GM v The Queen - [2017] NSWCCA 298

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GM v R [2017] NSWCCA 298
Hearing dates: 13 October 2017
Decision date: 13 December 2017
Before: Payne JA at [1];
Johnson J at [130];
Adamson J at [132]
Decision:
(1) Refuse leave to appeal on ground 1;
(2) Grant leave to appeal on grounds 2 and 5;
(3) Appeal dismissed.

Catchwords: CRIME – appeal – conviction – nine counts of indecent assault with a person under the age of 10 years – one count of sexual intercourse with a person under 10 years – whether alternative verdicts should have been put to jury – whether the trial judge unfairly foreclosed the opportunity for defence counsel to investigate the context of admissions made by the appellant – whether verdict unreasonable having regard to the evidence
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Criminal Appeal Rules (NSW)
Cases Cited: Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51
Jackson v R (1962) 108 CLR 591; [1962] HCA 49
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MC v R [2017] NSWCCA 274
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
R v DRF [2015] NSWCCA 181
R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category: Principal judgment
Parties: GM (Appellant)
Regina (Crown)
Representation:
Counsel:
G D Woods QC / G M Thomas (Appellant)
I Bourke SC (Crown)
Solicitors:
Jordan Djundja Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/295592
Publication restriction: Under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) publication of the names of the appellant or the complainant or anything which would identify the complainant is not permitted.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 December 2016

Before:

Letherbarrow DCJ

File Number(s):

2012/295592

headnote

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

GM was found guilty of eight counts of indecent assault with a person under the age of 10 years and one count of sexual intercourse with a person under the age of 10 years.

The complainant is GM’s niece. The offences were alleged to have occurred between January 1994 and August 1996.

The appellant was sentenced to a term of imprisonment of nine years with a non-parole period of five years and five months. The appellant appealed against his conviction.

The appeal raised the following issues:

(i) whether the trial judge should have put statutory alternative verdicts to the jury in relation to the offences in which the appellant was convicted;

(ii) whether, by rejecting two questions counsel for the appellant sought to ask in cross-examination, the trial judge unfairly foreclosed the opportunity for counsel to investigate the context of admissions made by the appellant; and

(iii) whether the verdicts were unreasonable and cannot not be supported having regard to the evidence.

In relation to issue (i), per Adamson J (Johnson J agreeing)

(1) the appellant’s counsel at trial acquiesced in the trial judge’s decision not to put alternative verdicts to the jury; leave is refused under r 4 of the Criminal Appeal Rules: [137]

per Payne JA

(2) whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate Court's assessment of what justice to the accused required in the circumstances of the particular case. Leave granted leave to appeal in relation to this ground: s 5(1)(b) Criminal Appeal Act 1912 and r 4 of the Criminal Appeal Rules: [47]

(3) no miscarriage of justice was occasioned by the trial judge in failing to leave alternative verdicts open to the jury: [49]

James v The Queen (2014) 253 CLR 475; [2014] HCA 6 applied.

In relation to issue (ii), per Payne JA, Johnson and Adamson JJ

(4) the trial judge was correct to reject the two questions counsel sought to ask as the answers to those questions would not have provided any relevant context to the appellant’s state of mind at the time he made the admissions: at [76]-[77] per Payne JA; there was no error in the trial judge’s ruling to stop this line of cross-examination: at [140] per Adamson J

Jackson v R (1962) 108 CLR 591; [1962] HCA 49 applied.

In relation to issue (iii), per Payne JA, Johnson and Adamson JJ

(5) the verdicts were not unreasonable and was supported by the evidence: at [85]-[127] per Payne JA, at [131] per Johnson J, at [152]-[153] per Adamson J

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; MC v R [2017] NSWCCA 274; Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 considered.

Judgment

PAYNE JA: On 16 August 2016, GM, (who I shall refer to as the appellant) identified by that pseudonym so as not to disclose the identity of the complainant, his niece, was arraigned on eight counts of indecent assault with a person under the age of 10 years and one count of sexual intercourse with a person under the age of 10 years. The offences were alleged to have occurred between January 1994 and August 1996. On 30 August 2016, a jury returned verdicts of guilty to all nine counts on the indictment.
On 15 December 2016, the appellant was sentenced to a term of imprisonment of nine years to date from 30 August 2016 and expire on 29 August 2025 with a non-parole period of five years and five months. The appellant will be eligible to be considered for release on parole on 29 January 2022.

The Crown case

The Crown case at trial was that the appellant sexually and indecently assaulted the complainant on a number of occasions between January 1994 and August 1996, on each occasion the complainant being under the age of 10 years.
The complainant was born on 14 August 1987. When she was about six months old her family moved from Sydney to Canberra. The appellant was married to the complainant’s aunt and they lived in Sydney, first in Casula and later in Peakhurst. The complainant and her family often visited family in Sydney.
At trial the Crown also led context evidence which related to other occasions that allegedly occurred both before and after the incidents alleged on the indictment.

First context incident – piggyback ride to park in Canberra

The first context incident occurred when the complainant was five years old when the appellant was visiting the complainant’s family in Canberra. The appellant gave the complainant a piggyback ride to the park across the road from her house. The appellant held onto the complainant with his hands around her bottom. He forced his finger through her leggings and into her vagina.

Counts 1 and 2 – reading in bed at the complainant’s grandparents’ house in Earlwood

The first incident the subject of the indictment occurred when the complainant was reading in bed at her grandparents’ house in Earlwood. The complainant gave evidence that she was close to the age of seven. The complainant was reading a book in bed, under the covers. Her brother was sitting in bed with her. The appellant entered the room and got underneath the covers. The appellant slid his hand down the complainant’s pants and rubbed her vagina (count 1). The appellant could not recall if it was over or under her underpants. The appellant then grabbed her hand and rubbed it on his erect penis (count 2). The incident did not last very long. The complainant pushed her brother out of the bed and followed him into the dining room. The complainant did not tell her parents what happened because she did not know what to say.

Counts 3-7 – washing up and in the spare bedroom at the appellant’s and the complainant’s aunt’s house in Casula

The next incident occurred at the appellant’s house in Casula where he lived with the complainant’s aunt. The complainant gave evidence that she was around seven or eight years old at the time. The complainant thought the incident occurred around the school holidays. The complainant was washing dishes in the kitchen at the time. Her aunt was in the shower and the appellant had just arrived home from work. The appellant rubbed his hands over the complainant’s body from behind. He pushed his body up against her body and she felt his erect penis pushing against her for a couple of minutes (count 3). The appellant put his hand into the complainant’s underwear and rubbed her vagina for a couple of minutes (count 4). The appellant dragged the complainant towards the spare bedroom and forcibly sat the complainant on the bed. The appellant undressed himself completely and then undressed the complainant. The appellant climbed under the doona and put the complainant underneath him. She lay on her back. The appellant rubbed his hands over the area of both her breasts (count 5). The appellant put his hand between her legs and rubbed the complainant’s vagina. He then put his finger inside her vagina for a few minutes (count 6). The complainant rolled away from the appellant. The bed was pushed against the wall and she was on the outer side of the bed. The appellant pushed his erect penis against her bottom for a few minutes (count 7). When the water of the shower stopped the appellant jumped out of bed and put his clothes back on. He said to the complainant, “Don’t tell your aunty anything”. He left the room. The complainant went back to the kitchen. She did not say anything to her aunt that evening. The complainant returned to her grandparents’ house the next day.

Counts 8 and 9 – watching Home Improvement at her grandparents’ house at Earlwood

The next incident occurred a couple of months later while the complainant and her family were visiting her grandparents’ house in Earlwood. She gave evidence that she was around seven or eight years old. Everyone was in the lounge room watching the television show “Home Improvement”, with Tim Allen. At around 5:00 pm or 6:00 pm, everyone except the appellant and the complainant left the room. The appellant slid off the couch and sat on the floor next to the complainant who had a blanket over her. He put his hand underneath the blanket and rubbed both sides of the complainant’s breast area, underneath her clothing, for a few minutes (count 8). The appellant’s hand moved down and rubbed her vagina, underneath her clothing and underwear for either a couple of minutes or 10 to 15 minutes (count 9). When the front door slammed and someone came inside the appellant jumped back on the couch. The complainant continued watching the rest of the television show. She could not recall seeing anyone else after the incident.

The second context incident – watching a Steven Seagal movie at home in Canberra

The second context incident occurred at Easter time when the complainant was closer to ten years old. The complainant, the appellant and the complainant’s father, brother and grandfather were watching a Steven Seagal movie in one of the lounge rooms. The complainant was sitting on one of the lounges with her grandfather and the appellant. The grandfather fell asleep. The appellant placed a cushion over his lap. He grabbed the complainant’s left hand and rubbed it over his erect penis underneath the cushion. The complainant pulled her hand away and pushed it into the crook of her armpit. The appellant put another cushion onto her lap. He rubbed the complainant’s vagina under her underpants, underneath the cushion. When the complainant’s mother came through the internal sliding door to the right side of the lounge they were on, the appellant pulled his hand away.

The third context incident – watching an Easter movie at home in Canberra

The third context incident occurred when the complainant was on the sofa in the other lounge room. The complainant was reading a book and an Easter movie was on in the background. The complainant’s grandmother was on the other sofa. The appellant entered and sat next to the complainant. He slid his hand underneath the blanket and rubbed the complainant’s vagina. The complainant thought the appellant also inserted a finger into her vagina. The complainant could not recall how the incident ended.

The fourth context incident – concrete tubes at the park in Canberra

The fourth context incident occurred at a park in Canberra when the appellant was closer to the age of 11. The appellant was inside one of the big concrete tunnels with the complainant. He slid his hand inside her underpants and rubbed her vagina. It did not last very long. The appellant removed his hand when the complainant’s brother jumped down from the top of the tunnel.

Evidence of complaint

It was in 1998, when the complainant was in Year Five and 11 years old, that she realised she was the victim of sexual abuse. She was watching a video at school about children who were sexually abused and she thought, “Wow, like, that’s me on the video”. She felt too stupid to tell anyone about it at the time.
In 2012, the complainant first told her boyfriend that she was sexually abused as a child by the appellant. She did not provide any further details. A couple of days later, the complainant told her mother for the first time that she was sexually abused as a child by the appellant but again she did not provide any detail.
On 22 March 2012, the complainant attended Canberra Police Station and recounted the incidents in detail. On 2 April 2012, she attended again with her mother. On 10 April 2012 she again attended the police station by herself and commenced providing a formal statement. She ultimately signed her statement on 21 September 2012.

Issues on appeal

By notice of appeal dated 28 July 2017, the appellant appealed against both his conviction and sentence. Ultimately, only grounds 1, 2 and 5 of the notice of appeal were pressed and the appellant’s sentence appeal was abandoned.
The issues on appeal were thus as follows:

whether the trial judge erred by failing to direct the jurors that on each count it was open to them to find the appellant not guilty of the charged offence but guilty of an alternative lesser charge available by statute and reasonably open on the evidence (ground 1);

whether the trial judge erred by excluding evidence as to the full circumstances relevant to the alleged making of incriminating admissions by the appellant and by foreclosing the appellant’s proper opportunity to cross-examine in relation thereto (ground 2); and

whether the verdicts were unreasonable (ground 5).

Ground 1 – the trial judge erred by failing to direct the jury that on each count it was open to them to find the appellant not guilty of the charged offence but guilty of an alternative lesser charge available by statute and reasonably open on the evidence

How the issue arose at trial

It is necessary briefly to identify how the issue of possible alternative verdicts emerged at trial. It was the Crown’s case at trial that the complainant was, at the time of the offences, under the age of 10. No alternative verdict based on a finding that the complainant was older than 10 was contained in the indictment or opened by the Crown to the jury.
During the complainant’s evidence, counsel for the accused tendered a handwritten letter from the complainant to her aunt and the appellant, postmarked 28 April 1998, thanking them for allowing her to visit their home. That letter became Exhibit 1. Although the complainant was not cross-examined by reference to the letter to suggest that she may have been older than 10 at the time of the events the subject of the indictment, it was ultimately submitted by counsel for the accused that, in relation to counts 3 to 9, the Crown had not established that the complainant was under 10 years old at the time of the offending.
At the close of the evidence, the following exchange took place between the trial judge and the Crown about possible alternative verdicts:

“HIS HONOUR: There’s no alternative offences, are there, that are relevant to above the age of ten?
TRIAL ADVOCATE: There’s s 66C. Once you get to above the age of ten--
HIS HONOUR: That hasn’t been opened.
TRIAL ADVOCATE: No. I mean in terms of the Common Law alternative. I’m not raising that, your Honour.
HIS HONOUR: You don’t want me to direct them that if they are satisfied that counts 3 to 9 occurred after she was ten …the accused, therefore, must be acquitted of all those counts [and that] alternative counts arise?
TRIAL ADVOCATE: I must say it did strike me that it seems unfair that the jury could be satisfied that these acts occurred, but because she was simply over ten that they would acquit.
HIS HONOUR: That might be unfair, but it’s something that the Crown could have opened if this issue was out in the open, at least, and I imagine other charges could have been put in the indictment. I think it’s too late now, isn’t it, to give them this direction and then say, ‘By the way, here are some alternatives’.
TRIAL ADVOCATE: Our case was always what the complainant said. It was always that. The only – I’m not aware of a situation where the indictment could be amended at this late stage, your Honour. I’m just simply asking your Honour to direct the jury in the terms that I have expressed.
HIS HONOUR: I’ll do that first and we’ll see where we go from there, Ms Crown.”

Counsel for the accused made no application for alternative verdicts to be put to the jury. To the contrary, counsel for the accused embraced the proposition that if the jury concluded on counts 3 to 9 that the acts occurred after the complainant was 10, the accused must be acquitted. In closing address, counsel for the accused made the following submissions:

“…it’s a letter [Exhibit 1] that bears a date. It’s a letter that confirms [the complainant] going to the Casula house by its content. It’s an objective independent piece of evidence that may assist the tribunal of fact, you good people, who are vested with the responsibility of determining whether the prosecution has proved its case to the standard required beyond reasonable doubt, not prove the possibility. That’s not how our system of justice works. The Crown didn’t ask a question of [the complainant’s aunt] to whom the letter was written. It had a date, and the best submission that the Crown could put in respect of this letter is to say, ‘Oh, look, it’s just neutral’. It’s just neutral? According to [the complainant’s mother], who gave evidence before you today, the effect of her evidence was that it was only, she thought, one occasion that [the complainant] had stayed at Casula.
If that occasion was sometime shortly before April of 1998 and [the complainant] was born in [19]87, [the complainant] in all probability was over ten at that time that she stayed at Casula. That’s not to say that this is some clever defence lawyer submission to a jury, ‘Hey, it happened, but, you know what, the person was over ten, therefore essential element of the offence to prove under ten isn’t established. Therefore, find not guilty’. That’s not the point. I submit to you these events did not happen, but to the extent that the Crown shoulders the responsibility to prove its case beyond reasonable doubt, it is only fair and reasonable that the Crown would be seeking to address the issue, particularly when [the complainant’s mother] said that she thought it was only the one occasion that her daughter went to Casula, to address the issue of the letter, because the issue of a letter is an independent piece of evidence that allows one thinking rationally and logically to put a timestamp on an event if it occurred. At least put a time stamp on it and yet no question.”

In the trial judge’s summing up, this issue was dealt with at some length:

“…However, as to this issue of being the age of the complainant in relation to counts 3 to 9, an issue does arise because of the existence of exhibit 1, being the letter from the complainant to her [aunt] and [the appellant], being the accused. You will remember this letter was tendered by Mr Thomas. It is date stamped 26 April 1998, or post-marked 26 April 1998.
As at that date, 26 April 1998, the complainant was over ten. In this letter, the complainant thanks her aunty and uncle for letting her stay at their house in Casula. If this letter was written, as is likely, just prior to it being posted on 26 April 1998, and the occasion she was thanking them for was the only time that she stayed at their house in Casula, then she would have been over ten at the time of counts 3 to 7 and counts 8 and 9, which are said to have occurred after counts 3 to 7. If that is the case, then you would have to acquit the accused of counts 3 to 9.
As to this issue, I need to read to you some parts of the evidence by the relevant witnesses, and it might start with the complainant herself. She was asked where the accused and [her aunt] lived, and she said that they lived in Earlwood. Then the following questions and answers were given:
‘Q. The occasions where these visits would take place, coming up to New South Wales, was there any particular time of year where they would usually occur?
A. Around, I guess – I guess holidays. Easter, Christmas, things like that.
Q. How regularly would your family visit New South Wales?
A. Pretty regularly. My brother and I would come down in school holidays a lot, and then, yeah, a fair bit.
Q. When your brother and you came down in school holidays, who would you stay with?
A. More so my grandparents, and then I would spend a lot of time with, like, staying the night at [my aunt’s].’

A little later in her evidence, talking about the times when the complainant said counts 3 to 7 occurred in the accused and [her aunt’s] house at Casula, she is asked these questions and gave these answers:
‘Q. You told us before that you would visit [the appellant] and [your aunt] at their house?
A. Yes.
Q. And they lived first at Casula and then Peakhurst; correct?
A. Yes.
Q. Did anything happen in Casula?A. Yes.
Q. What was the occasion that you remember something happening in Casula? How old were you?
A. On this occasion, I think I was around seven or eight.
Q. Do you remember the year?
A. It would have been – I can’t think about the year right now. I’m not sure.
Q. That’s all right.
A. But roughly around that age – it would have been in the school holidays, I think.
Q. What makes you think it would have been in the school holidays?
A. Because that’s when we always used to visit. It was the time when I was without my parents and that was the only time we would go there without them.’

On this topic, both the complainant’s [aunt]…and her mother gave some evidence as well. I will just turn to [her aunt’s] evidence. She was asked these questions:
‘Q. Were [there] occasions when it was just the children who would come and visit you?
A. It was always only the children that slept over, but the whole family came to visit.
Q. When you say, ‘It’s only the children that slept over’, who are you referring to?
A. [the complainant] and [the complainant’s brother].
Q. Where would they sleep over?
A. We had a spare room adjacent to the main room.
Q. This is in Casula?
A. Yes.”

A little later in her evidence she was asked these questions and gave these answers:
‘Q. Can we just go back to the visits between the two families, between New South Wales and the ACT.
A. Yes.
Q. How regularly would these visits take place?A. They would take place in the school holidays. They would take place over special occasions likely holy communions or Christmas or Easter.
Q. In terms of the arrangements of the children staying over at Casula, can you just describe what those arrangements were?
A. It wouldn’t be for long periods. It might be for one or two nights, either in the school holidays or on the weekend and they would usually be, I think, one child at a time and we would have one spare room.
Q. This was in the house at Casula?
A. Yes.’

Turning to the complainant’s mother’s evidence. She was asked these questions and gave these answers:
‘Q. Was there any occasion when your family would stay with [the appellant] and [the complainant’s aunt]?
A. Not all of us. I recall on one occasion during the school holidays I would sent [the complainant] down to stay with mum and dad. On one of these occasions [the complainant’s aunt] had invited my daughter [the complainant] to come and stay with them, with [the complainant’s aunt] and [the appellant], at Casula and she did.
Q. Do you know how often that would occur?
A. No. From my memory, I think it might have been just that once. I can’t remember off the top of my head.
Q. Would [the complainant’s brother] ever stay with [the complainant’s aunt] and [the appellant]?
A. No.
Q. What about your parents? Did [the complainant’s brother] and [the appellant] ever stay with your parents?
A. Yes. Yes. That was mainly as they got into kindergarten – not kindergarten but primary school through the school holidays because my husband and I did shiftwork, or we did sort of – we didn’t have time to spend with them through the holidays. Mum and dad were retired, so the kids would often go down in the school holidays and spend one- to two weeks with them.
Q. Your parents’ address was in Earlwood; is that right?
A. Yes.
Q. Do you know whether or not while they were with your parents whether they would go and visit [the complainant’s aunt] and [the appellant]?
A. I couldn’t say. I’m not sure’

If you, having considered that evidence, and the rest of the evidence in the case, if you are satisfied that the complainant stayed at the Casula home on earlier occasions as the Crown have alleged on the indictment and that the offences took place on those occasions, then she would have been under ten when those incidents took place. If, however, on considering all the evidence and not just what I have read to you, you are not so satisfied, in other words, that she was not under ten, you are not satisfied beyond reasonable doubt that she was under ten at those times, you must acquit him of those counts.”

Appellant’s submissions

The appellant submitted the trial judge should have put statutory alternative verdicts to the jury in circumstances where a real and live issue at trial was whether or not at the time of some or all of the offences, the complainant was under the age of 10 years. The age of the complainant was a necessary element for all nine counts on the indictment.
The appellant submitted that after the Crown had raised with the trial judge the prospect that alternative verdicts should be put to the jury, (see the exchange at [20] above), the proceedings continued on a false basis.
The appellant submitted that the trial judge erred in forming the view that an amendment to the indictment would be required to leave statutory alternative verdicts to the jury and stating that it was “too late” to do so.
The appellant submitted that this was not a case of the kind hypothesised by Sperling J in R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255 at [49] where his Honour stated that to allow an alternative verdict in that case might result in a “cascade” of alternative possible verdicts of increasing unreality. The appellant submitted that in the present case, there was only one, very straightforward alternative which was central in the presentation of the evidence. In fairness to the appellant the alternative verdict should have been put, and the failure to do so resulted in a miscarriage of justice.
The appellant sought to distinguish James v The Queen (2014) 253 CLR 475; [2014] HCA 6 on the basis that the alternative verdicts would not have “blurred” the central issues at trial. Rather, they could have been presented to the jury in a comprehensible way which would not have denied the appellant fairness.

Crown’s submissions

The Crown submitted that the High Court decision in Jamesv The Queen established that in determining whether an alternative verdict ought to be left to the jury, consideration must be given to (1) whether the alternative count accords with the “real issues” in the trial; and (2) the forensic choices of counsel.
On the first of those issues, the Crown submitted that although the age of the complainant was an issue at trial, it was not the principal issue. It was raised belatedly. The complainant and her aunt were not cross-examined about the complainant’s age by reference to Exhibit 1.
On the second of those issues, the Crown submitted that although the trial advocate commented that there might be some unfairness to the Crown if the alternative verdicts were not put, the trial judge observed that the Crown had not “opened” to the jury on the basis of alternative verdicts and it was probably “too late now”.
The Crown submitted that counsel for the accused made a forensic decision at trial to proceed on an “all or nothing” approach, that is, where any reasonable doubt about the complainant’s age would lead to an acquittal. In these circumstances, the Crown submitted that there was no error by the trial judge within the James v The Queen principle.

Consideration

The Crimes Act 1900 (NSW) provides for alternative verdicts in relation to the two offences on which the appellant was convicted, namely, ss 61M and 66A. I have set out the versions of these sections as they appeared between 1 January 1994 and 14 August 1996, being the period the offences were alleged to have been committed in the indictment.
First, s 61Q(1) provides for an alternative verdict in relation to an offence under s 61M(2) (indecent assault of a child under the age of 10 years), namely 61L:

“61Q Alternative verdicts
(1) Question of aggravation
If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.”

Section 61L attracts a maximum penalty of five years rather than 10 years:

“61L Indecent assault
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.”

Secondly, s 66E(1) provides for an alternative verdict in relation to an offence under s 66A (sexual intercourse with a child under the age of 10 years), namely s 66C:

“66E Alternative verdicts
(1) Where on the trial of a person for an offence under section 66A the jury is not satisfied that the other person upon whom the offence was alleged to have been committed was under the age of 10 years, but is satisfied that:
(a) the other person was under the age of 16 years, and
(b) the accused had sexual intercourse with the other person,
it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (1), and the accused shall be liable to punishment accordingly.”

Section 66C attracts a maximum penalty of 10 years rather than 20 years:

“66C Sexual intercourse—child between 10 and 16
(1) Any person who has sexual intercourse with another person who is of or above the age of 10 years, and under the age of 16 years, shall be liable to penal servitude for 8 years.
(2) Any person who has sexual intercourse with another person who:
(a) is of or above the age of 10 years, and under the age of 16 years, and
(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person,
shall be liable to penal servitude for 10 years.”

In James v The Queen the High Court (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) set out the factors to be taken into account in determining whether an alternative verdict ought to be left to the jury:

“[31] Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel. Among other things, this recognises the forensic difficulty of relying on inconsistent defences. The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on how on a view of the facts a defence or partial defence arises.
[32] Of course, forensic considerations may equally be against defence counsel inviting the jury to consider the accused's guilt of a lesser offence. The submission may be inconsistent with the tenor of the defence case. Nonetheless fairness to the accused may require that the jury be directed of the availability of the alternative verdict. In such a case the failure to do so would be a miscarriage of justice.
[33] However, it is wrong to equate leaving a defence or partial defence with leaving alternative verdicts. The two are distinct. Where there is evidence to support a defence or partial defence it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury. Where the prosecution does not seek the jury's verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused's chances of outright acquittal on the issues joined not be jeopardised by the trial judge's decision to leave an alternative verdict.
[34] Consideration of fairness to the accused led the New South Wales Court of Criminal Appeal to hold that it was unwise for the trial judge to direct on an alternative verdict in a case in which the parties had not raised that matter. The Queensland Court of Appeal has similarly held that fairness may require that the accused's chances of acquittal are not jeopardised by leaving an alternative verdict. These remarks were approved by Kiefel J in R v Keenan with the concurrence of Hayne, Heydon and Crennan JJ. Keenan holds that the duty to ensure a fair trial does not require that a lesser charge is left in every case: the test is what justice to the accused requires.
…
[36] An accused may successfully raise a plea in bar on arraignment for an offence of which the accused might have been convicted on the allegations in the indictment at an earlier trial. This consideration inclined King CJ to the view in Benbolt v The Queen that it was the trial judge's obligation to direct the jury on any alternative verdict, notwithstanding that the parties had made no reference to that possibility. The failure to do so might preclude the prosecution of the accused for an offence of which he or she was guilty. Contrary to the burden of the appellant's argument, King CJ considered that the overriding fair trial obligation would in an appropriate case justify the decision not to leave an alternative verdict.
[37] The importance under Australian law of maintaining the separation between prosecutorial and judicial functions has been stated in a number of this Court's decisions since Benbolt. The view that it is the duty of the trial judge to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence.
[38] The trial judge's duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court's assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by an invitation to the jury to consider the accused's guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should nonetheless be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel's objection.” (footnotes omitted)

The High Court in James v The Queen made clear that the question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate Court's assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. The requirement to ensure a fair trial does not require that a lesser charge is left in every case: the test is what justice to the accused requires. There is no requirement that an alternative verdict should be left to the jury simply because it is available.
As to the importance of this issue in the case, the trial judge concluded that the trial having been opened and conducted by the Crown on the basis that the complainant was less than 10 years old, the evidence having been led from the complainant that she was less than 10 years old at the time of the offending and the fact that the Crown had not raised any issue about possible alternative verdicts until immediately before addresses, it would be unfair to the accused to put the alternative counts to the jury in his summing up.
Whilst the issue of the age of the complainant was live at the trial, it was not as is now submitted a critical issue. The complainant and her aunt were not even cross-examined about the letter now said to provide critical corroborative evidence that she was older than 10 at the time of the offending.
The trial judge gave clear and appropriate directions to the jury about their needing to be satisfied beyond reasonable doubt of a necessary element of the offence – that the complaint was under 10 years old when each offence in the indictment occurred.
The trial judge, in adopting the course that he did, was obviously concerned to ensure fairness to the accused. His Honour was concerned that if the alternative verdicts now suggested were put, it may appear to the jury that a suggestion was being made that the appellant was guilty of the various sexual assaults charged, and that it was simply a matter of how old the complaint was at the time of those assaults.
It is not correct, as senior counsel for the appellant submitted, that his Honour determined that alternative verdicts could not be put unless the Crown obtained an amendment of the indictment. His Honour was simply remarking that the Crown could have opened on the issue of alternative verdicts or alternative charges could have been put on the indictment.

Experienced counsel for the appellant made the clear forensic decision to conduct the trial on the basis that the alternative verdicts were not to be put to the jury. Moreover, counsel for the appellant at trial also had the opportunity to correct the course that was taken with respect to alternative verdicts following the exchange at [20] above and did not.
So much is clear when Counsel for the appellant at trial endorsed the trial judge’s suggested direction to the jury on the age issue. This exchange happened immediately after the exchange at [20] above where the Crown raised the possibility of alternative verdicts. It is convenient to set out this exchange in full:

“HIS HONOUR: This is pretty rough at this stage, but what I was going to say was:
‘If you are satisfied of the first two elements beyond reasonable doubt, there is no issue that the complainant at the times alleged in the indictment was under ten, but this is still a matter for you. In this regard, the complainant was born on 14 August 1987 and turned ten on 4 August 97.
However, as to the issue of the age of the complainant in relation to counts 3 and 9, an issue does arise because of the existence of exhibit 1, being a letter from the complainant to her [aunt] and the accused date stamped 26 April 1998. As at that date, the complainant was over ten.
In this letter, the complainant thanked her aunty and uncle for letting her stay at their home in Casula. If this letter was written, as is likely, just prior to 26 April 98 and the occasion she was thanking them for was the only occasion she stayed at their house, then she would have been over ten at the time of counts 3 to 7 and counts 8 to 9, which are said to have occurred after counts 3 to 7. If that is the case, the accused would have to be acquitted of counts 3 to 9.
As to this issue, I read you the following evidence, and I will go through the passages you’ve mentioned. Now, if you are satisfied beyond reasonable doubt, having considered that evidence and the rest of the evidence in the trial that the complainant stayed at the Casula house on earlier occasions as alleged in the indictment, then the under ten element would be made out. If you are not so satisfied, you must acquit.’

THOMAS: Sounds perfect.”

A clearer case of a forensic decision made by counsel for the accused in choosing not to seek those alternative charges be left to the jury is difficult to imagine. Not only was no submission made that an alternative charge should be left, in circumstances where the Crown sought such a direction, but counsel for the accused specifically stated in his closing address that the jury should conclude that the complainant was over 10 but that this was not “some clever defence lawyer submission to a jury”, but rather, simply the failure by the Crown to prove an essential element of the offence. Counsel for the accused emphasised what the trial judge later told the jury; if they were not satisfied that the complainant was under 10 years old at the time of the offending, they must acquit.
Because the question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate Court's assessment of what justice to the accused required in the circumstances of the particular case, I would grant leave to appeal in relation to this ground s.5(1)(b) Criminal Appeal Act 1912 and Rule 4 of the Criminal Appeal Rules. The failure to take the point at trial is important, as James v The Queen demonstrates, but cannot be determinative.
While James v The Queen makes clear that the forensic choices of counsel are not determinative on this issue, I am not satisfied that this is a case where alternative verdicts counts should have been left to the jury as to do so would have occasioned unfairness to the accused, as counsel for the accused recognised at the trial.
I reject the submission that there was any miscarriage of justice occasioned by the trial judge, in the circumstances of this case, failing to leave alternative verdicts to the jury as part of his summing up. Ground 1 should be dismissed.

Ground 2 – the trial judge erred by excluding evidence as to the full circumstances relevant to the alleged making of incriminating admissions by the accused and by foreclosing the accused’s proper opportunity to cross-examine in relation thereto

The issue at trial

This ground of appeal concerns evidence of conversations the appellant had with his then wife, [the complainant’s aunt], which the Crown led as evidence of admissions by the appellant. At trial, the Crown led the following evidence:

on 29 February 2012, the complainant’s aunt received a telephone call from her sister, the complainant’s mother. The content of the conversation was not admissible as complaint evidence, as it merely communicated the complaint. All the jury were told was that the complainant’s mother had told the complainant’s aunt “certain things”;

on 12 March 2012, the complainant’s aunt confronted the appellant. She gave evidence that she said to GM that “[the complainant’s mother] had told me that that [the complainant] had reported she was sexually assaulted by him” and that it “happened at Casula” and “[the complainant] was between the ages of 4 and 7”. She told GM nothing else about the conversation. GM denied the allegation. (first conversation);

on 19 March 2012, [the complainant’s aunt] told the appellant that he must not speak to her family again; and

on 25 March 2012, the appellant had a conversation with the complainant’s aunt at their house. The complainant’s aunt gave no evidence about the preamble to that conversation, that evidence not being led following an objection by counsel for the accused. She gave evidence that during the conversation GM appeared distressed, angry and in a rage. GM said words to the effect that he was “decayed on the inside”, that “I’m a monster” and that he “can’t change the past but he can change the future” (second conversation).

It was the Crown’s case that on 25 March 2012, during the second conversation, the appellant was emotionally distressed because he was a guilty man. It was the accused’s case about this conversation that he was distressed because he was the subject of false allegations and faced the prospect of losing his family.
In the trial, counsel for the accused cross-examined the complainant’s aunt about this conversation. There was never an explicit suggestion made to the complainant’s aunt that the second conversation did not happen.
The relevant question which the appellant complains he was “cut off” from asking in cross-examination was:

“Q. But in your statement you went on to say that your sister informed you that, ‘You were in the shower at the time and they were in the lounge room’.”

The question related to counts 3-7 on the indictment. The Crown objected to the question and following a lengthy exchange between the trial judge and counsel, the trial judge rejected the question because:

“HIS HONOUR: Because in my view, Mr Thomas, it’s seeking to in reality contradict the evidence of the complainant when that alleged contradiction wasn’t put to her, and it’s based upon second-hand hearsay and that’s all I intend to say about it.”

The exchange proceeded:

“TRIAL ADVOCATE: Would your Honour please direct the jury to disregard the question because the question put the evidence --
HIS HONOUR: Was asked.
TRIAL ADVOCATE: Yes.
HIS HONOUR: So the question was: did [the complainant’s mother] tell you that [the complainant] said that [the complainant’s aunt] was in the shower and the incident took place in the lounge room.
TRIAL ADVOCATE: On second thoughts, your Honour, it might just compound the error. I think I’ll just leave it.
HIS HONOUR: All I’ll do is simply tell the jury that I have rejected the question.”

The Defence counsel went on to ask:

“Q. On 29 February 2012 when you spoke with your sister [the complainant’s mother], how did she express herself when she informed you about the sexual assault allegation?
A. She was concerned
Q. What did she say to you about it?”

The Crown Prosecutor again objected to this question and the trial judge disallowed it for what appears to be the same reasons:

“TRIAL ADVOCATE: Your Honour--
HIS HONOUR: Isn’t this just the same question that I have rejected?
THOMAS: No. Because I’m asking the witness what was said to her.
TRIAL ADVOCATE: Your Honour, I object.
HIS HONOUR: You’ve put what was said to her before, and she didn’t answer it before the objection and I rejected the question. Now, you’re attempting to, by asking the witness, elicit the same information that I rejected; isn’t that right?
THOMAS: If your Honour pleases. I’ll ask another question.”

Appellant’s submissions

The appellant submitted that defence counsel was unfairly cut off by the trial judge from investigating the context of the admissions made by the accused. Senior counsel in this Court submitted that defence counsel was entitled to ask questions and explore contradictions about the terms in which the complainant’s allegations had been communicated from the complainant’s mother to the complainant’s aunt.
The appellant submitted that in circumstances where there was never any “clear admission of the wrongdoing alleged against the accused in the indictment”, the appellant’s defence counsel at trial was entitled the obtain answers from the witness with respect to the allegations made and the circumstances in which the alleged admissions were made.
The appellant submitted that not allowing such a question was a misapplication of the rule in Browne v Dunn and the rules forbidding hearsay evidence. With respect to hearsay, the appellant submitted that contrary to the trial judge’s view, the material in question was not hearsay at all. Rather, it was admissible for the fact that it was said as original evidence going to the context or circumstances in which the alleged admissions were made by the accused. It was submitted that the evidence was thus relevant for another purpose than proof of the truth of its contents.
In oral submissions, senior counsel for the appellant relied upon remarks in Jackson v R (1962) 108 CLR 591; [1962] HCA 49 at [2] which concerned a question about the genuineness or meaning of a confession:

“…where a question arises as to the weight to be given by the tribunal of fact to a confession of guilt, no authority is needed for the proposition that all the circumstances surrounding the making of it which tend to show either that it can safely be relied upon or that it would be unwise to do so are admissible.”

Crown’s submissions

The Crown submitted that the appellant’s argument under this ground was without substance. The Crown submitted that there is no dispute that the two conversations between the appellant and the complaint’s aunt occurred albeit, there was a slight difference sought to be established by the appellant’s counsel in the language used by the appellant in the second conversation.
In relation to the first conversation, the Crown submitted that it did not elicit an admission, but rather, a denial. So much was clear by the evidence [the complainant’s aunt] gave at trial in cross-examination:

“Q. He said to you words to the effect, ‘Why are they saying this now?’?
A. Yes
…
Q. I suggest that he said to you, ‘Why would [the complainant] say this’?
A. Yes.
Q. I suggest that you then said, ‘Wouldn’t you believe your own daughter and she said the same thing?’
A. Yes.
Q. I suggest that he said, ‘But why would [the complainant] say this now? Is [the complainant’s mother] saying this to upset you?’
A. Yes.”

The Crown submitted it was only the second conversation between the appellant and the complainant’s aunt, on 25 March 2012, in which admissions were made by the appellant. The Crown further submitted that it was never put to the complainant’s aunt that she had made any accusation in that conversation. The only challenge made to her evidence was directed to the precise words uttered by the appellant. In these circumstances, the Crown submitted, there is no merit in the appellant’s argument that there was an error of law or miscarriage of justice in the trial judge disallowing the question.

Consideration

It is important at the outset to identify that the submissions of both parties proceeded with only brief attention being paid to the provisions of the Evidence Act1995 (NSW) which may have potentially been relevant to a question of this kind.
The possible operation of s 60 of the Evidence Act upon the evidence given by the complainant’s aunt about what she had been told by the complainant’s mother about what the complainant had said was not raised before the trial judge or in this Court. Neither was it suggested on the appeal that this was a case where there was a cross-examination foreclosed on any potentially prior inconsistent statement under s 43 of the Evidence Act. Neither was it suggested that the cross-examination raised the potential operation of an exception to the credibility rule provided by s106 of the Evidence Act about any issue in this case. Indeed, the appellant asserted in writing that there was “no s 106 issue”.
A striking feature of this case is that the complainant was not cross-examined about what she had told her mother about the conduct of the appellant. No suggestion of having made a prior inconsistent statement was put to the complainant.
A further striking feature of the present case is that the complainant’s mother was subsequently cross-examined about what the complainant told her about the conduct of the appellant during the conversation on 29 February 2012. The complainant’s mother agreed that the complainant had said to her in answer to a question “What happened at Casula?” the complainant replied “At Casula. [The complainant’s aunt] was in the shower” and “[the complainant] was alone in the lounge room with [GM].”
This ground of appeal relates only to two questions asked in cross-examination of the complainant’s aunt. The accused’s counsel sought to examine what the complainant’s mother had told the complainant’s aunt that the complainant had said about the appellant.
As senior counsel for the appellant ultimately accepted in this Court, the question sought an answer “that might ultimately…go to a collateral attack on the complainant”. That rationale for the rejected questions is inconsistent with the appellant’s written submissions, which eschewed any reliance on the evidence as potentially relevant to the complainant’s credibility. No doubt this was because this suggestion of having made a prior inconsistent statement had not been put to the complainant by the appellant’s counsel.
If a suggestion had been made to the complainant that what she had told her mother was a prior inconsistent statement, and that statement had been denied by the complainant, it would likely have been open to the appellant to adduce evidence from the complainant’s mother of a prior inconsistent statement: s 106 Evidence Act. That conclusion is not relevant in this case where no such suggestion had been made to the complainant. Section 43(2) of the Evidence Act prohibits the cross-examiner from presenting evidence of an allegedly prior inconsistent statement in such a case. Somewhat ironically, the evidence sought from the complainant’s aunt was in any event subsequently adduced from the complainant’s mother.
The only basis for admissibility pressed by the appellant is that the evidence should have been permitted to demonstrate the context in which the appellant made admissions in the second conversation with his wife on 25 March 2012.
A possible issue in favour of that conclusion was that the evidence of the complainant’s aunt, addressed at paragraph [49](2) above, had been admitted without a limiting order. The effect of s 60 of the Evidence Act was that the hearsay rule did not apply to that evidence as it had been tendered for another purpose. Although not raised with the trial judge or in this Court, is that context that, perhaps, an issue arose about the ability of the appellant to explore the relevant context of that evidence about the second conversation. I emphasise that this was not how the matter was put to the trial judge, or indeed in this Court.
A significant problem for the appellant in treating the questions which were rejected as going to the relevant context in which admissions were made by the appellant is that the introductory parts of the conversation on 25 March 2012, contained in the statement of the complainant’s aunt, were not read by the Crown following an objection by the appellant’s counsel. That is, an important part of the context of the 25 March 2012 conversation was not before the jury by reason of a successful objection made by the appellant’s counsel.
The conversation between the complainant’s aunt and the complainant’s mother that the rejected questions went to, however, occurred on 29 February 2012 as a pre-cursor to the first conversation, where the appellant made a series of denials. The context of the second conversation on 25 March 2012, where the alleged admissions were made, was not the words spoken by the complainant’s aunt on 29 February 2012.
The High Court in Jackson, in the passage relied upon, was addressing a confession made by the accused and his state of mind at the time. The content of the complainant’s aunt’s conversation with the complainant’s mother on 29 February 2012 does not go to that question. I consider that the uncommunicated contents of a conversation between the complainant’s mother and the complainant’s aunt did not provide any relevant context to the appellant’s state of mind. What might affect the appellant’s state of mind is what he was told, whether by his wife or anybody else. These questions did not touch that issue. Further, even assuming whatever was said by the complainant’s mother to the complainant’s aunt on 29 February 2012 was relevant context in relation to the first conversation, answers to the two rejected questions would not have provided a relevant context to the appellant’s state of mind during a subsequent conversation about one month later on 25 March 2012.
In the circumstances of this case, where no suggestion of a prior inconsistent statement had been made to the complainant and a proper understanding of the context of an admission did not require exploration of the issue, the trial judge was correct to reject the two questions asked of the complainant’s aunt about which complaint was made. I would grant leave to appeal under s.5(1)(b) Criminal Appeal Act 1912 but reject ground 2 of the notice of appeal.

Ground 5 – the verdicts were unreasonable and cannot be supported

a. because there was “no satisfactory evidence…capable of sustaining proof beyond reasonable doubt that the complainant was under the age of 10 years”;

b. because evidence of conversations between the accused and his then wife, the witness [the complainant’s aunt]…was so ambiguous, disjointed and partial that it ought to have been seen as of little or no weight in proof of the charges; and

c. because in respect of all the counts the evidence generally was unsafe and unsatisfactory and there was a substantial miscarriage of justice

The appellant identified three particulars concerning the complaint in ground 5 about an unreasonable verdict. The first was that there was no satisfactory evidence capable of sustaining proof beyond reasonable doubt that the complainant was under the age of 10 years. The second was that evidence of a conversation on 25 March 2012 between the appellant and his then wife, the complainant’s aunt…was so ambiguous, disjointed and partial that it ought to have been seen as of little or no weight in proof of the charges and the third was that the evidence generally was unsafe and unsatisfactory and there was a substantial miscarriage of justice.

Appellant’s submissions

On the first particular, the appellant submitted that on a factual review of the evidence as to the complainant’s age at the time of the offences this Court should recognise that the convictions are unsafe and unsatisfactory. The appellant submitted that in the present case, there was a deficiency of independent and direct evidence of “markers” to substantiate the word of the complainant.

The appellant submitted that the letter sent by the complainant on 26 April 1998, together with the evidence of the complainant’s mother, casts sufficient doubt on the complainant’s evidence about her age. On the date of the letter the complainant was aged 10 years, 8 months and 12 days. In the letter the complainant thanks her aunt and uncle for letting her stay at their house. In 1998, Easter was the closest holiday before the date of the letter. Easter Sunday was on 12 April 1998. The complainant’s mother gave evidence that, to her memory, the complainant had only once stayed at her sister’s house in Casula. Counts 3-7 were said to have occurred on the same day at Casula and counts 8-9 were alleged to have occurred after the Casula offences.
The jury needed to be satisfied, beyond reasonable doubt, that the offences were committed before the complainant’s 10th birthday, 14 August 1997. The appellant submitted that the letter, being “objective and independent evidence, raises a major doubt with respect to [the complainant’s] age”.
As to the second particular, the appellant submitted that the evidence of “admissions” by the appellant were not at all reliable. They never at any stage became a clear admission of wrongdoing alleged against the appellant in the indictment. To the contrary, there was evidence of a denial, extracted at [62] above.
The appellant submitted that the “highly coloured” supplementary evidence provided by the complainant’s aunt in the second statement was not the product of contemporaneous note-making by the witness, or of an electronic recording, but emerged as the witness “stewed” for several months over the allegations and the relationship breakdown and various family tragedies. The appellant relied upon R v DRF [2015] NSWCCA 181.
As to the third particular, the appellant submitted that the collective effect of deficiencies in the Crown’s case would cause this Court to hold a reasonable doubt about the verdicts, and to conclude that the jury should have had such a doubt. The alleged deficiencies, the appellant submitted, are as follows:

first, the alleged admissions (set out in ground 5(b) above);

secondly, there was an absence of evidence supporting the criminality alleged by the complainant;

thirdly, several counts on the indictment involved far-fetched allegations that a jury should have rejected:

relevantly, counts 8 and 9, the complainant alleged, occurred while she and her family were watching television at her grandparents’ house at Earlwood. It was a small house. The complainant gave evidence that after the complainant’s aunt, the complainant’s brother, her parents and grandparents all left the room, at the same time, the appellant immediately indecently assaulted her. On her account, after he had stopped touching her, “everybody” came back into the lounge room. The appellant submitted that it is difficult to imagine how the appellant was realistically able to assault the complainant for “about half an hour” without being caught by other people in the house. There was no independent evidence to support this allegation. The appellant submitted that in the domestic context that it occurred makes it a very improbable allegation.

the next matter the appellant complained about was the evidence of the “context” episode while the complainant was in the lounge room with the whole family watching a Stephen Seagal movie. She gave evidence that the appellant put a cushion on his lap and dragged her hand onto his erect penis. He also rubbed her vagina. The appellant submitted it is hard to conceive how his alleged misconduct occurred without it being seen by anyone else in the room.

the next “context” incident, which allegedly occurred the next day. The complainant and the appellant were again not alone while watching an Easter movie on television. The complainant gave evidence that while her grandmother was there the appellant rubbed her vagina and also fingered her. For the same reasons as stated in (a) and (b), the appellant submitted the complaint appears far-fetched.

in relation to counts 3-7, said to have occurred in the Casula house, the evidence of the complainant was that she was indecently assaulted while the complainant’s aunt was taking a shower next door for approximately 15 minutes. The appellant submitted that given the proximity and limited time, it seems implausible that the appellant could remove his entire suit and put it all back on once hearing the shower was turned off.

fourthly, many of the allegations were made under pressure. The original complaint was made at a time when the complainant was under emotional pressure from her boyfriend. At the time, he had been pestering her about her body image problems and intimacy problems in their relationship. He was generally frustrated and angry and she was irritable and snappy towards him. It was in the context of tension in their sexual relationship that she made the sexual assault allegations.

fifthly, the complaints made to the complainant’s boyfriend and mother, being the first and second occasions on which she communicated the allegations, lacked detail; they were merely a “bare-bones” assertion.

Consideration of unreasonable verdict ground

As I will need to address the case as a whole under this third particular, I will address the particulars of ground 5 together. The applicable principles in relation to a complaint of an unreasonable verdict are set out in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13:

in applications of this nature the court is asked whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493 (Mason CJ, Deane, Dawson and Toohey JJ);

the test stated in M v The Queen is not materially different (although different in form) to the statutory test contained in s 6(1) of the Criminal Appeal Act 1912 (NSW). That test is whether the verdict is “unreasonable” or “cannot be supported, having regard to the evidence”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58];

the court is to make an “an independent assessment of the evidence, both as to its sufficiency and its quality”: Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at 473. Furthermore, in reaching such a conclusion, the Court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand” (footnotes omitted): M v The Queen at 492-493; and

the jury has an advantage over a Court of Criminal Appeal in having heard and seen the witnesses at trial. If that advantage is capable of resolving a doubt experienced by an appeal court, the court may conclude that no miscarriage of justice occurred. But if the doubt cannot be explained that way, a miscarriage has occurred: M v The Queen at 493.

In determining if there has been a miscarriage of justice, a decision by counsel for the defence to take or refrain from taking a particular course at the trial needs to be examined to determine if it has or could have resulted in a forensic advantage. That is an objective test. The forensic advantage must be weighed in comparison to any defect or irregularity found in the trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8]-[16]; [26]-[28]; [32]-[33] and [107]-[109].
In MC v R [2017] NSWCCA 274 Hoeben CJ at CL (Davies and Bellew JJ agreeing) made the following observations about the assessment of the credibility and reliability of witnesses in child sexual assault trials at [89] and [92]:

“[89] R A Hulme J observed in Atai v R [2014] NSWCCA 210 at [134] that the assessment of the credibility and reliability of the evidence of witnesses is quintessentially one for a jury to determine.
…
[92] The authorities make it clear that the Court should not too readily conclude that in such circumstances the complainant’s evidence should be disbelieved or that no guilty verdict based on her evidence can stand. Rather the Court is to look at all of the evidence and determine whether in light of the verdicts and the facts and circumstances of the case it is necessary to intervene to prevent a possible injustice from occurring: Allan v R [2017] NSWCCA 6 at [84] – [85].”

I have considered all of the evidence at the trial. The evidence of the complainant was obviously critical to the case. Her evidence appears to me to be careful and credible. She made sensible concessions in cross-examination but the core features of her evidence were unshaken by that cross-examination. Accepting that the assessment of reliability and credibility of the complaint was a matter for the jury, I do not in any event harbour any doubts about her credibility and reliability having regard to all the evidence.
As it is particular one of this ground of appeal I need to address in some detail the evidence which satisfied the jury that the complainant was under 10 at the time of the incidents the subject of the indictment. The complainant was born on 14 August 1987. The Crown had the burden of satisfying the jury beyond reasonable doubt that the offences occurred before the complainant’s 10th birthday, namely, 14 August 1997.
Counts 1 and 2 were said to have occurred in [the complainant aunt’s] old bedroom at the complainant’s grandparents’ house in Earlwood. The complainant gave the following evidence with respect to her age at the time:

“Q. Do you know how old you would you have been about that time?
A. Close to the age of seven.
Q. Do you know roughly what year that would have been?
A. Not off the top of my head.
…
Q. What is it that you remember happening in your grandparents’ house?
A. We were watching a show or sitcom with Tim Allen called Home Improvement”.

In cross-examination the complainant said she was confident that she was younger at the time of the alleged assault:

“Q. Did you say five or six, I may be wrong?
A. That’s right.
Q. Five or six?
A. Yes.
Q. Are you confident about that?
A. Yes.”

I do not think that anything turns for this purpose on the difference between being confident that she was five or six at the time or “close to the age of seven”.
Counts 3-7 were said to have occurred during a visit to the appellant’s and [the complainant aunt’s] house in Casula. The following exchange took place in examination-in-chief:

“Q. What was the occasion that you remember something happening in Casula? How old were you?
A. On this occasion I think I was around seven or eight.
Q. Do you remember the year?
A. It would have been – I can’t think about the year right now. I’m not sure.
Q. That’s all right.
A. But roughly around that age. It would have been in the school holidays, I think.
…
Q. On this occasion were your parents in the Casula house?
A. No.
Q. Who was in the Casula house?
A. Just me. My brother was also in Sydney, but he was staying at my grandparents.”

In cross-examination, the complainant said she was seven years old and then later confirmed that she was seven or eight:

“Q. Were you resisting?
A. I was seven years old.
…
Q. You were seven or eight?
A. Yes.”

The Casula assaults were the subject of submission about the letter, Exhibit 1, which I have addressed in detail above at [19].
Counts 8 and 9 were said to have taken place at the complainants’ grandparents’ house in Earlwood while the complainant was watching television. Relevantly, the complainant gave the following evidence as to her age at the time:

“Q. How long after the Casula event did this happen at your grandparents’ house?
A. Probably a couple of months.
Q. What makes you say that?
A. Just from memory.
Q. Were you still seven or eight years old?
A. Roughly seven or eight years old.
…
Q. You say this was a couple of months later?
A. Yes.
Q. After Casula, that is?
A. Yes.”

The Crown led context evidence of several matters occurring in Canberra after both the events in Casula (Counts 3-7) and Earlwood (Counts 8 and 9) took place. The first one occurred at Easter whilst she was watching a Steven Seagal movie at her parents’ house:

“Q. Did something with [the appellant] happen again after that, something sexual?
A. Yes.
Q. Where was that?
A. My parents’ house.
Q. Which state would that have been?
A. Kambah [A.C.T.]
…
Q. How old were you at this time?
A. I think I was closer to ten. It was later in the evening, so it was dark.”

After that exchange the trial judge asked a question:

“Q: Do you know what year that would have been or not?
A: 96/97-ish. I’m just – roughly, I think. I can’t say for sure. I’m not sure.”

During cross-examination, the complainant said she could not exactly remember her age at the time of these subsequent context incidents. She eventually accepted she could have been 11 years old at the time of these subsequent context incidents:

“Q: You say you were around ten-ish at the time of this alleged incident at your parents’ house in Canberra?
A: Yes.
Q: Do you mean by that, that you can’t remember exactly whether you were--
A: I can’t remember exactly my age.
Q: Whether you were under ten or over ten?
A: Correct.
Q: It could have been either.
A: Yes.
…
Q: I asked you earlier, in reference to you saying that the day before, your evidence was that you were ten-ish. Do you remember that?
A: Yes.
Q: I suggested to you that you could have been under ten or you could have been over ten; correct?
A: Yes.
Q: You agreed?
A: Yes.
Q: This event, as you have given evidence about, occurred the next day.
A: Yes.
Q: At which time you were, again, ten-ish. You were ten-ish plus one day; correct?
A: Yes.
…
Q: You could have been 11?
A: Yes.”

The next context incident was said to have occurred whilst watching an Easter movie at her parents’ house. The complainant said it occurred the day after she was watching the Steven Seagal movie. The final context matter was alleged to have occurred in a park across the road from the complainants’ parents’ house. When asked about the date of the incident the complainant gave the following evidence:

“A. …it wouldn’t have been a few years. It would have been – I can’t pinpoint an age right now. I remember what happened.
…
Q. Can you be any more precise than what you’ve described?
A. I can say I would have roughly been closer to the age of 11.”

In cross-examination the complainant said the incident in the park occurred about six months after the previous incident.
The complainant gave evidence that she was in Year 5 and aged 11 when she first appreciated that she had been the victim of sexual abuse. In cross-examination, the complainant said this was in 1998.
I do not regard the concessions made by the complainant that she was likely 11 years old at the time of the subsequent context incidents as significant.
During cross-examination of the complainant she was asked about the age range she gave her mother at the time of the complaint on 29 February 2012:

“Q: At the time you complained to your mother which we can assume was 29 February 2012?
A: Yes.
Q: You told her you’d been sexually assaulted by [the appellant]?
A: Yes.
Q: You mentioned your ages?
A: Somewhere in the conversation, yes.
Q: Do you today not remember what age range you gave?
A: In the conversation?
Q: With your mum?
A: I gave her an age range.
Q: Do you remember what it was?
A: Yes.
Q: What was it?
A: Between five and eleven.
Q: The suggestion that you gave an age range of between three and seven would be wrong?
A: Yes.”

As discussed above, defence counsel at trial relied on Exhibit 1 to cast doubt on the complainant’s age at the time of the events the subject of counts 3-9. It will be recalled that that letter was sent by the complainant to the appellant and her aunt following a visit to them at the Casula house. The letter was post-marked 26 April 1998. On this date the complainant was aged 10 years, 8 months and 12 days.
The complainant gave the following evidence about visiting her family in New South Wales during the school holidays:

“Q. On those occasion [sic] when your family visited your grandparents, would you also visit [the appellant] and [the complainant’s aunt]?
A. In Earlwood or --
Q. Wherever. In Earlwood or where they lived?
A. Yes.
Q. The occasions where these visits would take place, coming up to New South Wales, was there any particular time of year where they would usually occur?
A. Around I guess – I guess holidays. Easter, Christmas. Things like that.
Q. How regularly would your family visit New South Wales?
A. Pretty regularly. My brother and I would come down in school holidays a lot, and then – yeah a fair bit.
Q. When your brother and you came down in school holidays, who would you stay with?
A. More so my grandparents, and then I would spend a lot of time with – like, staying the night at [the complainant’s aunt’s].”

The complainant’s aunt gave the following evidence about the complainant’s family visiting her (and the appellant) in Casula during school holidays:

“Q. Were there occasions when it was just the children who would come and visit you?
A. It was always only the children that slept over, but the whole family came to visit.
Q. When you say, ‘It’s only the children that slept over’, who are you referring to?
A. [the complainant] and [the complainant’s brother].
Q. Where would they sleep over?
A. We had a spare room adjacent to the main bedroom.
Q. This is in Casula?
A. Yes.
…
Q. Can we just go back to the visits between the two families, between New South Wales and the ACT?
A. Yes
Q. How regularly would these visits take place?
A. They would take place in school holidays. They would take place over special occasions like holy communions or Christmas or Easter.
Q. In terms of the arrangements of the children staying over at Casula, can you just describe what those arrangements were?
A. It wouldn’t be for long periods. It might be for one or two nights, either in the school holidays or on the weekend and they would usually be – I think one child at a time, and we would have a spare room.
Q. This was in a house at Casula?
A. Yes.”

It is noteworthy that the complainant’s aunt was not cross-examined by counsel for the accused about the contents of Exhibit 1. During examination-in-chief, the complainant’s mother was asked on how many occasions the complainant “would stay” at Casula:

“Q. Was there any occasion when your family would stay with [the appellant] and the complainant’s aunt?
A. Not all of us. I recall on one occasion during the school holidays I would send [the complainant] .. to stay with mum and dad. On one of these occasions and complainant’s aunt had invited my daughter [the complainant] to come and stay with them, with the complainant’s aunt and [the appellant] at Casula, and she did.
Q. Do you know how often that would occur?
A. No. From memory I think it might have been just that once. I can’t remember off the top of my head.” (emphasis added)

It is clear that the jury was well able to conclude, based on this evidence, that the complainant had slept over at the house in Casula occupied by her aunt and the appellant on more than one occasion and that the occasion referred to in Exhibit 1 was not the only occasion she had stayed over.
The only evidence to the contrary was given by the complainant’s mother. A few matters should be noted about that evidence. In terms, she stated that she did not know how often the complainant had slept over at the house in Casula occupied by the complainant’s aunt and the appellant; she answered the question “no”. Secondly, what the complainant’s mother went on to say is tentative and heavily qualified; “from memory”, “might” and “top of my head”. Thirdly, it was open to the jury to conclude that the complainant’s aunt was likely to have a much more accurate idea about the number of occasions the complainant slept over. She gave clear evidence that the complainant slept over on many occasions and was not contradicted, based on Exhibit 1 or otherwise. There was abundant evidence in the trial that these sleep overs occurred during visits to the complainant’s grandparents during school holidays when the complainant’s mother was not present.

The jury had the opportunity to observe the complainant, her mother and the complainant’s aunt give evidence. The complainant was not seriously challenged about whether she was below 10 at the time of the incidents she described. The complainant’s aunt was not challenged about her clear evidence that the complainant slept over at Casula on a number of occasions. In those circumstances, Exhibit 1 and the evidence of the complainant’s mother did not necessarily cast any doubt on the complainant’s age at the time of the offending nor support a conclusion that it was not open to the jury to convict, or that this Court should have a reasonable doubt.
I have made an independent assessment of the evidence in relation to particular one and have concluded that there is ample evidence upon which a jury might convict, and this is not a case where, despite that conclusion, it would be dangerous in all the circumstances to allow the verdict of guilty to stand.
As to the second particular, the evidence of conversations between the complainant’s aunt and the appellant was led by the Crown as context evidence (12 March 2012 first conversation) and an admission (25 March 2012 second conversation) and was addressed in ground 2. It will be recalled that the complainant’s aunt made two written statements and it was only in the second statement, dated 12 November 2012, she gave the evidence in relation to the second conversation on 25 March 2012. The critical parts of that statement were that the appellant had said to her that he “had decayed on the inside” and was a “monster” and that he might kill himself “without [her] and the kids”.
In cross-examination about the first conversation the complainant’s aunt agreed that the appellant effectively had denied the allegations that he had assaulted the complainant:

“Q. I suggest to you that he said, ‘That’s crazy. I’ve never laid a hand on [the complainant]. Why would she say that? What am I supposed to have done. Are they worried they are going to be left out of the will?’, what do you say to that?
A. I say that I relate to some of those things but not all of them.
Q. You relating to them, is that--
A. My memory of them, of that conversation.
Q. It’s going back four years?
A. They are very similar words to what I have said in my statement.
Q. They could accurately represent the words that [the appellant] uttered.
HIS HONOUR: All of them? All of them you mean, Mr Thomas?
THOMAS: Yes.
Q. Do you agree?
A. Most of them.”

In relation to the second conversation, the appellant’s counsel put that a conversation similar to that recounted by the complainant’s aunt occurred but in context the appellant’s remarks were about the end of his marriage and his own children:

“Q. On 25 March 2012 I suggest that [GM] tried to talk to you and you left the room and he followed you?
A. Yes.
Q. The conversation that occurred was in that context, do you agree?
A. Yes.
Q. I suggest that he told you words to the effect, ‘The only good thing that has happened to me in my life is you and the kids. I love you. Let’s sort this mess out’?
A. Yes.
Q. I suggest that he was, in effect, very visibly and noticeably upset when he was talking to you, do you agree [with] that?
A. Yes. Yes.
Q. I suggest that he said to you, ‘We are doing well as a family. We are doing well financially. The kids are happy. Let’s work this out. We have a good future together’?
A. No. I don’t remember those words, but maybe words to that effect. Yes.
Q. I suggest that he said to you, ‘… you are treating me like a monster’?
A. No.
Q. I suggest he said to you, ‘I feel that I’m decaying inside by the way I’m being treated’, what do you say to that?
A. No. No.
Q. I suggest he said to you, ‘How can you prove something that never happened?’
A. No.
Q. You said, ‘That’s your opinion. What if your daughter said this?’, what do you say to that?
A. I say no.
Q. He said, ‘That’s irrelevant because my daughter has not said this’?
A. No.
Q. He also said to you, you previously said that you asked them if they are safe and they said they are, what do you say to that?
A. Could you re-say that?.
Q. He also said to you that you previously said that you asked them if they were safe and you said they were?
A. Yes.
Q. I suggest that you said, ‘I want to separate’?
A. I don’t remember.
Q. Well, you did say words to the effect, ‘I want to separate’, didn’t you?
A. I would have said words to the effect, ‘I need a break’.
Q. I suggest that whether it was, ‘I want to separate’ or – you say you don’t remember, ‘I want to separate’ but you can remember, ‘I want a break’?
A. Yeah. I want space.
Q. I suggest that after you referenced separation or space or break, he said to you, ‘I’ve always been a good provider. You always wanted to live in Oatley’, what do you say to that?
A. Yes.
Q, ‘Why don’t we buy a house there?’?
A. No.
Q. I suggest he said, ‘Why don’t we buy a house there. If you want to live there with the kids, I can live elsewhere for a while. We can see what we can do’?
A. No.
Q. Do you agree that there was reference made to buying a house in Oatley?
A. Yes.
Q. Do you agree that you always wanted to live in Oatley?
A. Yes.
Q. I suggest that the context in which he expressed himself and the words he said were referencing moving forward together as a family, buying a house in Oakley as you always wanted and him living separately if that is how you felt, do you agree?
A. No.
Q. I suggest that in response to that you said words to the effect, ‘The best thing you can do at this point is leave and go and stay with your dad’?
A. I didn’t give [the appellant] any – any reason to believe I was leaving the family home.
Q. I’m suggesting to you that you said to him words to the effect, ‘The best thing you can do at this point is leave and go is and stay with your dad’, [sic] do you agree with that or not?
A. I don’t remember it, no.
Q. Could you have said that?
A. I don’t think I knew then what I was going to do.
Q. But you told him, even on your version, that you told him you needed a break?
A. Yes. But I hadn’t thought about where I was going to live. I was in a crisis.
Q. You were distressed at this time, do you agree?
A. Yes. Yes.
Q. At the time of this conversation you were distressed?
A. Yes.
Q. He was distressed?
A. Yes.
Q. You were both distressed?
A. Yes.
Q. You, at the very least, told him you wanted a break?
A. Yes.
Q. That meant you meant to convey separation, didn’t you?
A. Yes.
Q. Separation would involve people living in difference places, wouldn’t it?
A. Yes.
Q. I suggest that that was the context in which he referenced buying a house in Oakley, which is what you always wanted?
A. No.
Q. Would you agree that he talked about buying a house in Oakley?
A. Yes.
Q. Do you agree that he expressed himself in terms that you would live there with the children?
A. It was in exchange for not saying anything.
Q. You have referred to this conversation in your statement?
A. Yes.
Q. Were you telling the truth when you made your statement?
A. I was telling the truth.
Q. Did you seek to include in it everything that was said during this conversation?
A. Yes.
Q. This conversation was led from you in evidence by my learned friend when you were being questioned, do you agree?
A. Yes.
Q. You said [the appellant] said, ‘He had decayed on the inside. I’m a monster’?
A. Yes.
Q. That’s the evidence you gave?
A. Yes.
Q. He shouted, ‘I never leave him, and that if I ever did he would kill himself’? [sic]
A. Yes.
Q. He never said he was going to kill himself?
A. He did.
Q. He said he couldn’t live without you and the children?.
…
Q. He said he couldn’t live without you and the children?
A. And he would kill himself.
Q. He stated he can’t change the past but he can change the future?
A. Yes.
Q. I suggest that was never said. What do you say to that?
A. He said that.
Q. I suggest you went on to say in evidence when my friend was asking you questions, ‘Let me buy you a house in Oatley where you and the kids can live alone but remain married to me’?
A. That’s correct.
Q. You went to give evidence led by my friend, ‘He continued to say, ‘I love you. Without you and the kids, I will kill myself’’?
A. Yes.
Q. I suggest he said he loved you?
A. Yes.
Q. The kids?
A. I don’t remember, but probably yes.
Q. It was obvious that he wanted the family to stay together?
A. No. I think he wanted to save public face and have people believe that the family was still together.
Q. You’re just trying to poison this proceeding, aren’t you?
A. No.
Q. By expressing your opinions.
A. No.
Q. You agree that he said he loved you?
A. Yes.
Q. Wanted the family to stay together?
A. No.
Q. You gave evidence that you told him he was sick?
A. Yes.
Q. He said, ‘How are you going to prove something that may or may not have happened?’’A. Yes.
Q. That was the effect of the evidence you gave?
A. Yes.”

The credibility of the complainant’s aunt was a matter for the jury to assess. She was cross-examined aggressively for some time over two separate days. The transcript is replete with references to the trial judge directing counsel for the accused not to shout at or speak over the witness. Having been tested in this way, and adhering to her evidence about the relevant conversation, it was open to the jury to accept her evidence.
In the context of all of the evidence at the trial, the evidence of the second conversation on 25 March 2012 was capable of being regarded by the jury as probative.
The trial judge gave an appropriate warning to the jury to the effect that evidence of admissions can be unreliable, and that the jury should exercise caution in assessing the evidence. Relevantly, the trial judge stated:

“Before I leave this topic, I also need to warn you that evidence of admissions can be unreliable, and you should exercise caution in determining the two matters to which I refer, and also as to what weight, if any, you may give this evidence and it is clear that whatever was said was said in a very strained, domestic atmosphere.”

The issue for the jury was whether they accepted the evidence of the complainant’s aunt about what was said, which if accepted was open to be considered as containing an admission against interest by the appellant. It was for the jury to consider whether to accept that the appellant was in fact referring to the sexual assaults alleged against him by the complainant or more generally to his relationship breakdown and various family tragedies. The jury was also required to take into account in assessing the case the evidence of the appellant’s earlier denial.
I do not accept that the evidence of the complainant’s aunt in the second statement necessarily gave rise to any doubt. It is true that the statement was not the product of contemporaneous note-making by the witness or of an electronic recording, but neither matter provided an insuperable barrier to the reliability of the evidence generally or in the circumstances of this case.
The appellant’s reliance upon R v DRF leads to no different conclusion. In that case this Court (Leeming JA; Simpson JA; Schmidt J) allowed an interlocutory Crown appeal about the exclusion of a covert recording of the accused. In so deciding Simpson JA said:

“[91] Notwithstanding that s 294AA of the Criminal Procedure Act now prohibits a direction that juries, before convicting in trials of sexual offences, should scrutinise with great care the uncorroborated evidence of a complainant (see Ewen, at [146]), it may be expected that juries, in applying the principle of the presumption of innocence, and the need for the Crown to prove its case beyond reasonable doubt, will treat the uncorroborated evidence of complainants with some scepticism. Corroborative evidence is an important aspect of the public policy interest in the prosecution of crime. Securing confessional evidence by means that do not involve coercion or unfair tactics does not contravene public policy consideration.”

I agree with the remarks of Simpson JA but they do not lead me to conclude that this is a case where it would be dangerous in all the circumstances to allow the verdict of guilty to stand.
In relation to the third particular, none of the matters canvassed by the appellant under this ground would cause me to hold a reasonable doubt about the guilt of the appellant. I have read all the evidence and set much of it out in some detail in addressing the first two particulars of this complaint. I will not repeat the analysis here of the age of the complainant or the conversation of 25 March 2012.
I reject the appellant’s submission that there was an absence of evidence supporting the criminality alleged by the complainant. It is true that the critical evidence in the case was that of the complainant. So much is commonplace in child sexual assault cases and is not, of itself, grounds to find an unreasonable verdict. As I have said, the complainant’s evidence here was clear and compelling. Whilst the assessment of her reliability and credibility was essentially a matter for the jury, having read that evidence I do not harbour any doubt about the conviction.
I do not accept that “several counts on the indictment involved far-fetched allegations that a jury should have rejected”. The fact that some offences occurred while they were watching television at her grandparents’ small house at Earlwood does not make the allegations “far-fetched”. Tragically, it is not unusual for child sex offences to be committed in small houses, or even in the presence of other family members:

in this case the complainant gave evidence that after her aunt, the complainant’s brother, her parents and grandparents all left the room, the appellant immediately indecently assaulted her. On her account, after he had stopped touching her, people returned to the lounge room. I do not accept that “it is difficult to imagine how the appellant was realistically able to assault the complainant for ‘about half an hour’ without being caught by other people in the house” or that the domestic context makes this an improbable allegation. There is nothing in the objective circumstances which leads me to conclude that there is insufficient evidence upon which a jury might convict or that, notwithstanding that conclusion, this is a case where the verdict was unreasonable;

to like effect, I would reject the appellant’s complaint about the evidence of the “context” episode while the complainant was in the lounge room with the whole family watching a Stephen Seagal movie. She gave evidence that the appellant put a cushion on his lap and dragged her hand onto his erect penis and also rubbed her vagina. As I have said, the fact that some offences occurred while the appellant and the complainant were watching television at her grandparents’ small house at Earlwood with others does not make the allegations “far-fetched”;

the next “context” incident, on the next day, occurred when the complainant and the appellant were again not alone while watching an Easter movie on television. The complainant gave evidence that while her grandmother was there the appellant rubbed her vagina and also put his finger inside her vagina. There is nothing about this evidence that I regard as far-fetched;

in relation to counts 3-7 in the Casula house, the evidence of the complainant was that she was indecently assaulted while her aunt was taking a shower next door for approximately 15 minutes. I do not harbour doubt on the basis that the appellant had only limited time to put his clothes back on once hearing the shower was turned off.

I do not accept the appellant’s submission that “many of the allegations were made under pressure”, being “emotional pressure” from her boyfriend. It is unsurprising that a victim of child sexual assault might have body image problems and intimacy problems. The suggestion that the jury or this Court should conclude that these allegations were made by reason of tension in her sexual relationship is one the jury were open to reject and it is not a conclusion I would draw.
Finally, the fact that the complaints made to the complainant’s boyfriend and mother were merely “bare-bones” complaints does not lead me to any different conclusion. The detail of initial accounts of child sexual assault may well differ depending on a number of circumstances, including the time since the offending conduct and the particular circumstances in which the complaint is made. The initial lack of detail in the complainant’s explanation to her boyfriend and mother does not lead me to conclude, together with the other circumstances, that the verdict of the jury was unreasonable.

Conclusion and order

Having regard to all of the evidence in this case, there was sufficient evidence upon which a jury might properly convict. This is not a case where, despite that conclusion, it would be dangerous in all the circumstances to allow the verdict of guilty to stand. I would grant leave to appeal under s.5(1)(b) Criminal Appeal Act 1912 but reject Ground 5. I have earlier rejected grounds 1 and 2 of the notice of appeal.
I propose the following orders:

Grant leave to appeal under r 4 of the Criminal Appeal Rules on ground 1;

Grant leave to appeal under s 5(1)(b) Criminal Appeal Act 1912 on grounds 1,2 and 5;

Appeal dismissed.

JOHNSON J: I have had the advantage of reading, in draft, the reasons of Payne JA and Adamson J with respect to this appeal. I gratefully adopt Payne JA’s summary of the trial and the evidence. I agree with the reasons of Adamson J. I would refuse leave to argue Ground 1, but grant leave with respect to Grounds 2 and 5. The appeal should be dismissed.
With respect to Ground 5 (the unreasonable verdicts ground), I note that I have read the transcript of evidence adduced at the trial. Applying the principles referred to by Adamson J at [152] and having made an independent assessment of the evidence, I am satisfied, upon the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the offences of which he was convicted.
ADAMSON J: I had the benefit of reading the reasons of Payne JA in draft and adopt his Honour’s summary of the trial and the evidence. My reasons for refusing leave under r 4 of the Criminal Appeal Rules and agreeing with the other orders proposed by his Honour can, accordingly, be expressed briefly. I note that grounds 3 and 4 were not pressed.

Ground 1: alleged error in failing to put lesser charge as alternative verdict

As part of the trial judge’s duty to secure a fair trial for the accused, the trial judge may be obliged to consider whether an alternative verdict ought be left to the jury. This decision is informed by the forensic choices of counsel and an assessment of whether the alternative count accords with the real issues in the trial: James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [38] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
The appellant was charged with 8 offences under s 61M of the Crimes Act 1900 (NSW) (aggravated indecent assault, aggravated because the victim was a child under 10). By reason of s 61Q of the Crimes Act, alternative verdicts were, relevantly, available in the present case under s 61L (indecent assault) or s 61N (act of indecency). He was also charged with one offence under s 66A of the Crimes Act (sexual intercourse with a child under 10). Section 66E(1) of the Crimes Act provided that if the jury was not satisfied that the complainant was aged under 10 but was satisfied that she was under 16 they could find the appellant guilty of an offence under s 66C(1) of the Crimes Act (sexual intercourse with a child under 16 years).
It was the Crown which raised the possibility of an alternative verdict with the trial judge on the basis that not putting it might cause unfairness to the Crown which could arise if the jury were satisfied as to each of the elements of the offences apart from the element that the complainant was under the age of 10 years at the time of the offences. The trial judge noted that the Crown had not opened on the basis of an alternative verdict and expressed the preliminary view that it was “too late now”. The Crown did not press the application.

Counsel for the appellant did not participate in this exchange. I regard his silence as reflecting his forensic decision that it was more advantageous for the appellant to have the chance of an acquittal on all, or some, counts on the basis that the jury was not satisfied beyond reasonable doubt that the complainant was aged less than 10 at the time, than to have the jury convict him of lesser offences if they retained a reasonable doubt on that question.
His Honour’s decision not to put an alternative verdict to the jury was consistent with the approach endorsed in James v The Queen and does not reveal error. As the appellant’s counsel at trial can be taken to have acquiesced in the decision, he would require leave under r 4 of the Criminal Appeal Rules. I would refuse leave under r 4.

Ground 2: alleged error in excluding evidence relating to conversations and stopping cross-examination concerning them

As set out in Payne JA’s reasons, this ground concerned two conversations between the appellant and his ex-wife, Ms K, the first of which occurred on 12 March 2012 and the second on 25 March 2012. Ms K’s evidence was that on 12 March 2012 she told the appellant that her sister, M (the complainant’s mother), had told her that the complainant had told her (M) that the appellant had sexually assaulted her. The appellant’s response was to deny that he had done so. Ms K also gave evidence that on 25 March 2012 the appellant told her that he had “decayed inside” and also said, “I am a monster”. He told her that if she left him he would kill herself. Ms K was cross-examined about these conversations. It was not suggested by the appellant’s counsel that the conversations had not occurred. Nor was it suggested that Ms K had made any accusation against the appellant in the second conversation.
The Crown objected when the appellant’s counsel put to Ms K:

“Q. But in your statement you went on to say that your sister informed you that, You were in the shower at the time and they were in the lounge room.”

The Crown objected to the question on the grounds that it was leading to a question about a conversation which contained second hand hearsay about a conversation between the two sisters which was said to have occurred weeks before (prior to the conversation on 12 March 2012) in which the revelation had apparently been made. The only relevance of the conversation on 25 March 2012 was what the appellant had told Ms K. The probative value of Ms K’s evidence about the appellant’s admissions on 25 March 2012 could not be affected by a conversation between the two sisters weeks before, to which he was not a party. Accordingly, I discern no error in the trial judge’s ruling to stop this line of cross-examination. This ground has not been made out.

Ground 5: alleged unreasonable verdicts

Ground 5(a): Alleged lack of satisfactory evidence in the trial that the complainant was under 10

The appellant argued that the verdicts were unreasonable because of the lack of “satisfactory evidence” that the complainant was under 10 at the time of the offences.
I note that the Crown relied on the circumstance that the appellant did not make a “no case” submission at the close of the Crown case. Accordingly, he can be taken to have accepted that the Crown case at its highest could support a finding of guilt on all elements, including on the question of the age of the complainant. The question whether the verdict was reasonable is, however, a different question: Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).
In the present case the complainant’s evidence in chief was that she was under 10 at the time of each of the offences. She was asked about occasions when she had visited Sydney from Canberra in the school holidays to which she responded that they visited “pretty regularly”. She also gave the following evidence:

Q. When your brother and you came down in school holidays, who would you stay with?
A. More so my grandparents, and then I would spend a lot of time with like, staying the night at [Ms K’s, the appellant’s then wife].”

In cross-examination the appellant’s counsel put to the complainant a letter which she had written to the appellant and his then wife, Ms K, which apparently bore a postage mark in 1998 and was addressed to them at their home in Casula. In the letter the complainant thanked them for allowing her to stay with them at Casula. Appellant’s counsel did not put to the complainant that she had only stayed there on one occasion and that the letter related to that single occasion. Nor did he put that she was probably 10 years old when she wrote that letter and was therefore at least 10 when the conduct alleged in counts 3-9 occurred.
Ms K gave evidence that sometimes her sister’s family (including the complainant) would come to Casula from Canberra where they lived. She said that usually one child stayed with them at Casula at a time.
The complainant’s mother was asked about occasions when the appellant and Ms K would invite members of her family to stay overnight with them, to which she responded that they had asked the complainant to stay. The appellant’s counsel asked the complainant’s mother whether she knew how often that had happened, to which she responded:

“No. From memory I think it might have been just that once. I can’t remember off the top of my head.”

Counsel for the appellant relied on the letter and the complainant’s mother’s evidence in his closing address to submit that “in all probability [the complainant] was over ten at that time that she stayed in Casula” as the complainant was born in August 1987 and therefore turned 10 in 1998, which was when the letter was written. He submitted that, on this basis, the appellant ought be acquitted of at least counts 3-9 (the conduct alleged in counts 8 and 9 having occurred after the conduct alleged in counts 3-7).
Having regard to the way in which the appellant’s counsel cross-examined the complainant (which did not include a challenge to her evidence that she had often stayed at Casula), the defence closing address was the first occasion on which it became apparent that the defence relied on the evidence of the complainant’s mother in connection with the letter in support of a submission that the Crown could not prove that the complainant was under 10 when the conduct alleged in counts 3-7 occurred.
It was, in my view, entirely open to the jury to accept the complainant’s evidence about her age at the time of the conduct alleged in each of the counts. Her mother’s evidence that she had only stayed at Casula once was, in terms, uncertain and indefinite. The jury was entitled to take into account that the recollection of the complainant’s mother was inconsistent with the complainant’s and Ms K’s evidence that the complainant had stayed over in Casula more than once. I reject the contention that the verdict was unreasonable on the basis identified in count 5(a).

Ground 5(b) – alleged unreliability of admissions made in conversations between the appellant and his wife

This ground apparently involves a challenge to the reliability of the admissions said to have been made by the appellant to his then wife on 25 March 2012. Following a request from the appellant’s counsel the trial judge gave a warning to the jury that evidence of admissions can be unreliable and that they should exercise caution. The trial judge reiterated the direction shortly before the jury retired. No complaint about the directions was made by the appellant’s counsel.
In this Court the appellant’s counsel appeared to submit that the evidence of the admissions was unreliable because Ms K was furious with the appellant. These were matters which were raised by the appellant in cross-examination of Ms K and in his closing address. Questions of fact and the weight to be given to evidence were pre-eminently matters for the jury. Moreover, no conclusion could be drawn that the jury necessarily accepted the evidence of Ms K as to the admissions made by the appellant. The jury may have rejected that evidence but believed the complainant’s evidence sufficiently to be satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences. This ground has not been made out.

Ground 5(c) - in the respect of all counts the evidence was “unsafe and unsatisfactory” and there was a substantial miscarriage of justice

This ground appears to be, in substance, a complaint that the appellant was convicted on the word of the complainant. It is well established that, before a jury’s verdict can be set aside as unreasonable, regard must be had to the jury’s advantage of hearing and seeing the witnesses called at trial. In undertaking an assessment of the reasonableness of the jury’s verdict (namely, whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of an accused) this Court should approach the question on the basis that the jurors, collectively, are the judges of the facts lest trial by an appeal court become a substitute for trial by jury: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
Having read all of the evidence, I discern nothing about the complainant’s evidence, taken by itself or in the context of the whole Crown case, which would lead this Court to entertain a doubt about the appellant’s guilt, much less one that the jury might not have been able to resolve, having regard to their advantage of seeing and hearing the witnesses. I am satisfied that on the whole of the evidence it was open to the jury to be satisfied of the appellant’s guilt on all counts beyond reasonable doubt. This ground has not been made out.

**********

Decision last updated: 13 December 2017

Medium Neutral Citation:	GM v R [2017] NSWCCA 298
Hearing dates:	13 October 2017
Decision date:	13 December 2017
Before:	Payne JA at [1]; Johnson J at [130]; Adamson J at [132]
Decision:	(1) Refuse leave to appeal on ground 1; (2) Grant leave to appeal on grounds 2 and 5; (3) Appeal dismissed.
Catchwords:	CRIME – appeal – conviction – nine counts of indecent assault with a person under the age of 10 years – one count of sexual intercourse with a person under 10 years – whether alternative verdicts should have been put to jury – whether the trial judge unfairly foreclosed the opportunity for defence counsel to investigate the context of admissions made by the appellant – whether verdict unreasonable having regard to the evidence
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Criminal Appeal Rules (NSW)
Cases Cited:	Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51 Jackson v R (1962) 108 CLR 591; [1962] HCA 49 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MC v R [2017] NSWCCA 274 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 R v DRF [2015] NSWCCA 181 R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category:	Principal judgment
Parties:	GM (Appellant) Regina (Crown)
Representation:	Counsel: G D Woods QC / G M Thomas (Appellant) I Bourke SC (Crown) Solicitors: Jordan Djundja Lawyers (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/295592
Publication restriction:	Under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) publication of the names of the appellant or the complainant or anything which would identify the complainant is not permitted.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 December 2016 Before: Letherbarrow DCJ File Number(s): 2012/295592