BQ v R

[2023] NSWCCA 34

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

BQ v R [2023] NSWCCA 34

Hearing dates:

25 November 2022

Decision date:

03 March 2023

Before:

Davies J; McNaughton J; R A Hulme AJ

Decision:

(1) Extend time for the filing of the notice of appeal to 16 May 2022.

(2) Refuse leave to appeal in respect of Ground 2C pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

(3) Grant leave to appeal in respect of Grounds 1 and 2B and allow the appeal in part.

(4) Quash the conviction on Count 8 and pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) substitute a verdict of guilty of indecent assault upon a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW).

(5) Quash the conviction on Count 11 and enter a verdict of acquittal.

(6) Quash the aggregate sentence imposed in the District Court on 30 November 2018.

(7) Pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW), remit the matter to the District Court for re-sentencing in respect of the convictions on Counts 1, 2, 3, 4, 7, 8, 9 and 10.

(8) List the matter for mention in the District Court at Sydney on 10 March 2023 at 9.30am.

Catchwords:

CRIME — appeals — appeal against conviction — child sexual assault – where complainants were the applicant’s nieces – whether verdict unreasonable in respect of counts 1, 8, 9, 10 and 11 – open to jury to return guilty verdicts in respect of counts 1, 9 and 10 – reasonable doubt as to whether penetrative act occurred for count 8 – expressions “in” and “on” used interchangeably by complainant – reasonable doubt as to whether incident in count 11 occurred – confusion regarding presence of applicant where incident alleged to have occurred – ground of appeal allowed in part

EVIDENCE – the opinion rule – exceptions – expert evidence – whether miscarriage of justice on account of expert evidence as to responses of child victims of sexual assault – evidence given within bounds of expertise – ground of appeal dismissed

APPEALS — from jury verdict — nondirection – whether jury directions regarding expert evidence gave rise to a miscarriage of justice – absence of request for directions at trial – no requirement in the circumstances of the case to warn the jury on how expert evidence could not be used – leave to raise ground of appeal refused

APPEALS — orders on appeal — substituted judgment or orders – substitution of conviction for indecent assault upon child upon quashing conviction for sexual intercourse with child – quashing aggregate sentence – remitting to District Court for resentencing

Legislation Cited:

Crimes Act 1900 (NSW), ss 61H, 61M

Crimes Amendment (Sexual Offences) Act 2008 (NSW)

Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2), 12(2)

Criminal Procedure Act 1986 (NSW), s 294

Evidence Act 1995 (NSW), ss 38, 79, 108C, 165B

Evidence Amendment Act 2007 (NSW)

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

AJ v R [2022] NSWCCA 136

AK v R [2022] NSWCCA 175

ARS v R [2011] NSWCCA 266

Aziz v R [2022] NSWCCA 76

Campbell v R [2018] NSWCCA 87

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728

Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544

Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937

Jackson v R [2020] NSWCCA 5

Jacobs v The Queen [2019] VSCA 285

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen [2011] NZCA 191

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Orreal v The Queen [2021] HCA 44; (2021) 96 ALJR 78; 395 ALR 631

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Saunders v R [2022] NSWCCA 273

SB v R [2020] NSWCCA 207

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36

Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Zhou v R [2021] NSWCCA 278

Category:

Principal judgment

Parties:

BQ (Applicant)
The King (Respondent)

Representation:

Counsel:
G Bashir SC and S Howell (Applicant)
M Millward (Respondent)

Solicitors:
Walsh & Blair Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/297101

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 November 2018

Before:

Letherbarrow SC DCJ

File Number(s):

2014/297101

HEADNOTE

[This headnote is not part of the judgment]

The applicant was found guilty of nine and acquitted of two child sexual assault offences and sentenced to an aggregate term of imprisonment. He sought leave to appeal against conviction but not against sentence.

Between 2007 and 2012, offences involving indecent assaults and sexual intercourse were committed against the applicant’s two nieces, AA and BB, who were aged 5-8 years and 10-13 years.

The Crown alleged that the applicant had a tendency to have a sexual interest in his nieces and acted upon it by engaging in sexual activities with them. The evidence relied upon in this respect comprised the charged offences as well as evidence the applicant referred to BB by the nickname, “Sexy Chocolate”. The Crown also relied upon evidence of uncharged acts of indecent and sexual assaults as context evidence.

Over objection, the trial judge allowed the Crown to call expert evidence from Associate Professor Shackel about how child victims of sexual assault respond to and disclose the offending but disallowed evidence as to the responses of AA and BB.

The applicant gave evidence denying the offences and was supported in respect of a number of contextual issues by the evidence of his wife and other relatives who were called to give evidence for the prosecution. He adduced evidence of his otherwise good character.

The grounds of appeal pressed at the hearing (after the abandonment of Ground 2A) were:

1. The verdicts of the jury in respect of counts 1, 8, 9, 10 and 11 were unreasonable and not supported by the evidence.

(2B)   The trial miscarried on account of the evidence of Associate Professor Shackel.

(2C)   The trial miscarried on account of the trial judge’s directions to the jury concerning the evidence of Associate Professor Shackel.

The Court held upholding the appeal only in respect of Counts 8 and 11 under Ground 1:

1. It was open to the jury to return verdicts of guilty in respect of Counts 1, 9 and 10 but not in respect of Counts 8 and 11.

The event in Count 8 was alleged to have occurred on a recliner chair in a lounge area which adjoined a bedroom at the rear of the complainants’ grandparents’ home. AA gave evidence that the applicant touched her “in my wee”. She circled the genital area on a diagram of a little girl. She said the incident ceased when her two aunts entered the adjoining bedroom. They each gave evidence that they did not see anything untoward.

The Court rejected various criticisms by the applicant of the evidence in relation to this count but concluded there was doubt about whether a penetrative act occurred such as to meet the description of “sexual intercourse” in then s 61H of the Crimes Act 1900 (NSW) (“penetration to any extent of the genitalia … of a female person”). AA used the expressions “in my wee” and “on my wee” interchangeably in describing the incident in Count 10 and in relation to the incident in Count 11 she had referred to the applicant having touched her “in my wee” but “on top of my clothing”. The Crown alleged that the conduct in relation to Counts 10 and 11 constituted indecent assaults. No clarification had been sought from AA as to what she meant by “in my wee” for Count 8. The jury ought to have had a reasonable doubt as to whether sexual intercourse had occurred: the Court at [129]-[131].

The event in Count 11 was described by AA as having occurred when she was helping the applicant’s wife wrap Christmas presents, “probably two weeks before Christmas” in 2012. The applicant had called her to come to him, pulled her up onto his recliner lounge and touched her “in my wee”, “on top of the clothing” and his hand was “on top” of her “wee” for three seconds and then she pushed herself away. The applicant and his wife both denied there was such an occasion; the applicant’s wife going so far as to say that she never wrapped Christmas presents in the presence of children or anyone else.

This event was alleged to have occurred in the complainants’ grandparents’ home where the applicant and his family had been living. However, it was an agreed fact that they had moved out in September 2012. There was no explanation as to why the applicant and his wife would be there, with her wrapping presents, in the lead up to Christmas. It was common ground that the children visited the grandparents’ home on Christmas Day in 2012. However, there was evidence that the applicant and his family spent the day elsewhere and did not visit the grandparents’ home until late in the afternoon. This confusion as to the circumstances in which this incident may have occurred constituted a reasonable doubt that should have been held by the jury: the Court at [204]-[209].

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; and Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 applied.

(2B)   The evidence given by Associate Professor Shackel was within the bounds of her expertise and none of it gave rise to a miscarriage of justice.

The applicant contended that A/P Shackel had impermissibly given evidence concerning the behaviour of “perpetrators”; the relationship between a victim and a perpetrator; intra-familial relationships; when abuse commonly takes place; and the risk factors for sexual abuse.

Upon a review of the entirety of the evidence of A/P Shackel the Court concluded that none of the criticisms of her exceeding the bounds of her expertise or the ruling of the trial judge were made out. Evidence that assaults that happen in homes may occur with other people in the vicinity was tied in with her evidence of assaults occurring in the context of everyday activities and was not objectionable, but even if it were it did not give rise to a miscarriage of justice: the Court at [237], [239]-[240].

Aziz v R [2022] NSWCCA 76; AJ v R [2022] NSWCCA 136 followed.

The use of terms “victims” and “perpetrators” by A/P Shackel did not give rise to a miscarriage of justice. That was the terminology used in the research she referred to which must necessarily have been based upon actual victims and perpetrators: the Court at [256].

(2C) No further directions were required. In the absence of any request for directions, leave to raise this ground should be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

There was no requirement in the circumstances of this case for the judge to warn the jury about how the evidence of A/P Shackel could not be used. The need for such a warning will frequently depend on the way the evidence is led, whether it is challenged, how the Crown uses it in closing address, and the approach taken by defence counsel at the trial: the Court at [269].

M v The Queen [2011] NZCA 191 considered.

The absence of any request by trial counsel for directions is indicative of him seeing no need for anything further in the atmosphere of the trial and the way it had been conducted. No miscarriage of justice was established to justify a grant of leave on this ground by reason of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): the Court at [275]-[276].

The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36; Hamilton v The Queen [2021] HCA 33; (2021) 95 ALJR 894 applied.

JUDGMENT

1. THE COURT: The applicant was tried before Letherbarrow SC DCJ and a jury in the District Court on an indictment alleging 11 counts of child sexual assault offences. He was found guilty of 9 counts and acquitted of 2 counts.

2. The applicant was sentenced to imprisonment for 12 years with a non-parole period of 8 years. He seeks leave to appeal against conviction but not against sentence.

3. There are statutory provisions which prohibit the publication of anything which might identify the two complainants. For that reason, and because the people involved were members of an extended family resident in a regional city, both people and places have been extensively anonymised in this judgment. For example, the city will be referred to as “Smithtown”.

4. The grounds of appeal are:

Ground 1:   The verdicts of the jury in respect of counts 1, 8, 9, 10 and 11 were unreasonable and not supported by the evidence.

Ground 2A:   The trial judge erred in admitting the evidence of Associate Professor Shackel as opinion evidence.

Ground 2B:   The trial miscarried on account of the evidence of Associate Professor Shackel in the trial.

Ground 2C:   The trial miscarried on account of the trial judge’s directions to the jury concerning the evidence of Associate Professor Shackel.

5. Subsequent to the grounds being formulated, the Court published its decisions in Aziz v R [2022] NSWCCA 76 and AJ v R [2022] NSWCCA 136. In supplementary submissions filed on 7 November 2022, the applicant indicated he no longer pressed Ground 2A.

6. The applicant requires an extension of time as the notice of appeal was filed well out of time. The explanation for the delay is twofold: dilatory action by lawyers formerly engaged to pursue an appeal and subsequent difficulties in obtaining all relevant material in order to brief new counsel. An extension of time should be granted because there is merit in part of the proposed appeal.

Overview of the offences charged

7. A summary of each of the offences charged in the indictment, including the relevant provision of the Crimes Act 1900 (NSW), is in the following table with the particulars of the allegations taken from the applicant’s written submissions. [1] The applicant was acquitted on Counts 5 and 6.

   1. Applicant’s written submissions (AWS) [11]

BB
1	Sexual intercourse with child ≥ 10 years but < 14 years (10-13 years) under his authority s 66C(2)	1.1.2007 – 28.1.2010 At the applicant’s family home in an office, fellatio to ejaculation (the “office” incident).
2	Sexual intercourse with child ≥ 10 years but < 14 years (10-13 years) under his authority s 66C(2)	1.1.2007 – 28.1.2010 At BB’s paternal grandparents’ house in a lounge room near a front window, fellatio (the front lounge room incident before the renovations).
3-4	Each: Indecent assault child < 16 years (10-13 years) under his authority s 61M(1) & (2)	1.1.2007 – 28.1.2010 At BB’s paternal grandparents’ house in a rear lounge room occupied by the applicant and his family at the time, touched BB’s vagina on top of her clothes (count 3) and slid his hand underneath her clothes and underwear and rubbed her vagina, then guided her hand to his groin area (count 4) (the night-time TV incident).
5-6	Commit act of indecency towards child < 16 years under his authority s 61O(1) Sexual intercourse with child ≥ 10 years but < 14 years (10-13 years) under his authority s 66C(2)	1.1.2007 – 28.1.2010 In a ute owned by the applicant, travelling from BB’s paternal grandparents’ house to somewhere, played a pornographic DVD (count 5) and fellatio (count 6) (the ute incident).
7	Sexual intercourse with child ≥ 10 years but < 14 years (10-13 years) under his authority s 66C(2)	1.1.2007 – 28.1.2010 At BB’s paternal grandparents’ house in a recliner chair in the rear lounge room occupied by the applicant and his family at the time, digital penetration of BB’s vagina (the BB recliner incident).
AA
8	Sexual intercourse with child < 10 years (5 years) s 66A(1)	1.2.09 – 1.4.09 At AA’s grandparents’ house, in a recliner chair in the rear lounge room occupied by the applicant and his family at the time, put his hands down AA’s pants and underpants and digitally penetrated her vagina (the AA recliner incident).
9	Indecent assault child < 16 years ( 8 years) s 61M(2)	1.8.11 – 1.10.11 At AA’s grandparents’ farm, in a “demolition derby” vehicle on the property, put his hands on AA’s vagina on the outside of her clothing (the demolition derby car incident).
10	Indecent assault child < 16 years ( 8 years) s 61M(2)	1.1.12 – 1.2.12 At AA’s grandparents’ house, in the rear lounge room occupied by the applicant and his family at the time, put his hands inside AA’s pants and underwear onto but not inside her vagina(the Sponge Bob birthday cake incident).
11	Indecent assault child < 16 years ( 8 years) s 61M(2)	1.1.12 – 1.2.12 At AA’s grandparents’ house, in the rear bedroom helping the accused’s wife wrap Christmas presents, went to the accused in the adjoining lounge room where the accused to put his hands on her vagina on the outside of her clothes (the Christmas present wrapping incident).

8. Counts 3 and 4 occurred in a period during which the offences in s 61M were amended. As at 1 January 2007, the offence in s 61M(1) was of indecent assault in a circumstance of aggravation. Circumstances of aggravation were listed in s 61M(3) and included in paragraph (b) that the alleged victim was under the age of 16. The offence in s 61M(2) was one of indecent assault upon a child under the age of 10. Accordingly, at the beginning of the period, because BB was then aged over 10, the applicable offence was that against s 61M(1). However, effective from 1 January 2009 as a consequence of amendments made by the Crimes Amendment (Sexual Offences) Act 2008 (NSW), s 61M(2) became an offence of indecent assault upon a person under the age of 16. The circumstance of aggravation in s 61M(3) for the purposes of the offence in s 61M(1) of the alleged victim being under the age of 16 was deleted. Accordingly, from 1 January 2009 until the end of the period averred, 28 January 2010, the applicable offence was that against s 61M(2).

9. The maximum penalties for the offences in ss 61M(1) and (2) remained the same throughout the entire period, imprisonment for 7 years and 10 years respectively.

10. There was a discussion about this during the trial. It was accepted that the Crown was required to prove beyond reasonable doubt all of the elements of the ss 61M(1) and (2) offences as they existed at the relevant times and that, if convicted, the applicant would become liable to the lesser of the two penalties. This is the way the primary judge proceeded in directing the jury as to the essential elements of the offence(s) and in sentencing. [2] In fact, the judge directed the jury about the Crown also needing to prove another aggravating circumstance, that the alleged victim was under the authority of the applicant, but nothing turns on that.

    2. T258-9, 280-1 (AB 390-1, 412-3); summing up (SU) at 16-19 (AB 39-42); remarks on sentence at 6 (AB 102).

11. This issue is confined to Counts 3 and 4 concerning BB and there is no complaint in this Court about the approach taken by the trial judge.

Principles applicable to a ground of appeal asserting unreasonableness of a verdict of guilty

12. As the applicant submitted, the principles to be applied to the resolution of this ground are well settled. Reference was made to the well-known passage in the judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 492–3; [1994] HCA 63, including:

[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

13. Reference was also made to SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]-[14] and [22] per French CJ, Gummow and Kiefel JJ which include emphasis upon the Court making its own independent assessment of the whole of the evidence.

13. Another High Court authority often cited is Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, in respect of which the applicant drew attention to Hayne J having said (at [113]):

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. (Emphasis in original.)

15. A further authority referred to by the applicant, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, is also worth specific mention for the reference to the Court having said (at [37]):

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that 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.

16. The Crown referred to the most recent consideration by the High Court of the unreasonable or unsupported ground of an appeal against conviction in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]-[9] which further confirmed the test in M v The Queen including the necessity for a Court of Criminal Appeal to make its own independent assessment of the whole of the evidence.

Background

17. The complainants were sisters. BB was born in 1996 and AA was born in 2003. The applicant is their uncle.

The first trial in 2016

18. AA was first interviewed by Child Abuse Squad officers on 9 April 2014 (MFI.2) following a complaint to her mother in February-March 2014. A trial in respect of her allegations started in the District Court on 12 September 2016 but was discontinued after a few days.

19. BB was to be called as a complaint witness in the 2016 trial. BB had given a statement in September 2014, saying of the applicant: “He never touched me at all”. [3] On 14 September 2016, while AA was giving evidence, BB made a second statement about a further complaint she said AA made about the accused. Midway through making that statement she disclosed to Detective Senior Constable Flynn (the officer in charge of the investigation) that, “He touched me like he touched AA”. [4]

    3. T267.43 (AB 399)

    4. T675.35 (AB 816)

20. The officer arranged for her to speak with prosecution lawyers, and she then spoke with her mother. She said to her mother, “You know AA is telling the truth”, and her mother replied, “I’ve never doubted her”. BB said, “I had to say something because I didn’t want her to do it on her own” and started crying. Her mother said, “Oh no, not you too?” and BB replied, “She is fucking telling the truth, mum, ‘cos he did it to me too” and “I don’t know what to do, mum. They are making her look like a liar and she’s not lying, and I can’t let her do it on her own”. Her mother responded, “You just have to do the right thing, otherwise who is going to make it stop”. [5] BB’s disclosure caused the trial to be aborted.

    5. T292 (AB 424)

The second trial in 2018

21. At the beginning of the new trial in August 2018 the judge told the jury the broad detail of this chronology so as to explain why much of AA’s evidence would be provided by way of replaying of recordings, leaving it to counsel who had appeared in the earlier trial and continued to appear for the applicant in this trial to “finish his cross-examination of AA”. [6]

    6. T114 (AB 235)

22. Counts 1 to 7 averred offences concerning BB, each in the period 1 January 2007 to 28 January 2010. The terminal date was when BB moved away to attend boarding school. She was therefore aged from 10 to 13 at the time. The offences concerning AA were alleged in February-March 2009 (Count 8), August-September 2011 (Count 9), January 2012 (Count 10) and 1-25 December 2012 (Count 11). She was aged from 5 to 9 in that overall period.

23. The complainants’ grandparents had three children, a son and two daughters. The son was the complainants’ father. One of the daughters was the applicant’s wife. The extended family was very close, often getting together for dinners and Sunday lunches, usually at the home of the grandparents.

24. The applicant and his wife had two children and they were in the same age range as BB and AA.

25. The complainants’ father and mother had another child, a son who was younger than the two girls. After the parents separated in 2004, their mother had a child with a new partner in 2006.

26. The complainants’ father lived at the grandparents’ home after the separation. At some point he commenced a relationship with a woman who became his partner. The custody arrangement in relation to the complainants was that he would have them either every weekend or every second weekend. This continued when he and his new partner moved out to their own home. The complainant’s mother gave evidence that she continued to drop the children at the grandparents’ home after their father had moved out: [7]

They spent most of the custody time that was supposed to be with their father with their grandparents because the father was involved or busy doing other things.

7. T425.5 (AB 566)

27. The complainants continued to visit the grandparents’ home until Christmas 2012 when contact ceased in the context of family law proceedings. The evidence of the complainants’ mother was imprecise about this. At first she said she and the children stopped seeing her ex-husband’s extended family altogether in 2012. She said the last time she dropped the children off at the grandparents’ home was about the middle of 2012 but then immediately corrected herself to say, “No it would probably – I’m just trying – everything sort of revolves when my dad died in 2013, it happened after, I think it was 2013, after Christmas. That sounds about right.” She then settled on it being “around about the Christmas time” of 2012 as the last time she dropped the children there. [8]

    8. T428-9 (AB 569-570)

28. During the period covered by the indictment, the applicant lived with his family in “Smithtown”. In 2007 they lived in a three-bedroom home unit and from the end of that year until September 2012 they lived in what was referred to as the “back bedroom” of the grandparents’ home. This bedroom had been renovated during 2007 so as to comprise a large room with a bedroom area and a lounge area, partially separated by a wall.

29. Both complainants gave evidence that the applicant indecently and/or sexually assaulted them on occasions beyond those charged in the indictment. This evidence was admitted without objection as context evidence.

30. The Crown also alleged that the applicant had a tendency to have a sexual interest in his nieces and acted upon that interest by engaging in sexual activities with them, using his position as their uncle to facilitate and continue his assaults upon them. [9] The evidence relied upon to establish the tendency comprised the charged offences as well as evidence that the applicant referred to BB by the nickname, “Sexy Chocolate”. [10]

    9. SU 37 (AB 60)

    10. T251 (AB 383)

31. The trial judge directed the jury that before they could apply tendency reasoning they had to be satisfied beyond reasonable doubt that the act(s) relied upon by the Crown occurred and such act(s) as they were satisfied occurred provided a basis to infer that the applicant had the tendency alleged. [11] (Requiring proof to the standard of beyond reasonable doubt was arguably more favourable to the applicant than the law as it then stood required: see, for example, Jackson v R [2020] NSWCCA 5 at [67]-[68] (Price J).)

    11. SU 37-39 (AB 60-62)

32. The applicant was interviewed by police in 2014 and gave evidence at the trial in 2018. He denied having committed any of the sexual acts described by the complainants. His case was that none of the sexual acts occurred and in respect of some of them that they could not have occurred. The latter was dependent solely upon the jury accepting certain witness testimony rather than there being incontrovertible objective facts rendering the offending impossible. The applicant also relied upon evidence adduced from Detective Flynn that he had never been arrested previously and had no criminal record as establishing his good character. This was relied upon as a matter supporting the credibility of his denials and rendering it improbable that he committed the offences alleged. [12]

    12. SU 42 (AB 65)

33. The jury asked the judge what to do if they believed something happened in 2006 which was outside the timeframe of a charge that specified between 2007 and 2010. The judge directed the jury that they would have to acquit the accused on that count. The applicant thereby accepts there is a logical explanation for the acquittal on counts 5 and 6 and no point is taken that there is “inconsistency” with the verdicts of guilty for the other counts concerning BB. (Generally, see Saunders v R [2022] NSWCCA 273 at [101]-[106] (Simpson AJA) and [122] (Hamill J).)

34. The applicant also accepts that “whilst the jury might have entertained a reasonable doubt about his guilt” in respect of Counts 2–4 and 7 concerning BB, “it was nonetheless open to the jury on those counts to be satisfied of his guilt beyond reasonable doubt”. Thus, Ground 1 is confined to Counts 1 (BB) and 8–11 (AA).

35. To avoid repetition, it should be taken that in the assessment of the asserted unreasonableness of the verdicts the subject of Ground 1, the applicant’s prior good character, in both of the respects about which the jury were instructed, has been taken into account.

36. The tendency alleged by the Crown was well open to the jury to accept. It was a powerful factor supporting the credibility of each complainant. It did not, of course, depend upon proof of the applicant’s guilt on every count for it to be established. We are satisfied that it was established on the basis of the applicant’s guilt having been proved, and now not impugned, in respect of Counts 2–4 and 7. This has been taken into account in the assessment of Ground 1 concerning Counts 1 and 8–11.

Evidence as to Count 1 (“the office incident”)

Location of this incident

37. BB said this incident occurred in a room she described as an “office” in the home in which the applicant was living with his family at the time. The applicant disputed that there was such a room and contended that if there is a doubt about that then there is a reasonable doubt about his guilt. [13]

BB’s evidence [14]

13. AWS [156]

14. T200ff (AB 330)

38. BB said that when the applicant and his family lived in the home unit, she visited with her siblings, and they sometimes stayed overnight. She said the unit had “two bedrooms then there was an office and a bathroom and lounge room, dining room. I’m pretty sure it was two bedrooms and an office”.

39. Given the controversy about whether there was an office it is necessary to refer to BB’s evidence on that topic in detail. She said the following about its location:

Q.   You said there was an office. Where was that?

A.   So you would walk in the front door. You walked into the lounge room and from the front door, you walked - so you walked into the front door and turned left straightaway and that was the lounge room and then you continued to walk forward into the dining room and then along the dining room, where you just walked through, there was another door into a hallway and the hallway was – it would - like you walked into the - in the - into the hallway that ran off and you would turn left, so to the office and it's the office on the right-hand side after you turn left down the hallway.

Q.   Is there a bathroom next to the office?

A.   Yeah, so you would walk past the bathroom on the right first and then the office was the next door on the right.

She described the interior of “the office” in some detail:

Q.   What was the set-up of the office, the furniture in there and how that was situated?

A.   So when you walked in the doorway, I'm not sure whether it was a built-in cupboard or whether there was a - like a stand-alone cupboard on your - directly on your right as soon as you walked in the door. There was definitely like a solid wall thing on your left, sorry, and the inside of - when you walked straight in, I'm pretty sure there was a cupboard in the corner as you looked in the doorway and then there was a corner desk.

Q.   You said a corner desk, did you?

A.   Yeah.

Q.   Is that a L-shaped desk?

A.   Yeah.

Q.   Was there a chair anywhere in the room?

A.   Yeah, behind the desk.

Q.   And what sort of chair was it?

A.   So an office chair which spins around that - like that spun around.

Q.   Was there a window in the room?

A.   Yeah, behind the desk, so when you walked in the door, the window was directly in front of you.

Q.   Did that window have any covering?

A.   I'm pretty certain it had vertical blinds.

40. Later in her evidence she said the bathroom adjoined one of the walls of the office, to the left as a person walked out of the office. [15]

    15. T208.5

41. BB said that she had been in the office, but she didn’t remember being there with any of the other kids. She assumed it was the applicant’s office because “all his work stuff was in there”. She did not see her aunt in there.

42. BB gave evidence of an occasion when she was at the home unit and went into “the office” and the applicant was there. She did not remember her aunt or her sister being home, but her brother and the applicant’s children were. The applicant was sitting on “the computer chair behind the desk”. He told her to come in and to shut the door. He told her to climb under the desk. Once she was there, he said, “can you suck my dick”. She did. She said his penis “didn’t have any hair, and he was kind of like half hard, wasn’t fully soft” but “it got harder in my mouth”. She said she could smell his deodorant. He asked her to use her other hand to fondle his testicles and she did.

43. BB could not recall how long this went on for, but it ended when he told her to stop and he pushed his chair away from her, used his hand to masturbate, and ejaculated on the floor. She described that occurring and the aftermath in considerable detail. After the applicant had cleaned up, she went back to the lounge with her brother and cousins. She was asked how she felt after this event and she said, “Normal, as if it didn’t – I didn’t feel anything”. [16]

    16. T206.45 (AB 336)

44. As to the deodorant, BB said she recalled having seen it in the bathroom. She thought “it was Brut; in a green tin”. Her partner used to wear it when they first got together but there was an occasion when he sprayed it in the car; she didn’t like the smell because it reminded her of things that happened, so she threw it out the window.

45. BB turned 11 during the year 2007 when the applicant and his family lived in the home unit. She was aged 22 at the time of giving evidence.

46. Exhibit G was a sketch drawn by BB of the office showing the location and possible location of items of furniture, the door and the window. She had also marked where semen had fallen on the carpet under the desk and where she was standing when the applicant was cleaning it up. This diagram was signed by BB and Detective Flynn and dated 14 September 2016. [17]

    17. AB1039

47. In cross-examination, [18] BB was shown a professionally drawn floor plan of the home unit (Exhibit 6, which had been obtained by police from the records of the local council [19] ). She agreed that it included three bedrooms marked “Master Bedroom”, “Bed 2” which she said was the room used as an office, and “Bed 3” which was the boys’ bedroom. She disagreed with a proposition that there was no desk or office furniture in “Bed 2” and that instead it contained boxes stacked around the walls, laundry and an ironing board.

    18. T296-300 (AB 427-430)

    19. T671.30 (AB 812)

48. It is of some significance that the layout of the room according to Exhibit 6 in terms of a window, the door and a wardrobe coincided in their locations precisely with the diagram BB had drawn two years earlier (Exhibit G). Furthermore, the location in the floor plan of the unit in Exhibit 6 accorded exactly with how BB had described it.

The applicant’s wife

49. The applicant’s wife gave evidence that her family lived in the unit in about 2007 for about 12 months. She and her husband shared what was shown on the plan in Exhibit 6 as the “master bedroom”, their children shared “Bed 2” and “Bed 3” contained boxes, her ironing board, and on one or two days a week there would be washing there. [20]

    20. T633-5 (AB 774-6)

50. The applicant’s wife also gave evidence which was contradictory of BB in saying that her husband was “a reasonably hairy man” and she had never seen him with any of the hair around his penis removed. [21]

    21. T637 (AB 778)

The applicant

51. The applicant agreed with the effect of his wife’s evidence that they had lived at the home unit for about 12 months in 2007 and that he and his wife occupied the main bedroom, their children had a bedroom, and the other bedroom had boxes, an ironing board and washing. There was no room that had a desk or office chair, or which matched the description of an office. He considered himself a hairy person and had never had hair removed from around his penis. [22]

    22. T699-701 (AB 840-2)

52. The applicant’s account was that Bed 3 was the children’s room and Bed 2 was the spare room. This was consistent with BB but contradicted his wife. [23]

    23. T725 (AB 866)

Closing address submissions

53. The Crown Prosecutor drew attention to the correspondence of BB’s description of “the room that she says was a study and had a desk in it”, including her diagram (Exhibit G), with the plan (Exhibit 6). She invited the jury to compare this with the evidence of the applicant and his wife who gave conflicting evidence of where the room actually was but were both sure there was no desk. She submitted: “You may think that this assertion by the [applicant] and the assertion by [his wife] that there was no desk in their house whatsoever is not believable in the circumstances”.

54. The circumstances the prosecutor referred to were that the applicant was conducting a business for which there were books and records maintained as well as a need to prepare documents for tax purposes. In cross-examination the applicant claimed that all of that material was kept at his parents’ house. [24]

    24. T717-722 (AB 858-863)

55. The Crown Prosecutor also submitted that BB had given “a clear detailed account of what occurred” and there were other details she gave which had “the ring of truth”. One example was the smell of the applicant’s deodorant. The prosecutor reminded the jury of her evidence and also that of her partner who confirmed there had been an occasion when she had thrown his deodorant out the window of his car because it reminded her, “My uncle used to wear it”. [25] Another matter of detail of which the prosecutor reminded the jury was BB’s description of the shorts worn by the applicant, with her submission that it coincided with the type the applicant had said he used to wear in that era. [26]

    25. T534.40 (AB 675); T823.10 (AB 964)

    26. T823.30 (AB 964)

56. Counsel then appearing for the applicant submitted that not only did the incident upon which Count 1 was based not happen, it could not have happened because according to the evidence of the applicant and his wife that there was no office, no office chair and no desk in the home unit. [27] Counsel also emphasised the evidence of the applicant and his wife that he was a hairy person and at no stage during their marriage had hair been removed from the area of his penis. [28] He was also critical of BB for her inability to describe what was going on before or after this and other instances of sexual or indecent activity.

    27. T840-1 (AB 981-2)

    28. T851-2 (AB 992-3)

Submissions as to Count 1

57. As indicated earlier, the applicant’s contention was that any doubt about whether there was an office meant that there must be a reasonable doubt about his guilt in respect of Count 1. The only evidence that there was an office in the home unit was that of BB, including her diagram, Exhibit G.

58. It was submitted that the applicant and his wife were adamant that there was no office and that the inconsistency in their recollection of which out of Bed 2 and Bed 3 was the children’s bedroom and the spare bedroom was explicable by the passage of time.

59. The applicant also pointed to the fact that the Crown did not seek to challenge the applicant’s wife in relation to her assertion that the home unit did not have an office.

60. The Crown, on the other hand, relied upon the detail in the recollection of BB as to the location and content of “the office” and how it coincided with the objective evidence provided by the detailed professionally drawn floor plan tendered by the defence (Exhibit 6). Submissions were also made about features of the applicant’s evidence that might have given the jury cause to doubt its accuracy. [29]

    29. Crown written submissions (CWS) [52]-[54]

Determination of Ground 1 in respect of Count 1

61. It was well open to the jury to accept the assertion of BB that there was an office in the home unit where the event in Count 1 occurred. She first gave an account about it in detail in September 2016 during the trial of AA in circumstances that have been described earlier (at [19]-[20]).

62. BB’s credibility appears from the pages of the transcript to be sound (although obviously the jury enjoyed an advantage of seeing and hearing her testimony). Counsel for the applicant addressed the jury at length about her previous statement that the applicant had not abused her. [30] However, the way in which her disclosures unfolded had an air of credibility (see below at [83]-[87]).

    30. T846.35-849.7 (AB 987-990)

63. BB was aged 20 when she made her disclosure in detail in September 2016, some nine years after 2007 in which the Count 1 incident was alleged to have occurred. The precise detail in her description of “the office” and the fact that it was completely consistent with the plan in Exhibit 6 likely impressed the jury as an accurate and reliable recollection. For example, and as the Crown identified, the position of the door and window in Exhibit 6 were shown in the same location as on BB’s diagram. Where she indicated in her diagram a “possible cupboard”, the plan showed a built-in wardrobe. It is unlikely BB would have had an ability to recall such things about the room if nothing dramatic had occurred there.

64. The alternative version that there was no office and no office furniture was well capable of rejection. Despite the submission to the jury of the applicant’s counsel, the insistence of the applicant and his wife that there was no office did not necessitate the jury having a reasonable doubt based on their testimony. They lived in the unit for about 12 months. It is doubtful that the passage of time could account for them contradicting each other in stating whether it was Bed 2 or Bed 3 that was the spare room that they said was filled with boxes, an ironing board and washing.

65. The applicant’s submissions also referred to a contradiction between BB on the one hand and the applicant and his wife on the other as to whether the applicant had hair around his penis. Whilst the contradiction was identified, it played no part in the applicant’s contention that the verdict of guilty on Count 1 was unreasonable. That contention was confined to “the office” issue. In any event, there were other aspects of BB’s account that the prosecutor referred to as having “the ring of truth”.

66. There was general support for the credibility of BB in her claim to having been abused by the applicant. The fact that the applicant accepts that it was open to the jury to return verdicts of guilty on Counts 2-4 and 7 is notable but there are two further general matters. One is her poignant explanation for why she made no contemporaneous complaint. After some evidence about her telling people about the abuse sometime after it had occurred, there was this: [31]

Q.   Is there any particular reason, BB, why you didn't tell somebody earlier about what had happened with [the applicant]?

A   Yes.

Q.   What's that reason?

A.   I thought that I was doing the wrong thing because I didn't say no to him, and I liked it.

31. T243 (AB 374)

67. Another is the evidence of the applicant having referred to BB by the nickname, “Sexy Chocolate”. BB’s evidence about it was as follows: [32]

    32. T250-1 (AB 382-3)

Q.   BB, when you were little did you have any nicknames?

A.   Just one.

Q.   What was that?

A.   Sexy Chocolate.

Q.   Who used to call you Sexy Chocolate?

A.   Just [the applicant].

Q.   How many times did he call you Sexy Chocolate?

A.   I don't have a number, because it was all the time.

Q.   How would he say - how would he use that nickname?

A.   When - like, asking me to come and sit on the lounge, or—

Q.   Can you say it, BB, in direct speech? So, "[the applicant] used to say", and then say what he said?

A.   So he would say - one time in particular that I remember was he said, "Come and sit over here on the lounge. You're my Sexy Chocolate."

Q.   So the time that he said, "You're my Sexy Chocolate", was that the only time he said it in that way? Or was there other times he'd say it in that way?

A.   That is the only time that I can remember that he called me his.

Q.   Do you remember where you were on that time that he said, "You're my Sexy Chocolate"?

A.   Yes. I was in the lounge room at [the grandparents’ house].

Q.   Was that before the renovations, or after the renovations?

A.   After the renovations.

Q.   Did you hear - did he say - use the word "Sexy Chocolate" in front of anyone else?

A.   Yes. In front of everyone.

Q.   "Everyone" being who?

A.   All my family.

Q.   Okay. Would he say it in front of your grandparents?

A.   Yes.

Q.   What about your sister AA?

A.   Yes.

Q.   What about your cousins?

A.   Yes.

Q.   Do you remember when he would start - when he started calling you Sexy Chocolate?

A.   Not exactly, but I was really young. He always called me that for as long as I can remember.

68. The applicant responded to this evidence with the following explanation which was likely to have been devastating to his credibility, including the credibility of his denials of the offending and his assertions of facts contradicting those of the complainants: [33]

    33. T716-7 (AB 857-8)

Q.   Why did you call BB, ''Sexy Chocolate."

A.   Cause a song, there was a song and I only called her it a couple of times, just for a joke wise.

Q.   What was the song?

A.   I don't know, I think it was ''Sexy Chocolate.'' Something about sexy chocolate.

Q.   Can you remember who the artist was?

A.   I think it was Hot Chocolate or something.

Q.   Hot Chocolate?

A.   I don't know, something like that.

Q.   And you only called her it a couple of times?

A.   In front of everyone, yes.

Q.   As a joke?

A.   Not as a joke, just as a sort of a spontaneous thought thing.

Q.   How old was she when you called her, ''Sexy Chocolate," a couple of times?

A.   She was pretty young I think. Yeah, I don't remember how old she was, she was pretty young.

Q.   You didn't think it was a bit inappropriate to call a young girl, ''sexy'' something?

A.   No.

Q.   Why not?

A.   I don't know. I don't know, I just said it, yeah.

Q.   Did you call anybody else ''Sexy Chocolate''?

A.   No.

Q.   Just BB?

A.   Just BB.

Q.   Why did you just call her ''Sexy Chocolate"?

A.   I'm not sure, I don't know, just because of the song came on, it was just the - just come on, the song come on, I heard it and just said, ''Sexy chocolate,'' you know.

Q.   Was she around when the song came on?

A.   Yeah, I think so.

Q.   So the song came on and you just decided to call BB, ''Sexy Chocolate"?

A.   Yeah.

69. The evidence of BB in relation to Count 1, including that the incident occurred in “the office” was capable of acceptance to the complete exclusion of the contradictory evidence of the applicant and his wife, the applicant’s sworn denial of the offending, and his prior good character. A verdict of guilty was well open to the jury to return.

Evidence of BB as to other incidents

70. Although they are not the subject of complaint under Ground 1, it is appropriate to take note of the evidence of BB concerning Counts 2–7 (at least because it is relevant to the tendency alleged by the Crown) and other sexual misconduct by the applicant adduced as context evidence. The following is largely drawn from the written submissions.

Count 2 – aggravated sexual intercourse with child between 10 and 14 – verdict guilty

71. BB described an incident that occurred at the grandparents’ home before the renovations in 2007. She and the applicant were in the house, along with her siblings and her cousins (the applicant’s two children). Each of the children, other than BB, could be heard in the kitchen playing on their DSs (gaming consoles). The applicant was in the lounge room at the front of the house, sitting on a red lounge next to the window. He was wearing shorts and a short-sleeved top. BB could not recall how she came to be kneeling in front of the applicant but recalls being in that position sucking his penis. The applicant had his hand on her head, guiding it back and forth. BB continued to suck the applicant’s penis until he told her to stop. [34]

Counts 3 and 4 – indecent assault of child under 16 under authority (x 2) – verdicts guilty

34. T208-211 (AB 338-341)

72. Counts 3 and 4 occurred after the applicant and his family had moved into the grandparents’ home after the renovations. It was common ground that this room, divided into a lounge area and a bedroom area, was occupied by the applicant and his family. BB gave evidence that the usual sleeping arrangements were that the applicant’s wife and one of her children slept in the bed in the bedroom area while the other child slept on a futon in the lounge area. The applicant slept in a recliner chair in the lounge area.

73. BB gave evidence that she (and presumably her siblings) spent time in this area with their cousins (the applicant’s children), watching cartoons on the TV and playing with their gaming consoles. [35]

    35. T186 (AB 316)

74. On the occasion in question, BB and the applicant were present along with her siblings and the applicant’s children. The applicant’s wife was at work. AA was on the recliner. JJ and the applicant’s sons were on the futon. The applicant was lying next to BB on the floor. BB had a Spider-Man blanket over her. The applicant put his hand under the blanket and rubbed BB’s “vagina area” on top of her clothes. He then put his hands into her pants and rubbed her clitoris with his fingers, BB having moved onto her side a little bit. The applicant grabbed BB’s hand and guided it to his penis on top of his shorts. The applicant’s penis was erect. BB could not recall how long her hand remained in that position. [36]

    36. T215-8 (AB 345-8)

75. The applicant later told police, during an interview on 10 October 2014, that they had Spider-Man blankets when he lived in the grandparents’ home. This was said in response to a proposition that he had indecently assaulted AA after placing a blue fluffy blanket over her. He said, “No. I don’t even have a blue blanket”. He could have ceased the answer at that point, but he continued by volunteering, “We only have Spiderman blankets”. [37]

    37. Exhibit L1 (Q250-2)

76. The applicant resiled from that admission in his evidence at trial, stating that he had made a mistake in the interview, confusing Spider-Man blankets (which he asserted they did not have) with Spider-Man pillows (which they did). His wife had made that assertion as well. She claimed, “I only had doonas … on my bed and on the futon”. [38]

    38. T621 (AB 762)

77. JJ gave evidence of there being blankets, including Spider-Man ones. [39]

Count 5 – commit act of indecency towards a child under 16 under authority – verdict not guilty

39. T552 (AB 693)

Count 6 – sexual intercourse with child between 10 and 14 under authority – verdict not guilty

78. These are the counts for which the applicant was found not guilty, seemingly upon an acceptance by the jury that the relevant acts occurred but because of doubt as to whether they occurred within the timeframe alleged in the indictment.

79. BB gave evidence that she was with the applicant in his ute when he instructed her to remove a disk from the glovebox and put it in a DVD player in the dashboard. The video depicted a man and a girl engaged in sexual activity. The applicant then pulled over and parked, pulled down the front part of his shorts and BB leant over the centre console and sucked his penis.

Count 7 – sexual intercourse with child between 10 and 14 under authority – verdict guilty

80. BB recalled one particular occasion before she moved to boarding school. She and the applicant were in the position described above. AA was asleep on the floor in front of the recliner. JJ and the applicant’s son G were on the futon. The applicant’s wife was not there. The applicant put his hands down BB’s pants and moved his fingers in a circular motion inside the lips of her vagina before putting a finger into her vagina. When asked how it felt physically, BB replied, “Felt good”. She said she was not in any pain. [40]

    40. T239-240 (AB 371-2)

Uncharged incidents adduced as context evidence

81. BB gave evidence that there were “heaps of times” when she was sitting on the applicant’s lap as he sat on the recliner in the lounge area of the “back bedroom” of the grandparents’ home. She said, “I can’t remember, like, what exactly happened to all of them because they were nearly all the same, and it was just all the time”. She explained this as follows (with this evidence being relied upon, without objection, as context evidence): [41]

    41. T238 (AB 370)

Q.   When you say they were nearly all the same, what do you mean by that?

A.   So sometimes he would just rub my vaginal area on the outside of my clothes, and sometimes it would be on the inside of my clothes. Then there was a couple of times where he would put a small part of his finger into my vagina.

Q.   Were these times - did they occur when other people were around?

A.   Almost every time.

Q.   Those other people, who were they?

A.   So that would be my brother and sister, [JJ], AA, and my two cousins, […].

Q.   When you were sitting on [the applicant’s] lap, when he was on the recliner, was there anything else on the recliner?

A.   Usually a pillow that I would hold in front of me on my lap.

82. It might have seemed to the jury to be most unlikely that a person would fabricate an account of sexual abuse and include in it that others were present, but then, knowing that those other persons would not support their account, provide a further fabrication for why they would not do so.

BB’s disclosure

83. BB first disclosed the offences to a cousin as they were sitting in a restaurant. This was sometime after an event in March 2015. They were talking about AA and the cousin asked, “Did he do it to you too?” BB replied, “Yes”. When the cousin inquired what he did she told her, “[H]e made me suck his dick”. [42] Both BB and the cousin gave evidence about this (although with variation as to peripheral detail). The cousin said that after BB said she believed AA, “Because it happened to me”, BB broke down and sobbed for about two hours. She said, “It was like she exploded and then she just couldn’t move. She was just spent”. [43]

    42. T242 (AB 374)

    43. T530 (AB 671)

84. BB later told her partner who encouraged her to tell someone. He gave evidence that three or four weeks before court came up (in September 2016), “Basically she told me, everything that happened to AA happened to her”. [44]

    44. T537-8 (AB 678-9)

85. BB’s first disclosure to police and her mother on 14 September 2016 has been described earlier (at [19]-[20]).

86. As to why, when AA made her disclosures in early 2014, BB did not tell AA that the applicant had abused her too, BB said that she was not ready to tell anyone. She explained that she did not attempt to comfort AA in that way as she did not think that what the applicant had done to her was wrong. BB continued: [45]

I was blaming myself, so I thought that I was making it happen and I didn’t put myself in the same situation as AA… because she was so much younger and… I could’ve said no but I didn’t. So we’re not in – I didn’t put myself in the same position as her.

45. T289 (AB 421)

87. As indicated earlier, counsel for the applicant sought to make much before the jury of BB’s inclusion in a police statement in 2014 that “he never touched me at all”.

Disclosure by AA

88. The complainants’ mother gave evidence of AA first disclosing that she had been touched by the applicant on Valentine’s Day 2014. She asked AA why she had not said anything before and “she said she was scared that he would hurt her, or me, or BB”. She disclosed that the applicant had “put his fingers in my vagina”. When asked if he had put his penis anywhere, she replied, “No, just his fingers”. The mother did not ask when this had occurred, explaining that AA’s younger half-brother was present, and it was “not something a little boy wants to hear” so she “just deflected it and changed the subject”. [46]

    46. T439-440, 443 (AB 580-1, 584)

89. There was a further conversation between AA and her mother that afternoon after AA returned from school. AA told her that the abuse happened when her grandmother was at bingo, her grandfather was at his farm, her aunt was working, and her father was playing poker. The other children were sometimes out of the room, and sometimes they were in the room and the applicant did it under a blanket. Her mother said that she jokingly asked how could you do it in the room with the others there and she said AA “got upset and just said, ‘He did’”. She said, “The kids were watching telly and sometimes when we were watching telly with the other kids he would put me on his knee … and put a blanket on and touch me”. [47]

    47. T444-5 (AB 585-6)

90. The complainants’ mother said that there were further conversations with AA about her uncle over a period of time. At one point she was told by AA of an occasion at Christmas time associated with Christmas presents. (See below at [178]ff in relation to Count 11.) There was another occasion when AA told her something, but her mother was busy cooking dinner and the younger son was present, so she “brushed” AA off and “deflected” the conversation. On another occasion there was mention of an incident occurring in a car on the grandfather’s farm. (See below at [132]ff in relation to Count 9.) [48]

    48. 452-6, 465 (AB593-7, 606)

91. A decision was taken to go to the police. The complainants’ mother contacted BB to tell her. She said BB was upset. [49] The mother made her first statement on 21 March 2014. AA was interviewed by Child Abuse Officers on 9 April 2014 (MFI.2).

    49. T465-6 (AB 606-7)

92. BB recalled receiving a call from her mother in which her mother told her that the applicant had touched AA. BB recalled responding, “What the fuck?”. She could not remember if her mother told her further details. [50]

    50. T179 (AB 309)

93. BB recalled receiving a message from AA saying that she needed to speak. BB called her and asked if the applicant had touched her. AA confirmed that he had but did not go into detail. [51]

    51. T180 (AB 310)

94. Subsequent to that there was an occasion when BB was staying with her mother and had the occasion to speak with AA when AA had become upset and was crying. BB asked what was wrong and AA “blurted out that [the applicant] put fingers inside her”. BB said she was shocked; she didn’t know what to say and so she just hugged AA. [52]

    52. T181 (AB 311)

95. BB said that there was an occasion when AA was staying at the home BB shared with her partner when AA became upset and was crying. AA asked her why people have sex and in the course of answering, BB said “that’s how it’s supposed to be and that what [the applicant] did to her wasn’t her fault”. AA told her about things the applicant did, including that “he used to make her sit on his lap with a pillow and he had put his fingers inside of her”. BB also thought she said, “he’d made her touch his dick”. BB started crying and asked when did it happen and she said AA “said to me that we were all there when it was happening”. [53]

    53. T243-9 (AB 375-381)

Evidence as to Count 8 (“the AA recliner incident”)

96. The applicant, his wife and their two children lived in the back room of the grandparents’ home after the renovations had been carried out. As previously described, the room was divided into a bedroom area and a lounge area. Access from the rest of the house was through a doorway into the bedroom area. The location of furniture shown in the diagram tendered by the defence (Exhibit 1A) indicated that the applicant’s recliner chair in the lounge area was out of view from the doorway into the bedroom area. However, the applicant’s wife gave evidence that the wardrobe in the bedroom area had three doors, two of which had mirrors by which from the doorway one could see into the lounge area, including the recliner chair. [54]

    54. T619 (AB 760)

Evidence of AA

97. AA provided evidence relevant to Count 8 in her first interview on 9 April 2014. [55] She was aged almost 11 at the time. This followed her disclosure to her mother in February 2014.

    55. MFI.2 – Q30-Q220

98. She initially described what her uncle, the applicant, “would” do to her when she was about 5½ - 6 years. (AA was of that age in about October 2009 to April 2010.) She said, “he would start touching me” and she “would tell him to stop but he wouldn’t”. The questioning, and her account, subsequently became more specific. It became clear that the incident upon which the Crown based this Count was identified by the circumstances in which it came to an end, by AA’s two aunts entering into the bedroom area. [56]

    56. Crown closing address, T828-9 (AB 969-970)

99. AA drew a circle indicating the genital area on a diagram of a little girl (Exhibit B), referring to it as “wee” and that it was used for “going to the toilet”. The applicant touched with “his fingers”. It was in the “middle” of the area, “underneath” the clothing. She was asked “where were his fingers going” and she replied:

In my wee.

100. She was asked what she could feel and she said, “his fingers”. He was sitting on the lounge and she was sitting on the armrest. She said his “one” hand was coming “from the front”. He told her “Not to tell anyone”. The touching of her “wee” went for “minutes”. She was “trying to push his hand away, and he wouldn’t stop”.

101. The touching stopped because her uncle’s two sisters “walked in the room”, one being the applicant’s wife. She was asked if she thought they would have seen anything and she replied, “Not that I know of”. She nominated other people who would have been home, elsewhere in the house.

102. When pressed for detail she said that it occurred when she was in Year 1 (and she named the school and her teacher). It was on a weekend, “because we were there on the weekends”. It was “in the afternoon”. She drew a sketch diagram of the room and its furniture, indicating the applicant was on a lounge and she was on the armrest (Exhibit A). This was a lounge the applicant used to sleep on; he did not sleep with his wife. The television was showing “probably some kid shows”.

103. AA was cross-examined about this incident in the first trial in September 2016. [57] It was clarified that the incident occurred while the applicant was sitting on a recliner chair and she was on the armrest. There was also the following evidence:

     57. 14.9.16, T51-56

Q.   What was your position? How were you sitting then, please tell us, on the arm rest at that time when he started to do that?

A.   What do you mean?

Q.   When he started to touch you, how were you sitting? Were your legs hanging down the side or in front of Uncle [the applicant]? Were they crossed or what? Or folded up--

A.   They--

Q.   --somehow?

A.   They were just straight on the leg rest.

Q.   So, what, they were stretched along the leg rest? Is that right?

A.   Yes.

Q.   So your legs were more or less together. Is that right?

A.   Kind of.

Q.   Sort of stretched out along the leg rest.

A.   Yep.

104. AA said she was wearing pants and he put his hand down the front. She tried to push his hand away and said, “Stop”.

105. AA was asked about her two aunts who “came into the room”, agreeing that they were people she had known for a long time; she liked and trusted them; she felt safe with them; and they had always treated her well. She was then asked if something bad happened she would feel safe with them, but she said, “I’m not sure”. She was asked why she was “not sure” and she replied, “Because my uncle said not to tell anyone”.

106. AA agreed that, as the aunts walked in, the applicant had his hand down the front of her pants, but she could not remember either of them saying anything like, “What’s going on here?” It was then clarified that the aunts did not walk into the room where the recliner was; they were “in my aunty’s bedroom”, and that the applicant had stopped what he was doing “when they walked into the door”. [58] She confirmed in re-examination in 2018 that the applicant had stopped when the aunts had walked into the bedroom. [59]

     58. 14.9.16, T55-56

     59. T168.20 (AB 298)

107. The cross-examination in 2016 in relation to this incident concluded with it being put to AA that the applicant had not put his hands down her pants in any way and she replied, “That’s not true”. [60]

     60. 14.9.16, T57

The applicant’s wife

108. The applicant’s wife confirmed that the recliner chair was the applicant’s chair and he slept in it. [61]

     61. T611 (AB 752)

109. She said there was no occasion when she and her sister came into the bedroom area and saw something untoward occurring between the applicant and AA reflected in the mirrors of the wardrobe. [62]

     62. T620 (AB 761)

110. She agreed with the applicant’s counsel that if AA had been sitting on the arm rest with her feet touching the leg rest of the recliner (as she had described), she would have to have been sitting on the edge of the armrest. [63]

     63. T636 (AB 777)

The aunt

111. The applicant’s sister-in-law also gave evidence of being able to see the recliner chair in the lounge area from the doorway leading into the bedroom area via the reflection in the mirrored doors of the wardrobe. Like her sister, she did not see anything untoward or suspicious between the applicant and AA. [64]

     64. T582 (T723)

The applicant’s father-in-law

112. The applicant’s father-in-law gave evidence of AA frequently sitting on the arm of the applicant’s recliner chair. He never saw anything untoward or unusual. He agreed that everything he saw of them seemed perfectly fine (as it did between the applicant and BB as well). [65]

     65. T563 (T704)

The applicant

113. The applicant denied this event occurred. [66]

     66. T689 (T830)

Closing address submissions

114. The Crown Prosecutor submitted that when AA spoke of the applicant having touched her “in my wee”, she should be taken as having referred to her vagina for two reasons. [67] The first was because she marked on the diagram (Exhibit B) “the area which is around her vagina, that she says was her wee”. The second point was more elaborate. It was an agreed fact that AA attended a doctor on 13 March 2006 in relation to a vaginal irritation. She was diagnosed with a urinary tract infection on 22 March 2006. [68] According to BB, AA had said to her father that she had “diamonds in her wee”. [69] The father gave evidence that “she complained that she had a sore vagina and that BB had put diamonds in her”. [70] So, the prosecutor submitted the jury would “be satisfied that the way that she uses that word ‘wee’, it’s clear that she means her vagina”.

     67. T828 (AB 969)

     68. Exhibit N (item 3)

     69. T257 (AB 389) per BB. T680 (AB 821) per Det Flynn as to content of BB’s statement.

     70. T594 (AB 735)

115. Otherwise as to this incident, the prosecutor addressed the possibility that the two aunts would have seen if anything untoward was going on between the applicant and AA in the reflection of the mirrors as they entered the bedroom. She submitted there was no evidence as to how long the incident had gone on for, nor evidence as to whether the aunts were paying any attention to what could be seen in the mirrors as they entered. [71]

     71. T829 (AB 970)

116. Counsel for the applicant made two points about this alleged incident. [72] He first referred to AA saying that while she was sitting on the armrest of the recliner her feet were “stretched out and were on the footrest”. The submission was that it was “highly unlikely” the applicant could have done what was alleged if AA was positioned in that way. The next submission concerned the two aunts whose arrival was said to have brought about an end to the incident. Counsel submitted that the absence of the aunts seeing or hearing anything untoward, in circumstances where they would have if what AA had described had occurred, meant that “her account of things could not have happened, not like that, not with these two women walking in without warning”.

     72. T861- (AB 1002-)

Submissions as to Count 8

117. In this Court there were a number of submissions critical of the quality of the evidence relied upon by the Crown. [73] For example, the fact that the aunts came into the room at a time when the applicant’s hand was said to have been down AA’s pants but they both gave evidence that they saw nothing untoward. This was described in oral submissions as “a clear MFA problem”. [74] Assuming this to be a reference to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, it is noted that in that case there was a discrepancy between the evidence of the complainant and an eyewitness, but it was not considered by this Court, or the High Court to warrant a finding that the verdict in question (on Count 8) was unreasonable or unsupported by the evidence.

     73. AWS [161]-[164]

     74. CCA T16.45

118. It was submitted that the questioning in the 2014 interview (MFI 2) had initially been in terms of what the applicant “would” do and how he “would” touch her. It then proceeded with an assumption that she had been touched in that way on the occasion when she said her two aunts came into the adjoining bedroom.

119. Greater emphasis was placed on a submission that the evidence left it in doubt whether there had been a penetrative act by the applicant as opposed to a merely indecent act. The submissions included comparison with AA’s account of other incidents which included a similar or identical expression (“in my wee”) but which were pressed by the Crown as indecent but not penetrative sexual assaults. Reference was made in oral submissions to AA in her 9 April 2014 interview using the terms “in my wee” but “on top of the clothing” in relation to the Count 11 incident (see below at [180]) and both “in my wee” and “on my wee” in relation to the Count 10 incident (see below at [166]). It was submitted that this was consistent with AA referring merely to the area she had circled on the diagram, Exhibit B. [75]

     75. CCA T15.25- 15.33

120. It was observed that there was no attempt to clarify these descriptions by AA in oral evidence-in-chief. [76]

     76. CCA T15.33

121. The Crown addressed the submission about the two aunts by referring to the evidence of each that they never came through the door and saw in the mirrored wardrobe doors the applicant and AA on the recliner chair. The Crown submitted that the jury might have regarded this adversely reflecting upon the accuracy of the aunts’ recollection given the frequency with which others (including the applicant’s wife) described the pair sitting on the recliner together. [77]

     77. CWS [57]

122. The Crown submitted that in any event, the applicant’s submission assumed the wardrobe doors were positioned in a way to capture the reflection of the recliner chair. It also assumed that the aunts would have had their suspicions aroused given the applicant was said by AA to have ceased what he was doing as the aunts opened and entered the hitherto closed door. [78]

     78. CWS [58]

123. As to the use of the expression, “in my wee”, in relation to other incidents, the Crown noted that AA had corrected herself in relation to Counts 10 and 11 by describing the touching as “on top” of her “wee”, whereas she offered no such correction in relation to Count 8. A further submission by the Crown that AA’s account of the touching being “in” her wee was not challenged by the applicant in cross-examination is of no merit as his case was clearly put that there was no touching at all. [79]

     79. CWS [59]

124. The Crown referred to the jury being directed as to the definition of “sexual intercourse” including penetration of the genitalia “to any extent” and submitted that the jury would have been entitled to conclude that AA was able to describe the difference between inside and outside her body. [80]

     80. CWS [60]

125. The Crown also referred to the evidence of BB of digital penetration of her vagina by the applicant when they were together on the recliner chair, on occasions with others present in the room. [81]

     81. CWS [61]; see also [23]-[24]

Determination of Ground 1 in respect of Count 8

126. The issue concerning the evidence of the two aunts may be dispatched quite briefly. There was no evidence that either of them saw AA and the applicant sitting on the recliner chair on the occasion in question. That is different to there being evidence of the aunts seeing them but saying nothing untoward was happening.

127. It was the evidence of AA that the aunts were in the bedroom area. The defence case was to the effect that it may be inferred they would have seen the pair in the reflection in the wardrobe mirrors. That assumes they were looking at the mirrors, and at the right angle to enable them to see the recliner chair, but the evidence was silent about those matters.

128. The rather muted criticism of AA’s evidence lacking specificity as to the occasion in which the Count 8 incident occurred may also be rejected. It was well open to the jury to be satisfied that the evidence relied upon by the Crown was concerned with a specific occasion, namely the first occasion upon which she was indecently touched by the applicant which ceased upon the aunts’ arrival.

129. The more troubling issue, however, is whether the jury ought to have had a reasonable doubt about whether there was an act of penetration such as to constitute sexual intercourse as defined in the statute. At the time, s 61H(1)(a) of the Crimes Act defined “sexual intercourse” to include “penetration to any extent of the genitalia … of a female person”.

130. There is merit in the submission that the term, “in my wee”, could have been used by AA to describe a touching in her genital region without necessarily meaning to convey that there was penetration even in the slightest degree to constitute intercourse. While it might be expected that AA would have been able to describe the difference between inside and outside her body as the Crown submitted, the problem is that she wasn’t asked. Her seemingly interchangeable use of the expressions “in my wee” and “on my wee” leaves room for doubt as to whether she was describing an act of penetration. The fact that the complaint evidence included that the applicant had inserted his fingers in her vagina was a general assertion and not specific to this particular incident.

131. Ground 1 should be upheld and the conviction in respect of the offence in count 8 should be quashed. The consequences of this will be discussed later.

Evidence as to Count 9 (“the demolition derby car incident”)

132. The grandparents had a farm not far out of the town where they lived. The incident with which Count 9 is concerned was alleged to have occurred at the farm in a car that was being prepared to be entered in a “demolition derby” in the forthcoming “Smithtown” show.

Evidence of AA

133. In her interview of 9 April 2014, AA spoke of an occasion when a “smash up derby” car was being made and, when it was finished, the applicant was taking everyone for a drive in it. She said, “when I was driving it, he started touching me, when, like, and I couldn’t do anything “cause I was driving”. When asked where he touched her, she said, “On my wee, on top of the clothing”. She said she was driving the car for “probably 5 minutes”. She thought this was “probably a week” before the show when she was 7 years old. She was asked to describe the car and said it was black with rainbow colours on it. [82]

     82. MFI. 2, Q412-436

134. AA was cross-examined about this incident at the trial in 2016. [83] She said she could not remember whether there were seats in the back of the car, and she was not sure whether there was anything unusual about getting into the car. She was asked whether she was scared when the applicant touched her and she said, “Yes, because I couldn’t do anything because I was driving and if I did anything, I would probably crash”.

     83. 14.9.16, T83-91

135. AA said that other children had also driven the car: her sister BB, her brother JJ, and possibly the applicant’s two children.

136. Inconsistent aspects of her mother’s account of her complaint concerning this incident were put to AA and she said either that she did not recall or was “not sure”.

137. A number of propositions were put to AA which she did not accept: the demolition car whilst at her grandparents’ farm was in a shed for the whole time; it was never driven on the farm; she did not drive it and nor did other children; the car could not be started or driven because it did not have a battery or a fuel tank. In two long questions that effectively conveyed a simple proposition that the touching she alleged did not happen, she replied, “I don’t know” and “I’m not sure”. A slightly shorter question conveying the same proposition had previously elicited the answer, “That is wrong”. Thus, equivocal answers may have been more a function of poorly phrased questions than uncertainty about a simple point.

BB

138. BB did not give any evidence about driving a demolition derby car at her grandparents’ farm. She was not asked.

JJ

139. JJ gave evidence that there was a car at one stage at the farm. It was being done up for the show, a smash-up derby. He said, “We’d take it – sometimes we’d take it for drives on the farm”. [84] In cross-examination he was challenged about having said in a statement he made in September 2014 that he remembered a buggy-type car on the farm that was for the demolition derby at the show, but he did not remember driving it or being taken for a drive in it. It was put to him that this was “the correct situation”, but he maintained what he had said in his evidence-in-chief was correct. Although he had not driven the car and was not in the car when it was driven, other kids were taken for a drive, and he rejected a proposition that it was incapable of being driven. [85]

     84. T553.23 (AB 694)

     85. T564-567 (AB 705-708)

The complainants’ father

140. The complainants’ father remembered cars on his parents’ farm. He recalled one that was used for the “destruction derby” at the local show. It was possibly a 4-door Cortina, some sort of Ford. It was “matte black or something” and “spray painted all different colours”. It was able to be driven on the farm and was driven by the applicant. The complainant’s father said he did some work on this car, he may have welded the roll bars or something. He also recalled a yellow Subaru Ute which the applicant used to drive with the kids. He said, “He’d just take the kids around the farm for a joy ride”. [86]

     86. T595-7 (AB 736-8)

141. It was put in cross examination that the work he did on the demolition derby car included welding the doors shut. He could not recall doing that but said it was possible. The other car was a Subaru Brumby, a two-seater ute with no back seat which never left the farm as far as he was aware. The demolition derby car belonged to a man called [TG]. He said in his statement that he did not remember being at the farm when the children drove in the demolition car. He disagreed with a proposition that the demolition car only had a driver’s seat. He thought it might have been “all seated” when it got there but only had the driver’s seat when it left. [87]

     87. T602-6 (AB 743-7)

244. The Crown later dealt with Professor Shackel’s evidence in some detail as follows: [133]

Now, I expect much will be made of the delay. The delay that AA had in complaining about the incidents, and the delay that BB had in complaining about the incidents. Now, Associate Prof Rita Shackel gave evidence in this trial. She firstly gave evidence about her qualifications. She had a number of tertiary qualifications, and she had her PhD as well. Now, she gave evidence as to the general observations that the research that she mentioned had found in relation to how children of sexual assault behave, and especially in relation to how they complain and when they complain. The doctor said a number of things and I'm just drawing your attention to a few of the parts that the Crown say that you should look at, but in fact all of her evidence was transcribed like all the other evidence in this case, and if you need to refer back to it you can.

She said at the very beginning of her evidence that there were no typical responses to being sexually assaulted, that there are no typical ways in which a child or a victim of child sexual assault will respond in the moment when they are being sexually assaulted, nor is there a typical way in which victims will respond in the aftermath of being assaulted.

She said in relation to their behaviour at the time that there may be psychological constraints, and physical biological constraints, so that children may just find that they freeze, and that they cannot respond. She gives a lot of information about what the research says about intrafamilial situations when it comes to children of sexual assault. She says that the research tended to show that perhaps when there is a closer relationship between a child, a victim, and the perpetrator, that there are certain aspects of that relationship, certain dynamics, that are actually borne of the relationship itself that may inhibit a child from being able to respond in a way that would readily allow them to stop the abuse. There is an existing relationship there, and there are existing dynamics to that relationship.

Now, she also goes on to say that the research generally in the field very strongly shows that there are usually a series of barriers that make it very difficult for victims of child sexual assault to tell anybody about what is happening to them, and to make an official report. She then goes on to say about how children in those situations complain, that the research shows that in fact the complaint happens in - it is not unusual for the complaint to happen in a piecemeal way, and that is that children - that is what Professor Shackel says - move through their thinking and through a process of balancing that decision about whether they will tell, how much they will tell, and who they will tell.

So, the research talks about children testing the waters. So, if you test the waters and you get a negative response, then research suggests that they may - that that may inhibit children from telling anyone. So, his Honour is going to give you a direction about Dr Shackel’s evidence, but the Crown says it shows that it is not unusual for children to make a delayed complaint. It is not unusual for children, when they are involved in this sexual abuse in an intrafamilial situation to not respond in any way to try and stop the abuse, it is not unusual for that to occur. (Emphasis added.)

133. T832 (AB 973)

245. Finally, the Crown said this: [134]

There was consistency, the Crown says, between the conduct of BB and AA in making those complaints to their various family members, and the allegations they gave evidence about, and you’ll recall as well, when you’re considering that, what Rita Shackel says about the way generally the research shows children of child sexual assault make their complaint, and I’ve read out some of the evidence of Prof Shackel in regards to that before. (Emphasis added.)

134. T836.5 (AB 977)

246. Nothing was said by the Crown about the evidence contained in the two answers in italics at [238] above. That is a further factor to be taken into account in assessing whether the evidence led to a miscarriage of justice.

247. No specific complaint is made about the Crown’s closing address, but it is clear, in any event, that nothing was said by the Crown to give rise to what is now put forward by the applicant, that the jury might have used the evidence of delayed reporting to conclude that the children had been sexually abused. This concern was said to be particularly related to appropriate directions (or the absence of directions) from the trial judge. It will be further considered when Ground 2C is being dealt with. The complaint in Ground 2B was based on the adducing of the evidence in the first place, and the limits on that.

248. It is convenient at this point to say something about the approach of defence counsel at the trial, with a view to a consideration of whether a miscarriage of justice occurred. Although the Crown conceded that, by virtue of the objection taken by counsel for the accused at the commencement of Professor Shackel’s evidence, no question arises regarding r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in relation to this ground, that is not a final answer in relation to this ground of appeal.

249. At the outset of the Professor’s evidence the following exchanges took place: [135]

     135. T408 (AB 549)

Q.    The body of research that you've referred to, does that include a number of diverse studies and research articles and various other things?

A.   Yes, so that body of research Is a very rapidly expanding field. Over the last 15 or 20 years, we've seen an explosion in this area and the research has increasingly become much stronger and is utilising a wide array of different types of methodologies, both qualitative and quantitative methodologies. So using research studies that involve victims of child sexual assault for example and talking to victims about their experiences. Some of the research has also involved talking with offenders about how they offended and understanding some of their experiences and strategies in offending and also looking widely at a broad range of data around victims of child sexual assault.

Q.   Has there been some restrictions in the body of research?

A.   Well, yes. One of the main challenges that has faced this body of research is around the ethical limitations. So one way that you could more readily understand victims responses of child sexual assault and also understand how perpetrators operate, is simply to ask victims and to ask offenders, but that opposes ethical difficulties.

WALLACH:    I object to this, your Honour.

HIS HONOUR: Why?

WALLACH:   Because I understood it, your Honour, this witness was going to give evidence about issues regarding delay and this is now starting to expand way beyond that.

HIS HONOUR: Issues relating to what? I’m sorry.

WALLACH:    Issues as to delay of reporting, and that's as I understood that this evidence was going to concern. Now this is now going into a completely different topic.

HIS HONOUR: It wasn't my understanding of what was determined to happen. At the end of the day, I'll allow the question.

WALLACH:    Yes, your Honour.

250. In our opinion, the objection was correctly overruled. First, the evidence was not only being led about delays in reporting, although that was a significant aspect of the evidence. Secondly, and more importantly, Professor Shackel was quite properly giving evidence about the methodology of the research, before coming to its substance. She was not giving evidence about perpetrators and their behaviour, motivations and methods.

251. Thereafter, counsel made no objection to any of the evidence led from Professor Shackel. No objection was taken to the evidence about what was meant by “familial situation” or questions about when and where the abuse often takes place, as is now sought to be done on this appeal. Such objections were not precluded by the trial judge’s rejection of counsel’s earlier objection. Further, counsel did not object to the use of the terms “victims” and “perpetrators”, although that evidence is now criticised in this appeal.

252. There was no cross-examination of Professor Shackel, even if only to get clarification of who might be within her description of the “familial situation”; that is another matter raised by the applicant on the present appeal, particularly with regard to AA and BB who had been out of touch with the applicant for at least two years by the time of their complaints.

253. In Orreal v The Queen [2021] HCA 44; (2021) 96 ALJR 78; 395 ALR 631 Kiefel CJ and Keane J said at [16]:

…Save for exceptional cases, in our system of justice, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding matters such as what evidence to lead or have excluded. It is usually only when an appellate court is persuaded that no rational forensic justification can be discerned for counsel’s decision that consideration will be given to whether it gave rise to a miscarriage of justice. (Citations omitted.)

254. Although r 4.15 does not apply by reason of the Crown’s concession, it cannot be said any miscarriage of justice has occurred by the leading of the evidence.

255. The criticism that the terms “victims” and “perpetrators” were used is misplaced. For a start, s 79(2) uses the term “victims”. In any event, as Professor Shackel explained, the research was done on cases which had been determined and where the terms aptly applied. The research would not have any cogency unless it was based on the conduct and responses of actual perpetrators and victims. It would have been entirely artificial for Professor Shackel to use terms other than those when discussing the research, particularly because her evidence was not about what had happened in the present case. When the evidence concerned only the research, it cannot be concluded that the jury might somehow have similarly labelled the accused with the designation “perpetrator” simply because of the evidence given about the research. We have already noted that no objection was made by defence counsel to the use of these terms. This is a good indication that in the atmosphere of the trial no prejudice was occasioned by their use.

256. In our opinion, having regard to the whole of Professor Shackel’s evidence, it was not such that it might have had a prejudicial effect on the accused’s prospects of acquittal. No miscarriage of justice occurred.

Ground 2C: The trial miscarried on account of the trial judge’s directions to the jury concerning the evidence of A/P Shackel

257. The trial judge made three references in his summing up to the evidence of Professor Shackel. The first reference to it was when the trial judge was discussing complaint evidence. His Honour said: [136]

Again, it's for you to decide whether any of these complaints were made but if you are satisfied that one or more were then the question you ask yourself is, did the relevant complainant act in the way you would expect her to act if she had been assaulted as she said she was. Is what she did the sort of conduct you would expect of a person who has been assaulted in that way.

If you think that the relevant complainant has done what you would expect someone in their position to do, that may support the Crown case because you may find that there is a consistency between the complainant's conduct and the allegations that she has made against the accused. On the other hand, if either complainant has not acted in the way you would have expected someone to act after being assaulted as she described, then that may indicate that the allegations are false.

Now, in this context, let me mention something about the delay between the alleged sexual acts and the complaints made by the complainants. You have heard evidence that both complainants did not complain about what they claim that the accused did to each of them until some years had elapsed after the alleged assaults occurred. Now, a 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. As you will remember, Associate Professor Shackel gave some evidence about these matters. The Crown argues that the delay in this case is understandable in all the circumstances, including that of the accused being the complainant's uncle. However, the accused has argued that the delay in making a complaint is inconsistent with the conduct of a truthful person who has been sexually assaulted and so the defence argues you should regard this as indicating that the complainant's evidence is false. Now, what you make of these arguments is a matter for you.

136. SU 35 (AB 58)

258. The second reference to it was in the context of giving the jury the usual direction about what expert evidence is, and whether the jury should act on that expert evidence. In the course of that direction the trial judge said: [137]

The expert evidence here is before you as part of all the evidence to assist you in understanding how children who are victims of sexual assault may react to such abuse, both at the time and afterwards,

137. SU 40.5 (AB 63)

259. The third mention of Professor Shackel’s evidence was when the trial judge was summarising the Crown’s closing address to the jury. His Honour said: [138]

In relation to Associate Professor Shackel, she reminded you of her evidence that children react in many different ways, and one of those ways is in relation to assaults that occur by family members upon children; it's not unusual for the children to freeze and not move and to acquiesce in what's being suggested to them, and also that complaints in those circumstances can be delayed, and that they come out in a piecemeal fashion, which was the evidence of Melinda Roberts [the complainants’ mother]. As to the complaint evidence, the Crown relied upon it as support for the allegations made.

138. SU 44.10 (AB 67)

260. At the end of the summing up, the trial judge asked if there was anything arising, and both the Crown prosecutor and defence counsel said there was not. [139] Since complaint is now made about the absence of what is said to be an adequate direction about Professor Shackel’s evidence, r 4.15 applies.

     139. SU 47 (AB 70)

261. In The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 the joint judgment of Keifel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ said at [37]:

…where, as here, the accused has been represented at trial by competent counsel, the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration.

262. In Hamilton v The Queen [2021] HCA 33; (2021) 95 ALJR 894, the joint judgment of Kiefel CJ, Keane and Steward JJ said:

[54]   Within our system of justice, save for exceptional cases, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue"[38]. While it is true that, as Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v The Queen:

[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice,

their Honours went on to say:

The absence of an application for a direction may ... tend against finding that that risk was present.

A similar observation was made by Bathurst CJ (with whom James and Johnson JJ agreed) in ARS v R [2011] NSWCCA 266 at [100].

263. The applicant made a number of complaints about the directions or lack of directions from the trial judge. First, the applicant submitted that Professor Shackel’s evidence went beyond her expertise. This complaint was dealt with when considering the previous ground of appeal (Ground 2B). Except, arguably, for the questions and answers in italics set out at [238] above, the evidence did not go beyond Professor Shackel’s expertise. For reasons given earlier, those questions and answers did not give rise to a miscarriage of justice, and no direction was needed in respect of them. It is not surprising that counsel did not seek a direction about them because it would have served only to emphasise other evidence about the way the applicant engaged in the abuse.

264. Secondly, the applicant again criticised the use of the words “victims” and perpetrators”, and on two occasions “abuser”. This matter was dealt with in connection with Ground 2B. It did not need a direction from the trial judge.

265. Thirdly, the applicant submitted that Professor Shackel’s evidence carried the distinct risk that any correlation between what the research into proven instances of child sexual abuse and the facts alleged in the applicant’s case would be used by the jury to bolster impermissibly AA’s and BB’s credibility and to conclude impermissibly that the applicant was guilty. The applicant submitted that the judge made the very error Professor Shackel’s evidence encouraged when he used the term “victims” in the passage set out at [258] above. The applicant said that a warning was needed that the jury should not use the evidence for credibility reasoning in relation to the complainants. The applicant submitted that, in that way, that trial judge, rather than speaking to the educative purpose of the evidence, referred to it in a way which suggested to the jury that it was supportive of the Crown case. Reference was made to what was said in Jacobs at [58] to [61] and SB v R [2020] NSWCCA 207 at [148] and [151]-[154].

266. Finally, the applicant submitted that the trial judge did not address the way the evidence could not be used. The applicant then set out in his written submissions various directions which he said the trial judge should have given.

267. These two matters can be dealt with together.

268. The particular concern of the applicant was said to be that the jury might misuse the evidence in the way set out in the New Zealand Court of Appeal’s decision in M v The Queen at [32] (set out in Jacobs at [60]) as follows:

…[T]he judge must take care to instruct the jury as to the purpose for which the expert evidence has been led and that the evidence says nothing about the credibility of the particular complainant. This is because there may be a tendency for the jury to reason that:

•   Delayed reporting (for example) is common where children have been sexually abused;

•   This is a case where there was delayed reporting by a child alleging sexual abuse;

•   Given that there was delayed reporting, the child must have been sexually abused. (Emphasis in original.)

269. A reading of the whole of the summing-up satisfies us that the trial judge clearly outlined the relevance of Professor Shackel’s evidence to the reactions, responses and behaviour of the complainants, particularly as to delay in making complaint. We do not consider that what was said by the New Zealand Court of Appeal in M v The Queen should be adopted as laying down an invariable prescription where this type of evidence is led. The need for a warning or direction about how the evidence may not be used will frequently depend on the way the evidence is led, whether the evidence is challenged in cross-examination, how the Crown uses the evidence in closing address, and the approach taken by defence counsel at the trial.

270. The trial judge in his judgment on the admissibility of Professor Shackel’s evidence ruled that evidence could not be given by the expert on the behaviour of the particular complainants. No attempt was made to do so by the Crown. In her closing address, the Crown prosecutor did not do otherwise than refer to Professor Shackel’s evidence as demonstrating what was not unusual for children who had been abused. That was mainly concerned with delay in reporting, and to meet any submission made by defence counsel about what should flow from such a delay. Such a submission was in fact made by defence counsel.

269. Even absent evidence of the type given by Professor Shackel, a trial judge would normally give a direction (set out in the Criminal Trial Courts Bench Book at [5-055]) about delay in making complaint: s 294 Criminal Procedure Act 1986 (NSW). Such a warning is not required to warn positively that the evidence says nothing about the credibility of the particular complainant; rather, pursuant to s294(2)(c) the judge must not direct the jury that the delay is relevant to the complainant’s credibility unless there is sufficient evidence to justify such a direction. All of this is the justification for what Beech-Jones CJ at CL said in AJ at [69], that a direction is preferable to evidence about the matter.

270. As the High Court said in Dookheea, the reaction of defence counsel to the summing-up is a cogent consideration.

271. At the conclusion of the evidence, and on the following day, the trial judge discussed with counsel what directions they wanted him to give. During the course of that discussion, the trial judge read out part of what he said he would say about the evidence of Professor Shackel. That included this statement: [140]

I’m not going to say anything about, in effect, the Crown argue – well I might say it in summarising your own arguments but I don’t intend to say that or myself say anything about how or what she says aligns or doesn’t align with the behaviour of the complainants in this case.

140. T803.41 (AB 944)

274. Whilst defence counsel sought a number of directions, including what he called a Ewen direction (from Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544), and a direction under s 165B of the Evidence Act, no directions were sought in relation to Professor Shackel’s evidence. As noted earlier, at the conclusion of the summing-up, when asked, neither counsel sought any further directions.

275. Where the trial judge told counsel what he intended to say, and not say, about Professor Shackel’s evidence, it cannot be suggested that the omission by defence counsel to seek the sort of directions now put forward was a mere oversight. Moreover, where the trial judge did not, in substance, go beyond what he said he would say, the strong likelihood is that defence counsel saw no need for anything further in the atmosphere of the trial, and in the way it had been conducted.

276. In our opinion, no further directions were required. No miscarriage of justice has been established to justify the grant of leave on this ground by reason of r 4.15.

Response to the quashing of the conviction on Count 8

277. The parties were granted leave to provide further submissions after the hearing as to the course that might be taken if the applicant’s challenge to his conviction on Count 8 succeeded only on the basis that the evidence did not prove the necessary element of “sexual intercourse” beyond reasonable doubt. That is what has occurred.

278. Aside from doubt as to whether there was penetration that made out the element of “sexual intercourse” (in this case “penetration to any extent of the genitalia … of a female person … by … any part of the body of another person” [141] ), it is clearly the case the jury were satisfied beyond reasonable doubt that the applicant committed an act constituting an offence of indecent assault of a person under the age of 16 years. That is an offence contrary to s 61M(2) of the Crimes Act for which the maximum penalty was imprisonment for 10 years.

     141. Definition of “sexual intercourse” in s 61H(1)(a)(i) of the Crimes Act (as it was within the period of time alleged).

279. There is power in the Criminal Appeal Act 1912 (NSW) for the Court, upon allowing an appeal and quashing a conviction, to substitute a verdict for another offence. Section 7 provides, relevantly:

(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

280. The parties agreed that if the Court upheld either of Grounds 2B or 2C, it would not be appropriate to substitute a verdict on Count 8 for another offence. They were not in agreement as to what should occur in the event, and as it transpires, the Court dismissed both of those grounds.

281. The applicant submitted that the Court should not substitute a verdict for an offence contrary to s 61M(2) because it was not an offence that was a statutory alternative to an offence contrary to s 66A(1) as at the date of the offence charged and the Crown Prosecutor specifically responded to a question by the trial judge by stating that it did not intend to rely upon a statutory alternative for any count. The trial judge directed the jury that if they were not satisfied of either of the two elements of the offence in Count 8 they were to acquit the accused. [142]

     142. Supplementary submissions for the applicant, [6]

282. The Crown responded that the fact a s 61M(2) offence was not a statutory alternative, or was included as an alternative on the indictment, is a relevant matter but not determinative. It submitted: [143]

It is plain … that the s 61M(2) offence is “wholly within the ultimate facts on which the accused has been convicted”: Mehajer v R [[2014] NSWCCA 167] at [138] or, to adopt the language of Spies v The Queen [(2000) 201 CLR 603; [2000] HCA 43 at [27]] that, having regard to the evidence, the conviction on the charge which is quashed necessarily meant that the applicant was guilty of acts or omissions which, as a matter of law, constitute another offence, in this case an offence contrary to s 61M(2).

…

The High Court in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 rejected an argument made but not pressed by the appellant in that case that an appeal court may only substitute a verdict pursuant to s 7(2) where the substituted verdict is for an offence expressly alleged on the indictment. The High Court noted that such an argument was foreclosed by its earlier decisions in Calabria v The Queen (1983) 151 CLR 670; [1983] HCA 33 and Spies v The Queen at [22]-[27]. The High Court went on to observe that those decisions establish that the power of the court under s 7(2) is not confined to offences actually alleged on the indictment but applies to offences of which the appellant "could" have been found guilty on the basis that the elements were necessarily subsumed within the offence of which he was found guilty. The latter is not limited to offences laid in the indictment and statutory alternatives and includes common law alternatives and included offences.

143. Supplementary submissions for the Crown [10], [12]

283. We agree with the Crown submissions. In the terms of 7(2), we are satisfied that “the jury must have been satisfied of facts which prove the [applicant] guilty of that other offence”, in this case an offence against s 61M(2).

Re-sentencing

284. The parties also made supplementary submissions on what action should be taken in the event Grounds 2B and 2C were dismissed but any or all of Ground 1 were upheld, thereby giving rise to a need to re-sentence.

285. The Court has a supplemental power to remit the matter to the District Court for re-sentence pursuant to s 12(2) of the Criminal Appeal Act. The power is expressed in broad terms: “may remit a matter or issue to a court of trial for determination”. Its deployment in relation to an issue of re-sentencing was considered in Campbell v R [2018] NSWCCA 87 at [72].

286. The applicant has been in custody since 30 August 2018. The appeal was confined to conviction and so no material in respect of sentence had been gathered concerning events since he was sentenced. The intervening period has included the pandemic and the general increase in the severity of custodial conditions that it caused. It was submitted that the Court should exercise the supplemental power and remit.

287. The Crown did not oppose this course being taken. It further observed that doing so would preserve the usual appeal rights of both parties.

288. We accept these submissions as proposing a sensible and practical course and will remit the matter to the District Court for re-sentencing.

Orders

289. We make the following orders:

1. Extend time for the filing of the notice of appeal to 16 May 2022.

2. Refuse leave to appeal in respect of Ground 2C pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

3. Grant leave to appeal in respect of Grounds 1 and 2B and allow the appeal in part.

4. Quash the conviction on Count 8 and pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) substitute a verdict of guilty of indecent assault upon a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW).

5. Quash the conviction on Count 11 and enter a verdict of acquittal.

6. Quash the aggregate sentence imposed in the District Court on 30 November 2018.

7. Pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW), remit the matter to the District Court for re-sentencing in respect of the convictions on Counts 1, 2, 3, 4, 7, 8, 9 and 10.

8. List the matter for mention in the District Court at Sydney on 10 March 2023 at 9.30am.

**********

Endnotes

Decision last updated: 03 March 2023