Asiminaris v The King - [2023] NSWCCA 321

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Asiminaris v R [2023] NSWCCA 321
Hearing dates: 8 September 2023
Date of orders: 13 December 2023
Decision date: 13 December 2023
Before: Mitchelmore JA at [1]
Dhanji J at [118]
Sweeney J at [119]
Decision:
(1)   Time be extended to 16 June 2023 for the applicant to file the notice of appeal.
(2)   Leave to appeal is granted.
(3)   The appeal is dismissed.

Catchwords:
CRIME — Appeals — Appeal against conviction — Child sex offences – Three counts of sexual intercourse with child >10 <16 – Two counts under authority – Unreasonable verdict – whether complainant’s evidence inherently unlikely and lacked detail – whether opportunity to develop closeness – where certain matter unexplored and unexplained – whether statement made to arresting officer and effect of statement – whether alleged location of third count possible given evidence of applicant’s brother – whether reasonable possibility applicant’s account might be true

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 66C(1)-(2), 578A
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Procedure Act 1986 (NSW), s 306I
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases Cited:
AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Hawi v R [2014] NSWCCA 83
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA
WG v R; KG v R [2020] NSWCCA 155
Z (a pseudonym) v R [2022] NSWCCA 8

Category: Principal judgment
Parties: Katherine Asiminaris (Applicant)
Office of the Director of Public Prosecutions (Respondent)
Representation:
Counsel:
C O’Neill (Applicant)
G Newton SC (Respondent)
Solicitors:
Murphy’s Lawyers Inc (Applicant)
NSW Director of Public Prosecutions (Respondent)

File Number(s): 2017/00154841
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of the identity of the complainant or any information that identifies him is prohibited.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

10 August 2020

Before:

Huggett DCJ

File Number(s):

2017/154841

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 10 August 2020, following a trial in the District Court of NSW, a jury found the applicant, Ms Asiminaris, guilty of two counts of sexual intercourse with a person aged 10 years or over and under 16 years under authority, contrary to s 66C(2) of the Crimes Act 1900 (NSW), and one count of sexual intercourse with a person aged 10 years or over and under 16 years, contrary to s 66C(1) of the Crimes Act.

The Crown case was that the 15 year old complainant and 23 year old applicant commenced a sexual relationship in 1997, when the complainant was a detainee at Reiby Juvenile Justice Centre (Reiby), and the applicant was employed at Reiby as a youth worker. The Crown alleged that the applicant and the complainant had penile-vaginal intercourse in the applicant’s car, while the complainant was on work release from Reiby (count 1), in the complainant's accommodation in the Whitten unit (Whitten) at Reiby (count 3), and in the home of the applicant’s brother on the day the complainant was released from custody (count 5). Following the complainant’s release, the applicant and complainant moved in together, the applicant became pregnant and their relationship ended. The Crown relied on the evidence of the complainant, his mother, sister and father, Ms Lelani Tonumaipea, who started at Reiby as a casual youth officer in 1998, Dr Christopher Lennings, and Detective Senior Constable Harvey Cole who initially contacted the complainant in 2016 and arrested the applicant in 2017. The applicant denied all of the counts, giving evidence in the trial; her brother also gave evidence.

The applicant appealed the convictions on the ground that the verdicts were unreasonable. She pointed to the inherent unlikelihood of the act of sexual intercourse occurring in the manner alleged, emphasising the lack of detail that attended the complainant’s evidence and the limited opportunity to develop the closeness which gave rise to count 1. The applicant submitted that she was not asked about an alleged pregnancy and miscarriage which had been recorded in case notes in May 1997 and leaving this unexplained and unexplored meant that it would not have attracted any weight. The applicant submitted that there was a real question as to whether the applicant had said, “I did not have sex with [the complainant]” to DSC Cole after her arrest and, in any event, it was not evidence of consciousness of guilt. She also relied on the evidence of her brother, Mr Asiminaris, which was to the effect that the applicant did not have access to his house and that the complainant never visited, meaning it was not possible for count 5 to have occurred. Finally, the applicant submitted that there was a reasonable possibility that the account she gave might be true; there was nothing inherently unlikely about what she said and there was no basis on which to reject her denials in cross-examination as inherently unlikely.

The Court (Mitchelmore JA, Dhanji and Sweeney JJ agreeing), dismissing the appeal, held:

On an examination of the evidence as a whole, it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 1, 3 and 5 on the indictment: at [116], [118]-[119]. Although the complainant’s evidence regarding the three counts was not attended by all of the details that the applicant raised, his accounts did include certain details, and the absence of other details was consistent with the time that had passed since the events the subject of the charges. Additionally, some of the details that the complainant provided were supported by other evidence: at [103]-[107]. As to the submission that there was limited opportunity to develop the closeness described by the complainant, that assumed the correctness of the departmental records as to where the applicant was rostered on any given shift, which was undermined by Ms Tonumaipea’s evidence and the applicant’s own evidence: at [108].

The case notes recording the applicant’s pregnancy and miscarriage did not have the significance for which the applicant contends in terms of adversely impacting the reliability of the complainant’s evidence, and the complainant’s evidence that he could not recall the pregnancy or the miscarriage was consistent with him only being prepared to give evidence of what he could recall: at [109]. As to DSC Cole’s evidence that the applicant said, “I did not have sex with [the complainant]”, that was the subject of a detailed direction to the jury, about which there is no complaint and, in the context of the evidence as a whole, the statement was not significant, the complainant’s account being otherwise supported: at [110].

Mr Asiminaris’ evidence that the applicant never stayed with him when he lived in Punchbowl and that the complainant never visited him at that address was undermined by the evidence of the complainant’s mother and the contemporaneous documentary evidence: at [106], [111]. As to the applicant’s evidence, she gave evidence in cross-examination in a generally argumentative manner and, in any event, her account of her interactions with the complainant was implausible and otherwise contradicted by the evidence of (apart from the complainant) the complainant’s mother, sister and father, together with the contemporaneous documentary evidence: at [112]-[113].

JUDGMENT

MITCHELMORE JA: On 10 August 2020, following a trial in the District Court of NSW, a jury found the applicant, Katherine Asiminaris, guilty of two counts of sexual intercourse with a person aged 10 years or over and under 16 years under authority, contrary to s 66C(2) of the Crimes Act 1900 (NSW), and one count of sexual intercourse with a person aged 10 years or over and under 16 years, contrary to s 66C(1) of the Crimes Act. The offences relate to conduct that occurred in 1997, before the complainant turned 16 years old in July 1997. At the time of the first and second counts, the complainant was serving a sentence for armed robbery and car theft at Reiby Juvenile Justice Centre (Reiby). The third count occurred on the day of his release from Reiby. The applicant was employed at Reiby as a youth worker between approximately 3 June 1996 and 12 February 1998.
On 28 October 2020, the applicant was sentenced to an aggregate sentence of imprisonment of 3 years commencing 6 August 2020, with a non-parole period of 1 year and 10 months. The sentence expired before the hearing of this appeal.
The applicant seeks leave to appeal the convictions. The sole proposed ground of appeal is that the verdicts are unreasonable. As the proposed ground gives rise to a question of fact, the applicant requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The notice of appeal was filed out of time, and thus the applicant also requires an extension of time to file the notice of appeal pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
For the reasons outlined below, I would grant the extension of time to file the notice of appeal, grant leave to appeal, and dismiss the appeal.
The law prohibits the publication of anything which could identify the complainant: Crimes Act, s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Without intending any disrespect, I will refer to the complainant by that description alone and to family members by way of initials.

Extension of time

As noted above, the notice of appeal was filed out of time. The applicant filed an application for leave to appeal after expiry of the filing period, and relied on an affidavit of her solicitor, Bryan Wrench, affirmed 9 June 2023. A notice of intention to appeal was filed on 11 November 2020, following sentence, which expired six months later. The notice of appeal was filed on 16 June 2023. Although the delay is not insignificant, having regard to the length of the applicant’s sentence, I consider that Mr Wrench has provided a sufficient explanation for large parts of the period, including difficulties in obtaining materials and other interruptions associated with the COVID-19 pandemic during 2021. Accordingly, I would grant an extension of time to file the notice of appeal.

The Crown case

The indictment alleged that the applicant committed the following offences (counts 2 and 4 were alternative counts):

“1   Between 2 March 1997 and 13 May 1997, at Leumeah in the State of New South Wales, did have sexual intercourse with [the complainant] a person then above the age of 10 years and under the age of 16 years, namely, 15 years of age, in circumstances of aggravation, namely, [the complainant] was under the authority of [the applicant] by reason of her being a Youth Worker at the Reiby Juvenile Justice Centre.
…
2    Between 2 March 1997 and 13 May 1997, at Leumeah in the State of New South Wales, did have sexual intercourse with [the complainant] a person then above the age of 10 years and under the age of 16 years, namely, 15 years of age.
…
3   Between 2 March 1997 and 13 May 1997, at Airds in the State of New South Wales, did have sexual intercourse with [the complainant] a person then above the age of 10 years and under the age of 16 years, namely, 15 years of age, in circumstances of aggravation, namely, [the complainant] was under the authority of [the applicant] by reason of her being a Youth Worker at the Reiby Juvenile Justice Centre.
…
4   Between 2 March 1997 and 13 May 1997, at Airds in the State of New South Wales, did have sexual intercourse with [the complainant] a person then above the age of 10 years and under the age of 16 years, namely, 15 years of age.
…
5   On 13 May 1997, at Padstow in the State of New South Wales, did have sexual intercourse with [the complainant] a person then above the age of 10 years and under the age of 16 years, namely, 15 years of age.
…”

The applicant was found guilty by the jury on counts 1, 3 and 5. Accordingly, verdicts on the alternative counts (2 and 4) were not required.
It was the Crown case that the complainant, who was 15 years old at the time, and the applicant, who was 23 years old, commenced a sexual relationship when the complainant was a detainee at Reiby, and the applicant was employed at Reiby as a youth worker. The Crown alleged that the applicant and the complainant had penile-vaginal intercourse in the applicant’s car, while the complainant was on work release (count 1), in the complainant's accommodation at Reiby (count 3), and in the home of the applicant’s brother on the day the complainant was released from custody (count 5).
The Crown relied on the evidence of the complainant, his mother, sister and father, Ms Lelani Tonumaipea, who started at Reiby as a casual youth officer in 1998, Dr Christopher Lennings, and Detective Senior Constable Harvey Cole. The Crown also tendered records of the Department of Juvenile Justice, along with other documents, which I will refer to below where relevant.

The complainant’s evidence

The complainant’s evidence took the form of the replaying of the evidence he gave in an earlier trial, pursuant to s 306I of the Criminal Procedure Act 1986 (NSW). His evidence in chief and part of his cross-examination had been recorded by audio only, but the balance of his cross-examination and re-examination were played in video format.
The complainant gave evidence that he entered Reiby on 24 October 1996. He could not recall how long after getting to Reiby he first met the applicant, but he described her as one of the guards who looked over him at various points during the day. The complainant was challenged about specific evidence that he had seen the applicant when he was housed in the Macarthur unit, on the basis that the applicant was not working at that unit during the time the complainant was housed there. In response to that challenge the complainant initially said that he saw her at that unit during that time, but then said that he could not recall.
In cross-examination, the complainant agreed that the applicant was not a guard at Reiby, but said, “when you’re in there, that’s – they’re a guard”.
The complainant gave evidence in chief that when he moved to a single room, in the Whitten unit (Whitten), their relationship changed. A departmental document, titled “Bed Allocation List” (Exhibit H), showed that the complainant was housed in Whitten between 30 October and 8 December 1996, 3 January 1997 and 14 March 1997, and between 2 April 1997 and 28 April 1997. The complainant said that he and the applicant started talking and writing letters to each other. He described the letters, the exchange of which the applicant initiated, as “love letters”; the applicant would sign her letters “Juliet” and slip them under his door, and he would sign his letters to her “Romeo”. In cross-examination, the complainant accepted that he was infatuated with the applicant. He accepted that he said things to her things like, “you look beautiful today, miss”. He also accepted that he picked four leaf clovers for the applicant from the Whitten lawn. He denied that the applicant told him it was inappropriate to give her flowers and that she asked him to stop.
Shortly after 25 February 1997, the complainant obtained day leave from Reiby to attend work experience at Reno Smash Repair in Leumeah. The complainant’s evidence was that the applicant gave him her number to call him and when he started doing work experience, they used to talk. On quite a few occasions when he was on day release, the applicant picked the complainant up in her car, which he recalled was a Mazda 626, or met up with him on his lunch break. On one occasion when they were in her car, they had a car accident.

Count 1

The complainant’s evidence on Count 1 was that the applicant picked him up in her car from Reno Smash Repair on his lunch break, and drove him to what at the time was an outdoor, dirt car park at the Leumeah train station. At first they were sitting in the front seat, and then they climbed into the back seat and had penile-vaginal sex. The complainant recalled this as the first time they had sex.
The complainant recalled that the accused was wearing a blue shirt and black jeans that day. When asked if there was some reason he remembered that detail, the complainant stated that he remembered “because she had a lot of sweat on her that afternoon and she went straight to work that day and we had a giggle about it and I was also giving her a hard time about it, about the sweat on her shirt that afternoon while she had to deal with it at work”. He confirmed that the sweat was after what happened in the car.
In cross-examination, the complainant could not recall if there was any touching prior to having sexual intercourse in the car park. He denied that his evidence about having sexual intercourse with the applicant while on work release was a lie.

Count 3

The complainant gave evidence about an occasion when he and the applicant had sexual intercourse when he was housed in a separate, self-contained flat in Whitten. The complainant said that he had penile-vaginal sexual intercourse with the applicant in the self-contained flat “a few times, but this one time in particular… I remember”. The complainant’s evidence was that just before he was locked in for the night, he and the applicant “decided to do it quickly” and had sexual intercourse in the bathroom. When asked whether the intercourse was different to what had happened in the car or the same thing, the complainant said, “it was what someone would call doggie style I guess you would say”.
When asked if that kind of thing happened more than just that one time, the complainant responded:

“There was a few times. Even when I was on work release as well there was quite a few times, a few times that we did it. I can only recall key components of the major times which is why I’ve only brought them up.”

The complainant gave evidence that at the time he was housed in the flat in Whitten, he thought he was in love with the applicant. The letters continued during this period, and the applicant would also give the complainant cigarettes, which were not allowed in Reiby. According to the complainant, the applicant would either place a couple of cigarettes in a letter, or when he was on work release, she would put them on the front passenger tyre of her car. In cross-examination, the complainant accepted that the applicant had probably given him a cigarette for the first time because he asked her. He denied that the applicant had tried to say “No” initially.
The complainant agreed that in his first statement to police on 8 September 2016, he said when he had sexual intercourse with the applicant in the flat in Whitten they were in the bedroom, not the bathroom. He explained that they had sexual intercourse, “a few times … and I needed to remember certain actual times, so that was the only ones that I made the complaints about”.
In cross-examination, the complainant was again taken to his first statement to the police, and he confirmed that the change between the statement and his evidence about where in the self-contained flat he and the applicant had sexual intercourse. He also accepted that it was only in his third statement to police, in August 2018, that he referred to having sexual intercourse with the applicant in the bathroom rather than the bedroom; and that he had said nothing in his police statements about the intercourse on that occasion being “doggie style”. In re-examination, when the applicant was asked why he had not included that level of detail, the complainant said:

“It’s just I’m trying to remember stuff and place stuff in, you know, I mainly did the statements on the stuff that I remembered at certain times. You know, as I did mention, there has been a few other times, but I can’t remember the details about them, it was so long ago. So, I only did the things that I could remember.”

Case notes from Reiby

The Crown tendered a number of case notes from Reiby concerning the complainant. Case notes dated 25 and 27 February 1997 (Exhibit A) indicated that the complainant was starting work experience at Reno Smash Repair in Leumeah the following week and recorded that he was “currently in his own ‘flat’ in Whitten – the only self contained unit”. In a case note, dated 23 May 1997 (Exhibit C), reference was made to the complainant having a “girlfriend who is apparently aged 22/23 + and is driving him around”. The complainant confirmed in his evidence that the reference to the girlfriend was a reference to the applicant. The previous case note, dated 21 May 1997, described the complainant as having resumed his relationship with his girlfriend (Exhibit N).
A case note dated 28 May 1997 (Exhibit D) recorded the following, among other things:

“Girlfriend Kathy (Katarina) aged 22, Greek lives at Punchbowl with her brother – will be moving to Ingleburn soon – [complainant] is hopeful of moving in with her. Need to check parole condn.
[Complainant’s] mother not aware that his girlfriend is pregnant – he will tell her soon. They have decided to continue pregnancy – view it positively. Kathy is partway through psychology degree + is working p/time as a cleaner.”

The complainant confirmed that “Kathy” was the applicant. In a subsequent case note dated 2 June 1997 (Exhibit E), reference was also made to the applicant having a girlfriend, “Kathy”, which he confirmed in his evidence was the applicant; and that his mother had approved him moving in with her. There was also a reference in that case note to his girlfriend having reportedly miscarried her pregnancy. When asked about the references in these case notes to the pregnancy and miscarriage, the complainant said that he did not have a specific memory of that having happened. In cross-examination, he said that he could not recall having told his case officer that the applicant was pregnant, and he could not recall having told his case officer that the applicant had a miscarriage. He denied that he was telling his case officer that his girlfriend needed him to support her because she had suffered a miscarriage. He accepted that he had told his case officer that the applicant was a good influence on him, but denied he did that so he would be approved to move in with her. He also denied that he was being manipulative in his dealings with his case officer, so that he could live away from his family. When it was put to him that he was willing to lie to a case officer about the applicant being pregnant, the applicant said that he did not remember the miscarriage. He denied that it was convenient for him not to recall this.
A subsequent case note dated 12 June 1997 (Exhibit F), referred to the complainant intending to move in with the girlfriend the following week. He confirmed in evidence that the “girlfriend” was a reference to the applicant; the note also referred to the arrangement being approved by his mother.
There were other case notes from Reiby in evidence, dated 20 January 1997, 26 March 1997 and 2 May 1997, that described the complainant as manipulative (Exhibit N).

Count 5

On 13 May 1997, the complainant was released from Reiby and was taken to his mother’s house in Ingleburn. He gave evidence that he then rang the applicant’s brother to make arrangements to go to his house that afternoon, as the applicant was living there at the time and he wanted to “surprise” her. The complainant gave evidence that he was aware that the applicant was living at Mr Asiminaris’ house as he had been there when he was on day release “after a while of [the applicant] and me being together”. The complainant’s evidence was that he stayed the night with the applicant, and they had unprotected penile-vaginal sexual intercourse.
In cross-examination, the complainant denied that the applicant was not living with her brother at the time of his release. He also denied the proposition that he did not have sex with the applicant at her brother’s house on the day of his release. He was asked a number of questions about where Mr Asiminaris lived at that time. In re-examination, he said he knew of four houses in which Mr Asiminaris lived, one of them was at Punchbowl and another was at Padstow. He said he was confused because he wasn’t from that area.

Events after the complainant’s release from Reiby

In cross-examination, the complainant denied that around the time leading up to his release, he had asked the applicant to contact his mother, to help him. He also denied that he had asked the applicant to help him on his release. When asked if he might have told the applicant that he wanted her to meet his mother around the time of his release, the complainant said that the applicant had met his mother when he was on day release. He accepted that the applicant had spoken to his mother before they met in person.
After the complainant was released from Reiby, he lived with his mother until he got a house with the applicant in Ingleburn. He could not recall whether he moved in with the applicant before or after he turned 16 in July 1997. At Christmas in 1997, the complainant and the applicant drove to Queensland to stay with the complainant's father.
It was put to the complainant that the first time he had sexual intercourse with the applicant was following his release, in or about late December 1997 or early January 1998. The occasion of the sexual intercourse, as it was put to him, was after he and the applicant went to the drive-in cinema and saw the film Titanic and then returned to her brother’s house, which at that time was in Padstow. He did not recall this, and he denied that it was the first time he had sexual intercourse with the applicant and that the applicant was drunk, stating that he did not recall the applicant ever drinking.
The complainant also gave evidence that the applicant became pregnant after they had been living together for some time. The applicant wanted to get married but the complainant did not and their relationship ended when he communicated that to her. The complainant was aware that the applicant had the baby, and he had met the child once when he was a baby. In cross-examination, the complainant agreed that the applicant broke her lease at Ingleburn because of him but denied that it was because she needed to get away from him, he was violent towards her, he was using drugs at their home or he demanded money from her.
The complainant gave evidence that at some stage he was contacted by the police, and that they wanted to speak to him about Reiby because his name had apparently been given to them in relation to a couple of incidents with other security guards. He thought about it for a day or two, and he thought he would finally try and do something about it, which is when he told the police about what happened between himself and the applicant. In cross-examination, he gave evidence that at some stage, he referred to suing for compensation. He did not recall discussing compensation when he first spoke to the investigating officer, DSC Cole.

The complainant’s mother, KA

KA, the complainant’s mother, gave evidence that she first met the applicant when she came to KA’s house when the complainant was on day release. Initially, she could not recall whether their first meeting was the end of 1996 or the beginning of 1997 but she then recalled it would have been in early 1997 because it was around the time of the birth of her second daughter. The first that KA knew of the applicant was when the complainant told her that she was coming to the house, after KA had picked him up for day release. KA did not invite the applicant to come over.
After that first visit, the applicant came to KA’s home on each occasion that the complainant was home on day release. The applicant would not stay long at the house because she would take the complainant for a drive in her car for a few hours and then bring him home in time for KA to take him back to Reiby. KA considered that the applicant was a good influence on the complainant, but she did not ask the applicant to help her with him.
KA said that the complainant told her the applicant was his friend; KA did not otherwise discuss with the complainant why the applicant was visiting. However, KA said that the complainant liked the applicant, and when asked to explain how it was that she knew that, her evidence was that, “if he was there and he was asking her there, then obviously he was interested in her”.
Between February and May 1997, KA was not aware that the complainant and the applicant were romantically and sexually involved; and did not recall seeing the applicant and complainant touch each other. Her evidence was that at that time, the applicant lived with her brother, she believed in Punchbowl. KA recalled that the complainant went to the home of the applicant’s brother, but could not recall if that was while he was on day release from Reiby or after he got out.
KA gave evidence that after the complainant was released from Reiby, he lived with her before he moved in with the applicant. During that period, he would stay overnight with the applicant at her brother’s place and they would spend a lot of time together. KA’s evidence was that by that time (that is, before they moved in together), she knew that the applicant and the complainant were in a relationship, explaining that she saw them being affectionate towards each other.
KA could not remember whether the complainant moved in with the applicant before or after his 16^th birthday. She did not ask the applicant to let the complainant move in with her. After the applicant and complainant moved in together, KA would visit them a couple of times a week. She gave evidence that even though she and the complainant did not speak about the status of his relationship with the applicant, she believed that they were “a couple”, noting that they shared a bed and shared a room.
KA gave evidence that the complainant told her that the applicant was pregnant and that he believed he was the father. KA spoke with the applicant who was concerned that the complainant would not marry her and support the baby. KA said she indicated it would be a good idea for them to get married. The applicant and the complainant broke up before the baby was born, but KA met up with the applicant when the baby was about 6 weeks old.
In cross-examination, KA said that she could not recall having conversations with the applicant when she came over to visit the complainant while he was on day release, nor could she recall having coffee with her. She accepted that she may have told the applicant that she was a good influence on her son, but thought that was “[m]aybe at some stage later on”. KA accepted that the complainant was living at home when he got out of Reiby, but said that he would go and stay at the applicant’s brother’s place, until the applicant got the villa. When asked if this was based on what the complainant had told her he was doing, KA said:

“[The applicant] would come and pick him up. He did not have a licence; he did not drive. [The applicant] was his means of transport. He was 15 slash 16. She would come and pick him up, take him away and bring him home.”

During cross-examination, KA said that she had visited the home of the applicant’s brother in Punchbowl. In re-examination, when asked about that visit, KA said that the visit was definitely before the applicant was pregnant, and that she had visited along with her husband, her daughter, NM, and her other daughter who was a baby at the time, and had met the applicant’s brother and his wife and two children.

The complainant’s sister, NM

NM is the younger sister of the complainant, and is seven years younger than him. Her evidence was that she was about seven years old when she first met the applicant, and her understanding at that time was that the applicant was the complainant’s girlfriend. Although NM could not recall specifically being told that they were boyfriend and girlfriend, “they acted as though they were boyfriend and girlfriend”, in that she “saw them kiss each other when they said hello”, and she “saw them hold hands”. When asked about where they were when she saw them holding hands, NM said:

“One of the times I would have seen them I was in the back of [the applicant’s] car. I knew her as [the applicant]. I was I the back of [the applicant’s] car. She had come over to see my brother and she had driven to the front of our home. She – my brother went out to go see her and I followed him out because I was a little sister and did that sort of thing and I kind of climbed in the back and he hopped into the passenger seat of the car and kissed her hello and they were holding hands while I was I the car.”

NM gave evidence that the occasion about which she gave evidence was not the only occasion when she went out to the applicant’s car, and the applicant came to their home to visit the complainant when he “had come home on weekend visits”. When asked what kind of kiss hello the applicant and the complainant gave each other, NM said:

“It would have – it was on the lips. They were boyfriend and girlfriend when they kissed hello. I thought it was gross, I was seven.”

In answer to a question as to whether she knew, in 1997, what the applicant’s occupation was, NM said that she did know because she was told that if she saw the applicant when they were visiting the complainant at Reiby she was not allowed to say hello. NM thought she had been told this by her mother, and the reason was that it would cause trouble for the complainant.
After the complainant was released from Reiby, NM could not recall the complainant coming to live with them specifically but she did recall him living with the applicant in Ingleburn not long after he was released. She gave evidence that she visited the “villa” that the complainant and applicant had moved into “pretty often”. She gave evidence that on one occasion the applicant was in the second bedroom making up the bed for her niece and nephew who were coming to stay. She remembered that room as containing a single bed, and that it was made up like a spare bedroom. NM was not cross-examined.

The complainant’s father, JM

JM is the father of the complainant. He gave evidence that around Christmas time in 1997, he was living in Bribie Island in Queensland. On his evidence, the complainant and the applicant visited him there in January 1998, staying for two nights. JM’s evidence was that they slept in the spare bedroom, which had a three-quarter size queen bed. When asked if he provided them with any sleeping bags, JM said he did not own a sleeping bag, and that the unit was fully furnished. JM also gave evidence that the complainant told him that he and the applicant were living together and were girlfriend and boyfriend. JM was not cross-examined.

Lelani Tonumaipea, Department of Juvenile Justice

Ms Tonumaipea, an employee of the Department of Juvenile Justice, gave evidence that she started working at Reiby in 1998 as a casual youth officer. She gave evidence about the duties of a youth worker in 1998, which was after the applicant worked there. Her evidence included the procedure for locking detainees in their room, the age of the detainees at Reiby, and the design of Whitten. A number of departmental records were tendered through Ms Tonumaipea including the Bed Allocation List (Exhibit H).
Ms Tonumaipea gave evidence that when she was a youth worker at Reiby, there were three shifts, 7am to 3pm, 3pm to 11pm, and 11pm to 7am. When asked about the shift records for the applicant (Exhibit J), Ms Tonumaipea noted that while a worker would typically be allocated to a particular unit for a shift, it may be that a request was made during the shift to work somewhere else. That evidence led to the Crown asking the following question:

“Q. So the fact that the reason for work there indicates ‘Kennedy unit’ does not necessarily indicate that that was the only place that [the applicant] worked on that day, the Kennedy unit?
A. That is correct.”

The shift records for the applicant, which were shown to Ms Tonumaipea, indicated that the applicant was rostered on to Whitten on a number of dates between January and March 1997.
Ms Tonumaipea was asked questions about a line of sight policy and she gave evidence that while the current policy was that “whatever you do, you always have to have an officer that can view you, have your line of sight”, she thought that in 1998 it was very likely that a youth officer would be supervising a boy while that youth officer was alone.
Ms Tonumaipea was shown a document entitled ‘Acknowledgement of Legislative Requirements for Staff Working in Juvenile Justice Centres’ (Exhibit K), which she confirmed was required to be signed by a youth worker before commencing employment. That document confirmed the legislative prohibition on detainees having tobacco. Ms Tonumaipea gave evidence that youth workers were not permitted to supply detainees with tobacco. If a youth worker did supply tobacco to a detainee, that became a professional conduct matter which would be directed to the professional conduct team to investigate.
Ms Tonumaipea also gave evidence that it was considered a professional conduct matter for a youth worker to “maintain or continue a relationship” with a detainee while they were on day release; and they were required to let their supervisor know of any communication or contact outside “work time”. She also said that the applicable code of conduct stated that youth workers were not allowed to have any contact or relationships with detainees outside their working relationships. She believed the policies in 1997 were “pretty much the same” as in 1998, but accepted that it was possible they were different.
In cross-examination, Ms Tonumaipea was asked about the location of the staff room in Whitten, and she accepted that it was next door to the self-contained flat. Her recollection was that there was a small window in the door of the self-contained flat. She did not believe the shower was visible from the window, but she did believe that part of the bed was visible. Ms Tonumaipea also gave evidence that the unit coordinators would attend each unit at least once or twice throughout the night and youth workers would also carry out checks on the detainee’s cells. She said the persons conducting the patrols had torches during the night shift.

Dr Christopher Lennings

Dr Christopher Lennings, a clinical and forensic psychologist who specialises in working with young people and adolescents, gave evidence about a report he had written in 2018, following a literature review, about factors that make juvenile male detainees susceptible to sexual advances in detention, and cognitive distortions in young males at risk of victimisation of sexual abuse. The findings of that report were read onto the record. Dr Lennings was not cross-examined.

Detective Senior Constable Harvey Cole

DSC Cole gave evidence of having contacted the complainant on 21 August 2016 to ask him whether he had information about sexual abuse in Reiby. The complainant told him that he had sexual intercourse with a female guard at Reiby when he was 15 years old. The complainant identified the guard as the applicant, and he declined to make a statement at that time. In cross-examination, DSC Cole gave evidence that in that first telephone call, the complainant referred to a civil claim for compensation.
On 23 August 2016, the complainant called DSC Cole and said that having reflected, he would like to make a statement, and he provided statements on 8 September 2016, 3 April 2017 and 10 August 2018.

On 23 May 2017, DSC Cole arrested the applicant. DSC Cole gave evidence that the applicant was cautioned and she indicated to him that she understood the caution. When asked if the applicant said anything to him, DSC Cole gave the following evidence:

“A. She said, she made a comment while she as being transported to from her residence to Campbelltown Police Station, she was seated in the back of the car she made a comment in relation to not having sex with [the complainant].
Q. Are you able to say in the words that she used what she said?
A. ‘I did not have sex with [the complainant]’.”

In cross-examination, DSC Cole did not accept that what the applicant in fact said to him was, “I did not have sex with [the complainant] when he was 15”, stating that if she had said that, he would have recorded that in the conversation in his police notebook made contemporaneously. He also denied that what the applicant had said to him was that she had not had sex with the complainant before he turned 16.
The Crown tendered a number of documents through DSC Cole, including a letter from the Department of Juvenile Justice dated 4 September 2002 (Exhibit T) which confirmed that the applicant was employed as a casual senior youth worker with the Department from approximately 3 June 1996 to 12 February 1998 and that she resigned of her own accord.

The applicant’s case

Evidence of the applicant

The applicant gave evidence that she was 23 years old in 1997. She denied having sex with the complainant in her car when he was 15 years old and on work release, in Whitten when he was 15 years old, and on the day of his release at her brother’s house.
The applicant stated that the first time she had sexual intercourse with the complainant was in January 1998, after they had been to see the film Titanic at the Bass Hill drive-in cinema. The applicant gave evidence that earlier that day she had been upset following an incident at home; she had been drinking and became “maybe more than a little bit drunk”. The applicant said that the complainant came and picked her up, and they watched the movie in his car. The applicant then took her back to her brother’s house and he followed her in. On her evidence, she was still “drowsy and tipsy” and she laid down on the lounge. The complainant began touching her and kissing her and he eventually pulled down her pants and underwear and had sexual intercourse with her. The applicant said that she did not resist or scream because her brother and his children were inside the house at the time. The only thing she kept saying to the complainant was “please don’t come in me, I don’t want to fall pregnant”.
The applicant gave evidence that after that occasion she had sex with the complainant a few times (“four, five, six, around there”). He used to come to her house in Macquarie Fields and demand oral sex and take her money.
The applicant gave evidence that she allowed the complainant to move in with her at Ingleburn, at the request of his mother, around the end of July 1997. The complainant became abusive towards her, would bring his friends over and take drugs in her house; and he would steal her money and food. He also destroyed some of her furniture. The applicant said she asked the complainant to leave but he wouldn't, and so she broke the lease and left these premises in about December 1997.
The applicant said she found out she was pregnant in around March or April 1998. She had not seen the complainant since January 1998 and he never suggested to her that he thought he was the father. In early 1998, the applicant was in a sexual relationship with another person.
The applicant agreed that she was in a car accident with the complainant on 10 May 1997. At that time, she was living with her parents. She denied that she was living with her brother at that time. At that time, her brother was living in Punchbowl with his wife and three children, and the house was a three-bedroom house.
In cross-examination, the applicant agreed that she completed her fourth year studying psychology in 1996 and her degree was awarded in April 1997. The applicant was shown the acknowledgment of legislative requirements form that she signed in 1996, when she started at Reiby (Exhibit K), which she described as one of the things she signed during a two or three-day induction course when she was “bombarded” with paperwork. The applicant agreed that the document indicated that cigarettes were not to be provided to the young people at Reiby and that there could be a criminal charge if one did.
When it was put to the applicant that she was also told that it was prohibited to have any personal relationship with a detainee outside of Reiby, either when they were detained or after their release, the applicant’s evidence was that they were prohibited from having a personal relationship or a familial relationship “unless there was prior permission for that”. It was subsequently put to the applicant, and she accepted, that she did not personally request any such permission in relation to the complainant, although she maintained that the complainant’s mother had done so. She denied that there was any code of conduct in place in 1997 that prohibited personal contact with detainees outside Reiby.
The applicant agreed that she provided the complainant with cigarettes on more than one occasion. Her evidence was that she gave him a cigarette on the first occasion because he was crying, upset and distressed and her judgment was to give him a cigarette because he asked for one due to the condition he was in. She accepted that she was prepared to take a risk in that sense, to provide him with something that was prohibited, even though it might have detrimental consequences for her, saying that was her judgment call at that time. In relation to her subsequent provision of cigarettes to the complainant, the applicant said that he threatened to “dob on” her if she didn’t continue to provide him with cigarettes, and she was scared of him. The applicant accepted that she knew that each time she gave him cigarettes there was a possibility she could be disciplined, but said it was “under duress”. She denied taking that risk because she wanted to please him or because she was attracted to him.
The applicant was asked about the car accident in May 1997. She agreed that the complainant was in the car with her. The complainant was not with her by the time the police had arrived because, on her evidence, she had told him to go home. She denied, however, that the reason she had told him to go home was because she knew it was at the very least inappropriate for her to be seeing the complainant outside of Reiby, saying that she told the police that he was in the car and where he lived, and that they checked on him to make sure he was not injured. When taken to the narrative in the police record (Exhibit FF), however, she agreed that there was nothing in the narrative that said there was anyone else in the car but herself (although she volunteered that the record did not say how many people were in the car at the time of the accident).
The applicant denied seeing the complainant at his mother’s house whenever he was on day release from at least February 1997. The applicant also denied that she had done this because she was in an ongoing intimate relationship with him. The applicant denied being in love with the complainant, and said he was an abusive person. The applicant also denied that she exchanged love letters with him and that she started the exchange.
The applicant denied taking the complainant for drives in her car when he was on day release or work release, from at least February 1997, so that she could be alone with him. On her evidence, she went to the home of the complainant’s mother around May 1997, because his mother invited him over, and she stayed for about half an hour and then left. Her evidence was that it was only after he was released or around the time that he was released that she took him for a drive, and that was in the local area. In relation to NM’s account of having gone out to the applicant’s car, the applicant accepted that there could have been a time when NM came out to the car, but she denied that she and the complainant greeted each other by kissing and that they held hands.
The applicant accepted that the detention centre records showed that she was rostered on an afternoon shift on six occasions when the complainant was on work release at Reno Smash Repairs. However, she denied that on one of those occasions, she met the complainant in her car and she denied that they had sexual intercourse in the back seat at the car park at Leumeah train station.
The applicant did not accept that on nine occasions when she was rostered to work at Whitten, the complainant was housed in the self-contained flat. She also denied that there were many opportunities for her to be alone with the complainant in the self-contained flat in the course of those nine shifts, and she denied that she went into the complainant’s room alone on a number of occasions. When it was put to her that there was no line of sight policy in 1997, the complainant said that there was such a policy at that time, and there was a policy that two staff always opened the door of a detainee, meaning that there was no way that she could enter the complainant’s room without another staff member by her side. She denied that sometime after the complainant started work release, she had sexual intercourse with him in the bathroom of the self-contained flat in Whitten. Her evidence was that the complainant was lying and that this never occurred.
The applicant denied that the complainant surprised her at her brother’s house in Punchbowl on the day of his release, and she denied that they had sexual intercourse that day. Her evidence was that she had never taken the complainant to her brother’s house, and said that he was able to give evidence about its location in the trial because the complainant and his mother used to interrogate her and get information from her “so they know everything about me”.
The applicant said that she moved in with the complainant in around 1997, but denied that the complainant moved in with her straight away. When he did move in, she denied that they were living together because they were boyfriend and girlfriend, and she denied that they shared a bedroom, and said that he stayed in the second bedroom. The applicant’s evidence was that the complainant moved in because his mother had asked for help as she had “lost control of him”. When she was reminded of her earlier evidence that she was scared of the detainees, she said that she thought the complainant’s mother would protect her as she was doing the family a favour. The applicant said that the complainant’s mother and the complainant manipulated her and trapped her into a situation that she could never get out of, and that she put up with him “wrecking everything and stealing from me and raping me and making me suck his dick, okay”. The applicant denied that she was not afraid of the complainant, and said that she had never made a complaint to the police because she was scared of him.
The applicant agreed that she and the complainant visited the complainant’s father at the end of December 1997, but denied that it was as boyfriend and girlfriend. Her evidence was that she slept on the floor in a sleeping bag. She denied JM’s evidence that the unit was fully furnished and said that he was lying, as was the complainant’s mother, because they all wanted “a piece of the pie that he thinks he’s going to get; that the detective over there has promised him".
The applicant was challenged about her account of the first time she had sexual intercourse with the complainant. The applicant stated that she didn't want to have sex with the complainant in January 1998 but he found her in a vulnerable state and had sex with her. She stated, “whether that's rape, I don't know”. She denied that this account was false. The applicant agreed that she had subsequently had sex with the complainant at least four or five times, but in a context where he came to her townhouse in Macquarie Fields, stole her money and would overbear her and force her to perform oral sex on him. She said she did not report it to the police as she was scared of the complainant, she was pregnant at the time and he had threatened to punch her stomach if she said anything.
The applicant denied that she made the statement that DSC Cole attributed to her shortly after her arrest, namely, that she had never had sex with the complainant. Her evidence was that she said that she “never had sex with [the complainant] when he was 15”. The applicant denied the proposition that she told DSC Cole she had never had sex with the complainant because she thought that if she told the truth, it may implicate her in a criminal offence. She also denied that she had told DSC Cole something that was deliberately untrue.

The applicant’s brother, Bill Asiminaris

Mr Asiminaris is the applicant's older brother. He gave evidence that he lived at Punchbowl in a three bedroom house with his wife and three children up to the middle of 1997. There were no spare bedrooms and the applicant did not live with him, nor did she have a key to the house. The applicant visited him, typically about twice a month, but the complainant never visited the Punchbowl house.
Mr Asiminaris said he moved to Padstow Heights to live with his parents in July 1997 for three months, and then he moved with his family to Padstow. During the time that Mr Asiminaris lived with his parents, the applicant had moved to Ingleburn, but before that she was living with their parents. Mr Asiminaris’ evidence was that he had met the complainant when he was living at the address in Padstow. The complainant came to his home and sold him computer parts for his computer business. He said he saw the complainant once or twice more, when the complainant came to him with more computer parts.
In cross-examination, Mr Asiminaris gave evidence that until the middle of 1997 he had a cleaning company. He would wake up at about 3am to leave the Punchbowl house about 4am. He would return at 8:30am and would then stay awake until about 10pm. Mr Asiminaris denied that there were periods when the applicant stayed at the house in Punchbowl, and he denied that there were times when the complainant visited that house. Accepting that there were times during the day when he and his wife would leave the house, he did not think the applicant had come to the house when he was out as she had no way of getting in.
Although he assisted the applicant and the complainant to move into the Ingleburn address, Mr Asiminaris’ evidence was that “they were friends, as far as I was concerned”. He agreed that he gave evidence in a previous trial, and that he had said in the course of evidence in that trial that the complainant and applicant broke up in December 1997. He said of that evidence: “they separated, you know. Even when you’re friends, you know, they break up – friends break up”. His evidence was that he had never seen the applicant and the complainant kiss or hug, and his evidence about them breaking up was “just a slip”. He denied that the complainant came and stayed at his house on the day of his release. He denied that he was denying this because he knew that to tell the truth would possibly get his sister into more trouble.

The ground of appeal: the jury’s verdict was unreasonable

The High Court restated the principles regarding unreasonable jury verdicts in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]-[10], by reference to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. In Dansie, the Court described the function of a Court of Criminal Appeal in determining an appeal on this ground as follows at [7]-[8]:

“… the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.”
(Footnotes omitted.)

The Court in Dansie at [9] set out what it described as the “carefully crafted” passage in M v The Queen at 494-495 regarding the role of the jury as “the body entrusted with the primary responsibility of determining guilt or innocence”:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

The focus is upon whether the jury “must, as distinct from “might”, have entertained a doubt about the appellant’s guilt”: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J). In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38], the Court referred with approval to the statement in M v The Queen that the jury’s advantage in seeing and hearing the witnesses was capable of resolving a doubt experienced by a court of criminal appeal as to the guilt of the accused. The Court in Pell described this statement as reflecting “the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court”. In Hawi v R [2014] NSWCCA 83 at [480], McCallum J relevantly observed:

“The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.”

There is no requirement that a complainant's evidence be corroborated before a jury may return a verdict of guilty upon it: Pell at [53]. In a case where the jury has returned a verdict of guilty and the principal evidence against an accused person was given by a complainant, the Court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell at [39]; AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [103]. The extent to which this Court is entitled to disbelieve a witness whose evidence a jury must have accepted, at least in so far as it established the elements of the offences of which an accused person is convicted, was discussed in Z (a pseudonym) v R [2022] NSWCCA 8. Macfarlan JA stated at [29] (Brereton JA and Beech-Jones CJ at CL agreeing):

“… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence.”

The task for the Court is to examine the record to see whether, notwithstanding the jury’s assessment, “either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”: Pell at [39].

The applicant’s submissions

The applicant advanced six reasons why the Court would have a reasonable doubt about the complainant’s evidence.
First, the applicant pointed to the inherent unlikelihood of the act of sexual intercourse occurring in the manner alleged: in a small car, in a train station car park, in the middle of the day (count 1); at Reiby when other staff members could have come upon them while conducting checks on the complainant (count 3); and at Mr Asiminaris’ house in the afternoon when Mr Asiminaris, his wife and three children would have been home and where there were no spare bedrooms (count 5). The circumstances of each act made it easily discoverable by anyone who might come upon them, or by reports from the complainant, his family or the applicant’s family. The applicant submitted that her occupation as a youth worker and her work as a psychologist supported the unlikelihood of the acts occurring. Although she accepted in her evidence that she broke the rules by giving the complainant cigarettes and visiting him without her employer’s permission, the applicant submitted that the alleged conduct involved significantly more serious conduct, and a high risk of being caught.
In oral submissions, Counsel for the applicant emphasised the lack of detail that attended the complainant’s evidence. In relation to count 1, this was the first occasion, on the complainant’s evidence, that he had sexual intercourse with the applicant, yet he did not give any evidence as to the duration of the sexual intercourse, how it was initiated, the positions they were in, or what happened afterwards. Similarly, for count 3, there was no evidence about how the sexual intercourse came about, what happened beforehand, where they were located in the bathroom, how it finished and what they were wearing. Counsel for the applicant also emphasised in relation to count 3 that the complainant had changed his account, having first said that the sexual intercourse occurred on the bed in the self-contained unit (which could be seen through the window to the unit), and then saying it occurred in the bathroom. Counsel submitted that the complainant’s explanation for the change (see [22] above) was suggestive of someone who was struggling to recall what was actually happening and admitted of issues as to reliability. As to count 5, the applicant submitted that the complainant’s evidence was again lacking detail, with no evidence as to where the sexual intercourse occurred, which was significant in light of Mr Asiminaris’ evidence that he lived in the home with his wife and three children and that the applicant never lived there.
Secondly, the applicant submitted that there was limited opportunity for the applicant and complainant to develop the closeness which gave rise to count 1. That count was alleged to have occurred in March 1997, and the applicant had only worked at Whitten when the complainant was there on 15 January 1997, 22 February 1997, 1, 3, 4, 8, 11, 12 and 13 March 1997. Further, the applicant worked the day shift while the complainant was on work leave on 3 and 4 March 1997, which did not leave much time for “any meaningful consorting”. This left seven (day or afternoon) shifts for their relationship to develop to the point of writing love letters to each other and to advance to a point where the applicant was willing to take the risk of engaging in the conduct alleged by count 1, making count 1 possible but reasonably unlikely.
Thirdly, the complainant did not have a memory of the applicant being pregnant in May 1997 or miscarrying (as recorded in the case notes), and the applicant was not asked about this pregnancy even though it could have had a strong corroborative effect on the complainant’s account. For that event, which would have been easily verifiable, to have been left completely unexplained and unexplored with the applicant meant that it would not have attracted any weight in the Court’s assessment of the reasonableness of the verdict. The applicant also pointed to the case notes which described the complainant as manipulative, and submitted that the case notes describing the pregnancy and miscarriage were “simply a record of a story made up by the complainant at the time”.
Fourthly, the applicant submitted that there was a real question as to whether the applicant said, “I did not have sex with [the complainant]” to DSC Cole after her arrest. The admission was not adopted by her, it was not electronically recorded, and there was no statement from the other police officer in the vehicle. The applicant gave sworn evidence that she said, “I never had sex with [the complainant] when he was 15”. In any event, even if the applicant had made the statement, it was not evidence of consciousness of guilt as she may not have articulated a complete answer to the allegations in circumstances where she was upset and irate at having been arrested in front of the media at her home in relation to matters alleged to have occurred about 20 years ago.
Fifthly, the applicant relied on the evidence of Mr Asiminaris to the effect that the applicant did not have access to his house and that the complainant never visited. On that evidence, it was not possible for count 5 to have occurred; and if that count did not occur it undermined the credibility and reliability of the complainant’s account of the other alleged offending.
Sixthly, the applicant submitted that there was a reasonable possibility that her account (that the offences did not occur) might be true as there was nothing inherently unlikely about what she said, referring to De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12]. Whatever feelings the complainant may have had towards the applicant, her account was consistent with the complainant’s mother’s understanding that he was not in a romantic relationship with the applicant while he was in detention. Although the applicant may have downplayed in her evidence the significance of her relationship with the complainant after they moved in together, that did not mean that the remainder of her evidence about what happened when the complainant was 15 years old could not be accepted.
Furthermore, the applicant submitted that there was no basis on which to reject her denials in cross-examination as inherently unlikely, even though she was subjected to forceful or robust cross-examination. During cross-examination, it was suggested to her that she was not a victim of domestic violence or sexual assault because she did not report those matters or resist, despite the complainant’s criminal history and the court’s experience that failure to report is of little consequence in determining whether a person is being truthful. The applicant submitted that despite the manner in which she was cross-examined, her denials were forceful and heartfelt.
The applicant accepted the principle that the setting aside of a jury verdict is “a serious step not to be taken without particular regard to the advantage enjoyed by the jury”: WG v R; KG v R [2020] NSWCCA 155 at [1051]. However, she submitted that any advantage the jury had in the present case was limited to the complainant’s cross-examination, noting that his evidence-in-chief was recorded by audio only.
In response to the applicant’s submissions, the Crown’s written and oral submissions identified the relevant principles and the decisions from which they are derived, and responded to the particular complaints made by the applicant, emphasising that the evidence of the trial needed to be considered as a whole. I have considered the Crown’s submissions in my determination of this ground.

Consideration

I have reviewed all of the evidence given at the trial.
Although the complainant’s evidence regarding the three counts was not attended by all of the details that the applicant raised (summarised above at [93]), his accounts did include certain details, and the absence of other details was consistent with the time that had passed since the events the subject of the charges. Additionally, some of the details that the complainant provided were supported by other evidence. Thus in relation to count 1, the applicant recalled when the sexual intercourse occurred (in the applicant’s car when he was on his lunch break at work release), where they were (an outdoor, dirt car park at the Leumeah train station), and that the applicant was going to work that afternoon. The applicant’s shift records (Exhibit J) and the complainant’s work release records (Exhibit L) indicated that there were six occasions when the complainant was on work release and the accused was rostered on to work an afternoon shift. The complainant was also able to recall what the applicant was wearing, giving detail of the two of them having a giggle about how sweaty the applicant was (see [17] above). The record of the applicant’s vehicle history which was tendered through DSC Cole (Exhibit CC) corroborated the complainant’s evidence as to the car she was driving at the time, namely, a Mazda 626.
In relation to count 3, the Bed Allocation List indicated that the complainant was housed in Whitten between January and March 1997 and again in April (see [14] above), and one of the March case notes referred to him being in the self-contained flat (see [24] above). The applicant’s shift records indicated that she was rostered on at Whitten on a number of occasions in March (Exhibit J). The complainant’s evidence included where the sexual intercourse occurred and that it was “doggie style” (accepting as to the former that he had made a change in his police statements as to where within the flat the sexual intercourse took place, and he had not recalled the latter in his statements at all); and the detail that he and the applicant “decided to do it quickly” was consistent with the custodial environment in which that sexual intercourse took place.
Contrary to the applicant’s submission, the complainant’s explanation for the change in his account in relation to count 3 (as to the room in which it took place) did not render his evidence inherently unreliable; as the complainant said in re-examination, he was trying to remember things that had happened a long time ago. Both in chief and in cross-examination, the complainant was prepared to say that he could not recall things, such as the pregnancy and the miscarriage referred to in the case notes.
As to count 5, the complainant’s evidence was that it coincided with his release from Reiby, an event of undoubted significance to him, and that he visited the applicant at her brother’s house as a surprise. One of the case notes for the complainant, dated 28 May 1997, recorded him saying that his girlfriend lived in Punchbowl with his brother (see [25] above). The complainant’s mother also gave evidence that she had visited the applicant’s brother’s home in Punchbowl (see [44] above). This evidence undermined the reliability of the evidence of Mr Asiminaris which was to the effect that the applicant never stayed with him when he lived in Punchbowl, and that the complainant never visited him at that address, his evidence on these matters being the fifth reason the applicant advanced in support of the verdict being unreasonable.
Although the sexual intercourse the subject of the three counts was easily discoverable, there was evidence that demonstrated the applicant was prepared to engage in risk-taking behaviour in so far as the complainant was concerned. The applicant accepted that she gave him cigarettes knowing that was contrary to the acknowledgment of legislative requirements that she had signed. She also gave evidence that it was departmental policy that permission was required before a youth worker was allowed to have a personal or familial relationship with detainees outside of Reiby, and she could not recall whether that permission was sought (on her account, by the complainant’s mother) before seeing the complainant outside the detention centre. The risk involved in engaging in the offending conduct was consistent with the risk-taking behaviour that the applicant had demonstrated she was prepared to engage in where the complainant was concerned, although it undoubtedly had more serious criminal consequences.
As to the applicant’s second reason, being the limited opportunity to develop the closeness described by the complainant, that submission assumed the correctness of the departmental records as to where the applicant was rostered on any given shift. As the Crown submitted, Ms Tonumaipea’s evidence was that the roster always gave a staff member a location within the centre, but it was not always the case that the staff member would work in the rostered location (see [51] above). Additional support for the flexibility of staffing allocation, as a practical matter, lay in the evidence that showed the applicant having taken the complainant and other detainees on an excursion on 22 February 1997. The applicant’s evidence as to that trip was that she took the boys at the last minute, when the rostered person did not attend work.
As to the applicant’s third reason, the particular departmental case notes from May and June 1997, which recorded the complainant having said that the applicant was pregnant and then suffered a miscarriage (see above at [25]-[26]), do not have the significance for which the applicant contends in terms of adversely impacting the reliability of the complainant’s evidence. The complainant’s evidence that he could not recall the pregnancy or the miscarriage was consistent with his evidence, that he was only prepared to give evidence of what he could recall.
As to the applicant’s fourth reason, which related to what the applicant was alleged to have said to DSC Cole on their way to the police station following her arrest, the jury was given a detailed direction on the use they could make of this evidence, about which there is no complaint. Considered in the context of the evidence as a whole, I do not view the statement as significant; if it were removed from the Crown case, I do not consider it would affect the reliability of the complainant’s evidence regarding the three counts in any material way.
I have addressed the applicant’s fifth reason in [106] above.
The applicant’s sixth reason relates to her evidence. In oral submissions Counsel for the applicant accepted that the applicant was “not a perfect witness”. Although the applicant characterised her cross-examination as “forceful” (albeit not in a manner that was the subject of separate complaint), having reviewed the transcript I consider that the applicant gave evidence in cross-examination in a generally argumentative manner, including taking issue with the Crown’s questions, and, on occasion, answering with her own question or questions. For example, although the applicant sought to rely on the following passage as demonstrating the forceful nature of the cross-examination, it demonstrates the argumentative manner in which she gave her evidence:

“Q. You were attracted to him from an early stage in 1997, and you were providing cigarettes to him because you were establishing a personal relationship with him?
A. No, that’s not correct.
Q. You continued to provide cigarettes to him while he was in Reiby because, from at least March 1997, you were in an intimate relationship with him?
A. How was that when I started working on the unit from 1 March? How could I have a relationship established when that’s when I started working? I don’t understand. Have you read my time sheet?
HER HONOUR: Ms Asiminaris, again, please answer just the questions that you have been asked, okay?
WITNESS: How did I have an established relationship?
HER HONOUR: Ms Asiminaris, could you please answer the questions that you have been asked.
CROWN PROSECUTOR
Q. I am going to take you ahead a bit, 1998. In 1998, you are still working at Reiby, in fact I think you finished working at Reiby at the beginning of 1998, February?
A. Yes.
Q. In 1998, when Ms Tonumaipea was employed at Reiby--
A. She doesn’t know me.
Q. Please wait for me to finish the question, there was a code of conduct about having personal contact with detainees outside of Reiby?
A. I’m not aware if it changed.
HER HONOUR: Please just answer the questions, Ms Asiminaris, okay? Do you understand what I mean when I say answer the questions?
CROWN PROSECUTOR
Q. I suggest to you that that code of conduct was also in place in 1997 when you were there?
A. No.
Q. And you knew you were prohibited from having personal contact?
A. Can you show me the code of conduct then, if that’s the case.
Q. Please answer my question.
A. Can you bring me the code of conduct from 1997 and show me that that existed at the time?”

Apart from the manner in which the applicant gave her evidence, considered as a whole her account of her interactions with the complainant was implausible and were otherwise contradicted by the evidence of (apart from the complainant) the complainant’s mother, sister and father, together with the contemporaneous records from Reiby. I have summarised her evidence in detail above. On her account, she had no real association with the complainant until he was released from Reiby, which was contradicted by the evidence given by the complainant’s mother and his sister. Notwithstanding her evidence that she was scared of the detainees at Reiby, at the alleged request of the complainant’s mother, who had “lost control” of him, she let the complainant move in with her around July 1997, evidence which was also contradicted by the complainant’s mother. The applicant then allowed the complainant to live with her until December 1997 when she broke the lease on account of his anti-social behaviour which included stealing her money, drug-taking and wrecking her furniture. Notwithstanding these events, the applicant drove with the complainant to Queensland to visit his father around Christmas time in 1997. On her account, they then went to a movie in January 1998, following which, on her account the first sexual intercourse, which was non-consensual, took place.
As the Crown submitted, properly understood, KA’s evidence did not support the applicant’s case. In relation to the time when the complainant was still at Reiby, KA’s evidence was that she was unaware that he and the applicant were “romantically involved” and were in a sexual relationship. Regardless, KA gave evidence that they were openly affectionate after the complainant was released from Reiby, when he was still 15 years old, and that evidence was corroborated by the case notes which indicate that KA knew and liked the complainant’s girlfriend.
The Crown also pointed to aspects of the applicant’s evidence that provided support for the Crown case, including her evidence that she had the keys to access the cells at Reiby, she gave the complainant cigarettes despite knowing she could be criminally charged for doing so, she had not herself sought prior permission to have personal contact with the complainant outside Reiby, she was driving alone with the complainant when they were involved in a car accident (in May 1997), and she went to Queensland with the complainant to see his father.
Counsel for the applicant submitted that despite the fact that the jury did not accept the applicant’s evidence, what remained was a reasonable possibility that the applicant did not have sex with the complainant until he was 16 years old. In my view, the evidence of the complainant, supported as it was by other evidence in the trial, was cogent and told against the reasonableness of that possibility. Upon the whole of the evidence, it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 1, 3 and 5 on the indictment. The appeal should be dismissed.

Conclusion

I propose the following orders:

Time be extended to 16 June 2023 for the applicant to file the notice of appeal.

Leave to appeal is granted.

The appeal is dismissed.

DHANJI J: On my assessment of the evidence the verdicts returned by the jury are not unreasonable. My reasons for this view are essentially those given by Mitchelmore JA.
SWEENEY J: Having made my own assessment of the whole of the evidence in the trial I am of the view that it was sufficient in nature and quality to eliminate any reasonable doubt about the applicant’s guilt of Counts 1, 3 and 5. I agree with the orders proposed by Mitchelmore JA for the reasons her Honour has stated.

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Decision last updated: 13 December 2023

Medium Neutral Citation:	Asiminaris v R [2023] NSWCCA 321
Hearing dates:	8 September 2023
Date of orders:	13 December 2023
Decision date:	13 December 2023
Before:	Mitchelmore JA at [1] Dhanji J at [118] Sweeney J at [119]
Decision:	(1) Time be extended to 16 June 2023 for the applicant to file the notice of appeal. (2) Leave to appeal is granted. (3) The appeal is dismissed.
Catchwords:	CRIME — Appeals — Appeal against conviction — Child sex offences – Three counts of sexual intercourse with child >10 <16 – Two counts under authority – Unreasonable verdict – whether complainant’s evidence inherently unlikely and lacked detail – whether opportunity to develop closeness – where certain matter unexplored and unexplained – whether statement made to arresting officer and effect of statement – whether alleged location of third count possible given evidence of applicant’s brother – whether reasonable possibility applicant’s account might be true
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 66C(1)-(2), 578A Criminal Appeal Act 1912 (NSW), s 5(1)(b) Criminal Procedure Act 1986 (NSW), s 306I Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)
Cases Cited:	AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Hawi v R [2014] NSWCCA 83 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Pell v The Queen (2020) 268 CLR 123; [2020] HCA WG v R; KG v R [2020] NSWCCA 155 Z (a pseudonym) v R [2022] NSWCCA 8
Category:	Principal judgment
Parties:	Katherine Asiminaris (Applicant) Office of the Director of Public Prosecutions (Respondent)
Representation:	Counsel: C O’Neill (Applicant) G Newton SC (Respondent) Solicitors: Murphy’s Lawyers Inc (Applicant) NSW Director of Public Prosecutions (Respondent)
File Number(s):	2017/00154841
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of the identity of the complainant or any information that identifies him is prohibited.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 10 August 2020 Before: Huggett DCJ File Number(s): 2017/154841