IW v R - [2019] NSWCCA 311

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: IW v R [2019] NSWCCA 311
Hearing dates: 9 September 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Before: Bathurst CJ at [1]
Fullerton J at [3]
Bellew J at [9]
Decision:
(1) The appeal against conviction is allowed.

(2) The convictions recorded against the appellant are quashed.

(3) The sentences imposed upon the appellant are quashed.
(4) Verdicts of acquittal are entered in respect of each of counts 1 and 2.
Catchwords:
CRIMINAL LAW – Evidence – Admissibility of credibility evidence of an accused – Where the appellant stood trial on charges of sexual assaulting a child in his care – Where the appellant relied substantially upon evidence of his good character as part of his defence – Where evidence of irrelevant matters had been excluded from a recorded interview between the appellant and police – Where such matters were specifically raised by counsel for the appellant in the appellant’s evidence in chief notwithstanding that they had been excluded by agreement – Where Crown then cross-examined the appellant in relation to such matters without a grant of leave and in breach of relevant statutory provisions – Where the Crown’s stated bases for the cross-examination were wholly inconsistent – Crown’s cross-examination entirely impermissible and grossly unfair to the appellant

CRIMINAL LAW – Summing up by trial judge – Where trial judge repeated a materially erroneous statement made by the Crown regarding certain evidence – Erroneous reference by the trial judge to “bad character evidence” – Erroneous directions given by trial judge as to the evidence of the appellant’s good character – Erroneous directions given by the trial judge as to the evidence of complaint

CRIMINAL LAW – Directions to jury during deliberations – Appellant charged with two counts of sexually assaulting a child in his care – Where jury requested in the course of their deliberations that excerpts of the complainant’s recorded evidence in chief be replayed – Excerpts replayed in the absence of the trial judge reminding the jury of either the cross-examination of the complainant or the evidence of the appellant – No direction given to the jury not to give disproportionate weight to the evidence of the complainant which was being heard for a second time – No direction given to the jury reminding them of the necessity to bear in mind the other evidence in the case – No direction given to the jury reminding them of the necessity to consider all of the evidence in the trial – Where the failure on the part of the trial judge to give such directions and warn the jury as to the caution with which they were to approach the re-playing of the complainant’s evidence amounted to a miscarriage of justice
CRIMINAL LAW – Unreasonable verdicts – Appellant charged with two counts of sexual assaulting a child in his care – Where a number of assertions made by the complainant were not consistent with objective evidence – Untruthful answers given by the complainant in an interview with police regarding contact with the appellant and his wife – Inconsistent evidence of complaint – Evidence of the appellant’s prior unblemished character – Verdicts unreasonable – Convictions quashed – Verdicts of acquittal entered
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
ARS v R [2011] NSWCCA 266
Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
Greenhalgh v R [2017] NSWCCA 94
Hill v R [2017] NSWCCA 136
Jarrett v R [2014] NSWCCA 140; (2014) 86 NSWLR 623
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30.
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Moore v R [2016] NSWCCA 185
Popovic and ors. v R [2016] NSWCCA 202
R v Castaneda (No.2) [2015] NSWSC 979
R v El-Azzi [2004] NSWCCA 455
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Meher [2004] NSWCCA 355
R v Melville (1956) 73 WN (NSW) 579
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
R v Ortega-Farfan [2011] QCA 364
Roos v R [2019] NSWCCA 67
Safi v R [2018] NSWCCA 134
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Category: Principal judgment
Parties: IW – Appellant
Regina - Respondent
Representation:
Counsel:
G Bashir SC and G Lewer - Appellant
M Cinque SC - Respondent
Solicitors:
Younes and Espiner Lawyers - Appellant
Solicitor for Public Prosecutions (NSW) - Respondent

File Number(s): 2016/233618
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 August 2018

Before:

Bright DCJ

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Bellew J in draft. I have also considered the whole of the record of the proceedings in respect to which the appeal has been brought.
I agree with the orders proposed by Bellew J and with his Honour’s reasons.
FULLERTON J: I am grateful for the detailed consideration Bellew J has given to the evidence adduced at the appellant’s trial in the judgment his Honour circulated in draft.
I agree with his Honour’s analysis of the arguments advanced by the appellant in support the first, second, third, fourth and seventh grounds of appeal as I do his reasons for concluding that each ground of appeal is made out. Were it not for the view I have reached as to ground 5, as with Bellew J, I would have quashed the convictions and sentence and ordered a new trial. I also agree with his Honour that leave to argue the sixth ground of appeal should be refused.
Insofar as the fifth ground of appeal is concerned, I have undertaken my own independent assessment of the evidence in accordance with the settled body of principle which governs the determination of whether a verdict of a jury will be set aside by an appeal court as unreasonable. While I am obliged, in accordance with that principled approach, to give consideration to the entirety of the evidence in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt of guilt, not unusually in the case of an historical allegation of sexual assault where the Crown case depends upon the tribunal of fact accepting the complainant as honest and her or his account as credible and reliable, an assessment of the complainant's evidence dominates that assessment.
After undertaking that exercise in this case, and after giving due consideration to the advantage the jury enjoyed in assessing the credibility and reliability of the complainant, I am left with a reasonable doubt as to the appellant’s guilt. I wish to make it clear, however, that in being left with a doubt as to the appellant’s guilt I should not be taken to have reached a positive finding that the complainant gave a false account of the sexual assaults, either to the investigating police or in her evidence at the appellant’s trial. Neither should I be taken to have made a finding that the words she attributed to the appellant were fabricated. There remain, however, two interrelated aspects of the complainant’s evidence which have compelled me to a finding that the fifth ground of appeal has been made out.
First, I have a concern about the reliability of that part of the complainant’s evidence where she described the circumstances in which the alleged offending occurred, including the timing of each of the two counts of sexual assault charged on the indictment and the extent of penetration she claimed to have experienced on each occasion. Secondly, I have a level of concern about the credibility of the complainant’s explanation for the Facebook communications with the appellant’s wife many years after the alleged offending. It is not so much the apparent flippancy of the tone and content of her communication with LW, and what appears to be some pleasure she had in goading her into a response by the suggestion that the appellant (her husband) was a paedophile that is of concern. That might be understandable from a young person who had not enjoyed the unqualified support of an immediate family, such that she may not have had either the courage or capacity to make a complaint of sexual abuse to LW or the authorities in a more direct and timely way for that reason. Of greater concern is that the complainant not only failed to disclose the content of those Facebook messages to police, but she told them she had no contact with the appellant or his wife after leaving their care. In addition, her claim in evidence to have had no memory of the Facebook exchange with LW or ER at all lacked cogency.
Finally, I acknowledge the weight of the appellant’s evidence of good character. Whilst that evidence may not, of itself, have raised a sufficient doubt as to his guilt, when taken in combination with the concerns I have expressed about the credibility and reliability of the complainant, I am satisfied that this ground of appeal has been made out and, that being the case, I agree with Bellew J that a verdict of acquittal should be entered, as I do with the other orders his Honour proposes.
BELLEW J:

INTRODUCTION

On 30 July 2018, IW (the appellant) pleaded not guilty in the District Court of NSW to the following offences:

Between 25 October 2007 and 16 July 2008, at Watanobbi in the State of NSW, did have sexual intercourse with (the complainant), who was at that time under the age of 10 years, namely 6 or 7 years (Count 1).

Between 25 October 2007 and 16 July 2008, at Watanobbi in the State of NSW, did have sexual intercourse with (the complainant), who was at that time under the age of 10 years, namely 6 or 7 years (Count 2).

Each of the alleged offences was contrary to s 66A of the Crimes Act 1900 (NSW) and carried a maximum penalty of 25 years imprisonment.
On 7 August 2018 the appellant was found guilty by a jury of both counts. On 24 August 2018 he was sentenced to a non-parole period of 8 years and 8 months imprisonment, with an additional term of 4 years and 4 months. The sentence was ordered to commence on 7 August 2018.
The appellant now appeals against his conviction on the grounds more fully set out below.

AN OVERVIEW OF THE APPELLANT’S TRIAL

The appellant and his wife (LW) had been registered foster carers since August 2007. They had a daughter (AW) and a son (B). On 25 October 2007, the complainant and her younger brother (LT) were placed into foster care with the appellant and LW, having been removed from the care of their mother (TT) by the Department of Family and Community Services (FACS). They remained with the appellant and LW until July 2008, at which time they were transferred to the full time care of the complainant’s aunt (CT) and her partner (ER).
The offending alleged in Count 1 was said to have occurred prior to Christmas 2007 at a time when LW and AW had left the house, and the complainant was left at home. On the Crown case, the complainant was watching television in a back room, and LT was playing outside. The appellant took the complainant into the bedroom that he shared with LW, grabbed her wrists and threatened her. The appellant then removed the complainant’s pants, held her down and had forced penile/vaginal intercourse with her. The appellant threatened the complainant that he would harm LT if she ever told anyone about what had happened.
The offending alleged in Count 2 was said to have occurred after Christmas 2007. On the Crown case, the appellant came into a bedroom that the complainant shared with AW, when AW was away for the night. He pushed the complainant over, so that she was face down on her stomach on the bed. He then held the complainant down, lifted her nightie, and had forced penile/vaginal intercourse with her, which was again followed by a threat not to tell anyone.
The complainant alleged that there were other occasions on which she was allegedly sexually assaulted by the appellant. This was relied upon by the Crown as context evidence.
The appellant participated in a recorded interview with police, and also gave sworn evidence before the jury, in which he denied the allegations. There was also evidence before the jury of the appellant’s prior good character which formed a significant aspect of the defence case.

THE EVIDENCE AT THE APPELLANT’S TRIAL

The assessment and approval of the appellant and LW as foster carers

Barbara Taylor, who gave evidence in the Crown case, [1] was the Programs Manager of the Wesley Mission Out of Home Care, which cared for children who had been placed in the care of the Minister for Family and Community Services. Ms Taylor confirmed that when the appellant and LW applied to become foster carers, they were required to undergo an assessment process which she described as follows: [2]

… We had a series of four to five interviews, probably about two to two and half hours each session. They’re usually held at round about a week apart. And it’s a comprehensive interview of both parties that wish to be foster carers. Prior to that they’ve already had criminal checks, working with children’s checks – all the necessary other checks.
1. Commencing at T199.5.
2. T199.35-T199.40.

Ms Taylor also explained [3] the training program that the appellant and LW were required to undergo prior to being approved:

Q.   Is there training? Once the foster carers are approved, is there training    that they undergo?
A.   Yes.
Q.   Can you explain for us what that training is?
A.   Connecting Carers used to run a series of relevant training. It could be    behaviour management, it could be trauma informed practice; it could    be a lot of different training and we would invite the carers to come.    Also, (IW) and (LW) attended the shared stories shared lives training    at the time that is prior to being foster carers.
3. T200.39–T200.48.

Ms Taylor confirmed [4] that on 10 August 2007 the appellant and LW were approved as foster carers for children between the ages of 2 and 6 years, and that they had assumed the care of the complainant and LT on 25 October 2007. She explained [5] that children in foster care are strictly monitored, and that all events and circumstances relating to their care are extensively recorded. She also explained the process of ongoing review of foster carers: [6]
4. T200.11-T200.17.
5. T203.3-T203.6.
6. T208.36-T209.6.

Q.   Is there periodic review of the suitability of foster carers?
A.   After each exit of children there’s an exit interview. If the children are old enough they’re also interviewed, but there’s also a carer review done every year, and they are re-approved each year. Their approval status may change; they may have – they’re approved to have more than two children or less or whatever, so it can change. It can change at any time too, but - -
…
Q.   Is the yearly review, is that just a proforma or is it an exercise that’s taken seriously?
A.   It is, but each month the case managers also had (sic) to do a mini review on their month – the case managers have to do a monthly visit, a home visit and they also have to, every three months, comment in the carer’s file on how the placement’s progressing.
Q.   Is it the situation that (LW) and (the appellant) have been renewed from year to year through to 2016?
A.   That’s correct.

The alleged offending

The evidence in chief of the complainant was adduced primarily through her recorded interview with police which took place on 18 July 2016.
The complainant said [7] that she was aged 6 or 7 during the period in which she was living with the appellant and LW. In respect of the offence alleged in Count 1, she gave the following account: [8]
7. Q and A 42-44.
8. Q and A 53-58.

Q53.   All right. All right. Well … are you feeling comfortable enough now to be able to talk about what it is that you want to report, OK? Matt and I weren’t there so can you start at the beginning and tell us what it is or what happened to you?
A.   Like, the beginning of the first incident?
Q54.   Yep.
A.   So (LW) and (AW) had gone out. And (AW’s) their, like, she was their teenage daughter at the time.
Q55.   Do you know how old she was?
A.   She was studying for her Ls, so I think 15.
Q56.   And (LW) was his - - -
A.   Wife.
Q57.   Wife. OK. So (LW) and (AW) had gone out. Sorry, I won’t interrupt next time. So - - -
A.   No, you’re right. And my brother (LT), was playing out the back. I was sitting in the back room watching TV when (the appellant) came out and got me. He told me I had to come with him and he took me into his and LW’s room at the front of the house.
Q58.   A tissue.
A.   He grabbed my wrist and he held me down to the bed and I was so scared. I tried screaming and he just kept telling me that there was nothing I could do. If I told anyone, I’d go to hell and no one would believe me. He said if I ever did tell anyone, he’d hurt my brother next. Then he raped me and all the time he just kept saying, if you tell anyone, no one will believe you and I’ll hurt your brother. And as he was telling me that, ‘cause they were very devoutly Christian, and he kept telling me that it was my fault and I was sinful.

When asked to expand on that account, the complainant said that she thought that at the time of this alleged offending LW and AW had gone to the shops, although she was not 100% sure. [9] She said that the appellant and LW were living in the Wyong area at the time. She could not remember the number of the house or the name of the street in which it was located, but she did remember that it was located in a cul-de-sac. [10] She said that this offending had occurred during the afternoon of a weekend when it was still daylight, but she could not remember on which particular day. [11]
9. Q and A 60-62.
10. Q and A 63-67.
11. Q and A 68-69; Q and A 76-77.
The complainant said [12] that when the appellant took her to his bedroom she felt confused, but that she was not initially scared. [13] She described [14] being pushed by the appellant onto the bed from her shoulders and landing on her knees. She said [15] that she tried to get up, but that the appellant grabbed her wrists and held them. She also described [16] the appellant removing her pants, and said [17] that by this time she was “so scared” and that “there was this pain down there and he just kept going”. She said the pain was caused by the appellant inserting his penis into her vagina, which she said she felt but did not see. [18] She said [19] that immediately after the offending the appellant said to her:

If you tell anyone I will hurt your brother.
12. Q and A 79-80.
13. Q and A 78-80.
14. Q and A 86-87.
15. Q and A 91.
16. Q and A 94-96.
17. Q and A 97-98.
18. Q and A 98-100.
19. Q and A 103.

The complainant said that the appellant then pushed her towards the door, told her that she could go, and said to her as she was walking away: [20]

No one’s gonna believe you if you tell anyone.
20. Q and A 103.

The complainant was then asked: [21]
21. Q and A 107-109.

Q107.   OK. Do you remember going to the toilet after that time? No. OK.
Did you see anything unusual around your vagina?
A.   I, he, I put on, like, after that, I put on, you know, a pair of, got dressed when they came home. And when I got undressed, you know, to have a shower, there was blood on them, just a little bit.
Q108.   Yep. Whereabouts was the blood?
A.   It was, like, in the middle.
Q109.   Yep, OK, did you tell anybody about that blood? No. OK.
Did you understand how the blood or know how the blood came to be there?
A.   No.

When asked if anything had happened afterwards, the complainant said: [22]

And just, you know, just went and had dinner, said prayers. I was still, I was shaking but, you know, I’d been, I’d taught myself not to, just to be strong. And I didn’t say anything to anyone.

22. Q and A 115.

The complainant was then asked [23] whether there was anything else she wished to say about the offending in Count 1, or about any other incident:
23. Q and A 116-120.

Q117.   All right. So …… is there anything else about that time that you need to talk to me or tell me about? O.K. Is there another time that you can tell me about?
A.   That’s the one that I remember, you know, the most.
Q117.   Yep.
A.   ‘Cause it was the first time. After that, whenever they were out he’d come and get me and it was pretty much just a repeat.
Q118.   Alright. So how many times … would he have done, where he put his penis in your vagina?
A.   I don’t know the exact number. It was - - -
Q119.   But there were lots?
A.   It became pretty regular. Like, it wasn’t just a one off.
Q120.   Yeah.
A.   And, you know, I was just so scared that he was gonna hurt my brother and I didn’t say anything.

The interview with the complainant then moved to the offending alleged in Count 2: [24]
24. Q and A 121-153.

Q121.   … Is there any other time … that stands out in your mind that you might be able to talk about now?
A.   He, there was one time I remember. It was one of the earlier ones where I was, and he came into my room at night because (AW) was staying at someone else’s house and at the time we were sharing a room. And he told me to get up and he pushed me over so I was face down on the bed and when I tried to turn around, his pants were down and he shoved my head back around. He was holding me there. And he did it again.
Q122.   Can you tell me … what he did again?
A.   He put his penis in my vagina again.
Q123.   OK. So it was a situation you were face down on the bed and he was laying ….
A.   He was standing up.
Q124.   Standing up.
A.   … kneeling. Like, he was behind me.
Q.125.   Yep.
A.   He was standing up when I turned around. And when I tried to turn around - - -
Q126.   What did you see when you turned around …?
A.   His pants were down - - -
Q127.   Yeah.
A.   - - - and his penis was out and he was rubbing it.
Q128.   What was he rubbing his penis with?
A.   With his hand.
Q129.   OK. Do you remember what you were wearing at that time?
A.   My pyjamas.
Q130.   So again, was it day time or night time?
A.   It was night time.
Q131.   Night time?
A.   The middle of the night.
Q132.   Do you remember where (LW) was?
A.   She was in bed asleep ‘cause she always, always went to sleep early and she would sleep like a rock.
Q133.   OK. And you don’t know where (AW) was staying?
A.   I think, I would assume at a friend’s.
Q134.   All right. So how much after, or how much later did that time happen after that first time you told me about?
A.   I think a few weeks.
Q135.   Do you remember if you had your summer PJs on or winter pyjama, PJs?
A.   I had a nightie, like a, it came down to my knees. I loved it.
Q136.   What was it? Can you describe what it was?
A.   It was pink and it had flowers on it.
Q137.   So did he do anything to your nightie?
A.   He lifted it up.
Q138.   Did you wear anything underneath your nightie?
A.   No. OK. Were you sleeping on top of your bed covers or underneath?
A.   I was sleeping underneath the sheet.
Q139.   Yep. So just describe for me again. You said you were, he, he’s come in and he’s lifted your nightie up. Were you already laying on your tummy or did he - - -
A.   No. He pulled me out of bed.
Q140.   Yep.
A.   And then forced me down onto my stomach.
Q141.   All right. So, but you were still on the bed?
A.   He pulled me, like, out of bed - - -
Q142.    Yeah.
A.   - - - and then he put me down the way that he wanted me.
Q.143.   Yeah. OK. And tell me what position he was again.
A.   He was behind me and, like I said, when I turned around and looked at him, he was standing up and - - -
Q144.   OK. And then from there?
A.   He forced my head back around.
Q145.   Right.
A.   And so I couldn’t turn around.
Q146.   All right. OK. So just, sorry, I’m just trying to visualise how it happened. So he’s got you out of bed and you’ve turned around and he’s, he’s been standing up.
A.   He got me out of bed. I was standing there. He pushed me down onto the bed on my stomach.
Q147.   Right.
A.   And was holding me there. When I tried to turn around - - -
Q148.   …
A.   Yep.
Q149.   Yeah. OK. And then, then you felt he put his penis into your vagina. And what caused him to stop?
A.   He finished.
Q150.   How do you know he finished?
A.   He let out this sound like he was moaning and then, you know how it’s, he just made this kind of final noise. And there was one, like, as he made it, it was like one thrust and he made a noise and just pulled out then.
Q151.   All right. Did you notice anything unusual around your vagina when he pulled out? OK. And what did you do after that? What happened then, after he pulled out?
A.   He was just saying that if I told anyone, I’d just get, solely just, that’s all he was said to me. And then he left.
Q152.    What did you do that time?
A.   I got into bed and cried. I didn’t know why. I didn’t know what he was, at the time, you know. You don’t know what that is and I didn’t know what he was doing. I just felt violated and gross. And I knew it was wrong but I didn’t know why he was doing it to me.
Q153.   Yeah. OK. OK.
A.   I felt abused.

Apropos her earlier reference to other occasions on which the appellant had sexually assaulted her, the complainant was asked: [25]

Q154.   Yep. OK. Can we move onto another time, that you can remember?
A.   Other than those two times, whenever he came near me I’d kind of, I’d just try not to think about him or focus on him. And whenever it would happen, I would just, I stopped letting myself be there in the present moment ‘cause I didn’t want to experience it.
Q155.   What was your relationship like with him before the first time that he had raped you? What was his relationship or your relationship like with him?
A.   It was just like any other foster carer and I hated them all, but (LW) and (the appellant), at the start I felt welcome and I felt like I was part of a family. And with other foster carers, like, I, I’d been in a home where they didn’t have kids and I was in a home where they had too many kids and all the other kids would pick on me. But then at (LW’s) and (the appellant’s), there was one kid that was so much older than us and - - -
Q156.   And that was (AW)?
A.   Yeah.
25. Q and A 154-156.

The questioning later returned to other occasions on which the complainant had been sexually assaulted by the appellant: [26]
26. Q and A 165-168.

Q165.   Alright. So is there any other time … that you can talk about in some detail? Only those two times you can remember but there’s been lots of times.
A.   Yeah, yep.
Q166.   OK. Did those times, other times, include right up to when you left?
A.   When we started, we started having visits with (CT) and (ER) and it was still going then but the more we started to see them, it, when we started to see them more, he stopped.
Q167.   Did he say anything about that to you?
A.   No.
Q168.   You just remember it stopping?
A.   Yep.

The complainant said [27] that she had not seen the appellant or LW since leaving their care, but that both of them had tried contacting her on social media by sending her friend requests and trying to message her. [28] She was asked: [29]
27. Q and A 183.
28. Q and A 184–189.
29. Q and A 190–193.

Q190:   So did you engage at all with them?
A:   No
Q191:   No. OK.
A:   I just blocked them both.
Q192:   OK. So there was absolutely no communication there between you?
A:   No.
Q193:   Between yourself and them I meant. OK.
A:   But after that, they tried, not they tried. Like, after that, (LW) tried following me on Instagram but I’ve got a private account so she couldn’t.

In response to questions put by the Crown in further evidence in chief, the complainant said [30] that the appellant used to refer to her as “the devil”:

Q.   When you say, what he used to tell you, what do you mean?
A.   He used to tell me I was the devil. Tell me I had the devil inside me. Tell me he'd hurt my brothers. This is what I told them. I told them that he told her and then told me that if I ever felt like masturbating to come and tell him.
Q.    Were you telling (CT) and (ER) about these conversations?
A.   Yep.
….
Q.    What was their reaction when you told them? What
A.   Well they got, they got – well (ER) especially not really, really mad. She said she knew something was going on, but, and, yeah, I – she could be very scary when she's angry. I didn't want to tell anymore, yeah.
30. T35.1-T35.17.

The complainant was cross-examined about the fact that she had not disclosed these, and other statements allegedly made to her by the appellant, to police: [31]
31. T67.48-T69.7.

Q.   You didn’t say anything to the police in that interview about having told your aunts what he used to tell you or what he used to say to you did you?
A.   No, didn’t come up - -
Q.   There’s not a word in that - -
A.   - - in that part.
Q.   I’m sorry?
A.   I said not in that part. It’s not there.
Q.   Is it in any other part of your interview do you say? Because I’m going to suggest to you that we find nothing in that interview about your claim that the accused said to you, if you ever feel like masturbating, come and tell him; there’s nothing in that interview about that is there?
A.   There were several things I didn’t tell the interviewer that he didn’t tell me.
Q.   You didn’t even say anything in that interview about telling your aunts about the things he used to say to you, did you?
A.   I didn’t come up.
…
Q.   Did you just not remember at that time that you told your aunts about things that he used to say to you?
A.   I did remember it, but it didn’t – it was really hard to say at the time and then we moved on to my nanna.
Q.   In the statement that you made yesterday you did say this, in paragraph 5, “I started by telling (AW) and (CT) about the comments (the appellant) would make to me”, is that right?
A.   Yep.
Q.   You didn’t say what those comments were, did you?
A.   No.
Q.   You apparently remember this morning, because you said it in your evidence, that one of the things he said to you and that you related to them was that if you feel like masturbating, come and tell him, is that right?
A.   Yep.
Q.   You have not, in any document related to this case, ever said that before, have you?
A.   No, I haven’t.
Q.   I’m wondering if the reason you claim to remember it now is because you read it in that conversation?
A.   No. Every time I’ve been asked how I told someone, all I said was “I would tell them the comments I have made”. I have not been asked before now what those comments have been.
Q.   So, you say you did always remember it, but you didn’t say it because no one ever asked you?
A.   Yep.
Q.   You remember it from the time he said those things to you right through, is that right?
A.   Yep. I – there were, there were years there that I tried blocking everything out. Obviously it doesn’t always work.

Later in cross-examination, the complainant said [32] that she had also had a conversation with LW about the subject of masturbation. She was asked: [33]

Q. Can you tell us on how many occasions you spoke, or (LW) spoke with you about masturbation?
A. There was once where she spoke to me privately and once in front of (ER) that I recall.
32. At T86.49.
33. T87.13-T87.16.

The complainant said [34] that the conversation in ER’s presence had taken place out the front of the appellant’s home, and that she thought that CT was present as well. The complainant said that she had heard LW telling her aunts that she (the complainant) “would touch herself”. She said [35] that the appellant and LW had told her that this was the wrong thing to do.
34. T87.24-T87.48.
35. T88.4-T88.6.
The cross-examination then continued: [36]
36. T88.15-T89.6.

Q.   Did you hear (LW) say something like this, “we’ve told (the complainant) it’s wrong and she should talk to us if she feels like doing it”?
A.   I do not recall (LW) telling me to talk to her. I recall him telling me to tell him.
Q.   I’m asking you if a conversation at which both (ER) and (CT) were present and you were present, you heard (LW) or the appellant for that matter say something like this, “We’ve told (the complainant) it’s wrong and if she wants to do it she should speak to us about it”?
A.   Yeah, something like that.
Q.   Did you observe how (ER) reacted to that?
A.   No, I didn’t by (sic) her.
Q.   Did you find out later how (ER) reacted to that?
A.   I had a private conversation with her later.
Q.   Did she tell you she felt very strongly about that?
A.   No.
Q.   Did she indicate to you that she was angry about that having been said?
A.   She indicated that not – she indicated that she was angry that they had said that but tried to tell me that it was fine. It was okay. I haven’t done anything wrong.
Q.   Did (CT) and (ER) – you said you were told that it was okay. Was that (ER) or was it (CT) and (ER)?
A.   That was (ER).
Q.   Did you ever speak on the subject with (CT)?
A.   Not that I can recall.
Q.   Did you tell either (ER) or (CT) that it was something that you’d learned from a female friend before you were living with (the appellant)?
A.   No. Not that I can recall.
Q.   Was that the fact?
A.   Sorry what? Sorry.
Q.   Was the fact that that’s where you’d learned it from?
A.   I don’t even know what I am supposed to have been doing. Like I said, how does a seven year old masturbate? It - -

The complainant was also cross-examined about her assertion to police that she had seen blood on her underwear following the offending in Count 1: [37]
37. T95.39-T96.22.

Q.   You say that it was after you later that day got undressed for the shower that you saw some blood in your panties, is that right?
A.   Yep.
Q.   You’d spent some time that afternoon in your bed with no lower body garments?
A.   No, they didn’t – they came home fairly soon after. I had never sent (sic) that they spent hours out, they came home fairly soon after and I said then they came home, is what I was intending to say.
Q.   You didn’t ever see any blood on your sheets?
A.   I didn’t check my sheets.
Q.   I’m sorry?
A.   I didn’t check my sheets.
Q.   Nobody ever asked you about any blood on your sheets?
A.   No, they didn’t.
Q.   Nobody ever asked you about blood on your panties?
A.   No.
Q.   Could that be because you’re telling us a tale?
A.   No.
Q.   Could it be that, I won’t use your term, you were still fooling with the accused?
A.   No.
Q.   Again, I won’t use your term, are you fooling with this jury?
A.   No. This isn’t something to joke about.
Q.   Is (sic) isn’t is it, anything to joke about?
A.   No.

The complainant was also cross-examined about what she had said to police about the fact that she had liked living with the appellant and LW. When asked [38] how she liked it when she first went there, she answered:

A. When I first went there initially, I, yeah, I started to end up liking it there.
38. T79.15-T79.17.

The complainant went on to say [39] that she ceased liking to live with the appellant when he committed the offending, before being asked: [40]
39. T79.19-T79.25.
40. T79.27-T79.50.

Q.   You didn’t want to move to your aunt’s home?
A.   No.
Q.   You wanted to stay there with the accused and his wife and his daughter?
A.   I said I ceased liking parts of being there.
Q.   I’m not asking you about that, I’m asking you about - -
A.   Yeah, and then I didn’t want to move, no, I’ve been open about that.
Q.   Why do you say you didn’t want to move?
A.   Because I liked the school I was at, I wanted to – that was the school that I wanted to go to at the start of the next year; I wanted this pair of shoes and it was the longest I had been somewhere in a while.
Q.   You liked the school you were at, you wanted to (sic) a particular pair of shoes; is that right?
A.   Yes.
Q.   What was the last bit?
A.   And it was the longest I’d been anywhere in a while.
Q.   Did you find that at (the appellant’s) home you had the opportunity to do things that you’d never been able to do previously.
A.   Yes.

She was then asked: [41]

Q.   In early 2008 did you become aware that (CT) and (ER) were considering attempting to get custody of you and (LT)?
A.   No, I wasn’t aware of that until after the fact.
Q.   When did you become aware of that do you say?
A.   When they ended up getting us, because we were starting to see them more regular but we didn’t know why.
Q.   When you found out that you were going to live with them you were upset; is that right?
A.   Yes.
41. T80.30-T80.40.

It was put to the complainant in cross-examination [42] that there was no truth in any of the allegations, a proposition which she denied.
42. T94.4-T94.6.

The timing of the offending

The complainant said [43] that the offending in Count 1 had occurred “just before Christmas” (i.e. Christmas 2007). She dated that offending by reference to the fact she had an advent calendar, [44] and said that it was “possible” that it happened during school holidays but that she was “not 100% certain”. [45]
43. Q and A 268-269.
44. Q and A 269-271.
45. Q and A 272-273.
She said [46] that the offending in Count 2 had occurred “a few weeks after” the offending in Count 1, that it was after Christmas, [47] and that it had happened at a time when she was sharing a bedroom with AW. [48] She also said [49] that she was “not very good with time and…never really (had) been”.
46. Q and A 134.
47. Q and A 282-283.
48. Q and A 121.
49. Q and A 283.
Against this background, the complainant was asked by police [50] to draw a floor plan of the appellant’s home. The plan she drew showed her and AW occupying separate bedrooms. AW’s bedroom was depicted on the plan immediately adjacent to the living room. Next to one of the walls of AW’s room were the words “later addition”. In drawing that plan, the complainant was asked: [51]
50. Q and A 217-219. The floorplan was part of Exhibit C.
51. Q and A 233-236.

Q233.   Just put my room. Yep.
A.    Over here first the hallway but that was built later.
Q234.   Yep.
A.   So first this was all just one big living room and then it later got turned into two rooms. One of them was (AW’s).
Q235.   Right.
A.   And the other one was another living room.
Q236.   OK. So in terms of that room, that hallway or that wall being made, do you remember if that wall went up the first time?
A.   After the first time. It was built later on into my time spent there.

LW gave evidence [52] that the complainant and AW had only shared a room for “a very short period of time … right at the beginning”. She explained [53] that a bedroom was then built for AW at the front of the house so that she could have her own space.
52. T215.32-T215.42.
53. T215.44-215.49.
AW’s recollection was that she had shared a room with the complainant for only one night. [54] She gave no evidence about the building of her bedroom.
54. T334.45-T334.46.
In his interview with police, the appellant was asked the following: [55]
55. Q and A 70-80.

Q70.   O.K. Now so you said (the complainant) and her brother… were the first children that you had?
A.   They were the first.
Q71.    Yeah. Can you tell me where they slept in your house?
A.   O.K. Well they were in, I'm just trying to remember now it's eight and a half years ago, eight years ago. Um, they slept in the bedrooms near the bathroom and toilet. I can't remember whether (the complainant) was in the room on the left and (LT) in the room on the right. (LW) would know but I think that's, yeah, because you understand over this eight and a half years we've had something like somewhere between thirty and forty children. And – – –
Q72.   That's all right. I know it's – – –
A.    – – – it's hard to remember where – – –
Q73.    – – – going back in time. Yeah. Was it the case that a (AW) and (the complainant) might've shared a room to begin with?
A.   No. No. Actually, (AW) had her own bedroom.
Q74.   Did you have some renovations so that she could have her own bedroom?
A.   Mmm. Yes, we did. We actually had, it was a three-bedroom home and we had a very large lounge, dining room type room, a very large room. And I put a, put two walls in and built a bedroom out the front of the house with built-in wardrobe and that was, that was her room.

Q.   (AW's) room?
A.   Mmm. Yeah. So previously she was using one of the other rooms, she was in one and (B) was in the other.
Q76.   Yeah.
A.   And then we built this room for her. It must've been prior, it must've been before we started foster care, I can't remember when. But I think it was built before, I think it was built before (the complainant) came I think, yeah.
Q77.   (The complainant) seems to remember that you were building it when she was there?
A.   Ah, O.K. So it was about that time.
Q78.   Yeah. Around that time, yeah. And her memory is that her and (AW) shared a room, there were two single beds in the bedroom.
A.   Ah, O.K.
Q79.    and then because of – – –
A.   She shared, okay.
Q80.   Yeah. You decided that very reason, big lounge room and you've put a dividing wall up allowing (AW) to have her own room.
A.   That's right. Yeah.

Following his interview, the appellant sent a letter to the police dated 12 August 2016 [56] in which he said (inter alia):

After listening to the recorded conversation that took place at Wyong Police Station I have been corrected by my wife … and daughter
…..
After looking at some old video of the kids we found the new bedroom was being built at this time with the kids.
…
I do apologize if I mixed up my times & movements as things are forever changing & hope this may help clarification.
56. Exhibit E.

What the appellant meant by “at this time” is not entirely clear, although other parts of his letter were prefaced with references to events occurring “during the dates 2007-2008”.
Having been taken to what he had told police about the layout of the house, the appellant gave the following evidence in cross-examination: [57]
57. T300.6-T300.48.

Q.   Do you agree with me that her memory on that aspect was better than yours at the time wasn't it?
A.    Again, I'd have to disagree.
Q.   Pardon, sorry?
A.   I have to disagree because she's saying it was actually being built. I think in her statement from memory – don't quote me – when she moved into our house it was one big room. That was never the case. When she came to our home the walls were up, the walls were up but it was unpainted. Okay, we simply had to do the cornice around the top and fit the wardrobe door. But the room was up. It wasn't finished. And it was in the process of being finished and painted.
Q.   That's exactly what she says when it's put to you at 77, “(the complainant) seems to remember that you were building it when she was there." So that's right, isn't it, you were building it?
A.   Yes, it was – we were still in the process of building, yes. Most of the work was done, yeah, okay. I agree with that.
……
Q.   So your understanding at that time, your memory, was that it was built before (the complainant) came?
A.   That is still my memory today.

The evidence of complaint

The Crown relied on evidence of complaint elicited through a number of witnesses, the first of whom was the complainant herself.
On her account to police, the complainant had initially attempted to tell CT and ER about the alleged offending but had found herself unable to do so: [58]
58. Q and A 169-173.

Q169.   Yeah. OK. … do you remember who the first person was you told about him doing this to you?
A.   I, I’ve tried to tell my aunties.
Q170.   And that’s (CT).
A.   Yeah. And (ER). But I was too scared to come out outright and say it and they didn’t pick up on it.
Q171.   Do you remember what you were trying to say? Do you remember what you told them?
A.   No. I don’t remember specifically but I was, I was so nervous and I was just trying to tell them that he’d hurt me and I didn’t know what to do. But they just, they weren’t picking up on it, you know.
Q172.   In your mind, you’re probably saying - - -
A.   Yeah.
Q173.   - - - I’m telling you something but they didn’t get it.
A.   Yeah.

In answer to further questions asked by the Crown in evidence in chief, the complainant confirmed [59] that she had attempted to tell CT and ER about the offending. Having explained [60] that she had started by telling them that the appellant used to tell her that she was the devil, and that she had the devil inside her, the complainant was asked by the Crown: [61]
59. T34.13.
60. T35.1-T35.6.
61. T35.8-T35.48.

Q.   Were you telling (CT) and (ER) about these conversations?
A.   Yep.
Q.    Was that the first time you had mentioned those conversations to them?
A.   Yeah.
Q.   What was their reaction when you told them?
A.   Well they got, they got – well (ER) especially got really, really mad.
She said she knew something was going on, but, and, yeah, I – she could be very scary when she’s angry. I didn’t want to tell her anymore, yeah.
Q.   You mean (ER) could be very scary when she’s angry?
A.   Yeah.
Q.   When you saw their reaction to what you were telling them, how did you feel?
A.   I felt, honestly I felt like shit. I, I just felt like it was my fault they were angry. I felt like they were angry at me.
Q.   Did you then keep telling them what had happened in any more detail?
A.   No.
Q.   Why not?
A.   I was scared.
Q.   What were you scared of?
A.   I was scared of how they’d react and was scared that, I was scared he’d find out and hurt my brother.
Q.   By “He”, you mean the accused?
A.   Yep.
Q.   Why were you scared that he’d hurt your brother?
A.   Because that’s what he’d constantly tell me he would do if I told anyone.
Q.   Did you ever try and tell them any more about this incident or these incidents?
A.   No.
Q.   Why was that?
A.   Just I was, I was scared, that’s, I was, I was just scared of him.

The complainant was cross-examined about the fact that she had not actually told CT or ER about the alleged offending: [62]
62. T89.16-T89.41.

Q.   We understand you didn’t tell (CT) and you didn’t tell (ER). Is that right?
A.   Yep.
Q.   In fact, did you ever tell (ER) that nothing had happened to you of a sexual nature while you were at (the appellant’s)?
A.   I might have yes because I was too scared to tell her.
Q.   You agreed earlier today that one person you could count on to believe you if you made such an allegation was (ER). Is that right?
A.   Yep.
Q.   (ER) was very protective of you, wasn’t she?
A.   Yep.
Q.   She was understanding?
A.   (no verbal reply).
Q.   Is that right?
A.   Yep.
Q.   You trusted her.
A.   Yep.
Q.   But you never told her?
A.   No because as much as I trusted her and thought she would understand, it was nothing against the fear I had that he would hurt my brother.

Later in this judgment I have addressed the evidence of messages which were exchanged between the complainant and ER in 2015. The complainant was cross-examined about her failure to disclose the offending to ER in the course of those messages: [63]
63. T94.28-T95.4.

Q.   You didn't, at any stage in that conversation, choose to say anything to (ER) about what you claim had happened to you, is that right?
A.   No, apparently not, no.
Q.   Would you accept that on the face of it (sic) appears to have given you the opportunity to do so with some of the comments she made, where, for example she said, "You’re one of the lucky ones who got out of there without anything happening"?
A.   Even if that could be perceived as an opportunity, I was still too scared to say anything to her. Above all else, my brother's safety has been first and foremost.
Q.   You knew very well that the accused had no power to hurt your brother, didn't you?
A.   How do I know that? How, how did I know that?
Q.   He was living in Sydney with his father. Is that not right?
A.   That is right. It still doesn't mean anything.
Q.   If you claim, of course, that you did tell your grandmother in May of June 2015, what happened to the fear then?
A.   It was still there, hence why I didn't continue, but my nightmares and I was in that bad of a place that I had to at least try.
Q.   One person you knew who would stick up for you and look after you and look after your brother was (ER), is that not right?
A.   Yep.

On the complainant’s account, the first person she actually told of the alleged offending was her grandmother (JT): [64]
64. Q and A 174-179.

Q174.   Yeah. OK. Who was the first person you then told that, outright, you know, that he’s - - -
A.   My nana and I’d actually thought that I’d told my mum because at the time she’d actually been staying at the house and I’d been meaning to tell her. And then my nana, we were talking about my mum and she’s not a very pleasant person. She didn’t believe my mum either and just, she didn’t believe me.
Q175.   So where were you when you told your nana?
A.   In her house.
Q176.   Where’s that at?
A.   Quakers Hill.
Q177.   OK. And how long ago was it that you told her?
A.   I’d been living with her, so it’s July now. About just over a year ago.
Q178.   So July last year. Now, take it back. Do you remember - - -
A.   It was around the middle of the year before I changed schools.
Q179.   OK. What did you tell your nan?
A.   We were talking about my mum and she was saying that she’d been through, like, my mum had been through abuse and I said, So have I. And I tried to tell her, or I did tell her. I said, I was, she goes, What do you mean? I said, My last foster carer, he was sexually abusing me, and she goes, I don’t know I believe you ‘cause your mum tried saying the same thing when she was younger. And after that, I said, Fine. Don’t worry about it then, because I was thinking maybe he was right and no one would believe me and I should just stop trying.

The Crown asked the complainant further questions in evidence in chief about what she had said to JT: [65]
65. T36.19-T37.34.

Q.   So, if we move on. Do you remember the next person who you spoke to about what had happened to you?
A.   My nanna and poppa.
Q.   Do you remember roughly when that was?
A.   That was in 2015.
…
Q.   So you went to your nanna’s in the January early 2015. Do you remember when it was that you first spoke to her about what had been happening to you?
A.   It was about May or June.
Q.   Do you remember what was happening that day?
A.   My mother had come, she’d – ‘cause from April I was spending part of my time in Cairns, and she, my mother was spending part of her time down in New South Wales with me because my youngest brother had been born in March. So, she’d gone out for the night and I was babysitting my brother. My nanna like walked into my room and at first it was, we were just talking about how cute he was, and that’s when we started to have a deeper conversation about what my mum had been through, why she was the way she is now.
My nanna was telling me that my mum had been through a lot of abuse, both physically and sexually and emotionally; that is when I turned around and said ‘Look, so have I’; you know she was confused, she goes “What do you mean”, and that was the first time I’d said the words “I was sexually abused”. My last foster carer, he was - and she, she didn’t believe me; she turned around and said “You know your mum tried saying the same things; I don’t know if I should believe you, I don’t know if I do believe you”, and I just, I felt like what he’d told me was true; I felt like no-one would ever believe me.
Q.   When you said that it was the first time you’d used those words, that were you were sexually abused, did you tell her by who?
A.   Yeah, I - -
Q.   What were the words you used?
A.   I said “My foster carer, my last foster carer, he did it to me”.
Q.   Did you name him?
A.   I didn’t name him, no.
Q.   But (the appellant) was the last foster carer before you lived with your nan?
A.   Yeah.
Q.   How did you feel when she reacted the way she did?
A.   I felt so hurt. I felt hurt but at the same time I half expected it because you know maybe no-one would ever believe me, and that’s what it seemed like, that’s how I – I felt useless.
Q.   Did you talk again with your nanna after that day about what had happened?
A.   Not that I can recall.

Trial counsel cross-examined the complainant in respect of this account: [66]
66. T90.1-T90.47.

Q.   You claimed to have told your grandmother that it was your last foster carer?
A.   Yep.
Q.   I’ll just turn it up. You said, she was talking about things that had happened to your mother and you said, ‘Look’ – I withdraw that. According to what you said this morning, your grandmother, and this is (JT), isn’t it?
A.   Yeah.
Q.   Said your mother went through abuse and you said to her, “Look, so have I”. Is that right?
A.   Yeah.
Q.   Is that a truthful account of what you said to your grandmother?
A.   Yes.
Q.   “So have I”?
A.   (No verbal reply).
Q.   Yes?
A.   Yep.
Q.   You claimed to have told your grandmother or she, you said this morning, was confused and asked you, “What do you mean”? Is that right?
A.   Yep.
Q.   What do you say that you said to her?
A.   You’ve got it, haven’t you? I told her that I had been – and it was the first time I’d said it, I had been sexually abused by my last foster carer.
Q.   Rather than that version, I’m going to ask you if it’s true that whilst you were living with your grandmother you had arguments with her from time to time?
A.   Yep.
Q.   I’m suggesting to you that what you said to your grandmother was this and this only, something like, in the course of one of those arguments, you said, “You don’t understand what I’ve been through”?
A.   Yes, I did say that to her in an argument.
Q.   She said to you, “What have you been through?” and you refused to say anything further. That’s a more accurate version of what you told your grandmother, isn’t it?
A.   No. That was a separate occasion.
Q.   You did not, I suggest, say any more to your grandmother than words to the effect that you’d been through a lot?
A.   I did say more to her.

Trial counsel then referred the complainant to MFI 10 (which I infer was a copy of JT’s statement to police) before asking her: [67]

Q.   Having read that, do you accept the proposition that the only thing that you ever had told your grandmother, which might relate to something bad, was the fact that you had been through a lot?
A.   No, I do not accept that.
Q.   On any view of it, just leaving aside the allegations that you make against the accused, you have in the course of your life been through a lot?
A.   Yes.
67. T93.41-T93.48.

Despite the complainant’s reference to having told her “nanna and poppa” about the offending, she in fact gave no evidence of having had any conversation with her grandfather about these matters at any time. Only JT was called as a witness by the Crown. JT said [68] that her conversation with the complainant took place in 2014 (approximately 7 years after the alleged offending). She was asked by the Crown: [69]

Q.   What were the words she used to you?
A.   She said something like “You don’t know what I’ve been through” and she was crying, and I did try to ask her, but she just sobbed and she wouldn’t say anything.
Q.   Was that the only time when she talked to you about anything like that?
A.   We know that she’s had a difficult time, so we kind of wanted to tread carefully. So, we didn’t – I felt that if she wanted to talk to me she could, but I didn’t want to push anything.
68. T121.38-T121.44.
69. T122.32-T122.40.

This account was not the subject of cross-examination. JT said nothing about having referred, in her conversation with the complainant, to the fact that the complainant’s mother had been the subject of abuse, yet on the complainant’s account, it was that reference which was the catalyst for her telling JT about the offending. Further, on JT’s account, the complainant had made no allegation of sexual offending at all, much less attributed such offending to the appellant. In these important respects, the complainant’s account of the conversation was inconsistent with the account given by JT.
The complainant told police [70] that the next person she told about the offending was Leslie Cohen (Cohen), a family friend:

Q 180.   All right. Who did you tell after that?
A.   I told … and … and Les.
Q181.   Sorry?
A.   I told Les - -
Q182.   OK.
A.   - - - last Saturday.
70. Q and A 180-182.

Although the interviewing police officer indicated [71] that he would return to this issue, it was not canvassed any further. However, it is apparent that on the complainant’s account, her conversation with Cohen took place only days before she was interviewed by police.
71. Q and A 183.
In answer to further questions asked by the Crown in evidence in chief, [72] the complainant said that her conversation with Cohen had taken place about halfway through 2016, at a time when she was living with her stepfather in Coonamble. She said [73] that she had been present (along with TT, Cohen and others) at a conversation, the topic of which had turned to a neighbour of Cohen who had allegedly sexually abused his grandchildren. The complainant said that as a consequence of that conversation she had become scared, nervous and anxious, to the point where she had a bad panic attack and left the room with Cohen following her. She was then asked: [74]
72. T38.4-T38.21.
73. T38.23-T39.8.
74. T39.16-T39.37.

Q.   What happened when Les followed you outside?
A.   I was sitting outside shaking and crying and he just, he looked at me in the eye and he just knew, he goes “Someone’s hurt you darlin’ haven’t they”; I just go “Yeah”.
Q.   Can you remember the words you used when he said that?
A.   I just said “Yeah”; “Tell me” and I said “Yeah, I was raped when I was a kid too”.
Q.   Did you tell him who by?
A.   Yeah.
Q.   Do you remember the words that you used to him?
A.   Not exactly, no, not word for word.
Q.   What do you remember saying to him?
A.   Just telling him his name, “(the appellant), he was meant to be looking after me, he was my foster dad”.
Q.   What was Les’ response when you told him that?
A.   He just – silence – “Hang in their darlin” and started hugging me. He asked me if my mum knew and I said no; I didn’t think she did.

The complainant was not cross-examined on that account.
Cohen gave evidence [75] that he recalled an evening when he and his wife were at home, along with the complainant, TT and others. He said [76] that during that evening, the topic of conversation had turned to someone who “lived in town” and who was “not a very nice person”. Cohen was then asked by the Crown: [77]
75. T113.10-T113.30.
76. T113.35-T113.49.
77. T114.1-T114.30.

Q.   What happened when you were having that conversation? What happened then?
A.   Well, (the complainant) became very upset. She started crying and she got up and walked outside and sat on the chair on the veranda and I followed her and asked her what was wrong, and she was extremely upset, and she said, “It happened to me” and I said, “Well, what?” She said, “I was assaulted”. “When?” She said, “When I was in foster care”. Okay.
Q.   When you say, “she was extremely upset” when you went outside, what was she doing?
A.   She was sitting in the chair and just crying. Like, it, it, - not hysterical, but sobbing.
Q.   If you could try and remember the exact words she said to you, as best you can, when she first spoke to you, what did she say?
A.   Well, I said “How? What do you mean ‘assaulted’”? She said, “Sexually”. I said “When did this happen?” She said, “When I was with foster care”. Okay. So, we went back inside, and I spoke to her mother and a couple of days later her mother rang me and said that they’re going down to Dubbo to the CP unit and (the complainant) wants me to go as well ‘cause I’m the only one she trusts.
Q.   When she said to you that it was in foster care, did she tell you who it was?
A.    No.
Q.   Did she tell you in what family that happened? In which foster family?
A.   No, she just said that it was her and her brother there, her younger brother there.
Q.   Who were there?
A.   Yeah.

Cohen’s account that the complainant did not identify the person who had allegedly assaulted her was not consistent with that of the complainant, who had asserted that she had named the appellant as the person responsible, and had told Cohen that it was her “foster dad”.
The complainant gave evidence that after speaking with Cohen, she then spoke with TT on the same evening: [78]
78. T39.39-T40-15.

Q.   Can you tell us what happened after that?
A.   My mum was a bit drunk and she walked out and at first, she started saying “You know you’ve ruined the night; why are you always doing this, you know why are you doing this, why are you causing a scene”. I don’t know, I can’t recall how she found out but she, then she just (sic) “I’m so sorry” and she started crying and hugging me as well; she promised “I’m going to fix it”.
Q.   Did you tell her what had happened at that point?
A.   No, I don’t know how she found out because I didn’t, I don’t recall telling her.
Q.   What was the next thing that happened?
A.   We walked back inside and yeah, I was outside for a while just trying to calm down. We walked back inside, started smoking you know just – we tried to convince Patrick, my stepfather, to take me to the police station the next day, but he just, he refused, said he had stuff to do on the farm and couldn’t take me.
Q.   When was it that you ended up going to the police station?
A.   I think it was about a week later; maybe not quite a week.
Q.   Who took you?
A.   My stepfather took me; he ended up taking me and my Uncle Les came with me.
Q.   That’s when you made the record of interview that we’ve watched in court?
A.   Yeah.

TT gave evidence [79] that she had been at Cohen’s house and had left to go to a bottle shop before returning and speaking to Cohen, who told her of his earlier conversation with the complainant. She was then asked: [80]
79. T107.26-T108.19.
80. T109.37-T110.26.

Q.   What was the next thing that you did?
A.   As soon as he said, “Go out and speak to your daughter” I went outside and, and I said – I sought of yelled at (the complainant) and said, “What are you doing? Why are you ruining the night? Like, “Why is Les yelling at me? I don’t – What have you done?” You know? And she said, “I got raped in” – she said, “‘I got raped”. I said “What?” She said, “Yeah in foster care”. I said “What? What?” And it was – it took a little while to process what she was saying, so – just wasn’t wanting to – I knew something happened to her, you know? But it just wasn’t wanting to sink into my head. I said, “What? Who? Who did it? When? Where” she said, “It was (the appellant)”. I said, “‘Do you mean – as in (LW) and (the appellant)?”. She said “Yep.” I said “You were with them for a long time. What do you mean?”. Like, then she told me it happened like multiple times and - -
……
Q.   If you just wait one moment. Did you then ask her why haven’t you told me this before?
A.   Yes.
Q.   What did she say?
A.   She said, “I did tell you before”. I said, “No, you haven’t”. And she said, “Yes, I did”. And I said, “No, you didn’t”, and we just went back and forth for a bit, and then, and then we just were crying and hugging, and you know. I – she may have tried to tell me, and I didn’t listen you know? I’m not real good as (sic) listening sometimes and - -
Q.   Then did you do anything else on that night about what she told you?
A.   Not that night no.
Q.   What was the next thing that you did?
A.   I waited for her to tell me – waited for her – I said, “We’re going to go to the police,” and she went “Yes - -“.

TT was not cross-examined on that account.

The Facebook messages

Exhibits 1 and C were copies of Facebook messages which had passed between the complainant and LW, and the complainant and ER, in 2015. All of the messages contained in those two exhibits were consolidated in exhibit 5. [81]
81. All of the messages have been reproduced in this judgment in precisely the same terms in which they appear in the exhibit.
The messages exchanged between the complainant and LW between 17 July 2015 and 2 August 2015 were generally civil in their tone, and were often in the nature of LW reminiscing, and “catching up” with the complainant. For example, on 17 July 2015 at 18:27, LW sent a message to the complainant which was in the following terms:

If u ever need to talk just let me know x

On the following day LW sent a message to the complaint at 17:07 asking her if she had found a new school. Following the complainant’s reply at 17:40, LW responded:

Hope this is the right place for you

In another message sent on 21 July 2015 at 21:23, LW told the complainant that she was “very proud” of her.
On 2 August 2015 at 20:47 LW enquired as to the whereabouts of CT. Following an exchange of messages, LW sent a message to the complainant at 20:55 saying (in an apparent reference to the fact that the complainant had been transferred from the care of CT and ER):

Really very interesting lol [82]
I know … I really thought that wouldn’t work out with (CT) and (ER) oh well that’s life.
82. It was agreed between the parties that this was an abbreviation for “laughing out loud”.

In another message sent on the same day at 21:02, and apparently in reference to the complainant’s transfer to CT and ER, LW said to the complainant:

I knew the day u drove away it wouldn’t work but there wasn’t a thing I could do about it

At 21:07 on the same day LW sent a message to the complainant telling her that she was “truly a beautiful heart”. At 21:13 she sent a further message saying (inter alia):

Please stick with your school work I was told when u … were 5 u had the reading age of a 13 yr old

The complainant replied at 21:14:

Yeah well when I was in year 4 I was doing year 9 work so I’ve pretty much been cruising.

LW responded at 21:15:

Which means you should be in uni right now

The complainant responded at 21:16:

Nah too young man

LW responded at 21:17:

What would u like to do? Or is that a stupid Question Would love to catch up one day

The complainant responded at 21:17:

I wanna be a behavioral annalysist Or a criminal lawyer.

Further exchanges of messages followed, in the course of which LW brought the complainant up to date as to the activities of AW and B. At 21:20 the complainant told LW:

I worked in beauty salon for a while. Good experience. Hairs nails and makeup for weddings an formal events

Between 21:28 and 21:36 on the same day the following exchange of messages took place between LW and the complainant:

LW – Just glad your not in the System anymore hey but stuff does stay with you
Complainant – Yes or who knows? I mightve turned into a druggo … depresed alcoholic, oh wait I did.
LW – Life is very difficult at times lets hope your on the other side of all the crap life deals hey Always here for you if ever there’s no one to reach out to I always remember to wanted to keep going to church but (ER) said no.
Complainant – Yes that because she thinks everyone has a choice in their religious views and shouldn’t have it shoved down their throats :)

The complainant then sent, to ER, the last of the messages she had received from LW in that exchange, accompanied by the message:

Omg lol. [83]
83. It was agreed between the parties that this was an abbreviation for the term “Oh my God, laughing out loud”.

The following exchange then took place between ER and the complainant:

ER: Lmao. [84]
Her husband is a fucking paedophile.

Complainant: Lol.
ER: He said some gross shit to you when you were a kid.
84. It was agreed between the parties that this was an abbreviation for the term “Laughing my arse off”.

At that point, a further exchange of messages took place between LW and the complainant:

LW:   I don’t think that happened it was your choice to want to go when u left here I think
Complainant:       No not at all
LW:          It actually made you happy and u felt safe
Complainant:   Yes because your pedophilic husband did the exact opposite

LW’s first message in that exchange of messages was, I infer, a response to the complainant’s earlier message about the freedom to choose one’s religion. The complainant then sent that exchange to ER who responded:

I went off! I rang docs and went off at them and wouldn’t let that grub it her husband speak to you anymore.
Lmao
Be careful kid.

LW then sent the complainant a further message (obviously in response to the complainant’s reference, in the previous exchange, to LW’s “pedophilic husband”) stating:

What do u mean?

The complainant did not respond to that message.
There was then a further exchange of messages between the complainant and ER:

Complainant:   She said what do you mean [85] … Cmon it’s fun fucking with her.
ER:   Yeah but religious nutters are crazy lol … Did she contact you??? I reported them both to docs lol.
Complainant:   Yes she did they’ve all attempted to contact me recently.
ER:   Even (the appellant)!!!?? She’s as much as a gronk as he is because she slows him to be the way he is and helps him by having small kids come to her house … They are fucking revolting people.
Complainant:   Yeah he follows my public posts on FB and he tried following me on install Insta.
ER:   That’s a huge part of why I knew I had to do anything to get you away from them! Before he did anything to you!! Right well … I fucking furious as fuck right now. Tell that bitch to keep her gronk husband away from you!!
Complainant:      KK [86] I will.
ER:         They are such baby Jesus loving weirdos lol.
85. This message concluded with two emojis which were agreed between the parties to depict someone to crying with laughter.
86. It was agreed between the parties that “KK” means “OK”.

At that point, the exchange of messages between the complainant and LW resumed:

Complainant: Keep your gronk husband away from me.
LW: … what are you talking about?

The complainant did not respond to that message from LW. However, she did send a further message to ER saying:

Done lol.

That message from the complainant was obviously her confirmation to ER that she had done as ER had told her, i.e. she had told LW to “keep (her) gronk husband away”.
The complainant then received a message from LW stating:

I’m shocked by your words What did he do I want to know?

Again, the complainant did not respond to LW’s message but resumed her exchange of messages with ER as follows:

ER:         Good!! [87]
87. This was obviously a response to NT’s earlier message telling ER that it had been “done” and was accompanied with a “thumbs up” emoji.
Complainant:      I know I am. [88]
88. This message was accompanied by three “crying with laughter” emojis.
ER:   It’s hilarious what you wrote about religious views ha ha ha … The poor brainwashed bitch is in denial about her husband … Idiot … How’s the ankle
Complainant:   Fuck … Ha ha ha she messaged me saying she’s shocked by my words and wants to know what he did to me … I’m just ignoring her.
ER:          Yeah just ignore her now ok.
Complainant:      Ok.
ER:   You wouldn’t have been the only little girl that stayed with them … You may have been one of the lucky ones who got out in time!! Lucky you told (CT) and I what he was saying to you so we could get you out of there
Complainant:   What did I say bc I’m having a bit of a blank. I barely remember him at all. I have two memories of him.
ER:   He told you that if you ever felt like masturbating to go and tell him! My brain nearly exploded in anger
Complainant:       Fucking gronk. I think I may vaguely recall that tbh. [89]
ER:          Yep … See This is fueling my hate fire! … Really?
Complainant:      Yes I see why.
ER:   I rang your docs case worker and lost my shit at her for putting you in danger
Complainant:      Well I’d be pissed if you hadn’t
ER:         Exactly [90]
ER:         See kid, I’ve got your back ha ha.
Complainant:      haha.
ER:   It’s not even Monday and I thinking about how much they suck lol … OMG I didn’t tell you … I really did lose my job I have to apply for other jobs now! … Totally blows.
89. It was agreed between the parties that “tbh” stands for “to be honest”.
90. This message was accompanied by four “crying with laughter” emojis.

The complainant did not disclose any of these messages to the police when she was interviewed, and confirmed in cross-examination that she had in fact told police that she had not engaged with the appellant and LW at all since leaving their care: [91]

Q.   When you were spoken to by the police in 2016, you said in effect that you’d had absolutely no contact with either (LW) or the accused through any social media, is that right?
A.   Yeah, that’s yep.
Q.   In fact, that term “absolutely none”, I think that was the term used by the police officer with which you agreed, is that right?
A.   Yep.
91. T53.49-T54.6.

The complainant maintained on several occasions that she could not recall the messages, [92] and explained [93] that this was because the appellant’s offending was “playing on her mind” at the time. Bearing in mind the references in her messages with ER such as “lol”, and having “fun fucking with (LW)”, and also bearing in mind her concession that she and ER were having a “good old laugh” about the appellant and LW, the complainant was also asked in cross-examination: [94]

Q.   If these thoughts of what you claim (the appellant) had done to you were playing on your mind, it was hardly a laughing matter?
A.   No.
Q.   But what’s perfectly clear is that you and (ER) had a pretty good laugh at the expense of (the appellant and LW), didn’t you?
A.   Not really, no.
92. See for example T69.49-T70.1; T70.41-T70.44.
93. T52.35-T53.5.
94. T53.33-T53.39.

Having been taken to her exchanges of messages with LW, the complainant was asked: [95]
95. T55.1-T56.34.

Q.   You were asked this question at 190, “So did you engage at all with them?”, is that right?
A.   Yep.
Q.   You understood that the “them” was (the appellant) or (LW)?
A.   Yep.
Q.   You said you didn’t engage with them, you (sic) answer to that question was no, is that right?
A.   Yep, because I didn’t recall contacting them.
Q.   You said “I just blocked them both”, is that right?
A.   Yep.
Q.   Then the police officer said, “So there was absolutely no communication there between you?” And you answer was “No”, is that right?
A.   Yeah, that’s what I recalled it up and that’s what just - -
Q.   Sorry, did you finish that answer?
A.   Yep.
Q.   Is it the situation that at that time that you were unaware that there was a record of your conversation with (LW)?
A.   Yes, I was unaware of the record, because I was unaware of the conversation.
Q.   You could remember attempted contacts about a year before your police interview, is that right?
A.   Yes.
Q.   You say you couldn’t remember the conversation that you’d had with (ER)?
A.   Yes.
Q.   It’s fairly clear from that conversation that you and (ER) were having a good old laugh about (the appellant and LW), weren’t you?
A.   (No verbal reply).
Q.   Do you agree with that proposition or not?
A.   I said yes.
Q.   Sorry?
A.   Sure, yes.
Q.   But you couldn’t remember the fun you and (ER) had had the year before with (LW), at the time you spoke to the police, is that right?
A.   No, I couldn’t. I still don’t.
Q.   There’s no doubt that you did have that conversation with (ER), isn’t there?
A.   No.
Q.   There’s no doubt, that for your own amusement, you took screen shots of messages that (LW) had sent you and forwarded them to (ER), is that right?
A.   (ER) was my guardian, I would usually run almost everything by her because I trusted her and I respected her opinion.
Q.   That’s right (ER) was somebody, out of all the people in the world, (ER) was somebody that you knew hated (the appellant)?
A.   Yep.
Q.   (ER) was somebody, out of all the people in the world that if you’d had anything bad to say about (the appellant), she’d have been prepared to believe you?
A.   Yep.
Q.   The fact is, you had never, ever, at any time, told (ER) about any of the things that you claim (the appellant) had done to you?
A.   Because I didn’t want him to hurt my brother.
Q.   It is the fact that you never, ever told (ER) anything about what you claim the accused had done to you?
A.   No.
Q.   Even though you knew that if no else in the world believed you, she would believe you, is that right?
A.   Yep.
Q.   You know from reading that conversation what (ER’s) state of belief was about what (the appellant) or had not done to you, you know that don’t you?
A.   Yep.
Q.   She said you were one of the lucky ones, is that right?
A.   Yep, she did.
Q.   Your brother, by this stage, was in the care of his father wasn’t he?
A.   Yep.

The complainant was subsequently asked: [96]

Q. Contrary to what you had told the police, you did in fact interact for a time with LW. Is that right?
A. Not that I can remember.
96. T78.42-T78.44.

The complainant was also taken to the message she had received from LW in which LW had said that if she ever needed to talk she should just let her (LW) know: [97]
97. T59.6-T60.27; T61.15-T61.17.

Q.   It seems from that conversation that you had changed schools. You’d found a new school?
A.   Yeah, yep.
Q.   Does that mean, taking your earlier evidence, that you had already made to your grandmother an accusation against the accused?
A.   Yes, it would appear so.
Q.   Did you say that when your grandmother appeared not to believe you, you decided that you’d give up on telling people because no-one would believe you? Is that right?
A.   Yep.
Q.   But you knew that wasn’t true, didn’t you?
A.   No.
Q.   Well, you knew, as I think you agreed earlier, that (ER) would believe you, didn’t you?
A.   I would obviously have hoped, but - -
Q.   No, you agreed with the proposition earlier that of all the people in the world, (ER) would believe you if you made accusations against (the appellant)?
A.   Yep.
Q.   But you see, you had told the police absolutely no interaction, no engagement with either the accused or his wife, hadn’t you?
A.   Yes. (not transcribable).
Q.   Were you perhaps hoping that the Facebook records would never see the light of day?
A.   I didn’t even know about the Facebook records because I don’t recall any of this conversation.
Q.   You accept that it took place, don’t you?
A.   Well, the paper’s here, so it must’ve.
Q.   You had a short conversation, a short interchange with (LW) on the 18th. Another brief interchange on the 21st both of July, and then on 2 August, you had a lengthy interchange with her didn’t you?
A.   It appears that way, yes.
Q.   It lasted from about 23 minutes past 9 to five minutes to 10 that night. Is that right?
A.   Yeah, looks that way.
Q.   Was (sic) in that lengthy conversation that you decided you’d have a bit of fun. Is that right?
A.   None of this is a bit of fun.
Q.   You decided, didn’t you, in the course of that conversation, that you’d have a bit of fun with (LW). Is that right?
A.   No.
Q.   You decided that you’d bring (ER) into the picture so that she could have a bit of fun with you, didn’t you?
A.   I don’t recall this conversation.
Q.   You say you don’t recall it, but you’ve read it, haven’t you?
A.   Yep.
Q.   It’s obvious, isn’t it, that there came a point in your conversation with (LW) where you have said to yourself something like, “I might have a bit of fun with this woman.” Is that right?
A.   No, that doesn’t sound like me at all.
…
Q.   You decided and I’ll use your term here, you decided that you would “fuck with (LW)” didn’t you?
A.   No.

The complainant was also taken to her messages with ER in which references were made to laughing: [98]
98. T61.36-T63.16.

Q.   You see how (ER) responded to your sending of those messages?
A.   Yep.
Q.   “lmao”, laughing my ass off. Is that what it stands for?
A.   Yes, it does but it - -
Q.   You sent it - -
A.   Doesn’t necessarily mean that.
Q.   You sent it to be funny, is that right?
A.   No, I sent it to inform her that they were in contact with me, I would assume.
Q.   You sent it to be funny and you expected (sic) response, didn’t you?
A.   (No verbal reply).
…
Q.   Then (ER) came out with the comment, “Her husband is a fucking paedophile.” Is that right?
A.   Yep.
Q.   Do you see your response to that?
A.   Yep.
Q.   “lol”, laughing out loud. Is that right?
A.   Yep.
Q.   I put to you earlier that you decided that you would, to use your term, “Fuck with (LW).” Is that right?
A.   Well, that’s what it says in the message.
Q.   It’s what you said on the page numbered 3 of exhibit C, “And while it’s fun fucking with her.” Is that right?

Further, and even if the complainant’s evidence of what she told JT is accepted, it would follow that the first complaint was made approximately 7 years after the alleged offending. If her evidence was not accepted in that regard, then it would follow that the first complaint was made approximately 8 years later.
For all of these reasons, the evidence of the complaint was lacking in both consistency and cogency.

The Facebook messages

The Facebook messages exchanged between the complainant and ER, and the complainant and LW, are also significant, both in terms of their impact on the evidence of complaint, as well as in a more general sense.
To begin with, not only did the complainant not disclose the Facebook messages to police, she asserted, in specific terms, that she had had “absolutely no contact” with the appellant and LW since leaving their care. That was obviously untruthful, and is a factor which reflects adversely upon the complainant’s credit.
If the evidence of JT is accepted, the complainant had made no allegation of sexual offending at all, and certainly no allegation against the appellant, at the time that she exchanged the messages with ER. Yet, in the course of those messages, it was ER, someone who obviously held a great deal of animosity towards the appellant, who labelled the appellant a paedophile, not the complainant. In my view, there is considerable force in the submission advanced by senior counsel for the appellant that it was ER who, in the absence of any allegation of the complainant, was suggesting that the appellant was a paedophile. The complainant simply embraced those suggestions, in the absence of making any complaint or allegation herself. I am fortified in that view by the evidence that having acted in accordance with ER's direction and told LW to “keep (her) gronk husband away", and having told LW that she had a “pedophilic husband", the complainant failed to respond to two separate messages from LW in which had expressly asked her what she had meant.
If, on the other hand, the complainant’s account of what she told JT were accepted, it would follow that at the time of exchanging messages with ER she had already made a complaint of sexual offending against the appellant. Accepting that to be the case, a number of further matters arise.
Firstly, if a complaint had been made by that time, it had clearly not been made to ER. Accordingly, ER’s assertion that the appellant was a paedophile lacked any relevant context.
Secondly, despite the fact that she was exchanging messages with a person to whom she was close and whom she trusted, the complainant said absolutely nothing to ER about the alleged offending at that time, even after ER had described the appellant as a paedophile.
Thirdly, ER asserted to the complainant that she (ER) “had to do anything to get (the complainant) away from (the appellant) ……before the appellant did anything”, and that the complainant may have been “one of the lucky ones who got out in time”. ER was clearly asserting that she had removed the complainant from the appellant’s care before any improper conduct on the part of the appellant had occurred. That is completely inconsistent with the proposition that the complainant was subject to sexual assaults by the appellant during the time that she was in his care.
Fourthly, ER’s assertions that she had effectively “rescued” the complainant provided the complainant with a clear opportunity to correct ER, and tell her that she was, in fact, assaulted by the appellant before she left his care. Indeed, in ER’s words, in raising those matters she was “opening the door for (the complainant) to let her know” what had occurred. In other words, she was giving the complainant the opportunity to tell her about the appellant’s conduct. Having been squarely provided with the opportunity to tell someone she trusted about what the appellant had done, the complainant said nothing. The alternative conclusion which is available on the basis of the complainant’s evidence is that far from not making a complaint to ER, she may have positively asserted to ER at one point that no offending had taken place at all. Neither conclusion reflects positively on the complainant’s credit.
It is also important to bear in mind the general tone of the majority of the messages which passed between the complainant and ER. They were often punctuated with expressions and images of laughter, the complainant at one point telling ER that it was “fun fucking with (LW)”. The use of such expression was hardly consistent with discussing what was, as complainant conceded, hardly a laughing matter. Moreover, the complainant initially denied the suggestion that she was having a laugh at the expense of the appellant and LW, only to later to expressly concede that she was doing just that.
Finally, a number of the statements made by ER in her exchanges of messages with the complainant were made in the context of assertions that she (ER) had “reported (the appellant and LW) to DOCS” and that she had “rang (the complainant’s) DOCS caseworker and lost (her) shit at her for putting (the complainant) in danger”. The evidence makes it clear that it was CT, not ER, who approached the authorities. Moreover, the evidence was that CT had done so in January 2009, some considerable time after the complainant had left the care of the appellant and LW. It was certainly not the case, as ER had repeatedly suggested to the complainant, that she had complained at all, much less for the purposes of having the complainant removed from the appellant’s care because of a fear that she was at risk of harm.

The complainant’s expressed desire to remain in the appellant’s care

There is also objective evidence which is capable of supporting a conclusion that the complainant was happy whilst living with the appellant and LW, and had expressed a desire to stay.
Firstly, there was evidence from both LW and AW that the complainant consistently gave the general impression that she was happy living with them. That was entirely inconsistent with the complainant’s evidence that she ceased liking to live with the appellant once he had committed the offending.
Secondly, and perhaps even more importantly, there was evidence of specific statements made by the complainant to Cecilia Papadakis that she did not wish to move away from the appellant. On the Crown case, those statements were made, not just after the commission of the two alleged offences, but after the complainant had been living with the appellant for a period of approximately 6 months. On the complainant’s account, the appellant throughout that period, would “come and get (her)” whenever LW and AW were absent from the premises and assault her, to the point where such assaults became “pretty regular”.
Whilst I accept that the complainant was only 7 years old at the time of her interview with Ms Papadakis, her expressed desire to stay with the appellant, to the point of becoming upset at the suggestion that she might have to move away from him, is consistent with the unchallenged evidence of LW and AW. It is also completely inconsistent with the proposition that she had been subjected to repeated sexual assaults over a lengthy period.
In my view, such objective evidence casts further doubt on the complainant’s general reliability.

The absence of evidence injury to the complainant

I do not regard the absence of evidence of injury to the complainant as being of any real probative value in all of the circumstances. The evidence of injury was limited to the complainant’s account of finding blood in her underwear on one occasion. There was no expert evidence before the jury as to what (if any) injury might be expected in light of the complainant’s evidence, and whether the complainant’s account of finding a small amount of blood on one occasion would be regarded as being inconsistent with her evidence of that particular assault. The matter was not the subject of any submission to the jury, an indication that trial counsel saw it as being of little or no significance.
In my view, the submission advanced on behalf the appellant in this regard invites a significant degree of impermissible speculation.

The timing of the alleged offending

There is, however, substance in the submission advanced by senior counsel for the appellant as to the unreliability of the complainant’s account of the timing of the relevant events.
According to the complainant’s account, the offending in Count 2 occurred after Christmas 2007 in a bedroom that she shared with AW at the time. There was no issue that the complainant had joined the appellant’s family in October 2007.
The unchallenged evidence of LW was that the appellant and AW had shared a room for only a “short period of time" which was “right at the beginning”. The evidence of AW was more specific. She said that she had shared a bedroom with the complainant for only one night. That evidence was similarly unchallenged. Over and above that, the evidence given by the appellant was that he had built a separate bedroom for AW prior to the time at which the offending alleged in count 2 had occurred.
I accept that the Crown did not have to establish the precise time at which the offending occurred in each case. However, the combined evidence of LW, AW and the appellant tends completely against the offending in Count 2 having occurred in a bedroom that the complainant shared with AW. Although that evidence went specifically to the alleged offending in Count 2, it has a bearing on an assessment of the credibility of the complainant’s evidence in relation to the offending in Count 1. [207] This is a further matter which calls the complainant’s credibility into question.
207. R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82.

Statements attributed by the complainant to the appellant

I have already made reference to the evidence of the complainant that the appellant had variously said to her that she was “the devil", and that “she had the devil inside her." The complainant also asserted that at one point, the appellant had said to her that if she “ever felt like masturbating, she should come and tell him". The appellant denied each of those assertions.
As to the first of those matters, I have already noted that in the complainant's exchange of messages with ER, it was ER who asserted that the appellant had “said some gross shit" to the complainant when she was living with him. There was no further elucidation at that point. The allegation that the appellant had told the complainant that she was “the devil" and that she “had the devil inside her" emerged for the first time in the course of the complainant's evidence in chief. Quite apart from the fact that the allegation emerged at a late stage, the report made by CT to the authorities was that the complainant had told her that it was LW, and not the appellant, who had said such things to her. That was of obvious significance in light of the appellant's denials.
The second assertion made by the complainant, namely that the appellant had told her to come and tell him if she felt like masturbating, originated in the exchange of messages between the complainant and ER. I have already noted that in one of those messages, ER asserted to the complainant that the appellant had said some “gross shit to her when (she was) a kid”. In a later message ER told the complainant that it was “lucky" that she had told her and CT “what (the appellant) was saying”. The complainant's immediate response was to ask ER what she had said to her because she was “having a bit of a blank" barely remembered (the appellant) at all”. It was at that point that ER asserted that the appellant had told the complainant that if she “ever fell like masturbating to go and tell him". The complainant then said that she thought she “may vaguely recall that". This prompted ER to assert that she had informed the authorities about the matter and had remonstrated with them because of the fact that the complainant had been put in danger. For the reasons that I have already set out, the objective evidence established that it was not ER who had reported the appellant at all.
Nothing at all was said by the complainant about these matters when she was interviewed by police. As with the first matter, this assertion emerged in evidence for the first time when the complainant was asked additional questions in chief by the Crown.
LW's evidence was that she had observed the complainant seemingly engaging in masturbation at one point and that it was she who had said to the complainant that if she wanted to do that she should come and tell her. On LW's evidence, the appellant was it not a party to that conversation.
This evidence, in my view, supports a conclusion that in making these assertions, the complainant effectively acted upon the suggestions of ER in their exchanges of messages. In each case, the preponderance of the evidence runs contrary to the complainant's assertions.

The evidence of the appellant’s prior good character

Quite apart from all of these matters there was, as I have outlined, a plethora of evidence to support the fact that the appellant was a person of prior good character. That evidence included the fact that he had been accredited as a foster carer in 2007, an accreditation which was, as might be expected, awarded after an exhaustive assessment process. The evidence also supported a conclusion that, consistent with his prior good character, the appellant had discharged his responsibilities as a foster carer not only without complaint, but in a manner which had earned the unequivocal and unsolicited praise of Ms Taylor, in the context of a regime of continuous monitoring and reporting. Far from that regime disclosing any issues between the complainant and the appellant, it disclosed an unequivocal desire on the part of the complainant to want to stay with him.
In all of these circumstances the appellant's repeated denials of wrongdoing are rendered particularly forceful. Such denials must be assessed in the context of having come from a person who was of unblemished character, of whom witnesses spoke highly and who, on the evidence, had carried out his duties as a foster carer in an exemplary fashion over a significant period of time. Given that the offending was said to have occurred when the appellant was carrying out those duties, the fact that he had otherwise done so without blemish was a matter of some significance.
In these respects, I am particularly mindful of the evidence of Ms Taylor, whose evidence is deserving of considerable weight. I am equally mindful of the evidence of Ms Pearce, the vast majority of which was unchallenged. The force of such evidence cannot be ignored. In all of these circumstances, I am unable to accept the submission advanced by the Crown that the absence of any other offending on the part of the appellant may have been due to the fact that he had decided that it was “too risky" to continue to behave in such a way. Such a proposition is entirely speculative.

Conclusion

As I have already set out, the task of this Court is to determine whether, notwithstanding that there is evidence upon which a jury might have convicted the appellant, it would nonetheless be dangerous in all the circumstances to allow the verdict of guilty to stand. [208] Proof of a matter beyond reasonable doubt involves a rejection of all reasonable hypotheses, or any reasonable possibility inconsistent with the Crown case. [209] As I have said, taken in isolation the complainant's account might be viewed as cogent. But that is not the way in which the question is to be approached. The entirety of the evidence must be assessed.
208. M at 492-493.
209. Moore v R [2016] NSWCCA 185 at [43]; [99].
Having undertaken that exercise, the complainant's assertions against the appellant, and her general credibility, are eroded. In a number of respects, those assertions do not sit with the objective evidence. Not only did some of them come to light at a late stage, some of them, including the fundamental assertion that the appellant was a paedophile, emanated from suggestions made to her by other persons. The entirety of the evidence also includes the appellant's sworn denials and the evidence of his prior good character which was elicited, not only through Crown witnesses but from witnesses called in his own case.
In all of the circumstances I accept the submission of senior counsel for the appellant that there were a number of possibilities which were open on the evidence. These included the possibilities that:

the complainant was making up her evidence; or

the complainant was giving evidence that was not her genuine memory; or

the complainant's evidence was simply wrong, and that the alleged acts did not occur.

It is important to bear in mind that in order for a doubt to be a reasonable one, such possibilities must be reasonable, as opposed to being fanciful or speculative. [210]
210. Moore v R at [37]; see also Baden-Clay at [47].
In my view, the possibilities raised on the evidence did not fall into the category of being fanciful. They were real possibilities which, in my view, the Crown failed to exclude on the whole of the evidence.
For all of those reasons, this ground has been made out.

GROUND 6 – THE TRIAL MISCARRIED AS THERE WAS AN ERRONEOUS AND INADEQUATE DIRECTION BASED ON LIBERATO v THE QUEEN (1985) 159 CLR 507 AT 515 GIVEN IN THE TRIAL

The directions of the trial judge

At an early stage of her summing-up [211] the trial judge directed the jury as to the onus of proof in terms with which senior counsel for the appellant took no issue. The direction included the following: [212]

…[I]t is not a question of saying for instance, “I’m not sure where the truth lies, but I prefer the evidence of the complainant to the accused”. Before you can convict the accused of any count, you need to accept the evidence of the complainant as a witness of truth and reliability in relation to that count and that involves rejecting the denials by the accused.
211. SU4, 6 August 2018.
212. SU6, 6 August 2018.

Her Honour then referred to aspects of the appellant’s interview with the police, [213] his sworn evidence before the jury, [214] and the evidence of other witnesses who gave evidence in the defence case, [215] before saying: [216]

If having considered that evidence led in the defence case and the submissions of both counsel in relation to it, if you accept it then of course you must acquit the accused and bring in a verdict of not guilty because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter, that is the accused has denied the allegation, so if you accept his denials both in the record of interview and his evidence then of course the verdict would be not guilty.
However, as I have told you there is no obligation on the accused to persuade you to accept his evidence. The Crown must satisfy you beyond reasonable doubt that you should reject it as a reasonably possible version of the facts. If after having given consideration to the evidence of the accused and the evidence called from witnesses on behalf of the accused you do not possibly accept the evidence of the accused and his witnesses in support of his case, but that evidence nevertheless leaves you with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter, then you are bound in law to bring in a verdict of not guilty.
In other words, it is not the position that you have to believe that the accused and his witnesses are telling you the truth before the accused is entitled to be found not guilty. As I have previously emphasised to you throughout the whole of this case it remains the position that the Crown must establish beyond reasonable doubt the charges which it brings against the accused and it is never for the accused to prove that he is not guilty. If at the end of your deliberations you find that the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true then the Crown has failed in its obligation to persuade you of the accused’s guilt beyond reasonable doubt.

213. SU15, 6 August 2018.

214. SU16, 6 August 2018.

215. SU17, 6 August 2018.

216. SU18, 6 August 2018.

Submissions of the appellant

Senior counsel for the appellant submitted that the trial judge should have directed the jury that:

even if the evidence led by the Crown was preferred, the appellant could not be found guilty unless the jury was satisfied beyond reasonable doubt of the truth of that evidence; and

even if the jury did not positively believe the evidence called in the defence case, they could not find against the accused in respect of a particular issue if the evidence gave rise to a reasonable doubt.

Senior counsel for the appellant acknowledged that no issue was raised by trial counsel to the direction which was given, and that r 4 therefore applied to this ground.

Submissions of the Crown

The Crown submitted that the trial judge had discharged her obligation to give a clear and unequivocal direction to the jury as to the onus and standard of proof. It was submitted that the trial judge’s direction left the jury in no doubt that if they considered that the appellant’s version of what happened could possibly be true, they were required to acquit him. In circumstances where no further direction was sought by trial counsel, it was submitted that leave to argue this ground should be refused.

Consideration

In Liberato v The Queen [217] Brennan J said:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
217. (1985) 159 CLR 507; [1985] HCA 66 at 515.

Deane J said: [218]

Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing-up to a “choice” between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable. The main significance of the directions about having to make a “choice” lies, in the present cases, in their clear suggestion that the “real question” in the cases turned upon a mere “choice” between the evidence of the complainant and that of the accused and in the possible contribution of that suggestion to overall effect of the misdirections about onus of proof.
218. At 519.

In Roos v R [219] Gleeson JA (with whom Harrison and Davies JJ agreed) concluded that it would be wrong for a trial judge to indicate to a jury that guilt or innocence turned upon a “choice” between two inconsistent versions, but that a Liberato-type direction may be unnecessary where the jury is given clear directions regarding the onus and standard of proof. His Honour went on to say: [220]

[91] In the present case, the jury were directed that, if they considered that the appellant’s version of what happened could possibly be true, they must acquit him. Such a direction prevented any likelihood that the jury obtained the impression that it was only if they believed the appellant’s evidence to be true that it could give rise to a reasonable doubt as to his guilt. There was no suggestion that they had to choose between the Crown witnesses and the appellant as to who was to be believed. The directions concerning the onus of proof given to the jury in the present case (quoted in par [10], supra) deny the possibility of any misapprehension by the jury such as that contemplated by the Liberato direction.
[92] In the present case, the Judge’s summing up carefully and correctly explained to the jury the requirements of the criminal onus and standard of proof. The jury were directed that if they accepted the evidence of the accused they must acquit him but there was no obligation on the accused to persuade the jury to accept his evidence. The jury were also instructed that there was no obligation on the accused to persuade the jury to accept his evidence, that the jury did not have to believe the accused before they found him not guilty, and that the Crown must satisfy the jury beyond reasonable doubt that the jury should reject the accused’s evidence as a reasonably possible version of the facts.
[93] Taken together with the directions on the onus and standard of proof, I do not consider that there was any likelihood that the jury obtained the impression that it was only if they believed the accused’s evidence to be true that it could give rise to a reasonable doubt as to his guilt. The summing up did not suggest that the jury had to choose between the Crown witnesses and the appellant as to who was to be believed.
219. [2019] NSWCCA 67 commencing at [89].
220. At [91]-[93].

In the present case, over and above the directions as to the onus and standard of proof, the trial judge directed the jury that:

if the evidence led in the defence case was accepted, the appellant must be found not guilty;

if the denials of the appellant in his record of interview and his sworn evidence were accepted, the appellant must be found not guilty;

even if the evidence of the appellant and those called as witnesses in the defence case was possibly not accepted, but nevertheless left a reasonable doubt, the appellant must be found not guilty;

it was not the case that the jury was required to believe that the appellant was telling the truth before he was entitled to be found not guilty; and

if, at the end of deliberations, the jury found that the Crown had failed to eliminate, as a reasonable possibility, that the version presented by the defence was true, then the Crown had failed in its obligation to persuade the jury of the appellant’s guilt beyond reasonable doubt and the appellant should be found not guilty.

Although the trial judge did not specifically refer to evidence of good character which had been elicited from Crown witnesses and upon which the appellant relied, I am satisfied that when viewed in their entirety, her Honour’s directions made it clear to the jury that if they considered that the appellant’s version of what had happened could possibly be true, they were bound to return a verdict of not guilty.
As was the case in Roos, the trial judge did not suggest to the jury that they were required to choose between the Crown witnesses and the appellant as to who was to be believed. In my view, the jury could not have been left with the impression that it was only if they believed that the appellant’s evidence was true that they could have a reasonable doubt as to his guilt. The directions of the trial judge were generally to the contrary.
In these circumstances, and given that no issue was taken by trial counsel to the directions given, leave to argue this ground should be refused.

GROUND 7 – THE TRIAL MISCARRIED WHEN THE EVIDENCE OF THE COMPLAINANT WAS REPLAYED IN THE ABSENCE OF ANY REMINDER AS TO HER CROSS-EXAMINATION, ANY REMINDER OF THE EVIDENCE OF THE APPELLANT, OR ANY WARNING AS TO MISUSE

The replaying of the complainant’s evidence

After the jury had retired, the trial judge received a note [221] in the following terms:

1. Could we review (the complainant’s) interview with the police from question 53 to question 175.
2. Could we read the transcript of (ER). It does not matter which order these requests are met.
221. MFI 19.

That part of the complainant’s interview which the jury asked to be replayed incorporated (inter alia) her account of the specific allegations in respect of the two Counts in the indictment. After receipt of the note, the trial judge and the Crown identified the relevant section of the recording and the jury returned to court. The jury returned to court and Q and A 53-175 were replayed. The jury then resumed their deliberations and a little over 20 minutes later, verdicts of guilty were returned.

Submissions of the appellant

Senior counsel for the appellant pointed to the fact that the jury had not been reminded, be it before, during or after the re-playing of the complainant’s evidence in chief, of either her cross-examination or the appellant’s sworn evidence. Senior counsel also pointed to the fact that the transcript of the complainant’s cross-examination was not provided to the jury, and that there was no direction given to the jury:

not to give disproportionate weight to the evidence of the complainant which they were hearing for a second time;

reminding them of the necessity to bear in mind the other evidence in the case; and

reminding them of the necessity to consider all of the evidence in a fair and balanced way.

Senior counsel emphasised that the trial was one in which there had been considerable evidence adduced in the defence case. It was submitted that in those circumstances, the failure to remind the jury of the complainant’s cross-examination, and to direct them in the terms set out above, gave rise to a fundamental lack of fairness in the trial process, as a consequence of which there had been a substantial miscarriage of justice. It was again accepted that r 4 applies to this ground.

Submissions of the Crown

The Crown submitted that in circumstances where the jury had available to them both the recording of the appellant’s interview and a transcript, the suggested directions were not necessary.
The Crown pointed out that the terms of the jury’s note made it apparent that they only wished to listen to the recorded evidence of the complainant relating to the offending alleged in each Count. It was submitted that in these circumstances, and in the absence of any application being made by trial counsel, it was not for the trial judge to remind the jury of the complainant’s cross-examination, and/or the appellant’s sworn evidence.
The Crown appeared to accept that had a direction been sought, it would have been open to the trial judge to give what the Crown described as a “misuse warning”. However, the Crown submitted that the failure to do so did not give rise to a miscarriage of justice.

Consideration

In R v NZ [222] Howie and Johnson JJ said the following:

[208] We believe that the judge should give a warning to the jury as to the caution with which they are to approach the replaying of the videotape of the evidence in chief of a witness in the manner suggested by McMurdo P in R v H . The general warning is to the effect that:
because they are hearing the evidence in chief of the [witness] repeated for a second time and well after all the evidence, they should guard against giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.

Of course it does not matter what words the judge uses to express that warning.
[209] Again the failure to give such a warning may or may not result in a miscarriage of justice. Much may depend upon the significance of the evidence in the case and what other warnings have been given to the jury about the evidence of the witness whether there is other evidence corroborating the witness or otherwise proving the offence and when the request for the replaying of the tape is made. A relevant matter may be whether defence counsel made any request for such a warning.
222. [2005] NSWCCA 278; (2005) 63 NSWLR 628 at [208]-[209].

Their Honours further said:[223]

[221] Although rule 4 strictly applies in the present case, we are prepared to deal with the grounds of appeal on the basis that we should set aside the verdicts unless we are persuaded that no miscarriage of justice has occurred by the presence in the jury room of the videotape of the complainant’s interview with police. We are so satisfied. It is impossible in our opinion to conclude that the trial was unbalanced by the presence of that material in the jury room when the jury themselves corrected whatever imbalance there might have been by asking for, and being supplied with, the transcript of the cross-examination of the complainant. As there was no defence case, there could be no imbalance in favour of the Crown case. We take into account in coming to this view that the trial judge gave the appropriate warnings and directions as to the way the jury were to approach the evidence of the complainant in a fair and balanced way that was not, and could not have been, the subject of any complaint.
223. At [221].

In Jarrett v R [224] this Court confirmed that no rule of practice or procedure should be laid down as to the circumstances in which a judge might permit evidence of the kind given by the complainant, in the present case to be replayed without any warning, or without reminding the jury of any relevant cross-examination. The determination of whether the failure of a trial judge to direct the jury in such terms will result in a miscarriage of justice will depend on a number of factors, including the nature and extent of the other evidence in the case.
224. [2014] NSWCCA 140; (2014) 86 NSWLR 623 at [73].
In the present case, there was considerable cross-examination of the complainant. The appellant repeatedly denied, both in his interview and in his sworn evidence, that the alleged offending had ever occurred. There was also a significant case put before the jury as to the appellant’s prior good character, not only on the basis of evidence called in the appellant’s case, but also on the basis of evidence elicited through the conversation of witnesses called by the Crown. In these circumstances, the failure of the trial judge to warn the jury as to the caution with which they should approach the re-playing of the complainant’s evidence gave rise to a miscarriage of justice.
No application for such a direction was made by trial counsel at the time and accordingly, r 4 applies to this ground. In NZ, the decision to refuse leave under r 4 was based partly on the fact that there had been no defence case, and thus there was no risk of imbalance arising from the failure of the trial judge to give any direction at the time that the evidence was replayed. That may be usefully contrasted with the appellant’s trial where the position was very much to the contrary.
In all of these circumstances leave to rely on this ground should be granted. For the reasons stated, the ground has been made out.

CONCLUSION

My conclusion that grounds 1, 2, 3, 4 and 7 have been made out would otherwise result in orders being made upholding the appellant’s appeal, quashing his convictions and sentence, and ordering a new trial. However, in view of the conclusion that I have reached in respect of ground 5, I propose the following orders:

The appeal against conviction is allowed.

The convictions recorded against the appellant are quashed.

The sentences imposed upon the appellant are quashed.

Verdicts of acquittal are entered in respect of each of counts 1 and 2.

**********

Endnotes

Decision last updated: 20 December 2019

Medium Neutral Citation:	IW v R [2019] NSWCCA 311
Hearing dates:	9 September 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Before:	Bathurst CJ at [1] Fullerton J at [3] Bellew J at [9]
Decision:	(1) The appeal against conviction is allowed. (2) The convictions recorded against the appellant are quashed. (3) The sentences imposed upon the appellant are quashed. (4) Verdicts of acquittal are entered in respect of each of counts 1 and 2.
Catchwords:	CRIMINAL LAW – Evidence – Admissibility of credibility evidence of an accused – Where the appellant stood trial on charges of sexual assaulting a child in his care – Where the appellant relied substantially upon evidence of his good character as part of his defence – Where evidence of irrelevant matters had been excluded from a recorded interview between the appellant and police – Where such matters were specifically raised by counsel for the appellant in the appellant’s evidence in chief notwithstanding that they had been excluded by agreement – Where Crown then cross-examined the appellant in relation to such matters without a grant of leave and in breach of relevant statutory provisions – Where the Crown’s stated bases for the cross-examination were wholly inconsistent – Crown’s cross-examination entirely impermissible and grossly unfair to the appellant CRIMINAL LAW – Summing up by trial judge – Where trial judge repeated a materially erroneous statement made by the Crown regarding certain evidence – Erroneous reference by the trial judge to “bad character evidence” – Erroneous directions given by trial judge as to the evidence of the appellant’s good character – Erroneous directions given by the trial judge as to the evidence of complaint CRIMINAL LAW – Directions to jury during deliberations – Appellant charged with two counts of sexually assaulting a child in his care – Where jury requested in the course of their deliberations that excerpts of the complainant’s recorded evidence in chief be replayed – Excerpts replayed in the absence of the trial judge reminding the jury of either the cross-examination of the complainant or the evidence of the appellant – No direction given to the jury not to give disproportionate weight to the evidence of the complainant which was being heard for a second time – No direction given to the jury reminding them of the necessity to bear in mind the other evidence in the case – No direction given to the jury reminding them of the necessity to consider all of the evidence in the trial – Where the failure on the part of the trial judge to give such directions and warn the jury as to the caution with which they were to approach the re-playing of the complainant’s evidence amounted to a miscarriage of justice CRIMINAL LAW – Unreasonable verdicts – Appellant charged with two counts of sexual assaulting a child in his care – Where a number of assertions made by the complainant were not consistent with objective evidence – Untruthful answers given by the complainant in an interview with police regarding contact with the appellant and his wife – Inconsistent evidence of complaint – Evidence of the appellant’s prior unblemished character – Verdicts unreasonable – Convictions quashed – Verdicts of acquittal entered
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 ARS v R [2011] NSWCCA 266 Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Greenhalgh v R [2017] NSWCCA 94 Hill v R [2017] NSWCCA 136 Jarrett v R [2014] NSWCCA 140; (2014) 86 NSWLR 623 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Moore v R [2016] NSWCCA 185 Popovic and ors. v R [2016] NSWCCA 202 R v Castaneda (No.2) [2015] NSWSC 979 R v El-Azzi [2004] NSWCCA 455 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Meher [2004] NSWCCA 355 R v Melville (1956) 73 WN (NSW) 579 R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 R v Ortega-Farfan [2011] QCA 364 Roos v R [2019] NSWCCA 67 Safi v R [2018] NSWCCA 134 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Category:	Principal judgment
Parties:	IW – Appellant Regina - Respondent
Representation:	Counsel: G Bashir SC and G Lewer - Appellant M Cinque SC - Respondent Solicitors: Younes and Espiner Lawyers - Appellant Solicitor for Public Prosecutions (NSW) - Respondent
File Number(s):	2016/233618
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 24 August 2018 Before: Bright DCJ