JC v The King

[2023] NSWCCA 231

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

JC v R [2023] NSWCCA 231

Hearing dates:

11 September 2023

Decision date:

20 September 2023

Before:

Adamson JA at [1]; Harrison J at [152]; Chen J at [155]

Decision:

(1) Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1 and 2.

(2)   Grant leave to appeal.

(3)   Dismiss the appeal.

(4) Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), the applicant’s sentence is to recommence on 20 September 2023.

(5) The Court notes for the purposes of s 18(2) of the Criminal Appeal Act that the period of 217 days, being from 15 February 2023 to 19 September 2023 (inclusive of both dates), does not count as part of the sentence of imprisonment imposed in the District Court on 18 November 2022.

(6) The Court notes for the purpose of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that:

(a)   the non-parole period will now expire on 27 August 2025, upon which date the applicant will be eligible for release to parole; and

(b)   the sentence will now expire on 25 January 2027.

Catchwords:

APPEALS — CRIME — appeal against conviction — indecent assault of a child — possess child abuse material — sexual interest in children and BDSM — whether trial judge reversed onus of proof — unreasonable verdict — fresh evidence — whether Court would have reached different verdict if it had been aware of evidence of witness’s sexual interest

APPEALS — CRIME — PRACTICE AND PROCEDURE — directions — trial by judge alone — whether trial judge should have made direction in accordance with s 165 of Evidence Act — whether witness criminally concerned in events — whether trial judge should have made a Murray direction — whether trial judge failed to apply Liberato direction

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 48

Crimes Act 1900 (NSW), ss 61M, 91H, 91HA

Criminal Appeal Act 1912 (NSW), ss 6, 18, 28A

Criminal Procedure Act 1986 (NSW), ss 133, 294AA

Evidence Act 1995 (NSW), s 165

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

Cases Cited:

Crickitt v R [2018] NSWCCA 240

Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221

Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59

Fuller v R [2021] NSWCCA 194

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26

Hopgood v R [2019] NSWCCA 246

JL v R [2023] NSWCCA 99

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

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

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

Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35

MRW v R [2011] NSWCCA 260

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

Quarta v R [2023] NSWCCA 173

R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417

R v JC [2023] NSWSC 111

R v Murray (1987) 11 NSWLR 12

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35

Reed v R [2006] NSWCCA 314

United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60

Wade v R [2018] NSWCCA 85

Wentworth v R [2023] NSWCCA 143

Z (a pseudonym) v R [2022] NSWCCA 8

Category:

Principal judgment

Parties:

JC (Applicant)
Rex (Respondent)

Representation:

Counsel:
G Lewer / C Akthar (Applicant)
E Nicholson (Respondent)

Solicitors:
Criminal Defence Lawyers Australia (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/145567

Publication restriction:

Publication of names and any information or material that may lead to the identification of the applicant or the victims is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 October 2021; 18 November 2022

Before:

Arnott SC DCJ

File Number(s):

2018/145567

HEADNOTE

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

JC (the applicant) sought leave to appeal against his conviction of two offences following a trial by judge alone before Arnott SC DCJ: indecent assault of a person under 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW) (count 2) and possession of child abuse material contrary to s 91H(2) of the Crimes Act (count 3).

The victim of count 2 was the applicant’s daughter, RC, who was then aged 2 years. At the time of the conduct which was the subject of count 2, it was alleged that applicant was having intercourse with his wife, AS, RC’s mother. BH, who also lived with the couple, gave evidence which corroborated AS’s evidence.

After the applicant’s arrest, NSW Police executed a search warrant of the applicant’s home and found a hard drive which contained 1,334 images of cartoon pornography classified as child abuse material (count 3).

The applicant sought leave to appeal against his conviction on the grounds that: there was a miscarriage of justice when the trial judge did not direct himself that the evidence of AS may have been unreliable because she was reasonably suspected of being criminally concerned in the events, as per s 165(1)(d) of the Evidence Act 1995 (NSW) (ground one); a miscarriage of justice was occasioned because the trial judge did not give himself a Murray direction (ground two); the trial judge erred in failing to apply the Liberato direction or explain how he did so (ground three); the trial judge reversed the onus of proof (ground four); the verdicts were unreasonable (ground five); and there was a miscarriage of justice in that there is a significant possibility the Court would’ve reached a different verdict had the Court been aware of fresh evidence of BH’s sexual interest in age play (ground six).

The Court held (Adamson JA, Harrison and Chen JJ agreeing) dismissing the appeal:

Ground one

1. As is evident from the wording of s 165(2) of the Evidence Act, the obligation to give a warning arises only when a party requests that the warning be given. In the circumstances where the prosecutor raised and then withdrew the giving of such a warning, and defence counsel expressly did not seek it, no s 165 warning was required: [76]-[77].

Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, applied.

Ground two

1. No Murray direction was required in respect of AS’s evidence. There was a wealth of other evidence which supported her account. The trial judge’s reasons were sufficient to explain why his Honour accepted the evidence of the prosecution witnesses and rejected the applicant’s evidence. The trial judge’s finding that he accepted the evidence of AS also plainly amounted to a finding that he accepted her evidence as reliable and credible: [86]-[88], [92]-[93].

Ground three

1. As this was a case where the applicant denied the Crown case, and the evidence of the prosecution witnesses was diametrically opposed to that of the applicant, acceptance of the evidence of AS and BH required rejection of the applicant’s account since they could not stand together. The trial judge must be taken to have found that the applicant’s evidence could not possibly be true and that, when taken with the whole of the evidence, counts 2 and 3 had been established beyond reasonable doubt: [96].

Ground four

1. When the trial judge’s reasons are read fairly as a whole, there was no reversal of the onus of proof. The trial judge’s findings (which the applicant alleged revealed error) were made in the course of addressing and rejecting each of the applicant’s submissions that AS was involved in the possession of the child abuse material: [107].

Ground five

1. In proceeding on the basis that the trial judge accepted AS and BH’s evidence as credible and reliable, it was open to the trial judge to be satisfied of the applicant’s guilt in respect of count 2: [125].

2. The tribunal of fact accepted the direct evidence of AS and BH denying knowledge of the child abuse material, and there was substantial circumstantial evidence which implicated the applicant. It was open to the trial judge to be satisfied of the applicant’s guilt in respect of count 3: [127].

Ground six

1. The apparent inconsistency between BH’s own description of her sexual interests (which was also raised in the fresh evidence) and her actual conduct arose at the trial and could be resolved by the tribunal of fact. The precise identification of BH’s sexual interests was also not particularly significant in the context of the trial, as her evidence corroborated AS’s evidence of the applicant’s conduct and of AS’s complaints. There is not a significant possibility that the tribunal of fact, acting reasonably, would have acquitted the applicant if the fresh evidence had been available. Accordingly, the applicant has not established a miscarriage of justice: [144]-[147].

JUDGMENT

1. ADAMSON JA: JC (the applicant) seeks leave to appeal against his convictions entered on 29 October 2021, following a trial by judge alone before Arnott SC DCJ (the trial judge), for the following offences:

Count 2: Between 1 March 2017 and 31 May 2017, the applicant indecently assaulted RC who was under the age of 16 years, namely, 1 or 2 years old, contrary to section 61M(2) Crimes Act 1900; and

Count 3 On 10 May 2018, the applicant did possess child abuse material contrary to section 91H(2) Crimes Act 1900.

2. On 19 October 2021, following a no case to answer application, the applicant was acquitted of count 1 on the indictment, which charged the following offence:

Count 1 Between 1 March 2017 and 31 May 2017, the applicant did commit an act of indecency towards RC, a person then under the age of 10 years, namely 1 or 2 years contrary to s 61O(2) Crimes Act 1900.

3. The applicant seeks leave to appeal against his convictions on counts 2 and 3 on the following grounds:

1 A miscarriage of justice was occasioned when the trial judge did not direct himself that the evidence of AS may have been unreliable because she was reasonably suspected of being criminally concerned in the events giving rise to the proceeding, in accordance with s 165(1)(d) of the Evidence Act 1995 (NSW).

2   A miscarriage of justice was occasioned because the trial judge did not direct himself in accordance with R v Murray (1987) 11 NSWLR 12.

3   The trial judge erred in failing to apply the Liberato direction; or, alternatively, failing to give reasons exposing how he applied the direction, as required by ss 133(2) and 133(3) of the Criminal Procedure Act 1986 (NSW)

4   The learned trial judge erred in determining the verdicts by reversing the onus of proof.

5   The verdicts in respect of Counts 2 and 3 are unreasonable and cannot be supported by the evidence.

6   There was a miscarriage of justice in that there is a significant possibility the Court would have reached a different verdict had the Court been aware of evidence of witness BH’s sexual interest in ‘age play’ and in calling her sexual partner ‘Daddy’.

4. On 18 November 2022, the trial judge imposed a sentence for count 2 of 4 years’ imprisonment, commencing 23 June 2022, expiring on 22 June 2026, with a non-parole period of 2 years and 7 months, expiring on 22 January 2025. The trial judge imposed a sentence for count 3 of a fixed term of imprisonment of 6 months’ to be served concurrently. The applicant has foreshadowed an application for leave to appeal against sentence, if the conviction appeal is unsuccessful, but has not yet brought such an application.

5. Appeal bail was granted by a single judge on 14 February 2023: R v JC [2023] NSWSC 111. It was granted on the erroneous assumption that the applicant would, if bail were not granted, spend up to 18 months in custody pending determination of the appeal.

6. By reason of the breadth of the grounds, and in particular the unreasonable verdict ground (ground 5), it is necessary to set out in some detail the course of the trial, including the evidence adduced, as well as the primary judge’s reasons for verdict, which were delivered on 29 October 2021.

7. It was accepted that leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules) was required in respect of grounds 1 and 2 and that leave to appeal was required in respect of all grounds.

The trial

The indictment

8. The indictment which charged the applicant with three offences (including counts 2 and 3) was presented on 6 October 2021. He pleaded not guilty to all three counts. As he was found not guilty of count 1, it is not necessary to address it further.

9. The offence created by s 91H of the Crimes Act 1900 (NSW) is subject to a “defence” in s 91HA, which relevantly provides:

“91HA   Defences

(1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.”

10. The question whether, in order to prove a charge under s 91H, the prosecution must negative s 91HA beyond reasonable doubt or whether an accused person must establish s 91HA on the balance of probabilities has not been determined authoritatively. It was common ground that the trial of the applicant on count 3 was conducted on the basis that the prosecution was obliged to negative s 91HA beyond reasonable doubt. This was the construction of the provision which was most favourable to the applicant. Accordingly, it is not necessary to resolve the question of statutory construction as it does not presently arise.

The evidence in the Crown case

11. The Crown called AS (the applicant’s wife), BH (a former sexual partner who lived with AS and the applicant), LO and ZZ (who gave evidence of complaint) and Detective Senior Constables Carland and Francis (investigating police officers). It tendered text messages between the applicant, AS and BH; the video of the search warrant of the applicant’s home and evidence about the computers found in the applicant’s home.

The beginning of the relationship between AS and the applicant

12. AS gave evidence that she commenced a relationship with the applicant in 2011, just before she turned 19 and when the applicant was about 22. In December 2012, they started living together in a de facto relationship. Their sexual relationship involved role playing, including “incestual power dynamics”, during which AS would call the applicant “Daddy” and she would, in response to his requests, portray herself as a young girl who wanted to have sex with a father figure. AS searched online for incest fiction, which she would read to the applicant or use the story lines when they were having sex. The applicant pressured AS to discuss her “deepest, darkest fantasies”.

13. The applicant introduced AS to a website called “Rule 31” or “Rule 35”, which allowed users to search a character’s name or image and find pornographic cartoons or illustrations of that character.

14. In June 2014, the applicant and AS moved to a house in Brisbane. At about this time she became pregnant with their child, RC (who is the alleged victim in count 2). Once during August and October 2014 (when AS was pregnant), the applicant had sex with AS while he was looking at photographs which depicted naked people, including children.

15. After this occasion, AS suggested that they look at hentai pornography (which comprised cartoons rather than photographs) to direct the applicant away from real life pictures. The hentai that she looked at comprised cartoons of (adult) women who appeared young and innocent, sometimes provocatively posed or having sex with a male authority figure, typically a teacher or father. AS and the applicant would watch it together on a laptop in the living room or on the computers in the house. They also sent pictures to each other’s phone while the applicant was at work. AS believed that it was “safer” for the applicant to look at these pictures rather than looking at images of children.

16. AS gave evidence about a discussion they had about the age of the female which AS was to role-play during sexual activity as follows:

“Q.  Was there any conversation between you and [the applicant] before [RC] was born about a particular fantasy involving a particular child that both of you knew?

A.  Yes, there was.  There was a time when we were having sex and he asked to role play, and I kind of went along with it, and I asked him, ‘Like, how old do you want me to be?’ and I suggested, 17, 18, and he said, ‘No, younger,’ and I was like, ‘You mean like 11 or 10?’ and he was like, ‘No, younger,’ and I kind of was hesitant.  I didn’t – I was – and then I – so then I said did he mean, like, six or like – I think it was like six or seven, I said, and he was like – he said, ‘No, what about [M’s] age?’  He was referring to a friend at work’s little girl, who was about two at the time, I believe.  At the time I didn’t – I kind of just didn’t say anything, and I was shocked, and I didn’t agree straight away, because I had a very uneasy feeling in my stomach and I didn’t – I didn’t like it.  But I kind of said – I ended up going along with it, because it was meant to be a fantasy.  I guess he didn’t – like, he was just speaking, and I ended up saying, ‘Okay,’ and I kind of went along with it at the time.  But, yeah.”

17. While they were having sex following this discussion, the applicant told her that he wanted to put their daughter (who was then in utero) on top of AS and ejaculate on her.

The marriage of the applicant and AS and the birth of RC

18. The applicant and AS married in Queensland in February 2015. RC was born in March 2015. After RC’s birth, AS told the applicant that she did not always want to role play and sometimes wanted to have “normal sex”. Because the applicant rejected AS sexually and emotionally when she refused to engage in role play, she continued to engage in it when having sex with the applicant.

19. The applicant became sexually aroused when AS was breastfeeding RC, which would lead to sexual intercourse. He began to want sexual intercourse more frequently than AS did and complained that she was not fulfilling her “duty as a wife”.

The 2015 uncharged act

20. In late 2015, the applicant began asking AS about her “darker fantasies” while she was performing fellatio on him. She recounted the plots of some of the erotic incest fiction which she had read. She also told him that when RC was older, she could teach her how to touch the applicant’s penis to please him. This caused the applicant to become more aroused. AS heard RC waking from her sleep. AS went to the living room, picked RC up and carried her into the bedroom. AS sat on the floor and breastfed RC, who was about 8 months old and resumed her stimulation of the applicant. The applicant told AS to lie on the bed. The applicant picked up RC and placed her on AS’s stomach. The applicant then had sexual intercourse with AS, afterwards ejaculating on top of AS and RC (the 2015 uncharged act).

21. In January 2016, AS expressed her discomfort to the applicant about the 2015 uncharged act and said that she did not want anything like that to happen again. She explained that it was triggering for her as she had been the victim of sexual assault as a child. The applicant responded by arguing that the 2015 uncharged act was different because he and AS loved RC.

22. The applicant’s sex drive was greater than AS’s during this period, which led to a discussion about the applicant finding a third person to have sex with. They made a profile on the Tinder dating application, to which BH responded.

23. In about 2016, AS saw on the applicant’s phone photographs depicting young girls aged around 12 years old, posing provocatively.

The polyamorous relationship between the applicant, AS and BH

24. In about July 2016, the applicant and AS met BH, who was then 29 years old, on Tinder. She spent the weekend with them in the course of which they engaged in sexual activities. About a month or two later, BH moved into their house.

25. BH’s evidence was that the applicant asked her to call him “Daddy” fairly early on. She asked him about “sir or master” but he “definitely wanted daddy”. BH said that the applicant used to try to make her “physically small”. He would also “tuck” her arms and legs “just to make [her] more compact”. He also asked her to play the role of RC. She “was worried that he was thinking of actually seriously doing something.” He used to say that “he was doing it for [BH’s] sake, because [BH] was the one that had the fetishes”.

24. BH’s evidence was that in the course of her sexual relationship with the applicant, he had asked her to pretend to be RC, to be a child and that she was teaching RC how to please him in a sexual way. If she did not call the applicant “Daddy” he would have tantrums, which lasted for days.

25. BH also gave evidence that sexual intercourse with the applicant would go on for hours until it hurt and “usually the only way to stop it was by calling him daddy and that was when he would come [ejaculate]”. The applicant would send her messages on her phone, including one of a children’s beauty contestant who “looked like she was covered in cum”. BH also found images on his computer of teenagers having sex with fathers or uncles. She recalled seeing images of “loli porn” (hentai pornography depicting children) on either the applicant’s or AS’s computer, which depicted “very small children”, but she could not remember the sexual acts which they were performing.

26. BH gave evidence that through her discussions with AS about AS’s sexual interests, BH learned that AS had read incest fiction online. However, BH’s evidence was that AS had never said anything that suggested that AS had a sexual interest in children or in sexual conduct between children.

Two uncharged acts after August 2016

29. On an occasion after August 2016, AS wanted to reassure the applicant, who was complaining that she was not giving him sufficient love and attention. They were both naked and being intimate, when RC came into the room. AS picked the child up and put her on her lap. The applicant started undressing RC, alleging that her nappy was wet. AS told him that it did not matter but the applicant continued to undress RC, removing all of RC’s clothes as well as her nappy. The applicant said, “this is our child, she’s ours, we love her, we made her”, while he masturbated. At that time, AS, who was holding RC, told her that she loved her and it was okay. The applicant pushed AS, which caused her to lie down. He placed RC on top of her, in a similar way to the 2015 uncharged act. The applicant said he loved them. He applicant put his penis on RC’s vagina and ejaculated.

30. Another occasion of uncharged conduct took place when the applicant used RC’s hand to grasp AS’s hand and then guide both hands to touch his penis. AS pulled her hand away “because [she] didn’t want to feel it”.

The move to New South Wales

31. In January 2017, the applicant was transferred from Brisbane to Army Barracks in Sydney. He, AS, RC and BH moved to a residence nearby (the Sydney residence).

32. In February 2017, AS was checking on RC who was asleep on their bed. The applicant followed her into the room and tried to push AS’s head towards RC’s vagina. AS understood that the applicant wanted her to lick RC’s vagina. She pushed the applicant away and left the room.

Count 2

33. In March or April 2017, the applicant and AS were in the Sydney residence having sexual intercourse. RC was sleeping next to AS. When RC woke up, AS tried to breastfeed her. The applicant continued having sex with AS throughout. The applicant moved RC so that the child’s vagina was above AS’s face. AS pushed RC back down into a better position for breastfeeding and told the applicant “No, it’s very uncomfortable.” AS pushed the applicant off her and turned herself around so that she was on her hands and knees with RC beneath her so she could still breastfeed. The applicant was having penile-vaginal sexual intercourse with AS from behind. AS stopped him as she was still uncomfortable. The applicant appeared to be hurt or rejected. AS laid on her back so that she could be in a better position to breastfeed.

34. AS initially gave evidence that she could not recall how RC was positioned and whether she or the applicant had placed RC on her stomach. She expressed some uncertainty about where the applicant’s penis was. However, she recalled that the applicant was masturbating before he “ejaculated on [them] again”. The relevant passages are as follows:

“Q. Then what happened?

A. Sorry. I was on my hands and knees, and I asked him to stop. Because I couldn’t do the motion, so I tried to lay back down on my back. Sorry, I can’t seem to recall the rest right now.

Q. You said that you found it difficult to do the motion and then you laid back down?

A. Yeah.

Q. In what position did you lay back down?

A. On my back and I believe [RC] was placed back - was she placed back on me? I’m trying to remember. Sorry, my brain’s going really fuzzy. I can’t think I can’t drag the memory up right now. It’s--

Q. Can you think of how this incident ended? What happened at the end of the incident? Does that help you fill in?

A. I can - I can’t seem to remember things, like - like, at the moment, because it’s very distressing and I can’t seem to get there …”

35. AS later gave evidence that the applicant had placed his penis on RC’s vagina and ejaculated on her.

36. Afterwards, the applicant apologised to AS and promised never to do anything to hurt RC. AS refrained from telling him that what he had done was wrong because he already seemed very sad and appeared to feel guilty. She said:

“Q. What’s your best memory of what he was sorry about?

A. What just transpired, that he - because he followed it up with, ‘I would never - I would never hurt her.’

Q. And what transpired?

A. That we were - when we were having sex with [RC] in the room. That I felt he felt guilty. I thought - and the fact that he came on us again.

Q. When you say he came--

A. And - both and--

Q. When you say ‘he came on us again,’ what does that refer to?

A. That he ejaculated on us during sexual intercourse. I just - I know it happened. I just can’t - I can’t seem to remember who placed [RC] on me and where his penis was, because when this was happening again, I was - I was very vacant in mind, because I didn’t - I think I was holding [RC]’s hand at one point. And I just didn’t want to be there. And I’m sorry, because it meant I was just mentally not really processing what was happening properly. So I’m sorry I’m still having trouble remembering all the details.

Q. You said he ejaculated on you and [RC]; is that right?

A. Yes.”

37. However, this incident caused AS to feel guilty and scared. She asked BH whether BH had experienced anything “weird” in her sexual relationship with the applicant. AS told BH of her concern about the applicant’s sexual fantasies about playing “Daddy” but did not tell her of the incidents which had involved RC as she was “ashamed”. BH confirmed to AS that her sexual relationship with the applicant involved similar role play in a sexual context but that she did not think that the applicant would harm RC.

38. After speaking with BH, AS told the applicant that she did not like what was happening (involving RC) and that she wanted it to stop. She imparted her concern that that recent conduct was having the effect of reinforcing his sexual interest in children. This conversation caused their relationship to break down.

39. During the first half of 2017, after the conduct that comprised count 2, AS observed that the applicant had an application called Kik on his phone. In his absence, she checked his phone and clicked on an unread message on the Kik application which depicted a video of a penis about to be inserted into the mouth of a child of about five years of age.

40. In about May 2017, AS and BH ended their relationship. In about June 2017, AS decided to end her relationship with the applicant but it was not until November 2017 that AS was able to find alternative accommodation. During November 2017, she ended her sexual relationship with the applicant and moved out of the Sydney residence to a unit in Liverpool, taking RC with her. The agreement between AS and the applicant at that time was that they would have joint custody of RC, who would spend equal time with each of them. AS gave evidence that she believed that RC would be all right because BH was still living in the Sydney residence with the applicant.

41. In January 2018, the relationship between BH and the applicant ended and BH moved out of the Sydney residence.

Evidence of AS’s complaint

Complaint in January 2018 to LO and ZZ

42. In about January 2018, AS met LO and ZZ (a couple). ZZ gave evidence that he met AS on Facebook. In March 2018, ZZ introduced LO to AS, which led to a polyamorous triad. LO’s evidence was that AS commented that she enjoyed having “normal sex”, as sex with the applicant had always involved role play which met his “deep, dark” fantasies and that he enjoyed having sex with RC in the room, particularly when AS was breastfeeding RC. LO’s response was that that was “really messed up”, which caused AS to start crying.

Complaint to ZZ

43. ZZ gave evidence that AS told him that the applicant verbally abused her and that he used discussions about RC as an excuse to question her.

Complaint in May 2018 to BH in the presence of LO and ZZ

44. ZZ gave evidence that he met BH through AS. When they met, BH was still in a relationship with the applicant. AS gave evidence that, on 5 May 2018, she spoke, in the presence of BH, to LO and ZZ about her fears for RC while RC was in the applicant’s custody.

45. BH’s evidence of this conversation was that they spoke about the applicant and about AS’s fears that he might be a paedophile. BH recalled that AS said that the applicant wanted to have sex with her while RC was in the bedroom and that she had also said something about “him trying to get her to have sex … with [RC]”. BH said that AS was “very, very teary [and] very, very emotional”. BH told her that she should report it. Later, AS sent her a text to say that she had reported it.

46. BH also gave evidence of AS’s previous conversation with her in which AS told her that the applicant had been wanting to have sex with her while RC was in the room and that he had had sex with her while she was breastfeeding RC. BH described AS as being “[a]ll over the place … really shaky, crying a bit … very, very anxious, very teary”.

47. LO gave evidence that she witnessed a conversation between AS and BH as follows:

“To the best of my recollection, the conversation was quite an emotional one where [BH] was expressing her concerns for, I suppose the safety of [RC] at the time in regards to [RC] spending time with [the applicant].  Yeah.  I believe [BH] was expressing that she would support [AS] and back her up in whatever decision [AS] made.”

48. LO’s evidence was that both AS and BH were “[q]uite emotional and upset” during the conversation. LO also gave evidence that AS told her that she was seeing a psychologist, who had told her that she was required to report what AS had told her. When AS told LO this, AS was, according to LO, “upset”. LO’s relationship with AS ended in July 2018.

Complaint on 7 May 2018 to a counsellor and to Child Services

49. On 7 May 2018, AS also told a female counsellor at Headspace about what had happened. As a result of the discussions with the counsellor, AS realised that the applicant’s conduct amounted to child abuse. AS explained that sexual abuse had been normalised in her background and that, although she did not like the applicant’s behaviour, she only realised that it was wrong when she spoke to a counsellor. The counsellor told AS that she was obliged to report it and suggested that AS also report it. As a consequence, AS reported the incidents to Child Services on the same day (AB 198). On 8 May 2018 NSW Police contacted AS who made a statement. On 9 May 2018 the applicant was arrested and charged with counts 1 and 2 on the indictment.

Tendency evidence

50. The prosecutor alleged that the applicant had the following tendencies: to have a sexual interest in, be sexually aroused by, and engage in sexual acts with or involving, his daughter RC; to have a sexual interest in incest between a father and a young daughter; to obtain sexual gratification from sexualised role play in which a woman plays the role of a young child; and to have a sexual interest in young female children depicted in images. Much of the evidence in support of these tendencies has been referred to above.

Challenge to BH’s credibility

51. The applicant’s trial counsel challenged BH on the evidence she had given in chief that she had called the applicant “Daddy” because he wanted her to and not because she became sexually aroused by it. He put to her the profile which she had posted on a fetish website (the Fetish Website), in which she set out her sexual fetishes, including that she described herself as a “brat”, a submissive person who wanted to be forced to do things in sex and indicated that she had an interest in “daddy/mummy” and “age play”.

52. BH’s profile had been created after she had ended her relationship with the applicant and AS. The following exchange occurred in her cross-examination:

“Q.  … you had a sexual interest … in playing the role of someone else ‑ of being a child with someone else playing the role of being a daddy during sex; is that correct?

A.  No, that's actually ‑ so, this is actually my hard boundary.  So, I don't know if you know much about what happens in kink and BDSM, but people have hard boundaries.  Age play and everything to do with daddies and mummies, that is my hard limit and when I have conversations with people, for example, on [the Fetish Website], that's something that I express to people straightaway.

Q.  Just looking at what you've got on your online profile.

A.  Yeah.

Q.  You decided to leave that interest up on your online profile, didn't you?

A.  Yes, and I guess that was a mistake.

Q.  You also had up on your online profile your interest in age play, correct?

A.  If that is what is printed there, then yes.

Q.  Just separately to what is printed there, you have an interest; that was one of your sexual interests‑‑

A.  No.

Q.  ‑‑was age play, wasn't it?

A.  No.”

53. However, later in her cross-examination, BH said:

“Q.  He asked you to pretend that you were [RC] once or twice; do you remember that that was your evidence?

A.  Yep.

Q.  You said that you were ‘pretty uncomfortable about it’, correct?

A.  Yep.

Q.  You went on to describe that it was ‑ if you didn't go along with things there would be fallout, correct?

A.  Yep.

Q.  You said earlier when you were talking about your sexual fantasies that you had clear boundaries, correct?

A.  I do now, I didn't back then.

…

Q.  Wasn't that a boundary that you were not going to go beyond; pretending that you were [RC]?

A.  It felt like a boundary.  It was not a boundary that I had enforced well enough.

…

Q.  Whatever the fallout was going to be, didn't you think to yourself, I am not going to do this, I am not going to pretend this fantasy; was that something you thought about?

A.  Yeah, it was something I thought about.  I thought about it a lot back then, yeah.

Q.  Did you actually do anything about it?

A.  No, I didn't.”

54. In re-examination, BH confirmed that when she was seeing the applicant, she did not belong to the BDSM (bondage-discipline-submission-masochism) community and did not understand about having conversations about drawing boundaries. At the conclusion of BH’s re-examination, the trial judge asked the following questions and received the following answers:

“Q.  BH, you gave evidence that on an occasion or occasions the accused asked you to role play being [RC]?

A.  Yeah.

Q.  During sexual activity?

A.  Yeah.

Q.  You told us that you did not tell [AS] about that?

A.  Yeah.

Q.  You … explained that you did not tell [AS] because you were scared and it was wrong?

A.  Yeah.

Q.  What did you exactly mean by saying that you were scared and it was wrong?

A.  I was scared of ‑ I was scared of a few things.  I ‑ I was scared that [AS] wouldn't believe me.  I was scared that [AS] would tell [the applicant] that I'd said it, and that he would be angry at me.  I was scared of the repercussions of [the applicant] finding out that I'd said it.  I was ‑ I was also scared because, you know, the reality is that I suspected that something was wrong, and I didn't tell anybody, and I was scared that I would get in trouble for that.  You know, like I ‑ yeah.”

Evidence of the investigation

The execution of the search warrant

55. On 10 May 2018, NSW Police executed a search warrant of the Sydney residence, which continued to be the applicant’s home. As referred to above, both AS and BH had moved out by then. A Western Digital external hard drive was found under the applicant’s computer desk. On examination, the hard drive was found to contain 1,334 images classified as child abuse material. This led to the applicant being charged with count 3 on the indictment.

56. Detective Sergeant Carland gave evidence that AS gave police her username and password which police used to access her Facebook account and download the archive of all the messages that were contained in the account under that username.

Questioning of AS

57. Detective Senior Constable Francis, the officer in charge of the matter, first met AS on 8 May 2018. On that day he took a statement from her. He took a further statement from her on 14 May 2018, which contained further detail about the events she had described in her first statement. On 23 January 2019, AS participated in a recorded interview. The interview was paused in order to place AS under arrest. AS was not ultimately charged with any offence.

58. In October 2020, the applicant, through his solicitor, provided messages between himself and AS to the prosecutor. The messages included discussions about incest. Detective Francis gave evidence that she had not seen these messages before, or any about incest, as they were not included in the earlier material to which AS had allowed police access. When police asked AS to make a further statement about these messages, AS said that, following legal advice, she would not do so unless it was by way of an induced statement.

The close of the Crown case

59. The Crown case closed on 18 October 2021, the ninth day of the trial.

The defence case

60. The applicant denied all three counts as well as the alleged tendency. His case at trial was that he did not have a sexual interest in children or incest and that there had been no sexual conduct with or involving RC and that there was no role-playing in which either AS or BH had presented to be a child in their sexual relationships with him. He said that both women called him “Daddy”, which was a pet name which each of them preferred to use for him. In effect, his case was that AS and BH’s accounts were entirely fabricated.

61. In respect of count 3, the applicant did not dispute that the hard drive was located in the Sydney residence. However, he said that he was not aware that any child abuse material was stored on it.

62. The defence case closed on 19 October 2021, the tenth day of the trial, after the applicant had given evidence. Defence counsel made a no case submission which resulted in a finding of not guilty in relation to count 1.

Directions given at trial and discussion about directions

Direction under s 165 of the Evidence Act 1995 (NSW)

63. The prosecutor submitted that a direction under s 165(1)(d) of the Evidence Act (a s 165 direction) was appropriate in relation to AS and identified incidents which were said to give rise to the need for the direction. The matter was debated with the trial judge at some length. In particular, the prosecutor identified AS’s conduct in breast-feeding RC while stimulating the applicant as potentially amounting to complicity in his ejaculation over RC’s body. The prosecutor also identified the incident in Queensland when the applicant undressed RC, including removing her nappy, as further potentially complicit conduct. The prosecutor submitted that it could be said that AS was directly complicit in the count 2 behaviour because she had participated in similar incidents previously.

64. When the trial judge pressed the prosecutor on the content of the warning for which the prosecutor contended, the prosecutor said:

“CROWN PROSECUTOR: It has little or no relevance to her being a credible witness because it's not a typical co-offender or co-accused case where she's trying to minimise her role and maximise the accused's role in events. That's not the flavour of her evidence. This is the confessional situation where she's come along and said I've been involved in these events; I feel guilty and responsible, I may go to gaol; I didn't look after my daughter, I now realise those events were wrong; I want my daughter to be safe and I want the system; that is, the legal system, to provide that safety and I'm willing to accept whatever happens to my liberty. In those circumstances, her complicity is not an [indication] of unreliability. If your Honour did warn yourself, your Honour would have no trouble in listening to that warning and then moving on and assessing her credibility in the context in which I've just described.

The accusation in the record of interview that this was some sort of fabrication motivated by custody of the child; it just doesn't make sense, she believed that she was going to be locked up, she wasn't going to gain custody of the child whilst in prison. I'll come back to that. But it's that confessional nature of her evidence which, the Crown says, gives it ..(not transcribable).. of authenticity and honesty. It was not a self-serving account. It was, in fact, the opposite; it's effectively a self-incriminating account.”

65. At the conclusion of the Crown address, the trial judge asked defence counsel whether there were any s 165 warnings which he ought give himself, to which defence counsel responded in the negative. He also said:

“Because neither [BH] nor [AS] was criminally concerned in the commission of an offence, and in any case, I would not be able to make a submission as to what direction your Honour would give. I'm not asking the Court to give itself a s 165 direction.”

66. The trial judge’s omission to give a s 165 direction is the subject of ground 1 of appeal.

The verdict judgment

67. The trial judge summarised the evidence and the parties’ submissions and identified the elements of the offences charged as counts 2 and 3. As no challenge has been made to these aspects, it is not necessary to address them, except to refer to what his Honour said of the applicant’s evidence as follows:

“The accused not only relied upon what he said in his police interview but he also gave evidence and subjected himself to cross-examination. He was not obliged to do that. By taking the course that he did he did not alter the fundamental principle concerning where the onus of proof lies. There is no onus of proof on the accused. It is not for him to satisfy me of his innocence but it is for the Crown to prove his guilt and to do so beyond reasonable doubt.

The accused said the following in his evidence. He said that he had never had sex with his wife whilst she was breastfeeding her daughter; that he had never ejaculated over his daughter; that he never asked or had his daughter touch him in any sexual way; that he never asked his wife to read stories involving incest to him. He said he had never downloaded or saved images or videos of child pornography including cartoons to his computer or mobile phone. He said that he did not need the added stimulation of being called Daddy by either his wife or [BH] in order to ejaculate.

He said that his wife sometimes called him Daddy when they had sex, that she was the one who suggested it and he allowed her to do it to please her.

There was adduced into evidence messages [AS] had sent the accused during their relationship containing content about incest. Reference will made to these later. He said it was his wife’s idea to send him these messages.”

68. The trial judge also gave himself what was accepted to be a direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, as follows:

“The evidence of the accused including his denial of the charges against him means, in the first instance, if I believe the accused’s evidence I will obviously acquit him of these charges. Secondly, if I find difficulty in accepting his evidence but think that it might be true then I will acquit him of the charges.

Thirdly, if I do not believe him then I will put his testimony to one side. The question still remains[:] has the Crown upon the basis of the evidence that I do accept prove the guilt of the accused beyond reasonable doubt of the charges against him[?]”

69. In substance, the trial judge accepted the evidence of the prosecution witnesses and did not accept the applicant’s evidence. The trial judge’s reasons included the following:

“I find [AS] had an interest in stories about incest and a sexual interest in calling the accused Daddy. They shared these fantasies. Not only do I accept [AS]’s evidence about this but it is also evident, for example, that she believed he would enjoy the story message she sent him on 16 November 2014 …

[AS] acknowledged in her evidence and I accept that she volunteered to him one of her deepest, darkest secrets was teaching their daughter how to touch him and please him. The significance of this when regard is had to count 2 is that the topic of involving their daughter in sexual activities was spoken about.

I do not find that [AS] sent messages to the accused stating that he was a good father inconsistent with the allegation she makes against the accused and whilst I take into account this matter I do not consider [AS] letting her daughter spend time with him and agreeing to 50-50 custody when their relationship ended as significant as Mr Fernandez [defence counsel] would have it when regard is had to a number of matters. They included the fact that she saw it important that their child spend time with him. She felt complicit in what had occurred and felt guilty, evidenced by the fact that she thought she would go to gaol or be in trouble when the police found out.

As I mentioned earlier, [BH] made a good impression upon me and I accept she did best to accurately tell the truth. I accept her evidence that it was the accused’s idea that she called him Daddy and that he derived sexual excitement from it pretending to be a father or person in authority. I accept her account which accords with the evidence of [AS] that the accused found it difficult to ejaculate unless he was called Daddy.

I reject the accused’s evidence that [AS] and [BH] used the name Daddy as a pet name for him similar to calling someone ‘love’ or ‘sweetie’.

I reject the accused’s claim that he did not hold any real sexual fantasies beyond, as he said in evidence, having an interest in hippie and gothic women and, as the Crown summarised the accused’s account that he gave, ‘he was a passive servant in his sexual relationship’ with both women.

I accept [BH]’s evidence which corresponds with [AS] that the accused was preoccupied and pushy about ‘deepest, darkest fantasies’ including whether she had ever wanted to sleep with her father and whether she wanted to role play a child. I also accept her evidence that he used to hold her in such a way as to make her physically small like a child when having sex and once or twice asked her to pretend to be his daughter.”

[Emphasis added.]

70. The trial judge said:

“I find beyond reasonable doubt that the events described by both [AS] and [BH] occurred. Having made this finding I conclude the accused had the tendency asserted by the Crown. I use the fact of the tendency asserted in considering whether the accused committed count 2. In doing so I keep in mind it is just one part of the evidence relied upon by the Crown.

I find the accused intentionally possessed the data in the Western Digital external computer for the following reasons:

(a)    The Western Digital external computer was in his house which was occupied solely for him. It was found in a part of the house which was clearly used as a workstation for him off the kitchen.

(b)    The USB connection history of the Assus desktop tower - [AS]’s computer - showed that the computer was connected via USB to the Western Digital hard drive on 13 December 2017 at 5.34am on a date after she moved out. The suggestion that [AS] came back into the house and moved the computers around I find implausible.

(c)    Detective Carland gave evidence the USB connection history of the Assus Gaming laptop showed that the computer was connected via USB to the Western Digital external hard drive at 10.54am on 20 January 2018. This was at a time after [AS] and [BH] had moved out of the house.

(d)    The evidence from Detective Carland was that the Western Digital external hard drive was connected to the accused’s computer on 28 January 2018, that is four and a half months prior to his arrest.

(e)    On 9 February 2018 - being after [AS] and [BH] had moved out of the house - there appeared to be visits on the Assus Gaming PC (the accused’s computer) to proxy websites of Pirate Bay - Pirate Bay being a peer to peer website where users can download torrent files allowing them to download various media-shared illegally online. Additionally, the subfolder Fairy Tail torrent was last modified in May 2014, being the same date some child pornography files were last modified.

(f)    I find that both the accused and [AS] had an interest in incest material.

(g)    Whilst the child abuse material consisted of cartoon imagery involving children and adult authority figures having sex, the material found was not only the type of material that [AS] had viewed, it was also the type of material they had viewed together. Although the dates of creation and last access of the file containing child abuse material can be correlated with messages containing references to incest sent by [AS] to the accused, this does not exclude [AS] and the accused both being aware of the existence of the material.

(h)    The child abuse cartoons involved doggy-style sex and ejaculating on children (Little Flower, United, Bubble Bubble Pop, Me You and the Old Man After School) being the allegation in count 2.

(i)    The accused is an IT expert who described himself as an organised and methodical person. The hard drive is in an organised state, particularly the screen shown in exhibit A.

(j)    Whilst exhibit A (screenshot of the ‘Art and Photos’ subfolder) included ‘[AS]’s backup’ it also included ‘[B’s] Backup’. Both witnesses denied any knowledge of creating such folders. [BH] gave evidence that she did not believe she ever established a folder on a computer with the title ‘[B] Backup’. She also denied establishing or opening any of the folders in exhibit A.

(k)    There was some child abuse pornography on the Western Digital external hard drive in 2014 when the accused would have had access to it in 2016 to backup files on ‘[the applicant’s] backup’.”

71. Findings (f), (g) and (k) are the subject of ground 4, which is considered below.

72. The trial judge set out the tendency evidence and continued:

“I give myself the same directions as I did earlier regarding tendency evidence. I find beyond reasonable doubt that the events described by both [AS] and [BH] occurred. Having made this finding I conclude the accused had the tendency asserted by the Crown. I use the fact of the tendency asserted in considering whether the accused committed count 3. In doing so I keep in mind it is just one part of the evidence relied on by the Crown.

It follows that I reject the accused’s evidence that he was not aware of the child abuse material on the Western Digital hard drive. It also follows that I reject his evidence when he denied committing count 2. I find the Crown has proved both offences beyond reasonable doubt.

Accordingly, I find the accused guilty of both counts 2 and 3 on the indictment.”

The grounds of appeal

Ground 1: alleged miscarriage of justice by omission of trial judge to give himself a warning under s 165 of the Evidence Act

73. Ms Lewer, who appeared with Ms Akthar on behalf of the applicant, submitted that AS’s evidence was such as to require a warning under s 165 of the Evidence Act (a s 165 warning). She submitted that the trial judge should have decided that, if, contrary to the defence case, he was minded to accept AS’s evidence, he should first warn himself in accordance with s 165(1)(d) that AS’s evidence was of a kind that may have been unreliable.

74. Section 165 of the Evidence Act relevantly provides:

“165   Unreliable evidence

(1)     This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence—

…

(d)  evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

…

(2)     If there is a jury and a party so requests, the judge is to—

(a)  warn the jury that the evidence may be unreliable, and

(b)  inform the jury of matters that may cause it to be unreliable, and

(c)  warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3)     The judge need not comply with subsection (2) if there are good reasons for not doing so.”

75. Section 133(3) of the Criminal Procedure Act1986 (NSW) requires a judge trying criminal proceedings without a jury to take into account a warning which the law would require be given to a jury in such a trial. Thus, even though a warning such as the one pursuant to s 165 of the Evidence Act is given to juries because they are taken to lack the expertise of judges as to the potential unreliability of those who are criminally concerned in the charged conduct, the warning is still required to be given when the accused is tried by judge alone. Such a warning would also fall within s 133(2) of the Criminal Procedure Act, which would require a trial judge, sitting without a jury, to identify the warnings given.

76. It is evident from the wording of s 165(2) that the obligation to give a warning arises only when a party requests that the warning be given: Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [232] (Heydon J), which has been followed by this Court, for example, in Quarta v R [2023] NSWCCA 173 at [74] (Mitchelmore JA, Walton and N Adams JJ agreeing).

77. As is evident from the narrative of the trial set out above, defence counsel expressly eschewed the giving of such a warning. Although the prosecutor raised it (apparently on the basis that he expected that defence counsel would seek such a warning), he ultimately, as demonstrated by the extract set out above, acknowledged, and submitted that such a warning was not required because AS’s account was self-incriminating. Accordingly, even if the prosecutor’s foreshadowing of the possibility of a warning could be construed as a request for a warning, any such request was thereby withdrawn. In these circumstances, no s 165 warning was required.

78. In any event, it is plain from AS’s evidence about count 1 that she was not participating in criminal activity jointly with the applicant. Rather, she was trying to breastfeed RC while simultaneously continuing the sexual intercourse with the applicant, because he seemed hurt when she wanted to stop and she did not want him to feel rejected by her. Nor was AS complicit in count 3. Her evidence was that she looked at hentai pornography with the applicant, which involved petite women, who dressed up as younger females or children but who were not themselves children. AS’s evidence that she had seen the hard drive at the applicant’s house and used it at times when she was saving files on it for the applicant did not amount to evidence that AS was reasonably supposed to be involved in possessing child abuse material.

79. Further, I do not consider that there was a real possibility that the reliability of AS’s evidence was affected by the matter which (putatively) brought her within the category requiring a warning (being criminally involved). Her report of the applicant’s conduct served to bring any legal or moral wrongdoing for which she was responsible to the attention of the authorities. While her purpose in reporting the matters was to ensure RC’s safety, the reporting carried with it the real risk that she would lose the care of RC, either because of her failure to bring these matters to the attention of the authorities earlier (when the uncharged acts occurred in Queensland) or because she might otherwise be found to be unfit to care for RC. Viewed in this way, AS’s reporting of what had occurred was a selfless act done for the benefit of RC, without any particular regard for her own interests.

80. Because the ground has been considered, as set out above, leave under r 4.15 of the Rules ought be granted as well as leave to appeal. For the reasons given above, ground 1 has not been made out.

Ground 2: alleged miscarriage of justice because the trial judge did not give himself a Murray direction

81. Ms Lewer submitted that as AS was the only witness to the count 2 conduct (as RC was too young to give evidence about it), acceptance of her evidence was essential to the conviction of the applicant on this count. She submitted that, in those circumstances, unless the trial judge was satisfied that AS was both an honest and reliable witness, the accused could not be convicted and that a direction in accordance with R v Murray (1987) 11 NSWLR 12 (a Murray direction) was appropriate.

82. She submitted that the trial judge made no positive credit finding concerning AS’s evidence (although one was made in respect of BH who was found to be “credible”) which ought be taken as an indication that the trial judge did not find AS to be reliable and that this had occasioned a miscarriage of justice. For the following reasons, this submission must be rejected.

83. It is significant that the applicant relies on the absence of the direction as causing a miscarriage of justice (the third limb in s 6(1) of the Criminal Appeal Act 1912 (NSW)) rather than submitting that it amounted to an error of law in contravention of s 133(3) of the Criminal Procedure Act.

84. A Murray direction derives from the following statement in R v Murray, where Lee J said, at 19E:

“In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.”

85. The statutory qualification to the Murray direction in s 294AA of the Criminal Procedure Act does not apply in the present case as AS was not the complainant.

86. While AS was the only witness to count 2, there was a wealth of other evidence in the trial which supported her account, including BH’s evidence. The evidence included the applicant’s request that both AS and BH call him “Daddy” (and that he could usually only be brought to ejaculation if addressed in that way); his tendency to have a sexual interest in his child (by suggesting that AS and BH pretend to be RC when he was engaging in sexual activity with each of them); his tendency to be sexually aroused by the thought of sexual activity with RC; and his desire to engage in sexual acts with, or involving, RC.

87. In addition, evidence of AS’s complaints to BH included that the applicant wanted to have sexual intercourse with her when she was breastfeeding RC.

88. AS’s evidence of count 3 was supported by evidence obtained in the execution of the search warrant at the Sydney residence and the discovery of the Western Digital hard drive under the applicant’s desk.

89. In Wade v R [2018] NSWCCA 85 (Wade), the trial judge, in a judge-alone trial, had given extensive reasons for accepting the complainant’s evidence over the appellant’s. This Court considered whether it was necessary for the trial judge to clearly state that he rejected the appellant’s denial that the offences occurred.

90. R A Hulme J said:

“[114]   At the beginning of his summary of the evidence of the appellant his Honour said:

‘The accused … gave evidence. He was not obliged to do that. By taking that course he did not alter the fundamental principle concerning where the onus of proof lies. There is no onus of proof on the accused. It is not for the accused to satisfy me of his innocence but for the Crown to prove his guilt beyond reasonable doubt of the charge that I am considering. This means the following. In the first instance, if I believe that the accused's evidence I will obviously acquit him of the charges. Secondly, if I find difficult [sic] in accepting his evidence but think that it might be true then I will acquit him of the charges. Thirdly, if I do not believe him then I will put his testimony to one side. The question still remains: Has the Crown, upon the bas is of the evidence that I do accept, proved the guilt of the accused beyond reasonable doubt of the charge in respect of the complainant I am considering?’

…

[120]     In these circumstances there was little more to be said in terms of reasons why the judge did not consider that the appellant’s evidence raised a reasonable doubt about whether the offences were committed. This stands in contrast to a case in which prosecution witnesses give evidence of an incident and an accused gives a different version. In such a case it would be necessary to explain why the accused’s version was not accepted. But in this case, the appellant did not give an alternative version; he simply denied that the offences occurred. His evidence as to the primary issue for the judge to determine said no more than his ‘not guilty’ responses when arraigned at the commencement of the trial.

…

[125]     The only thing left unsaid by the judge was that he rejected the evidence the appellant gave that the allegations by the complainants were untrue. However, that he was of that view is obvious enough (and he said so in his judgment on sentence).”

91. Hamill J, agreeing, said at [247]:

“It would have been preferable for the trial Judge to have stated clearly that he rejected the appellant’s denials that he committed the offences. However, as R A Hulme J explains, in the circumstances of this case, the only explanation for the verdicts and acceptance of the complainants’ evidence (beyond reasonable doubt) was that the Judge rejected the appellant’s evidence on the central issue in respect of each charge. This is clear from the legal direction his Honour gave himself and which is set out by R A Hulme J at [114]. From that legal direction, it is plain that the trial Judge did not ‘believe the accused’s evidence’ or conclude that his evidence “might be true”. In either of those circumstances, the principles of law stated would have resulted in an acquittal on each charge.”

92. No Murray direction was required in the present case. Further, the trial judge’s reasons were sufficient to explain why his Honour accepted the evidence of AS and BH and rejected the applicant’s evidence. In the present case, unlike in Wade, the trial judge not only expressly accepted AS and BH’s evidence but his Honour also expressly rejected the applicant’s evidence.

93. I reject Ms Lewer’s submission that the trial judge made no finding of credit with respect to AS. The trial judge’s reasons are to be read fairly as a whole: Hopgood v R [2019] NSWCCA 246 at [47] (Johnson J, Price and Lonergan JJ agreeing). His Honour’s finding that he accepted the evidence of AS plainly amounted to a finding that he accepted her evidence as reliable and credible. Indeed, it could not reasonably be read in any other way. I discern no want of care in the trial judge’s careful reasons for accepting the evidence of AS and BH (and other prosecution witnesses) and rejection of the applicant’s evidence. The present is not a case where an accused accepted that aspects of the conduct had occurred but sought to put a different gloss on it. Rather, the applicant effectively denied each of the principal tenets of the prosecution case.

94. As this ground has been addressed, I propose that leave under r 4.15 of the Rules and leave to appeal be granted. However, for the reasons given, ground 2 has not been made out.

Ground 3: alleged error in failing to apply the Liberato direction or, alternatively, alleged failure to give reasons for its application

95. As noted, above, Ms Lewer accepted that the trial judge had given himself a Liberato direction but submitted that his Honour had failed to apply it correctly. She submitted that it was insufficient for the trial judge simply to state that he “rejected” the evidence of the applicant since his Honour was required to elucidate his reasons for the rejection. Further, she submitted that the trial judge’s reasons (extracted above), to the effect that it “followed” from his Honour’s acceptance of the evidence of AS and BH that he rejected the applicant’s evidence, revealed error. She argued that the trial judge’s reasons did not “expose any meaningful engagement with the [applicant’s] evidence” and demonstrated that his Honour’s rejection of the applicant’s evidence was regarded a consequence of his acceptance of the prosecution evidence.

96. As referred to above, the evidence of the prosecution witnesses was diametrically opposed to that of the applicant. The trial judge was obliged to consider all of the evidence as a whole before making findings. The trial judge must be taken to have found that the applicant’s evidence could not possibly be true and that, when taken together with the whole of the evidence, including the tendency evidence, counts 2 and 3 had been established beyond reasonable doubt. Acceptance of the evidence of AS and BH required rejection of the applicant’s account since they could not stand together. Like Wade, the present was a case where the applicant denied the Crown case, effectively in its entirety. In these circumstances, the trial judge’s reasons were, for the reasons given in Wade, sufficient.

97. As this ground has been addressed, I propose that leave under r 4.15 of the Rules and leave to appeal be granted. However, for the reasons given, ground 3 has not been made out.

Ground 4: alleged error in reversing onus of proof

98. Ms Lewer accepted that the verdict judgment contains several references to the onus of proof being on the prosecution to prove the elements of each offence beyond reasonable doubt. However, she submitted that, in setting out his reasons for finding the applicant guilty of counts 2 and 3 (extracted above), the trial judge erred in failing to refer to AS’s evidence that she “may have” used the drive; failed to give reasons for accepting AS’s evidence as to counts 2 and 3; and did not refer to the applicant’s evidence.

99. Further, Ms Lewer submitted that finding (f) (that both AS and the applicant had an interest in incest) and (g) (that both AS and the applicant viewed pornography featuring children and authority figures having sex) implicated both AS and the applicant in the possession of the material. She noted that the trial judge accepted AS’s evidence about sharing an interest with the applicant in incest and sex between children and adult authority figures but made no reference to the applicant’s evidence denying these interests. Ms Lewer also pointed to the trial judge’s finding at (k) which “did not exclude the applicant” as having possessed the material.

100. Ms Lewer argued that the reasoning in (f), (g), and (k) demonstrated that the trial judge approached the question of whether the evidence proved the applicant was guilty by considering whether it disproved the applicant’s guilt, as opposed to excluding the reasonable possibility that AS alone possessed the material. She argued that this approach was erroneous, because it commenced with a presumption that the accused was guilty, and then considered whether evidence rebutted that presumption by excluding this possibility.

101. As referred to above, the offence in count 3 was an offence contrary to s 91H of the Crimes Act.

102. The prosecution was required to prove that the applicant intended to possess the hard drive which contained the child abuse material: s 91H of the Crimes Act. Thus, whether AS had been involved in the downloading or viewing of the material at any time during her relationship with the applicant was peripheral to the charge against the applicant. As referred to above, the prosecution ran the case on the basis, most favourable to the applicant, that it was required to negative the “defence” in s 91HA(1) that the applicant did not know, and could not reasonably be expected to know, that the hard drive contained child abuse material.

103. I reject the submission that findings (f), (g) and (k) reveal any error by the trial judge. His Honour, by making these findings, was addressing the applicant’s submission in respect of count 3 that AS’s sexual interest in incest, cartoon pornography and the timing of various messages to the applicant raised a reasonable doubt. The trial judge’s findings (f) and (g) amount to a rejection of the applicant’s submission that it was AS who had the interest in incest and that the cartoon imagery involving children and authority figures was the kind of pornography preferred by AS.

104. Ms Lewer’s criticism of the trial judge’s use of the word “exclude” in finding (g) is misplaced. The trial judge was, in (g), addressing the applicant’s submission that the timing suggested AS’s involvement. The trial judge rejected this submission on the basis that AS’s involvement (or otherwise) did not exclude “[AS] and the accused both being aware of the existence of the material” (emphasis added). As long as the applicant was aware of the existence of the material on his hard drive, this was sufficient to prove that he knew that the material was child abuse material. Whether or not AS also knew that the material was on the applicant’s hard drive (which she denied) did not exculpate the applicant. The prosecution was not required to prove that the applicant was the only person to access, view or download the material, although it did prove that AS did not access, view or download the material (since the trial judge accepted AS’s evidence to that effect).

105. The significance of the finding in (k) was that the applicant’s access to the hard drive at a time after the child abuse material was saved on the drive was relevant to his opportunity to be aware of the contents of the hard drive. This answered the applicant’s submissions that AS was involved. Further, the trial judge found that both the applicant and AS had an interest in incest material and that the child abuse material was “the type of material” viewed by the applicant and AS together. However, AS’s evidence, which the trial judge accepted, was that the hentai pornography which she looked at with the applicant depicted women who were drawn to look young and innocent, having sex with a teacher or father, rather than children having sex with a teacher or father. In this context the finding in (g) referring to “the type of material” ought be understood as being a reference to hentai pornography generally, rather than the subset of that category which meets the description of child abuse material. While AS was interested in incest (sexual intercourse between family members), she was not interested in sex between children and adults.

106. The trial judge also addressed the significance of the naming of the back-up folders in circumstances where neither AS nor BH was permitted to have passwords on their computers and both denied knowledge of creating those folders themselves.

107. When the trial judge’s reasons are read fairly as a whole, there was no reversal of the onus of proof. Further, although the applicant seeks to challenge his conviction on count 2 by reference to the matters raised above in connection with count 3, I do not understand a separate submission to have been made which could rationally affect his conviction on count 2.

108. For the reasons given above, ground 4 has not been made out.

Ground 5: alleged unreasonable verdicts

109. In Crickitt v R [2018] NSWCCA 240, this Court (Bathurst CJ, R A Hulme and Davies JJ) summarised the principles that apply to an unreasonable verdict ground at [12]:

“1)   This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality.

2)   It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence.

3)   If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside.

4)   A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the applicant’s guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion.

5)   A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable.

…”

[Footnotes omitted.]

110. Accordingly, this Court’s task is determine whether it was “open” to the tribunal of fact (in this case, the trial judge) to find the applicant guilty or whether the tribunal of fact “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 (Dansie). In other words, the question is whether it was “not reasonably open” to the tribunal of fact to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

111. The weight to be given to a witness’ evidence by reference to the manner in which it was given by the witness is a matter for the tribunal of fact. In determining an unreasonable verdict ground, this Court must proceed upon the assumption that the evidence relied on in reasoning to verdict was assessed by the tribunal of fact to be credible and reliable: Pell at [38]. Thus, this Court must examine the record to see whether, notwithstanding that assessment, the tribunal of fact, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt either by reason of inconsistencies, discrepancies or other inadequacy; or in the light of other evidence: Pell at [39]. There are limits to the extent to which this Court is entitled to disbelieve a witness whose evidence the tribunal of fact must have accepted, at least in so far as it established the elements of the offence/s which resulted in the conviction or convictions. This will occur only in an unusual case: Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing).

112. Where, as here, an unreasonable verdict ground is raised in a judge-alone trial, the principles are, as confirmed in Dansie:

“[7]   …the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.

…

[17]   Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings.”

113. Ms Lewer submitted that the conviction of the applicant on either count 2 or 3 required rejection of the applicant’s evidence and acceptance of AS’s evidence as to the elements beyond reasonable doubt. She submitted that AS had “a clear motive to exculpate herself in the face of overwhelming evidence that she engaged in fantasies involving incestual child abuse” and that, since she had told a psychologist who was required to report the matter to the authorities, AS had a motive to report the alleged offending in order to put herself in the most favourable light.

114. Ms Lewer relied on the following matters which she contended made the verdicts unreasonable:

The nature and quality of AS’s evidence

1. the trial judge’s finding that AS had an interest in stories about incest, notwithstanding her denial of such an interest and her allegation that she had researched such stories because of the applicant’s interest;

2. AS gave evidence that she introduced hentai (Japanese cartoon) pornography into the relationship but that the applicant was not interested in it; yet the only child abuse material found on the applicant’s hard drive was hentai or “loli” pornography;

3. AS did not disclose her sexual preferences during the police investigation which, when revealed to police by the applicant’s provision of text messages between him and AS, caused her to refuse to answer any further questions except by way of an induced statement;

4. AS’s memory of the conduct which formed the basis of count 2 was compromised (as set out in the narrative above, where AS could not remember particular details, allegedly because of her distress);

5. AS could reasonably be supposed to be criminally concerned, which gave rise to a risk that she might seek to minimise her role; and

6. when confronted in cross-examination with the inconsistency between her telling police that she could not remember who had downloaded pornography and her evidence that she had downloaded hentai pornography, she asserted that she had been “having a panic attack” (in the police interview) and “literally thought [she] was going to die”.

Evidence about the location of AS’s computer

1. AS gave evidence that she had taken her computer with her when she left the applicant but that the applicant had later collected it from her, at her request, to fix it and that AS’s computer was still in the applicant’s home, at least until 27 April 2018, 11 days before she first spoke to police. This evidence was said to be inconsistent with the trial judge’s finding that the USB connection history of AS’s computer and the connection history of the Western Digital hard drive pointed to activity that occurred after AS and BH had left the Sydney residence (which was relevant to the finding of guilt for count 3).

The applicant’s evidence

1. Ms Lewer relied on what she contended to be the absence of findings about the applicant’s “credibility or demeanour” to explain why the trial judge rejected his evidence.

115. In summary, Ms Lewer submitted, in respect of count 2, that the nature and quality of AS’s evidence was insufficient to support a conviction on that count. She contended that not only did AS have a reason to minimise her own conduct but that she was evasive in the investigation and in giving evidence. She submitted that the sexual conduct of which she gave evidence was similar to the stories of incest in which she had a sexual interest as well as being consistent with AS’s suggestion to the applicant that RC ought be involved in their sexual activity (that AS could teach RC how to touch the applicant’s penis).

116. In summary, Ms Lewer submitted, in respect of count 3, that the tribunal of fact ought to have had a reasonable doubt because:

1. the child abuse material was hentai pornography in which AS had an interest but the applicant did not;

2. the “last modified” date of the material corresponded with the date of AS’s messages to the applicant while he was at work, which was years before the material was discovered in the Sydney residence; and

3. the evidence did not exclude the possibility that AS had downloaded and possessed the material without the applicant knowing about it.

Consideration of the conviction in respect of count 2

117. The starting point, as confirmed in Pell at [38]-[39], is that this Court must proceed on the basis that the trial judge accepted AS and BH's evidence as credible and reliable.

AS’s difficulty in remembering details of the events the subject of count 2

118. It was open to the tribunal of fact to regard AS’s difficulty remembering peripheral details (such as whether she or the applicant placed RC on her stomach or exactly where the applicant’s penis was) as hardly surprising. First, her evidence related to events which were alleged to have occurred in 2014-2017. Secondly, the evidence related to events which were deeply distressing to her, as was evident from the evidence concerning her demeanour when discussing them with BH in the presence of LO and ZZ in 2018. It was, however, significant that she had no doubt, or difficulty remembering, that the applicant had ejaculated on RC. Inability to provide tangential details is not uncommon when witnesses are asked to recall traumatic events: JL v R [2023] NSWCCA 99 at [96] (Adamson JA, Ierace and Sweeney JJ agreeing), citing Reed v R [2006] NSWCCA 314 at [64] Spigelman CJ (McClellan CJ at CL and Sully J agreeing).

AS’s interest in incest

119. Ms Lewer’s submission concerning AS’s sexual preference erroneously elides the distinction between incest (sex between family members) and child sexual abuse (sex involving children). AS’s sexual interest in incest centred on a fantasy of having an authority figure looking after her (as a vulnerable, submissive person). There was no evidence (apart from the applicant’s, which was rejected) that she had any sexual interest in children or in sex between children and adults. Her preparedness to pretend to be a child (including pretending to be RC) at the applicant’s request does not establish that it was her sexual preference. Rather, it is consistent with AS’s understanding that she understood it to be his sexual interest, which she was prepared to accommodate in the context of a fantasy or role play. Indeed, her suggestion that she could teach RC to please him sexually was qualified by the rider that this might occur when RC “was older” was made in the context of sexual role play. It was open to the trial judge to infer that this statement did not indicate that AS had any actual intention of involving RC in sexual activities with respect to the applicant, particularly in circumstances where AS pulled her hand away when the applicant guided AS’s hand and RC’s hand towards his penis.

AS’s alleged withholding of text messages from police

120. As referred to above, the evidence of Detective Sergeant Carland was that AS gave police her username and password to her Facebook account, which enabled them to access and download all the messages archived under that username. None of those messages concerned the topic of incest. The messages which were subsequently disclosed by the applicant, which did concern incest, were not inconsistent with AS’s evidence about sharing incest stories with the applicant. In these circumstances, it was open to the tribunal of fact not to regard this circumstance as adversely affecting AS’s credit, in circumstances where she was prepared to give her username and password to the police at the outset. It did not follow from the fact that the applicant had messages between himself and AS which had not been archived to the Facebook account to which she gave the police access that she had deliberately withheld such messages.

AS’s alleged criminal involvement in the events the subject of the charges

121. I do not accept Ms Lewer’s submission that AS was only motivated to report the applicant’s conduct because the psychologist (to whom AS disclosed the conduct) was obliged to report it. For the reasons given above, AS had much to lose (including damage to her reputation as a mother and the right to care for RC) from the disclosure and from the reporting. As the Crown correctly submitted before the trial judge, her account was self-incriminating and did not bear any indication that AS was minimising her own role. Her evidence (in support of count 2) that she was stimulating the applicant to ejaculate on the occasion of count 2 in circumstances where the applicant had earlier (when AS was pregnant with RC) told her that he wanted to ejaculate over RC and had, in the course of uncharged conduct, actually ejaculated over RC indicated her involvement in the events which, although not necessarily criminal was, at the least, depraved and immoral. For these reasons, the possibility that AS’s evidence about count 2 was other than reliable might be regarded as fanciful.

122. For the reasons given above, it was open to the tribunal of fact to infer that AS’s disclosure of the applicant’s conduct was motivated by her concern for RC which overrode any concern she might have for herself or for the moral or legal judgment which might be made against her for allowing such conduct to occur (to the extent to which she did).

Alleged failure to make findings regarding the applicant’s demeanour or credibility

123. This matter has been addressed above. The trial judge was entitled to reject the applicant’s evidence because of the considerable weight of credible evidence against his denials. It was open to the trial judge as tribunal of fact to reject the account of the applicant, which was directly contradicted by the evidence of AS and BH.

124. Further, the trial judge had the distinct advantage of seeing and hearing the witnesses, particularly AS, BH and the applicant, give evidence: Dansie at [14]-[17]. The scope of the advantage that the trial judge enjoyed was relatively wide: Wentworth v R [2023] NSWCCA 143 at [48], [52] per Beech-Jones CJ at CL (McNaughton J and R A Hulme AJ agreeing).

Conclusion with respect to the verdict of guilty on count 2

125. The specific matters raised on behalf of the applicant as reasons why the verdict of guilty on count 2 was unreasonable have been addressed above. Having reviewed all of the evidence, I consider that it was open to the trial judge to be satisfied of the applicant’s guilt in respect of count 2. I confirm that I do not have any doubt of the applicant’s guilt of count 2.

Consideration of the conviction in respect of count 3

126. On the basis of the authorities cited above, this Court is entitled to approach its task in assessing whether the verdict on count 3 was unreasonable on the basis that the tribunal of fact accepted the direct evidence of AS and BH denying knowledge of the child abuse material which was the subject of count 3. Further, there was substantial circumstantial evidence (referred to above) which implicated the applicant, including that the hard drive was located in the Sydney residence of which he was the sole occupant at the time of the execution of the search warrant. The evidence referred to by the applicant is not such as to raise a reasonable doubt.

127. Having reviewed all of the evidence, I consider that it was open to the trial judge to be satisfied of the applicant’s guilt in respect of count 3. I confirm that I do not have any doubt of the applicant’s guilt of count 3.

Ground 6: alleged miscarriage of justice arising from fresh evidence

128. The applicant relied on evidence (which was accepted to be fresh on the basis that it was not available at trial) as follows.

129. On 15 December 2022, the applicant’s solicitor accessed material from BH’s account on the Fetish Website which included the following:

1. BH’s profile indicating she is a member of the group ‘Littles kik Group DDLG [Daddy Dom/Little Girl]’;

2. a photograph of BH, posted on 15 January 2023, with the words “owned by Daddy” and “am his fav[e]” written on her upper thighs;

3. a photograph, apparently of BH, posted on 28 February 2022, wrapped in plastic film, with a dummy or pacifier in her mouth; and

4. a photograph of BH, posted on 2 November 2022, wrapped in plastic wrap, with the caption “that time my mistress made me crawl around the party on my ‘stumps’.”

(the fresh evidence)

130. The term ‘DDLG’ was said to be an acronym commonly used to refer to ‘Daddy Dom/Little Girl’, a sexual relationship or fetish involving roleplay of a dominant daddy figure and submissive young girl figure, which is a sub-genre of BDSM. Although the Crown objected to evidence downloaded from the internet explaining the acronym on the basis that it was inadmissible hearsay and opinion evidence from an unidentified and unspecified source, I understood the words which comprise the acronym to be common ground.

131. In response to the fresh evidence relied on by the applicant in support of ground 6, the Crown tendered a further statement of BH in which she explained that the use of the dummy, the tape and the doubling up of her limbs to shorten them was intended to be degrading in keeping with her role as a “submissive”, rather than to transform her into a child. She said that she allowed the message to be written on her thighs because “one of [her] Doms [dominant partners] requested it”.

132. The Crown accepted that the evidence was fresh in that it was posted after the trial had concluded and was therefore not available at the time of the trial. However, it objected to the fresh evidence on the basis that it did not support the inference that BH’s evidence at the trial was untruthful and there was no possibility that the jury acting reasonably would have acquitted the applicant on the basis of the fresh evidence. It did not object to this Court receiving the evidence for the purposes of determining whether ground 6 was made out: Fuller v R [2021] NSWCCA 194 at [20] (Johnson J, Price and Davies JJ agreeing). It was only on that basis that the fresh evidence was admitted by this Court.

133. Ms Lewer submitted that the fresh evidence “strongly support[ed] an inference that BH did not give truthful evidence when she denied any sexual interest in age play, calling the applicant ‘daddy,’ or in physically constricting her body.” She also submitted that “[g]iven the nature of the evidence at trial, [the fresh evidence] strongly supports a conclusion that [BH’s] evidence on these topics was intentionally false.”

134. Ms Lewer contended that there was an inconsistency between BH’s evidence that she did not have an interest in calling the applicant “daddy”, or in role plays about him being a father and her being a child, and the contents of her account on the Fetish Website (extracts of which were marked Exhibit 6, as referred to above) which included the results of a quiz which implied that she had an interest in “age play”.

135. Ms Lewer contended that the trial judge’s finding that BH was a credible witness was central to his finding that she did not have a sexual interest in “age play”, notwithstanding her account on the Fetish Website and that it was the applicant who insisted on being called “Daddy” which was crucial to his sexual gratification. Ms Lewer also pointed to the trial judge’s findings that the applicant was “preoccupied and pushy” about having BH tell him her “deepest, darkest fantasies”, including whether she wanted to role-play a child, would hold her in such a way as to make her physically small, taped her legs together to create the effect that she was physically smaller, and asked her to imagine she was little in age when having sex with him; and to try to “please Daddy”. Ms Lewer referred to the trial judge’s finding that BH spoke to the applicant about this a couple of times when she did not want to go along with the request because it made her feel uncomfortable, which resulted in him having tantrums for days. Ms Lewer contrasted BH’s evidence with the applicant’s evidence, which was that it was BH who wanted to call him “Daddy” and that he never asked her to do this.

136. Further, Ms Lewer referred to the trial judge’s finding that the applicant had asked BH to pretend that she was his actual daughter (RC) and to teach RC to please her father sexually and the use of these findings in tendency reasoning.

137. Ms Lewer also relied on the importance of BH’s evidence that she did not establish or open any of the folders which contained the child abuse material which was the subject of count 3 and that she had seen child abuse material on the phone as proof of count 3.

138. On these bases set out above, Ms Lewer submitted that the fresh evidence had the capacity to substantially undermine the assessment of BH’s credibility and, in turn, the tendency evidence. She submitted further that the evidence of BH’s sexual interest, as reflected on her account on the Fetish Website, supported the applicant’s evidence that it was BH, and not the applicant, who held the relevant sexual interest and undermined the prosecution case that he was the person with the knowledge of the existence of the material the subject of count 3.

139. Where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, three questions arise: first, is the evidence fresh in the sense of not being available at the time of trial (Ratten v The Queen (1974) 131 CLR 510 at 512; [1974] HCA 35); second, was the fresh evidence credible or capable of belief; and, third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant: MRW v R [2011] NSWCCA 260 at [46] (Bathurst CJ).

140. The unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that, if the fresh evidence had been before the tribunal of fact, it would have been “likely” (Gallagher v The Queen (1986) 160 CLR 392 at 410 (Brennan J); [1986] HCA 26 (Gallagher)) or there is a “significant possibility” (Gallagher at 399 (Gibbs CJ) and 402 (Mason and Deane JJ) that the tribunal of fact would have entertained a reasonable doubt about the guilt of the accused and would have acquitted the appellant.

141. In the context of an allegation that the absence of the fresh evidence from the trial occasioned a miscarriage of justice, the fresh evidence must be examined in the context of the evidence given at the trial: Mickelberg v The Queen (1989) 167 CLR 259 at 301 (Toohey and Gaudron JJ); [1989] HCA 35; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63].

142. The context was as follows. BH gave extensive evidence at trial about her sexual interests, including that she had an interest in BDSM, that she had an interest in “exploring the fullest depths of her own perversity and depravity” as outlined on her profile on the Fetish Website and exploring “dark fantasies” in her sexual relationship with the applicant, including sexual fetishes, being tied up with ropes and being sexually submissive. She was cross-examined at length about her Fetish Website profile, including the results of a quiz that she had uploaded which suggested that she had an interest in “daddy/mummy” and “age-play”. BH’s evidence was that she did not have a sexual interest in playing the role of a child, with someone else playing the role of being a daddy or mummy during sexual intercourse. She said that, as at the time of trial (October 2021), pretending to be a child was a clear boundary for her but that she had not enforced her boundaries well in her relationship with the applicant.

143. The photographs which form part of the fresh evidence show BH with a dummy in her mouth with her body encased in plastic and her arms and her legs bound to make her limbs shorter. In one photograph it appears that she is being choked. This evidence supports her evidence at trial that she was interested in being dominated. The photograph which depicted the words “owned by Daddy” and “am his fav[e]” written on BH’s upper thighs is consistent with her evidence at trial that, although she did not have a sexual interest in calling her dominant partner “Daddy”, she was prepared to do so if it was his sexual interest.

144. BH was extensively cross-examined at trial about the potential inconsistency between, on the one hand, her evidence that she was not sexually interested in “age play”, in being the child of her dominator or in calling her dominator, “Daddy” and, on the other, her evidence that she in fact did each of those things in the course of sexual activity with the applicant. Indeed, the trial judge’s questions following her re-examination, in answer to which she agreed that she had pretended to be RC (who was then a young child) when they were having sex and had called the applicant “Daddy”, notwithstanding her evidence that age play was a “hard boundary”, indicated the extent to which she was prepared, on her evidence, to accommodate the sexual interests of the applicant, who was her then partner, or dominator, in order to fulfil her own sexual interest in being dominated, particularly in a degrading way. The apparent inconsistency between her own description of her sexual interests and her actual conduct arose at the trial and could be resolved by the tribunal of fact, if it needed to be, either by inferring that her sexual interests in being dominated included being a child; or that she was prepared to do things which she did not particularly enjoy, in order to obtain what she wanted from her partner, as part of the give-and-take of sexual activity.

145. It is also significant that the applicant did not give any evidence that BH had a sexual interest in being a child or role playing a daddy-child situation. His evidence was that she called him ‘daddy’ as a pet name, having heard AS do so, rather than on the basis she was sexually interested in role playing that dynamic. His evidence was that his sexual relationship with BH did not involve role play and was normal, apart from choking and the use of razor blades, which he said were suggested by BH. In these circumstances, it is difficult to discern how the fresh evidence could affect the tribunal of fact’s assessment of the applicant’s evidence in any material way.

146. Further, the precise identification of BH’s sexual interests was not particularly significant in the context of the trial. Her evidence on count 2 corroborated AS’s evidence as to the applicant’s conduct, sexual interests and tendency. She also gave evidence of AS’s complaints (which were also supported by LO and ZZ). Her evidence on count 3 was peripheral in circumstances where the evidence at trial indicated that all of the folders and files on the Western Digital hard drive appeared to be linked with either the applicant or AS, other than a single folder titled “[B’s] back up”, which she denied having anything to do with.

147. I am not satisfied that there is a “significant possibility” that the tribunal of fact, acting reasonably, would have acquitted the applicant if the fresh evidence had been available. Accordingly, the applicant has not established a miscarriage of justice. Ground 6 has not been made out.

148. It is not necessary in these circumstances to consider the operation of the proviso, which would, in my view, have applied had any of the grounds been made out.

Adjustment of the sentence in light of appeal bail

149. As referred to above, appeal bail was granted on 14 February 2023. As the appeal is to be dismissed, the sentence must be adjusted to take account of the period of conditional liberty (with the effect that it will expire at a later date) and the applicant must be returned to custody forthwith.

150. As was confirmed in United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [39] (Gleeson CJ, McHugh and Gummow JJ), the grant of appeal bail “is a serious interference with the due administration of criminal justice”. Such a grant “makes the conviction appear contingent until confirmed; … places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail; … encourages unmeritorious appeals; … undermines respect for the judicial system in having a ‘recently sentenced man walking free’; [and] undermines the public interest in having convicted persons serve their sentences as soon as is practicable.” In the present case, at least the first and last-mentioned consequences have ensued. This is regrettable.

Proposed orders

151. For the reasons given above, I propose the following orders:

1. Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1 and 2.

2. Grant leave to appeal.

3. Dismiss the appeal.

4. Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), the applicant’s sentence is to recommence on 20 September 2023.

5. The Court notes for the purposes of s 18(2) of the Criminal Appeal Act that the period of 217 days, being from 15 February 2023 to 19 September 2023 (inclusive of both dates), does not count as part of the sentence of imprisonment imposed in the District Court on 18 November 2022.

6. The Court notes for the purpose of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that:

1. the non-parole period will now expire on 27 August 2025, upon which date the applicant will be eligible for release to parole; and

2. the sentence will now expire on 25 January 2027.

152. HARRISON J: I have had the advantage of reading in draft the thorough and comprehensive reasons for judgment of Adamson JA with which I agree.  I also agree with the orders that she proposes.

152. Counsel for the applicant presented her arguments in support of this appeal with clarity and skill, not to say considerable ingenuity.  However, I am not persuaded that any of the grounds of appeal has merit. 

153. I have reviewed the evidence in the trial with a view to understanding the way in which the applicant asserts in Ground 5 that the verdicts in respect of the two counts upon which he was found guilty are unreasonable and cannot be supported by the evidence.  Far from being either unreasonable or unsupported, his Honour’s conclusions were plainly open.  I am particularly satisfied that his conclusions with respect to Count 3 are well supported by the evidence in the circumstances, including the fact that the hard drive was in the applicant’s Sydney residence, where he lived alone, and that the rejection of his evidence about that is entirely unexceptionable.  It goes without saying that his Honour had the distinct advantage of seeing and hearing AS and BH, as well as the applicant, and no basis has been shown for discarding or devaluing the importance of that advantage in this case.

154. CHEN J: I have had the considerable benefit of reading the draft judgment of Adamson JA.

155. In relation to grounds 1-4 and 6, I agree with Adamson JA. In relation to ground 5, I am satisfied, having made an assessment of the whole of the evidence, that it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty of counts 2 and 3. I agree with the orders proposed by Adamson JA.

**********

Amendments

20 September 2023 - Appeal book references deleted

Decision last updated: 20 September 2023