, in part:

“The evidence of [Mrs B] became contentious at the trial. [Mrs B] is the mother of the accused and the grandmother of [the complainant]. [Mrs B] is now 87 years of age. [The complainant] said that the day after count 1 occurred, she went to [Mrs B’s] house and in effect, told her that the accused had inserted his finger into her vagina.

[Mrs B] said that she saw [the complainant] often when [the complainant] was living at 5 King Road, sometimes with others and sometimes by herself. [Mrs B] said that if [the complainant] was coming to her house from school, [the complainant] would catch the bus, and if [the complainant] was coming from 5 King Road, [the complainant] would normally be driven.

[Mrs B] said that when [the complainant] was living at 5 King Road, relationship with [the complainant] was very close. [Mrs B] denied that she spoke to [the complainant] about being sexually assaulted by the accused.

…

The Crown submitted that the Court would reject the evidence of [Mrs B] as being untruthful or unreliable, given the passage of time.

In cross-examination by Mr Townsend, [Mrs B] said that, if [the complainant] had told her that her father had fingered her, she would have immediately rung her daughter, Wendy as Wendy was a DoCS carer. [Mrs B] said that she would have called Wendy, who would have questioned [The complainant] properly and would have done the right thing. Mr Townsend submitted that the evidence of [Mrs B] should be preferred over that of [the complainant], who was six years old at the time.”

Tendency evidence

44. Her Honour referred to the evidence of the applicant’s conduct towards UM and set out the Crown’s submission that the applicant had a sexual interest in prepubescent children under the age of 16 years and was prepared to act on that interest in the following way:

“1) towards a female child for which he was the sole carer;

2) that he would persist despite being asked to stop;

3) that the offences occurred in bedrooms at 5 King Road;

4) that the accused repeatedly committed acts of digital penetration; and

5) that those acts occurred during 2008, close to the time proximity of the indictment.”

The trial judge’s summary of the parties’ submissions

The Crown’s submissions at trial

45. Her Honour referred to the Crown’s submission that the complainant’s evidence was supported by the following:

“…the evidence of Ms Van de Vate in respect of count 1, the complaint evidence in respect of counts 1 and 2, the evidence of sexualised behaviour as observed by Ms Cassidy and Ms Van de Vate, and the tendency evidence of UM that the accused had a sexual interest in prepubescent female children under 16 years and was prepared to on that interest in a strikingly similar way, which I have set out in the tendency direction.”

The applicant’s submissions at trial

46. Her Honour included the following in her summary of the applicant’s submissions at trial:

“It was submitted that the evidence of [the complainant] is not consistent with the evidence of Ms Van de Vate, as [the complainant] said that her pants were down, whereas Ms Van de Vate said that when she came into the doorway of [the complainant’s] room, she saw nothing of a sexual nature taking place.

It was submitted that Ms Van de Vate did not witness sexual intercourse, and if she had, it was implausible that she would do nothing, as on another occasion she called the police.

It was submitted that, on [the complainant’s] account, neither she nor the accused were aware that Ms Van de Vate was there until she appeared in the bedroom doorway.

Mr Townsend further submitted that [the complainant] said that the alleged sexual assault occurred in the morning of a school day, and nominated a Tuesday. On the other hand, Ms Van de Vate said that the incident occurred around dusk, which is the time the accused was usually at the pub drinking.

Mr Townsend submitted in respect of [the complainant’s] evidence that the following day, [the complainant] told [Mrs B] that the accused had fingered her and [Mrs B] said “That's not good. He shouldn't do that,"; it is implausible that [Mrs B] did nothing about this very serious complaint.

Mr Townsend also submitted that another inconsistency is whether CS was at the house at 5 King Road or with his friend ‘Will’. It was submitted that the inconsistency regarding CS’ whereabouts is significant, because CS did not meet Will until 2014, and therefore, he could not have been with Will in 2009 and 2010 when the incidents are alleged to have occurred.

Mr Townsend also submitted that [Mrs B] said that [the complainant] never came to her house out of the blue, with no prearrangement. It was submitted that the Court should accept the evidence of [Mrs B]; and in order for the Court to accept [the complainant’s] evidence, the Court would have to reject the evidence of [Mrs B].

In respect of count 2, Mr Townsend submitted that the incident is implausible, as the events described by [the complainant] occurred out of the blue.

Mr Townsend said that it was implausible that at the age of six, [the complainant] would be crossing two major roads to walk to Priscilla Gurney's house. Exhibit 1 was tendered to demonstrate the distance between Priscilla Gurney’s house and 5 King Road.

Mr Townsend submitted that count 2 was implausible, as [the complainant] did not complain to CS nor UM, who were living in the house at the time.

Mr Townsend submitted that the evidence [the complainant] gave of people having sex and kissing and having no clothes on is a very long bow to draw that that was indecent material. It was submitted that there was no evidence to show that the accused had the intention of showing material to [the complainant] to procure her for unlawful sexual activity.

In respect of the evidence of Dr Hayes, it was submitted that the Court be satisfied that the behaviour described is sexualised behaviour and not a game. It was submitted that Dr Hayes’ report also states that children who have not been sexually abused can display sexualised behaviour (Page 3 of Dr Hayes’ report).

It was submitted that there are some inconsistencies in [the complainant’s] evidence that may be considered peripheral, however, many inconsistencies are significant and go to the heart of the case. In particular, it was submitted that in light of Ms Van de Vate’s observation that she did not see anything sexual happening between the accused and [the complainant], the Court would not accept [the complainant’s] evidence as being honest, accurate or reliable.

It was submitted that the accused should not be found not guilty in respect of both counts on the indictment.”

Determination

47. After reciting the relevant directions and summarising the evidence, the trial judge, at page 37 of a 44-page judgment, set out her reasons for decision under the heading, “Determination”.

48. The trial judge noted that the Crown relied on the complainant whom her Honour described as “a single witness”. Her Honour reminded herself of the need to “examine the evidence of [the complainant] with great care”. Her Honour also noted that the credibility of the complainant “can be assessed with regard to all other evidence, and the Crown relies specifically on the observations of Ms Van de Vate in respect of count 1.”

49. Her Honour expressly took into account the delay between the time of the alleged conduct (late 2009 to 2010) and the time that the complaint gave her JIRT interviews (2018) and the time that she gave evidence at the trial (June 2020). Her Honour also said that she would use the evidence of the complainant’s complaint to Paula Daley in the Christmas period of 2017 to 2018 and to Avryl Daley on 3 May 2018.

50. The trial judge’s assessment of the complainant’s evidence that she complained to Mrs B was as follows:

“I accept [the complainant]’s evidence that she did make an almost immediate complaint to Mrs [B], however in assessing the weight to be attached to that evidence, I take into account the passage of time, the age of [the complainant] at the time (being approximately six years of age), and the age of Mrs [B]. Mrs [B] said that [the complainant] did not complain. A child of six years of age may not have been able to fully articulate the words or the actions of the accused to her grandmother at the time, although she may have believed she was doing so. [The complainant] may have thought she was telling her nan about the incident but did not articulate it properly. It may well be that Mrs [B] did not understand what [the complainant] was saying. I do not make a positive finding that Mrs [B] has been untruthful; rather, I find that her evidence is unreliable or mistaken as to what she was told by the complainant.”

51. Her Honour referred to the complainant’s complaints to Paula, Avryl and Delta Daley and found that, having regard to the complainant’s situation and the circumstance that she was under the applicant’s authority at the relevant time, the delay in complaint did not diminish the reliability of the complainant’s evidence.

52. Her Honour referred to the evidence of Ms Van de Vate and the inconsistency between the complainant’s evidence of the timing of Ms Van de Vate’s arrival and Ms Van de Vate’s evidence. Because of the importance given to this passage by the parties in their submissions, it will be set out in full:

“In my view, the evidence of Ms Van de Vate is powerful and corroborative of the evidence of [the complainant]. Ms Van de Vate said that she only went to [the complainant]’s bedroom twice, and on one particular occasion, she was drawn to the house after she heard [the complainant] screaming, and she saw the accused adjusting himself while sitting on the bed, or just rising from the bed. Although Ms Van de Vate did not actually see any sexual assault taking place, she did see the accused in the position described by [the complainant] and inferred that [the complainant] had been harmed in some way. This is very cogent evidence that is consistent with [the complainant]’s allegation which forms count 1 on the indictment.

Whether the inability of a complainant to recall elements of the surrounding circumstances affects the reliability of the complainant’s evidence depends upon an analysis of the particular circumstances that the complainant is asked to recall, and the likelihood that the circumstances would have been the subject of or the focus of the complainant. The evidence must be looked at in a global way and should be considered on an issue‑by‑issue basis. Some features, because they are so intertwined with the conduct described, may be readily recalled. Others, which are more peripheral, may not be significant to the complainant at the time of the conduct and are unlikely to be recalled. For example, the fact that [the complainant] recalled that Ms Van de Vate came into the house at the time, to the door of her bedroom, is significant and something she clearly recalled, and that is what is corroborated by Ms Van de Vate’s evidence.

In considering the likelihood that a particular circumstance may be recalled, it is relevant to consider the age of [the complainant], and whether a child of the age of [the complainant], being six years old, would have been attentive to the particular surrounding features. Failure of [the complainant] to recall or know whether her sister or brother was home at the relevant time does not undermine the reliability of her evidence.”

[Emphasis added to indicate the passages relied on by the Crown as constituting sufficient reasons for the resolution of inconsistencies between the complainant’s evidence and Ms Van de Vate, as indicated in the previous paragraph.]

53. The trial judge also referred to the inconsistencies in the complainant’s evidence which were relied on by the applicant’s trial counsel. Her Honour found that those inconsistencies did not raise a doubt about the complainant’s description of the “particular sex act” in count 1. Her Honour also found that the alleged inconsistencies in respect of count 2 were not such as to raise a doubt with respect to count 2.

53. Her Honour was satisfied that the images which the applicant showed to the complainant constituted indecent material, being “slides or film of adults having sexual intercourse while they were naked.” The trial judge found that the applicant had exposed the complainant to indecent material with the intention of making it easier to procure her for unlawful sexual activity. Her Honour confirmed that she had relied on the tendency evidence as supporting the complainant’s evidence.

54. Further, her Honour having found count 1 beyond reasonable doubt, used count 1 as tendency evidence in support of count 2.

Consideration

56. Before turning to the grounds, I note that s 133 of the Criminal Procedure Act provides:

“133   Verdict of single Judge

(1)       A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2)        A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3)       If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

57. The applicable principles relating to the requirement that trial judges give reasons were summarised as follows by Johnson J (Price and Lonergan JJ agreeing) in Hopgood v R [2019] NSWCCA 246 at [47]:

“Reasons for verdict following a Judge-alone trial must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached. The trial Judge must expose his or her reasoning process by identifying the principles of law applied and the findings of fact made and the reasoning process by which those matters are linked: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28]; AK v The Queen (2008) 232 CLR 438; [2008] HCA 8 at [85]. In determining an appeal against conviction from a trial by Judge alone, this Court should read the reasons of the trial Judge fairly and as a whole.”

58. Section 294AA of the Criminal Procedure Act is also relevant. It provides:

“294AA   Warning to be given by Judge in relation to complainants’ evidence

(1)       A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.

(2)       Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.

(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.”

59. Because of s 133 of the Criminal Procedure Act, the prohibition in s 294AA applied to the trial judge conducting the trial alone and without a jury.

60. Ground 1 can be addressed separately. Grounds 2, 3, 4 and 6 relate to count 1. Ground 5 is a related ground based on alleged inadequacy of reasons. Grounds 7, 8 and 9 concern count 2.

Ground 1: alleged reversal of the onus of proof

61. Mr Kerkyasharian, who appeared on behalf of the applicant with Ms Lloyd, submitted that her Honour, in effect, accepted the complainant’s evidence before enquiring whether there was any other evidence to support it or detract from it and thereby reversed the onus of proof. He particularly emphasised the number of occasions on which her Honour referred to evidence that “supported” the complainant and said that this indicated that her Honour was not looking at the evidence as a whole and, in particular, was not having regard to evidence which did not support the complainant.

62. Her Honour emphasised the onus of proof on more than one occasion in the reasons for decision and emphasised that the Crown bore the onus of proving the applicant’s guilt beyond reasonable doubt. Her Honour also referred to the need to assess the evidence as a whole. Although her Honour referred to the question whether there was evidence to “support” the complainant’s evidence, this was in the context of the Ewen direction. It is noteworthy that the Murray direction in the Criminal Trials Bench Book at [3-610] includes the following:

“In considering the [essential Crown witness’] evidence and whether it does satisfy you of the accused’s guilt, you should of course look to see if it is supported by other evidence.”

[Emphasis added.]

63. Her Honour was correct to refer to Ewen rather than Murray because in Ewen, as referred to above, this Court held that a Murray direction was inappropriate in a case concerning sexual assault where the sole witness was the complainant because such a direction would be inconsistent with s 294AA of the Criminal Procedure Act (set out above).

64. Having regard to the trial judge’s correct statement of the principle and no indication that it was not applied, I am not satisfied that ground 1 has been made out.

The count 1 grounds: grounds 2, 3, 4, 5 and 6

65. In substance, Mr Kerkyasharian submitted that the two main inconsistencies referred to above impugned the complainant’s credibility and were not taken into account or adequately addressed by the trial judge in her reasons.

66. He said that other inconsistencies in the evidence were referred to by her Honour but these (such as whether the complainant’s brother was living in the house) were not as significant as the two which he identified.

67. Mr Kerkyasharian also submitted that her Honour did not deal with the cumulative effect of inconsistencies or consider how they might bear on the complainant’s credit.

68. As referred to above, these two inconsistencies were an important part of the applicant’s case at trial and grounded his submission that the trial judge could not be satisfied of the complainant’s evidence beyond reasonable doubt because aspects of her evidence were unreliable and inconsistent with other evidence. I accept Mr Kerkyasharian’s submission that, in these circumstances, her Honour was obliged to explain in her reasons why she accepted the complainant’s evidence notwithstanding these inconsistencies.

The inconsistency between the complainant’s evidence and that of Ms Van de Vate as to the timing of Ms Van de Vate’s arrival

69. In her reasons, the trial judge summarised the complainant’s evidence and the evidence of Ms Van de Vate. Her Honour considered Ms Van de Vate’s evidence to be “powerful and corroborative” of the complainant’s evidence. I consider that, in the second and third paragraphs highlighted in [52] above, her Honour was referring to the inconsistency identified above as to the time at which Ms Van de Vate came to the door of the complainant’s bedroom, what she saw when she came and what she did in response.

70. Her Honour accepted Ms Van de Vate’s evidence that she “did not see any sexual assault taking place” although she saw the applicant on the complainant’s bed and inferred that she had been “harmed in some way”. Thus, her Honour, by necessary implication, rejected the complainant’s evidence that Ms Van de Vate had seen the applicant actually committing the offence which was the subject of count 1. I am not persuaded that it was necessary for her Honour to spell out in terms the complainant’s evidence which she did not accept since this was made plain by her Honour’s acceptance of Ms Van de Vate’s evidence, which was, to that extent, inconsistent with that of the complainant.

71. I understand the paragraph which follows this finding to constitute the trial judge’s reasons for not regarding the inconsistency as adversely affecting the complainant’s credibility or reliability about the acts which constituted the offence. Her Honour appears to have regarded the precise timing of Ms Van de Vate’s arrival as being “more peripheral” and “unlikely to be recalled”, in contrast to the fact of Ms Van de Vate’s appearance at a time when the complainant had just suffered the offending conduct and Ms Van de Vate was coming to the residence in response to the complainant’s screams and announcing her arrival by calling out before she came to the bedroom door. Although her Honour did not refer to the matter of the precise timing, in terms, I consider that, in light of the context, her Honour must be taken to have been averting to it in that paragraph, having already rejected the complainant’s evidence on that matter in the previous paragraph.

72. In essence, her Honour considered that the evidence of the complainant as to the applicant’s conduct (which constituted count 1) was credible and reliable and that it was supported by Ms Van de Vate’s evidence that, when she arrived in response to the complainant’s screams of distress, the complainant was fearful and frozen and the applicant was adjusting his belt, which led Ms Van de Vate to infer that the applicant had just done something to the complainant. Her Honour regarded other matters, such as whether Ms Van de Vate arrived during the sexual assault (as the complainant said she had) or immediately afterwards (as it would appear that Ms Van de Vate did, since she did not see the assault), what the applicant and Ms Van de Vate said to each other and who else lived in the house at the time, to be peripheral matters about which the complainant’s recollection was (where her evidence was inconsistent with Ms Van de Vate’s) faulty. Her Honour’s reasons were adequate to explain why her Honour considered that the complainant’s faulty recollection about peripheral matters did not adversely affect her reliability and credibility about the elements of the offence in count 1.

73. I accept the Crown’s submission in this Court that her Honour’s assessment that what Ms Van de Vate did observe (and its consistency with other aspects of the complainant’s account) outweighed the significance of her not seeing the actual assault (as the complainant said she had). Her Honour’s reasons are sufficient to explain why her Honour did not regard this matter as detracting from the overall truthfulness of the complainant’s account, on the basis that the complainant may have been mistaken about this “peripheral” matter.

74. I do not consider the present to be in the same category as AK v Western Australia (2008) 232 CLR 438; [2008] HCA 437 (AK) in which it was common ground (in the High Court) that the trial judge’s reasons were insufficient to comply with the equivalent statutory obligation imposed on trial judges by s 133 of the Criminal Procedure Act. The question for the High Court was whether the proviso applied. However, the Court’s observations concerning the requirement for reasons to be given bear on the present case.

75. In AK, the accused (AK) was charged with indecent dealing with his cousin, the complainant. An issue at the trial before judge alone was the identity of the complainant’s assailant. The evidence established that AK, the complainant and the complainant’s brother were all in a bed in a caravan on the night of the alleged offences. The complainant said that she was certain that it was AK and not her brother who had assaulted her but gave no basis for her certainty. The trial judge stated that he was satisfied beyond reasonable doubt that AK was guilty of the offences charged and convicted him.

76. In AK, the trial judge’s reasons included the following:

“Dealing with the first … or perhaps before dealing specifically with the incidents, whilst talking generally about the complainant’s evidence, it is to be observed that she did not make a complaint to anyone about any of these matters until it was ascertained that she was pregnant and required a therapeutic termination, and it was at that stage and only at that stage that she brought these matters to the attention of anyone. The fact that she had not complained earlier does not of course mean that these events did not occur, but the lack of prompt complaint is a matter the court must take into account in assessing her credibility generally.

The impression I got from the complainant’s evidence and the manner in which she gave it was that she is indeed terribly embarrassed about the situation here and for the reasons that she outlined, which in summary are that at her age, to be engaged in any sexual activity was inappropriate and the more so having regard to the relationship between herself and the [appellant] and the cultural issues involved.

I am satisfied beyond reasonable doubt that the three dealings alleged in the first incident occurred and in the manner described by the complainant. I'm satisfied that the - those dealings occurred in the early part of the year 2002 when the complainant was under the age of 16 years. I am satisfied that the dealings were initiated by the defendant and although not invited and, one suspects, not appreciated by the complainant, she did nothing to desist. That is not to the point, since to engage in sexual activity with a person under the age of 16 years, consensual or otherwise, is an offence and I am satisfied beyond reasonable doubt on the evidence that the [appellant] indecently dealt with the complainant in the three ways alleged. That is that he placed his hand on her breast, that he touched her vagina and that he placed her hand on his penis. And the [appellant] will be convicted as charged in respect of each count of indecent dealing in the complaints before the court!”

77. The Western Australian Court of Appeal held unanimously that the trial judge’s reasons were insufficient to comply with the statutory obligation to give reasons because the reasons failed to indicate that there was an issue of identification and did not advert to any of the evidence relevant to that issue.

78. Gleeson CJ and Kiefel J said, of present relevance, at [17]:

“[The issue of identification] had to be dealt with (although not necessarily at great length) in the reasons for decision. There being a question of identification raised, the judge was obliged to say why, and how, he resolved it in favour of the prosecution.”

79. Gummow and Hayne JJ said at [36]:

“… The reasoning which led to that conclusion was not stated.”

80. Heydon J, who considered that the trial judge’s failure to comply with the requirement to give reasons was “almost as complete a failure as could be imagined”, said, at [85]:

“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”

[Footnotes omitted.] 

81. From the vantage point of an appellate court, the grounds of appeal will necessarily highlight the significance of particular passages in the reasons of a trial judge sitting alone without a jury. When subjected to close scrutiny, such reasons may appear to be deficient since there is almost always something more that could be said. However, as Johnson J said in the passage from Hopgood set out above, it is necessary to read such reasons fairly as a whole.

82. I accept Mr Kerkyasharian’s argument that the trial judge could have been more explicit about the way in which her Honour resolved the inconsistency between the complainant’s evidence and Ms Van de Vate’s evidence as to what occurred when Ms Van de Vate arrived at the bedroom door. However, it is, in my view, sufficiently clear from her Honour’s reasons that her Honour considered the complainant’s evidence about the offending conduct to be central and what was occurring at the time of Ms Van de Vate arrival to be “peripheral”. Her Honour found that the offending conduct had ceased by the time Ms Van de Vate, having announced her arrival, came to the bedroom door. Her Honour explained, in general terms, why inconsistencies regarding such peripheral matters did not affect the reliability of the complainant’s evidence about central matters, which her Honour found to be supported by complaint evidence, evidence of the complainant’s screaming and distress at the time of the count 1 offence and the significant tendency evidence.

83. I consider that her Honour’s reasons were sufficient to deal with this aspect of the applicant’s case at trial and to fulfil the obligations on the trial judge imposed by s 133 of the Criminal Procedure Act.

The inconsistency between the complainant’s evidence that she complained to Mrs B and Mrs B’s evidence to the contrary

84. The trial judge adequately summarised the evidence of the complainant and Mrs B as to the complaint made by the complainant following the acts which constituted count 1. I consider that the extract at [50] above is adequate to explain her Honour’s reasoning.

85. In substance her Honour found as follows:

1. the complainant complained to Mrs B about “what happened”, believing that she was communicating that the applicant had sexually assaulted her;

2. the complainant did not give evidence of the precise terms in which she complained to Mrs B;

3. Mrs B may not have understood that what the complainant said to her amounted to a complaint of sexual assault and thus denied that the complainant made a complaint to her; and

4. as a consequence, Mrs B’s evidence denying the complaint did not impugn the complainant’s credibility (or that of Mrs B, to the extent relevant).

86. In these circumstances, the fact that Mrs B denied that a complaint had been made did not adversely affect the complainant’s credibility but it meant that the trial judge could not take into account the evidence of the complainant having complained to Mrs B as complaint evidence but had to look at the evidence of subsequent complaint having been made to Paula and Avryl Daley in 2017 and 2018. Her Honour did not regard the delay in making these complaints as adversely affecting the complainant’s credit because she had previously been under the applicant’s authority and made the complaints when she was no longer under his authority.

87. I consider that her Honour’s reasons were adequate to explain the approach her Honour took to the inconsistencies raised by Mr Kerkyasharian.

Alleged failure to express findings and reasoning concerning “sexualised behaviour” (ground 5)

88. The applicant accepted that the trial judge had referred to the evidence of the complainant’s sexualised behaviour - playing tigers and sitting on top of and touching another girl’s vagina - and to the report of Professor Hayes. The applicant also accepted that the trial judge had recorded the Crown’s submission that the evidence was relied on as circumstantial evidence and the submission made by the applicant that the Court would have to be satisfied that the behaviour was, as a matter of substance, sexualised and not merely a game.

89. The applicant’s submission that the trial judge did not give reasons to indicate what her Honour made of the evidence or the submissions must be accepted. Her Honour did not specify whether she found the behaviour to be evidence of sexualised conduct or not or what effect it had on her conclusions. Although the trial judge referred to “tendency evidence”, she did not separately identify the evidence relied on in support of the submission that the complainant engaged in sexualised conduct which indicated that she had been sexually assaulted.

90. It is not necessary for the tribunal of fact to make findings about every piece of evidence adduced. The evidence of alleged sexualised behaviour was of relatively low significance in the trial. Professor Hayes was not required for cross-examination. Her Honour’s reasons indicated that she gave substantial weight to the evidence of the conduct which was said to constitute the charges as well as to the evidence of similar conduct which had been committed against UM, which was admitted as tendency evidence. I do not regard her Honour’s failure to refer to the evidence in coming to her conclusions as showing that it was disregarded completely but rather as an indication that her Honour gave it no, or little weight. Had the evidence been of greater significance, her Honour’s obligation to give reasons would have required findings to be made and reasons to be given for those findings. I am not persuaded that the evidence was of that calibre.

88. For these reasons, I am not persuaded that ground 5 has been made out.

Alleged unreasonable verdict with respect to count 1 (ground 6)

92. The evidence in support of count 1 has been summarised above. Having regard to the warning in s 293A of the Criminal Procedure Act, which her Honour gave herself, it was open to her Honour to decide whether any differences in the complainant’s accounts were important in assessing her truthfulness and reliability.

93. Although Ms Van de Vate did not actually see the assault, the complainant’s version was supported by the fact that she screamed so loudly that Ms Van de Vate was sufficiently concerned to come to the applicant’s residence to see what had caused the complainant to scream. Further, the appearance of the complainant when Ms Van de Vate arrived (that she was frozen and frightened) supported the proposition that something untoward had happened to the complainant at the hands of the applicant.

94. The complainant’s evidence was also supported by the tendency evidence of the applicant’s conduct with respect to UM and the complaints she made in 2017 and 2018.

95. Her Honour had the advantage of seeing and hearing the complainant giving evidence and was entitled to accept her evidence, which was supported in some respects by the evidence of Ms Van de Vate, the tendency evidence and the evidence of complaint. Having considered all of the evidence, I consider that it was open to her Honour to find the applicant guilty of count 1 beyond reasonable doubt.

The count 2 grounds

Alleged failure to consider submissions on the complainant’s inconsistencies and whether the material was indecent or provided inadequate reasons on the issue (grounds 8 and 9)

96. The trial judge summarised the submissions put on behalf of the applicant at trial which, in substance, were that the descriptions given by the complainant were insufficient to establish that the material was “indecent”. Her Honour found that they were indecent and convicted the applicant of count 2.

97. Mr Kerkyasharian argued that the complainant’s evidence was insufficient to establish that the material was, in fact, indecent and that her Honour had failed to address the inconsistencies in the descriptions given by the complainant as to the medium in which she saw the pictures of the people having sex and kissing. He argued that the description given by the complainant differed markedly from UM’s evidence that she had watched “Big Love” (a show about a polygamist and his four wives) and a commercial television show such as “Dr Who” with her father when he sexually assaulted her on his bed.

98. In both the JIRT interview and in her evidence at trial, the complainant said that she had seen the images on the television. Although she had used the word “slide” at trial and not in her JIRT interview, she consistently referred to the television as being the medium through which she had seen the images. It is sufficiently plain from her description that they were “having sex and kissing” and that the images were moving images rather than still ones. I consider that her Honour’s reasons were adequate to explain her finding that the applicant was guilty of count 2.

Alleged unreasonable verdict with respect to count 2 (ground 7)

99. I have considered all the evidence adduced in the trial as a whole which includes the evidence adduced with respect to count 2. I am satisfied that on the basis of the evidence admissible against the applicant with respect to count 2, together with her Honour’s acceptance of the complainant’s credit with respect to count 1, it was open to the trial judge to find the applicant guilty of count 2 beyond reasonable doubt.

Proposed orders

100. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

101. WRIGHT J: I agree with the orders proposed by Dhanji J. 

102. In respect of grounds 1, 5 and 9, I agree with the reasons given by Adamson J. 

103. In relation to grounds 6 and 7 which contended that the verdicts for counts 1 and 2, respectively, were unreasonable, I agree with the reasons of Adamson J and have also formed my own view that, on the whole of the evidence, it was open to the judge sitting as the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty.  In other words, I do not think that the judge must, as distinct from might, have entertained a doubt about the applicant’s guilt. 

104. As to grounds 2, 3, 4 and 8, I agree with the reasons of Dhanji J.

105. DHANJI J: I have had the considerable advantage of reading in draft the reasons of Adamson J. I agree with her Honour as to the disposition of grounds 1, 5, 6, 7 and 9 and with her Honour’s reasons with respect to those grounds.

106. I have, however, come to a different view as regards grounds 2 and 3 (and it follows, grounds 4 and 8). My reasons are set out below.

Ground 2 – the failure to take into account the evidence of Ms Van de Vate that she did not observe the alleged sexual assault or (as argued in the alternative) the failure to provide adequate reasons relating to evidence in this regard

107. The applicant elected to be tried by judge alone. In giving up his right to trial by jury (and all that that entails), the applicant received, in exchange, an entitlement to reasons (see AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89]-[98]; Lord Devlin, Trial by Jury (rev ed, 1966)). In Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24, French CJ and Kiefel J observed at [54] that the “centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised”, referring to Herbert Broom, Constitutional Law viewed in relation to Common Law and exemplified by cases (1^st ed, 1866). That the obligation to give reasons in the present context arises as a result of the applicant having foregone his right to the verdict of a jury brings into focus the centrality of that function.

108. The applicant’s entitlement to reasons finds a statutory basis in s 133 of the Criminal Procedure Act 1986 (NSW) which provides:

133 Verdict of single Judge

(1)    A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2)    A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3)    If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

109. While s 133(2) refers only to the principles of law applied and the finding of facts relied on by the judge, the sub-section does not provide an exhaustive statement of the requirement for reasons. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, the High Court when dealing with the predecessor to the current provision (s 33 of the Criminal Procedure Act), which was in relevantly identical terms to the current provision said (at [28]):

“… whilst s 33(2), when specifying that which a “judgment” must include, does not use the expression “reasons for judgment”, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.”

110. A failure to observe the requirements of s 133(2) or s 133(3) will be a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act1912 (NSW) and may also constitute a miscarriage of justice within the third limb of that provision: Fleming at [27]. In each case it will be necessary to consider the application of the proviso to s 6(1).

111. Given the obligation to give reasons, the absence of any reference to a particular matter (particularly one of importance) might indicate that the particular matter was not taken into account; alternatively it may indicate a failure to properly articulate the reasoning process leading to the result: see Fleming at [30] (in the context of the articulation of principles of law); and see also Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 per Hayne J at [129]-[130]. It is these potentialities that appear to have informed the manner in which ground 2 was framed. The minimum obligation to give reasons informs both issues. However, what is required as a minimum does not lend itself to a determinative statement. In AK v Western Australia, Heydon J said (at [84]):

“… In many cases the question of whether there has been compliance with the duty imposed by s 120(2) of the Criminal Procedure Act will raise questions of degree. Those questions will arise where a trial judge has stated various principles of law but has failed to state another, although it has obviously been assumed. They may arise where a judge has stated that numerous facts have been found, but has omitted to state a particular finding of fact. In many cases the question of whether there has been compliance with s 120(2) will also raise difficulties of distinguishing between, on the one hand, a defective statement of legal principle, an unconvincing factual finding, an invalid inference or a questionable application of principle to fact and, on the other hand, a failure to state a principle of law, make a finding of fact or expose the “reasoning process linking” the principles of law to the findings of fact.” (footnote omitted)

112. See also R v BK [2022] NSWCCA 51 per Hamill J at [269]-[270].

113. In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, Kiefel CJ, Keane and Edelman JJ said (at [32]-[33]):

“32   The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision". In the absence of an express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied". One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

33   The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge's failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."” (footnotes omitted)

114. See also per Bell J at [80-[82] and per Nettle J at [130]-[132]. At [132], Nettle J noted that a judge in a criminal trial without a jury is:

“… bound to produce reasons for judgment of at least the quality expected of his or her civil brethren. It is, however, even more important in criminal proceedings than in civil that a trial judge's reasons meet the standard required. It follows that a judge's failure to deliver adequate reasons is an error of law productive of a miscarriage of justice which, subject to application of the proviso, will necessitate that a conviction be set aside.” (footnotes omitted)

115. To similar effect, see also AK v Western Australia at [89]. Nettle J’s observation above is informative with respect to the requirement to give reasons, there being many cases in the civil sphere which have expanded on the nature of the duty to give reasons. One such case is Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 where McColl JA set out the principles at [56]-[66]. A summary of these principles, taken from O’Connell v Director of Public Prosecutions (NSW) [2021] NSWSC 1519 at [37] appears below:

“i.    The reasons must, as a minimum, be adequate for the exercise of a facility of appeal (at [56]);

ii.    A superior court considering the decision of an inferior tribunal should not be left to speculate from collateral observations as to the basis of a particular finding (at [56]);

iii.    The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes a sense of grievance and denies both the fact and the appearance of justice having been done, thus working a miscarriage of justice (at [57]);

iv.    The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning leading to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties (at [58]);

v.    The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the decision and the extent to which their arguments had been understood and accepted. It is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another (at [59]);

vi.    A failure to refer to some of the evidence does not necessarily, wherever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence which is critical to an issue in the case, and contrary to an assertion of fact made by one party but accepted by the judge, may promote a sense of grievance, and give rise to a feeling of injustice in the mind of the most reasonable litigant (at [61]);

vii.    Although it is not necessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, where such evidence is not referred to by the trial judge, an appellate court may infer that the judge has overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to (at [62]);

viii.    Where there is documentary material arguably supporting a party’s case, that material must be considered in the judge's reasons in a satisfactory way (at [63]);

ix.    Bald conclusionary statements should be eschewed. In particular, it is not appropriate for a trial judge merely to set out the evidence adduced by one side, then set out the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one over the other (at [64]);

x.    Where credit issues are involved it is necessary to explain why one witness’s evidence is preferred another’s. Bald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute adequate compliance with a judge's duty to provide the parties, and the appellate court, with the basis of his decision (at [65]);

xi.    Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence which competes with evidence which was apparently accepted, and no explanation is given in the judgment for rejecting the evidence, the process of fact finding will have miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that which was not (at [66]).”

116. As noted above, in a criminal context the requirements will be no less than those set out above which apply in the civil context.

The present case

117. Proof of the offence required an acceptance of the evidence of the complainant alone, to the criminal standard with respect to, at least, her evidence establishing digital penetration as to which she was the only witness. Reliance on a single witness did not mean, of course, that the case could not be established beyond reasonable doubt. It was, as the trial judge directed herself, necessary to consider what other evidence was available which tended to support or to cast doubt on the complainant’s version of events. That other evidence was, given the above, however, not evidence of the event itself, but evidence of surrounding events. While the applicant did not produce any evidence in his own case, in a criminal context this is not unusual. His “case” was that the prosecution evidence was, for various reasons, insufficient to prove the allegations to the requisite standard.

118. While the complainant was the only witness to give evidence of the critical event, on her version there was, in fact, an eyewitness. Unsurprisingly, a significant aspect of the applicant’s case at trial was that the complainant’s evidence was not consistent with that of the eyewitness. The complainant gave evidence of the events which made it plain that her pants and underpants had been pulled down to her knees. She said that while the applicant was engaged in digital penetration, Ms Van de Vate came to the door of the bedroom. The following questions and answers were given:

“Q182   Yep. And did they come to you, your bedroom, or - - -

A   They were at the door of my bedroom.

Q183   And when your neighbour was at the door of the bedroom, what was happenin' with you and your dad?

A   Um, he was still fingering me.

Q184   And did the neighbour say anything, or did your dad say anything, or - - -

A   My neighbour said to stop it right now, and then my dad said, Get out of the house.

Q185   So, what happened when your dad said, Get out of the house?

A   Um, she left.

Q186   And how did she leave?

A   Um, she just turned around and walked out of my room.

Q187   Is that when your, your dad stopped?

A   Yes.”

119. Ms Van de Vate said she heard shouting and screaming and went to investigate. She said she got to the door and made it known she was coming in and gave the following evidence:

“Q. How did you do that?

A. I said, “I’m coming in”, as I came down the right-hand side of the hallway and I walked in to [the complainant’s] room and saw [the complainant] on the bed and her father at - sitting on the bed adjusting himself.

Q. I’ll just ask you about [the complainant] first.

A. Mm-hmm.

Q. You said you saw [the complainant] on the bed, what position was [the complainant’s] body in?

A. She was lying very stiff but her knees were up.

Q. Do you remember what she was wearing?

A. I think that she was wearing pink tracksuit pants and a white top.

Q. You said that she seemed very stiff, how else did she look?

A. Very frozen. Frightened. Like she couldn’t move.”

120. And further in cross-examination:

“Q. When you made your first statement on 14 January 2019 to the police you said this, “[the complainant] has never disclosed to me that she has been indecently or sexually assaulted by any persons and I have never walked in and seen anything of this nature occurring in her home”. That’s true, isn’t it?

A. That’s correct.

Q. When you made the second statement on 17 February 2020 this year, you said this at para 13, “I saw [the applicant] sitting on the end of the bed. He did not look at me and he appeared to be adjusting his clothing. I did not think anything of a sexual nature had occurred. I thought maybe [the applicant] had been beating [the complainant] with his belt”. Is that true?

A. That's correct.”

121. It is plain from the above accounts that either the complainant or Ms Van de Vate was wrong as to what was occurring at the time Ms Van de Vate arrived at the bedroom door. Further, on the complainant's account, not only was Ms Van de Vate present at the time she was being sexually assaulted, but she also said “stop it right now”, apparently in reference to the sexual activity. Ms Van de Vate did not suggest she had said anything along these lines. Additionally, it should be noted that while Ms Van de Vate referred to the applicant adjusting his clothing there was no evidence given by the complainant as to the applicant having removed or adjusted his own clothing.

122. The applicant's counsel made the following submissions to the trial judge in respect of this evidence:

“The complainant’s evidence is not consistent with the evidence of other witnesses on points where one would expect it would be. Melissa Van de Vate, on [the complainant’s] evidence, entered the room and witnessed a sexual assault. There can be no doubt on [the complainant’s] evidence that Melissa Van de Vate saw what was happening. She said that her pants and underpants were down. She said she was lying on the bed with her back to the wall. She said her father was next to her with his finger inside her vagina. She was trying to pull away from him.

There was no indication that there were any clothes or bedclothes that were disguising the assault. Nothing could have impeded Melissa Van de Vate’s vision from the doorway. Yet Ms Van de Vate said that she saw nothing of a sexual nature taking place. If that, as evidence, is accepted, that is impossible.”

123. And further:

“Because when Melissa saw them, [the complainant] was clothed, she described the clothing that she was wearing. That’s what Melissa says, but that’s not what [the complainant] says. [The complainant] says, as I read you to earlier question and answer from 183, “When the neighbour was at the door of the bedroom, Dad was still fingering me. The neighbour said, ‘Stop it right now’, and then my Dad said, ‘Get out of my house.’”

On [the complainant’s] account, neither her nor her father were aware of Melissa being there until she appeared in the doorway. Given what Ms Van de Vate says about the noise that was coming from the room, it may well be that they weren’t aware of her being there. [The complainant] said that the sexual assault happened on a morning of a school day, she even nominated a Tuesday. Melissa said that the only time she went into the house and saw [the applicant] and [the complainant] in [the complainant’s] room was at a time of night when [the applicant] was usually at the pub drinking. In her evidence, she said, “Possibly dusk”.

That’s not a peripheral issue. Neither is a peripheral issue as to [the complainant] saying, “He was fingering me when Melissa was in the doorway”.”

124. The trial judge gave herself, as she described it, an “Ewen” direction (Ewen v R [2015] NSWCCA 117). She said:

“I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charges.

In this case, the Crown case in relation to both charges is based largely on the evidence of [the complainant]. There is some evidence from other Crown witnesses which support her evidence, in particular the neighbour, Ms Melissa Van de Vate and complaint witnesses. In respect of complaint, there is some evidence from [Mrs B] which contradicts [the complainant’s] evidence. However, in relation to the direct allegations of sexual assault in counts 1 and count 2 of grooming, [the complainant] is the sole witness. This is usual in cases of sexual assault allegations.”

125. It is significant that, in referring to the evidence of the neighbour, her Honour referred to this evidence as part of the evidence supporting the complainant’s account. Certainly, it is true that part of the neighbour’s evidence supported the complainant’s account. It established that there was an occasion on which something happened between the complainant and the applicant which prompted Ms Van de Vate to come into the house to investigate. However, part of Ms Van de Vate’s evidence directly contradicted an aspect of the complainant’s account of what occurred. While her Honour’s observation that reliance on a single witness “is usual in cases of sexual assault allegations” was correct, as noted above, an unusual feature of this matter was that on the complainant’s account, there was an eyewitness to the act of digital penetration alleged by her.

126. Having given herself various directions of law, including the Ewen direction referred to above, her Honour summarised the evidence called at trial. Having summarised the complainant’s evidence her Honour said:

“In assessing [the complainant’s] evidence as being truthful and reliable, I must also look to other evidence called on behalf of the Crown. The Crown also relies on the evidence of Melissa Van de Vate in respect of count 1, complaint evidence of Paula Daley and Avryl Daley, evidence of sexualised behaviour observed by Ms Cassidy and Ms Van de Vate, and the tendency evidence of UM.”

127. Her Honour then summarised the evidence given by Ms Van de Vate. Having done so her Honour said:

“Whilst there are inconsistencies between [the complainant’s] evidence and that of Ms Van de Vate regarding the presence or absence of CS at the house, and whether the timing of the event was in the morning or at dusk; those inconsistencies are understandable given the lapse of time between the alleged incident, the age of [the complainant] at the time (being probably six years of age), and the intellectual disability of [the complainant].”

128. The inconsistencies referred to above were, arguably, minor and consequently not of a character that necessarily undermined the complainant’s account. Significantly, however, no reference was made in this passage to the more significant inconsistency between the accounts of the complainant and Ms Van de Vate as to the presence of Ms Van de Vate at the time of digital penetration, and the cessation of that penetration as a result of Ms Van de Vate’s intervention.

129. The key passage of her Honour’s reasons appears under the heading “determination”. Having noted the need to examine the evidence of the complainant “with great care”, her Honour observed that the “credibility of [the complainant’s] evidence can be assessed with regard to all other evidence, and the Crown relies specifically on the observations of Ms Van de Vate in respect of count 1”. While this was true, the defence, of course, also relied upon the inconsistency between the complainant and Ms Van de Vate.

130. Her Honour then continued, noting that she had considered the evidence given by the complainant and the need to look to see whether “it is supported by other evidence” in determining the weight to be attached to that evidence. Her Honour then referred to evidence of complaint. Critically for present purposes, her Honour then said:

“I have referred, at some length, to the inconsistencies between [the complainant’s] evidence and other witnesses, and the internal inconsistencies in her evidence. In my view, the evidence of Ms Van de Vate is powerful and corroborative of the evidence of [the complainant]. Ms Van de Vate said that she only went to [the complainant’s] bedroom twice, and on one particular occasion, she was drawn to the house after she heard [the complainant] screaming, and she saw the accused adjusting himself while sitting on the bed, or just rising from the bed. Although Ms Van de Vate did not actually see any sexual assault taking place, she did see the accused in the position described by [the complainant] and inferred that [the complainant] had been harmed in some way. This is very cogent evidence that is consistent with [the complainant’s] allegation which forms count 1 on the indictment.”

131. While her Honour’s observation that Ms Van de Vate “did not actually see any sexual assault taking place”, would appear to be an acknowledgement that the degree to which her evidence could support the complainant was limited, her Honour nonetheless found Ms Van de Vate’s evidence to be “very cogent evidence that is consistent with [the complainant’s] allegation”. Her Honour’s acceptance that the evidence of Ms Van de Vate was “powerful and corroborative”, however, required her to reconcile the inconsistencies between her evidence and of the complainant’s as to what was occurring at the time at which she arrived. In this regard her Honour indicated that she had “referred, at some length” to inconsistencies between the complainant’s evidence and that of other witnesses. However, the key inconsistency – that Ms Van de Vate was not in fact there at the time of digital penetration – had not been referred to, other than in a passage recounting the submission made by the applicant’s counsel. The earlier passage dealing with inconsistencies between the complainant and Ms Van de Vate is set out above at [127], and deals only with issues of the time of day and the presence or absence of CS at the house at the relevant time. These issues are of a very different quality to the complainant’s recollection of what was actually happening at the time she was being sexually assaulted.

132. The respondent submitted that it can be inferred that Her Honour had regard to the inconsistency between Ms Van de Vate’s evidence and that of the complainant. I do not agree. Immediately after the passage set out above her Honour continued (in the passage emphasised by Adamson J at [52]):

“Whether the inability of a complainant to recall elements of the surrounding circumstances affects the reliability of the complainant’s evidence depends upon an analysis of the particular circumstances that the complainant is asked to recall, and the likelihood that the circumstances would have been the subject of or the focus of the complainant.    The evidence must be looked at in a global way and should be considered on an issue-by-issue basis. Some features, because they are so intertwined with the conduct described, may be readily recalled. Others, which are more peripheral, may not be significant to the complainant at the time of the conduct and are unlikely to be recalled. For example, the fact that [the complainant] recalled that Ms Van de Vate came into the house at the time, to the door of her bedroom, is significant and something she clearly recalled, and that is what is corroborated by Ms Van de Vate’s evidence.

In considering the likelihood that a particular circumstance may be recalled, it is relevant to consider the age of [the complainant], and whether a child of the age of [the complainant], being six years old, would have been attentive to the particular surrounding features. Failure of [the complainant] to recall or know whether her sister or brother was home at the relevant time does not undermine the reliability of her evidence.”

133. Her Honour in the above passage singled out Ms Van de Vate’s presence at the door and appears to have characterised it as “so intertwined with the conduct described” as to be readily recalled. Her Honour did not, however, explain why the complainant’s evidence of Ms Van de Vate’s call on the applicant to stop during the act of digital penetration did not detract from the complainant’s account. Further, having relied on the evidence of Ms Van de Vate as corroborating an aspect of the complainant’s evidence, her Honour immediately continued, by addressing the significance of inconsistencies. Her Honour said:

“Any inconsistency in the description of the precise conduct alleged is a matter to be given significant weight when assessing the reliability of [the complainant’s] account. I must be satisfied that the sexual act relied upon by the Crown, being digital penetration, has been proved beyond reasonable doubt.

In assessing the credibility of [the complainant’s] evidence, I have taken into account the complaint evidence and the tendency evidence by way of circumstantial evidence of [the complainant].

Mr Townsend in his closing address, referred to a number of inconsistencies in [the complainant’s] evidence, which I have referred to earlier. However, in my view, these inconsistencies do not operate to significantly undermine the reliability of [the complainant’s] evidence and is not sufficient to raise a doubt about [the complainant’s] evidence that the specific sexual act in count 1 occurred. Inconsistencies, including whether CS or UM were in the house at the time of count 1, whether CS was with his friend Will, whether the allegations in count 1 occurred in the morning or at dusk, and whether [the complainant] caught a bus or was driven to Mrs Brooks’ house the next day, are not significant to raise doubts about [the complainant’s] evidence that the sexual act occurred. These inconsistencies do not raise a doubt about the veracity of [the complainant’s] description of the particular sex act described in count 1.

Ultimately, in my view, [the complainant] has given her evidence of the particular conduct relied upon by the Crown in support of count 1, and [the complainant] did not depart from the evidence she gave about the accused inserting his finger in her vagina.

In respect to the elements of the offence in count 1, I am satisfied beyond reasonable doubt that the accused digitally penetrated [the complainant’s] vagina, and that at the time of the sexual intercourse, [the complainant] was under the age of ten years and that, at the time of the sexual intercourse, [the complainant] was under the authority of the accused, the accused being the sole carer of [the complainant].” (emphasis added)

134. It can be seen that, after acknowledging that “[a]ny inconsistency in the description of the precise conduct alleged is a matter to be given significant weight”, her Honour did not deal with the key inconsistency with respect to Ms Van de Vate’s evidence. Her Honour did refer to the fact that counsel had addressed on inconsistencies, and, as noted above, in setting out counsel’s arguments, her Honour had referred to the particular argument with respect to Ms Van de Vate. However, her Honour’s reference to “inconsistencies in [the complainant’s] evidence, which I have referred to earlier”, appears to relate to the inconsistencies she had discussed in the course of her reasoning which did not include the inconsistency between the complainant’s evidence and that of Ms Van de Vate’s concerning the latter’s presence and intervention at the time of the digital penetration. Even if this is not the case, the simple statement that “these inconsistencies do not operate to significantly undermine the reliability of [the complainant’s] evidence” is not sufficient to explain how this inconsistency was dismissed. (I pause to note that it was, of course, not a matter of the evidence being “sufficient to raise a doubt” but for the prosecution evidence to exclude reasonable doubt. However, reading the reasons fairly and as a whole, I agree with Adamson J that the onus of proof was not reversed.)

135. It may have been possible to reconcile Ms Van de Vate’s evidence with that of the complainant, but that is not to the point. The most obvious possibility is that relied upon by Adamson J; that is that Ms Van de Vate arrived after the digital penetration had ceased and that the complainant was mistaken as to this aspect of the matter. That also requires a rejection of the complainant’s evidence that Ms Van de Vate said to “stop it right now”, in reference to the digital penetration. It is possible that the complainant has constructed this version to fit in with her belief that Ms Van de Vate witnessed the digital penetration. However, acceptance of Ms Van de Vate’s evidence (or more accurately, acceptance of the possibility her evidence was true) had the result that the complainant’s narrative as to what occurred between her and the applicant was not entirely accurate (or could not be accepted beyond reasonable doubt as entirely accurate). That did not mean that the account of digital penetration was necessarily inaccurate. It did mean, however, that that possibility needed to be considered. This was a matter that needed to be dealt with by the trial judge.

136. Ultimately, the applicant was entitled to know how it was that the trial judge was satisfied of his guilt, beyond reasonable doubt, in circumstances where the complainant’s recollection of what was happening while she was being sexually assaulted was, effectively, contradicted by another independent witness. With respect to the arguments of the Crown and the reasons of Adamson J, for the reasons above, I do not accept that the matter could be discounted as simply one of timing given the complainant’s evidence that Ms Van de Vate called on the applicant to stop. If the reliability of the complainant’s evidence of digital penetration were to be accepted, then the most likely explanation was timing. But to simply assume it was timing requires an assumption the event occurred.

137. I am of the view that the reasons of the trial judge are inadequate. They fail to expose the reasons for resolving a point critical to the contest between the parties. This Court is left to speculate from collateral observations as to the basis on which the trial judge accepted the complainant’s evidence despite the conflict between her evidence and that of Ms Van de Vate. The lack of explication with respect to evidence which was important to the applicant’s case is such as to leave the applicant justifiably aggrieved, and promotes the sense that justice has not been done.

138. Whether the failure is one limited to the giving of reasons or one that extends to a failure to have regard to the evidence is discussed below. Either way, the ground is made out.

Ground 3 – the assessment of and reliance on the evidence of complaint to Mrs B

139. With respect to ground 3 I agree with Adamson J that it was open to the trial judge to find that Mrs B had not understood the complaint made to her by the complainant. I also accept, as the applicant submitted, that this finding had the consequence that the complainant did not make a complaint in the terms in which she, in her evidence, said she did. The applicant submits that the consequent impact on her credit was not addressed by the trial judge. However, while it was not directly addressed, her Honour’s reasons address why Mrs B may not have understood the complaint (as set out by Adamson J at [50]). The trial judge there found that the complainant believed she was complaining in direct terms, but that her articulation of the complaint at the age of 6 may not have been what she believed it to be. It follows that she would subsequently give (inaccurate) evidence of a complaint in direct terms. While not clearly articulated, the reasons are sufficient to my mind to explain the complainant’s evidence of the terms of her complaint to Mrs B.

139. There were, however, other aspects to the evidence of this complaint that required analysis. The complainant said that the morning after the act of digital penetration occurred, she telephoned Mrs B and arranged for Mrs B to meet her at the bus stop near Mrs B’s house, rather than attending school. The complainant gave evidence that, having travelled to see Mrs B and made the complaint, Mrs B responded to her by saying “That’s not good, and, um, he shouldn’t have done that”. The complainant said she then stayed at Mrs B’s house for more than one night.

140. Mrs B, in contrast gave evidence that the complainant had never arranged to have Mrs B meet her at the bus stop, any such arrangement being invariably made by a parent. Mrs B also said that the complainant had never come to her house on a school day instead of going to school. Nor could Mrs B recall any occasion on which the complainant had stayed with her for more than one night. This evidence cast doubt on the complainant’s evidence of the circumstances in which the complaint was said to have been made. Further, the complainant’s evidence that Mrs B responded to the complaint needed to be reconciled with her Honour’s conclusion that Mrs B had not understood the complaint. With respect to the trial judge, these aspects of the evidence were not adequately dealt with. Before finding that the complainant’s evidence of a direct complaint to Mrs B, which was not supported by Mrs B, could be explained by miscommunication, it was also necessary to deal with these aspects of the evidence.

141. It may be that there were other explanations for the conflict in the evidence, such as, as the Crown maintained at trial, Mrs B’s desire to protect her son. However, as with the evidence of Ms Van de Vate, it is not sufficient to simply proffer a way in which the evidence can be explained consistent with proof of guilt. It was a matter the trial judge was obliged to consider. The reasons needed to reflect that consideration by articulating the resolution of the conflict in the evidence between the complaint and Mrs B, beyond simply the words spoken.

142. Before leaving this ground, I note that, despite finding the complainant made an almost immediate complaint to her grandmother, the trial judge appears not to have relied on this evidence in support of the complainant’s credibility as to the occurrence of the event. She did however rely on the much later complaints to Paula and Avryl Daley, noting in the conventional fashion potential explanations for delay in these complaints. Despite the lack of reliance on the evidence of complaint to Mrs B as complaint evidence in the usual way, it remained necessary to deal with the conflict in the evidence. On the defence case, the complainant’s reasonably elaborate evidence of calling her grandmother, making arrangements to get the bus to her grandmother’s instead of attending school, and staying there for more than one night, was, given the evidence of Mrs B, a fantasy. More particularly, it was a fantasy connected with her account of having been sexually assaulted by the applicant. The evidence was consequently, of some importance to the defence case and needed to be dealt with.

Grounds 4 and 8 – failure to consider the cumulative effect of the inconsistencies or to give adequate reasons in this regard

144. Having come to the view that grounds 2 and 3 are made out, it is strictly unnecessary to consider these grounds. It follows from my view that her Honour did not give adequate reasons with respect to the matters the subject of grounds 2 and 3, that the cumulative effect of those matters was not considered. It should however, be noted there is force in the argument that it was necessary to properly consider, in relation to count 1, that there were significant differences in the evidence not only with respect to the event itself but also as to what happened the next day. While the matters the subject of grounds 2 and 3 were more remote with respect to count 2, they nonetheless had the potential to impact the complainant’s credit generally and thus impact on count 2.

The remaining count 2 grounds – grounds 7 and 9

145. As noted above, I agree with Adamson J with respect to the disposition of these grounds. However, it should also be noted that, in determining count 2, the trial judge relied on her finding with respect to count 1 as tendency evidence in support of count 2. It follows that any error in the determination of count 1 necessarily affected count 2.

146. The applicant is entitled to success with respect to both counts, subject to the application of the proviso which I consider below.

The proviso

147. As submitted by the respondent, a failure to give adequate reasons does not, necessarily, preclude application of the proviso to s 6(1) of the Criminal Appeal Act. While in AK v Western Australia the High Court found that the appellate court’s satisfaction of the appellant’s guilt beyond reasonable doubt did not have the result that there had been no substantial miscarriage of justice, this conclusion was reached after consideration of the nature of the error. Gummow and Hayne JJ (who, with Heydon J, formed the majority) noted (at [55]) that it will, “in every case … be necessary to consider the application of the proviso … taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal”. Their Honours went on to observe firstly, that the statutory provision required the reasons to articulate the connection between the relevant legal principle and the relevant findings of fact, but secondly that the “particular failure that was identified related to the central issue in the appellant’s trial”. The issue in that case was identification. The trial judge accepted the evidence of the complainant who believed the perpetrator was the appellant but said nothing as to why that evidence was accepted. It can be accepted that the failure in this case was not so egregious.

148. While the errors I have identified are of substance, I am ultimately of the view that if I am satisfied of the applicant’s guilt to the requisite standard, he will not have suffered a “substantial miscarriage of justice”: see DL v The Queen.

149. In considering for myself the proof of the applicant’s guilt from the record of the trial, I am entitled to have regard to not only the evidence given but the verdict of the trier of fact who had the advantage of seeing and hearing the witnesses. As adverted to above, it is not possible to know whether the present case involves a failure to have proper regard to the significance of important evidence together with a failure to give adequate reasons, or simply a failure to give adequate reasons. If, say, the verdict was reached without having regard to the conflict between the evidence of the complainant and Ms Van de Vate, the trial judge will have misused her advantage and the verdict at first instance would be of no assistance to my determination.

150. However, even if the error was simply one in relation to the giving of reasons, it does not follow that I can nonetheless rely on that verdict. As discussed above, it is possible to articulate bases on which the trial judge could have reasoned to guilt despite the conflicts in the evidence. One can also postulate that, given her acceptance of the complainant’s evidence, had the trial judge specifically addressed the issues, she may still have reasoned to guilt. However, the exercise of providing reasons is not simply to justify a conclusion. It involves a process of reasoning to a conclusion. In this regard it cannot be assumed that, had the trial judge specifically addressed the issue, her conclusion would inevitably have been the same. In AK v Western Australia Heydon J observed (at [108]) that the discipline of giving reasons serves:

“… [not] only the purpose of enabling the accused to know why there was a conviction, or the prosecution to know why there was an acquittal. The facility it offers for close appellate scrutiny of the trial judge means that it creates an essential discipline. The process of having to state judicial reasoning in terms sufficiently clear, exact and convincing to pass muster in the eyes of an appellate court listening to the sometimes hypercritical submissions of counsel entails a need to be very precise in working that reasoning out. The discipline stems from the fact that the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion ”won’t write”, and that a different conclusion develops.”

151. It cannot be assumed that had the trial judge engaged in the process of articulating the conflict between the evidence of the complainant and Ms Van de Vate, and that between the complainant and Mrs B, and found a way to reconcile the competing versions in a way that was favourable to the Crown, she would have necessarily reached the same conclusion. Given this, even if limited to an error as to the giving of reasons, the nature of the error is such that the verdict at first instance has limited utility. The credit of the complainant is central to the determination of guilt and I have not had the advantages that exist in hearing a matter at first instance in assessing her evidence: see Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 per Kiefel CJ, Bell, Keane and Gordon JJ at [15]. In these circumstances, I am not satisfied, based on the record of trial, of the applicant’s guilt beyond reasonable doubt. It follows that I am not satisfied there has been no substantial miscarriage of justice and the appeal in relation to count 1 must be allowed.

152. As discussed above, the evidence the subject of grounds 2 and 3 had the potential to impact the complainant’s credit more generally. Further, the trial judge relied on count 1 in support of her conclusion that count 2 was made out. The verdict at first instance with respect to count 2 is again of little assistance in determining the applicant’s guilt solely on the record of the trial. I am not satisfied beyond reasonable doubt of the applicant’s guilt based on that record. Accordingly, I am of the view the appeal must also be allowed in relation to count 2.

153. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. The convictions on counts 1 and 2 on the indictment be quashed.

4. A new trial be ordered.

5. The matter is to be listed in the Arraignments List in the District Court at Sydney on 27 May 2022 at 9:30am.

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Amendments

03 June 2022 - name of complainant and applicant anonymised - [119], [120], [122], [123], [124]

Decision last updated: 03 June 2022