Fisher v The King - [2024] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fisher v R [2024] NSWCCA 68
Hearing dates: 26 February 2024
Date of orders: 10 May 2024
Decision date: 10 May 2024
Before: Harrison CJ at CL at [1];
Cavanagh J at [122];
McNaughton J at [127]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal – appeal against conviction – sexual touching contrary to 66DB(a) Crimes Act 1900 (NSW) – aggravated detention with intent to obtain advantage contrary to s 86(2)(b) Crimes Act 1900 (NSW) – whether Crown’s closing address caused a miscarriage of justice – asserted reliance on matters not the subject of evidence – asserted reliance on matters subject to a tendency application brought by the applicant but successfully objected to by the Crown – asserted use of inflammatory words – whether verdicts unreasonable – whether the complainant’s credibility is undermined because of her agitated presentation when giving evidence – whether complainant’s evidence can be accepted having regard to its evolution from her initial complaint to pre-trial evidence – whether independent objective evidence undermines the alleged timing of events – leave granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Supreme Court (Criminal Appeal) Rules 1970 (NSW)

Cases Cited:
Bolton v R [2023] NSWCCA 211
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Palmer v R [2018] NSWCCA 205
Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
WC v R [2012] NSWCCA 231
Xie v R [2022] NSWCCA 185

Category: Principal judgment
Parties: Owen Charles Fisher (Applicant)
Rex (Respondent)
Representation:
Counsel:
K Stares SC (Applicant)
E Nicholson (Respondent)
Solicitors:
Hammond Nguyen Turnbull (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/325874
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court at Sydney

Jurisdiction:

Criminal

Date of Decision:

27 March 2023 (verdict);
7 July 2023 (sentence)

Before:

Girdham SC DCJ

File Number(s):

2020/325874

HEADNOTE

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

Owen Charles Fisher was convicted by a jury in the District Court on 27 March 2023 of one count of intentionally sexually touch contrary to s 66DB(a) Crimes Act 1900 (NSW) (Count 1) and one count of detain with intent to obtain an advantage (sexual gratification) in circumstances of aggravation (inflict actual bodily harm) contrary to s 86(2)(b) Crimes Act 1900 (Count 3). The jury was unable to reach a verdict on another count of intentionally sexually touch (Count 2). The primary judge sentenced Mr Fisher to an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years.

Mr Fisher lived with WA in Alstonville, with whom he shared two biological children (“H” and “N”). They also fostered two children who were biologically related (“CP” and “LP”). The Crown case was that, on the night of 15 November 2020, Mr Fisher and CP left WA’s home without telling anyone. The Crown alleged that Mr Fisher used a “monkey grip” to take CP to his car and that during the drive to his house (also located in Alstonville) he touched CP between her legs and on top of her genital area, on the outside of her clothing.

Following a scuffle with CP near the entrance of his house, Mr Fisher drove them to a remote bushy area by a river. During the drive, Mr Fisher asked her if she would “suck cock”. After arriving at the area, Mr Fisher said he would “fuck her hard” and would kill her if she did not take her clothes off. CP then pushed Mr Fisher away and bit his hand when he pulled at her clothes. Mr Fisher then grabbed her face and head, and pulled at her hair, calling her a “stupid idiot”. Mr Fisher also hit her face, causing her nose to bleed. Mr Fisher then proceeded to drive them to his house. As the vehicle came to a halt, CP unlocked her door and ran away. CP called out for help, hid for a time, and then knocked on several neighbouring doors. One of the neighbours took CP into their home and called the police, where she was later taken to hospital for assessment. Mr Fisher was subsequently arrested later that night at WA’s home.

Mr Fisher raised two grounds of appeal:

Ground 1: Whether the Crown Prosecutor’s closing caused a miscarriage of justice; and
Ground 2: Whether the verdicts are unreasonable or cannot be supported having regard to the evidence.

The Court (Harrison CJ at CL, Cavanagh J and McNaughton J) agreeing:

The Crown’s reference to the “obvious difficulties” was that CP had refused to give evidence after lunch on the first day and, significantly, that the jury would have seen and heard the very circumstances in which her outburst had unfolded. CP’s recorded testimony and what may be described as a petulant, if explicable, reaction to the situation was therefore something that the jury were able to interpret for themselves. The Crown’s address was accordingly no more than a different way of submitting that CP’s agreement to return to complete her evidence despite her frustration was a matter that told in her favour: [30].

The Crown’s assertions that Mr Fisher “abandoned” CP was to be understood by the jury in the context of the evidence they had heard. If the jury accepted the evidence that Mr Fisher did indeed return to WA’s home without CP, it is literally accurate to refer to that as an abandonment. Simply understood, Mr Fisher left CP behind as the evidence suggests. It was in such circumstances perfectly open to the Crown to use the terminology in question: [33], [36].

The Crown’s reference to CP’s behaviour – that she caused her own nose to bleed and pulled her own hair – was not prejudicial to Mr Fisher despite the Crown successfully objecting to him leading tendency evidence of similar behaviour. Mr Fisher conceded that defence counsel made no complaint at the time of the Crown’s final address to the jury about these matters, and that r 4.14 Supreme Court (Criminal Appeal) Rules applied. It was clear from the way the case proceeded, in the light of CP’s evidence and the manner in which it was given, that Mr Fisher had available to him the forensic opportunity to characterise the whole of CP’s evidence as that of a somewhat troubled child with mental health issues, behavioural problems and possibly interpersonal conflicts at school and with caregivers. Counsel for Mr Fisher himself drew upon these matters in his own address to the jury: [39]-[40], [45]-[46].

WC v R [2012] NSWCCA 231 considered.

The Crown’s repeated reference to Mr Fisher’s intention to sexually abuse CP was neither an inflammatory submission, nor was it without foundation. The whole trial was concerned with the question of whether Mr Fisher had committed an offence of sexual touching of a child and whether he detained her for that purpose. In the setting of a contested criminal trial, it was permissible for the Crown to speak to the jury in language that was consonant with the allegations that were charged on the indictment: [54]-[55].

The Crown case as opened and the evidence to support it started to diverge during the hearing and the Crown attempted, with notice, to accommodate that change in final submissions. The several competing versions of CP’s evidence were also utilised by defence counsel such that no unfairness of the kind alleged can be demonstrated: [74].

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88; Xie v R [2022] NSWCCA 185 considered.

A fair reading of CP’s reports or accounts of what she alleges occurred do not contain differences or variations that cast a reasonable doubt upon what she has alleged. Children can be imprecise about time and such imprecision should not affect the reliability or credibility of CP’s evidence more generally. None of the matters relied upon in support of Ground 2 was individually, nor were they collectively, such as to have caused the jury to entertain a reasonable doubt about Mr Fisher’s guilt: [117], [121].

Bolton v R [2023] NSWCCA 211; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; JL v R [2023] NSWCCA 99; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 considered.

JUDGMENT

HARRISON CJ at CL: Owen Charles Fisher seeks leave to appeal against his conviction by a jury on 27 March 2023 on one count of intentionally sexually touch contrary to s 66DB(a) Crimes Act 1900 (Count 1) and one count of detain with intent to obtain an advantage (sexual gratification) in circumstances of aggravation (inflict actual bodily harm) contrary to s 86(2)(b) Crimes Act 1900 (Count 3). The jury was unable to reach a verdict on another count of intentionally sexually touch contrary to s 66DB(a) (Count 2).
Mr Fisher relies upon two grounds of appeal:

Ground 1: The Crown Prosecutor’s closing caused a miscarriage of justice.
Ground 2: The verdicts are unreasonable or cannot be supported having regard to the evidence.

Her Honour Judge Girdham sentenced Mr Fisher to an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years. Mr Fisher will be eligible for release on parole on 25 March 2026. He does not appeal against that sentence.

Summary of the Crown case at trial

The victim of the offences (“CP”) was a foster child who resided with WA, who is the mother of Mr Fisher’s two biological children. The following summary, which is uncontroversial, is taken from Mr Fisher’s written submissions in this Court.
The Crown case was that when CP was 12 years old, she was living in foster care with her older biological brother LP, at WA’s home in Alstonville. WA and Mr Fisher had two children of their own, H and N, who also lived there.
H and N had special needs and required a support worker, Lily Pickford. Ms Pickford would assist on Sunday and Wednesday nights while WA worked interstate.
On 15 November 2020, CP went out for a day trip with her carer, Casey Malone. In the meantime, Ms Pickford arrived at WA’s home. Mr Fisher was already there, but Ms Pickford took H and N out for a while, returning to the home at about 4pm. When Ms Pickford returned to the home, she saw Mr Fisher in the lounge room watching television.
The children had dinner and H was put to bed. Mr Fisher made Ms Pickford a drink, which she accepted. Ms Pickford noticed Mr Fisher laughing a lot at this time. CP and Ms Malone returned to the home at about 7.30pm. CP appeared to be in good spirits, and Ms Malone left a short time later.
CP had a shower and ate dinner in the lounge room. At that time, Mr Fisher asked her if he could brush her hair, and she agreed. Ms Pickford took a photograph of this which is in evidence.
Ms Pickford left the lounge room and put N to bed. Mr Fisher went in and said goodnight. Ms Pickford later gave CP a melatonin tablet and she also went to bed.
Mr Fisher wanted to watch a movie in WA’s room, so Ms Pickford assisted him before returning to the kitchen. Mr Fisher was calling out to Ms Pickford. He then walked into the kitchen before going to the boys’ bedroom. At this time Mr Fisher was being quite loud.
WA called Ms Pickford to check in, and whilst this conversation was taking place, Mr Fisher and CP left the house without telling anyone. Ms Pickford then drove around looking for them.
The Crown case was that Mr Fisher used a “monkey grip” to take CP to the car, telling her that they were going to his house for the night. He then drove them to his house in Shoalhaven Street, Alstonville. The detention is alleged to have occurred from when CP and Mr Fisher commenced driving. This was Count 3.
It was alleged that during the drive to Mr Fisher’s home, he touched CP between her legs and on top of her genital area, on the outside of her clothing. This was Count 1. CP told Mr Fisher to stop, but he kept doing it.
The Crown case as opened was that on arriving at Mr Fisher’s home, he told CP to come inside because he wanted to show her something. CP followed him in through a side entrance. Once through the entrance, Mr Fisher took hold of CP as she tried to resist, and she fell to the floor. CP was crying and yelling at Mr Fisher, “I want to go home”. Mr Fisher agreed and returned to his vehicle.
Sarah Daniels, a neighbour, heard a female voice saying words to the effect of, “I don’t want to”, before seeing Mr Fisher’s car reversing out of the driveway.
Mr Fisher then drove the complainant to a remote bushy area by a river. During the drive, Mr Fisher asked CP if she would “suck cock”.
On arrival at the bridge, Mr Fisher told CP he was going to “fuck her hard”, and he would kill her if she did not take her clothes off. Mr Fisher then pulled her top and shorts, and CP told him, “that ain’t going to happen”. CP then pushed Mr Fisher away and bit his finger. He grabbed her face and head, and pulled her hair, calling her a “stupid idiot”. CP told Mr Fisher that they could talk about this when they got back to WA’s house. Mr Fisher told CP that she had to “get out of his house”, and he hit her on the face, causing her nose to bleed. Mr Fisher then drove back to his own home.
As the vehicle came to a halt, CP unlocked her door and ran away from Mr Fisher. CP called out for help, and then hid for a while. She then started knocking on neighbouring doors.
Jocelyn Grey, one of the neighbours, heard knocking and a female voice asking to be let in. However, by the time Ms Grey got to the window she saw a teenage girl walking away down the stairs and turning into another street.
Just before 10pm, Jessie Moulynox and her husband Andrew Goronszy heard running and a knock at their front door. It was CP. She had a bleeding nose, blood on her arms, and wasn’t wearing shoes. She told Ms Moulynox that she was running away from a man that had tried to sexually assault her. At 9.56pm, they contacted the police.
CP was taken to the hospital for assessment.
Mr Fisher was arrested at 11pm at WA’s home, and later charged. He was observed to have a 3-5mm cut on his right index finger at the time of arrest. Forensic analysis of his vehicle identified DNA consistent with CP on the internal passenger side door handle, and her fingerprint on the inside and outside of the passenger side window.
A mixed DNA profile located at the bottom edge on CP’s T-shirt was examined. Mr Fisher and CP could not be ruled out as contributors to this DNA mixture.

Mr Fisher’s case at trial

Mr Fisher did not give evidence. He did not participate in an electronically recorded interview with police, although he did deny assaulting anyone, which was recorded on body worn video cameras at the time of his arrest. His case was that the acts as alleged in the indictment simply did not happen, although he acknowledged that CP had been in the car with him when he travelled to his house that night. His case was that CP ran away from him, which was something she had done with caregivers on previous occasions.

Ground 1

The Crown’s closing address to which this ground is directed commenced on 21 March 2023. Mr Fisher’s complaints about it were addressed under a series of convenient headings.

CP’s desire for justice

In his final address to the jury, the Crown referred to the “obvious difficulties” arising from CP’s evidence on 3 and 4 May 2022 during a pre-recording. The Crown then submitted that CP returned to Court on the second day, after she had become upset the day before, “and the Crown says that she did that because she wanted to confirm what had happened and that’s because she expects the accused to be held – account for what he did.” That was a reference to the fact that CP had refused to give evidence after lunch on the first day of her pre-recorded evidence but returned and continued to give evidence on the following day.
There was no evidence led as to why that occurred or to explain why she did so. Mr Fisher contended that the Crown’s explanation was a personal view and that its expression had the potential to have the jury believe that the reason CP did what she did was because the allegation was true. Furthermore, he submitted that it would have appeared to the jury that the Crown knew something that they did not know, in this instance, what happened when they were not in court. It was submitted that no submission should have been made to the jury about what might have happened when they were not present.
The Crown submitted in this Court that the impugned statement has to be examined in the context of the acknowledgment that there were challenging aspects of CP’s behaviour when giving evidence and the difficulty she had continuing to answer questions when clearly frustrated. The Crown submitted that it was clear that counsel was pointing to a conclusion that they might draw from CP’s evidence in the circumstances, and that it was not a suggestion that the prosecutor held special knowledge that the jury did not have. No objection was taken at the trial to the prosecutor’s submission in these terms.
It seems to me that the Crown’s submission should be accepted. The obvious reality was that CP had refused to give evidence after lunch on the first day and, significantly, that the jury would have seen and heard the very circumstances in which her outburst had unfolded. CP’s recorded testimony and what may be described as a petulant, if explicable, reaction to the situation was therefore something that the jury were able to interpret for themselves. The Crown’s address was accordingly no more than a different way of submitting that CP’s agreement to return to complete her evidence despite her frustration was a matter that told in her favour. CP was after all a witness whose credit was always going to be an issue in the trial and she was a person with an undeniable interest in the outcome of the proceedings. The Crown’s flourish, if that is what it was, would in my opinion have been understood as no more than that.

Crown prosecutor’s use of the word “abandoned”

The Crown said the following things to the jury:

“Fortunately, the Goronszys did let [CP] into their home, and [she] had a bleeding nose at that time and she appeared distressed, and that’s consistent with [her] having suffered and going through these offences as she has described. In the meantime, the accused had simply abandoned [CP]. There’s no way he was in any way a carer for [her]. It was night time. [CP] was far from home, and the Crown says that [she] had been abandoned because the accused had no care or concern for [her]. He only wanted to sexually abuse [her].”

Mr Fisher submitted that “abandonment” had not been the subject of evidence. The Crown repeated this characterisation later in his address, saying:

“[CP] was simply abandoned whilst the accused drove back to [WA]’s house and put himself in her bed without saying anything to anyone.”

The Crown case had been that CP fled from Mr Fisher and that she hid from him as he drove past looking for her. There was also evidence that there was no one at home when Mr Fisher arrived at WA’s house. Mr Fisher submitted that the evidence did not support a suggestion that he had abandoned CP that night and that it was prejudicial in the sense that the jury was left with the pejorative impression that he had callously left a 12 year old child alone in the middle of the night.
The Crown submitted that there was no dispute that CP had run from Mr Fisher at his house, although the reason she did so was in contest in the proceedings. Mr Fisher said she did so because she did not want to return home with him. The Crown submitted that in those circumstances there was no impropriety in addressing the jury about the characterisation of Mr Fisher’s conduct immediately after she ran away or the extent to which it bore upon the assessment of whether there was any reasonable doubt about CP’s account. Mr Fisher returned to WA’s house shortly after CP fled but did not notify anyone that she was missing. Mr Fisher did not attempt to search for her and appears to have fallen asleep.

The Crown submitted that the use of the term “abandoned” was not in those circumstances inflammatory or intemperate. On the contrary, it precisely reflected an accurate characterisation of what had occurred: it did not involve a contravention of the standards to which a prosecutor is expected to conform, nor did it deprive Mr Fisher of a fair trial.
One meaning of abandon is to leave. Although the former may have more emotional or pejorative connotations than the latter, the term was to be understood by the jury in the context of the evidence they had heard. If the jury accepted the evidence that Mr Fisher did indeed return to WA’s home without CP, it is literally accurate to refer to that as an abandonment. Simply understood, Mr Fisher left CP behind as the evidence suggests. It was in such circumstances perfectly open to the Crown to use the terminology in question.

Childhood, education and medication

The Crown submitted to the jury that “clearly, [CP] had a difficult childhood and that was reflected in some of her schooling issues with her mental health that was being managed”. The Crown continued, saying “the side effects of that medication include dizziness and feeling sick, and bear in mind that there’s no evidence of any diagnosis here, and there’s no evidence of any dosages, and there’s no evidence about the effects, if any, of missing one dose of medication.”
Mr Fisher contended that there was no evidence about how CP’s difficult childhood caused any of her schooling or mental health issues. The evidence about school interruptions was referred to in cross-examination and concerned the fact that she had been suspended on a number of occasions. There was no evidence about the side-effects of Risperidone, or any of the medications that CP was taking. The only reference to possible side-effects came from the Crown in the passages complained of in this Court.
Mr Fisher also noted that the Crown’s address was made in these terms despite earlier having taken objection to his application to lead evidence of CP’s tendencies to behave in a certain way when she had not taken her medication, to run away from caregivers and to be violent towards them, to make false allegations against caregivers and to self-harm, in particular causing her nose to bleed. The Crown had submitted that the evidence was neither relevant nor did it have any probative value or establish the tendency alleged. The Crown successfully argued that the evidence should be excluded.
Notwithstanding that response, the Crown proceeded to address the jury concerning nose bleeds and how it had been suggested to CP “that she had caused her own nose to bleed and she had pulled her own hair and, again, that was flatly rejected”. Mr Fisher submitted that, in context, that submission made it clear that the Crown was illegitimately utilising the defence suggestion as something completely disconnected to the alleged offending and inherently unlikely despite having successfully objected to the evidence as tendency material. Mr Fisher submitted that it was not open to the Crown as a matter of fairness to utilise the lack of evidence about these particular matters in these circumstances. In line with the reasoning in WC v R [2012] NSWCCA 231, this led to a situation where Mr Fisher was deprived of a real opportunity to adduce evidence that would otherwise have answered the Crown’s submissions. This, he submitted, led to a miscarriage of justice.
The Crown further asserted in closing to the jury that Mr Fisher had deprived CP of her chance to take her medication on the night because he took her away from her home and left her in a different part of town. Mr Fisher submitted that this was factually inaccurate and caused him prejudice.
The Crown submitted in response that trial counsel’s submission concerning CP’s difficult childhood and schooling and mental health issues was made in the context of the evidence at the trial regarding CP’s foster placements, her anger issues and her mental health. The Crown submitted that that was an available inference on all of the evidence in the trial. Moreover, Mr Fisher does not identify any particular prejudice or unfairness in terms of how the jury would have understood the submission or how it might have rendered the trial unfair. The Crown characterised the impugned statement to the jury as “an aside in the closing address, made in the context of addressing the issues relating to [CP’s] mental health and medication”. It did not relate to any fact in dispute and was not said to be of any particular significance in the trial as a whole: it did not divert the jury from their proper task.
So far as concerned the medication side-effects, CP gave evidence in cross-examination that her medication made her feel sick and dizzy and “not okay”. She also gave evidence that when she missed a dose, it did not have any effect on her.
With respect to Mr Fisher’s complaint about unfairness in light of the Crown’s attitude to his tendency application, it was submitted that no unfairness was occasioned because the evidence was rejected as inadmissible as it was held not to establish either of the two asserted tendencies. The Crown’s written submissions in this Court included the following:

“54. The circumstances of this case are far removed from those in WC v R [2012] NSWCCA 231. In that case, defence counsel at trial had successfully objected to context evidence that the Crown sought to rely on to explain why the complainant had not rebuffed the accused in that case. Having successfully objected to that evidence, defence counsel had then addressed the jury on the basis that the complainant’s behaviour in not rebuffing the accused was bizarre or unusual. That is clearly a very different circumstance to this case. Here, while the defence had alleged [CP] had various tendencies, the trial judge found that the evidence they relied on did not, in fact, establish those tendencies. It was on that basis that it was found not to have significant probative value. That is quite distinct from WC v R where the submission that was made to the jury was clearly misleading in circumstances where trial counsel was aware that evidence existed which did explain the complainant’s behaviour.
55. Further, [Mr Fisher’s] submission that he was deprived of a real opportunity to adduce evidence which would otherwise answer the Crown submissions entirely overlooks the finding in the pre-trial application that the evidence he relied on did not establish any such tendency: cf AWS [53]. The evidence was found to have no significant probative value because it did not establish that [CP] had a tendency to make her own nose bleed; nor did the evidence establish that she behaved in a particular way if she missed a dose of medication.”

It should be immediately observed that Mr Fisher specifically concedes, with respect to Ground 1 in this appeal, that defence counsel made no complaint at the time of the Crown’s final address to the jury or at all about any of these matters and that rule 4.15 of the Supreme Court (Criminal Appeal) Rules applies. Having regard to the emphasis upon context, that fact seems to me to be particularly significant here. It was clear from the way the case proceeded, in the light of CP’s evidence and the manner in which it was given, that Mr Fisher had available to him the forensic opportunity to characterise the whole of CP’s evidence as that of a somewhat troubled child with mental health issues, behavioural problems and possibly interpersonal conflicts at school and with caregivers. In fact, counsel for Mr Fisher himself drew upon these matters in his own address to the jury, as the following extract reveals:

“There is no doubt that [CP] has had a tragic childhood with numerous foster homes and more than her fair share of personal problems…
She had a history of running away from foster homes. She used to have nose bleeds. She was prescribed a drug called Risperidone for ADHD and her mood levels. Dr Lennon described Risperidone as a major anti-psychotic medication.”

It was a fond hope that any unambiguous or uncontradicted conclusions about these difficult and sensitive issues could ever have emerged for the jury’s consideration. The Crown’s submissions, therefore, were developed by reference to snippets of evidence about these things where no definite or agreed view of their meaning or significance ever crystallised. That would in my opinion have influenced trial counsel’s failure to complain about the Crown’s address because it patently took account of the mood of the trial and did so fairly. However, on balance, in a factual contest between CP and Mr Fisher, even though he did not give evidence, these things probably inured for his benefit rather than the opposite. Defence counsel’s reference to these matters in his address to the jury serves in my view to reinforce that conclusion.

Sexual cravings, urges and sexual abuse

The Crown addressed the jury about events that CP related in an area near a bridge in these terms:

“[Mr Fisher] crudely blurted out his sexual cravings, it’s where he sexually touched [CP] by grabbing her body and it’s when he hit her in the face when she resisted. [He] took [CP] there because he wanted to sexually abuse [her]. But fortunately [CP] managed to talk him into driving her back to Alstonville.”

CP’s evidence had been that Mr Fisher asked her if she wanted to come with him because she could not sleep, felt sick and that the boys kept talking. Mr Fisher then asked her to come with him to his house and she agreed. The Crown suggested to the jury that Mr Fisher was “really focussed on getting [CP] into his car so that he could sexually abuse her.”
Mr Fisher complained in this Court that the repeated references to sexual abuse was akin to inviting the jury to accept that he intended to conduct further sexual activity with CP of a possibly more serious nature. He contended that this was a repeated submission that was inflammatory, prejudicial and without factual foundation.
The Crown responded to these concerns as follows.
It was the Crown case that Mr Fisher had detained CP with the intention to obtain sexual gratification (Count 3). Mr Fisher correctly identifies that the detention itself did not commence until Count 1, as the evidence of CP was that she willingly entered the car, albeit encouraged and “lured” by Mr Fisher.
The fact that the detention had not commenced did not mean that the Crown was not entitled to draw on other evidence to suggest that Mr Fisher had, on that night, an interest in engaging in sexual acts with CP. Indeed, it was fundamental to establishing Count 3 and the intent of Mr Fisher to obtain sexual gratification.
There had been evidence in the trial about Mr Fisher’s strange behaviour brushing CP’s hair prior to leaving the house in the car. Further, the sexual touching of CP (Count 1) commenced almost immediately after Mr Fisher began driving her. There was also the evidence that Mr Fisher had asked CP “do you suck cock?” and also “I’m gunna fuck you so hard”.
The Crown submission must be understood in that context. It was neither an inflammatory submission, nor was it without foundation. It was a submission based on the Crown case that Mr Fisher was detaining CP with an intent to obtain sexual gratification from her, including when he asked her about whether she would perform fellatio and expressed his intention to have sexual intercourse with her. The Crown maintained that the submission would have been understood by the jury to refer to this evidence, and this element of the case. The submission did not breach the standards to which a prosecutor is expected to conform and it did not deprive Mr Fisher of a fair trial.
I consider that these submissions have force. The whole trial was concerned with the question of whether Mr Fisher had committed an offence of sexual touching of a child and whether he detained her for that purpose. In the setting of a contested criminal trial, it was permissible for the Crown to speak to the jury in language that was consonant with the allegations that were charged on the indictment. Mr Fisher was able to respond to these submissions in due course. In both cases the jury would be instructed to understand that submissions were not evidence and rose no higher than the evidence upon which they were based. CP’s evidence referred to Mr Fisher’s language in blunt terms. It is difficult to find fault with counsel’s address to the jury in such circumstances.
Mr Fisher’s complaint that the prosecutor misstated evidence by referring to him grabbing CP’s body, when the evidence was that he grabbed her clothing also seems to me to be a minor matter of detail. If it were otherwise it was open to defence counsel to object to the characterisation or deal with it in final submissions. In the events that occurred, nothing was made of it. To like effect, the Crown prosecutor’s suggestion that Mr Fisher “tried to bundle” CP into the house was no more or less than a colloquial description of what CP’s evidence otherwise arguably revealed. The events at that time that indicate CP ended up on the floor following what appeared to be a scuffle were close in time to when they had entered the house and essentially formed part of the same incident. The Crown’s description did not in the circumstances depart from proper standards.

Asserted change of case

Mr Fisher contends that there was an improper difference between the Crown case as opened to the jury and the Crown’s closing address. The case as opened was in these terms:

“Members of the jury, you’ll see that counts 1 and 2 are set out in identical terms, and they’re counts of sexual touching of a child. And then count 3 is the aggravated detain for advantage. At this point, I’ll talk about count 1 and the commencement of count 3.
On the first drive out from [WA]’s place to [Mr Fisher’s] home, [he] is said to have touched [CP] on and between her legs. In her recorded interview, [CP] stated that the touching was between and on top of her genital area. That is what she called in that recorded interview as her ‘VJ’. That was over the shorts. [CP] told [Mr Fisher] to stop, but he kept doing. And that’s the evidence in respect of count 1, and the driving is the commencement of count 3.”

Mr Fisher complains that the opening remarks, read as a whole, make clear that the allegation supporting Count 1 is a touching of the genital area, and between CP’s legs during the drive from WA’s house to Mr Fisher’s home. Mr Fisher submitted that what is described as the conjunction of the allegations of both CP’s legs and vagina makes the whole allegation sexual in nature.
Mr Fisher conceded that touching CP’s vagina, as opposed to her legs, would be inherently sexual and would amount to a sexual touching if proved. In contrast, mere touching of her leg, without touching her vagina, would not be inherently sexual and would not, without more, have a sexual connotation. Exhibit 3 in the trial was a photograph on which CP marked the area where she said she was touched by Mr Fisher. The areas marked by her do not include her vagina but instead indicate her left leg, furthest from where Mr Fisher would have been sitting behind the steering wheel.
In his closing address, the Crown referred to Mr Fisher putting his hand between CP’s legs despite her telling him not to do so. The address focused upon Mr Fisher driving and touching CP “on her legs”. The Crown said, “[CP] stated that he touched her what she called private parts or VJ on the outside of her shorts”. The Crown told the jury that the “position of that touching is really a matter for you to determine”. He continued, saying “The Crown says that even if you do harbour any doubts about whether [CP] was touched on her private part, you would accept that she was sexually touched on her upper thighs as she describes and that is sufficient to prove count 1”. Mr Fisher contended in this Court that there was no reference to the circumstances in which the jury should consider the touching of her “upper thighs” as sexual touching in the absence of a touching of her vagina. Mr Fisher emphasised that the markings on Exhibit 3 do not indicate that his hand was between CP’s legs at all. Mr Fisher maintained that the Crown’s closing address “disconnected” the vagina touching from the leg touching and suggested that was enough, despite a touching of the leg not being an inherently sexual act and unaccompanied by talk of a sexual nature.
Mr Fisher submitted that this was a matter that had not been raised by the Crown beforehand but should have been. This Court was referred to what is said in Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at [142]:

“If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at 206 [148].”

Mr Fisher submitted that this change may have affected the outcome of the trial so as to have occasioned a miscarriage of justice: Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Xie v R [2022] NSWCCA 185.
The Crown made detailed submissions on this issue to which it is necessary to refer.
In opening, the Crown suggested that the touching was “on and between the legs”. The Crown outlined that CP’s evidence in her recorded interview was that it was between and on top of her genital area (“VJ”) and was over her shorts. Contrary to Mr Fisher’s contention, there was no “conjunctive aspect” of the legs and vagina. In fact, the prosecutor did not refer to any touching on the vagina during his opening. Rather, the Crown had set out the Crown case (a touching on and between the legs) and referred to the anticipated evidence of CP regarding her descriptions of “private part” and “VJ”.
The evidence about the touching was complicated to some degree by the nature of the questions asked and the absence of any clarification as to what she had meant by “VJ”. However, CP had, in her recorded interviews, gestured to the area that she was referring to, and also marked Exhibit 3. There are five separate markings on that exhibit: four are on the left leg and one on the right leg. Two are at the mid-thigh, one is at the upper thigh on the left-hand side, and two markings are between the legs on the inner upper thigh.
Mr Fisher places significant reliance on CP’s answers in cross-examination as follows:

“Q. True or not true. Owen did not touch your vagina through your pants, is that true or not true?
A. Not true. True.
HER HONOUR: Perhaps just ask that one again, you got two different answers.
WITNESS: I said ‘True’.
HER HONOUR: Just listen to the question.
COYNE: I’ll change it around.
Q. Did Owen touch your vagina through your pants, true or not true?
A. True , true, not true who knows. Who fucking knows.”

The Crown submitted that it was clearly apparent that at that stage of her evidence CP was becoming distressed, agitated and was also having difficulty understanding some of the questions. Indeed, immediately after these answers both the Crown and the Witness Intermediary raised concerns over the framing of that question.
The Crown pointed out in this Court that, contrary to Mr Fisher’s submissions, there was an exchange between the parties and the bench prior to the closing address during which the Crown clearly identified the way in which it was putting its case on Count 1: see below at para [72]. It is apparent from defence counsel’s address that he understood that, and his submissions were directed at asserting that the variations in CP’s evidence meant that the jury could not be satisfied of any touching.

The Crown also submitted that Mr Fisher’s argument that the touching of the upper and inner thighs of a 12 year old child is not sexual touching in the absence of touching of the vagina, should not be accepted. Whether the touching was sexual in all of the circumstances (including the broader evidence about Mr Fisher’s conduct toward CP before and after the touching) was a matter for the jury to assess. The jury were appropriately directed by the trial judge in this respect, and no complaint is raised about those directions.
The Crown submitted that there was no material change to the Crown case. The submissions that the prosecutor made about Count 1 did not distract the jury from its essential task or render Mr Fisher’s trial unfair.
It is clear that the evidence given by CP, obviously the only source of any description of what occurred that could support the charges, was to some extent less than satisfactory. Her answers to the questions asked of her, recorded in the transcript extracted above, were confusing, no doubt the result at least in part from the regrettable infelicity with which the cross-examiner framed the questions to which these answers are a response. Moreover, there is no suggestion from the photograph marked by CP that Mr Fisher touched her vagina on the outside of her clothes. However, the reference to touching “between” her legs was apt to describe her upper thighs on the one hand as well as on her vagina on the other hand.
The exchange with her Honour referred to in [68] above was in these terms:

“HER HONOUR: So the first count of sexual touching reflects the touching on the thigh. Tell me what the second one reflects, Mr Crown. I haven’t reviewed the transcript.
CROWN: Your Honour, her complaint was the touching on the pants over the vagina and the thigh but the pants seems to have fallen away during the hearing.
HER HONOUR: We go on the evidence of that.
CROWN: Yes. That’s where it started, yes.
HER HONOUR: So that’s count 1.
CROWN: Yes
HER HONOUR: I’m more concerned with what count 2 reflects.
CROWN PROSECUTOR: And that was the grabbing of the clothing whilst sexual comments were being made around that bridge area.”

In light of that clarification, it was open to the Crown to maintain a case that the touching of CP’s thighs, as indicated in Exhibit 3, satisfied the count alleging “sexual touching” having regard to the comments that are said to have accompanied it. In another sense, however, it is clear that CP’s evidence was confusing and inconsistent. Defence counsel embraced this fact, including by reference to the transcript extracted at [66] above, and in his address to the jury as follows:

“… [CP] told the police in the ambulance that [Mr Fisher] put his hand on her VJ … she denied she told the doctors and nurses that he had put his hand on her thigh and rubbed her leg … she said he didn’t do both things, he only rubbed her leg and thigh … she said she didn’t remember if she told the police at the hospital he put his hand on the outside of her shorts a couple of times. Well, she did. That’s exactly what she told them … police took her shorts for evidence.”

The burden of Mr Fisher’s complaint is that the Crown improperly and unfairly changed its case. It seems to me, on the contrary, that the case as opened and the evidence to support it started to diverge during the hearing and that the Crown attempted, with notice, to accommodate that change in final submissions. The several competing versions were also utilised by defence counsel, as appears from his references above, so that no unfairness of the kind alleged can be demonstrated.

Conclusion

In my opinion, the conduct of the Crown in the court below did not give rise to a miscarriage of justice in the sense that there was a “real chance” that it affected the jury’s verdict, or “had the capacity for practical injustice” or was “capable of affecting the result in the trial”. The Crown’s address, understood having regard to the content of the evidence led, the way in which CP gave her evidence and the mood of the trial in those circumstances, was unexceptionable. It amounted to no more than acceptable rhetorical technique. The fact that no objection was taken to it at the time confirms me in that view.
I do not consider that Ground 1 is made out.

Ground 2

Mr Fisher contended that there are four primary reasons why this Court would experience a doubt in the present case, being a doubt which, in accordance with authority, ought to have been experienced by the jury:

CP presented as an agitated witness, undermining her credibility.

CP’s evidence evolved in a material way from the original complaint until the evidence given in her pre-recording.

The independent evidence about timing demonstrates that there was insufficient time for the offending to have taken place in the manner described by CP.

CP’s lack of credibility and/or reliability as to significant matters at trial would adversely affect her credit on other significant matters.

Agitated witness

Mr Fisher submitted, and it is not apparently in contest, that CP’s pre-recorded evidence was replete with examples of agitated behaviour. This included outbursts, swearing, refusing to continue with her evidence and arguing with the Witness Intermediary. Mr Fisher drew attention to the following examples.
When CP was asked who her main doctor was in 2020, she responded, “I don’t fucking know, I mean, I don’t know”. When asked whether she was prescribed any medication in 2020, CP replied, “[w]as I? Fuck, I don’t know”. CP was also asked if she remembered speaking to a lot of people on 15 and 17 November about the allegations against Mr Fisher. Her response was, “I don’t know. Not good with dates, I have no fucking idea, I have a shit memory and I don’t want to be here.” Later when asked whether she had changed her T-shirt, CP said, “I don’t remember. Fuck me I’m so tired.” CP also responded to a question about how far the boys’ room was from the bathroom at the house saying, “[l]ike what the fuck is that kind of question? I don’t know, five, four, ten steps. I have no idea. I’m not meant to know that question. I’m not a tradie or whatever you call them.” There were other examples.
In aid of the present argument, Mr Fisher drew upon the trial judge’s comments during the playing of the pre-recorded evidence, as one available view of what it revealed, as follows:

“…it is quite a remarkable pre-recording. You have a job to do, but I would like to state that I’m deeply troubled that this young person clearly does not want to be there. She is showing quite a deal of distress, perhaps affectation. But how, unless things improve, the Crown can rely on this material, to sustain verdicts of beyond reasonable doubt, is very difficult for me to see at this stage.”

It is important however immediately to note that such comments are not matters that can be relied upon in aid of a submission about CP’s credibility: see Palmer v R [2018] NSWCCA 205 at [58]-[63].
Shortly before CP’s pre-recorded evidence on the first day came to an end, she had been offered a break as she indicated that she was “done” and “ready to go home”. Her response was, “I’m not having a break, I’m fucking going home…I don’t give a fuck. All this shit is just shit, it’s shit”. Mr Fisher submitted that CP’s evidence was “peppered with these sorts of outbursts”, including that cited earlier from her cross-examination. Mr Fisher submitted that the manner in which CP gave evidence was not such that it would enhance her credit, but instead would detrimentally affect an assessment of her credibility.
The Crown accepted that CP was distressed at times, particularly during her cross-examination. It was submitted, however, that a suggestion that a child complainant, particularly one with diagnosed mental health conditions, must be disbelieved by a jury by reference to her presentation as an agitated and frustrated witness who resorted to swearing should be rejected.
The Crown uncontroversially submitted, and I accept, that the assessment of the credibility of any witness by reference to his or her demeanour or mannerisms or forms of expression is a matter well within the province of the jury.
Mr Fisher’s submissions on Ground 2 must be understood as placing reliance upon all of the four matters identified earlier. However, standing alone, it could rarely if ever be the case that a witness’ angry or frustrated or uncooperative demeanour somehow automatically corresponds with the reduction in or eradication of the witness’ credibility. Indeed, the particular idiosyncrasies of witnesses are the very things that inform the assessment. In this regard, emotional lability or unusual but medically explicable behaviour may be helpfully contrasted with evasive or contradictory responses, for example, that tend directly or persuasively to suggest some active attempt by guile to mislead or deceive. Presentation by a witness in a particular way inevitably illuminates the question of whether he or she should be believed, but no general or universal conclusions can ever be drawn simply from behaviour so described. As the record of this trial reveals, counsel for Mr Fisher marshalled these very idiosyncrasies in aid of a submission that the jury should reject CP’s evidence about what she said occurred. Whatever view one might have about the strength or otherwise of that submission in the circumstances of this case, CP’s arguably extravagant demeanour does not compel a rejection of her evidence. It does not by itself lead to a conclusion that the jury, acting rationally, must have entertained a reasonable doubt as to the proof of Mr Fisher’s guilt. CP’s presentation was, as with every witness in a criminal trial, something to which the jury was entitled, indeed required, to have regard. All the more is this so when CP’s comportment in the witness box is explicable by reference to her young age, her troubled background, her medication, her medical issues or a combination of some or all of these things. The more complex question of whether any such doubt must have been entertained by the jury, having regard to CP’s demeanour in combination with any asserted inconsistencies, discrepancies or other inadequacies in her evidence, is addressed in what follows.

Evolution of the complaint

Mr Fisher’s extensive and helpful submissions traced CP’s original complaint through what he sought to characterise as a series of cascading iterations of what she claimed to have occurred with varying degrees of alleged inconsistency with the original. The burden of the submission was that there are so many examples of inconsistencies in the account given to various witnesses that they are not capable of being explained upon the basis that CP was only young at the time of giving her evidence. In order for this contention to be understood, these “versions” need to be examined in full. Adopting Mr Fisher’s submissions, these “versions” are listed in the SCHEDULE to these reasons.
It was submitted on behalf of Mr Fisher, having regard to the detailed comparison of CP’s accounts set forth in the SCHEDULE, that there exist a number of inconsistencies in the way in which she recalled and reported the relevant events. For example, Mr Fisher submitted that CP’s account to Ms Moulynox, that she received scratches to her thighs at the hands of Mr Fisher and that she had scratched him during the melee at the underpass, were particularly relevant to Counts 2 and 3. The circumstances of aggravation alleged in Count 3 was actual bodily harm being occasioned to her. CP’s initial version given to Ms Moulynox did not include an allegation of sexual touching on her vagina as alleged in Count 1. Her version given to Mr Goronszy also did not refer to sexual touching of her vagina as alleged in Count 1. Nor did CP make any complaint to these witnesses about a detention as alleged in Count 3.
The triple zero account did not include any complaint about any of the specific counts on the indictment.
CP’s account given to Tracy Wheeler (Ambulance Officer) suggested that Mr Fisher put his right hand on her right thigh, as opposed to her vagina, or left thigh as indicated in Exhibit 3, and this is meant to have accompanied the question about whether she “sucked cock”. Mr Fisher submitted that this evidence was inconsistent with her earlier evidence that this happened at Mr Fisher’s home: on this version it is meant to have happened very close to the bushland area.
Moreover, the second video recording with police on 15 November 2020 was the first time that CP suggested detention that was broadly consistent with the Crown case as opened on Count 3. That account was that Mr Fisher grabbed CP’s arms when she was at his home, not when she was at WA’s. CP gave no account consistent with Count 1.
When speaking to the police at Lismore Hospital, CP said, in respect of Count 1, that the touching of her leg was meant to have accompanied the question about whether or not she sucked cock. CP associated these things with the drive to Mr Fisher’s home from WA’s house. That is different to CP’s later allegation that the discussion occurred at the bridge area and was associated with an attempt to pull at her clothing.
With respect to the version given to Dr Garth Small, the Count 1 allegation involved a touching on CP’s thigh, unaccompanied by any sexual remark. Dr Small’s evidence made it clear that the injuries alleged by CP were limited to her nose, as she had inflicted the other injuries herself. That was inconsistent with the versions given earlier by CP to other witnesses.
The version given to Dr Ian Lennon represented a new complaint about CP’s ankle and an “unusual” description of how her face was struck. There is no account consistent with Count 1 or the circumstances of detention in Count 3.
In summary, it was submitted on behalf of Mr Fisher that CP is inconsistent about a number of significant matters relating to the particular counts on the indictment.

Count 1

In respect of Count 1, CP’s evidence about where and when she was touched and how this occurred varied. CP was at one point unsure of whether or not Mr Fisher had touched her vagina at all. Further, the DNA evidence does not support the Crown case. CP ultimately reaches a position that she was not touched on the vagina. So much is clear from her markings on Exhibit 3 indicating a touch to the area just above her knee, then once higher on her leg but not on or near her vagina.
CP said that she was forced to sit in “the middle seat” of Mr Fisher’s Toyota utility but the photographic evidence makes it clear that the vehicle has two front seats between which the handbrake is visibly located. Mr Fisher submitted that this is significant in circumstances where the Crown case was that Mr Fisher had close and unimpeded access to CP.
Mr Fisher emphasised that there was forensic evidence located on the passenger side window as well as the passenger side door handle on the inside. Swabs from the “middle seat cushion” did not contain CP’s DNA.
Finally, Mr Fisher submitted that the touching of CP’s leg was not associated with any sexual references. The evidence did not establish any touching on the vagina and the DNA did not place CP near the centre of the vehicle.
Mr Fisher submitted that the finding of guilty on Count 1 was unreasonable.

Count 3

In respect of Count 3, the evidence about the actual bodily harm sustained by CP during the incident varied. Mr Fisher submitted that her version about what occurred at the underpass changed, was inconsistent with the medical evidence and there was no blood located inside Mr Fisher’s vehicle.
There is also said to be a real issue about timing. Mr Fisher contended that the periods established by the evidence do not support CP’s version concerning the detention or attending the bridge area on the night in question.
Ms Pickford said that she was making a phone call to WA when CP and Mr Fisher left the house. Ms Pickford contacted WA thereafter at 9.23pm, 9.38pm, 9.59pm and 10.27pm. The triple zero call was made at 9.56pm. There is no evidence to establish which of these phone calls was the one that coincided with CP and Mr Fisher leaving the house. The drive from WA’s house to Mr Fisher’s house takes 6 minutes. The drive from Mr Fisher’s home to the bridge takes between 5 and 8 minutes.
CP describes Mr Fisher as driving erratically on this evening. However, even taking into account driving at speed, Mr Fisher submitted that the version given by CP is not possible in light of the remainder of the evidence. It is also noted that CP suggests that on one occasion when Mr Fisher was speeding, she asked him to slow down and he did so.
The Crown case, at its highest, has Mr Fisher and CP leaving the house at 9.23pm, and the triple zero call takes place at 9.56pm. That represents a period of 33 minutes in which Mr Fisher is alleged to have taken CP out the front of her home, and then into the car, driven to his own home (6 minutes), engaged in a confrontation at his home with CP, driven to the bridge area (5-8 minutes), engaged in a further confrontation with CP (CP estimates 20 minutes), driven back to his home (5-8 minutes), before CP runs off, knocks on multiple doors and then arrives at the Goronszy home (2 minutes from leaving the car until arriving at the home), where they have a conversation, and then the police are called.
In short, Mr Fisher submitted that the objective evidence demonstrates that the driving time alone would have been at least 16 minutes, assuming that there was no stopping along the way, or traffic, or delay of any kind. However, a more conservative estimate on the evidence led at trial is 24 minutes. This leaves less than 6 minutes of time split between the houses for any confrontation to occur.
Mr Fisher submitted that if the phone call when he and CP leave the house was not the first call but instead the second, which occurred at 9.38pm, this would leave 18 minutes for the entire event to have taken place, given the triple zero call was made at 9.56pm, assuming that they departed at the exact moment the call was made. Having regard to the objective evidence of distances and time periods, it is clear that on this timeline the allegations made by CP that they attended some bushy area could not possibly be true.
Mr Fisher submitted that the version given by CP of attending the bridge area also had significant issues given the evidence of the other witnesses:

Ms Pickford accepted that the time period that elapsed between her noticing that Mr Fisher and CP were missing, to when she found Mr Fisher asleep in WA’s bed, was a period of approximately 30 minutes. Taking into account the timing of the earliest phone call, Mr Fisher is back at WA’s house and asleep by about 9.53pm, which is before the triple zero call is made. Mr Fisher would have had to leave his own house before 9.48pm to arrive before Ms Pickford, then park, alight from the vehicle, go into the house, get into bed and then fall asleep.

The evidence of Angus Webb (neighbour) is that he heard something, then heard two car doors shutting, and the car returned about 20 minutes later.

The words heard by Mr Webb were “don’t make me go home” or “don’t take me home” as he reported to the police on the night of the alleged incident. This is supportive of the defence case that CP ran away as she did not want to return to the house of WA.

Alternatively the words heard by Mr Webb may have been “I don’t want to” or “No, don’t make me”. He was ultimately unsure of the precise words.

The car stayed the second time for a very short time, less than a minute.

The evidence of Sarah Daniels (neighbour) was that she heard crying from the apartment below her.

Ms Daniels heard a female voice yelling “I don’t want to” repeatedly, then a bang on the sliding glass doors below.

The evidence of Ms Daniels was that the car left and came back about 10 minutes later.

Ms Daniels then gave evidence that she heard the glass sliding door slam really loudly and within a few minutes the car left.

Mr Fisher maintained that these versions make clear that there was insufficient time for all of the things CP alleges occurred to have taken place, taking into account that he needed to drive to the various locations, get in and out of vehicles, and engage in both non-sexual conversation and argument that takes place at his home. Mr Fisher submitted there is insufficient time for him to have committed Counts 2 and 3 in the way alleged by CP.
Mr Fisher maintained that CP gave varied and inconsistent accounts of how the detention came to commence. The Crown closed to the jury on the basis that it commenced at the time of the first touching (Count 1). However, the evidence from CP included that she entered and exited the vehicle without force from Mr Fisher at his home, and that Mr Fisher had not been causing her to be concerned initially inside the car due to his behaviour toward her.

Consideration

Mr Fisher’s ultimate submission is that, having regard to the matters to which he has drawn detailed attention, this Court must have a reasonable doubt about his guilt and that that is a doubt which the jury must also have entertained. The test to be applied in a case such as the present is not in doubt: see, for example, Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. Foundational pronouncements, such as the following passage from the majority judgment in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494-95, allowing the appeal, continue to provide guidance:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No.2) (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462).” (Emphasis added)

Brennan J, who would have dismissed the appeal, said this at 502:

“The appellate court's function is to make its own assessment of the evidence not for the purpose of concluding whether that court entertains a doubt about the guilt of the person convicted but for the purpose of determining whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused.”

McHugh J, who would also have dismissed the appeal, described the correct test as follows at 525:

“In my opinion, the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused's guilt. To ask whether it was open to the jury to be satisfied of the accused's guilt beyond reasonable doubt is to come perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused. To go beyond asking whether a reasonable jury must have had a reasonable doubt about the accused's guilt would be an unwarranted intrusion into the jury's right to determine the facts in a criminal trial. The court must make an independent assessment of the evidence … and consider the sufficiency, quality and nature of the evidence. However, before coming to the conclusion that a reasonable jury must have had a reasonable doubt about the accused's guilt, the court must give due weight to the advantages that the jury had in regard to the evidence and the atmosphere of the trial. If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even though there may be sufficient evidence, in law, to support the verdict…”.

A significant theme of Mr Fisher’s complaints in support of Ground 2 is that the manner in which CP gave her evidence reliably informed the question of whether the jury verdicts were unreasonable. She was young, she had behavioural issues and her demeanour and presentation in the witness box, or its equivalent, were objectively potential sources for concern about her reliability. That included the arguably extraordinary outburst in cross-examination quoted earlier at [66]. The very terms of the Crown’s closing submissions to the jury were a tacit recognition of the fact that they would have to accommodate such matters in their assessment of CP’s evidence, especially having regard to the evidence in the trial as a whole.
The important theme of the judgments in M v The Queen, and the cases that follow it, is that primacy is to be given to the jury’s assessment of a witness’ credibility having regard to their advantage of seeing and hearing the witness for themselves. A witness’ extravagant or hysterical presentation is no more an indication of prevarication or lying than a calm and measured tone is a sign of truthfulness. It is for this reason that Mr Fisher quite understandably does not completely discard CP’s presentation as of little or no significance but instead relies upon it in the limited sense that it gives context to CP’s evidence. To adopt the words of the majority in M v The Queen, Mr Fisher maintains that CP’s evidence lacks credibility for reasons which are not only explained by the manner in which it was given. To put the proposition slightly differently, Mr Fisher’s counsel argued in the court below that the jury could not accept CP as a witness of truth or as a reliable historian and that one reason for that was to be found in the way she gave her evidence, including her agitation, frustration and apparent impatience. By way of contrast, Mr Fisher in this court turned to the evidence that actually was given, dispassionately assessed. Mr Fisher’s counsel therefore emphasised the so-called evolving nature of CP’s complaints over time, the identification of arguably irreconcilable inconsistencies and factual errors, as well as the implausibility of her account having regard to the timeframe within which the events complained of must have taken place. These matters are exposed in the comparison contained in the SCHEDULE to these reasons.
It is correct to say that CP’s several accounts, in the sense that she took or was given numerous opportunities in different settings to say what happened, do not all contain a precise or unwavering sequential repetition of what occurred. Some versions contain what must be errors. For example, it is clear enough that Mr Fisher did not, to adopt CP’s words, try to rape her. By the same token, words attributed by her to him, indicating that he wanted her to take her clothes off or that he wanted to “fuck her hard” would likely have conveyed precisely that impression. CP’s attribution of such an intention in her compendious description of what occurred does not seem to me to be important. As the Crown submitted in this Court, juries are well able to evaluate evidentiary conflicts and imperfections: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [96]; Bolton v R [2023] NSWCCA 211 at [46].
I have considered the whole of the evidence in the trial, and reviewed the summary in the SCHEDULE. A fair reading of CP’s reports or accounts of what she alleges occurred do not to my mind contain differences or variations that cast a reasonable doubt upon what she has said. I remain of the view I expressed in Bolton:

“[37]… I do not consider that the jury must have entertained a reasonable doubt that the matters complained of were true by reason of some variability in the complainant’s recollection of them. Such a conclusion would offend common sense and one’s experience of young children.”

So far as concerns the timeline of events, Mr Fisher submitted that on no version of the evidence could CP’s account possibly be true: something in the order of 34 minutes or slightly longer was insufficient time for all the events described by CP to have taken place. In particular, the timeframe is on one view objectively calculable by reference to phone calls, the precise timing of which marks out the parameters of when Mr Fisher and CP left WA’s house to the time when Mr Fisher returns.
The Crown submitted that Mr Fisher’s argument was flawed upon the basis that it is based on strictly applying CP’s estimates of time. The Crown submitted that her evidence about timing has to be assessed in the context that she was 12 years old at the time and that inaccuracies with specific times is not unexpected in such circumstances. Children can be imprecise about time and such imprecision should not affect the reliability or credibility of CP’s evidence more generally: see JL v R [2023] NSWCCA 99 at [97], [101]-[102].
In my opinion, the evidence in the trial makes it clear that it was entirely possible for the alleged sexual touching and the incident under the bridge to have occurred as CP described.

Conclusion

All of the matters relied upon by Mr Fisher in respect of Ground 2 were, as the Crown in this Court has noted, matters that were raised at trial and highlighted to the jury by defence counsel in his closing address. The jury were well placed to assess and resolve any apparent or alleged conflicts or inconsistencies. I accept the Crown contention that none of the matters relied upon was individually, nor were they collectively, such as to have caused the jury to entertain a reasonable doubt about Mr Fisher’s guilt. They are not such as to cause me to have any such doubt.

Orders

I consider that leave to appeal should be granted but that the appeal should be dismissed.
CAVANAGH J: I have had the benefit of reviewing the judgment of Harrison CJ at CL in draft. I agree with the orders proposed by the Chief Judge and with his Honour’s reasons.
For the reasons set out by the Chief Judge, I do not consider that the Crown prosecutor’s closing address caused a miscarriage of justice. Whilst it is always possible to review the address and suggest that more neutral words might have been used (as Mr Fisher has plainly done), none of the criticisms warrants the suggestion that the Crown failed in its fundamental obligations to ensure a fair trial. Further, none of the matters raised was capable of affecting the result or gave rise to a real chance of impacting on the jury’s verdict.
Similarly, for the reasons identified by the Chief Judge, I do not consider that the Crown impermissibly change its case. The Crown’s closing address was a reflection of the evidence as it emerged during the trial. The closing address did not reflect a fundamental change in the case being pursued by the Crown so as to give rise to any unfairness or prejudice or lead to a miscarriage of justice.
In terms of ground two I have carried out my own independent assessment of the record as required (see M v The Queen (1994) 181 CLR 487; [1994] HCA 63). I am not satisfied that the matters raised by Mr Fisher ought to have led the jury to have a doubt.
It was for the jury to assess the complainant’s evidence, in the context of her troubled background and obvious disinclination to be part of the process. The matters raised were surely all matters for the jury to consider as part of their determination.
McNAUGHTON J: I have had the advantage of reading the judgment of Harrison CJ at CL in draft. Having considered the evidence myself, I agree with his Honour’s reasons, conclusions and proposed orders.

SCHEDULE

Jessie Moulynox

Ms Moulynox, a neighbour, was the first person to whom CP spoke about what had happened. CP said that Mr Fisher had taken her out for the day swimming. She did not feel well. Mr Fisher had been drinking and smelt quite strongly of alcohol. He blow dried her hair. They later went for a drive on back roads and she was taken to an underpass where Mr Fisher had sexually assaulted her. He punched CP in the face. He had also grabbed at her body, in particular her thighs, and asked whether she sucked cock. The scratches on her thighs happened at the underpass, as well as her bleeding nose. CP was concerned about her wrist and was scared that it was broken. CP’s wrist was not swollen. Mr Fisher had punched CP in the face, causing her nose to bleed. CP was concerned that her nose was broken. Mr Fisher had been forcing himself upon her and he had “a blade” with him.
Mr Fisher submitted that it was significant that CP’s initial account of what had happened did not include an allegation of sexual touching on her vagina as alleged in Count 1.

Mr Goronszy

CP also spoke to Mr Goronszy. He said that when he first opened the door to her CP said, “[h]e tried to rape me. He tried to fuck me. Help. Help.” CP said to him that Mr Fisher had taken her from her foster home and that they pulled over below an overpass near running water. CP said that Mr Fisher said, “[i]f you don’t fuck me, I’ll kill you.” He than grabbed her thigh and bit around her face. When his hand slipped onto CP’s face, she managed to bite his thumb. His reaction to that was a backhand across her face.
CP did not tell Mr Goronszy that Mr Fisher had sexually touched her vagina as alleged in Count 1. Nor did CP complain to him or Ms Moulynox about a detention.

Triple zero call

CP reported the following things in the course of a triple zero call. She said that Mr Fisher did not see her run to the house although she saw his car go around the corner. He had grabbed her by the throat. She thought he was drunk. CP made no complaint at this time about any of the specific counts on the indictment.

Police – first interview

On 15 November 2020, CP gave a version to police at the scene that included the following.
CP said that she had been lying in bed and woke as she was not feeling well. Mr Fisher asked her to come to his house. He smelt of alcohol, she thought he was drunk and the smell was apparent in his car. When CP was at Mr Fisher’s house, he put his hand “there” and she kept pulling it away. Mr Fisher asked to come inside. CP told Mr Fisher she wanted to go home and kept yelling at him. He told her that he needed to show her something. CP said “no” and that she was going home.
They then got into his car and were “randomly” driving out to the bush area. Mr Fisher then asked her, “Do you suck cock?” She replied, “What?” Mr Fisher then said to her, “I’m gunna fuck you so hard.” She again replied, “What?”
Mr Fisher then stopped in the middle of the road and started driving backwards into a “bridge way”. He told CP to get out but she refused. Mr Fisher then grabbed her by the hair, “ripped her down” and grabbed her by the throat. CP bit Mr Fisher on the finger. Mr Fisher then said, “If you don’t get out and take off your clothes I’m going to kill you right here.” CP did not comply. Mr Fisher then “smacked” her across her nose. CP said that Mr Fisher then pulled her hair and grabbed her by the throat. She slapped him twice across his face. CP then asked to go back. Mr Fisher drove back to his house. He told CP, “[c]ome on, get out, this is home” and was acting as if nothing had happened. Mr Fisher dropped CP there and she ran and hid. CP thought it was all a dream but she pinched herself twice and she was not dreaming. CP told the police that she would be unable to point out Mr Fisher’s house.
This account is the first time that CP indicated anything that broadly resembled Count 1, although at Mr Fisher’s home and not while they were in his car.

Ambulance Officer Tracy Wheeler

Ms Wheeler arrived at the scene at 10.20pm. Police were already there. CP was upset and crying, had a slightly swollen but undisplaced nose. There was no evidence of it having bled. CP said that Mr Fisher put his hand on the inside of her right thigh and asked if she sucked cock. Mr Fisher took her to a bushy area nearby and attempted to remove her clothes. CP said that she had bitten his finger.

Police – second interview

CP said that Mr Fisher’s car was gone because he is running away. Mr Fisher took her to his home, grabbed her arms and said, “it’s fine”. CP then screamed “let me go” before running a short distance away. CP then asked Mr Fisher to take her home. Mr Fisher agreed, but then took her to the bush area.

Police – Lismore Hospital

This interview was recorded. CP said she was in bed asleep and woke up feeling sick. She had to change her T-shirt but Mr Fisher came into the room before she did so. Zeke and Lily came into the room and asked her if she was okay. Mr Fisher told her to go with him and CP went to the bathroom and changed her T-shirt. After she had done so, Mr Fisher told her to come with him.
CP was unsure whether Lily was awake when she left the house, because the door was shut. Mr Fisher then took her hand in a monkey grip and led her to the car, telling CP that they were going to his place for the night. Half-way down the driveway Mr Fisher dropped his keys, which he then picked up and grabbed CP by the hand and took her to the car.
CP was sitting in the middle seat of the vehicle, next to Mr Fisher. It had one long bench seat. Mr Fisher kept putting his hand between her legs, and she asked him not to. However, Mr Fisher continued to do it, and CP noticed he was drunk. CP didn’t even think he was drunk at all, just weird.
CP said Mr Fisher put his hand “near m, between my legs” [sic]. During the drive Mr Fisher said, “Do you suck cock?” CP replied “what?” When they arrived at the house, Mr Fisher said to CP, “come on, come inside”. CP went inside. Mr Fisher then grabbed both of her arms and nearly chucked her on the floor.
CP described the interaction as Mr Fisher grabbing her really hard, squishing her skin, and then he “went to” chuck her on the floor, but she closed her eyes and “grounded” herself so he couldn’t move her far. CP forced Mr Fisher to let go, and she ran outside saying repeatedly, “I want to go home”.
When asked about how far inside she went, CP indicated that she got to the side sliding door of the house, not too far inside, as she instead ran out of the door and screamed about wanting to go home. When she got in the door, CP screamed at Mr Fisher, and went to hit him. Mr Fisher grabbed her, and that is when she grounded herself so he couldn’t chuck her, and she ran outside.
Mr Fisher agreed to take CP home, however he drove towards a bushy area. CP asked, “Isn’t home the other way?” Mr Fisher said, “Yeah, we’re going home” but kept driving. All of a sudden, Mr Fisher stopped in the middle of the road and started driving backwards, reversing under a bridge. The bridge that they drove under had graffiti. It was right near a lake. It was “a random bridge” in the middle of nowhere, out of town, about 5 minutes from his house.
Mr Fisher said, “do you suck cock?” CP replied, “no, what do you mean?” Mr Fisher then said, “I’m going to fuck you so hard”. CP told him to stop, and Mr Fisher said, “I’m gunna kill you if you don’t take all your clothes off.”

CP told him to stop, but Mr Fisher then tried to take her clothes off. During this, CP bit him on the finger, and Mr Fisher called her a stupid idiot and told her to “piss off, get out of my house” [sic]. CP bit Mr Fisher on the thumb, then Mr Fisher grabbed her by the face and ripped her by the hair. Mr Fisher then said, “come on, we’ll talk about this at [WA]’s” house.
The bite didn’t pierce the skin, but probably bruised Mr Fisher’s thumb. Mr Fisher slapped CP across the face after she had bitten him.
In response to the request to take her clothes off, CP said, “that ain’t gunna happen” and then she slapped Mr Fisher twice. Mr Fisher asked why she had slapped him.
Mr Fisher had left his door open, and there was some brief discussion about this. Mr Fisher then drove in the direction of WA’s house, before he changed direction and turned back towards his own house. They stopped at Mr Fisher’s home, and CP got out and ran to the next door neighbours’ house asking to be let in. They didn’t answer, so CP ran up onto their balcony and hid. Mr Fisher drove past, looking at CP. CP then went to the other next door neighbour and knocked on the door, asking to be let in. The neighbour opened the door, and assisted her.

Dr Garth Small

Dr Small examined CP at the hospital. He gave evidence at the trial.
CP reported that she had been assaulted. She said that Mr Fisher had taken her for a drive after she was feeling unwell, and during that drive he put his hand on her thigh. CP also reported that Mr Fisher wanted her to take her clothes off, but she refused and then hit him. Mr Fisher then hit her back and attempted to choke her.
CP said that prior to going to the bridge, Mr Fisher had taken her to his house, but she had refused to go inside. CP reported sustaining a bloody nose.
Dr Small performed an examination and said there was no obvious injury to her nose at that time. A systematic examination was performed looking for any obvious signs of injury. The only injuries noted were “a scratch on her forearm” which CP reported she had done to herself. There was no obvious bruising to the nose or the neck.

Dr Ian Lennon

Dr Lennon also examined CP at the hospital. He gave evidence at the trial.
CP said that she had been hit in the face and that she had hurt her ankle when she was trying to run away. The hit to the face was “by an arm over her face”.
On examination Dr Lennon observed swelling over her nasal bridge and there was blood present in her mouth, as well as tenderness of her ankle in keeping with what she said had occurred with her ankle.
In cross-examination Dr Lennon acknowledged that there was no reference to CP having any swelling of the nasal bridge.

Further video-recorded interview with police

On 17 November 2020, CP participated in a video recorded interview whilst driving with the police. During this recording, CP was taken on a drive around Alstonville, but was unable to identify anywhere that looked familiar to the “bushy area” she had referred to earlier. CP discussed the area where the bridge incident was said to have occurred, and described being threatened by Mr Fisher that he would “throw her across the [fenced] paddock there”.
CP was also asked to clarify some things she had told police in earlier conversations. She was reminded that Mr Fisher had taken her in a monkey grip from the bathroom to his car outside, and CP said that that was not correct. She described the monkey grip as having occurred at Mr Fisher’s home when he “nearly threw” her to the floor and she ran outside.
CP suddenly remembered, when asked to clarify what happened at [WA]’s house, that Mr Fisher did “monkey grip” her there as well, dragging her outside and only letting go when they were inside the car. Following a suspension of this interview, the police indicate that they looked at some maps to see if they could locate an area that matched CP’s description. CP was then taken to a location, which she confirmed was one with which she was familiar. The salient features that CP had previously described were that there was a bridge into which Mr Fisher had reversed, there was graffiti, there was a lake and a fenced paddock.
CP told the police that she could hear water but could not see anything. She then demonstrated where Mr Fisher parked. She did not recognize a fridge underneath the bridge that is apparent in the area but did recognize the graffiti. CP pointed out relevant places, clarifying that the discussion about taking her clothes off occurred at a different time and location to when there was the discussion about sucking cock.

CP’s pre-recorded evidence – 3 and 4 May

CP met Mr Fisher at least 9 times prior to the day of the incident. There had been no other events before 15 November 2020.
CP had been suspended from Ballina Public school for two weeks in 2019, when she was in Year 4. She had been suspended from school on 15 October 2020 for aggressive behaviour and in November 2020 for a period of ten days.
CP said that Ms Pickford had not told her to change out of her fluffy top.
Mr Fisher had asked her to come for a drive. CP went with Mr Fisher because the boys were talking and she was feeling sick. Mr Fisher said, “come with me” to his house so she could get better sleep and CP said “OK”.
CP denied telling the police that Mr Fisher had grabbed her by a monkey grip and dragged her through the house and outside. She said, “after, when we got to his house, I jumped out of the car, and ran to the closest street, and was screaming for help, and no one answered…”.
CP didn’t yell out at WA’s house because she “didn’t feel unsafe then. He wasn’t acting strange.” When asked about her earlier evidence that Mr Fisher had dragged her to his car, CP said, “not like that, like, not.” CP then said that she wasn’t dragged, “it was, a, a gentle pull, more like a luring up thing, not like dragging into the car.”
CP denied that there were two seats in Mr Fisher’s car, and also denied that there was a gap between the seats. CP denied telling the hospital staff that Mr Fisher had touched her thigh and rubbed her leg. She acknowledged that the touching was over the top of her clothing. CP gave evidence that Mr Fisher rubbed her thigh. She acknowledged that Mr Fisher rubbed her leg and thigh, but not her vagina as well. CP then said that Mr Fisher did not put his hand between her legs. When CP was asked if Mr Fisher put his hand on her shorts, she said, “[y]eah, well it was like a kind of thing.”
CP was asked:

“Q: True or not true. [Mr Fisher] did not touch your vagina through your pants, is that true or not true?
A: Not true. True.”

An exchange occurs where her Honour intervenes and notes that there were two answers given. CP, unprompted says, “I said ‘true’.”
Ultimately CP is asked:

“Q: Did [Mr Fisher] touch your vagina through your pants, true or not true?
A: True, true, not true who knows. Who fucking knows.”

CP was asked about the timing of the conversation “do you suck cock?” and she replied that Mr Fisher “never said it around the bridge area”. CP then asserted that this happened when they were just leaving WA’s
In reference to the bridge area, CP described going to the bridge with police in the daylight hours, when she saw “a rope hanging from a tree...” and she assumed that Mr Fisher had been there before, and maybe there were other cases. CP said that she pointed out the rope to police on the day, and she believed that police had probably taken a photograph of it. The rope was apparently hanging from a tree over the other side of the lake.
In cross-examination, CP says she didn’t see the refrigerator on the ground because it was too dark.
CP said that Mr Fisher did not reverse off the road, nor under the bridge.
When taken to the complaint evidence, CP said she told Jessie (the neighbour) that Mr Fisher took her to an underpass where he parked beneath the bridge while cars went over the road above them. She made a complaint that she was grabbed on the inner thigh and asked if she sucked cock. CP said this is what she told Jessie and this is what happened.

**********

Decision last updated: 10 May 2024

Medium Neutral Citation:	Fisher v R [2024] NSWCCA 68
Hearing dates:	26 February 2024
Date of orders:	10 May 2024
Decision date:	10 May 2024
Before:	Harrison CJ at CL at [1]; Cavanagh J at [122]; McNaughton J at [127]
Decision:	(1) Grant leave to appeal. (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal – appeal against conviction – sexual touching contrary to 66DB(a) Crimes Act 1900 (NSW) – aggravated detention with intent to obtain advantage contrary to s 86(2)(b) Crimes Act 1900 (NSW) – whether Crown’s closing address caused a miscarriage of justice – asserted reliance on matters not the subject of evidence – asserted reliance on matters subject to a tendency application brought by the applicant but successfully objected to by the Crown – asserted use of inflammatory words – whether verdicts unreasonable – whether the complainant’s credibility is undermined because of her agitated presentation when giving evidence – whether complainant’s evidence can be accepted having regard to its evolution from her initial complaint to pre-trial evidence – whether independent objective evidence undermines the alleged timing of events – leave granted – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) Supreme Court (Criminal Appeal) Rules 1970 (NSW)
Cases Cited:	Bolton v R [2023] NSWCCA 211 Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Palmer v R [2018] NSWCCA 205 Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 WC v R [2012] NSWCCA 231 Xie v R [2022] NSWCCA 185
Category:	Principal judgment
Parties:	Owen Charles Fisher (Applicant) Rex (Respondent)
Representation:	Counsel: K Stares SC (Applicant) E Nicholson (Respondent) Solicitors: Hammond Nguyen Turnbull (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2020/325874
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court at Sydney Jurisdiction: Criminal Date of Decision: 27 March 2023 (verdict); 7 July 2023 (sentence) Before: Girdham SC DCJ File Number(s): 2020/325874