JPM v The Queen

[2019] NSWCCA 301

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	JPM v R [2019] NSWCCA 301
Hearing dates:	28 October 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Before:	Simpson AJA at [1] Fullerton J at [7] Adamson J at [238]
Decision:	1. Insofar as concerns Ground 1, leave to appeal is granted. 2. Insofar as concerns Ground 2, leave to appeal is granted. 3. Insofar as concerns Ground 3, leave to appeal is granted. 4. The appeal against conviction is dismissed. 5. The sentence imposed in the District Court on 5 July 2019 is confirmed subject to the following variation: the sentence of 2 years and 10 months’ imprisonment with a non-parole period of 1 year and 5 months is to commence from 16 December 2019. The non-parole period will expire on 15 May 2021. The balance of term will expire on 15 October 2022.
Catchwords:	CRIME – appeals – appeal against conviction – assault with act of indecency on person under 16 – whether a miscarriage of justice occurred due to the trial judge failing to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt – whether a miscarriage of justice occurred due to the trial judge failing to give a direction that the accused’s silence was not evidence against him and could not be used to support the prosecution case – whether verdict of guilty is unreasonable and cannot be supported having regard to the evidence
Legislation Cited:	Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Rules (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW), s 20 Jury Directions Act 2013 (Vic)
Cases Cited:	Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Cabot v R [2018] NSWCCA 265 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Johnston v R [2007] NSWCCA 133 Lane v R [2017] NSWCCA 46 Lane v The Queen [2018] HCA 28 Le v The Queen [2016] VSCA 100 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Nguyen v R [2017] NSWCCA 4; (2017) 264 A Crim R 405 Obierzynski v R [2019] NSWCCA 103 Pratten v R [2014] NSWCCA 117 R v Graham [2005] NSWCCA 127 R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38 R v SMR [2002] NSWCCA 258 R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 Restricted Judgment [2019] NSWCCA 153 Richards [2002] NSWCCA 38; (2002) 128 A Crim R 204 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 Thi Quyen Le v The Queen [2016] VSCA 100; (2016) 308 FLR 486 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
Category:	Principal judgment
Parties:	JPM (Applicant) The Crown (Respondent)
Representation:	Counsel: G Bashir SC / G Huxley (Applicant) B Hatfield (Crown)   Solicitors: Condon Legal (Applicant) Solicitor for the Public Prosecutions (Crown)
File Number(s):	2017/226683
Decision under appeal	Court or tribunal: District Court Date of Decision: 12 October 2018 Before: Girdham SC DCJ File Number(s): 2017/226683

Judgment

1. SIMPSON AJA: I have had the advantage of reading in draft the judgments of Fullerton J and Adamson J. The relevant facts and circumstances are set out in the judgment of Fullerton J. I agree, for the reasons given by her Honour, that Grounds 1 and 3 should be rejected. In respect of Ground 3 I have made my own independent analysis of the evidence and am satisfied that the verdict of guilty was open to the jury.

2. I am grateful to both Fullerton J and Adamson J for their comprehensive analyses of the circumstances that call for consideration under Ground 2, and, particularly, for their detailed discussions of relevant authority.

3. I agree with Fullerton J that Ground 2 also should be rejected. As a number of the decisions to which reference has been made emphasise, the High Court did not, in Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, make a direction concerning the in-court silence of an accused person mandatory. Rather, their Honours said that such a direction will “almost always” be “desirable”. Whether, in a particular case, such a direction ought to be given will depend on all the circumstances of the case.

4. Here, the directions given by the trial judge with respect to the onus of proof, and the use to which the jury could put the applicant’s recorded interview, extracted in the judgment of Fullerton J, were, in my opinion, sufficient to bring home to the jury that the applicant was under no obligation to do anything more, including give evidence. The directions concerning the recorded interview all but equated those answers with evidence.

5. In the particular circumstances of this case, to have done more would have risked undermining those powerful directions and drawn attention to the different status of the answers given by the applicant.

6. In my opinion the decision in Azzopardi does not mandate that, in the circumstances of this case, such a direction ought to have been given.

7. FULLERTON J: On 8 October 2018, the applicant was arraigned in the District Court and entered a plea of not guilty to one count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (since repealed) in the following terms:

Between 10 March 2016 and 8 July 2017, at Forestville in the State of New South Wales, the applicant assaulted DE, a person under the age of 16 years, namely 6 or 7 years and, at the time of the assault, committed an act of indecency on her.

8. On 12 October 2018, the jury returned a verdict of guilty.

9. On 5 July 2019, Girdham SC DCJ sentenced the applicant to 2 years and 10 months’ imprisonment to commence on the day of sentence with a non-parole period of 1 year and 5 months.

10. On 8 July 2019, Turnbull DCJ released the applicant to bail under s 22 of the Bail Act 2013 (NSW). It is unnecessary to refer to his reasons for doing so. They have no bearing on the resolution of the appeal.

11. The applicant seeks leave to appeal his conviction on the following grounds. There is no appeal against sentence.

Ground 1: A miscarriage of justice was caused by the failure of the trial judge to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt.

Ground 2: A miscarriage of justice was caused by the Judge’s failure to direct the jury that the accused’s silence in Court was not evidence against him, could not be used to fill gaps in the prosecution case, or support the prosecution case.

Ground 3: The verdict of the jury was unreasonable and cannot be supported by the evidence.

Trial procedure

12. The trial was conducted under the Child Sexual Offence Evidence Pilot Scheme in Sch 2, Pt 29 of the Criminal Procedure Act 1986 (NSW) which provided for the evidence of a child to be placed before the jury in the form of a recorded interview with an audiovisual recording of the child’s pre-recorded evidence, including cross-examination.

13. DE was interviewed by members of the Child Abuse Squad on 25 July 2017 when she was aged 7 years and 10 months. The interview was conducted after the child complained to her parents on 8 July 2017 that the applicant had indecently touched her.

14. DE’s evidence was pre-recorded in March 2018. She was cross-examined by the applicant’s counsel, Ms Davenport SC.

15. A witness intermediary was present during the Joint Investigation Response Teams (“JIRT”) interview. The same person acted as a witness intermediary during DE’s pre-recorded evidence. On occasions during her cross-examination, the witness intermediary would intervene and suggest that a question be restated or suggest to the trial judge that the child was “confused”. On all such occasions the question was reframed or abandoned.

16. The trial commenced before the jury on the day the applicant was arraigned, 8 October 2018.

The Crown case at trial

17. It was the Crown case that the indecent assault occurred during a “sleepover” at the applicant’s home when DE was sleeping (or, more precisely, according to her evidence, feigning sleep) on a trundle bed in the bedroom of the applicant’s son (JM). On the Crown case, the applicant knelt down beside the trundle bed and placed his hands inside DE’s pyjama pants and under her underpants and touched her on the outside of her vagina with two fingers which he then “moved around”.

18. JM and DE were close school friends. The two families were on friendly terms as neighbours.

19. The Crown relied upon DE’s account to police in the JIRT interview of the circumstances in which the assault occurred and her demonstration of the “touching” as the act of indecent assault after the child had complained to her parents that she had been “touched” by the applicant in her “private parts” with “two fingers”. The Crown also relied upon the way the child demonstrated how she was touched when she complained to her father as consistent with the touching she demonstrated to police in the JIRT interview.

20. Although it was the Crown case at trial that the jury would be satisfied that the offence was probably committed during a sleepover on Friday 11 March 2016, the charge was framed on a between dates basis, there being uncertainty as to the precise date on which the offence was committed.

21. This issue was raised by Ms Davenport before the trial commenced. She complained to the trial judge that she had prepared for trial on the basis that the allegation of an indecent touching occurred on a specified date, namely 11 March 2016 as specified in the Crown case statement. After the trial judge permitted Ms Davenport to consider her position overnight, she informed the trial judge that she was satisfied she could meet the Crown case that the indecent assault alleged occurred on a “between dates” basis.

22. The evidence at trial was that between the dates alleged in the indictment DE slept overnight at the applicant’s home on multiple occasions, although on only one or perhaps two of those occasions had she slept in JM’s room on the trundle bed alone, that is, without either her sister (JE) or the applicant’s younger daughter (GM) on either a separate (or second trundle bed) or on a mattress.

23. The sleeping arrangements during sleepovers was addressed, in general terms, in the applicant’s account to police in an ERISP recorded on 25 July 2017. The applicant’s wife gave affirmative evidence that DE never slept in her son’s room alone.

24. The trial judge directed the jury that they did not need to be satisfied beyond reasonable doubt of the date the offence was committed; it was sufficient they were satisfied the offence was committed within the timeframe alleged in the indictment.

25. The first ground of appeal concerns what is said to be evidence adduced at trial through DE and in her JIRT interview, and in the way the Crown conducted the case at trial, which allowed for the possibility that some members of the jury might have reasoned to a finding that the applicant indecently assaulted DE on one occasion during the timeframe particularised and other jurors that she was touched on a different occasion in that same timeframe and that their verdict was returned by a “pooling” of those findings. In the absence of a unanimity direction, this was said to give rise to the possibility that the verdict of the jury was not unanimous as to which act of touching was proved beyond reasonable doubt, resulting in a miscarriage of justice.

26. In the context of the summing up, and the way in which the cases for the Crown and the accused were conducted at trial, the Crown submitted the jury would have been left in no doubt that the only allegation of criminal conduct with which they were concerned was the indecent touching that DE complained of to her parents on 8 July 2017 and the indecent touching she described in the JIRT interview on 24 July 2017, irrespective of the date on which it occurred. That being the case, the Crown submitted no unanimity direction was required and the first ground of appeal should be dismissed.

27. I will return to consider the submissions developed in support of the first ground of appeal.

Evidence of complaint

28. DE’s parents gave evidence in the Crown case. Their evidence was the subject of criticism by Ms Bashir SC who appeared for the applicant on the appeal. It is convenient to deal with those criticisms now.

29. DE’s mother, JGE, gave evidence that on 8 July 2017 (a Saturday night), when she was putting DE to bed, they had the following conversation:

DE: I don’t want to stay at [the applicant and his wife’s] anymore, Mummy.

JGE: Why, Sweetheart? Why – why wouldn’t you want to stay there anymore?

DE: Because [the applicant] touched me.

JGE: What do you mean he touched you?

DE: He touched my private parts.

JGE: Sweetheart, that’s very serious. Are you sure?

DE: Yes, Mummy.

JGE: When – when did this happen? Did this happen last Saturday night.

DE: Yes, it happened that night.

JGE: Okay. How – how did he touch you? Can you please show me how he touched you.

DE: He stroked me and patted me like this.

30. JGE gave evidence that DE put a hand on the top of her hand and used two fingers to stroke or pat it. JGE asked again whether she was sure the applicant had touched her in that way. DE confirmed she was. JGE reported the complaint to her husband, BE, who spoke to DE the following morning.

31. JGE said she spoke with her daughter again the following morning to clarify when the incident had occurred before her husband spoke with the child. In the meantime, JGE had spoken to JE, her other daughter, to inquire whether she knew anything of the incident. JGE gave evidence that DE (and on occasions JE) had slept at the applicant’s house on multiple occasions both before and after 11 March 2016, including the week before the complaint was made. JE told her mother that the incident could not have happened at the sleepover the previous week because she was sharing a bed with her sister. When JGE raised the issue with DE she said that the “touching” had not happened the previous week but “on the night that Jack had visited”. (“The night that Jack visited” or “the Jack Henry night” was later confirmed to be a reference to an occasion on 11 March 2016 when a friend of JGE had visited and was taken to the applicant’s home where DE was “sleeping over” to be introduced to her.) JGE gave evidence that this may have been the first occasion on which DE slept over at the applicant’s house - if not the first, then the second occasion.

32. JGE also asked her daughter why she had not said at the outset that the “touching” happened on the night Jack visited at which the child became very upset. JGE gave evidence that she comforted her daughter by telling her that she had done the right thing by reporting the matter.

33. JGE was asked the following questions in cross-examination:

Q.  When you were talking to [DE] on the following morning, you were suggesting to her that it may have happened on another night, not that night?

A.  That’s correct.

Q.  And it was at that time that she then said to you, “It happened on the first time she stayed there”?

A.  That’s correct.

Q.  And you knew that that was some time way back in 2016?

A.  Correct.

34. It was suggested by Ms Bashir in oral submissions that when JGE spoke to her daughter to seek clarification as to when the assault occurred, the child did not nominate “the night that Jack visited” but, rather, that was suggested by JGE as another occasion when the child slept over. The complaint seems to be that JGE did not challenge the child by suggesting the assault did not happen at all but that she proceeded on the assumption that it did. For my part, I do not read JGE’s evidence as conveying that suggestion. Despite some lack of clarity in JGE’s evidence, neither does it support the submission advanced by Ms Bashir that the child was complaining to her mother of multiple acts of touching, a submission foundational to the first ground of appeal.

35. JGE also gave evidence that later that morning, after her husband had spoken to DE, she again asked DE how the applicant had touched her. JGE gave evidence that DE “told me again that he had touched her and the way that he had touched her”. DE also told her mother about the circumstances in which the touching happened. She said that JM was having trouble sleeping so the applicant lay down with him to get him to sleep. DE told her mother the applicant “thought she was asleep … and that's when he touched [me]”.

36. DE’s father, BE, gave evidence that when he spoke to his daughter she was “hesitant, a bit upset because she didn't want to talk about it”. He said he reassured her and that she then said, “Daddy, he has touched my private parts”. When BE asked what the applicant did, she performed with two fingers a circular motion on top of her vagina. He then confirmed that was what the applicant did by repeating the two-fingered motion on his daughter’s clothing in the area of her crotch.

37. On the appeal, although not at trial, it was submitted that it was the child's father who first demonstrated or instigated the form of the touching, being a circular movement of fingers on top of the area of the child’s vagina, and that this had the effect of undermining the integrity of DE’s demonstration of the “touching” in the JIRT interview. In effect, it was submitted that DE was subject to the power of her father’s suggestion. This was an argument advanced by Ms Bashir in support of the third ground of appeal. I am content to make it clear now that I do not accept the analysis of BE’s evidence as proposed by Ms Bashir.

38. He was not cross-examined by Ms Davenport. Importantly, it was not put to him that he was the source of the demonstration of the two-fingered circular touching motion, something that one would have expected of trial counsel were there any suggestion of the kind arising from his evidence before the jury.

39. On 24 July 2017, DE’s parents spoke with a doctor who advised them to report the matter to police.

The JIRT interview on 25 July 2017 and the child’s evidence at trial

40. After confirming DE’s appreciation of the difference between the truth and a lie, the interviewing officers asked her what she had come to talk to police about, to which she responded, “My friend’s dad touching me”. When asked when that happened she said, “the first ever time I had a sleepover there”. She was asked to describe what happened from “start to finish”. She said:

A. He said I could have a sleepover the day and I said, yes. Then we had dinner and then we had dessert, then we went to bed. I slept in my friend [JM’s] room. He, um, has autism so he needs his like dad. And when I was asleep he came in and touched me.

Q52. OK. So I’m going to ask you some more questions OK about what you’ve just told me. OK. So you started with you said you had a sleepover?

A. Yeah.

Q53. So where did you have a sleepover?

A. Hey?

Q54. Where did you have a sleepover?

A. In my friend’s [JM’s] room.

Q55. And so what happened next?

A. Um, so I slept in there then, um, he waited for me until he thought I was asleep but I couldn’t actually sleep and then he came in and touched me.

41. She was asked to draw a diagram of the location of JM’s bedroom and a plan of the house. She identified the family members as the applicant, his wife and their two children, JM and GM. The drawings were later identified in her evidence in chief and tendered at the applicant’s trial.

42. She described the events of the night she was “touched”, including what they had for dinner and dessert (being ice cream with Ice Magic syrup) and that they had a bath, changed into their pyjamas and played, including sliding in their socks. Later in the interview she said they watched “Odd Squad” on Netflix. She described her pyjamas.

43. DE said she thought the touching was “last year” (being 2016) after Christmas (she later said it was after JM’s birthday on 31 January 2017). She was unable to be any more specific about the date. She did say it was a school day and that she was picked up after school and went with the applicant’s children to the Aquatic Centre. She also said one of her mother’s friends who she had never met came over to the applicant’s house where she was having dinner and it was then that she asked her mother whether she could sleep over. Her mother brought her a pillow and blanket. (This was confirmed in JGE’s evidence to be 11 March 2016, the night Jack Henry visited.) DE said the next day she went to ballet.

41. She repeated that she had slept in JM’s room and that he needed help falling asleep, so the applicant “came in and helped him … then he went out and then he touched me”.

42. The interview continued as follows:

Q228. So can you just tell me again. So you went in and you laid down with [JM]?

A. Laid down. No [JM] slept in his bed. Then he was a bit scared so he came and lie in my bed.

Q229. OK.

A. And then [the applicant] said no, go back in his, your bed. And then when he was asleep he went out and then he thought I was asleep but I wasn’t and he touched me.

Q230. Yeah. OK. So can you tell me more about that?

A. And he touched me and then I was like, what are you doing, in my head. And then he went to sleep.

Q231. So when you say he touched you, where did he touch you?

A. In the private part.

Q232. OK. What’s another name for your private part?

A. Wee wee.

Q233. Wee wee. And what do you normally do with your wee wee?

A. Um ---

Q234. That’s OK. You can tell us. This is really important.

A. You go to the toilet.

Q235. Toilet. OK. And yeah, and so what do you normally do when you go to the toilet with your wee wee?

A. Pee.

Q236. OK. Thank you very much. So how did [the applicant] touch you?

A. He just like put it there and like moved it around.

Q237. What did he put there?

A. His two fingers.

Q238. Yeah. So you’re holding up two fingers like that?

A. Just like that and then he like touched it.

Q239. Yeah. And so how did he touch you?

A. He was like …

Q240. And how long did he do that for?

A. Um, I don’t know.

Q241. And, um, was he saying anything?

A. No.

Q242. Did you say anything?

A. No.

Q243. Was there any light in the room?

A. No. Yeah. There was like the darkest light.

Q244. Yeah. And how did you know it was [the applicant]?

A. Because, um, I could hear, I could just feel his fat fingers.

Q245. Yeah. Was there anything else that made you know it was him?

A. Um, I knew because [the applicant’s wife] was fast asleep and because [JM], [the applicant] was in there.

Q246. Yeah.

A. Yeah.

Q247. You said he touched you with his fingers. Um, was that over your clothing?

A. Um, no.

Q248. No. What happened next?

A. So he just touched it and then he went and then I fell asleep.

Q249. Yeah. Did – so, did you have your pyjama pants still on ---

A. Yeah.

Q249. --- when he did that?

A. (No audible reply)

Q250. And so was it over the top of your pyjamas?

A. It was under.

Q251. It was under. OK. So when you say “under” can you tell me a bit more about under?

A. Under my pants.

Q252. Yeah. Um, and what else did you have on under your pants?

A. Undies.

Q253. You had undies on?

A. Scungies, scungies.

Q254. Yeah. Yeah. So where were his fingers in like in relation to your underpants?

A. It was like this.

Q255. Yeah. So it was on your private parts with nothing in between, it was just his finger on you?

A. Yeah.

46. DE confirmed that she was touched on the vagina under her pyjamas. She repeated this later in the interview. When asked how it felt, she said “Weird and I didn’t like it”. She said later in the interview that it made her feel unsafe. She also confirmed that when the touching occurred the applicant was on his knees next to the bed she was lying on. She then went on to describe how she was lying and what the applicant was wearing:

A. I was facing, I was facing that way.

Q267. Yeah. And where was [[the applicant]?

A. Like my head was like that way and he was like here.

Q268. OK. So you were facing away from him?

A. Yeah.

Q269. OK.

A. Well my head was.

Q270. OK. So ---

A. So like that.

Q271. Ah, so you were laying on your back?

A. Back.

Q272. You’re describing laying on your back and you turned your head. So why did you turn your head?

A. ‘Cause it just feels uncomfortable.

Q273. Yeah.

A. And my ears get pretty cold so I like getting on that side.

Q274. Yeah. And so you turned your head. So did you see him walk into the room?

A. Yeah.

Q275. Yeah. And so when did you turn your head away?

A. I always was sleeping like that and I was like there and then back to this.

Q276. OK. Was that when he was near the bed you turned your head?

A. Um, no, when he was walking in I turned my head.

Q277. OK. Do you remember what [[the applicant] was wearing that day?

A. He was wearing a blue top and some white pants.

Q278. Yeah. Long sleeve top?

A. Short sleeve.

Q279. Short sleeve?

A. (No audible reply.)

Q280. OK. And what about his pants, what were they?

A. White. They were like short sleeve.

Q281. Short sleeve.

A. No, they were long sleeve track suit pants.

47. When DE was asked whether the applicant had done anything like that before she said, “No”. When she was asked whether he had done anything after that she said, “Um, I don’t, I don’t know if he’s still doing it but I’m just fast asleep so I can’t feel it. But I don’t know if he’s still doing it or not”. When she was asked whether she had ever woken up to his touching her she said, “No”.

48. At the conclusion of the interview, when she was asked whether she remembered the touching being the first time she stayed at the applicant’s house she said, “Or it might be the second, I don’t really, I think it was the second, the second time”. She confirmed she was 6 at that time (DE turned 7 in September 2016).

DE’s pre-recorded evidence

49. On 14 March 2018, DE was cross-examined by Ms Davenport. At that time she was aged 8 years and 6 months.

50. The cross-examination commenced with Ms Davenport inviting DE to confirm that the “touching” occurred when she was 6 and that she initially told police it happened the first time she slept over at JM’s house and that later she told police that it could have happened “not on the first time … but the second time”.

51. When DE was asked to confirm that she told police that the applicant only touched her once she said, “I think”. The following questions were then asked:

Q. The things you told the police were about [the applicant] touching you once.

A. Yes.

Q. And you said that [the applicant] touched you when you were in Year 1.

A. Yes.

52. In the questions that followed, Ms Davenport proceeded to establish that the touching occurred on the occasion when DE met her mother’s friend and, further, it was that night that she had asked her mother whether she could stay the night at the applicant’s house, being the night that she slept in JM’s room and her sister did not sleepover.

53. The cross-examination also focused on other occasions that DE had slept at the applicant’s house in JM’s room on the trundle bed and other occasions when she played with or visited the applicant’s home during her first and second year at school.

54. The sleepover nights included what were referred to later in Ms Davenport’s closing address as the night before the applicant’s wife’s birthday in September 2016 (as to which DE said she slept in JM’s room on the trundle bed with JM’s sister (GM) and that the applicant did not touch her) and the night of the Christmas lights in 2016, as to which she gave the following evidence:

Q. And did [the applicant’s wife] ask you if you would like to see the Christmas lights?

A. Yes.

Q. And after you had seen the lights, you slept – you had a sleepover at –

A. Yeah.

Q. -- [JM’s] house.

A. Yeah.

Q. And on that night, you slept - did you sleep in [JM’s] room?

A. Yes.

Q. And on the trundle bed.

A. Yeah.

Q. And [the applicant’s daughter, GM] slept in the room too.

A. Yes.

Q. And she was sleeping on that mattress that is in the photo.

A. Yep.

Q. And you felt - did you feel safe staying at [JM’s] house that night?

A. Yes.

Q. And [the applicant] didn't touch you that night?

A. Yes, he did. That was the Christmas night.

WITNESS INTERMEDIARY: Your Honour-

DAVENPORT

Q. This is the night of the Christmas lights.

A. Yes.

Q. [The applicant] didn't touch you that night.

A. (No verbal reply)

HER HONOUR: Did [the applicant] touch you.

DAVENPORT

Q. Did [the applicant] touch you that night?

A. Yes.

Q. [GM] was in the room?

HER HONOUR: Was [GM] in the room.

DAVENPORT

Q. Was [GM] in the room?

A. I don’t know.

WITNESS INTERMEDIARY: Just tell you Honour, "I don't know."

HER HONOUR: Tell me.

WITNESS: I don't know.

DAVENPORT

Q. Was she asleep on the mattress?

A. I can't remember.

55. Having viewed the audiovisual recording of the evidence, DE refers to the touching on that night with some uncertainty, in contrast to the clear and emphatic terms in which she had earlier dealt with questions asked of her as to her memory of events and the sequencing of events.

56. The cross-examination then proceeded with DE being invited to consider other occasions when she had slept over at the applicant’s house.

57. The next occasion was referred to in the trial and on the appeal as the grandparents’ visit which occurred early in the first term of 2017. On that occasion, DE slept in JM’s room and her sister slept in GM’s room. As to that occasion, the following questions were asked:

Q. When you had the sleepover with your sister when [JM's] grandparents were staying there ---

A. Yeah.

Q. --- did your sister sleep in [GM’s] room?

A. Yes.

Q. And did you sleep in [JM’s] room?

A. Yes.

Q. The next morning when you woke up ---

A. Yeah?

Q. --- was [the applicant’s wife] in [JM’s] bed?

A. Yes.

Q. Was that the only time that you woke up and [the applicant’s wife] was in [JM’s] bed?

A. Yes.

Q. Was that a night that you felt safe sleeping at [JM’s] house?

A. No.

Q. Was that a night that [the applicant] touched you?

A. Yes. Yes. [DE says audibly “I’m confused”.]

WITNESS INTERMEDIARY: Your Honour, DE has just said "confused".

HER HONOUR

Q. DE, did you understand that last question?

A. No. [DE shakes her head.]

HER HONOUR: Perhaps if you could ask it again, Ms Davenport.

DAVENPORT

Q. We're talking about the night that you had a sleepover ---

A. Yeah?

Q. --- when [JM’s] grandparents were staying.

A. Yes.

Q. You remember that night?

A. Yep.

Q. You slept in [JM’s] room?

A. Yeah.

Q. [JE] slept in [GM’s] room?

A. Yeah.

Q. [JM’s] grandparents were in the spare room?

A. Yeah.

Q. And [the applicant] didn't touch you that night, did he?

A. No.

Q. When you woke up in the morning ---

HER HONOUR: Again that was a tagged question. I'm sorry to go back but could you just put that as a straight suggestion with a ---

DAVENPORT

Q. Did [the applicant] touch you that night? True or untrue?

A. Untrue.

Q. When you woke up the next morning, [the applicant’s wife] was in [JM’s] bed?

A. Yes.

Q. That was the only time that you woke up and [the applicant’s wife] was in [JM’s] bed?

A. True.

58. The cross-examination continued with Ms Davenport asking DE about another occasion when she slept over at the applicant’s house, sometime in the second term of the 2017 school year. On that occasion she slept with GM in the double bed in the spare room. DE said that there was no touching on that occasion.

59. The next occasion DE was asked to reflect upon was the night of the street party. She agreed that on that occasion she asked the applicant if she could stay the night at his house. She agreed that the applicant said she should ask his wife. The applicant’s wife agreed but said DE had to ask her parents. DE said that night she slept in JM’s bedroom on the trundle bed and GM slept on a mattress. She agreed that the applicant was already asleep when the children went to bed. As to that occasion, DE was asked the following questions:

Q. Did you feel safe staying at [JM’s] house that night?

A. Yep.

Q. You wouldn’t ask [the applicant] if you could stay if you were scared of him, would you?

A. No.

WITNESS INTERMEDIARY: Your Honour ---

HER HONOUR: I don’t know she could ---

WITNESS INTERMEDIARY: ..(not transcribable)..she..(not transcribable)..

HER HONOUR: --- answer that question (as said) that you – I’m ---

DAVENPORT

Q. You weren’t scared of [the applicant], were you?

A. Pardon?

Q. You weren’t scared of [the applicant].

INTERMEDIARY

Q. Were you?

HER HONOUR

Q. Were you scared?

DAVENPORT

Q. Were you?

A. No.

Q. And [the applicant] didn't touch you that night. True or untrue?

A. I don't know. I can't remember.

60. Ms Davenport then turned to what she described as “the last time” that DE stayed at JM’s house. DE confirmed that she stayed overnight at the applicant’s house with her sister as her parents were going out for the night and that the three girls (DE, her sister, JE, and the applicant’s daughter, GM) slept in the spare room whilst JM slept in his room. She agreed that the following morning she asked CM if she could sleep a second night but was told that was not possible because the family was going out. As to that occasion she was asked following questions:

Q. Did you feel safe there?

A. Yes.

Q. And [the applicant] didn't touch you that night. True or untrue?

A. (No verbal reply)

Q. Did [the applicant] touch you that night, true or untrue?

A. I can't remember. A little while ago.

61. She disagreed with the proposition put to her by Ms Davenport that the reason she told her mother that she did not want to have any more sleepovers was because of a rearrangement of the children’s bedrooms so that the applicant’s two children were sharing JM’s room.

62. Ms Davenport asked DE to reflect upon an occasion when all three children were sliding around on “slippery socks” which DE said was in winter time and that it was cold, and that after sliding they watched some television for a time and then she had to go home. DE agreed that there were occasions when she watched “Odd Squad” on Netflix at the applicant’s home before Netflix was connected to her home. Ms Davenport suggested to her that was in Year 2 (that is, in 2017). DE disagreed and said it was in Year 1 but, when pressed, said she could not remember.

63. After a five minute break towards the end of the cross-examination, Ms Davenport returned to the last night DE slept over:

Q. [The applicant] never touched you on your private part. Is that true or not true?

A. Not true.

Q. Last year, when you were in year two, you told your mum you didn't want to sleep over at [the applicant and his wife’s] any more. Is that right?

A. Yes.

Q. Your mum asked you why you didn’t want to sleep there any more, didn't she?

A. Yes.

Q. And you told her it was because [the applicant] had touched you.

A. Yeah.

Q. Did Mum ask you when that had happened?

A. Yeah.

Q. And at first, you said it was the last time you stayed there, didn’t you?

A. Yeah.

Q. And the last time you had stayed there was just about a week before you told Mum.

A. Yep.

Q. But he didn’t touch you that night, did he? [DE moves her hand from side to side, signalling uncertainty.]

HER HONOUR: That’s a tag question.

DAVENPORT

Q. [The applicant] didn’t touch you that night.

A. ..(not transcribable).. [Intermediary asks “What night?”.]

Q. True or untrue?

A. What night?

Q. The last time you stayed.

A. Yes, he did.

Q. That night, you and [JE] and [GM] all slept in the spare room.

A. Yes.

Q. He didn’t touch you that night, did he?

A. No. [DE shakes her head.]

64. On my viewing of the audiovisual pre-recording of DE’s evidence, there is a clear indication of both confusion and interruption from both the judge, the witness intermediary and by DE herself before ready acceptance by her that the touching did not occur on that last occasion.

65. The confusion continued, as evidenced by the following exchange:

Q. Okay then. So you don't think Mum asked where you slept last time.

A. Yeah.

DAVENPORT

Q. The next morning, you told Mum that it was another night that this had happened.

A. Yeah.

Q. And you told her that it had happened the first time that you stayed there.

A. Yes.

Q. And you thought that was the first time you had stayed there.

A. Yeah.

Q. That was when you were in year one.

A. Yes.

Q. Did Mum tell you something that made you think it didn’t happen the last time you stayed?

A. I’m a bit confused.

INTERMEDIARY: Your Honour, just a bit confused.

WITNESS: Confused.

66. The cross-examination concluded with the following questions:

Q. Did Mum say something to you about the last time you stayed at [JM’s] place? That is, the last time you ever stayed there.

A. I don’t know.

Q. Did she ask you, “Where was [JE] sleeping?”

A. No, no.

Q. Why did you tell Mum that it happened on the last time you stayed at [JM’s] place?

A. Because I knew I was going to feel uncomfortable if I didn’t tell her, and I knew she would eventually find out, so I just telled her - told her.

Q. After you told your mum, you told your dad.

A. Yep. Well, my mum told my dad.

Q. And then you spoke to your dad.

A. Yep.

Q. Did you tell your dad when it had happened?

A. Yes, yes.

Q. Do you remember telling the police that it made you feel unsafe ---

A. Yes.

Q. --- when [the applicant] touched you?

A. Yep.

Q. Do you think you would want to stay at [the applicant’s] house if you felt unsafe?

A. No.

Q. But you did stay at [the applicant’s] house after you say he touched you, didn’t you? You did stay at [the applicant’s] house after you claim he touched you?

A. No, I didn’t.

INTERMEDIARY: Claim, your Honour.

HER HONOUR: I don't think she’ll understand that, with respect.

DAVENPORT

Q. He didn’t touch you on the last time that you stayed there.

HER HONOUR

Q. Is that true or false?

A. (No verbal reply)

DAVENPORT

Q. Did he touch you on the last time you stayed there?

A. Yes. True, true, true.

Q. He did touch you on the last time you stayed there.

A. Yeah.

Q. That’s just before you told your mother.

A. Yep.

Q. Are you confused about the times that you stayed at [the applicant’s] house?

A. Yeah, yeah.

Q. You asked to stay at [JM’s] house a lot of times, didn’t you?

A. Yeah.

Q. And you didn’t feel unsafe.

A. No.

Q. And on the last time you stayed at [JM’s] house, you slept in the spare room with [JE] and [GM].

A. Yes.

DAVENPORT: That’s the cross-examination.

67. There was no re-examination by the Crown.

The applicant’s case at trial

68. The applicant voluntarily participated in an ERISP on 25 July 2017 in which he denied ever touching DE. He did not give evidence at his trial. His wife gave evidence. Her evidence was relied upon by Ms Davenport in her closing address to rebut significant aspects of DE’s evidence and to support her submission of the improbability that the applicant indecently assaulted DE as alleged or at all.

The ERISP

69. The Court was invited to view the ERISP. I have viewed it in its entirety.

70. That is significant for the following reasons. It is a version of events volunteered by the applicant to investigating police. It is also the version of events relied upon by the applicant at his trial in defence of the allegation that he indecently assaulted DE.

71. The trial judge did not direct the jury that the accused’s silence was not evidence against him and could not be used to fill gaps in the prosecution case - a direction which has been referred to as the “Azzopardi direction”, referencing the decision of the High Court in Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25. That was said to be the error the subject of the second ground of appeal.

72. What follows is a summary of the transcript of the ERISP.

73. The applicant confirmed that he had been cautioned by the custody manager and that he did not want to seek legal advice before he was interviewed.

74. It would appear, from the way in which the interview was conducted, that the applicant had been notified by his wife by telephone that police had attended their home and wished to speak to him. After meeting with police at his home the applicant was informed that he had been accused of the aggravated indecent assault of a 7 year old child. DE was not named as that child. The applicant did not ask the identity of the child complainant. The police advised that they would provide further details of the allegation at the police station.

75. At Question 53 of the interview DE was named as the complainant for the first time. In response to that allegation and on being asked whether he wished to say anything about it, the applicant said:

A. Um, oh, I’m, I’m, I’m stunned. Yeah. Um, um, uh, yeah. I really, I don’t know what to say.

Q55. OK. The allegation is, um, is that you have, uh, touched [DE] on the vagina, uh, and we believe that that, that occurred on, uh, the 11th of March, 2016, when she was staying at your house one night, in, uh ---

A. …

Q56. --- in, in your son’s room.

A. Yeah.

Q57. So that’s ---

A. They stay, yeah, I mean, they’ve stayed ---

Q58. That’s the---

A. --- but her and her sister have stayed, um ---

Q59. Yep.

A. --- a few times. I think [DE’s] probably stayed a lot more ‘cause she’s a lot closer to [JM] and, and [GM], but, um ---

Q60. Yep.

A. …

Q61. Yep.

A. It’s ---

Q62. So, would you like, like to tell us anything about that? Um, does, does any of that sound true at all, or ---

A. Oh, no, no.

Q63. No.

A. No, it doesn’t.

Q64. OK.

A. No, it doesn’t.

76. In response to general questioning about the sleepover arrangements, the applicant said they varied, but that if all the children were together they would have slept in JM’s room because it was bigger. DE would sleep in JM’s room on the trundle bed with the second trundle bed being brought in if his daughter, GM, was also sleeping in his son’s room.

77. The applicant also confirmed that there were good neighbourly relations between his family and DE’s family. He said that his wife decided to have an “open door policy” because of the friendship that had developed between DE and his son who had special needs. He said later in the interview that DE was “our neighbour’s kid … she gets on with our kids … we [who I take to mean was the applicant and his wife] look out for her”.

78. The incident described by DE as constituting the indecent assault was put to the applicant in detail. When he was told that police had “sort of pinpointed [the date as] 11th of March”, coincident with the date when a friend of DE’s mother had visited, he said that “rings a bell”. The following questions were then asked:

Q143. So, um, [DE’s] indicated that she, that night that she borrowed some pyjamas off your daughter. So he had a bath, had dinner, um, and had, um, had dessert, had a bath, they played, um, and then, uh, went to bed. Um, she’s, she’s indicated that, uh, [JM] was restless or, like, playing up.

A. Sound about right. Yeah.

Q144. Playing up a bit. You went in, uh, settled him, laid down with him, just got, got him off to sleep. Um, she’s indicated that you left the room for a short time, then came back, and then, uh, knelt down near her on, on the floor, and put your hand in her, in her pants.

A. Mmm.

Q145. And just rubbed, rubbed her on the outside of her vagina, um, for, for an unknown period of time. She couldn’t really stipulate the, the length of time. And, and then that, she indicated that you, you just left the room after that.

A. Yeah.

Q146. Yeah, so, so that’s, that’s, that’s why we’re here, um ---

A. Yeah.

Q146. --- predominantly. And you’re, you’re telling us that, no that didn’t happen?

A. No, it didn’t happen.

Q147. It’s just, like, it just, um, you’ve sort of agreed with a lot of the other aspects of the family ---

A. Yeah.

Q147. --- um, relationships. I think that, even that day in particular, you sort of recall a family friend, things like that.

A. Mmm.

Q148. Um ---

A. I, I don’t know if it’s that particular day but I do remember.

Q149. Yeah.

A. …

Q150. Yeah, sure.

A. Absolutely.

Q151. Sure.

A. Yeah …

Q152. Um ---

A. Bring him over and, and introduce him, yeah.

Q153. Yep. So ---

A. Yeah.

Q154. Um, it’s, you sort of agree with all those facts, but you don’t agree with the fact that, that you’ve, have you ever touched her ---

A. No.

Q154. --- in any way?

A. No. No, no.

79. In answer to a question asked of him as to whether there were any circumstances where he would need to touch the bodies of children who slept over at his house, the applicant said that the only time when he would be close to touching DE would be when he was helping her out of the bath by handing her a towel, but that he had no reason to touch her genitals. He confirmed that DE used the toilet unaided and actually closed the toilet door behind her, unlike his children.

80. The applicant confirmed the general layout of his son’s bedroom and that the bathroom was next to his son’s bedroom.

81. Police then asked the following questions:

Q229. Um, yeah, because as a part of this, um, the allegation, [DE’s] indicated, um, that after, uh, you, uh, touched her on the vagina, um, when you left the room, she said, she said you washed your hands. So she, she heard the, when you left the room that you went into, to the bathroom at the same time she heard the bathroom tap turn on. Uh, would you like to make any comment about that at all?

A. Um, yeah, oh, no comment there, I suppose. Um, again, there’s two bathrooms but yeah, the one closest to the , to [JM’s] bedroom, um ---

Q230. Yep …

A. Yeah, oh, I don’t really need to add to that, I suppose.

Q231. Sure, yeah, yeah.

A. Yeah.

Q232. I’m just, I’m just telling you ---

A. Yeah.

Q232. --- the allegation that ---

A. Yeah.

Q232. --- we’ve gotten, and, um, um, just how it’s been explained to us.

A. Sure.

82. The interview concluded with the following question and answer:

Q249. … so that’s the allegation. [DE’s] indicated that you’ve, you’ve, uh, indecently assaulted her, and that you’ve, we, we’ve conducted an interview with her and she’s told us, um, that you put your hand down, down her pants, like, underneath her clothing and, and, uh, rubbed her on the outside of her vagina, uh, for an unspecified time. So before we wrap up, um, is there anything else you’d, you’d like to make further comment at all about, about, uh, what we’ve talked about here today?

A. Um, no, other than it’s pretty … Um, yeah. So, uh, I would like to talk to my wife and I suppose put her ---

Q250. Sure.

A. Let her know. But, uh, in terms of the allegation, it’s um, it’s pretty serious.

83. In the absence of any explanation from trial counsel as to why an Azzopardi direction was not sought (either at the commencement of the summing up or by way of redirection), in my view the ERISP, including the applicant’s denials and the approach of police to those denials, provides some insight as to why a forensic decision might have been made to rely upon the applicant’s unsworn account to police in his defence at trial and not to seek an Azzopardi direction which would inevitably have highlighted the fact that he could have given evidence but elected not to.

The applicant’s wife’s evidence

84. A map of the applicant’s home was produced through his wife (CM) and tendered in evidence. It showed a bathroom in the corridor close to JM’s bedroom. CM said that it was not used by either her or her husband as they had an en suite bathroom. It would appear this was the bathroom DE heard the applicant use after she described his indecent assault of her.

85. CM gave evidence that her son was diagnosed on the autism spectrum and routine was important for him, including a domestic routine on his arrival home from school which she was responsible for managing. She said her son had difficulty getting to sleep and that there was an additional routine in that process with either her or her husband usually staying in the room with JM for up to two and a half hours until he fell asleep. While CM said she invariably took on that role, if she were unable to get her son to sleep the applicant would take over.

86. In cross-examination, whilst she confirmed that on occasions the applicant might lay down with JM to get him to sleep, she denied that if DE were sleeping over that the applicant would ever be alone with the two children. She claimed that were DE to sleep over her daughter would also sleep in JM’s room.

87. CM gave detailed evidence of the after-school activities of her two children. In what she described as term one of 2016, they had occupational therapy combined with a martial arts program on a Friday afternoon. She would drive them to and from this program. She said her son had a break in term two but he resumed the program in term three of 2016. She recalled that on one occasion she was asked by DE’s mother to pick DE up from school which she did. On that occasion DE went with her children to the martial arts program.

88. CM said the children had swimming lessons but not in term one. She said she did not take DE to swimming lessons. The only time DE accompanied her children swimming was in the Christmas holidays 2017. She said DE did not sleep at her home that night.

89. She confirmed that on 11 March 2016 it was possible that DE had slept over. If that had happened she said that would have been one of the first of many occasions that DE slept at their home. She said the Netflix program “Odd Squad” was first viewed in March 2017. She said she did not remember DE’s mother dropping off clothes or any conversation about a friend of DE’s mother visiting.

90. CM recalled six sleepovers in 2016, the first on the night before her birthday, being 27 August 2016. On that occasion she said DE slept on the trundle bed in JM’s room with GM on a mattress at the end of the two beds. The next occasion was the night of the Christmas lights with the same sleeping arrangements.

91. Another occasion was when the applicant’s parents attended for his birthday and stayed overnight in the spare room. She said both DE and her sister slept over one night whilst her parents-in-law were staying. On that occasion DE slept in JM’s room and the other girls slept in her daughter’s room. On that occasion, however, her son woke up distressed in the night and went into her bed and she slept in her son’s bed.

92. The next sleepover was on 24 June 2017 after what she described as “a street neighbourhood catch up”. On that occasion her daughter and DE slept in JM’s room. On another occasion, sometime between April and July 2017, DE slept with her daughter in the spare room while her son slept in his bed.

93. CM gave evidence that the last sleepover was on the first weekend in July 2017. On that occasion she agreed to have DE and DE’s sister stay over as their parents were going to a ball. All three girls slept in the spare room. JM slept in his bedroom.

94. The only occasion CM recalled the children sliding around on their socks was an occasion when DE did not sleep over.

95. CM said when DE visited that DE would have a general conversation with the applicant at dinner and at other times but there was no physical interaction between them. She saw nothing in DE’s behaviour that made her think she was not comfortable around the applicant and she noticed no change in the child's behaviour in relation to the applicant at any time. In cross-examination she said there was never an occasion when the applicant would be in the bathroom to give DE a towel as bathing was her domain.

The closing addresses of counsel

The Crown’s closing

96. Shortly stated, the Crown’s closing submissions were to the effect that if the jury were satisfied beyond reasonable doubt that what the prosecutor described as “this touching” occurred in the way that DE said it did, the jury should convict the applicant. The only “touching” referred to by the Crown as constituting the offence charged was what DE complained of to her parents and the account she gave to the interviewing police in the JIRT interview.

97. The Crown dealt with the issue of the date of the offence by encouraging the jury not to assess the evidence of a child witness as one would an adult witness. She submitted that children do not have autonomy over their lives, including ordering their lives by reference to a calendar. After referring to the timeframe within which the Crown alleged the offence occurred, the Crown submitted as follows:

It doesn't matter whether it was the first of those dates, or the last of them, or any in the middle; it doesn't matter.  The Crown doesn't have to prove on which date the event occurred.  It doesn't need to prove, beyond reasonable doubt, what date it occurred.  It could be any of those dates …  All the Crown needs to prove is the act that took place; the facts that relate to the offence. (Emphasis added.)

98. On the appeal, it was submitted that this was an invitation to the jury to choose between multiple acts of touching occurring on different dates within the particularised timeframe. Clearly, neither trial counsel nor the trial judge interpreted it that way. For my part, I do no not interpret it that way either. Other aspects of the Crown’s closing were also said by Ms Bashir to invite the jury to consider multiple acts of touching as constituting the offence charged. Those submissions were developed in support of the first ground of appeal. I will return to consider the Crown prosecutor’s submissions to the jury and the applicant’s complaint about them when considering the first ground of appeal in detail.

Ms Davenport’s closing

99. Ms Davenport’s closing submissions were structured to seek to persuade the jury that they would not accept DE as a reliable witness given what she submitted were grave doubts as to when “this touching” occurred. In counsel’s submission these doubts flowed from the initial complaint when DE nominated the occasion when “it” occurred as an occasion when “it” could not have occurred, namely 1 July 2017 when DE and her sister were sharing a bed, and that those doubts were perpetuated thereafter, including in DE’s evidence, by reference to the surrounding circumstances of what Ms Davenport described as “the one occasion that she was touched” by the applicant.

100. Ms Davenport’s submissions then focused on the context in which DE had said that she was indecently touched by the applicant, including the timing of visits to the Aquatic Centre, what they watched on television and how they played before bed, to raise further doubts as to the reliability of her account. In each instance, Ms Davenport invited the jury to focus on the fact that DE’s account of the touching could not have occurred in the circumstances DE described. As Ms Davenport put it, “it all goes to the reliability of her account of what happened and when it happened”.

101. Later in her address, Ms Davenport reminded the jury of the seven or eight occasions that DE slept at the applicant’s house between the dates particularised on the indictment. These events were referred to on the appeal as the first sleepover on 11 March 2016 (the Jack Henry visit); the second on 27 August 2016, JGE’s birthday; the third on the night of the Christmas lights; the fourth on the grandparents’ visit; the night between April and July 2017 when DE and the applicant’s daughter slept in the spare room; the street party on 24 June 2017; and 1 July 2017 when DE, her sister and the applicant’s daughter all slept in the spare room. As to the other instance of touching revealed in cross-examination, being the night of the Christmas lights, Ms Davenport said:

… she claimed that he touched her on that night.  That's a night when [GM], on her own version, was also sleeping in the room.  And in relation to the last time, 1 July, I've already told you that her version of what happened on that night varied during the course of the cross-examination.

102. The only reference by Ms Davenport to DE’s evidence was that “it” happened on other nights “as well”, was again in the context of inviting the jury to question DE’s reliability, as is clear from the following:

In cross-examination she stated that, when she was asked about the Christmas lights, she said it happened on that night as well.  And then when we came to that final night, the night of 1 July, she gave a number of different versions and this appears at the transcript of her cross-examination starting from p 40 onwards.  She agreed that she, [JE] and [GM] all slept in the spare room.  I asked her, "Was it true or untrue, [the applicant] didn't touch you that night" and her first answer was, "I can't remember" and that was at p 41 at line 14.  I then came back to the issue of the events of 1 July and at p 54, line 15, she agreed that [the applicant] didn't touch her that night, but then at p 56, line 7, she said he did.  So within that cross-examination she went from, I don't remember ‑ no, he didn't touch me ‑ yes, he did touch me.  So in terms of her reliability, my submission to you is that you would look very, very closely at her versions of events because she was prepared in many aspects to agree to almost any version of events.  Again, looking at that version, I don't remember ‑ no ‑ yes, in the light of her acceptance of the fact that on the following day she asked if she could have another sleepover that night but [her mother] said no because they had something on.

103. Ms Davenport then went on to submit:

So my submission to you is this, that contrary to what the Crown has said, you do, the devil is in the detail.  You do have to not just look at what she says, the broad allegation of, "He touched me in my private parts."  You have to look at what she, the surrounding circumstances which she says led up to that.  You have to look at the reliability of her version of events, when did it happen?  Why did she agree with her mother when she refers to slow is that it happened on the week before because it just couldn't have happened the week before.  If it did happen, why did she continue, if it did happen sometime in 2016, because her evidence is it happened when she was 6.  If it did happen why did she continue to go over there?  Why did she continue to want to go over there?  Why did she continue, why did she, in June at the street party, ask [the applicant] if she could stay?  Is that the likely behaviour of a child who's been sexually touched by this man?

104. So far as the issue of the date of the offence was concerned, Ms Davenport also submitted, “If this [the indecent assault alleged] happened in March of 2016 or August of 2016 or February of 2017, why did [DE] keep wanting to go back?”.

105. Ms Davenport concluded her submissions by urging the jury to determine, having regard to DE’s evidence, whether after they:

… examined it in detail in terms of all the things that she said and the different versions she has given in cross-examination, and to her mother in particular about when it occurred, that [they were] satisfied beyond reasonable doubt that it in fact occurred as she said it did. (Emphasis added.)

The trial judge’s summing up

106. After directing the jury that their assessment of a witness’s credibility was solely a question for their assessment, the trial judge gave the following direction as to how they should approach the evidence of DE as a child witness:

Now, here of course, you are dealing with the evidence of a young child and you have heard submissions on behalf of the Crown and on behalf of [the accused] in relation to that. Members of the jury like adults some children will provide truthful and accurate testimony and some will not. However, children are not miniature adults, they are children and are to be treated and judged for what they are. Therefore, although due allowance must be made for the trial process for the fact that it is a child whose evidence you are scrutinising, for a child you would expect, for example, a shorter attention span than an adult’s and the like. Members of the jury, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children carry with it the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from adult or a child. And so, members of the jury, [DE’s] credibility is to be assessed by you, take into account every specific personal characteristic which you think may bear on the issue of credibility, maybe her age and the like, along with the rest of the available evidence.

107. The jury were also directed that they should exercise caution in their consideration as to whether the evidence relied upon by the Crown proved the applicant’s guilt beyond reasonable doubt where the Crown case was dependent upon the jury accepting DE as a truthful witness. Her Honour gave the following direction:

[Before convicting] the accused on the charge because the Crown case very much depends on you accepting the truthfulness and reliability of the evidence of a single witness. That evidence must establish the accused’s guilt to that exacting standard of beyond reasonable doubt, and you must therefore carefully consider the evidence and the recollection of the complainant with more than the usual amount of care on that account. That being so, unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in relation to those vital elements that I have spoken to you about and the account that she has given you cannot find the accused guilty of the charge concerned. Before you can convict the accused on the charge you should examine the evidence of [DE] very carefully in order to satisfy yourself that you can safely act upon it to the high standard required in a criminal trial. (Emphasis added.)

… I am not suggesting that you are not entitled to convict the accused of the charge upon the evidence of the sole complainant, and clearly you are entitled to do so, but only after you have carefully examined the evidence and satisfied yourself of it beyond reasonable doubt.

108. After identifying the constituent legal elements of an indecent assault of a child under 16 years, the trial judge said that “the alleged offence occurred between 10 March 2016 and 8 July 2017” but that the date was not an element that needed to be proved beyond reasonable doubt.

109. As to the issue of the date of the offence, the trial judge directed the jury in the following way:

… the Crown has alleged that the offence occurred between certain dates, namely 10 March 2016. That is, as I understand it, the date just before Jack Henry came to stay, or visited at [DE’s] home, and where [JGE] told you she was able to date that by reference to Facebook. And the next date is 1 July 2017, that being the occasion when [DE’s parents] went out [and the applicant and his wife] babysat both of their children. And you will recall the evidence is that the disclosure and the complaint made by [DE] was made on 8 July, so a week later. So, you did ask a question about the dates. It is not an essential element that the Crown must establish, but in this instance it is said that the offence occurred within that time period, 10 March 2016 and 1 July 2017. (Emphasis added.)

110. Her Honour concluded her directions on the essential elements of the charge as follows:

Members of the jury, I emphasise that it is only in the event that you are satisfied that the Crown has proved beyond reasonable doubt that the accused assaulted the complainant, that the assault was indecent, and at the time of the indecent assault the complainant was under the age of 16 years then the Crown has proved all of the essential facts or ingredients to make out the offence of indecent assault, and only in that circumstance should you return a verdict of guilty.

111. The directions as to the constituent legal elements of the offences are not said by the applicant on appeal to have been deficient. The directions were also reduced to writing. It is unnecessary to set them out in full.

112. In the summing up, the trial judge repeatedly used the words “the alleged offence” or “the offence” or the date “it” was alleged to have happened which, when regard is had to the summing up as a whole, can only be taken to refer to the indecent touching described in detail by DE in her interview with police and demonstrated by her in the interview, since the trial judge did not refer to the other occasions when DE said she was “touched” by the applicant. No direction was sought as to how the jury should treat that aspect of her evidence. No complaint is made on the appeal that a direction should have been given.

113. The trial judge then identified the real issue in dispute “in respect of the charge on the indictment” as whether “the Crown has proved beyond reasonable doubt that the relevant act, that is, the relevant indecent touching, took place” (Emphasis added).

114. I have referred earlier to the evidence of DE’s parents which attracted a direction from the trial judge to the effect that if they were satisfied that DE complained to her parents substantially to the effect that the applicant “touched [her] on the outside of her vagina on the wee wee” (that is, that she made the allegation against the applicant and in the terms that she made that complained of to her parents), and that is “the sort of conduct you would expect of a person who has been assaulted in that way”, it may be used by them to support the reliability of DE’s evidence. Again, when giving that direction her Honour referred to “the touching” the subject of “the allegation”.

115. When her Honour reminded the jury about Ms Davenport’s submissions concerning the evidence of complaint, she made repeated reference to the date upon which “it” happened, clearly a reference to the indecent assault the child had described and demonstrated to her parents and to police as exemplified in the following extract:

The defence case has been put by counsel for the accused, Ms Davenport, in the clearest of terms and that is that the evidence upon which the Crown relies which necessarily is the single witness of [DE], that that evidence is not capable of establishing to your satisfaction that the accused did the act the subject of the count. (Emphasis added.)

116. Her Honour went further and said that in contrast to the Crown case which is reliant on the jury accepting DE’s evidence as truthful and reliable, the defence case is:

… that she has been demonstrated to be fundamentally unreliable and any inconsistencies in her evidence are not the result of any confusion but they are fundamental to the issue to be decided by you and it [sic] could not satisfy you of the accused’s guilt beyond a reasonable doubt.

117. In further elaboration of the applicant’s case at trial, her Honour again referred to Ms Davenport’s submission that the inconsistencies in DE’s evidence in relation to the date the offence was alleged to have occurred and the circumstances surrounding it, as informing the jury’s assessment of the child’s credit and reliability.

118. DE’s evidence in cross-examination was referred to in the context of her Honour’s summary of the applicant’s case as it was advanced by Mr Davenport on his behalf in her closing address. It is instructive to set out that aspect of the summing up in full:

On behalf of the accused, Ms Davenport emphasised the inconsistencies in [DE’s] evidence, and the submission made to you was that the inconsistencies in her evidence, certainly in relation to the date the alleged offence occurred and the circumstances surrounding it, would assist in your assessment of [DE’s] evidence, and so those inconsistencies, the submission went, do matter because they inform the view you would take as to the child’s credit and reliability. She turned first to the inconsistency in complaint. That is, when [DE] first told her mother that the accused had touched her and she agreed that it happened on 1 July 2017, and of course that was a date just a week before the complaint was made. But the next day when her mother sought to clarify this it shifted to 13 March 2016. I am sorry; Ms Davenport did not say it shifted to 13 March 2016, but that is the date that has been identified as the date that [DE’s mother’s friend] came to stay.

The submission was made that in her account to the police the complainant said that it happened when she was six years of age, that is, before September 2016, and that it happened when her mum brought her friend to the house. Her evidence was that [the applicant’s wife] had picked her up and they had gone to the aquatic centre to swim, but Ms Davenport referred you to the Martial Methods records and the evidence also of [the applicant’s wife], exhibit 14, and said that she slept over that night just does not fit with that version. And just so Odd Squad, which is also a feature of the circumstances that the child said surrounded the incident, that was not accessed on Netflix until March 2017.

In cross-examination [DE] had agreed that she went home after the incident when she was skating in socks, so that is contrary to her account, and that is the time that [GM] hurt herself, but that, it was pointed out, was inconsistent with what she had said in her JIRT interview. [DE] had said that the night that the offence occurred she had borrowed pyjamas from [GM] but her mother stated that, no, she had introduced her daughter to a friend. She had gone and got [DE’s] clothing from her house and returned with it. And then there was the issue about [the applicant’s wife] sleeping in the bed, and that [the applicant’s wife’s] evidence was that she slept in the spare room and only once went into [JM’s] bed. The point of it is, as Ms Davenport asserts, with all this background information surrounding the night that she said it occurred, it just cannot be right.

In terms of the relationship between the [M] and the [E] families the submission made is that it was clearly a good relationship, it was founded on a relationship between [DE] and [JM], and it was particularly precious because of [JM’s] autism. Ms Devonport raises for your consideration why would the accused put that at risk, that it just does not pass the pub test. She also asked for you to consider if this had happened why would [DE] keep wanting to go back. On the last occasion she was there she had agreed she had asked to stay another night, in cross-examination, and in any event that was the night that three children had slept in the room. That is the night of 1 July 2017. And of course, there was the evidence that on 23 June 2016 [DE] agreed in cross-examination that she had asked the accused if she could stay. That was the night, I think, of the street party, and he had asked her to go and ask his wife, and [the applicant’s wife] had said yes, and her parents agreed and so she stayed. Ms Davenport also asked you to have regard to the cross-examination wherein [DE] claimed she had been assaulted on other sleepovers despite telling the police that it had only occurred once.

The first ground of appeal: A miscarriage of justice was caused by the failure of the trial judge to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt.

119. On the hearing of the appeal, although not the subject of written submissions, Ms Bashir submitted that S v The Queen (1989) 168 CLR 266; [1989] HCA 66, and the principles for which that case is authority, dictate that the first ground of appeal has been made out.

120. That submission proceeded on Ms Bashir’s acceptance of the proposition that the only question the jury had to decide was whether the applicant touched DE indecently, it being accepted in filed submissions that were the jury satisfied of that fact beyond reasonable doubt a guilty verdict would necessarily be returned.

121. MS Bashir submitted, however, that the way the Crown conducted its case at trial, inter alia by emphasising that it did not need to prove the date on which the offence occurred or the precise circumstances contextual to the offending, and by putting what was said to be “opportunity” at the forefront of its case, the jury were distracted from the need to reach a unanimous decision about which act of multiple acts of “touching” they found proved. That argument was in turn premised on there being evidence of multiple acts of indecent touching at the applicant’s trial as part of the evidence upon which the Crown relied in proof of its case or which the jury might have considered were alternate scenarios of indecent touching.

122. Ms Bashir also relied upon Lane v R [2017] NSWCCA 46 in further support of her submission that a miscarriage of justice resulted from the failure of the trial judge to give a unanimity direction. In reply to the Crown’s submission, Ms Bashir submitted that the decision of this Court in Cabot v R [2018] NSWCCA 265 was distinguishable and the Crown’s reliance on the reasoning in that case in disposition of the first ground of the appeal was misplaced.

S v The Queen

123. In S v The Queen the High Court was concerned with an indictment which contained three counts of incest on successive years between January 1980 in November 1982, it being the Crown case that in each of those three years the applicant had one act of sexual intercourse with the applicant’s daughter which constituted each of the offences charged. The applicant’s daughter gave evidence of an incestuous relationship with the applicant before she left home at the age of 17 which extended over the timeframe comprehended by the three counts on the indictment. The repeated acts of intercourse which she described in evidence were indistinguishable, one from the other, save as to them occurring on different occasions, “every couple of months” during each of the three years covered by the indictment. The closest the complainant came to identifying any specific occasion when intercourse occurred was a reference to the first occasion and the first time the applicant put on his wife’s underclothing. In regards to the other acts of intercourse, the complainant gave evidence that they occurred over “the next two years”.

124. The Crown declined to furnish particulars of the offences alleged. An application to the trial judge that the Crown provide particulars was also refused, the trial judge apparently accepting that the Crown was not in a position to provide further particulars of the offending the subject of any of the three counts and was unable to nominate or identify with particularity the acts of intercourse the subject of each of the three counts. In the result, the applicant only knew that what was alleged against him was that on an unspecified occasion in each of the 12-monthly periods comprehended by each of the three counts on the indictment he had carnal knowledge of his daughter.

125. The trial judge summed up to the jury on the basis that it was sufficient for them to be satisfied beyond reasonable doubt that on at least one occasion during each of the three years there was an act of incestuous intercourse without any guidance as to what the evidence revealed about any of those three occasions.

126. The argument advanced in the High Court was based on the proposition that where a count in an indictment alleges one specific offence, it is not open to the Crown to lead evidence of a number of acts which amount to the actus reus of the offence charged, and then to invite the jury to convict on the basis of proof of the acts led in evidence.

127. As Toohey J saw it, the issue was not that the indictment was open to challenge on the ground of duplicity or a failure to provide adequate particulars; the issue was that the accused did not know, with any certainty, the charge he had to meet. As his Honour noted at 281, that had been considered by Dixon J in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 where his Honour said:

… the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies, and he should be so required as soon as it appears that his complaint in spite of its apparent particularity is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.

128. Toohey J went on to say at 282:

Of course this does not mean that the prosecution must specify a particular date as the occasion on which it relies. But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged. This did not happen in the present case nor did the trial judge adequately convey to the jury the difficulties facing the applicant by reason of the failure to do so. The matter was left to the jury on the basis that so long as they were satisfied an act of carnal knowledge occurred during a period specified in a count in the indictment, they could convict the applicant on that count. The trial miscarried for that reason.

129. In declining to apply the proviso, Toohey J said at 283:

This trial was fundamentally flawed in that the jury were invited to convict the applicant so long as they were satisfied that within any of the periods specified in the indictment the applicant “carnally knew” the complainant. Put that way, the acts of intercourse described in the generalized evidence were available, not merely as going to prove any of the offences charged against the applicant but as the offences themselves. In respect of each count, the jury were not required to direct their attention to any particular occasion and to satisfy themselves, beyond reasonable doubt, that there was such an occasion and that it occurred within the period specified in the count. There was a real likelihood that they would convict the applicant on the basis that since acts of carnal knowledge were frequent, an act must have occurred during each of the periods mentioned in the indictment.

In those circumstances it is inappropriate to apply the proviso. There should be special leave to appeal and the appeal allowed. There should be an order for a new trial though the Crown will have to consider whether, in all the circumstances, there can be a new trial which will not miscarry as this trial miscarried.

130. Dawson J considered that the three counts on the indictment were framed in a permissible way and that each charged only one offence and gave rise to no duplicity for that reason. Had the evidence adduced at trial revealed only one offence in each of the three years in question, his Honour was satisfied there could have been no complaint about the form of the indictment. He observed, however, that although each count charged only one offence of carnal knowledge, the evidence revealed multiple instances of intercourse with nothing to identify any one of them as the offence with which the applicant was charged in any particular count.

131. His Honour went on to say at 273:

No application was made that the prosecution be put to its election for the purpose of identifying the specific occasions upon which it relied as constituting the offences in question, nor did the trial judge put the prosecution to its election. Instead, he left it to the jury “to determine … whether on the three occasions cited in the indictment, the accused did have carnal knowledge of his daughter … ”. The indictment, of course, did nothing to specify which of the multiple acts of intercourse were those alleged to constitute the offences with which the applicant was charged. The applicant was convicted upon all three counts.

132. He concluded that what he described as the “latent ambiguity” in each of the three counts required correction if the applicant was to have a fair trial.

133. It was only in the judgment of Dawson J that the issue of unanimity was discussed. In that regard his Honour said at 276:

The case having proceeded as it did, it is theoretically possible that individual jurors identified different occasions as constituting the relevant offences so that there was no unanimity in relation to their verdict. That, of course, would be unacceptable, but it is more likely that the jury reached their verdict without identifying any particular occasions. Indeed, that is virtually inevitable because no means were afforded the jury whereby they could identify specific occasions. As I have indicated, such a result is tantamount to their having convicted the applicant, not in relation to identifiable offences, but only upon the basis of a general disposition on his part to commit offences of the kind charged.

134. In the joint judgment of Gaudron and McHugh JJ, their Honours regarded the issue raised by the appeal as a case where the prosecution led evidence from the applicant’s daughter of multiple acts of intercourse answering the description of the three offences of carnal knowledge on the indictment. This was said to be similar to a count on an indictment which is bad for latent duplicity and productive of prejudice for that reason.

135. Their Honours went on to say at 286:

The question of prejudice goes somewhat deeper than the question whether there was an effective denial of an opportunity to call alibi evidence. The evidence of a number of offences said to have been repeated at two-monthly intervals over a period of one year (which period might fall anywhere within a period of almost three years) had the same practical effect that was noted by Evatt J. in relation to the course proposed in Johnson v. Miller . Effectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed. Additionally, by reason that the offences were neither particularized nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance.

[30] The rationale for the giving of an Azzopardi direction is to ensure that an adverse inference is not drawn against an accused in a criminal trial because they exercise their right not to give evidence. In Azzopardi v The Queen, Gaudron, Gummow, Kirby and Hayne JJ, stated that in an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. They said:

[i]t follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make‑weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.

218. After referring to the High Court decision in Azzopardi and the seminal passage at [51] of the judgment, as the Court saw it there was a need to discern whether, objectively, there was or was not a forensic advantage as trial counsel saw it, in not seeking an Azzopardi direction. The Court was of the view that if a forensic advantage is able to be discerned then it will be assumed that it was that which motivated counsel to ask the judge not to give the direction.

219. In my view, the same analysis is available here. It is not an analysis which is novel. In considering the application of Rule 4 it is not infrequently the case that the Court has sought to discern why counsel might have failed to seek an Azzopardi direction in those cases where no explanation is forthcoming.

220. As the Crown urged in its submissions, the basis upon which it was submitted that the trial judge was obliged to give an Azzopardi direction needs to be considered in the context of the way the trial was conducted on behalf of the applicant by his trial counsel. The Crown, in its submissions, has sought to identify, objectively, a rational forensic advantage that might have been perceived by trial counsel in not seeking an Azzopardi direction.

221. In the absence of an explanation from trial counsel that she saw no forensic advantage in not seeking an Azzopardi direction but failed to do so through error or oversight, I am disposed to accept that it was a rational choice of trial counsel not to seek a direction and, in those circumstances, that it is not open to the applicant now to complain that there has been a substantial miscarriage of justice.

222. Given the extensive discussion this ground of appeal has attracted, I would grant leave under Rule 4 but dismiss the ground of appeal.

The third ground of appeal: The verdict of the jury was unreasonable and cannot be supported by the evidence.

223. The principles to be applied by an appellate court when considering a ground of appeal that alleges an unreasonable verdict which cannot be supported by the evidence are settled. They have been most recently restated in Obierzynski v R [2019] NSWCCA 103:

[59 When considering whether a verdict was unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for this Court is “whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: Baden-Clay at [66]; see also M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The burden of persuasion that appellate interference is required rests with the person who impugns the verdict: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 370.

[60] In performing this “independent assessment” of the evidence, this Court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”: M v The Queen at [7]. As the High Court said in Baden-Clay:

“[65] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. …

[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.”

[61] See similarly Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; MFA at 624 and Atai v R [2014] NSWCCA 210 at [134].

224. Ms Bashir identified five points which, in her submission, made it “fundamentally improbable” that the indecent assault which DE described to her parents and to police in the JIRT interview occurred on either the first occasion she slept over at the applicant’s house (being 11 March 2016), the date which the Crown submitted was more probably than not the date when the assault occurred, or at any other time.

225. The first, second and fourth points are allied. It was submitted that for the child to have returned on repeated occasions for sleepovers after 11 March 2016, and on some occasions to have actively sought permission to sleepover, raises a serious doubt as to whether she was assaulted on the first sleepover or on any subsequent occasion. It was further submitted that the sheer improbability of the applicant assaulting her in the manner alleged, of itself justified the jury having a reasonable doubt as to guilt.

226. As the Crown submitted, and I accept, what has to be factored into that analysis is that DE had a very close connection with the applicant’s son and apparently enjoyed sleeping over at his home. The Crown submitted that DE’s obvious pleasure and enjoyment, as a very young child, at the opportunity to sleep at her friend’s house, could have overridden any feelings of unease when sleeping in her friend’s bedroom, even despite an awareness that the applicant rubbing his fingers on her vagina was wrong.

227. The third and fifth points raised by Ms Bashir are also allied. They focused on what was said to be the improbability of the applicant assaulting DE with the risk that the child would complain, putting to an end the relationship between DE and his son. Proceeding on what I regard as the reasonable assumption that the applicant assaulted DE believing she was asleep, I do not regard his choice of his son’s bedroom as the place to assault her, or the potential consequences were she to have awoken and screamed out when she was touched, or the risk that she may have complained of the assault the following morning, as impacting on the reliability of DE’s evidence or rendering the circumstances in which she was assaulted so improbable such as to undermine the jury’s verdict.

228. Ms Bashir also submitted that DE’s failure to be able to give a cohesive account of the circumstances contextual to the occasion that she described being touched by the applicant; significant inconsistencies on the dates of the sleepovers, and the seven occasions when it was confirmed DE had slept over at the applicant’s house and where, according to the applicant wife, there was no possibility of the applicant ever being alone with DE in her son’s room, rendered her evidence so fundamentally unreliable that the jury could not rationally convict upon it.

229. In my view, it was open to the jury to give preponderant weight to DE’s evidence when reasoning to the conclusion, and beyond reasonable doubt, that the applicant re-entered his son’s bedroom and assaulted her without his wife’s knowledge, just as it is open to this Court to take that approach in undertaking its independent assessment of the child’s evidence in determining whether the third ground of appeal is made out.

230. In the context of this trial, the inconsistencies in the child’s evidence with respect to the circumstances in which the assault occurred, including the particular Friday night sleepover when the assault occurred and the events contextual to it, were issues the jury was alive to. They were dealt with extensively in cross-examination and referred to at length in defence counsel’s address in support of the submission that the level of vagueness and uncertainty in DE’s evidence generally should raise a reasonable doubt that the incident she described to her parents and police occurred at all.

231. In Cabot at [59], Leeming J made the following observations about the issue of reliability generally:

In almost every case which depends on testimonial evidence, witnesses will give inconsistent evidence. That is especially so in any case where the witness originally makes a complaint and later is asked to give evidence about it and is cross-examined about it. Material inconsistencies can of course detract from the probative value of a witness’s testimony. However, the mere fact of inconsistent evidence does not of itself entail that a verdict cannot be sustained. Indeed, if the witness is capable of a mechanically perfect reproduction of evidence originally given in an interview or a statement months or years before, the appropriate inference may be that the witness has learned his or her lines but has little actual recollection of what occurred.

232. As with Cabot, this is a case where I am satisfied that, in discharge of their function and under direction from the trial judge, the jury must be taken to have considered the inconsistencies in DE’s evidence which had been drawn to their attention in considering whether the Crown had established the elements of the offence charged to the criminal standard. Consistent with the approach an appellate court is obliged to take in assessing the sufficiency and quality of the evidence in determining whether the verdict of a jury is unreasonable, due consideration must also be given to the advantage the jury had in assessing the sufficiency and the quality of DE’s evidence for itself (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494-5 and SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 at [13].

233. I am not of the view that DE’s evidence generally, or issues as to her reliability as a child witness (such as they were), detracted from the quality and sufficiency of her evidence that was she indecently assaulted in the manner that she described to her parents and interviewing police, or in the circumstances in which she said that assault occurred, namely when the applicant returned to his son’s bedroom after he had settled his son to sleep, at a time when she gave the appearance of being asleep. Neither does her account suggest the assault is so inherently improbable that a jury should have rejected it.

234. DE’s account to police when she was aged 6, inclusive of the relatively matter of fact way in which she described the assault, including, in my view, her apparent lack of comprehension of the significance of the applicant’s use of two fingers in a circular motion when touching her vagina, have all the hallmarks of an incident remembered and not imagined. It is those features of her evidence, and not the contextual details or events in the sleepover itself, that, in my assessment, reflect her honesty and reliability as a witness, an assessment the jury were directed they were obliged to make in the context of the issues that had been ventilated fully for their consideration in the case advanced on the applicant’s behalf. I am not satisfied that there is any reasonable possibility that either DE was “making up” her evidence of being indecently assaulted or that her evidence was not a “genuine memory” of an actual event or that she was simply wrong and the act of indecent assault did not happen at all.

235. After a full review of all of the evidence, and after what I am satisfied are both understandable mistakes the child made as to events of the night of the assault (including how she played with her friends and what they watched on the television) and the likelihood of her conflation of these events across various of the sleepovers during the timeframe particularised on the indictment, I am not persuaded that there is a significant possibility that the applicant was wrongly convicted (see M at 494; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [56])

236. The third ground of appeal is not made out.

Orders

237. Accordingly, the orders I propose are:

1. Insofar as concerns Ground 1, leave to appeal is granted.

2. Insofar as concerns Ground 2, leave to appeal is granted.

3. Insofar as concerns Ground 3, leave to appeal is granted.

4. The appeal against conviction is dismissed.

5. The sentence imposed in the District Court on 5 July 2019 is confirmed subject to the following variation: the sentence of 2 years and 10 months’ imprisonment with a non-parole period of 1 year and 5 months is to commence from 16 December 2019. The non-parole period will expire on 15 May 2021. The balance of term will expire on 15 October 2022.

238. ADAMSON J: I have had the benefit of reading Fullerton J’s reasons in draft and am indebted to her Honour’s summary of the trial and the appeal. I agree with her Honour’s reasons with respect to ground 1.

Ground 3: alleged unreasonable verdict

239. I agree with the reasons given by Fullerton J with respect to ground 3 and wish to add the following further reasons of my own with respect to that ground.

240. I confirm that I have considered the evidence at the trial, including the appellant’s recorded interview. At the Crown’s request I have not only read the transcript of the complainant’s interview and her evidence but I have also viewed the footage of the interview of the complainant and her evidence: cf. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [27]-[35] (French CJ, Gummow and Kiefel JJ). I discern nothing about the complainant’s evidence, taken by itself or in the context of the whole Crown case, which leads me to entertain a doubt about the appellant’s guilt, much less one that the jury might not have been able to resolve, having regard to their advantage of seeing and hearing the witnesses. The most significant evidence in the trial was the complainant’s evidence and the denial by the appellant in the recorded interview, in respect of which the jury did not have an advantage as this evidence was pre-recorded. I am satisfied that on the whole of the evidence it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. Accordingly, ground 3 has not been made out.

Ground 2: alleged failure to give an Azzopardi direction

241. I respectfully disagree with her Honour’s reasons with respect to ground 2 and, accordingly, with her Honour’s orders. The reasons for my view, which is a dissenting one, are as follows.

242. Ground 2 raises the extent to which the jury should be directed regarding an accused’s choice not to give evidence at trial. The starting point is that the right to silence and the presumption of innocence are fundamental principles in a criminal trial. It was common ground that the trial judge directed the jury correctly as to the presumption of innocence and the onus of proof. The issue was whether her Honour was required to give a further direction, known as the “Azzopardi direction” (after Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25) (Azzopardi)). In the present case no issue arose which attracted the principles set out in Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 or RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3. Accordingly, it is not necessary to consider these two authorities. Nor did any issue arise concerning the qualified prohibition in s 20(2) of the Evidence Act 1995 (NSW) on any comment being made on the failure of the accused to give evidence.

Azzopardi v The Queen

243. In Azzopardi, the majority of four judges (Gaudron, Gummow, Kirby and Hayne JJ) said at [51]:

“In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.”

[Emphasis added.]

244. As is apparent from this extract, there are four aspects to the direction: namely, if the accused chooses not to give evidence, the accused’s silence:

1. is not evidence against the accused;

2. does not constitute an admission by the accused;

3. may not be used to fill gaps in the evidence tendered by the prosecution; and

4. may not be used as a “make-weight” in assessing whether the prosecution has proved its case beyond reasonable doubt.

245. The statement in the passage extracted above from Azzopardi that “it will almost always be desirable” to give such a direction has resulted in consideration being given to the circumstances in which the direction is required to be given. Before turning to the circumstances of the present case, I propose to address decisions of this Court in which the Azzopardi direction has been considered.

R v Wilson

246. In R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20(Wilson), the appellant was acquitted of murder but found guilty of the manslaughter of a two-year-old boy who was in her foster care. The Crown case was circumstantial. The injuries causing death indicated that the child had been shaken shortly before death and that only the appellant was present at the relevant time. The appellant gave a version to police in an Electronically Recorded Interview of a Suspected Person (ERISP) to the effect that the deceased’s five-year-old sister was in a different room at the relevant time. Her ERISP was tendered by the Crown. The location of the deceased’s sister was relied on as an admission, as it tended to exclude the sister as the person responsible for the shaking. The trial judge gave directions in accordance with (1) and (2) above but not (3) or (4).

247. It was argued in Wilson that the “gap” in the Crown case was the absence of direct evidence or admission that the child had been shaken or that it was the appellant who had shaken him. It was further submitted that the omission of directions (3) and (4) caused a miscarriage of justice because the giving of such directions would have ensured that the jury did not treat the appellant’s silence in court as an admission that she was the one who had shaken the child. The Court held that it was not necessary that the trial judge give directions (3) and (4) as the jury had been directed, first, that no inference could be drawn against the appellant for not having given evidence and, secondly, that she had not admitted or confessed anything by declining to give evidence.

248. This Court in Wilson regarded it as significant that there was no complaint at trial about the lack of directions in accordance with (3) and (4). Their Honours (Hunt AJA, Grove and James JJ agreeing) referred to rule 4 of the Criminal Appeal Rules which relevantly provides:

“Exclusion of certain matters as grounds for appeal etc

No direction, omission to direct … given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”

249. The Court said, at [20], that leave to rely on an error where no point was taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. It also referred to the “more onerous test” of whether there has been a departure from the requirements of the law that goes to the “root of the proceedings”. Their Honours cited Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 in support of the proposition that there is a miscarriage of justice where, by reason of the error made, the accused may have lost a chance fairly open to him of being acquitted. The Court in Wilson refused leave under rule 4 to rely on the ground.

R v Graham

250. In R v Graham [2005] NSWCCA 127 (Graham), the appellant was convicted of a single count of knowingly taking part in the supply of a prohibited drug, heroin. The issue at trial was whether the appellant knew that the relevant package contained a prohibited drug. The appellant participated in an ERISP in which she denied any knowledge of the presence of drugs in the parcel but gave inconsistent details about its collection. The Crown tendered the ERISP. At the close of the Crown case, the appellant’s trial counsel said, in the presence of the jury:

“The accused will be relying on her record of interview and other evidence in the case as far as her case is concerned.”

251. The trial judge then said, as reported at [17] of this Court’s judgment in Graham:

“I will make this clear to you in my summing up to you, but he [appellant’s trial counsel] having just made that remark, I will make the point now, that it is not for the accused to prove anything in the case. It is for the Crown to prove the case, to satisfy what I will identify to you as the essential ingredients of the case beyond reasonable doubt. The record of interview has been played for you and that is evidence in the case which you take into account in the same way as you evaluate any other evidence that you have heard.”

[Emphasis added.]

252. The appellant neither gave, nor adduced, any evidence in her case. This Court (Grove J, Howie and Hall JJ agreeing) dismissed the appeal against conviction. Its reasons were as follows:

“[18]    The final sentence of his Honour’s remarks did not qualify the content of the interview by referring to its hearsay nature or the absence of subjection to cross examination. To that extent, it was more favourable to the appellant than an application of her strict entitlement.

[19]   However, in the course of his summing up, the learned trial judge did not return to the absence of testimony from, or evidence on behalf of the appellant. This was not the subject of complaint or application by counsel appearing at trial. An affidavit by counsel states that the absence of seeking directions concerning the fact that the appellant did not give evidence was an oversight and not the result of a tactical decision.

…

[25]    In the present case the appellant had before the jury a lengthy videotaped interview in which she emphatically denied the issue contended against her by the Crown that she had knowledge of the presence of drugs in the package. As I have pointed out it was available to the jury without limitation as to its quality. Given the narrow issue of knowledge, the applicant already had the advantage of the invitation to treat her denial in the interview as evidence in the same category as the evidence in the case otherwise. In those circumstances I am unpersuaded that the absence of direction of the type now sought led to miscarriage of justice.”

[Emphasis added.]

Johnston v R

253. In Johnston v R [2007] NSWCCA 133, the appellant was convicted of robbery in company inflicting grievous bodily harm. He participated in an ERISP in which he denied the assault or robbery which was tendered in the Crown case. The Crown at trial contended that the appellant’s lies in the ERISP amounted to a consciousness of guilt.

254. The sole ground of appeal was that no direction had been given concerning the fact that the appellant had not given evidence at trial. It was common ground that no such direction had been given, although it had been anticipated in the address given by appellant’s trial counsel as follows:

“Mr Johnston has come before you and has told you that he is not guilty of this charge. You have seen his evidence in the form of the ERISP and his Honour will give you directions about the right to silence and the right that we all share of being under questioning by police officers (sic) none of us have to say anything. But Mr Johnston, having been properly cautioned, chose to give the police his version of events and you are to assess what he told the police officers as you do any other witness. Although he has that right, once he gave that right up he is to be assessed like anyone else and I would suggest to you that his demeanour on that tape was of a calm, sensible, hardworking young man who was telling the truth.”

255. This Court (McClellan CJ at CL, Hulme and Hislop JJ agreeing) was satisfied that the omission was an oversight by the trial judge, the prosecutor and defence counsel and that the failure of the appellant’s trial counsel to raise it was not a tactical decision. McClellan CJ at CL said, at [13]:

“… It has been recognised, as in my opinion, must be plain, that most people would assume that if a person who has been accused of a crime remains silent it is because they cannot adequately explain the situation. Although the ordinary person may not conclude from the mere fact of an accused’s person’s silence that he or she is guilty, if there is evidence indicating that an accused may have committed the crime a failure to respond would make it, at least, more likely that a person would conclude that the accused committed the crime.”

256. This Court found that the need for an Azzopardi direction “became undoubted” in circumstances where the Crown relied on lies in the ERISP as a consciousness of guilt: [17]. Accordingly, leave to raise the issue was granted, the appeal allowed, the conviction quashed and a new trial ordered.

Restricted Judgment [2019]

257. In Restricted Judgment [2019] NSWCCA 153: [111]-[118] (Restricted Judgment [2019]), this Court overturned the convictions for murder of both appellants on the basis that the trial judge had failed to give directions in accordance with (3) and (4) of the Azzopardi direction. In that case, the directions were held to be necessary because of the following four factors:

1. appellant J, who was a co-accused, had given evidence in the joint trial thereby highlighting the circumstance that appellant W could have given evidence;

2. the trial judge had directed the jury that it could use the evidence of appellant W’s threats, if accepted, as evidence of his consciousness of his guilt of one or both of the offences with which he was charged. The giving of a full Azzopardi direction would have ensured that the jury did not use appellant W’s absence from the witness box as a consciousness of guilt;

3. there was no evidence before the jury of ERISPs in which appellant W denied the Crown’s allegations; and

4. although, as the Crown contended, a direction about appellant W’s silence in court would have highlighted the disparity between his silence and appellant J’s decision to give evidence, the disparity would already have been obvious to the jury and should have led to a full Azzopardi direction being given to protect appellant W.

The present case

258. The present case is to be distinguished from Wilson, Graham, Johnston and Restricted Judgment [2019]. Unlike in Restricted Judgment [2019], there was no disparity between the position of the appellant and that of a co-accused to address as the appellant was the sole accused. Unlike in Wilson, the Crown case was not circumstantial. As in Wilson, Graham and Johnston, the appellant denied his guilt in an ERISP which was tendered by the Crown: cf. Restricted Judgment [2019]. In the present case the Crown did not rely on the appellant’s answers in the recorded interview as amounting to a consciousness of guilt (as it did in Johnston) or as admissions (as in Wilson). As in Johnston, no aspect of the Azzopardi direction was given in the present case, which is to be compared with Graham, Wilson and Restricted Judgment [2019] where some variant of Azzopardi which fell short of the full direction was given.

259. The cases in which it will be necessary to give the full Azzopardi direction are not to be categorised by reference to individual factors. Ultimately, the question whether such a ground is made out is to be answered by reference to the directions actually given, the circumstances of the case and the conduct of counsel at the trial: Thi Quyen Le v The Queen [2016] VSCA 100; (2016) 308 FLR 486 at [36] (Weinberg AP and Redlich JA).

260. In the present case, both the appellant and the complainant gave versions which had been recorded at a time which was broadly contemporaneous with the first complaint about the alleged offending conduct.

261. The complainant was interviewed by police on 25 July 2017. The film of the interview was played to the jury and a transcript of the interview was MFI 2. The diagrams which the complainant drew were marked for identification. The complainant was cross-examined on 14 March 2018. Her cross-examination was filmed. The transcript of her cross-examination was MFI 4.

262. The trial commenced on 8 October 2018. The complainant’s version to police became her evidence in chief and was played to the jury. MFI 2 was provided to the jury. The diagrams which the complainant had drawn in the interview were tendered. The cross-examination of the complainant was also played to the jury. Documents which had been shown to the complainant in cross-examination were tendered. The complainant’s mother and father each gave evidence. Detective Senior Constable Hall was also called in the Crown case to prove the complainant’s birth date, the arrest and charging of the appellant on 25 July 2017 and his recorded interview later that day. The Crown tendered the ERISP of the appellant in its case, although it did not rely on any statements as amounting to either express admissions or a consciousness of guilt. The ERISP was played to the jury and a copy of the transcript was marked for identification and provided to the jury. The Crown case closed on 10 October 2018.

263. On 10 October 2018, the appellant’s wife gave evidence and was cross-examined. The accused’s case closed. The proceedings were adjourned to 11 October 2018 for addresses. The addresses concluded before the luncheon adjournment on 11 October 2018 and the summing up concluded before 3pm, at which time the jury was sent out to consider its verdict.

264. It can be seen from this narrative that the jury saw and heard recordings of both the complainant and the accused being interviewed. They also saw and heard a recording of the complainant being cross-examined at a prior date. The trial was one of “word against word” since the complainant gave evidence that she had been sexually assaulted by the appellant and the appellant denied it. Despite the similarities (the complainant and the appellant had each given versions which had been recorded on a prior date), there was a stark difference between them in that the complainant was subject to cross-examination but the appellant was not.

265. It is important to examine the detail of the directions given by the trial judge on the question. Her Honour (Day 1, 11.10.19, SU, page 2), when referring to the evidence in the trial, said:

“You will have the typed [sic, taped] interview with the accused which you have seen and is the exhibit in this trial, and you have a transcript as an aide of that video record of interview that was conducted with him on 25 July. … Now, all of this material will be with you when you retire to deliberate in a jury room, and there will be facilities there for you to play the interview that became an exhibit with the accused.”

266. Her Honour (Day 1, 11.10.19, SU, pages 11-12) also said:

“Now, another essential feature of our system of criminal justice is the subject of the next direction I am going to give you, and it is this, that [the applicant], as the accused in this trial, is presumed to be innocent. The presumption of innocence means that all persons tried in this Court are presumed to be innocent unless and until they are proved by the Crown to be guilty beyond reasonable doubt.

Now, that leads me to my next direction which relates to the onus or burden of proof. The job of proving guilt beyond reasonable doubt rests on the accuser in our system of criminal justice, and in our system the accuser is the Crown through the services provided by the Office of the Director of Public Prosecutions. Mr Crown, as he has been known during the course of the trial, is a barrister who appears on behalf of the Office of the Director of Public Prosecution, and he has assumed the job in this trial as the prosecutor does in any criminal trial of proving the guilt of the accused. It is precisely because the Crown bears the onus of proof that there is no burden of proof on the accused to prove that he is not guilty. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before you.

Here, members of the jury, the accused gave a version of the events. He took part in a recorded interview with investigating police. And, of course, you are aware that he denied the offending. The accused is entitled to rely upon that account and ask you to take that into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused’s guilt must satisfy you that it is a version of events that could not reasonably be true.

Members of the jury, during the course of the trial the accused has called evidence. The fact that the accused has called evidence before you, namely the testimony of his wife … does not alter the burden of proof. The accused does not to prove that her [the applicant’s wife’s] version is true. Members of the jury, the fundamental proposition is that it is for the Crown to prove the guilt of the accused.”

267. The trial judge gave the jury a document (MFI 3) which set out jury directions. Of present relevance, the directions included the following:

“The Crown has the obligation of proving the guilt of the accused based upon the evidence placed before the jury. This obligation continues throughout the whole of the trial. The accused is not required to prove any fact or to meet any argument or submission made by the Crown. The accused is to be presumed innocent of any wrongdoing unless and until a jury finds his or her guilt proved by the evidence in accordance with the law.”

268. Although the trial judge directed the jury as to the presumption of innocence and the onus of proof, her Honour did not direct the jury as to any of components (1)-(4) in the Azzopardi direction set out above.

269. There is no evidence in the present case as to whether the appellant’s counsel chose, as a tactical decision, not to ask for such a direction, or whether she, through inadvertence or oversight, simply failed to ask for it. Nor is there any indication whether the trial judge decided that it would not be in the interests of the appellant to give the direction or simply forgot to give the direction.

270. It is conceivable that the appellant’s trial counsel did not ask for the direction because she did not want to emphasise to the jury that the appellant had a right to give evidence which he chose not to exercise (and a right to silence, which he did choose to exercise). However, I consider that the pre-trial filming of the complainant’s version, her adoption of this version in evidence and her cross-examination, when compared with the filming of the appellant’s recorded interview with police, would have been more than sufficient to alert the jury to the fact that the appellant, by choosing not to give evidence at the trial, had not rendered himself susceptible to cross-examination. Further, the fact that the appellant was in court in the dock and that the complainant’s parents and the appellant’s wife gave evidence in court and were cross-examined would have served to highlight the appellant’s in-court silence.

271. These objective matters make it less likely to have been a tactical decision by the appellant’s trial counsel. In any event, evidence from trial counsel as to tactical choices is not determinative and may be of little or no assistance: Richards [2002] NSWCCA 38; (2002) 128 A Crim R 204 at 209-210 (Levine J, Hodgson JA and Howie J agreeing). I am not persuaded that there was any objective forensic advantage to the appellant in the Azzopardi direction not having been given. Although the giving of the Azzopardi direction would have highlighted the appellant’s undoubted right to give evidence, it would have bound the jury not to take the appellant’s choice not to give evidence into account against him.

272. I consider that, in these circumstances, there was such a substantial risk that the jury would have assumed that the appellant’s silence in court could be taken into account against him because if he were innocent, he would have given evidence, that it was incumbent on the trial judge to give the Azzopardi direction. This is not a case where it could be said that there was no real likelihood that the jury would misuse the in-court silence of the accused: cf. Nguyen v R [2017] NSWCCA 4; (2017) 264 A Crim R 405 at [71] (Basten JA). Her Honour’s directions about the presumption of innocence and onus of proof were not, in my view, sufficient to direct the jurors that they were prohibited from inferring guilt from in-court silence.

273. I consider that the failure to give such a direction occasioned a miscarriage of justice. By reason of the omission, the jury might have used the appellant’s silence either as an indication that they could more readily accept the complainant’s evidence or as an additional factor which satisfied them of the appellant’s guilt beyond reasonable doubt. Both these inferences were erroneous. Had the jury been properly directed, the jury would have appreciated that such reasoning was prohibited and would have been bound to act in accordance with the direction. Accordingly, I am persuaded that the trial judge’s failure to direct the jury as to the appellant’s in-court silence caused him to lose a chance, which was fairly open to him, of being acquitted. In these circumstances, I am persuaded that leave pursuant to rule 4 ought be granted and the appeal allowed. By reason of my view as to ground 3, I consider that this Court ought order a re-trial.

Proposed orders

274. In relation to ground 2, I propose the following orders:

1. Grant leave pursuant to rule 4 of the Criminal Appeal Rules to rely on ground 2.

2. Allow the appeal.

3. Quash the conviction.

4. Order a new trial.

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Decision last updated: 19 December 2019