FX v R; GX v R
[2020] NSWCCA 189
•4 August 2020
|
New South Wales |
Case Name: | FX v R; GX v R |
Medium Neutral Citation: | [2020] NSWCCA 189 |
Hearing Date(s): | 19 February 2020 |
Date of Orders: | 4 August 2020 |
Decision Date: | 4 August 2020 |
Before: | Johnson J at [1] |
Decision: | FX: |
Catchwords: | CRIME - appeals against conviction - joint trial of applicants for sexual offences committed against complainant - applicants were uncles of complainant - prosecution did not allege applicants committed offences as part of a joint criminal enterprise - claim on appeal that requirements for joint trial of applicants under s.29(2) Criminal Procedure Act 1986 were not met - whether applicants consented to joint trial under s.29(2)(a) Criminal Procedure Act 1986 - consideration of ss.21 and 29 Criminal Procedure Act 1986 - held that applicants consented to joint trial - whether miscarriage of justice arising from joint trial of applicants - whether trial Judge gave necessary directions to jury - whether miscarriage of justice arising from prosecutor’s closing address - application of Rule 4 Criminal Appeal Rules - leave granted to one applicant (GX) under Rule 4 - claim of unfairness by GX arising from submissions made by prosecutor to jury concerning from cross-examination of FX where propositions not put to GX in cross-examination - prosecutor’s submission repeated in summing up - no application made by applicants’ trial counsel for further directions - leave granted to GX under Rule 4 and grounds of appeal upheld - convictions quashed and new trial ordered for GX - no other grounds of appeal established - FX refused leave under Rule 4 - FX’s appeal dismissed |
Legislation Cited: | Children (Criminal Proceedings) Act 1987 |
Cases Cited: | Allen v R [2020] NSWCCA 173 |
Texts Cited: | Young, “The Law of Consent”, Law Book Company Limited, 1986 |
Category: | Principal judgment |
Parties: | FX and GX (Applicants) |
Representation: | Counsel: |
File Number(s): | 2016/379366 (FX |
Publication Restriction: | --- |
Decision under appeal: | |
Court or Tribunal: | District Court of New South Wales |
Jurisdiction: | --- |
Citation: | --- |
Date of Decision: | Conviction: 13 June 2018 |
Before: | Her Honour Judge O’Rourke SC |
File Number(s): | 2016/379366 (FX |
JUDGMENT
JOHNSON J: The Applicants, FX and GX, were tried jointly at the Campbelltown District Court in 2018 before her Honour Judge O’Rourke SC and a jury upon an indictment charging each of them with sexual offences committed against the same complainant in a period between 1998 and 2005.
FX and GX are brothers. The complainant is their cousin. Section 578A Crimes Act 1900 prohibits the publication of any matter which is likely to lead to the identification of the complainant. I will refer to her as Sarah, which is not her real name. As the Applicants are related to the complainant, publication of their names would serve to identify the complainant. In addition, GX was under 18 years of age at the time of the incidents giving rise to the charges against him and FX was under 18 years at the time of some of the incidents for which he was charged so that each of them should not be identified: s.15A Children (Criminal Proceedings) Act 1987. Accordingly, pseudonyms are used in this judgment to describe the Applicants to guard against identification of Sarah and each of the Applicants. FX and GX are not the true initials of the Applicants.
Sarah was born in June 1992. In the period of the alleged offending between 1998 and 2005, Sarah was aged about six to 12 years.
The Charges and Verdicts
FX and GX stood trial together at Campbelltown District Court between 28 May 2018 and 13 June 2018 upon an indictment containing 21 offences of a sexual nature alleged to have been committed against the complainant. Counts 1-10 and 19-21 concerned offences allegedly committed by FX between 1998 and 2005 when he was aged between 15 and 21 years and Sarah was aged between six and 12 years. Counts 11 to 18 concerned offences allegedly committed by GX between 2002 and 2005 when he was aged between 15 and 17 years and Sarah was aged between 10 and 12 years.
On 5 June 2018, at the close of the Crown case, the jury returned verdicts of not guilty (by direction) in relation to Counts 2, 6 and 21 against FX. On 13 June 2018, FX was found guilty of each of the remaining charges against him.
On 13 June 2018, GX was found guilty of each of the offences charged against him.
The following table sets out the counts in the indictment and the verdicts returned by the jury with respect to each of FX and GX:
| Count | Person Charged | Verdict |
| 1 - On 11 December 1998, aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Guilty |
| 2 -Between 11 December 1998 and 1 January 1999 aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Not Guilty (by direction) |
| 3 - Between 1 April 1999 and 1 June 1999 aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Guilty |
| 4 - Between 30 November 1999 and 1 February 2000 aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Guilty |
| 5 - Between 1 January 1999 and 31 December 1999 aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Guilty |
| 6 - Between 1 January 2000 and 31 December 2000 aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Not Guilty (by direction) |
| 7 - Between 23 June 2001 and 22 June 2002 aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Guilty |
| 8 - Between 1 January 2001 and 31 December 2001 aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Guilty |
| 9 - Between 23 June 1999 and 22 June 2001 aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 | FX | Guilty |
| 10 - Between 1 June 2002 and 21 October 2002 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | FX | Guilty |
| 11 - Between 23 June 2002 and 2 October 2002 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | GX | Guilty |
| 12 - Between 23 June 2002 and 2 October 2002 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | GX | Guilty |
| 13 - Between 2 October 2002 and 22 June 2004 committing act of indecency towards a person under the age of 16 years contrary to s.61N(1) Crimes Act 1900 | GX | Guilty |
| 14 - Between 2 October 2002 and 22 June 2004 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | GX | Guilty |
| 15 - Between 23 June 2003 and 22 June 2005 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | GX | Guilty |
| 16 - Between 23 June 2003 and 22 June 2005 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | GX | Guilty |
| 17 - Between 23 June 2003 and 22 June 2005 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | GX | Guilty |
| 18 - Between 23 June 2003 and 22 June 2005 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | GX | Guilty |
| 19 - Between 23 June 2004 and 22 June 2005 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | FX | Guilty |
| 20 - Between 23 June 2004 and 22 June 2005 having sexual intercourse with a child over the age of 10 years and under the age of 14 years contrary to s.66C(1) Crimes Act 1900 | FX | Guilty |
| 21 - Between 1 January 2005 and 31 January 2005 aggravated indecent assault of a child under 16 years contrary to s.61M(1) Crimes Act 1900 | FX | Not Guilty (by direction) |
Sentences Imposed on FX and GX
FX and GX were each sentenced by her Honour Judge O’Rourke SC on 29 November 2018.
FX was sentenced to an aggregate term of imprisonment of six years comprising a non-parole period of three years and six months commencing on 13 June 2018 and expiring on 12 December 2021 with a balance of term of two years and six months commencing on 13 December 2021 and expiring on 12 June 2024. The sentencing Judge nominated the following indicative sentences with respect to FX:
(a)Count 1 - imprisonment for 12 months.
(b)Count 3 - imprisonment for 12 months.
(c)Count 4 - imprisonment for 18 months.
(d)Count 5 - imprisonment for 18 months.
(e)Count 7 - imprisonment for two years.
(f)Count 8 - imprisonment for two years.
(g)Count 9 - imprisonment for two years.
(h)Count 10 - imprisonment for three years.
(i)Count 19 - imprisonment for two years with a non-parole period of 15 months.
(j)Count 20 - imprisonment for four years and six months.
GX was sentenced for each offence to a three-year community corrections order commencing on 29 November 2018.
Grounds of Appeal
By Notices of Appeal filed on 30 August 2019, each of FX and GX appealed against conviction relying upon the following identical grounds of appeal:
(a)Ground 1 - a miscarriage arose as a result of the joinder of counts pertaining to FX on the one hand and GX on the other hand contrary to the requirements of s.29 Criminal Procedure Act 1986.
(b)Ground 2 - alternatively, a miscarriage of justice arose as a result of FX and GX being tried jointly.
(c)Ground 3 - her Honour erred in failing to direct the jury that the evidence concerning the allegations against FX were inadmissible against GX and vice versa.
(d)Ground 4 - her Honour erred in failing to direct the jury that the statements made by FX and GX in the recording made by Sarah’s mother, SX, (Exhibit D) were admissible only in their respective cases.
(e)Ground 5 - her Honour erred in failing to direct the jury that the answers given by each of FX and GX in evidence, in response to the allegations made by Sarah, were admissible only in their respective cases.
(f)Ground 6 - a miscarriage of justice arose from the Crown Prosecutor’s submission to the jury that, because both FX and GX had given evidence that they had lied to SX to pacify her, therefore they must have lied when they denied having committed the offences.
(g)Ground 7 - a miscarriage of justice arose as a result of the Crown Prosecutor:
(h)(i) giving personal opinions;
(i)(ii) making emotive suggestions;
(j)(iii) appealing to the juror’s individual experiences; and
(k)(iv) ridiculing the defence case.
Neither FX nor GX sought leave to appeal with respect to sentence.
FX and GX require leave to appeal in relation to each of the grounds as they involve mixed questions of law and fact: s.5(1)(b) Criminal Appeal Act 1912. Leave is also required under Rule 4 Criminal Appeal Rules with respect to Grounds 3, 4 and 5.
Evidence at the Trial
The following narrative is drawn from the Crown submissions and trial summary which outlined the trial evidence in a manner which was not challenged before this Court. In addition, given the grounds of appeal, extracts from the cross-examination of each Applicant are included in this narrative.
The Crown Case Against FX and GX
FX and GX are the first cousins of Sarah. As mentioned earlier, Sarah was born in June 1992. FX was born in October 1983 and GX was born in August 1987.
When she was young, Sarah lived with her parents and older brother ("her immediate family") in western Sydney. For a time, they lived in a duplex house with the Applicants and their parents. In 1997, Sarah and her immediate family moved to another address in western Sydney. They continued to see the Applicants and their parents at least once a week.
FX’s Offences Between 1998 and 2002
On 11 December 1998, Sarah's brother celebrated his 14th birthday at their home. The celebration was attended by Sarah's extended family including the Applicants. After the cake was cut, Sarah was in the lounge room watching television with FX. FX sat down next to her on the lounge, his leg was touching hers. He pulled his clothing down past his genital region, exposing his penis. He took Sarah’s hand, placed it on his penis and moved it back and forth (Count 1). When he had finished, FX told Sarah she should not tell anyone about what had happened or they would both be in trouble. Sarah was six years old.
In April 1999, Sarah and her immediate family moved to another address in western Sydney. Sarah gave evidence that there were a number of occasions when FX would take her into another room of that house and abuse her. There was an occasion in the summer of 2000 when all of her cousins were at her home after going for a swim at a leisure centre. FX took her to the storage area of the house, which was also a wine cellar. The lights were off. FX turned her around so her back was to him. He took her hand and placed it on his penis, making Sarah rub it back and forth for some time before she heard noises upstairs and became panicked (Count 4).
There was an occasion when Sarah's extended family, including the Applicants and their parents, came over to the western Sydney home for lunch. While everyone was in the kitchen having lunch, FX took Sarah upstairs to her room. He sat on the edge of her bed and removed his shorts or pants before taking Sarah's hand and making her rub his penis (Count 3). In cross-examination, Sarah agreed that the layout of the home was such that everyone seated in the kitchen would have seen her and FX go upstairs.
Sarah's father owned a business in partnership with the Applicants' father which they operated from a factory in western Sydney. Sarah gave evidence that she thought the factory opened in 1999. There was an occasion when she and the two Applicants visited the factory. Their fathers were also present. GX was upstairs with Sarah's father and uncle. She and FX were alone on the ground floor of the factory. They were under a metal staircase. FX pulled down his shorts and made Sarah rub his penis (Count 5). Sarah said she recalled FX laughing but did not know why. She felt ashamed and guilty. In cross-examination, Sarah agreed that if someone had walked down the stairs they would have seen them.
In 2001, Sarah would, on occasion, sleep over at the Applicants' home in the school holidays. She did so, in particular, in June of that year. Sarah slept in a bedroom adjacent to FX's bedroom and next to GX's bedroom. Sarah gave evidence that there were occasions, “too many times to count”, when she would be in FX's bedroom and he would have her stand next to his bed while he was lying down, and he would rub his hand back and forth on her vagina under her clothes. Sarah later said that on one occasion when such an incident occurred “it was school holidays and I remember it being cold” (Count 7).
There was an occasion when Sarah was at the Applicants' home when she and FX were in his bedroom playing a computer game. He placed her on his lap. As she played the game, he held her by the hips and moved her back and forth over his lap. He kissed her on the neck (Count 8).
When Sarah was seven or eight years old, there was an occasion when she was at the Applicants’ home. While everyone else was upstairs, FX took her downstairs to the laundry which was off the garage. He pulled his shorts down, exposing his penis. He took Sarah's hand, placed it on his erect penis and made her rub it back and forth. He tried to kiss Sarah and put his tongue in her mouth (Count 9).
In October 2002, the Applicants and their parents moved to a coastal town in New South Wales. Several months before they moved, Sarah, the Applicants and their families were at the home of a client of Sarah's father and uncle. The adults were out on a balcony talking while Sarah, her brother and the two Applicants were in the lounge room watching television. Sarah and FX were sitting on a two-or-three-seater couch next to each other. Her brother and GX were each on a single seater couch on either side of the two or three-seater couch. Sarah was talking to FX about a book she was reading. He took a blanket or throw, placed it over their laps and put some cushions on top of it. He then put his hand under the blanket and rubbed her vagina back and forth (Count 10).
GX’s Offences
The first incident with GX occurred in the Applicants’ home before the Applicants moved to the coastal town. Sarah said she thought it was several months before the move. She had been in FX's bedroom with him and her brother. GX was in his bedroom, which was across the corridor. He told Sarah to “Come here”. GX grabbed her hands, pulled her onto the bed and sat her on his hips before holding Sarah's hips and rocking her back and forth over his own hips. Sarah felt his penis against her body (Count 11). As to this occasion, Sarah said “I was very confused and surprised, and I didn't understand what was going on. I didn't know if he knew what [FX] was doing”.
There was an occasion when Sarah, the Applicants and their parents went to the home of another family for a barbeque. In the afternoon, after they had eaten, Sarah was alone with GX at the back of the house. He took her by the hand and led her into an area of long grass. GX pulled his pants down past his waist exposing his penis. He took her hand and placed it on his penis, forcing her to rub it back and forth. He turned her around so that her back was towards him and moved his penis back and forth between her thighs (Count 12). In cross-examination, Sarah agreed that if someone had come into the backyard they would have seen what occurred.
When she was 10 or 11 years old, Sarah went to visit the Applicants and their parents at their home in the coastal town. The main house was single storey. The Applicants' bedrooms were at one end of the house off a corridor. Sarah heard her aunt talking to her from the kitchen at the other end of the corridor. When she went to walk up the corridor, GX who was in his bedroom, told her to “Come here”. He was sitting on the edge of his bed facing the doorway. He lowered his shorts and began masturbating in front of her. She ran away (Count 13).
On another occasion not long after, Sarah accompanied her brother to the coastal town where he was making a delivery. She and her brother stayed in a small caravan set up in the shed on the Applicants' property. Sarah woke one morning to find GX standing near her bed. The television was on and a music video by The Offspring performing the song “Hit That” was playing. GX took Sarah's hand, put it into his shorts and made her rub his penis back and forth (Count 14). She disputed the suggestion put to her in cross-examination that there was no television in the caravan.
There was another occasion, during the same trip, when GX took Sarah to a smaller cabin on the property. He laid Sarah down on a couch in the living area, he then laid down on top of her and moved his body back and forth over her (Count 15). He kissed her and put his tongue in her mouth (Count 16). After a while, GX took Sarah to another part of the cabin where, having removed his shorts, he placed his penis between her thighs and moved it back and forth (Count 17). He then grabbed her hand and pulled her to the adjacent bathroom where he ejaculated into the toilet (Count 18).
FX’s Offences in 2004-2005
Sarah described an occasion at the coastal town when she was alone with FX in a shipping container that had been converted into an office. She was about 12 years old. FX was sitting in a chair and made Sarah sit on top of him, before moving her back and forth over his genital region (Count 19). He kissed her, putting his tongue in her mouth. The next thing Sarah remembered was being in front of FX who had pushed her down to a kneeling position and was attempting to put his penis in her mouth. She resisted and tried to move away from him. The tip of his penis went into her mouth for a few seconds (Count 20). FX then masturbated himself and ejaculated onto a tissue.
Sarah was asked in cross-examination if she could describe FX's penis. She described it as “Uncircumcised. He had pubic hair. It was light-brown nude colour”. In re-examination, Sarah said that she was six years old when she first saw FX’s penis.
Sarah's father and uncle (the Applicants' father) had a business-related falling out. As a result, the two families had no contact for a number of years. Contact between them resumed after Sarah's father later became ill.
Complaint evidence
Sarah and her mother (SX) each gave evidence that in 2010, when Sarah was 18 years old, she told her mother that FX and GX had abused her. She did not provide further details. SX offered to take her to see a psychologist or psychiatrist, but told her not to tell her father.
In November 2014, Sarah's father was diagnosed with pancreatic cancer. As a result of his illness, the Applicants and their parents visited her father and in the course of doing so Sarah would, on occasion, see FX and GX. She could not handle pretending to be friendly with the Applicants and would leave the room when they came to visit.
Some time later, GX started attending the factory where Sarah and her brother both worked. Sarah would become distressed upon seeing him at her workplace.
Sarah married a young man who had commenced working in the family factory in 2013. Sarah's husband and brother both commented on her behaviour around the Applicants. She told her husband and brother that she could not tell them why she behaved as she did. Not long after her father was diagnosed with cancer, Sarah disclosed the abuse to her husband, but did not discuss any details.
Sarah’s mother, brother and husband each gave evidence that, after contact between the two families resumed, they had observed a change in Sarah's behaviour on occasions when one or both of the Applicants were in her presence.
After her father's death in July 2015, Sarah told her mother that FX and GX had sexually abused her between the ages of six and 12 years old. Sarah later met with her mother, brother and husband where she told them the same thing. Sarah said she believed that the later meeting took place in about September 2015.
The evidence of Sarah’s mother, brother and husband supported Sarah's evidence in relation to both the timing and content of the disclosures made to each of them. SX described Sarah as being very upset during the meeting with herself, her brother and her husband.
The iPad Conversation
On 11 October 2015, SX (Sarah’s mother) sent GX a text message asking that he and FX come to her house alone. At this time, FX was 32 years old and GX was 28 years old. The three persons had a conversation in the kitchen. Unbeknown to either of the Applicants, SX recorded the conversation on her iPad (“the iPad conversation”). The iPad conversation, edited by agreement between the parties, became Exhibit D (a CD of the audio recording) together with Exhibit E (the transcript of the recording). As will be seen, objection was taken before trial to the tender of the iPad conversation, but the trial Judge ruled that it should be admitted into evidence at the trial of the Applicants. That ruling is not challenged in this Court.
During the iPad conversation, SX told the Applicants that she needed their complete honesty. She said that Sarah had revealed that they had each been involved in inappropriate sexual behaviour with her, that she was five years old when it started and 12 when it stopped and that it happened both “here” and in the coastal town.
Each of the Applicants said that he did not know what SX was referring to, that he could not recall any such incidents. GX said “If I did maybe accidentally touch, not deliberately”. SX told them that Sarah had told her that it was deliberate and that it was “Serious stuff. That's worthy to go to the police with”. SX said that Sarah had been finding it hard to deal with having contact with them since her father's illness. FX said he had noticed that every time he came into the room, Sarah would walk away.
Each of the Applicants made what the Crown alleged were admissions during the iPad conversation. Each of the admissions made by the Applicants was confined to his own conduct. The iPad conversation including the following (Exhibit E, pages 9-10):
GX: Nah, nah, I'm trying to think of ... I can remember one incident. I was in the bedroom of where the corridor was that went to the other half of the house, the left bedroom. I was lying on the floor, I was lying on the floor in my ... I think I was in my room … I don't know what I was doing but I was on the floor. [Sarah’s brother] was there [mumbles]. Some reason, I dunno, I was in my room, my I think we were playing hide and seek maybe. Maybe. I dunno but I was in my room. Because the light was off. I remember the light was off. … And [Sarah] come in, and I dunno why she would've come in, to that room, and I was lying on the floor on the other side of the bed and she lyed beside me and I didn't think of anything because I think we were playing a game of hide and seek or something like that (inaudible). But she rolled over onto me and I said she can't be on top of me because it's not allowed. And then I don't know exactly what happened but we kept playing our, our game as usual, so that's the only, the only incident I can think of right now.
A little later, the following was said (Exhibit E, pages 12-13):
GX: I remember [the suburb where the Applicants lived] … The stairs pantry that room from the garage …. We kept our shopping or something in there. I can't remember what we fucking kept in there. But we did kiss in there that I can remember, but not like a, talking like a peck on the lips like.
FX: I think there was, there was, I think there was instances [SX].
SX: What instances are we talking about.
GX: Just say it because fucking it's going to go to the Police or it's gonna go.
SX: Tell me.
FX: Aunty [SX] there were instances that I am recalling now.
SX: Right.
FX: And I'm not, it wasn't what I thought but it's coming to my mind now that there was instances.
SX: Mmm
FX: Ermm…. Where there was yes, there was inappropriate behaviour.
SX: Mmm
FX: And when I think about it and I think about how stupid that was back at the age of whatever age I was, when I think back now and how stupid that was, and how that's affected someone's life I feel sick to my stomach.
SX: Well tell me more about these instances. Where did this happen?
…
GX: Whatever it is we'll sort it out, whatever it is.
FX: Majority of the time I think. On the farm. At [the Applicants’ home].
SX: Right and you were the instigator. Obviously.
FX. Yes.
SX: Mmm. And you asked [Sarah] to do things that were beyond what a cousin would ask another cousin to do.
FX: Yes and I'm, this is. This is something that is making me sick to my stomach just thinking about it because I can't understand why I would do that.
SX: And it happened many times.
FX: More than once.
SX: It happened many times.
FX: Okay yes many times.
Soon after, the following was said (Exhibit E, page 14):
SX: What did you encourage her to do? When you were alone with her. And you need to be honest.
FX: Yes I’m being honest.
SX: And I need your total honesty not just this much.
FX: No, no total honesty, there might have been times when I've asked her to touch me basically where it's extremely inappropriate.
A little later, the conversation including the following (Exhibit E, page 17):
SX: No don't say yes ok. Did that happen? No, just answer that. Did that happen inappropriate sexual behaviour? Yes or no? Yes or no. No I'm sorry you're not skirting it anymore, you've been skirting it ever since you got here and you've been here for more than half an hour. You can understand my frustration now when you tell me this much but there is obviously more. Tell me now. Were you, you now I'm talking to you [GX]. Were you part of any inappropriate sexual behaviour with my daughter? The kind of behaviour that doesn't happen between cousins.
GX: Yes. Yes.
SX: Right so you, [FX] your turn. Were you. What you didn't give me an answer before so now I'm asking you a very direct question, yet again. Were you part of inappropriate sexual behaviour with my daughter?
FX: Yes.
SX: On more than one occasion?
FX: Yes.
SX: And you [GX] on more than one occasion?
GX: Yes.
A little later, FX said (Exhibit E, page 18):
FX: Yes there was instances on many occasions when I look back at the time it was inappropriate behaviour. I'm not trying to spin around, I'm agreeing with what you're saying. I don't know what else to say, I'm guilty, yes, I don't want to hurt you anymore and honestly when I look back at me I'm not the same person I was growing up. You can appreciate people change as they get older, we grow, we learn we change right. I've gotten married. Had kids, and so on. My life as a kid growing up I did many silly things.
The Applicants said the following things during the balance of the iPad conversation (Exhibit E, pages 19-21):
FX: Ok, I'll start again. I'm extremely sorry for the pain and suffering I've caused to your family and to [Sarah, her brother and her husband]. I'm extremely sorry, I don't know how much more, what words to come for what words to say to you. T T To say how sorry I am, for the things that I've done in the past that I think back now, I can't understand why. What possessed me to do things like that. Honestly.
…
GX: There's no words.
FX: There's no excuses.
GX: To To explain to decide how sorry I am, to [Sarah], to you, to [Sarah’s husband] to [Sarah’s brother], to anyone that was affected by this.
…
GX: I'm deeply truly sorry that, as a young kid exploring with things, that really should never have been exploring. Should never even have been thinking like that. I don't know why.
…
GX: I feel so sick of myself. I feel so disgusted with myself only, that I’m older now and I know that I got a daughter. I’ve got a son. And the whole way you look at life now is that. I’d take for anything (inaudible) I can’t believe that being a boy for not even realising that it’s not games. It’s not fucking … It should’ve been stopped the very first, the very first ….
FX: It shouldn’t have ever happened in the first place.
GX: That incidence should’ve just been for.
SX Were you two talking about what was happening with [Sarah]?
FX: No, no.
SX: No, I mean at the time.
FX: No, no.
GX: I didn’t even know this and I that’s honest, honest truth. I didn’t even know that whatever …
FX: And likewise, I didn’t know that …
GX: As I got older, it's something that, as I got older I knew it was wrong. And I didn't want anyone to know, I didn't want, because I knew it was wrong. Doing those things, and I knew that it should never have happened in the very first place. I don't know why it sort of carried on for the, why it happened. But it's something that no one. No one at all. [FX] never knew, my wife, no one, no one I've never spoken to anyone about it and I live everyday now…
The Police Investigation
On 10 January 2016, Sarah reported the matters to police.
On 14 September 2016, Sarah participated in two lawfully intercepted telephone calls - one with each Applicant. The recording of the telephone call with FX became Exhibit B at the trial (the transcript was MFI3). The recording of the telephone call with GX became Exhibit C (the transcript was MFI4).
Pretext Call with FX
During the pretext call, Sarah called FX and told him that she had been seeing a psychiatrist to help her deal with the sexual abuse he perpetrated upon her and she wanted to talk to him for some closure. He replied “Ok. Yeah”. Sarah explained that she found it “weird” that FX abused her for several years and when he stopped, GX started abusing her and then when GX stopped FX started again. She asked if they were “in on it together”. FX replied “Ah to be honest. [Sarah] no. Absolutely, like here in my heart did I know that it was happening”. Sarah asked if he knew GX was abusing her and he replied “No, I did not know. I did not know, no. I did not know that”.
FX told Sarah “I am so sorry because I am immensely – it makes me sick to my stomach that I could’ve done something like that”. Sarah cut him off and stated “… If it was a one off situation or maybe a few times, maybe what you’re saying would be plausible but you did this to me from when I was what 5, 6 years old until I was fucking 12 going on 13?”. FX replied:
“This might be hard for you to believe this right. But I have also had psychological issues due to this, OK. And I know it sounds very hard for you to believe but I … I’ve seen doctors and psychologists myself… OK. And I know it’s not … but … my … and honestly I don’t know. I’ve…into a lot about why it would’ve happened and why I was like that for that period of my life. I don’t and I can’t explain it. I really can’t. It’s, it’s in the past, I’m not that person any more obviously. But I can honestly say [Sarah] that I have gone through … myself. And obviously, yes, I can understand…as well. But I honestly did not know [GX] was doing something as well, I had no idea. And but I don’t want it to affect the rest of your life and I don’t want it to affect the rest of my life.”
FX told Sarah he wanted “all of us to move on”. FX said that his depression started after he began abusing her. When Sarah asked if FX was depressed because he sexually abused her he answered “Yes, I was, I was immensely depressed…”. FX told Sarah “looking back at it I wish I … noticed what was happening and stopped it straight away. Like I wouldn’t allow anything like that to happen to my niece, my sons, I’ve got kids and a family”.
Sarah asked FX if he recalled how everything started, but FX did not reply. Sarah told him “It was my brother’s birthday and I was sitting on the couch watching TV by myself in the dining room in [address]”. Later in that response, Sarah said “then you started touching me”. FX replied that he did not remember that and said “it makes me sick to my stomach to think that I would do such a thing. I’m not that person anymore”.
Sarah told FX “it happened so many times …” and “… And every time I was there you abused me” and “not even just one occasion, every time, it would be like three times in one visit”. FX repeated he “feel[s] sick”.
FX asked if Sarah had spoken to anyone else other than him, and she replied “No”.
FX said that he had told his parents. Sarah said she had not spoken to his parents about this.
Sarah commented that FX was saying he did not remember to which FX replied “[Sarah] I didn’t say I didn’t remember. I said that I’m not that person any more. And I was naïve and a stupid idiot OK and I don’t know what possessed me to do the things I did”. FX later stated “I understand that it was … wrong. And I’m telling you that I didn’t know that at the time. In my mind I was … I don’t know why I was doing those things. I honestly don’t know [Sarah]. I was a kid. As far as I can remember I was a naïve ignorant kid. I wasn’t taught much”.
Sarah said “That point of you saying that you weren’t taught much as a kid, you think that partly excuses what you did?”. FX replied “It doesn’t. It does nothing to excuse what I did. I’m not saying, I’m not trying to come up with excuses. Don’t get me wrong. What I did was absolutely wrong. And disgusting. There is no excuse. I’m telling you that there is no excuse and if I had, if I had to go back in time knowing what I know, now, I would not have even – that stuff would not have happened. Honestly, I’m not that person”.
FX told Sarah that his wife knew and it had ruined his life. Sarah said “Does she [his wife] know that you were 21 when you last sexually abused me?” and FX replied “She knows what I am today, [Sarah]”.
Sarah asked how his parents reacted “when you told them that you sexually abused me?” and FX replied “They weren’t … the same, they were all the same. Because … disgusted in not … telling them. And they could hear the sincerity in my voice that the grief, how sorry I was and how disgusted I was in myself. Because I was crying my eyes out. I was extremely sick to my stomach telling them all of this. OK. I was … saddened with myself. And they were disgusted and … happened”.
FX said “I’m so sorry. I’m so sorry” and “I’m disgusted in the way I acted and I’m extremely sorry”.
Sarah told FX she thought at age nine she was pregnant because she did not know what sexual intercourse was and she thought what FX was doing to her was sexual intercourse and she might be pregnant because of it. She told FX that when she asked him when they were younger if she could be pregnant he laughed at her. FX replied “I don’t know what was wrong with me”.
Pretext Call with GX
On the same day, Sarah called GX and told him she would like to speak to him about his sexual abuse of her. He replied “ah hmm”. Sarah asked if he and FX were in on it together. GX said “no”. Sarah said that he and FX took it in turns.
GX told Sarah he spoke to her mother (SX). Sarah said she did not know about that. GX said “Yeah apparently she called us over and we, we spoke to your mum and I didn’t say anything too much because obviously your mum doesn’t know the full story”.
GX told Sarah that “it started” when he was “laying down on the floor and you [Sarah] were massaging my back or rubbing my back or something and you kissed me first”. Sarah replied “really, fuck, really [GX], really … because you know what I remember, I remember you were in your room laying down on your bed and you called me and you pulled me by my arm to climb on top of you and then you moved my hips back and forth over your crotch. And I was 10, I was, or just about to turn 10, I think it was 2002 when you did that or maybe it was 2001” and then “But it was some time around then. And you made me move back and forth, I did not fucking instigate that”.
GX told Sarah he would go on a lie detector. Sarah told him he took advantage of her and he replied “not necessarily”. GX asked Sarah “how is it that two brothers didn’t even know at all what was going on?”. Sarah said that that was not for her to answer and GX asked “what do you want from me?”.
GX told Sarah his wife knew. They discussed briefly that GX told Sarah’s mother that they wanted to apologise to her, but Sarah’s mother would not let them. GX said when he met with Sarah’s mother “we were crying” and “we wanted to say sorry”.
GX told Sarah that he “might have been older like physically … but mentally I would have [been] a whole lot younger than you. A whole lot so if anyone knew what was right or wrong it would have been you that would have known what was right and wrong”. Sarah said “… it doesn’t even matter that if, if you’re mentally immature in comparison to me, kids don’t do that to each other. And the fact that you were a few years older than me when this all started just make it all the more worse” and GX replied “Mmm”.
Later in the call GX said “You’re accusing me as if I’m like fucking 30 now doing it now”. Sarah asked if it “doesn’t mean anything if you’re 15 and I’m 10” and GX replied “No I’m just saying the way, you’re, you’re, you’re making it out to be as if I’m fucken doing it now”.
GX told Sarah she should feel guilty as well and that she was blaming him.
Other Evidence in the Crown Case
A female family friend gave brief evidence relevant only to Count 12 (a charge against GX).
Detective Senior Constable Russell Williams was the officer-in-charge of the investigation. He gave evidence about the circumstances in which Sarah participated in recorded telephone conversations with each Applicant (the pretext calls) on 14 September 2016.
The Applicants were arrested on 18 December 2016 and taken to a police station where police lawfully recorded a conversation between them that took place while they were in a custody cell together. The recording and transcript of that conversation were admitted, without objection, as Exhibits F and G respectively.
In the first clip of the recording, GX is recorded saying “history's happened you can't change it…”.
Within the second clip of the recording, GX stated to FX “you know what, the strange thing is, I didn't know about you, you didn't know about me. And we've alleged to have done it, fucken together”.
FX and GX became aware in the third clip that the iPad conversation with Sarah’s mother was recorded. GX commented “I didn't think you were allowed to be recorded unless you were made aware of it, basically saying you were twenty then stopped and I was like fourteen”.
In the fourth clip, GX said:
“If they do charge us. Will they charge according to ... like l was a still minor, I was still a kid. You have to remember it's only her side. It's not our side. (inaudible) … Haven't established anything as it happened it's only her word .... We've had family problems, it could just be revenge. Out of fucking envy like out of spite. It's not how it happened probably. [Sarah]'s the one that always fucked off ... they have to do their job, the truth will come out and we can put it all behind us, if she's not careful she will shoot herself and she will be the one get locked up”.
FX and GX discussed the iPad conversation, stating that it was taken around 12 months before and they only have Sarah’s side of the story. An uncle spoke to FX and GX and commented “surely youse weren't doing anything if she was five other than fucking around” and GX replied “That's what I'm saying is that, there's things that don't make sense to the questions, because, they haven't put them in you know what l mean, she ... so there's no doubt in my mind, she didn't like that, she kissed me first ... that she instigated… I'm not saying anything, just saying that”. GX commented that they were kids experimenting and Sarah kissed him first. He went on to say “The only reason it looks bad is we were older… my mental…mentally I was probably the same age as her. They people that know me…”.
FX, GX and their uncle discussed speaking to their solicitor and not answering any of the police questions (Clip 8, page 4).
Evidence in the Defence Cases
Each of the Applicants gave evidence at the trial, with GX giving evidence first.
Evidence of GX
GX gave evidence-in-chief that he was born in August 1987. He was 30 years old when he gave evidence in June 2018.
GX said that he thought he was going to his aunt’s (SX) house on 11 October 2015 because there were disputes between his other aunties and SX. He said that during the conversation, SX appeared “on edge” whereas she was normally “very placid, very kind, well mannered”.
In relation to an incident described in the iPad conversation (see [43] above), GX gave evidence that the incident did not take place as he described and that he gave the description found there “because [SX] didn't want to hear that her daughter came to me. So I was trying to make something sort of believable to [SX] to try and calm her down”. GX said that what happened was that he was in his room on the floor playing with collectable motorbikes, Sarah came in, grabbed one and rolled it on his back and he told her “it can't happen”.
GX said there was a further incident at the family home where Sarah pecked him on the lips as they unloaded shopping in the pantry. He said “as soon as it happened, I put a stop”.
GX said that during the iPad conversation, he was scared because he had been threatened by SX. He explained a statement made by him in the iPad conversation saying that he was trying to tell SX in a respectful way that her daughter was “coming to me, not the other way around”.
GX said with respect to the iPad conversation “I was trying to make something sort of believable to [SX] to try to calm her down” (T275).
When he said “I should have known better”, he explained that he said this because everyone in his family knew he could not read and write properly, and that his IQ was a lot lower than that of Sarah.
In relation to a further statement made by him in the iPad conversation, GX said “I'm trying to calm her down when I say, “No, no, no” because “obviously, she's got an image in her head. And I don't want to lie to my aunty, so when I say that she touched me I'm referring to the massage or when she was touching my back. So, yeah, trying to be honest with my aunty”.
When asked why he had said he was “truly, truly sorry” and asked SX to convey that to Sarah, GX said that he had been threatened with going to the police, media and losing his family and was scared that he had admitted to something that he hadn't done. He said that he did so hopeful that Sarah would decide to go about it another way.
GX said that there was an occasion when he attended the home of a family friend for a pizza party. He could not recall whether his cousins (Sarah and her brother) were present. He denied having abused Sarah (at the residence of the family friend) as she had described.
GX agreed that there was a pop-up caravan on the property at the coastal town, but denied that he abused Sarah in it. He said that they would not have visited them at the coastal town any more than three times after they moved there. GX was asked, in examination-in-chief, to describe FX's penis.
In cross-examination by the Crown, GX said that he did not know how old he was when Sarah rubbed his back with a toy motorcycle and kissed him at the family home. He said he could have been younger than 15 and said that he guessed he was between eight and 10 years old. He agreed that Sarah would have then been between three and five years old. Of the incident he had described that had taken place in the pantry at the family home, he said he guessed he was probably 10 years old. He agreed that at that time Sarah would have been five years of age.
GX agreed that during the iPad conversation he told SX that the only incident he could think of was an occasion when he and Sarah were in his room playing hide and seek and she rolled on top of him and he told her that she “couldn't be on top of him because it wasn't allowed”. Of that passage, he said at trial “I was telling bits of the truth”. He said that when Sarah had come into his room, they were not playing hide and seek - rather he was playing with his motorbikes. He agreed that the reference to Sarah lying on him was made up.
It was suggested to him by the Crown that he lied to SX. He answered “Not, not completely but a little bit”. GX denied that he made up that incident because he had been caught out by SX or that he “was making up his evidence today”. He was then asked (at T295.26):
“Q. Is it your evidence that you said it to make her feel better?
A. Yes.
Q. To get her off your case?
A. No.
Q. Just to make her feel better?
A. To try and calm her down.”
GX said that he remained at SX’s home and answered her questions “Out of respect”. He said that he did not leave because it was coming out in the open and he thought “Well, the truth has to come out”. The truth, he said, was that Sarah had kissed him. He later said that all the doors in the house were deadlocked. He said that he did not ask his aunt to open them “out of respect”.
A little later, the Crown asked GX (T296):
“Q. Well you weren’t forced to remain at her house were you?
A. Out of respect.
Q. You weren’t forced to answer questions?
A. Out of respect.”
During cross-examination, GX was asked about the iPad conversation (T299):
“Q. What do you mean? What did you mean?
A. I thought that's what [SX] wanted to hear.
Q. So you only said that because you thought that's what your aunt wanted to hear?
A. Trying to calm her down.
Q. So just to be crystal clear, she's levelling serious sexual inappropriate conduct by you on a child, and you're answering to keep her happy. Is that your evidence?
A. Yes.
Q. Isn't the reason why you're giving a little bit of information is you're trying to stop her from going to the police because you know you're guilty?
A. No. No.
Q. So you feed her out just a little bit of information in the hope that that will calm her down and that information is true?
A. I haven't denied what happened but when I say probably other occasions or whatever that line was--
Q. ‘A couple more’, it was?
A. Couple more, that's because she's telling me that it happened multiple times and all she wanted to hear was that it happened multiple times so I just said, ‘Okay’.”
Later in cross-examination, GX was asked about the iPad conversation (T307-308):
“Q. Now, we heard you crying at one stage. In fact, it might have been described as sobbing, do you agree with that?
A. Yes.
Q. It was then, I suggest, that you were crying like that because you were guilty and you got caught-out by your aunt?
A. No, no.
Q. That's why you made a heartfelt apology to your aunt, because the act was up and you had been exposed?
A. I was terrified but I was scared.
Q. So, you're crying because you were scared, is that what you're saying?
A. And terrified.
Q. And terrified?
A. Yes.
Q. Is that your evidence?
A. (No verbal reply)
Q. Weren't you crying when you were making your apology?
A. I, I believe so, but that's because I had been threatened and I had just realised that I'd admitted to something that wasn't true.
Q. See, isn't it the case that you did sexually abuse [Sarah] in the manner that she's described to the jury?
A. No.
Q. That's why you were crying--
A. No.
Q. --because you were guilty?
A. No.
Q. You thought it was in the privacy of the home with [SX], no one will find out except [SX]?
A. No.
Q. That's why you made some admissions?
A. I made admissions to what happened?
Q. You made some admissions, you agree with that, didn't you?
A. I've - yeah I haven't denied, I've admitted to some, but not to what the - has been described.”
Near the end of the cross-examination by the Crown, GX was asked if he was saying that at the ages of 15 to 17 he did not know that behaving sexually inappropriately with a child was wrong, and he replied “No, I’m saying at 15 and 16, yes, more than likely, I would have known that it’s wrong. But I’m trying to say that I put a stop to it when it first happened” (T308).
It was put to him that he continued to say on the recording “and I knew that it should never have happened in the very first place. I don’t know why it sort of carried on for”. When asked if it carried on as he stated he said “I don’t know why it carried on because I’m not the one that instigated it. I don’t know why [Sarah] c[a]me back for a second time”. GX denied that it carried on more than two times (T308). GX agreed he said to SX in the recording “Yes, yes” when asked if he was part of sexually inappropriate behaviour with Sarah, “the kind of behaviour that doesn’t happen between cousins” (T309).
Evidence of FX
FX gave evidence after GX. FX said that he was born in October 1983. He was 34 years old when he gave evidence at the trial in June 2018. He said that during the iPad conversation, SX was mostly calm but at some points she was quite erratic - yelling and slamming her hand on the table which was out of character for her. When asked why he made admissions of sexual misconduct with Sarah, he said he had been threatened. FX said he felt scared and trapped, but did not leave because “She was our aunty. We had the utmost respect for her even as kids growing up. We always respected our, our aunty and felt we needed to be there to resolve the issue”.
In relation to a statement made in the iPad conversation, FX said he was getting pressured from SX and at the same time his brother was telling him “We need to say something otherwise she will not let up or let them leave”.
FX said that he could remember a couple of occasions of inappropriate behaviour. There was an occasion at the family home where Sarah touched him on his crotch on the outside of his clothing. He said “At the time, I didn't think much of it and pushed her hand away. Probably not quick enough pushing her hand away as I should have”.
In later cross-examination by the Crown, FX said that he estimated that he was 14 or 15 years old at the time of this incident, and that Sarah was five or six years of age.
There was one other occasion that FX said that he remembered. Sarah came into her father's office at the family home and sat on his lap as they watched Sarah’s brother play a computer game. Sarah moved her hand behind his lap and touched his crotch. FX pushed her hand away. In later cross-examination, FX said that he was “maybe 17 years old” at the time of this incident and said that Sarah was “grabbing” his penis. There were a few other times when he and others would be watching a movie and Sarah gave him a “peck on the lips”. FX said he did not think anything of it at the time.
FX was asked about part of the iPad conversation (see [45] above) in which he said, amongst other things, “No, no, total honesty, there might have been more times when I've asked her to touch me basically where it's extremely inappropriate”. FX gave the following response (T323):
“I was trying to agree with [SX] because she was accusing herself. And she wasn't going to allow us to say that it was her daughter's fault or anything, like, of the kind. She, she clearly believed what she had been told and we had to admit that it was our fault, felt like we had to.”
In cross-examination by the Crown, FX agreed that his evidence was that he made admissions during the iPad conversation out of respect for his aunty. A significant issue in the appeal concerns the cross-examination of FX by the Crown concerning what were said to be similarities between the evidence of GX and FX. FX was asked by the Crown (T339-340) (emphasis added):
“Q. You told us yesterday that you made admissions to [SX] because you felt threatened regarding your family and the police and the like?
A. Yes.
Q. You told us you made admissions out of respect to your aunty, is that right?
A. Yes.
Q. Is that your evidence?
A. Yes.
Q. You heard your brother say that as well didn’t you?
A. Yes.
Q. Do you think it’s a bit of a coincidence that you’re both there admitting to child molestation and you’re both saying that you’re doing that as respect to your aunt?
A. Sorry, can you repeat what the question was?
Q. Do you think that it’s a bit of a coincidence that both of you make admissions to doing inappropriate things with [Sarah], sexually inappropriate things with [Sarah], and you both say, ‘I said that out of respect for my aunt’?
A. No, not a coincidence.
Q. You don’t think that is a bit of a ring of you copying him or him copying you as to the reason why?
A. No.
Q. Are you seriously asking this jury to accept that you would admit to child interference or child molestation out of respect for the aunt, is that your evidence?
A. Can you repeat the question, I don’t understand what your question is?
Q. You admitted to be sexually inappropriate with [Sarah]?
A. Yes.
Q. On many occasions?
A. Yes.
Q. That’s what you said?
A. Yes.
Q. You’re telling us now that’s not the case, isn’t it?
A. Correct.
Q. You’re saying there’s only these two incidents that were her fault?
A. Yes.
Q. And these pecks and they are her fault?
A. Yes.
Q. So you admitted to [SX] that you had done these things on many, many occasions, your word, many, many occasions?
A. Yes.
Q. And you did that and you say that’s a lie, is that right?
A. Yes.
Q. So you told a lie about molesting a child out of respect for your aunt, is that your evidence?
A. Yes, I had - I felt like I had no choice but to admit.
Q. I’m not asking you about the choice at this stage, I’m asking you about why you said it to your aunt because you respect your elder, is that why?
A. Correct, yes.
Q. It’s respectful to lie to your aunt, is that correct?
A. Sorry, say that again?
Q. Is it respectful to lie to your aunt?
A. No.
Q. You agree you told lies in the recorded interview with her?
A. Yes.”
FX denied that he was copying evidence he had heard GX give to explain why he had made admissions during the same conversation. The Crown had not cross-examined GX by suggesting that GX and FX were copying each other in their explanations for things said in the iPad conversation. Nor was there any application for GX to be recalled to the witness box to allow any propositions to be put to him by the Crown before the evidence concluded and closing addresses commenced. I will return to this issue when considering Grounds 5 and 6.
FX agreed that, in the iPad conversation, he admitted to being sexually inappropriate with Sarah on many occasions and that his evidence was that those admissions were a lie. FX agreed that his evidence was that he lied to his aunt about molesting a child out of respect for SX. He said that he felt that he had no choice but to admit it.
FX agreed that his evidence was that he admitted to being sexually inappropriate with Sarah on many occasions and apologised profusely, and that it was all a lie to get out of the room and pacify his aunt, to calm her down.
FX agreed that he had heard GX say that he was doing the same - lying to pacify his aunt and calm her down. FX agreed that at the time of the iPad conversation he was 32 years old, married with children and had worked since he left school.
On the way home from SX’s home, after the iPad conversation, FX said he and GX called their mother and told her that they had been accused of sexual behaviour with Sarah.
FX gave evidence that he made admissions in the telephone call he received from Sarah on 14 September 2016 (the pretext call, Exhibit B) because he had been living with anxiety since leaving SX's house and it had a flow-on effect.
FX said that he had not, as he told Sarah, had psychological issues related to his abuse of her for which he received treatment. Rather, he used a previous life experience unrelated to Sarah to try and defuse the situation. He said that during the call, his wife was telling him to say sorry and try and get Sarah off the phone.
During cross-examination, FX was asked (T343-4) (emphasis added):
“Q. You see, this idea now that you’ve somehow lied in this document or in this recording, that’s the version that you’ve made up for the jury now to cover for all the admissions you made?
A. No.
Q. You’ve rehearsed and practised what you’re going to say in the witness box haven’t you?
A. No.
Q. Whereas you didn’t even know this was being recorded, did you?
A. I didn’t know it was recorded, no.
Q. This was a private conversation, wasn’t it, between you and your aunt?
A. Yes.
Q. A bit like what happened with you and [Sarah], it was in private, wasn’t it, nobody knew?
A. Nothing ever happened, nothing ever happened.
Q. Nobody knew about that and you didn’t know that this was going to be used did you?
A. Nothing ever happened.
Q. That’s why you said, you thought if you apologise to her privately it would all just go away?
A. No.”
Although the Crown put to FX that he had “rehearsed and practised” what he was going to say in evidence, this proposition was not put to GX when he gave evidence.
Soon after, FX was asked (T344-345) (emphasis added):
“Q. During a conversation that lasted an hour and a half, you agreed to being sexually inappropriate on many, many occasions, you apologise profusely, and that was all a lie?
A. Yes.
Q. It was all a lie just to get out of the room and to pacify your aunt?
A. Correct.
Q. To calm her down?
A. Yes.
Q. Is that right?
A. Yes.
Q. That’s what [GX] says he was doing, calming her down, it’s the same, isn’t it?
A. Yes.
Q. It’s the same, he said he lied as well just to pacify his aunt, to calm her down?
A. Yes.
Q. Your story and [GX’s] story is exactly the same for what happened when you made your admissions on that iPad isn’t it?
A. Not exactly the same.
Q. Well no, what you say she did, touched your penis twice, is a bit different to what [GX’s] says?
A. Yes.
Q. The story that you’re telling us today is slightly different to what [GX] says but you agree that you were seeking her forgiveness weren’t you?
A. Yes.
Q. Extremely sorry for the pain and suffering?
A. Yes.
Q. That was all a lie?
A. Yes.
Q. Tell me this Mr [X], why would the jury believe the version that you’re telling us now in the witness box and not the version in the iPad?
A. Because there were being - there was threats made to us, to me.
Q. Threats that she might go to the police?
A. She would go to the police if she didn't get the answers she wanted to hear.
Q. But if you hadn't done anything wrong what was the problem with her going to the police?
A. In that moment that's what we were - that's what I was thinking about. I was worried, going to lose my family. I was going - she was going to go to the police if we didn't tell her what she wanted to hear, what she thought, she believed.
Q. And you were both in absolute unison on that, weren't you? You're both thinking exactly alike --
A. Yeah.
Q. -- you and your brother?
A. I don't know what he was thinking. I can't comment for what he was thinking at the time.
Q. Well, you heard his evidence yesterday. You heard what he said.
A. Yes. Yes.
Q. And your evidence is exactly the same, isn't it?
A. Similar.”
In cross-examination (T351-352), FX was taken to a portion of the call in which he had said “I am so sorry, because I am immensely - it makes me sick to my stomach that I could have done something like that”. FX agreed that Sarah didn't overbear his will or threaten him. He agreed that he said “I didn't say I didn't remember. I said that I'm not that person any more” and “I was naïve and stupid idiot, and I don't know what possessed me to do the things I did”, but gave evidence that he said these things because he was trying to defuse the situation. He did not hang up because it was a flow-on effect from the iPad conversation and he was worried.
FX was asked in cross-examination (T353-355):
“Q. So you were caught out three times, weren't you? You were caught out with the iPad, you were caught out with the phone call from [Sarah] and you were caught out with the listening device in the cells, weren't you?
A. No, no.
Q. And on two of those occasions you made admissions to doing things to [Sarah], that's right isn't it?
A. Some general admissions, yes.
Q. ‘I don't know what possessed me to do the things I did.’?
A. Yes.
Q. You see, you didn't know they were being recorded, you thought they were private, didn't you?
A. I didn't know they were recorded, no.
Q. So you thought they were private conversations, didn't you?
A. Yes.
Q. And that's why you admitted them to get her off your back?
A. No.
…
Q. Then you go on at 8 to say, ‘It doesn't - it does nothing to excuse what I did. I'm not saying - I'm not trying to come up with excuses, don't get me wrong. What I did was absolutely wrong and disgusting.’
A. Yes.
Q. ‘There was no excuse, I'm telling you there's no excuse and if I had - if I had to go back in time, knowing what I know now, I would not have even - that stuff would not have happened. Honestly, I'm not that, um, person.’ That's what you said, didn't you?
A. Yes.
Q. And you said that because you were trying to excuse your conduct, you were trying to excuse your conduct?
A. No.
Q. Then over the page at 9. ‘Everybody makes mistakes, because I've made huge mistakes in my life.’ And then page 10, about halfway down, ‘They weren't…the same, they were all the same because…disgusted in not…telling them and they could hear the sincerity in my voice that the grief, how sorry I was and how disgusted I was in myself’. This is when you were telling your family, is it, you're relaying to her when you told your family?
A. Yes.
Q. ‘Because I was crying my eyes out, I was extremely sick to my stomach telling them all of this.’ So why were you sick to your stomach if you were simply telling your family that [Sarah] touched you twice?
A. Because it's - it's - it didn't happen.
Q. This is another lie, is it, this passage?
A. No. I told my parents and the fact that I felt disgusted with myself is because I - how could I have even let this happen.
Q. What, those two minor incidents?
A. Yes, and how could it be construed into something else.
Q. So you were crying your eyes out for yourself, were you, when you told your family?
A. No, I was crying my eyes out because I was worried and terrified and scared.
Q. You said, ‘Okay, I was saddened with myself and they were disgusted’?
A. Yes.
Q. Then you go on to say a bit further down the page, ‘[Sarah] I'm trying to say it to you. I'm disgusted in the way I've acted and I'm extremely sorry. I understand what you're saying, I've - [Sarah] I'm not making excuses for myself and I'm extremely sorry’. See, isn't that your attempt to try and get [Sarah] to drop the issue and move on? That's your attempt, isn't it? That's why you're apologising?
A. Yes, I'm trying to diffuse [sic] the situation and end the conversation.”
Other Evidence in Defence Cases
The Applicants each relied on evidence from their first cousins. Each gave evidence that they spent time with the Applicants when they were young and nothing of a sexual nature had occurred when they were alone together with FX or GX.
Evidence was given by the Applicants’ mother, XX, regarding operations FX had had on his penis and its appearance. From about September 1997, the Applicants’ family had installed a partition to separate the two parts of the duplex in the family home from which time XX occupied a bedroom in the main house near those of the Applicants and that, between 2 October 2002 and 2006, there were three or four times “max” that Sarah and her parents and brother had stayed on their farm in the coastal town. From late May 2004, the cabin on their coastal property was occupied by tenants. XX said that there was no television in the pop-up caravan on the property. XX said that she had spoken to both of the Applicants together on loudspeaker after their conversation with Sarah’s mother and after they came home she asked them whether there had been any inappropriate behaviour and they said “No”.
In cross-examination by the Crown, the Applicants’ mother said that her sons told her that SX had threatened them and that “They had to agree to something otherwise she wouldn't let them out of the house”. XX said that each of the Applicants had told her they confessed to sexually inappropriate behaviour with Sarah. XX asked them what that included. When asked what they said in response, XX stated (T369):
“My younger one said that she had gone up and kissed him a couple of times. My older one said that she had sat on his legs once and then she conveniently put her hands under - under her bum and started to grab him, or his genitals, and another time they we replaying [sic] Indian wrestling and then she just grabbed his genitals.”
Further parts of the transcript and the summing up will be referred to when considering the grounds of appeal.
Hearing in the Court of Criminal Appeal
It is appropriate to say something concerning the manner in which the hearing in this Court unfolded on 19 February 2020.
Until the day of the hearing in this Court, the Applicants were represented by Mr Lange of counsel who furnished a single set of written submissions dated 30 August 2019 on behalf of his clients.
At the commencement of the hearing in this Court, Mr Odgers SC announced his appearance for GX with Mr Lange continuing to appear for FX. Both were instructed by the same solicitor who had instructed different counsel at the sentencing proceedings concerning FX and GX but not at their trial. No written submissions had been furnished to the Court by Mr Odgers SC.
The Crown later informed the Court that the Crown was unaware that there was to be a separate appearance for GX before Mr Odgers SC announced his appearance at the commencement of the hearing (T35, 19 February 2020).
Mr Odgers SC informed the Court that he had been briefed some two weeks prior to the hearing and that he understood that his instructing solicitor had informed the Court that there would be a separate appearance by him for GX at the hearing. No communication had been made with the Court to this effect, and certainly the Judges who constituted the Court had no prior knowledge that there was to be separate representation for GX.
The hearing proceeded upon the basis that Mr Odgers SC adopted Mr Lange’s written submissions with him addressing the Court in support of the grounds of appeal filed on behalf of each of the Applicants.
Mr Lange addressed the Court first. At one point in his submissions, Mr Lange sought leave to add a further ground of appeal. This course was opposed by the Crown and the Court declined to allow the addition of a further ground of appeal (T19, 19 February 2020).
When Mr Odgers SC addressed the Court, the Court formed the view that he was advancing submissions which appeared to address a ground of appeal which had not been filed. As a result, submissions were heard as to whether GX should have leave to rely upon an additional ground of appeal, a course opposed by the Crown which the Court declined to allow for reasons expressed in the transcript of the hearing (T34-36, 19 February 2020).
As a matter of procedure, it is important that where there is to be separate representation of an applicant who has previously been represented jointly with another applicant, the Court should be informed promptly of this development. A written submission ought be provided by the new counsel which confirms that reliance is to be placed upon the existing grounds of appeal and the submissions already made by counsel for the Applicants, accompanied by any short additional written submissions which are intended to be made. Such additional written submissions should be provided to the Crown in advance of the hearing, and at the earliest opportunity, so that the Crown is aware that separate counsel is to appear for an applicant previously represented jointly by other counsel and that further submissions are to be made for that applicant.
The way in which these matters unfolded at the hearing gave rise to practical difficulties which can be traced back to what was, in effect, the surprise appearance of Senior Counsel for GX previously not communicated to the Crown or the Court, and without any confirmation in writing of adherence to existing grounds and submissions, let alone provision of written submissions containing additional arguments to be advanced to the Court.
This Court operates upon the basis that each counsel who is to appear at the hearing of an appeal (especially a conviction appeal) is identified with written submissions being furnished by that counsel to the Crown and the Court in a timely fashion in advance of the hearing.
What occurred in these appeals should not be repeated in other proceedings.
Ground 1 - A Miscarriage Arose as a Result of Joinder of Counts Pertaining to FX and GX Contrary to the Requirements of s.29 Criminal Procedure Act 1986
Ground 2 - Alternatively, a Miscarriage of Justice Arose as a Result of the Applicants Being Tried Jointly
Submissions for the Applicants
In written submissions made on behalf of the Applicants, Mr Lange invited the Court to consider these grounds together. It is convenient to adopt that approach.
Although no application for separate trials was made in the District Court, Mr Lange submitted that the joinder of counts concerning FX and GX was contrary to the requirements of s.29 Criminal Procedure Act 1986. He submitted that this case was unusual in that the Crown did not allege that each Applicant committed offences against Sarah jointly, but rather that FX and GX had committed offences against the same complainant on entirely different occasions.
It was submitted that the joinder of the counts concerning FX and GX should not have occurred as the alleged offences did not constitute “part of a series of offences of the same or a similar character” under s.29(2)(c) Criminal Procedure Act 1986. In this respect, reliance was placed upon the decision in De Jesus v The Queen (1986) 61 ALJR 1 at 9; [1986] HCA 65.
Whilst accepting that the offences with which each Applicant was charged formed part of a series, it was submitted that it could not be said that the offences committed by FX and the offences of GX constituted a single series. Instead, it was submitted that there were two series and that the counts relating to FX should not have been joined to those related to GX. It was submitted that, in the absence of consent by the Applicants, s.29(2) precluded the joinder of Counts 11 to 18 to the remaining counts.
Mr Lange noted discussions before the commencement of the trial as to whether there would be an application for separate trials. He acknowledged that counsel for the Applicants at the trial informed the Court that he would not be pressing an application for separate trials. Mr Lange submitted that the decision not to pursue a separate trial application, or to consent to the joinder of the counts (if that was what occurred), rested upon the view of trial counsel concerning the admissibility of recordings of conversations including the iPad conversation, the pretext conversations between Sarah and each of the Applicants and the recording of the conversation between the Applicants whilst they were in police custody.
Mr Lange submitted that the failure of counsel for the Applicants to object to their being tried on a joint indictment did not stand in the way of the first ground of appeal: De Jesus v The Queen at 3.
Mr Lange submitted that the Applicants had not consented to joinder for the purpose of s.29(2)(a) Criminal Procedure Act 1986. He submitted that what occurred in the District Court in this case ought be characterised as acquiescence, and not consent to joinder, with this distinction (it was submitted) being important to the proper construction and application of s.29(2).
Reliance was placed upon R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 at [43]-[46]. It was submitted that what the law requires is actual consent, and that submission or acquiescence will not be enough: Young, “The Law of Consent”, Law Book Company Limited, 1986, page 5. Mr Lange relied upon R v Sepulveda [2003] NSWCCA 131 at [33] in support of a submission that s.29(2)(a) requires express consent and that unexpressed consent will not suffice.
With respect to the alternative complaint in Ground 2, Mr Lange submitted that Sarah’s credibility would have been significantly enhanced by the joinder because it would have been, practically speaking, impossible for the jury to limit its consideration of Sarah’s allegations in respect of one of the Applicants to the evidence properly admissible against him alone. Reliance was placed upon the judgment of R S Hulme J in R v Pham [2004] NSWCCA 190 at [8] in support of this proposition.
Mr Lange submitted that the matters complained of in Grounds 3 to 6 supported a conclusion that a miscarriage of justice had resulted from the joint trial of the Applicants so that Ground 2 should be upheld upon this basis.
Mr Odgers SC adopted the submissions of Mr Lange in support of the first and second grounds of appeal.
Crown Submissions
The Crown submitted that counsel for the Applicants in the District Court consented to joinder for the purpose of s.29(2)(a) Criminal Procedure Act 1986. It was submitted that what occurred here involved consent and not submission or acquiescence. Counsel for the Applicants took instructions from his clients and what happened thereafter reflected a considered decision to not press an application for separate trials, a decision which constituted consent in the circumstances of the case.
By the time that counsel for the Applicants informed the Court that there was to be no application pressed for separate trials, it was clear that rulings had been made allowing the various recordings into evidence which were capable of being treated as admissions by one or other of the Applicants of the offences charged against that Applicant. It was submitted that this supported the view that the Applicants had made a considered decision and had given instructions to their counsel that the trial should proceed as a joint trial.
Putting the admissions to one side, the Crown submitted that it was not the case that all of the statements made by GX in the iPad conversation were inadmissible against FX. FX relied upon pressure he claimed was brought to bear on him by SX during the iPad conversation. Although there were bodies of evidence admissible against one Applicant that were not admissible against the other, none of the inadmissible evidence implicated the other Applicant or was otherwise prejudicial to him.
The Crown submitted that R v Pham involved very different circumstances from the present case. It was submitted that, in the present case, the nature of the evidence admissible against each of the Applicants was very similar. Aside from the admissions made by each Applicant, which were confined to their own conduct and did not inculpate the other Applicant, the Crown submitted that there was no independent evidence corroborative of Sarah so that the present case was quite different to R v Pham.
The Crown relied upon Decision Restricted [2019] NSWCCA 276 at [68] where the Court (Payne JA, Harrison and N Adams JJ) said that R v Pham did not establish an additional or different test to that described in R v Middis (Supreme Court, Hunt J, 27 March 1991, unreported). Further, what R S Hulme J said in R v Pham at [8] did not constitute a statement identifying a separate principle to be applied by a trial Judge. Rather, the decision in R v Pham was highly fact dependent.
The Crown submitted that the present case is qualitatively different to R v Pham. It was submitted that the argument for the Applicants that Sarah’s credibility was significantly enhanced by the joinder of counts is without foundation. The jury were given a firm direction that they were to treat the case against each Applicant separately and the Court should proceed on the assumption that the jury acted in accordance with those directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31].
The Crown submitted that the Applicants’ decision to consent to the joinder of counts should be considered in the context of the absence of prejudice occasioned to either of them by the joinder, as well as other common features in the evidence that drew the matters together. Some of the offences charged against each Applicant occurred in the same locations so that evidence about when and where each of the families lived was relevant to both cases. That evidence came from a number of sources, including Sarah and her mother, SX.
Both Applicants were confronted at the same time and in the same circumstances during the iPad conversation recorded by SX. Further, the Applicants called their mother after the iPad conversation and together had a conversation with her about it on which they both relied. There were aspects of the evidence where one Applicant relied upon the evidence of the other at trial.
With respect to Ground 6, the Applicants submitted that, when the trial Judge was reminding the jury of the Crown submissions, the following should have been said immediately after the extract from the Crown closing address at SU68 (see [267] above):
“However, I direct you that, while you may consider in the case against each accused whether you consider plausible their explanations for admitting to [SX] that they engaged in inappropriate sexual behaviour with the complainant, you must not reason that, because of the similarities in those reasons given by each accused, they had jointly concocted and rehearsed a false explanation for those admissions. That suggestion was not put explicitly to [FX] in cross-examination, and it was certainly not put to [GX], and it would be unfair for you to engage in that reasoning against either.”
As noted earlier (at [258]), the Crown had put to FX in cross-examination that his evidence was “rehearsed” and “prepared” after hearing the evidence of GX, but GX had not been cross-examined as having constructed with FX a “rehearsed” or “prepared” account to be given in evidence. Nor was it proposed that GX be recalled to allow these propositions to be put to him before closing addresses.
With respect to the proposed directions contained in the document provided after the hearing, the Crown did not submit that the directions now proposed by the Applicants in respect of Grounds 3, 4 and 5 are wrong or that it would not have been appropriate for the trial Judge to give them had they been requested. However, the Crown submitted that it was not necessary for the trial Judge to direct the jury in the manner suggested under Ground 6 having regard to the submission made by the Crown Prosecutor.
The Crown submitted that discussion of these draft directions did not advance the ultimate issue before this Court, namely whether the trial Judge erred in failing to give any one or more of the directions now suggested on behalf of the Applicants and, if so, whether the failure to give the direction or directions gave rise to a miscarriage of justice as against either Applicant.
The Crown submitted that it is not to the point that counsel who now appear for the Applicants would, if they had been appearing for the Applicants at the trial, have conducted the trial differently or sought further directions or that, with the advantage of time, it might be possible to perfect the directions that were given.
The Crown submitted that the failure to give the directions now sought did not, either individually or in combination, give rise to a miscarriage of justice as against either Applicant.
With respect to the proposed directions under Ground 5, said to be in the alternative, the Crown submitted that they cannot be properly characterised as being alternative submissions. The Crown submitted that they raise different aspects of the evidence given by the Applicants at trial and that the second alternative formulation now suggested does not fall within Ground 5.
Decision on Grounds 3, 4, 5 and 6
Rule 4 Criminal Appeal Rules applies to Grounds 3, 4 and 5.
In Roach v R, the relevant principles concerning Rule 4 were set out at [40]-[42]:
“40 With respect to r 4, McHugh J said in Papakosmas v The Queen (1999) 196 CLR 297 at 319; [1999] HCA 37 at [72]:
‘There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant’s conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.’
41 This and other authorities in relation to r 4 were collected by Heydon JA (as he then was) in R v Button; R v Griffen (2002) 129 A Crim R 242 at 253-255; [2002] NSWCCA 159 at [31]-[35]. It is also worth repeating the observations of Mahoney JA (as he then was) in R v Jeffrey (Court of Criminal Appeal (NSW), 16 December 1993, unrep):
‘In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing-up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. … But it is important that, if a citizen is to be tried, he be tried once and for all. The evil both of objections ‘held in reserve’ and raised only on appeal and of second and subsequent trials is great.
Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. Not infrequently this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4. In the end, the court must exercise the power given to it by r 4 according to the merits of the individual case. However, in my opinion, in exercising that power, the court should keep steadily in mind the function which r 4 performs in the criminal trial process.’
42 In ARS v R [2011] NSWCCA 266, the Court (Bathurst CJ, James and Johnson JJ agreeing) referred to McHugh J’s statement in Papakosmas v The Queen and then continued at [148]:
‘Subsequent cases have established that the following matters are important in considering the operation of r 4:
The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also [2011] NSWCCA 62 at [170].
The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].
A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].
An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].”
The matters raised by Grounds 3, 4, 5 and 6 involve overlapping issues. They concern the way in which aspects of the evidence at the joint trial of the Applicants are now said to have given rise to error and unfairness to one or other of the Applicants so as to constitute a miscarriage of justice for one or both of them.
With respect to Ground 3, there is some force in the submission made for the Applicants that a clear and direct statement ought to have been made to the jury by the trial Judge that allegations against FX were inadmissible against GX and vice versa and that the absence of a clear statement to this effect raises for consideration the question whether a miscarriage of justice has resulted.
A related ground is contained in Ground 4 where complaint is made that there was no express statement by the trial Judge to the jury that statements made by one Applicant during the iPad conversation were not admissible against the other Applicant. Once again, the preferable course would have been for such a direction to have been given. However, the question is whether unfairness has been demonstrated to one or other or both of the Applicants in this respect and whether a miscarriage of justice has resulted in the sense that either Applicant has lost a real chance (or a chance fairly open) of acquittal.
With respect to Ground 5, there is force in the Crown submission that the second allegedly alternative limb of the direction sought by counsel for the Applicants in truth sought to raise a fresh ground of appeal.
The remaining complaint contained in Ground 5 once again gives rise to concern with respect to the blurring in the trial of the limitations upon the use of evidence of what one Applicant said and the need to ensure that the jury considered only evidence admissible against one Applicant in reaching verdicts concerning that Applicant.
There were some unusual features of this trial which rendered it difficult to untangle aspects of the evidence. The iPad conversation involved a three-way conversation between SX, FX and GX and, once it was held to be admissible, it would have been virtually impossible to edit it in a manner which would leave it intelligible. Further, the recording of the iPad conversation and the evidence of each of FX and GX concerning that conversation suggest that each Applicant took into account what the other said, and why he had said it, in a manner which would make it difficult to redact the iPad conversation and any transcript of it in a meaningful way.
Although the Applicants were not alleged to have committed any offences jointly, it was the case that each of them were brothers and that Sarah alleged that offences were committed in the same premises at different times. There was common evidence which affected the allegations in that way. Further, part of the evidence was the recording of a conversation between the Applicants when they were both located in a police cell after they had been arrested.
Although it is possible to identify what would have been, in several respects, preferable directions to be given to the jury in the context of this trial, the question is whether the failure to give the directions advanced in this Court has given rise to a miscarriage of justice for either Applicant in the manner explained in Roach v R at [290] above. I keep in mind that a fair trial does not mean a perfect trial: ML v R [2015] NSWCCA 27 at [69].
The following features are of particular relevance in the unusual circumstances of this trial.
Firstly, the iPad conversation was admitted at trial and that ruling is not challenged in this Court. The iPad conversation involved a discussion in which each Applicant made damaging admissions concerning his conduct towards the complainant with respect to events which did not take place in the presence of the other Applicant. It was clear that admissions made by one Applicant related to him alone. The three-way conversation between FX, GX and SX during the iPad conversation entangled the accounts given by FX and GX in a way that served to explain why a joint trial was sought by the Crown and consented to by the Applicants. This is confirmed by the opening address to the jury by counsel for the Applicants and the manner in which the trial was conducted on behalf of each Applicant.
Secondly, each Applicant gave evidence at the trial and gave similar explanations to the jury for admissions made by each of them to SX during the iPad conversation. It was open to the Crown to cross-examine FX (who gave evidence after GX) and to suggest that there was a desire on the part of FX to adopt the same line of defence or explanation concerning what had been said by each of them to SX in the iPad conversation. It was put to FX that his answers in evidence had been “rehearsed” (see [116] above). However, a problem arose for GX in the way in which FX was cross-examined about this in a manner which was damaging to GX without GX having been cross-examined on these matters. This was compounded by the Crown closing address which attacked GX as well as FX in this respect. The trial Judge repeated the Crown submission on this issue to the jury without qualification or further direction. Of course, her Honour was not asked to give a further direction. Thus, Rule 4 is raised and it is necessary to consider whether GX should be granted leave in this respect.
Thirdly, admissions had been made by each Applicant as well during the separate pretext conversations with Sarah so that it was necessary for each Applicant to seek to explain why those things had been said. It is the case that FX made clearer and more damaging admissions to Sarah than did GX in his separate telephone conversation. This was a notable area of difference between the Crown cases against each Applicant.
Fourthly, each Applicant sought to explain what appeared to be cogent admissions asserting sexual interest on the part of the very young complainant - there were overlapping lines of defence adopted by each Applicant which the jury was well entitled to reject.
Fifthly, in these ways, the trials of each Applicant were intertwined, largely by their own words in recorded conversations and in evidence at trial, so that this provides the context or setting in which the Court must consider the claim that one or both of the Applicants lost a real chance (or a chance fairly open) of being acquitted because trial counsel did not seek directions as now sought under Grounds 3, 4 and 5.
It is necessary to consider the position of each Applicant separately. I have considered the submissions made for each Applicant. Mr Odgers SC submitted that GX suffered unfairness through the failure of the trial Judge to give directions to the jury, in particular to remedy the matters complained of in Grounds 5 and 6.
In the atmosphere of this trial, the fact that counsel appearing for each Applicant made no application for any further direction is significant. It indicated that counsel did not consider there was unfairness for either Applicant as a result of the directions given to the jury. I observe that no ground or submission asserted that trial counsel for the Applicants was incompetent: TKWJ v The Queen at [79]; Davis v R [2017] NSWCCA 257 at [59]; Roach v R at [154]-[158].
A real area of concern and unfairness to GX arises from the cross-examining of FX in a manner adverse to GX and the Crown submission which was critical of GX, advanced in the absence of cross-examination of GX on those matters. The trial Judge repeated the Crown submission to the jury (see [267] above). I am satisfied that this combination of events gave rise to unfairness to GX in the context of this trial. GX lost a real chance of acquittal as a result so that he should be granted leave under Rule 4 to rely upon Ground 5 in this respect as a miscarriage of justice has been demonstrated. I would uphold Grounds 5 and 6 with respect to GX as a result.
I am not persuaded that FX lost a real chance of acquittal as a result of the matters complained of in Grounds 3, 4 and 5. FX has not demonstrated unfairness in the trial nor a basis upon which he should be granted leave to rely upon Grounds 3, 4 or 5.
Nor am I persuaded that FX has made good Ground 6 insofar as it relates to him. Any unfairness arising from the Crown closing address affected GX only.
Returning to Ground 2
It is appropriate to return at this point to Ground 2 which asserted that a miscarriage of justice arose as a result of the Applicants being tried jointly. I noted earlier (at [210]) that I would return to this ground after Grounds 3 to 6 had been considered.
The Applicants consented to a joint trial for the purpose of s.29(2)(a) Criminal Procedure Act 1986. For the purpose of considering Ground 2, I am prepared to assume (without deciding) that it is open to a convicted person to seek to appeal against conviction asserting a miscarriage of justice as a result of being tried jointly with another person, even where an application for a separate trial was not made.
It is appropriate to consider after the event whether a miscarriage of justice has occurred as a result of the Applicants being tried jointly: R v Pham; DR v R [2019] NSWCCA 320 at [18]ff.
This was an unusual trial where the evidence to be adduced by the Crown (in particular the iPad conversation and the conversation between the Applicants whilst in custody) and the response of each Applicant to the charges brought against him were such that a joint trial was considered appropriate by the parties. Having considered the areas of evidence which bore upon this approach, this was an understandable position so that the holding of a joint trial itself was not contrary to law nor did it give rise to any inevitable injustice.
The evidence of each Applicant before the jury, and the common approach of each of them in response to the charges, tended to fortify the approach that a joint trial was appropriate. Each Applicant sought to explain what he had said in the iPad conversation in a similar way.
However, for reasons expressed (at [300]-[307] above), I am satisfied that GX has demonstrated a miscarriage of justice arising from his joint trial with FX in the particular and confined respect arising from the cross-examination of FX, the Crown closing address and the trial Judge’s summary of the Crown closing which operated unfairly to GX so that he lost a real chance of acquittal. The Crown case against GX was not as strong as the case against FX which contained telling and repeated admissions made by him to SX and (importantly) to Sarah in the pretext call.
Apart from that aspect of the trial, however, I am not satisfied that any other feature of the joint trial of the Applicants resulted in a miscarriage of justice for either of them.
I would uphold Ground 2 in this confined respect concerning GX, but otherwise dismiss the ground with respect to GX and FX.
Ground 7 - A Miscarriage of Justice Arose as a Result of Aspects of the Crown Prosecutor’s Closing Address to the Jury
Submissions for the Applicants
Counsel for the Applicants submitted that aspects of the Crown closing address to the jury gave rise to a miscarriage of justice in accordance with the principles in Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31].
Firstly, it was submitted that the Crown had contrasted the demeanour of Sarah with that of the Applicants and in doing so, expressed her personal opinion.
Secondly, it was submitted that the Crown improperly attempted to appeal to the jury’s emotions.
Thirdly, it was submitted that the Crown sought to appeal to the individual experiences of each member of the jury.
Fourthly, it was submitted that the Crown Prosecutor had referred to the evidence of the Applicants in a belittling fashion.
It was submitted for the Applicants that the cumulative effect of these Crown submissions gave rise to a miscarriage of justice, especially when this ground is considered in combination with the sixth ground of appeal.
Crown Submissions
The Crown submitted that the matters which are the subject of complaint in Ground 7 were not the subject of any complaint or application by counsel who appeared for the Applicants at trial, and that this was a strong indication that defence counsel did not regard what was said by the Crown as being improper, much less productive of a miscarriage of justice.
The Crown submitted that the aspects of the closing address about which complaint is made involved submissions which were open to the Crown in the context of the trial and which did not disclose a foundation for a finding that a miscarriage of justice occurred.
Decision
Before moving to consider the areas of complaint in the Crown closing address, it is appropriate to commence with some basic principles relevant to determination of a ground such as this. In Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330, this Court (Beazley P, Schmidt and Button JJ) said at [265]-[275]:
“265 It is convenient to begin with some basic principles governing the conduct of persons appearing as an advocate for the Crown in a criminal trial. Although what we have to say applies equally to private counsel and solicitors appearing in such a role, for convenience we shall use the term Crown prosecutor to describe such a person.
266 First, the Crown prosecutor has a special role that combines that of an advocate contending for a cause in adversarial proceedings with that of a Minister of Justice: see Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 at [54] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ); and McCullough v The Queen (1982) 6 A Crim R 274 at 285. In that fundamental sense, the role of a Crown prosecutor is different from that of a counsel appearing for a plaintiff, who bears the onus of proof in civil proceedings, and from that of accused’s counsel in criminal proceedings.
267 Secondly, a Crown prosecutor should never use language designed or calculated to inflame the jury: see Livermore v The Queen [2006] NSWCCA 334; 67 NSWLR 659 at [24].
268 Thirdly, a Crown prosecutor should take special care not to use such language when the subject matter of a criminal trial has an inherent tendency to cause the jury to react emotionally to the evidence in the Crown case. Examples that spring readily to mind are trials of horrific murders and trials of allegations of child sexual assault, crimes for which the community reserves a special abhorrence.
269 Fourthly, a Crown prosecutor is not prohibited from forcefully and firmly putting the prosecution case to the jury: see McCullough at 285; and R v Rugari [2001] NSWCCA 64; 122 A Crim R 1 at [52] (Carruthers AJ, with whom Spigelman CJ and Sperling J agreed). Nor is a Crown prosecutor prohibited from utilising rhetoric: see Libke v The Queen [2007] HCA 30; 230 CLR 559 at 600 (Heydon J). Nor is a Crown prosecutor prohibited from firmly calling upon the jury to reject defence evidence or a defence case as inherently unbelievable.
270 Fifthly, on the other hand, the Crown prosecutor must not belittle or ridicule either an accused person, or his or her evidence, or his or her case: see Livermore at [31].
271 Sixthly, a Crown prosecutor should especially eschew advocates’ tricks designed to curry favour with the judge and especially with the jury, or to gain an ulterior advantage: see Wood v R [2012] NSWCCA 21; 84 NSWLR 581 at [605] (McClellan CJ at CL, with whom Lathan and Rothman JJ agreed). An example of what may be described as an advocate’s trick, (there are many, regrettably), is asking a question in the presence of the jury that one believes or knows will be the subject of a successful objection merely in order to force that response from one’s opponent, and to cause the jury to reflect upon the subject matter of the question that will remain unanswered.
272 Seventhly, the conduct of a Crown prosecutor in a criminal trial can of itself lead to a miscarriage of justice, that can found a successful appeal against conviction: see Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 at 663-4 (Deane J).
273 Eighthly, speaking generally, no advocate in criminal or civil proceedings should place his or her personal opinion before the tribunal of fact or law, because it is irrelevant: see KNP v R [2006] NSWCCA 213 at [53] (McClellan CJ at CL, with whom James and Hall JJ agreed); R v Liristis [2004] NSWCCA 287 at [95] (Kirby J, with whom Studdert J and Hislop JJ agreed); and Rugari at [60].
274 Ninthly, speaking generally, every advocate in criminal or civil proceedings is entitled to mount a firm attack on the evidence and submissions (with regard to matters of both fact and law) placed before the court by his or her opponent. Great care should be taken, however, to ensure that a personal attack is not made upon one’s opponent himself or herself, unless there are very sound bases for doing so.
275 Tenthly, the determination of grounds such as these is very much a matter of this Court analysing exactly what was said or done, and considering it in the context of the entirety of the trial, including remedial steps (if any) taken by the presiding judge: see, for example, KNP.”
This statement of principles is not affected by the decision of the High Court of Australia in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20.
The first area of complaint was that the Crown Prosecutor expressed her personal opinion during the closing address to the jury. Reference was made to the emphasised words appearing in the following passage (T392):
“When you are assessing her evidence I would like you also, members of the jury, to keep in mind what you observed of her when she was on the CCTV. In my submission it would be fair to say that she was overwhelmed with grief. She was highly emotional, highly distressed; you saw the trauma. It didn't look to me, members of the jury, and this is a matter for you, but it didn't look staged and it didn't look like she was acting or that she'd practised that. She answered every single question that she was asked and you saw the raw emotion flood out of her every time she got to the specific event. She could give you the surrounding details and the moment she went to talk about the sexual conduct she flooded out her emotions. In my submission that was spontaneous and real. She answered every single question including the very difficult ones; some were extremely difficult.”
Complaint was made about the Crown closing address which referred to Sarah’s evidence in the following way (T393):
“Finally, just in terms of her honesty, members of the jury. She gave straightforward answers even under cross-examination when she was extremely emotional she still gave very straightforward, honest answers. And, as I said to you, when she didn't know the date she simply said, ‘I don't know’. In my submission to you she was a very believable and credible witness and you would accept her evidence beyond reasonable doubt.”
Counsel for the Applicants sought to contrast submissions made concerning the credibility of Sarah with submissions which described the evidence as the Applicants as being “rehearsed, staged, acted in my submission to you. That’s what we saw from the two … men in the witness box” (T385) (the full passage appears at [256] above).
It was submitted that the Crown had placed her personal opinion before the jury contrary to what was said in Hughes v R at [273].
The Crown in this appeal accepted that the opening words of the Crown at trial at [328] above constituted an unorthodox way of suggesting a view that might be taken by the jury, but noted that the Crown had immediately corrected herself reminding the jury that “this is a matter for you”.
I accept the Crown submission concerning this aspect. To the extent that the Crown introduced her own opinion, it was immediately qualified in an appropriate way so that there was no maintenance of a position which operated contrary to the principles in Hughes v R concerning a Crown address.
With respect to the other complaints made under the first heading advanced by the Applicants, I see no difficulty with the Crown submissions which sought to contrast the evidence of Sarah with the evidence of the Applicants. The Crown Prosecutor was entitled to forcefully and firmly put the prosecution case to the jury: Hughes v R at [269].
The second area of complaint under this ground contended that the Crown had improperly attempted to appeal to the jury’s emotions. In this regard, reliance was placed upon the following part of the Crown closing address (T391):
“I just want to talk to you now briefly about memory and then I want to talk about when [Sarah] gave her evidence. [Sarah] is relaying evidence or telling her version of events from when she was six years old to when she was 12 years old, and you saw the photo of her in exhibit A, her at five years old and her at eight years old, and you can see what a little girl she was, you can get an idea from those photos.
What I might ask you, members of the jury, to think about is think about your sixth birthday. What were you doing on your sixth birthday?”
It was submitted for the Applicants that the appearance of Sarah when she was five or eight years of age could have no logical bearing on the likelihood or otherwise of her capacity to recall events said to have taken place when she was aged between six and 12 years. It was submitted that this comment must have been intended to rouse revulsion in the minds of the jury in a manner which contravened the principle referred to in Hughes v R at [268].
The Crown submitted with respect to this complaint that the effect of the Crown submission was to remind the jury that the young woman they saw give evidence was not the young girl who had been allegedly indecently and sexually assaulted by one or other of the Applicants. The submission drew the jury’s attention to the need to have regard to the delay between the time when the offences were alleged to have been committed and the time when Sarah gave evidence and the impact of that delay on her memory. It was submitted that the fact that the Crown did so by reference to photographs did not alter the position. The use of photographs reinforced the point that Sarah was much younger when the offences were allegedly committed than when she gave evidence. A similar submission that included reference to photographs of complainants was considered in Hughes v R at [297], and was regarded as uncontroversial.
It is necessary to keep in mind that the Crown is entitled to advance the prosecution case forcefully and firmly using adversarial skills in that respect. In this trial, the jury had photographs of Sarah in evidence. The Crown was entitled to remind the jury of the age of Sarah at the time of the alleged offences and the passage of time between then and the occasion when she was giving evidence at the trial. It was open to the Crown to make submissions challenged under this heading.
The third area of complaint by the Applicants concerns the Crown submission (T391-392) which invited the jury to consider what they were doing on their sixth, eighth or 15th birthday as a means of assessing the evidence of Sarah who was relaying information which had occurred some 14 to 20 years before. It was submitted that this distracted the jury from a proper collective approach to the consideration of issues of that type: GDD v R at [105], [121].
The Crown submitted that it was open to the Crown to address the jury in these terms to draw upon their own experience of memory in assessing any perceived deficiencies in Sarah’s memory of events which she said had occurred. In this way, it was submitted that the Crown was inviting the jury to bring to bear their collective experience in life in the sense of it being an experience that each of them had. The Crown submitted that what was said in this case was readily distinguishable from the submission which was criticised in GDD v R.
I accept the Crown submission on this issue. What occurred in this case is distinguishable from that which was criticised in GDD v R. It was open to the Crown to advance submissions to the tribunal of fact which invited them to consider the issue of memory of past events by reference to their own experience.
This was not an invitation to the jury to consider their own idiosyncratic experiences or memories singularly or on their own. Rather, the jury was being addressed as a group and were invited to consider the issue of memory, and the passage of years from childhood to adulthood, as part of the process of assessing the evidence of Sarah.
Nothing said in this part of the Crown closing contravened any rule or principle applicable to the conduct of the Crown at a criminal trial.
The fourth area of complaint concerns submissions made by the Crown to the jury with respect to the evidence of the Applicants. The Crown Prosecutor referred to the evidence of the Applicants as “simply ludicrous, it borders on the absolute ridiculous” (T383) and as “defying belief” (T384). It was submitted for the Applicants that this submission belittled or ridiculed the evidence of the Applicants in a manner which contravened what was said in Hughes v R at [270] and that the comments were improper in a similar manner to the Crown submission criticised in Hughes v R at [300].
The Crown submitted that what was said to the jury in this respect must be considered in context, the Crown having submitted shortly before that “They confessed to sexually inappropriate behaviour with the complainant to calm [SX] down to resolve the matter, to pacify her” with this evidence being submitted by the Crown to be “simply ludicrous” or bordering on the “absolute ridiculous”. It was submitted that the Crown was entitled to use strong language in a submission with respect to a feature of the case which was reasonably open to strong challenge.
The Crown submitted that the prosecutor in a criminal trial is not prohibited from firmly calling upon the jury to reject a defence case as being inherently unbelievable: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; Hughes v R at [269]. In Hughes v R, the Court held that it was not inappropriate for a Crown Prosecutor to describe a defence case or evidence as “inherently unreliable” or “incredible”: Hughes v R at [283].
It is necessary to consider this complaint with respect to the Crown closing address in context. There had been a strong challenge in cross-examination of each Applicant with respect to this part of the evidence of each of them. Having cross-examined each Applicant in that way, it was equally open to the Crown to make a forceful submission to the jury with respect to the credibility or otherwise of the evidence of each Applicant. The Crown was submitting that the evidence of each Applicant was inherently unbelievable: Hughes v R at [269]. In reaching this conclusion, I put to one side the aspect of GX’s appeal which I propose to uphold.
The submission made to the jury in this respect was open to the Crown and does not attract reasonable criticism.
I have considered the cumulative effect of the matters complained of under the seventh ground of appeal. I do not consider that the cumulative effect of these matters assists the Applicants in this case. Neither the individual nor cumulative effect of these aspects of the Crown closing address gave rise to a miscarriage of justice for either Applicant in this case.
I would reject the seventh ground of appeal.
Conclusion
I would grant GX leave under Rule 4 Criminal Appeal Rules to rely upon Ground 5 and would uphold Grounds 2, 5 and 6 arising from the particular features of the trial addressed in this judgment (at [300]-[307] above).
I note that the Crown did not seek to rely upon the proviso in s.6(1) Criminal Appeal Act 1912 (T56, 19 February 2020).
I would allow GX’s appeal and order that his convictions be quashed and that a new trial be ordered.
FX has not made good any grounds of appeal. Leave to rely upon Grounds 3, 4 and 5 should be refused. I would grant FX leave to appeal, but dismiss his appeal.
I propose the following orders:
(a)with respect to FX:
(i)refuse leave under Rule 4 Criminal Appeal Rules to rely upon Grounds 3, 4 and 5;
(ii)grant leave to appeal against conviction;
(iii)dismiss the appeal against conviction;
(b)with respect to GX:
(i)grant leave under Rule 4 Criminal Appeal Rules to rely upon Ground 5;
(ii)grant leave to appeal against conviction;
(iii)allow the appeal on Grounds 2, 5 and 6;
(iv)quash the convictions of GX on each of Counts 11, 12, 13, 14, 15, 16, 17 and 18;
(v)order that there be a new trial;
(vi)direct that GX’s matter be listed in the District Court Arraignment List on Friday, 14 August 2020 at 9.30 am.
PRICE J: I agree with Johnson J and the orders he proposes.
DAVIES J: I agree with Johnson J.
Amendments
09 October 2020 - On the joint application of the Crown and the Applicants, the Court was requested to make amendments to [127] and [178] with respect to the identity of the solicitor instructing counsel for the Applicants given erroneous information contained in the Particulars of Trial which was drawn to the attention of the Court only after judgment had been published.
20 May 2021 - Publication restriction lifted.
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