Jurd v The Queen

[2020] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Jurd v R [2020] NSWCCA 91
Hearing dates:	18 November 2019
Date of orders:	06 May 2020
Decision date:	06 May 2020
Before:	Hoeben CJ at CL at [1]; Price J at [2]; Campbell J at [224]
Decision:	(1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – Appeal against conviction – where evidence of de facto relationship between prosecution witness and applicant – where prosecution witness completes evidence before the jury without being made aware of a right to object under s 18 of the Evidence Act – where judge raises s 18 the next day and recalls the witness – voir dire conducted – where witness says she would have objected if informed of the right to object – where judge determines the evidence was admissible – procedural unfairness to the witness – whether error could be corrected retrospectively – whether judge made the witness aware of the effect of s 18 on the voir dire – application of proviso – whether substantial miscarriage of justice by wrongful admission of evidence – forensic choice of counsel – whether different result would have been reached if s 18 raised when witness gave evidence before the jury – no procedural unfairness to applicant – whether Court of Criminal Appeal satisfied that the guilt of the applicant had been proved to the criminal standard.   SENTENCING – whether sentence manifestly excessive – no challenge to assessment of objective seriousness of offences or to the applicant’s subjective case.
Legislation Cited:	Crimes Act 1900 (NSW) s 61M Criminal Appeal Act 1912 (NSW) s 6(1) Evidence Act 1995 (NSW) ss 18, 38, 65
Cases Cited:	De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; 74 ALJR 1538; 175 ALR 315; 115 A Crim R 558 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; 89 ALJR 776; 323 ALR 33; 253 A Crim R 126 Fletcher v R (2015) 45 VR 634; [2015] VSCA 146 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; 85 ALJR 195; 272 ALR 465; 204 A Crim R 434; 78 ATR 11 Hofer v R [2019] NSWCCA 244 James v The Queen (2014) 253 CLR 475; [2014] HCA 6; 88 ALJR 427; 306 ALR 1; 236 A Crim R 402 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; 92 ALJR 305; 352 ALR 1; 271 A Crim R 245 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; 79 ALJR 1048; 215 ALR 213 McKinnin v The Queen [2019] VSCA 114 Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 Mulvihill v R [2016] NSWCCA 259 OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10; 93 ALJR 438; 364 ALR 573 R v A2; R v KM; R v Raziri (No 4) [2015] NSWSC 1306; 253 A Crim R 574 R v B.O. [2012] NSWDC 195; 15 DCLR(NSW) 317 R v Nakash [2017] NSWCCA 196 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; 76 ALJR 1579; 193 ALR 7; 133 A Crim R 574 Tran v R [2017] NSWCCA 93 Tran v R [2018] NSWCCA 145 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; 80 ALJR 444; 223 ALR 662; 158 A Crim R 133
Texts Cited:	Evidence Bill 1994 (NSW) New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 May 1995
Category:	Principal judgment
Parties:	Kingsley James Jurd (Applicant) Regina (Respondent)
Representation:	Counsel: Ms S Kluss (Applicant) Mr E Balodis (Respondent)   Solicitors: R. Hill (Applicant) Solicitor for the Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2017/321745
Publication restriction:	Statutory prohibition on publication in relation to identities of the complainant under s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 16 October 2018 (Conviction) 12 December 2018 (Sentence) Before: Bozic SC DCJ File Number(s): 2017/321745

Judgment

1. HOEBEN CJ at CL: I agree with Price J and the orders which he proposes. I also agree with the supplementary remarks of Campbell J.

2. PRICE J: Following a trial before a jury in the District Court at Gosford, the applicant was found guilty and convicted of two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW), committed against the complainant (“ED”), then under the age of 16 years, namely 6 years, between the 13th day of October 2017 and 15th day of October 2017. He was sentenced by Bozic SC DCJ (“the judge”) to an aggregate term of imprisonment of 7 years commencing on 16 April 2018 and concluding on 15 April 2025 with a non-parole period of 4 years concluding on 15 April 2022.

3. The applicant seeks leave to appeal against his convictions on the sole ground that the judge erred in allowing the evidence of Ms Best, his partner, to be admitted contrary to s 18 of the Evidence Act 1995 (NSW). He also seeks leave to appeal against his sentence on the ground that it is manifestly excessive.

Relevant Statutory Provisions

4. The term “de facto partner” is defined in the Dictionary to the Evidence Act as follows:

11 References to de facto partners

(1)   A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person.

(2)   A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married.

(3)   In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case:

(a)   the duration of the relationship,

(b)   the nature and extent of their common residence,

(c)   the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(d)   the ownership, use and acquisition of their property,

(e)   the degree of mutual commitment to a shared life,

(f)   the care and support of children,

(g)   the reputation and public aspects of the relationship.

(4)   No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.

(5)   For the purposes of subclause (3), the following matters are irrelevant:

(a)   whether the persons are different sexes or the same sex,

(b)   whether either of the persons is legally married to someone else or in another de facto relationship.

5. Section 18 provides:

18   Compellability of spouses and others in criminal proceedings generally

(1)   This section applies only in a criminal proceeding.

(2)   A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:

(a)   to give evidence, or

(b)   to give evidence of a communication between the person and the defendant,

as a witness for the prosecution.

(3)   The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4)   If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5)   If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(6)   A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:

(a)   there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and

(b)   the nature and extent of that harm outweighs the desirability of having the evidence given.

(7)   Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:

(a)   the nature and gravity of the offence for which the defendant is being prosecuted,

(b)   the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,

(c)   whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,

(d)   the nature of the relationship between the defendant and the person,

(e)   whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

(8)   If an objection under this section has been determined, the prosecutor may not comment on:

(a)   the objection, or

(b)   the decision of the court in relation to the objection, or

(c)   the failure of the person to give evidence.

The conviction appeal

6. As the conviction appeal is confined to the admission of Ms Best’s evidence, it is unnecessary at this stage to summarise all of the evidence and the addresses of counsel during the trial.

7. It is sufficient to state that the trial concerned the events of 13 and 14 October 2017 when the applicant visited and stayed over at the house of his good friend, NH. It was the Crown case that the applicant, having consumed a substantial amount of alcohol, went to the bed of NH’s daughter, ED, and committed the two offences upon her.

8. The trial commenced on 8 October 2018 and the jury returned guilty verdicts on 16 October 2018.

9. On the second day of the trial, ED and NH gave evidence. Ms Best was called to give evidence on the morning of the third day (11 October 2018) in the presence of the jury. Neither the crown prosecutor nor the applicant’s counsel drew the judge’s attention to s 18 of the Evidence Act before or during Ms Best’s evidence.

Ms Best’s evidence before the jury

10. At the beginning of her testimony before the jury, Ms Best gave the following evidence in answer to questions from the crown prosecutor.

“Q. You, at October 2017, you were the partner of [the applicant]?

A. Yes.

Q. Are you still the partner of [the applicant]?

A. Yes.

Q. Is it the case that that relationship started in April 2017?

A. Yes.

Q. In September 2017, he moved in with you?

A. Sort of, yeah. Partly.

Q. Partly? Then do you recall an occasion where [the applicant] went – were you aware he had a friend called [NH]?

A. Yes.

Q. Had you met her?

A. Yes.”

11. Ms Best further told the jury that she knew the applicant’s friend, NH, and recalled that on 13 October 2017, the applicant had arranged to go to NH’s house. She said that she was going to go with the applicant but ended up having a “girls’ night” with her friends instead.

12. She said she was aware that the applicant was going to stay at NH’s house because “they always drank pretty heavily when they got together.” In the time that she had been in a relationship with the applicant, she was not aware of him having stayed the night at NH's house although they had visited NH together before.

13. Ms Best gave evidence that she got home at about 10:00 to 10:30pm on 13 October 2017, and the applicant got home at about 4:00am. She woke up when he got home, and he told her that he had come home because he had missed her. She could smell alcohol on him.

14. Some days later, the applicant told her, “the reason he’d come home early in the morning was because he had been startled awake by [NH] screaming, going off her head at him, he could make no sense of her, she wouldn’t calm down, she was yelling at him to, to get out of her house, and he had no choice but to come home…”

15. Ms Best gave evidence that the applicant tried to call NH the following morning, but she didn't answer. She was aware that NH had sent the applicant a text on Messenger saying, "'[w]hen I caught you molesting [ED]’, and then something to the effect of, ‘[m]y, my world came crumbling down. Never speak to me again’." Ms Best stated that the applicant was confused by the message. He had been very drunk, and he didn't know why NH would say that. The applicant told her that he may have “crashed in her bed” as he had “crashed” there before, meaning ED’s bed. He told her that he couldn't remember where he had slept because he was very drunk, but he determined that that would be the only reason for NH's reaction other than the fact that she was also drunk. Ms Best further said, "…he couldn't remember where he'd crashed, and when he woke up, he was startled and disoriented. She was screaming at him, he didn't recall exactly where he was when he woke up."

16. Ms Best gave evidence that she was pressured by police to give a statement. The judge allowed the crown prosecutor to cross-examine Ms Best pursuant to s 38 of the Evidence Act.

17. Ms Best was asked whether the applicant told her that it was NH who had directed him to ED’s bed, and she replied, "[h]e said to me that he had slept in - he was vague. He, he, he'd come to that conclusion." She then agreed that he may have told her that NH had directed him to ED’s bed, but “[h]e was not clear about any of it.”

18. It was put to her that in her statement she had recorded what the applicant had told her as follows: "I had quite a few drinks of red wine, as had NH, and she directed me to [ED’s] bed as a place to crash.” Ms Best stated that “[n]one of what I’ve said in that statement are my, my words. It’s the police paraphrasing an hour’s worth of talking with them and putting it into bullet points. In that statement - I was overwhelmed and in shock when I gave that statement. I couldn’t, I couldn’t recall word for word what he’d said in that conversation. That’s just the gist of it.” Ms Best didn’t know whether she had told the police that she couldn’t recall what the applicant said.

19. She said that the applicant had told her that he had previously crashed in ED's room and that ED had slept in the boys' room. Ms Best stated that the applicant wasn't sure if he had fallen asleep in ED’s bed, but he had come to the conclusion that, that must have happened and that ED “might” have been in bed with him. Ms Best denied lying to the court and lying to the police.

20. Ms Best agreed that when her statement was being taken, it took the form of being asked questions which she then answered. She said that she “spoke a lot and they paraphrased everything I'd said.” She agreed that she had been asked what the applicant had said, and her answers were written down. She agreed that she had read over her statement and had signed it. When it was put to her that she had been trying her best to tell police the truth, Ms Best replied, "[y]es, in a very overwhelming and, and total shock situation, over a conversation that I couldn't recall exactly how things were said."

21. Ms Best agreed that at the time she was giving her statement the applicant was being interviewed by police, so she had not spoken to him about what he told police at the time she gave her statement. However, she had spoken to him since.

22. Ms Best was referred to paragraph [9] of her statement, which read:

"We are in early stages of a relationship and noticed that after the Friday night when [the applicant] came home he seemed a bit preoccupied. It wasn't until about four or five days ago, I was at home with [the applicant] and he said words to the effect of 'I've been a bit preoccupied about a few things. It has nothing to do with you or me. It's about my friendship with [NH] and about what happened when I came home in the early hours of the morning.

I had quite a few drinks of red wine, as had [NH], and she directed me to [ED’s] bed as a place to crash. I have done this previously. I fell asleep in [ED’s] bed and I can remember being woken by [NH] going off her head, screaming, saying 'get out'. I was confused, dazed, and didn't understand what was going on, and the only choice I had was to leave. I think [ED] was in bed with me when I woke up."

23. Ms Best agreed that the paragraph was read correctly. She stated that she was unable to "directly quote him at that time at all" and maintained that, "[h]e says 'I think'. I say its words to, words to the effect of. I couldn't remember the exact words he'd used in that conversation." She agreed that ‘I think' referred to ‘I think [ED] was in bed with me.’ but she stated that it was an oversight that she did not mention anywhere in her statement that the applicant wasn't sure about where he had slept. She stated that she realised that she had got this part wrong when she read her statement on the Friday (before she gave evidence) - "it didn't sound right to me.”

24. She stated that she couldn’t remember when she read through it the first time “…it was just such a blur, that whole interview.” She agreed that what she had expressed in her statement was a positive assertion that he had slept in ED's bed because he had been directed there by NH.

25. Ms Best gave evidence that she had spoken to the applicant about what he told the police. She stated that “… [the applicant] doesn’t remember much of what he told police either.” She said that he was unable to give her the details of what he had told police because it was overwhelming for him but stated that "[w]e've talked about everything.”

26. Ms Best denied changing her evidence because she had realised that the evidence recorded in her statement did not accord with the applicant's version of events, but agreed with the suggestion that she didn't understand the significance of being particular about whether he knew or wasn't quite sure about where he had slept, adding that she was very confused at the time.

27. Ms Best stated that she continued to be in a relationship with the applicant. She denied being untruthful about what he had told her because she wanted to help him.

28. In cross-examination by the applicant’s counsel, Ms Best was asked why she felt the need to make a statement. Ms Best said that “[the police] wouldn’t tell me what he was being held for, what the – they wouldn’t tell me anything or let me see him unless I gave a statement.” She added, “I… felt very pressured. I wanted to see him.”

29. When asked by the applicant’s counsel whether she read through the statement, Ms Best said, “[y]es, I think they made me read through it before I signed” but that her “head was in a million different directions.” Ms Best agreed that her understanding at the time was that if she signed it, she would be able to see the applicant.

30. Ms Best told the court that that she rang the number on the subpoena to ask the prosecutor what was going to happen and to ask for a copy of her statement. She said that she received a copy of the statement on the Friday before the trial. She agreed that she read through it. When asked by the applicant’s counsel what she thought of it, she said, “…it didn’t sound right. It wasn’t… indicative of the conversation that I had with [the applicant]…” When asked what parts weren’t right, Ms Best said, “[j]ust the surety. He, he wasn’t sure of anything about where he’d crashed.”

31. In re-examination by the crown prosecutor, Ms Best was asked who was the police officer that had told her that she couldn’t see the applicant until she had given a statement. Ms Best said, “[t]here was a blonde one and a dark haired one, I’m pretty sure it was the dark haired one.”

32. Ms Best said that the police wouldn’t tell her what the applicant was charged with, though the signed statement nominated “[a]lleged assault.”

33. Ms Best confirmed that she had told the court everything where the applicant told her he had slept, that she hadn’t left anything out and that she didn’t feel pressured to say anything in the witness box.

The judge raises s 18 of the Evidence Act

34. On the following morning, the judge raised with the crown prosecutor s 18 of the EvidenceAct. The following discussion took place:

“HIS HONOUR: … There’s a note from the jury. Before I come to that, in relation to the evidence given yesterday by Ms Best, can I just – so there’s no misunderstanding – articulate the assumptions that I’ve made regarding her evidence. I have assumed that she was spoken to in conference by the Crown and given that she is a partner of [the applicant], was spoken to in conference by lawyers for [the applicant].

I have also assumed in the circumstances that she was expressly advised of her right to object to giving evidence. I have also assumed, having been expressly advised of that right, that she indicated that she did not object to giving evidence. I’ve made that assumption on the basis that nothing was raised at the time that she give evidence about any objection or need to advise her of her right under s 18 of the Evidence Act. I’ll just make that clear.

…

CROWN PROSECUTOR: She wasn’t conferenced by the Crown, and I don’t believe she was advised of s 18, but as I understand it – and I’ll just check the Criminal Procedure Act – provision 279 would apply I think, because it’s a prescribed sexual offence.

HIS HONOUR: Let me have a look at 279. We’ll come back to that…”

35. His Honour’s attention was then drawn to other matters that are not relevant to this appeal.

36. At a later stage, further discussion took place between the judge and counsel. The crown prosecutor argued that there wasn’t sufficient evidence that Ms Best was at that time the applicant’s de facto partner. Furthermore, as the evidence was before the jury, the issue could not be considered retrospectively. The crown prosecutor, at a later stage, did not press that argument, putting to the judge that s 18(4) “doesn’t appear to have a temporal limit in any way.”

37. The applicant’s counsel submitted that the jury should be discharged. The judge decided to re-call Ms Best to give evidence on a voir dire in the absence of the jury.

38. In further discussion between the judge and the crown prosecutor, the following exchange took place:

“CROWN PROSECUTOR: It’s probably prudent that she have legal advice independently prior to that.

HIS HONOUR: True.

CROWN PROSECUTOR: We’re just trying to arrange that now and hopefully that will happen while we do this witness. If it doesn’t, your Honour could still ask her questions about whether she’s a de facto in terms of the definition.”

39. Shortly before the judge recalled Ms Best, the discussions between the judge and the crown prosecutor included the following:

“CROWN PROSECUTOR: I’m not entirely sure where my instructing solicitor is.

HIS HONOUR: Yes. No, that’s all right, I’ll go off the bench for a moment. Can you just tell me a definition, the relevant definition for the purposes of s 18 is—

CROWN PROSECUTOR: It’s in the dictionary to the Evidence Act, in pt 2 of the dictionary, cl 11.

HIS HONOUR: All right.

CROWN PROSECUTOR: I understand that advice is just being now.

HIS HONOUR: All right, I’ll just go off the bench, and when we’re ready if you can just let the court officer know.”

40. Following a short adjournment, the crown prosecutor told the judge that Ms Best “had the advice in relation to the section.”

The voir dire

41. When Ms Best returned to give evidence on the voir dire the following exchange took place:

“HIS HONOUR: Can I just explain to you, it’s probably been explained to you, but why you’ve been asked to come back to give some evidence. As a result of something you said in your evidence about the fact that you and [the applicant] were partners at the present time, there’s an issue first of all as to whether you are in a de facto relationship with him, and I’ll ask you some questions about that. But if you are, you would be entitled to object to answering questions or giving evidence. Do you understand that?

A. Yes.

HIS HONOUR: Then if you’re a de facto and you did object to giving evidence, I would then have to make a decision as to whether or not, weighing up various things, I would require you to give evidence. Do you understand?

A. Yes.

HIS HONOUR: So the first issue is, before I ask you about whether you are in a de facto relationship and some questions about that, if you are, would you object – I know you’ve already given your evidence, but would you object to giving evidence?

A. Yes I would of, yes.”

42. Ms Best gave evidence in answer to further questions by the judge that she had been in a continuous relationship with the applicant since late March, early April 2017. They had started living at her home in September 2017. She stated that his clothes were in her wardrobe and his motorbike was at her house. The applicant would spend some nights at his parents’ house when she was at work and on the nights she was home he would spend the night at her house. He had no other address and all his belongings were at her house.

43. Ms Best said that she and the applicant had separate bank accounts. All the bills were in her name but the applicant contributed to the shopping and helped with the bills; but they did not officially own any property together.

44. Ms Best said that they did things as a couple: they went out to dinner, had weekends away and went to Bali on a holiday. She stated that the applicant helped to do the gardening. When they went out and saw new friends or family, they did so as a couple. She referred to him as her partner.

45. During voir dire examination by the crown prosecutor, Ms Best agreed that the applicant had moved down from Byron Bay in September 2017 and they then went to Bali. He had moved in two or three weeks prior to the Bali trip which was at the end of September, early October. Prior to that, she had been to Byron Bay to visit him on two occasions, and he had come down on one occasion. Between April and September 2017, there were three occasions when they were together in person; the last occasion on which the applicant had stayed at her house was in May 2018. Ms Best agreed that in May 2018 she told police that she was afraid to have the applicant in her house and around her children (aged 14 and 16), although she explained that was in an intoxicated state.

46. In relation to the applicant’s relationship with her children, Ms Best said:

“Well, he, he’s not been with us since May, but it was a normal, nice relationship. They, you know, they were a little resistive to a new man, but they were very accepting. He didn’t spend much time with them. They liked him.”

47. Ms Best agreed that the applicant was not raising her children. She stated that he had not had the time to develop that relationship. Ms Best said that she worked and paid the mortgage on her house. When she was at work the applicant slept over at his parents’ house. Her work shifts were all over the place. If she wasn’t home, then he would not be at the house.

48. Ms Best gave evidence that the applicant had been in custody since May and she was financially supporting herself. She visited him in custody once a week.

49. In answer to a question by the applicant’s counsel, Ms Best said that she spoke by telephone once a day or once every couple of days. It depended on whether the applicant could get on the phone.

50. When asked by the applicant’s counsel did the applicant, at the moment, have any clothing in her house, Ms Best replied that “everything” was at her home, his musical instruments, other possessions and a motorbike.

51. In answer to the judge’s question as to whether any harm could be caused to the relationship if she gave evidence against the applicant, Ms Best said “potentially.” She stated that giving evidence could potentially cause stress and strain to their relationship in the future, if her evidence impacted him in a negative way.

52. In further examination by the crown prosecutor, Ms Best agreed that she had spoken to the applicant about having received a subpoena to give evidence in the trial. She agreed that he was aware that she had given a statement. She agreed that he was still speaking to her and that they were friends.

53. In further examination by the applicant’s counsel, Ms Best was asked whether giving a statement to police had impacted on her. She replied, “[v]ery much so.” She had given the statement because police would not let her see the applicant unless she did. After making and signing the statement, police let her see the applicant.

54. At the conclusion of Ms Best’s evidence on the voir dire, the judge reserved judgment. On the following day, his Honour announced to the parties that he did not propose to exclude Ms Best’s evidence for the reasons that he would later give.

Judgment on the admissibility of Ms Best’s evidence

55. His Honour’s reasons on the admissibility of Ms Best’s evidence were delivered on 12 December 2018.

56. His Honour said that on the voir dire to determine the s 18 issue, Ms Best gave evidence that:

“…the relationship between her and [the applicant] had been in existence and without interruption since early 2017. Initially, the arrangement was that [the applicant] would stay with his parents and live between their home and Ms Best’s house. At some time in late 2017 [the applicant] had been living at Ms Best’s house. His clothes, his motorbike, his musical instruments were there. He spends nights there, other than when Ms Best is at work when he goes to his parents’ home.

While she owned the house and paid the mortgage and they have separate bank accounts, [the applicant] contributes to the day to day expenses such as food, water and electricity. Prior to going into custody in May 2018 they lived together as a couple. They went out together as a couple. They went on holidays as a couple and they presented to friends and family as a couple. Since he has been in custody they speak daily or every second day and she visits him weekly. She has two children aged 14 and 16. He does not raise them and has not had time to form a relationship with them. He has no financial interest in the house and he does not contribute to the mortgage repayments and he does not appear to have any significant role in relation to her two children.”

57. The judge concluded that:

“Notwithstanding the lack of a joint financial interest and/or obligations in relation to Ms Best’s house and the lack of any parental role in relation to her children, I have come to the conclusion that, as at the date that she gave her evidence[,] Ms Best was in a de facto relationship with [the applicant]. In my view, the relationship had the sufficient indicia of a de facto relationship. They lived together up until the date of his incarceration, they were in a committed relationship which they both viewed as a long-term relationship, they presented to the world as a couple, they did things as a couple, they shared everyday living expenses and since [the applicant’s] incarceration they have had daily or almost daily contact.”

58. The judge then turned to the issue of whether Ms Best objected to giving evidence. The judge said that “[u]pon having received appropriate advice, she gave evidence that she had been informed of her right to object and would have objected to giving evidence had she been informed of that right.” The judge accepted this evidence at face value.

59. Noting subsections (6) and (7) of s 18, which deal with the balancing exercise to be undertaken where a person does make an objection, the judge considered the likelihood of harm that might be caused to the relationship and whether the nature and extent of that harm outweighed the desirability of having the evidence given.

60. In considering the harm to Ms Best, his Honour said “she was clearly stressed and emotional about having to give evidence” but that “there [was] no evidence that there will be long terms effects of the stress.” In relation to the harm to her relationship with the applicant, his Honour said, “…that was asked and specifically answered by Ms Best in giving evidence on the voir dire. She gave evidence about the actual stress and strain on the relationship and potentially in the future and she said that, if anything she said in evidence was used in a negative way against [the applicant] ‘that might harm, that would affect our relationship in the future, I guess.’” The judge took into account that to date there had been no impact.

61. The judge then turned to the effect of Ms Best’s evidence and said:

“The oral evidence of Ms Best, if accepted, is important evidence in [the applicant’s] favour in that it is a far more equivocal explanation of the conversation. Her oral evidence was clearly inconsistent with what she told the police in her statement… [i]f her oral evidence was accepted it was capable of amounting to evidence that was said by [the applicant] was simply a rambling account that he was drunk and could not remember where he slept, other than that perhaps one of the places ‘may’ have been [ED’s] bed.”

62. The judge said that it was not that Ms Best’s evidence was as damaging as or more damaging to the applicant than her police statement. His Honour considered that if there were to be any harm to the relationship, that harm would flow in large measure as a result of the statement to police rather than her evidence, which throws doubt upon the reliability of that statement. The judge was further of the view, referring to R v B.O. [1] and R v A2; R v KM; R v Raziri (No 4), [2] that had he found that Ms Best was not compellable, her police statement would have been tendered pursuant to s 65 of the Evidence Act and that this would have arguably been more damaging to the case for the applicant than the oral evidence of Ms Best. In assessing the risk of harm to the relationship, his Honour took into account “that it may well be that the applicant would, in fact, be thankful for the fact that she gave oral evidence and view the giving of oral evidence as a positive rather than a negative factor.” His Honour further said that:

“While these considerations were not put to Ms Best on the voir dire, it may be that, upon closer examination, had the legal position concerning s 65 and the tender of the police statement been explained to her, her decision as to whether or not to object to giving evidence would not appear to be as straightforward as it might seem.”

1. [2012] NSWDC 195; 15 DCLR(NSW) 317.

2. [2015] NSWSC 1306; 253 A Crim R.

63. His Honour observed in regard to s 18(7) factors that this was a very serious offence under s 61M(2) and that the evidence was significant. It related to a purported admission that the applicant had “crashed” in ED’s bed. The inconsistency with this and the applicant’s interview with police was, on the Crown case, a matter which evinced a consciousness of guilt.

64. In relation to subsection (c), his Honour considered that the evidence of Ms Best had particular significance, because it was arguably an admission that the applicant was in ED’s bedroom.

65. In relation to s 18(6), the judge found that, “while the giving of the evidence is a cause of some significant emotional stress for Ms Best, there is nothing other than short-term harm” and that “the risk of harm to the relationship arising from Ms Best giving evidence is not great.”

66. Taking into account all the matters set out in s 18(7), the judge was “comfortably satisfied” that the nature and extent of any harm or potential harm did not outweigh the desirability of Ms Best giving evidence. The judge noted that had he not come to that conclusion, the jury would have been discharged.

Argument

67. The applicant complained that the assessment of whether Ms Best was required to give evidence should have been made before Ms Best testified before the jury and not at a later time as occurred in the trial. The applicant contended that, in any event, the judge’s attempt to rectify the position by conducting a voir dire was deficient as the judge could not be satisfied that the effect of s 18 had been explained to Ms Best as s 18(4) required. The applicant pointed to Macfarlan JA’s judgment in Tran v R,[3] which considered the meaning of to be “aware of the effect” of the section in accordance with s 18(4).

    3. [2017] NSWCCA 93 (“Tran (No 1)”).

68. The Crown argued that when Ms Best gave her evidence it would not have appeared to the court that she may have a right to make an objection under s 18. The Crown argued that there was a “three party scenario” being the witness, the Crown and the applicant. The Crown submitted that if the objection was not taken at the time she gave her evidence, Ms Best’s evidence was admissible. The Crown cited Mulvihill v R. [4] The Crown contended that Ms Best’s evidence was admissible despite Ms Best being denied procedural fairness.

    4. [2016] NSWCCA 259 (“Mulvihill”).

69. Another argument was that the judge was entitled to rely on the crown prosecutor’s advice prior to Ms Best’s evidence on the voir dire that she had received appropriate advice concerning s 18. The Crown submitted that the approach taken by the judge was similar to the approach taken at first instance in McKinnin v The Queen. [5]

    5. [2019] VSCA 114 (“McKinnin”).

Consideration

70. Section 18 of the Evidence Act relevantly allows a person who, when required to give evidence, is the de facto partner of an accused, to object to giving evidence as a witness for the prosecution. Section 18(4) of the Evidence Act provides that “[i]f it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.”

71. At the beginning of her evidence,[6] Ms Best said that she was the applicant’s partner in October 2017 (when the offences were allegedly committed). She also said that she was still the applicant’s partner and that he had partly moved in with her in September 2017.

    6. See [10] above.

72. From the outset of Ms Best’s evidence, it should have appeared to the judge, the crown prosecutor and the applicant’s counsel that Ms Best was giving evidence of a de facto relationship with the applicant not only at the time of the alleged offences but at the time she was required to give evidence in the Crown case.

73. When Ms Best had given evidence of her relationship with the applicant, the jury should have been asked by the judge to retire so that the judge could hear evidence in their absence to determine if Ms Best was a person who may have a right under the section to make an objection. If, after taking that evidence, it appeared to the judge that Ms Best may have had such a right, the judge was obliged to satisfy himself that Ms Best was “aware of the effect of the section.”

74. It was procedurally unfair to Ms Best that she was not made aware of her right to object to giving evidence before she continued her evidence before the jury. It is apparent that she would have exercised that right from the evidence she gave on the voir dire conducted the day after she had completed her testimony.

75. In argument, the Crown placed reliance on Mulvihill for the submission that notwithstanding s 18 being overlooked, Ms Best’s evidence was admissible. In Mulvihill, this Court (Ward JA, Beech-Jones and Fagan JJ) relevantly said:

“[134] A consideration of this submission reveals that leave should not be allowed to raise this point on appeal when it was not raised at trial. In the absence of this ground being raised at the trial, there is no means of ascertaining whether Ms Mulvihill was not aware of her right to object to giving evidence. To the extent that there is material available, it suggests that she was very willing to give evidence against her estranged husband. She may have been advised of her right to object but decided not to exercise it. Most significantly, in circumstances where neither party raised s 18 and where it would have appeared to the trial judge that Ms Mulvihill was actively assisting the prosecution, it cannot be inferred from the absence of any express reference by her Honour to s 18(4) that her Honour was not satisfied in terms of that sub-section. Her Honour might have believed that the Crown advised all witnesses in Ms Mulvihill’s position of that right as a matter of course but Ms Mulvihill did not wish to raise it because she wanted to assist the prosecution of her estranged husband. If none of the Crown, the witness or the accused raised any issue about Ms Mulvihill giving evidence or made any reference to s 18, then it does not necessarily follow that her Honour would have felt any compulsion to record her formation of the opinion referred to in s 18(4) in the transcript.

[135] Further, one premise of the ground is that a failure by the trial judge to form the opinion referred to in s 18(4) renders evidence given by a person referred to in that section inadmissible. That premise is doubtful. In Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [48] Santow JA (with whom Hidden and Adams JJ agreed) observed that “the section is not invoked by the Prosecution but can only be invoked by the spouse”. Arguably, the same applies to the accused in which case a failure to comply with the provision could not properly be said to affect his or her rights.

[136] Counsel for the applicant placed reliance on Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21 for support of the proposition that evidence adduced as a consequence of non-compliance with s 18 was not admissible. In Demirok the accused’s wife was called by the prosecution. Section 400(1) of the Crimes Act 1958 (Vic) then provided that a spouse of an accused was a competent but not a compellable witness at their trial. Section 400(2) obliged the trial judge to inform the accused’s wife that she was not compellable in the absence of the jury. In the absence of the jury she was advised of her right to object to giving evidence. She stated that she did not wish to give evidence. She was then recalled to give evidence before the jury and restated her objection. She was then excused. It was held that advising her of her right to object and excusing her from giving evidence in the presence of the jury was inconsistent with s 400(2) and therefore erroneous (at 31 to 32 per Gibbs J, at 33 to 34 per Stephen J, at 36 per Murphy J, at 39 per Aickin J; contra Barwick CJ). In this respect, s 18(5) of the Evidence Act is similar to sub-section 400(2) of the Crimes Act 1958 (Vic) as considered in Demirok. However, that is of no relevance to this matter as in this case s 18 was not referred to at all in the presence of the jury. Of more assistance to the applicant is the statement by Gibbs J in Demirok (at 31) that “the course taken by the learned trial judge was erroneous, and that Mrs Demirok should not have been called to the witness box in the presence of the jury” and thus “what little evidence she then gave was inadmissible”.

[137] Under the statutory provisions considered in Demirok, if an objection was taken by a spouse to giving evidence then the spouse had to be excused. Hence, Gibbs J concluded that, had the section been complied with, the accused’s spouse’s evidence would not have been adduced at his trial. However, that is not the case under s 18 of the Evidence Act. With s 18, even if the applicant can raise a failure to comply with that provision as a basis upon which the evidence should have been excluded, a conclusion that Ms Mulvihill’s evidence would not have been adduced had the section been complied with can now only be reached if it could be concluded that Ms Mulvihill would have objected if she had been appraised of her right to do so and that the outcome of the weighing up process contemplated by s 18(6) would have resulted in her being excused from giving evidence. In the absence of the point being made at the trial and those matters addressed then there is no basis for either conclusion. If anything, the material suggests to the contrary.” (Emphasis added.)

76. An important point of distinction in the present case to Mulvihill is that Ms Mulvihill appeared to be very willing to give evidence for the prosecution whereas Ms Best’s evidence on the voir dire was that she would object to giving evidence. Another matter is that the judge in the present case was on reflection overnight uncomfortable with what had occurred and raised the issue on the following morning. Furthermore, in my respectful opinion, the obiter remarks at [135] to which I have added emphasis appear to me to be questionable.

77. In Tran v R,[7] Payne JA (with whom Schmidt and Button JJ agreed) said:

“[32] It may be accepted, as the Crown submitted, that the focus of the harm to which s 18 of the Evidence Act is directed is harm to the proposed witness for the prosecution and harm to the witness’s relationship with an accused, rather than the harm to the accused’s legal interests in defending the case if the witness is not excused from giving evidence. It may also be accepted that s 18 of the Evidence Act is only enlivened if the prosecution seeks to call the witness to give evidence and the witness objects under ss 18(2) and (3) of the Evidence Act. It must also be accepted that, as the Court found in the first s 5F appeal, a court must take adequate steps to satisfy itself that the witness is aware of the effect of s 18 as it may apply to the person, save in domestic violence and child sexual assault cases where the amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2)2018 (NSW) which relevantly commenced operation on 21 June 2018 apply.

[33] However, as the Crown correctly and fairly accepted, an accused’s legal interests will clearly be affected by a judge’s determination made under s 18 of the Evidence Act, whatever the outcome. That is enough to enliven the obligation of procedural fairness: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 576 per Mason CJ, Dawson, Toohey and Gaudron JJ. The trial judge erred in stating that the proceedings determined “only” the rights of the witness and the Crown.

[34] So much is demonstrated by the events which occurred when counsel for the applicant observed that if his client had no standing to appear for the purposes of the s 18 objection, he and his client would leave the courtroom. The trial judge correctly held that determination of the s 18 objection was “inseparable from the overall processes in which she is the accused”. It bears emphasising that simply permitting (or requiring) an accused (or their legal representative) to be present when an application is determined in his or her criminal trial is not to afford the accused procedural fairness.

[35] The applicant here had a particular interest in the outcome of the s 18 objection as it affected the evidence available to be presented at her trial. The reference to her “standing” bespoke error. It is fundamental that under our justice system a criminal trial commences when the indictment is presented. Orders made by the court after the presentation of the indictment but before the empanelment of the jury are “part of the trial of the accused person”: Criminal Procedure Act 1986 (NSW) s 130(3). The order made here in relation to the s 18 Evidence Act objection was part of the applicant’s trial. Even in domestic violence and child sexual assault cases where the amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2)2018 (NSW) apply the accused has standing, albeit the accused’s rights are circumscribed in many respects in such cases by the statute.

[36] The Crown and the accused may properly be in a position to address many of the considerations referred to in s 18(7). There may be circumstances in which the accused is the only party who can properly address some of the factors referred to in that subsection. The refusal by the trial judge to allow the applicant’s counsel to make submissions resulted in a denial of procedural fairness in the circumstances of this case.” (Emboldened emphasis added.)

7. [2018] NSWCCA 145 (“Tran (No 2)”).

78. It is true that the “spouse, de facto partner or child of a defendant” who is required to give evidence for the prosecution is the only person who may object to giving evidence as a witness for the prosecution under s 18. However, the rights of an accused person are plainly affected by the decisions made under the section by a trial judge or as is more relevant to the present appeal, by the requirements of the section being overlooked.

79. In my view, the Crown’s submissions founded on Mulvihill should not be accepted.

80. The question remains whether, notwithstanding the error that has been identified, it was subsequently corrected by the judge taking evidence from Ms Best on the voir dire the day after she had completed her evidence before the jury.

81. Section 18(3) provides that the objection is “to be made before the person gives the evidence or as soon as practicable after the person became aware of the right so as to object, whichever is the later.”

82. In my view, where the awareness of the right to object arises after the completion of the evidence that the person was required to give as a prosecution witness, it is doubtful that s 18 can be complied with.

83. Where an objection is raised, the matters the court must take into consideration under subsection (7) in carrying out the balancing test include having regard to “any evidence the person might give and the weight that is likely to be attached to it,” and “whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.” It is apparent from the language of the statute that it is expected such objections will be considered before a witness completes his or her evidence.

84. This view finds some support in the second reading speech for the Evidence Bill 1994 (NSW). The then Attorney General said with respect to s 18 that:

“The approach which has been adopted in the bill offers the best means of ensuring the achievement of the underlying policy objectives of protection of the family unit and the avoidance of undue hardship to the witness.” [8]

8. New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 May 1995 at 3.

85. In a case such as this, where any potential hardship and harm caused to Ms Best and the family unit was already occasioned, it is difficult to see how the legislative intent could be fulfilled retrospectively.

86. Another consideration militating against the correction of an error such as the present one after the proverbial “horse has bolted” is the subconscious desire of a trial judge to continue with a trial.

87. As this Court did not have the benefit of argument on this issue, it is not appropriate to finally determine this question of retrospective correction. In any event, the parties’ submissions concentrated upon whether in conducting the voir dire the judge satisfied himself that Ms Best was aware of the effect of s 18.

88. In Tran (No 1), Macfarlan JA focussed on the obligation of the court under s 18(4) to “satisfy itself that the person is aware of the effect” of the section. Macfarlan JA said:

“[27] In my view, to be “aware of the effect” of the section in accordance with s 18(4) the prospective witness needs to be aware not only of his or her right to object but also:

That the court will decide whether or not the objection should be overruled and the person required to give evidence;

That that decision will be based upon the court’s findings concerning the matters referred to in subsection (6), of which the judge should apprise the witness.

That in making its decision the court will take into account at least the five matters referred to in subsection (7), of which the judge should again apprise the witness.

[28] Unless the prospective witness is aware of these matters, he or she will not know to what issues his or her evidence and submissions should be directed in an attempt to persuade the court of the force of the objection to giving evidence. Where the prospective witness is represented by a solicitor or counsel it will usually be sufficient for the judge to ask the representative to confirm that the person is aware of the relevant matters. Where, as here, the person is unrepresented, an explanation of the matters to which I have referred will need to be given.

[29] Usually it would not be sufficient for the judge to have counsel acting for the accused confirm that the prospective witness is aware of the relevant matters if the counsel is not also acting for that person. However not even that happened in the present case as the judge simply asked Mr Tran (not counsel) whether he had spoken to either of the lawyers (the representatives of the Crown and the accused). The judge did not ask Mr Tran what explanation, if any, he had been given about the effect of the section (see [8] above).”

89. In a separate judgment, Schmidt J opined:

“[40] Given that the witness must be made “aware of the effect of the section”, it follows that he or she must be informed of the provision made in s 18(6), that he or she will not be required to give the evidence, if it is found that:

“(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and

(b) the nature and extent of that harm outweighs the desirability of having the evidence given.”

[41] Further, the witness must also be informed of the mandatory considerations specified by s 18(7), which the trial judge must consider before concluding that the nature and extent of the likely harm which outweighs the evidence might cause the desirability of having the evidence given. That is necessary if the witness is to be given a fair opportunity to address those and any other considerations which are relevant to the objection which he or she wishes to advance.

[42] It follows that procedurally, just like in the case of s 128, it will thus be desirable for such a witness to be given an opportunity to obtain advice about the right of objection which s 18 grants. If it is not possible for the witness to obtain such advice, then it will be for the trial judge to give the witness an explanation of the effect of the section, before consideration is given to whether the witness should be required to give evidence, notwithstanding the objection which is pressed.”

90. Prior to commencing the voir dire, the judge was told by the crown prosecutor that Ms Best “had the advice in relation to the section.” Although there had been an earlier reference by the crown prosecutor to it being prudent that Ms Best obtained independent legal advice and they were trying to arrange that now, the crown prosecutor did not subsequently make it clear to the judge that Ms Best had received independent legal advice. Unfortunately the judge made no enquiries as to who provided the advice or the extent of that advice to Ms Best. On the paucity of the information before his Honour, the judge was obliged to enquire of Ms Best from whom she had obtained legal advice and to confirm that she was aware of the relevant matters under s 18.

91. It is evident from the exchange between his Honour and Ms Best when she returned to the witness box[9] that his Honour confined himself to being satisfied that Ms Best was aware that she may have a right to object.

    9. See [41] above.

92. His Honour could neither have been satisfied that Ms Best had obtained independent legal advice nor that she had been apprised of the matters referred to in subsections (6) or (7) of s 18. His Honour failed to satisfy himself that Ms Best was aware of the effect of the section.

93. This case may be distinguished from McKinnin to which the Crown drew this Court’s attention. In McKinnin, the judge had been informed that the prosecution had arranged for the witness to be provided with independent legal advice and that the advice was imminent. The Victorian Court of Appeal (Niall, T Forrest and Weinberg JJA) were of the opinion in the circumstances of that case that the judge was entitled to proceed on the basis that the witness had received independent legal advice. Furthermore, in McKinnin no argument was raised that the judge under s 18(4) had not satisfied himself that the witness was aware of the effect of the section.

94. Ms Best’s evidence was wrongly admitted before the jury and the subsequent steps taken by the judge did not make that evidence admissible.

95. I would uphold Ground 1 of the appeal.

The proviso

96. The Crown submitted that, in the event of the applicant’s ground of appeal being upheld, this Court would apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). In other words, notwithstanding the error that had been established, the appeal against conviction should be dismissed because “no substantial miscarriage of justice has actually occurred.”

97. Before considering the arguments of the parties, it is necessary to provide a summary of the evidence before the jury, other than the evidence of Ms Best.

The evidence of ED

98. ED’s evidence consisted of an electronically recorded interview which was played to the jury and unsworn evidence given during the trial. ED was 6 years old at the time of the alleged offending and 7 years old at trial.

99. During the interview, ED told police that the applicant had come into her bedroom shortly after she had gone to bed, waking her. The applicant removed her “onesie” pyjamas by rolling her over and pulling the sleeves then the legs off and began touching and kissing her all over her body and “privates.”

100. ED said that she felt “really nervous” and began to cry. She said that she tricked the applicant by saying she had to go to the toilet. The applicant stopped what he was doing and she immediately went and told her mother NH that “[the applicant] was touching me on the privates…” and began to cry. She described the action which the applicant used to touch her as “[h]e was just dragging his hand along them” and “just rubbing them…they were, wiping them like that.”

101. ED said that NH “got really angry” and started swearing at the applicant, to which he said “it didn’t happen.” She said that NH told the applicant to “come out” and sent her back to bed. ED said she saw her mother and the applicant talking in the backyard near the back door because “my window has a crack in it…”

102. ED said she went back to her bedroom, turned her lamp on, put her pyjamas and underpants back on, turned off her lamp and went back to bed.

103. ED was provided by police with a diagram of a child’s body and asked to indicate where her “privates” were. She circled the genitalia region and stated that she used her “privates” to go to the toilet. The diagram was marked Exhibit A.

104. ED said that she knew it was the applicant because she could see his curly hair in the light of the nearby bathroom, and that she turned the light on as she left the room and saw him on the floor.

105. ED said that she did not really know if the applicant had slept over on other occasions, but said this occasion was “the only time he’s done that.” She also said that NH locked the applicant outside with his keys at the back door and that when this happened they left the applicant a note saying “why did you do this?”

106. In her evidence at trial, ED affirmed that the area marked by a circle on Exhibit A was where the applicant had touched and kissed her.

107. In cross-examination, ED gave evidence that when she came out of her room she had no clothes and did not go to the toilet but to tell her mother what had occurred. She said that after her mother asked what happened, she told her to block her ears and began swearing at the applicant. ED agreed that she had told police that her mother was yelling and swearing at the applicant in the backyard, and that it was when NH came inside that she put her underpants and pyjamas back on and got into bed.

108. ED said that she did not know what it meant to be drunk and had not seen anyone drunk before. She agreed that her mother was drinking champagne that night, but not red wine. She said she did not see her mother behave differently or silly that night.

The evidence of NH

109. NH gave evidence that in October 2017, her partner DH lived with her, even though he still had his own house. DH worked night shift. NH said that she had known the applicant for about 25 years and they were like brother and sister, speaking once every two or three weeks. The applicant would visit her home and had stayed the night on occasion and had stayed over about three or four times in the last 10 to 12 years. On those occasions he would sleep on a lounge, and had once slept in her sons' room. NH said her sons would not have been there when the applicant slept in their room. NH could not recall if the applicant had ever slept in ED’s bedroom, and if he had, ED would not have been there, although she could not recall an occasion when that actually happened. In cross-examination NH agreed that it was possible that the applicant had previously slept in ED’s room on an occasion when there was no child in the room.

109. NH said the applicant arrived at about 3:45pm on 13 October 2017 and they had a couple of drinks and started catching up in the kitchen

110. At about 5:30 or 6:00pm, the children had chicken wraps for dinner. At about 7:30 or 8:00pm, the children got into their pyjamas and watched a movie in the lounge room. ED dressed herself. She was wearing onesie pyjamas. While that was happening, the applicant was outside on the back deck. At around 9:30pm, NH noticed that the children were asleep. Her partner, DH, got home at about 11:00pm and he put the children to bed. NH saw him put ED to bed because her room was visible from the back deck. She also saw him turn off the lamp in ED's room.

111. NH gave evidence that she, DH and the applicant then played music and drank together for about three hours. At some stage NH and DH were on the back deck talking and noticed that the applicant had gone over to the hammock and was “sort of falling asleep.” She went over to him and gave him a blanket and told him to come inside if he got cold. She and DH went to bed, closing the back door, but leaving it unlocked.

112. In cross-examination NH stated that when she spoke to the applicant in the hammock, he did not say anything - he was falling asleep but was not yet asleep, and agreed that she had told police that she and DH had gone to bed at the same time. She clarified that they had gone inside at the same time, but she had provided some linens to the applicant which resulted in them probably not getting into bed at the same time.

113. NH said that about 10 minutes after going to bed, she heard the back door open and close and assumed that the applicant had come in to sleep on the lounge. About 20 minutes later, she went to the kitchen to get a drink of water when she saw ED come out of her bedroom. ED was naked. She asked ED why she was naked, and ED told her that the applicant had taken her pyjamas off and was kissing her all over her body and making her feel uncomfortable. NH felt shocked and asked ED if she was OK. She replied yes. NH asked ED where the applicant was, and ED said that he was in her room. ED then went into the bathroom.

114. When ED went to the toilet, NH went into ED's room and saw the applicant roll off the edge of ED’s bed onto the floor. NH said the applicant was fully clothed, and she began yelling and swearing at him. NH said that the applicant seemed like he was in a daze and kept saying “what?” She told him that ED had told her that he had taken her pyjamas off and that he was kissing her. The applicant denied it and ED, who was by that stage standing beside NH, said “yes you did.”

115. NH grabbed ED’s pyjamas which she believed were on the floor, and gave them to ED, telling her to go to her (NH's) bedroom. NH then said to the applicant, "[g]et the fuck out of my house. You can't stay here.” The applicant did not respond and remained on the floor. NH left and went into her bedroom and shut the door.

116. NH agreed in cross-examination that she had not mentioned in her police statement that she had picked up ED's pyjamas from the floor. She stated that ED was putting on her pyjamas as she was walking into her (NH's) bedroom. "...[S]he was getting dressed on her way back to my room so she finished zipping up her onesie in the bedroom. So, she was getting dressed in between her room and my room.” She would have been getting dressed in front of DH. NH stated that when she went back into the room the applicant was awake but still lying on the floor. She agreed that there was no mention in her statement that she had gone back into ED's room for a second time.

117. When NH returned to her room, she told ED to tell DH what she had said to her. NH and DH were both in shock, so they asked ED to repeat herself. NH thought that DH said, "[i]s this definitely what happened? You're not making this up,” and ED again told them that the applicant had taken her clothes off and kissed her.

118. A short time later, while she was still in her bedroom with ED, NH heard the back door open and shut. DH told her to go lock the doors which she did. She then lay in bed with ED until she fell asleep. NH then said to DH that they ought to check that the applicant had left, so they went outside to see if he was still at the house. It was about 3:00am by that time.

119. At about 3:20am, NH called the applicant to confront him about what had happened, but he did not answer the call.

120. The following morning NH received a message from the applicant saying, "I missed your call," and a little later, a message saying, "[h]ello.” NH did not respond to either message because her anger had subsided, and she no longer wanted to confront or speak to the applicant.

121. The following afternoon (Saturday), NH asked ED to tell her what happened. She said "I want to talk to you about what happened with [the applicant].” ED didn't say anything and she said to ED “[w]hen he was kissing you, was he on the bed next to, next to you?” ED replied “[n]o, he was on top of me.” She then asked “[d]id he touch your privates,” and ED replied “[y]es.” NH asked “[d]id he use his fingers or hands,” and ED replied “[n]o, he kissed it." Nothing further was said.

122. The following day (Sunday) at about 5:00pm, NH sent a text to the applicant which stated "[w]hen I caught you molesting ED on Friday night my whole world was turned upside down. You're a sick individual and you need help. Stay away from me and stay away from my family.” She did not receive a reply from him. She did not at that stage block the applicant, although she 'unfriended' the applicant from Facebook. She did not block him until about three weeks later in November.

123. NH gave evidence that at about 3:00pm, she went to report the matter to Morisset Police Station, however the station was unattended. She saw that their hours of operation were Monday to Friday from 9:00am to 5:00pm. She returned the following afternoon (Monday) after work at about 3:30pm, but it was again unattended, so she called the police assistance line. Within about an hour or an hour and a half, some police officers attended her home. ED wasn't home, but they took a statement from NH. About an hour later, some detectives came and interviewed her again, took some photographs and also took ED’s pyjamas. On 24 October 2017, ED was interviewed.

124. In cross-examination NH agreed that earlier in the day in question she had purchased two bottles of red wine and two bottles of champagne. The applicant brought with him a bottle of sparkling wine and some beer - three or four 750ml or larger bottles. She drank her own alcohol. They started drinking from about 3:45pm and they continued drinking throughout the evening until about 1:30am. When DH returned home from work, he also drank some alcohol between about 11:00pm and 2:00am. In terms of how affected by alcohol she was, NH stated that on a scale of one to 10, she was about a seven. She had consumed the four bottles of wine by the early hours of the morning, and the applicant had consumed the alcohol he had brought with him. DH drank his own alcohol. NH did not consume anything else that might have affected her level of intoxication.

125. In cross-examination NH stated that when she gave her statement to police, she could not recall there being a lolly hunt that evening, however, did now recall it. She believed that it was the applicant that put the lollies around the house.

126. At about 8:00pm, she asked the children to get into their pyjamas. They did not bathe or shower that night. Afterwards she put a movie on for them. ED did not go to bed straight after putting on her pyjamas. All three children fell asleep on the lounge while they were watching the movie and they remained there until DH got home and put them to bed.

127. In cross-examination NH stated that she and ED did not write a note for the applicant that evening. She denied being so intoxicated that she had no memory of it. She denied picking up the applicant's keys, cigarettes and wallet and placing them outside with the note. When she locked the doors, the applicant's things were not inside the house.

128. Although she didn't have a meal, she would have had the equivalent of a meal as she was eating throughout the evening. She agreed that she was heavily intoxicated but stated that by the time ED came out of her bedroom she was sober. She denied that she followed the applicant out of the house.

The evidence of DH

130. DH, NH’s partner, gave evidence that on 13 October 2017 he had been working all day. He got home from work “a little bit past 11.” When he arrived, NH was there as well as the applicant and the children. NH asked him to put the children to bed which he did. He then re-joined NH and the applicant. They played musical instruments, chatted and had a few drinks.

131. DH told the jury that both the applicant and NH were intoxicated. In cross-examination, DH stated that on a scale of one to 10, the applicant’s intoxication was nine, and NH was ‘quite’ intoxicated. Although he also drank some alcohol, he was sober.

132. DH said that he went to bed at approximately 2:00am. NH came in about 10 minutes after he went to bed. The applicant was asleep in the hammock.

133. In cross-examination, he agreed in his statement dated 24 October 2017 there was no mention of a hammock or of the applicant being asleep. He explained that when he said in his statement that he knew that the applicant was still up, he meant he could see the hammock moving.

134. Sometime after falling asleep, he woke up to the sound of NH yelling in another room. In cross-examination, he stated that he heard NH say “get out.” He was getting out of bed when ED walked into the bedroom. She was wearing pyjamas.

Evidence of Craig Watkins

135. The officer in charge, Detective Senior Constable Craig Watkins, gave evidence with respect to interviewing ED, collecting her pyjamas, and taking photos of her room. He also gave evidence that the applicant had not been dealt with or convicted for any offences involving children.

The applicant’s ERISP

136. The applicant’s ERISP was played to the jury, in which he confirmed that he had gone to NH’s house around 3:00pm and remained there for about 10 hours, during which they ate, drank and played music.

137. The applicant said that the children went to bed around 9:00 to 10:00pm, and DH returned home at 11:00pm. He did not recall when NH went to bed, and stated that he had fallen asleep on a lounge out in the back area. Later the applicant said he believed he may have been sleeping on a couch inside at the front of the house, but could not be sure as he had “crashed out.”

138. The applicant said that he left NH’s house at about 1:00 or 2:00am and driven himself home. He said that when he woke up no one was around and he got up and left.

139. In response to being asked if he left because he’d had enough of the evening or because he was asked to leave, the applicant replied “no comment.”

140. Later in the interview, the applicant recanted and said that he was woken up by NH yelling at him. NH told him to get out and said something about ED.

141. The applicant said that he did not recall ED wearing onesie pyjamas, and that he would have played and had physical contact with all of the children during the night.

142. The applicant said he arrived home at about 2:00 to 2:30am and went directly to bed. He did not speak to his partner Ms Best until a few days before his interview.

143. The applicant denied that he was in ED’s room, that he kissed her, and said that the conduct did not occur.

144. When asked whether he had ever been inside ED’s bedroom, he replied “yeah like I know where it is.” He denied the possibility of being disoriented and going into ED’s bedroom by mistake.

145. When asked whether he could have “crashed” in her bed, he said he didn’t think so and then denied the possibility entirely.

DNA evidence

146. The onesie pyjamas and seven sub-samples taken from it by police were provided to Ms Wederbang, a forensic scientist working at the Forensic and Analytical Science Service (FASS). FASS took a further ten samples via tape-lift.

147. Ms Wederbang tested 14 of the 17 samples. In three samples Ms Wederbang was able to detect a major contributor which was not the applicant. In the remaining samples she could not detect a major contributor.

148. Ms Clarke, another forensic scientist working at FASS, gave evidence that she prepared a report interpreting results obtained from testing conducted by Ms Wederbang and other scientists.

149. Ms Clarke gave evidence that in addition to conventional DNA tests, some testing was performed using Yfiler which isolates the Y chromosome. She said that this test is used where it is expected to find large amounts of female DNA. The test allows for the Y chromosome, which is only found in males, to be targeted and analysed. As the Y chromosome is inherited entirely, each male in a paternal line has the same Yfiler profile.

150. Ms Clarke said that she submitted the remaining 3 samples for testing.

151. With respect to sample (viii), conventional DNA testing matched ED’s profile as the major contributor and the minor contributor was not suitable for comparison. The Yfiler test recovered a mixed DNA profile from at least three male individuals. The major contributor had the same profile as the applicant. This profile was expected to occur in approximately one in 750 unrelated males in the general population.

152. Ms Clarke said that sample (viii) was a tape lift of the outside crotch area of the onesie, below the seam.

153. Ms Clarke explained the difference between primary and secondary transfer, primary being direct transfer where the individual touches an object or another person, and secondary where DNA is transferred via an intermediary.

154. In cross-examination, Ms Clarke agreed that DNA testing cannot determine the age of DNA, nor how it came to be there.

The applicant’s case

155. The applicant did not give evidence or call any witnesses.

156. In the closing address to the jury, the applicant submitted that there were no acts of sexual impropriety against ED. The applicant relied on the cross-examination of the Crown witnesses, in particular that of ED, NH and DH, to show the evidence was not consistent and there was potential contamination of ED’s evidence. The applicant stressed his longstanding relationship with the family and said that in all of the circumstances the jury should be not satisfied beyond reasonable doubt.

157. With respect to the lies which the applicant told police in his ERISP, it was put to the jury that they did not evince a consciousness of guilt but resulted from his confusion at finding himself in the situation, in circumstances where he was heavily intoxicated and had little memory of what had taken place.

158. With respect to the DNA evidence, he submitted that it did not advance the Crown case because there was no evidence as to how it came to be there, when it got there, who had put it there, and whether transference had occurred from an object.

Argument

159. The applicant contended that the effect of the failure to comply with s 18 of the Evidence Act was the improper admission of Ms Best’s evidence, which in turn precluded any argument regarding the admissibility of her statement to police and also resulted in a failure to discharge the jury.

160. The applicant argued that Ms Best’s evidence was advanced for the purported admission the applicant made to her about being in ED’s bed. This admission was in conflict with the ERISP in which the applicant said he could not remember and then denied such a possibility. The applicant submitted that this evidence bolstered the Crown’s case and effectively denied him a fair trial. The applicant submitted that the jury should have been discharged.

161. With respect to the strength of the Crown case, the applicant submitted that the conclusion could not be reached that on the admissible evidence the verdicts of guilty were inevitable. While the applicant accepted that ED was a strong Crown witness, it was contended she was a young child and her evidence may have been contaminated by contact with NH.

162. With regard to the evidence of NH the applicant relied on her intoxication, her distress at what she believed had occurred and potential contamination by discussing the matter with DH. As to the DNA evidence the applicant submitted that it was consistent with inadvertent transference.

163. The Crown argued that the case against the applicant was very strong, leaving aside the evidence of Ms Best. The Crown pointed to the force of ED’s evidence, her contemporaneous complaint, that NH placed the applicant in ED’s room, and the reaction NH’s confrontation of the applicant elicited. As to the DNA evidence, the Crown pointed to the location of the DNA on the crotch area of the onesie.

164. The Crown submitted that there had not been a substantial miscarriage of justice.

Consideration

165. Section 6(1) of the Criminal Appeal Act is as follows:

Determination of appeals in ordinary cases

The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

166. In Hofer v R,[10] Macfarlan JA provided a helpful summary of the principles of relevance to the application of the proviso:

     10. [2019] NSWCCA 244.

“[51] Decisions in recent years in which the High Court has considered the application of the proviso include Weiss; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59; Douglass v The Queen [2012]HCA 34; (2012) 86 ALJR 1086; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; Collins v The Queen [2018] HCA 18; (2018)92 ALJR 517; Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689; Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305 and OKS v Western Australia [2019] HCA 10;(2019) 93 ALJR 438.

[52] Principles of relevance to the application of the proviso in the present case that I derive from these authorities are as follows.

[53] First, in applying the proviso, the “fundamental question” for the appellate court is to decide whether there has been a substantial miscarriage of justice (Kalbasi at [16]).

[54] Secondly, it is a necessary but not sufficient condition for application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused’s guilt beyond reasonable doubt (Weiss at [44]; Baiada at [29]; Lane at [38]). Where an appellate court is so satisfied, this “will in many instances support the conclusion that there has been no substantial miscarriage of justice” (Kalbasi at [13]; see also Weiss at [44]; Baini at [30]). In some cases, it will not. Where the appellate court is not satisfied that the accused’s guilt has been proved beyond reasonable doubt on admissible evidence there “will always be a substantial miscarriage of justice” (Kalbasi at [13]).

[55] Thirdly, for the purpose of determining whether there has been a substantial miscarriage of justice, the appellate court must undertake an independent assessment of the whole of the record of the trial (Weiss at [41] and [43]). That examination requires account to be taken of the jury’s guilty verdict (Weiss at [43]).

[56] Fourthly, there are natural limitations on the appellate court’s ability to determine whether the accused’s guilt has been proved beyond reasonable doubt, particularly in cases in which the credit of witnesses is of importance because the appellate court has not seen and heard the witnesses give their evidence (Kalbasi at [15]; OKS at [31]; Weiss at [41]). Reliance by the appellate court on the jury’s guilty verdict may enable those limitations to be overcome (Baini at [32]). Such reliance avoids the appellate court impermissibly exercising the functions of the jury (Lane at [48]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]).

[57] Fifthly the appellate court will not be able to rely on the jury verdict where the verdict may have been affected by errors in the trial process (OKS at[29]; Kalbasi at [15]; Lane at [48]; Collins at [36]). In some cases however an error will have been of no significance in determining the verdict returned by the jury (Weiss at [43]).

[58] Sixthly, in an extreme case the appellate court may be able to rely, for the purpose of determining whether guilt has been proved beyond reasonable doubt, not on the verdict, but on its own conclusion that oral evidence contrary to the Crown’s case is obviously false (Castle at [66]).” (Citations in original.)

167. In this case, the fundamental question in considering the proviso is whether there has been a substantial miscarriage of justice by the wrongful admission of Ms Best’s evidence. In Filippou v The Queen,[11] French CJ, Bell, Keane and Nettle JJ said at [15] that by “substantial miscarriage of justice” what is meant is that the possibility cannot be excluded beyond reasonable doubt that the applicant has been denied a chance of acquittal which was fairly open to him or that there was some other departure from a trial according to law that warrants that description.

     11. (2015) 256 CLR 47; [2015] HCA 29; 89 ALJR 776; 323 ALR 33; 253 A Crim R 126.

168. One matter that bears upon this question is the failure by the applicant’s counsel to raise s 18 with the judge either before or during Ms Best’s evidence before the jury.

169. As the applicant’s interests in the outcome of his trial were plainly affected by Ms Best’s evidence and any determination that the judge might make under s 18, the applicant’s counsel had the right to raise with the judge that Ms Best might be entitled to make an objection to giving evidence on behalf of the Crown, to cross-examine the witness on a voir dire and to make submissions on the factors to be advanced under the section. The absence of any complaint or submissions at the time of Ms Best’s evidence suggests that there was no denial of procedural fairness to the applicant, notwithstanding the denial of procedural fairness to the witness.

170. A decision not to raise s 18 with the judge may have been taken by the applicant’s counsel as he was aware of the possibility that if the judge concluded that Ms Best was not compellable, an application by the Crown to tender Ms Best’s statement pursuant to s 65 of the Evidence Act might be granted. The tender of Ms Best’s statement may have been more damaging to the applicant’s case than her oral evidence during which she drew back from significant parts of that statement.

171. It is not necessary to consider whether the statement would have been admitted under that section should the judge have decided that Ms Best was not a compellable witness. It is clear from his judgment that his Honour considered that the statement was admissible under s 65 if those circumstances had arisen. [12]

     12. See [62] above.

172. The applicant’s counsel’s failure to bring s 18 to the judge’s attention is capable of explanation on the basis that it could have resulted in a forensic advantage to the applicant. There has been no suggestion that counsel was unaware of the relationship between Ms Best and the applicant, nor that counsel was incompetent.

173. A forensic choice taken at trial may lead to a conclusion that a miscarriage of justice has not been demonstrated. As Gaudron J explained in TKWJ v The Queen:

“[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open

[27] One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.”[13] (Citations omitted.)

13. (2002) 212 CLR 124; [2002] HCA 46; 76 ALJR 1579; 193 ALR 7; 133 A Crim R 574.

174. However, the forensic choices of counsel are not determinative. [14] Gaudron J went on to say at [28]:

“As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.” (Citations omitted.)

14. See also James v The Queen (2014) 253 CLR 475; [2014] HCA 6; 88 ALJR 427; 306 ALR 1; 236 A Crim R 402 at [38].

175. Another matter that bears upon the fundamental question of substantial miscarriage is that should the judge have conducted a voir dire prior to or during Ms Best’s testimony before the jury and had made her aware of the effect of s 18, it is doubtful whether a different result would have been reached. The judge provided careful reasons for his decision to require Ms Best to give evidence and such a decision would have been plainly open to him.

176. In Weiss v The Queen, [15] the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said that there may be cases where it would be proper to allow the appeal, even if the appellate court was persuaded to the requisite degree of the applicant’s guilt. The Court identified cases where there has been a significant denial of procedural fairness at trial as providing examples of cases of that kind. I am satisfied that in the present case the applicant was not denied procedural fairness.

     15. (2005) 224 CLR 300; [2005] HCA 81; 80 ALJR 444; 223 ALR 662; 158 A Crim R 133 (“Weiss”).

177. In Kalbasi v Western Australia,[16] in considering the appellant’s challenge which was directed to the application of Weiss, the plurality (Kiefel CJ, Bell, Keane and Gordon JJ) said at [15]:

“Contrary to the appellant's submission, Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of "process" and "outcome" may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter.” (Citations omitted.)

16. (2018) 264 CLR 62; [2018] HCA 7; 92 ALJR 305; 352 ALR 1; 271 A Crim R 245.

178. I do not consider that the judge’s error in admitting the evidence precludes this Court from being able to assess whether the evidence, properly admitted at trial, proved the applicant’s guilt beyond reasonable doubt.

179. Notwithstanding ED’s young years at the time of the commission of the offences and at trial, her evidence was compelling. Her evidence in the interview and at trial that the area marked on the diagram of a child’s body (Exhibit A) was where the applicant had touched and kissed her was unshaken in cross-examination. The circled area was the child’s vagina.

180. ED’s evidence was strongly supported by NH, who was a credible witness even though she had consumed a significant amount of alcohol with the applicant before retiring to bed. ED made an immediate complaint to her mother who saw ED come out of the bedroom and was naked. NH went to her child’s bedroom and saw the applicant roll off the edge of ED’s bed onto the floor. Notwithstanding the close friendship between NH and the applicant, NH did not delay in attempting to report what had happened to police.

181. Although there are some inconsistencies in the evidence of ED and NH, they do not diminish the strength of ED’s evidence. There is no evidence that supports the applicant’s submission of contamination of the child’s evidence.

182. The Yfiler test (sample viii) recovered a mixed DNA profile from at least three male individuals. The major contributor had the same profile as the applicant. The profile was expected to occur in 750 unrelated males in the general population. Sample viii was a tape lift of the outside crotch area of ED’s onesie, below the seam. Although Ms Clarke agreed that DNA testing could not determine the age of DNA, nor how it came to be there, the Yfiler test provides support for ED’s evidence that the applicant removed her onesie.

183. Paying no regard to Ms Best’s evidence, I found that the applicant’s answers in his ERISP lacked credibility.

184. This is not a case where the admission of Ms Best’s evidence impacted upon the credibility of ED’s evidence. [17] I do not consider that it is reasonably possible that ED’s account of what occurred is not correct.

     17. OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10; 93 ALJR 438; 364 ALR 573 at [29].

185. The strength of the Crown case leads me to be satisfied beyond reasonable doubt that the applicant committed the two counts of aggravated indecent assault.

186. In my view, the possibility has been excluded beyond reasonable doubt that the applicant has been denied a chance of acquittal which was fairly open to him. I consider there has been no substantial miscarriage of justice. Accordingly the proviso applies.

The appeal against sentence

187. The sole ground of appeal against sentence is that the applicant’s aggregate sentence of 7 years imprisonment commencing on 16 April 2018 with a non-parole period of 4 years was manifestly excessive.

188. It is convenient to refer to the judge’s sentencing remarks before considering the arguments advanced by the parties.

The remarks on sentence

189. The judge found that the applicant came into ED’s bedroom who woke up and saw the applicant in front of the bed in which she had been sleeping. The applicant rolled ED to one side, kept her rolling over and took her pyjamas off. He then took her underpants off and put them on the floor.

190. The applicant then started to touch ED. At some time during the touching, he said to her “OK ED, this won’t hurt a bit.”

191. The judge said that the applicant touched ED all over including on her vagina. ED described the touching as dragging his hand along her vagina. His Honour said that as soon as the applicant took ED’s pyjamas off, he started kissing her all over her body, making her uncomfortable. He also kissed her on her vagina. ED described the kissing on the vagina as not really hard but just soft. ED further described this kissing as gross and disgusting.

192. The judge said that during the incident, ED started to cry because she was nervous and uncomfortable. The incident ended when ED said she tricked the applicant by telling him that she had to go to the toilet. ED left the room and told her mother what had happened.

193. The judge said that offences involving the indecent touching of children are objectively serious offences and sentences should reflect the need of general deterrence and denunciation.

194. In assessing the objective seriousness of the offences, the judge took into account ED’s age of 6 years which his Honour noted was considerably below the age of 16 years, the age encompassed by the offence. His Honour also took into account the age difference between the applicant and ED. His Honour noted that the applicant who was 39 years old at the time of the offending was 33 years older than ED. His Honour observed that the age difference of some 33 years was “considerable.”

195. The judge observed that the indecent assault for the first count related to touching on ED’s vagina whereas the second related to the kissing of ED all over her body, including the genital area. His Honour also took into account that during the offences, ED was naked whilst the applicant remained fully clothed. His Honour found that the duration of the offending conduct seemed to have been in the order of a few minutes. Whilst there were no overt threats or coercion, ED had been rolled over onto her side and onto her back so that the applicant could remove her onesie pyjamas and then her underpants.

196. The indecent assaults ceased, his Honour said, not because the applicant desisted but because ED had had the presence of mind to “lie” about having to go to the toilet.

197. The judge assessed the objective seriousness of each offence to be “comfortably in the mid-range.”

198. The judge found as an aggravating factor the commission of the offences in the house of the victim.

199. As to the applicant’s subjective case, the judge noted that the applicant was almost 40 years old at the time of his offending and was 41 years old at sentence. The applicant had a very limited prior criminal history which his Honour took into account.

200. After referring to the applicant’s references, his Honour said that “each of those referees expressed their shock, bordering on disbelief, on being informed of these offences.”

201. When referring to the sentencing assessment report, his Honour recounted that the applicant maintained his denial of the offences but expressed his willingness to undertake intervention for alcohol abuse.

202. The judge considered in some detail the report of Jason Borkowski, a forensic psychologist, who reported the results of an actuarial risk assessment that the applicant was in the Below Average Risk category relative to other adult male sex offenders. His Honour noted that Mr Borkowski reported that there were various custody and community based treatment options designed to address that risk.

203. The judge was satisfied that the offence was out of character. His Honour found that the applicant had good prospects of rehabilitation and was unlikely to re-offend.

204. The judge referred to the victim impact statement and to ED’s loss of innocence and in a profound change in her view of trusting adults. His Honour gave careful consideration to the questions of accumulation and totality and to various cases that had been put to him by the applicant’s counsel.

205. The judge found special circumstances being the lengthy period of time on parole that would be required to assist the applicant with his significant alcohol issues.

206. In imposing an aggregate sentence, his Honour said that the indicative sentence for count 1 was 7 years imprisonment with an indicative non-parole period of 4 years. For count 2, the indicative sentence was 7 years imprisonment with an indicative non-parole period of 4 years.

Argument

207. No issue is taken by the applicant with the commencement of the sentence, the structure or the proportionality of the non-parole period to the head sentence which is approximately 57%. The applicant contends that the overall head sentence of 7 years places the offences at a far higher level of criminality than the circumstances warranted and that a lower sentence was required.

208. The applicant does not dispute the judge’s findings of fact, the assessment of objective criminality of the offending or the assessment of the applicant’s subjective case.

209. The applicant referred to the maximum penalty of 10 years imprisonment and standard non-parole of 8 years imprisonment for an offence contrary to s 61M(2) of the Crimes Act. The applicant submitted that he was a person of mature years who had nothing that reflected anything like this type of behaviour in his criminal history. The applicant acknowledged that he had an alcohol problem but said that was being addressed. The applicant submitted that although there were two offences, they occurred in very quick succession.

210. The applicant argued that the head sentence of 7 years put his sentence at the high range of offences against s 61M(2) and was manifestly excessive.

211. The Crown also referred to the maximum penalty and the standard non-parole period for an offence contrary to s 61M(2) of the Crimes Act. The Crown submitted that the judge was sentencing the applicant for two offences, albeit occurring within moments of one another but consisting of entirely different and distinct acts (touching and then kissing of ED’s body and genitals). The Crown observed that the judge’s finding that the offences fell “comfortably in the mid-range” of objective seriousness had not been contested by the applicant.

212. The Crown submitted that the judge did not accumulate the indicative sentences even though the applicant’s counsel did not disagree with the Crown’s submission that a partial accumulation was appropriate. The Crown argued that the applicant had failed to establish that the sentence was unreasonable or plainly unjust.

Consideration

213. The applicant must show that the sentence was unreasonable or plainly unjust in order to make good his complaint that the sentence is manifestly excessive: Markarian v The Queen [18] at [25]. Intervention by this Court is neither warranted simply because it might have exercised the sentencing discretion in a manner different to the sentencing judge: Markarian at [28]; Dinsdale v The Queen [19] at [57], nor simply because the sentence is markedly different from other sentences that have been imposed in other cases: Hili v The Queen; Jones v The Queen [20] at [59]. Whilst prior decisions and sentencing statistics are helpful when they assist in identifying a range or pattern of sentences for a particular offence, each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence. Consistency in sentencing practice is achieved by consistency in the application of principle and not by numerical equivalence: Hili at [48]; R v Nakash [21] at [9].

     18. (2005) 228 CLR 357; [2005] HCA 25; 79 ALJR 1048; 215 ALR 213 (“Markarian”).

     19. (2000) 202 CLR 321; [2000] HCA 54; 74 ALJR 1538; 175 ALR 315; 115 A Crim R 558.

     20. (2010) 242 CLR 520; [2010] HCA 45; 85 ALJR 195; 272 ALR 465; 204 A Crim R 434; 78 ATR 11 (“Hili”).

     21. [2017] NSWCCA 196.

214. When considering whether the applicant has established that his aggregate sentence was manifestly excessive, the maximum penalty of 10 years imprisonment and standard non-parole period of 8 years are the legislative guideposts to be borne in mind.

215. The applicant does not challenge the judge’s assessment of the objective seriousness of the offences as being “comfortably in the mid-range.” This is hardly surprising as his offending involved the removal of the young child’s clothing and the direct contact with her genital area whilst she was in her bed in the family home. In my view, the judge’s assessment of objective seriousness was generous to the applicant.

216. The applicant took advantage of ED who had been asleep. After removing her onesie and underpants, he indecently assaulted ED, who was then naked. He touched her vagina with his hand and kissed her over the body including the vagina. Although the indecent assaults were confined to a short period, they ceased because the child had the presence of mind to say that she had to go to the toilet.

213. These are serious offences of aggravated indecent assault. As the judge said, sentences of offences involving the indecent touching of children should reflect the need of general deterrence and denunciation.

214. No challenge is made to the judge’s consideration of the applicant’s personal circumstances. His Honour’s findings included the offence was out of character, the applicant had good prospects of rehabilitation and was unlikely to re-offend. Furthermore, no challenge is made to his Honour’s assessment of the ratio between the head sentence and non-parole period after the finding of special circumstances.

215. The applicant’s contention of manifest excess is based on the contention that the head sentence of 7 years placed his offences at the high range of offences against s 61M(2).

216. The applicant did not in this Court seek to compare his sentence with sentences passed in other cases. However, his Honour was provided with other cases during the sentencing proceedings which he carefully considered in his sentencing remarks. No challenge is made to his Honour’s differentiation of those cases.

217. The judge was not minded to provide for some partial accumulation in the aggregate sentence for the separate offending in counts 1 and 2 which was favourable to the applicant.

218. Having regard to all relevant matters including the objective seriousness of the offences and the applicant’s personal circumstances, I am not persuaded that an aggregate sentence of 7 years imprisonment with a non-parole period of 4 years is manifestly excessive.

ORDERS

223. I propose the following orders:

1. Leave to appeal against conviction granted.

2. Appeal against conviction dismissed.

3. Leave to appeal against sentence granted.

4. Appeal against sentence dismissed.

224. CAMPBELL J: I have had the considerable advantage of reading in draft the judgment now delivered by Price J. I agree with the orders his Honour proposes and with the reasons given. What follows is not intended to be in anyway inconsistent with anything Price J has written.

225. I agree that Ms Best’s evidence was wrongly admitted as explained by Price J. And I also agree that this error at trial was not of a kind that fundamentally undermined the presuppositions of what constitutes a fair criminal trial according to modern Australian law. Accordingly the disposition of the conviction appeal depends on the application of the proviso.

226. I consider evidence of the complainant, ED, her mother, NH, and the results of DNA testing, particularly the outcome with respect to sample (VIII), such as it was, constitute a coherent body of evidence proving the applicant’s guilt of each offence beyond reasonable doubt.

227. In arriving at this conclusion I have considered that the wrongly admitted evidence of Ms Best, as the trial judge recognised and as Price J has pointed out, may have been understood by the jury as an evidential admission, either express or implied, of a very significant circumstance i.e. that the applicant “crashed” in ED’s bed on the night when the alleged offending was said to have occurred. An admission of this type, if accepted, is capable of being very influential in the thinking of a trier of fact required to assess conflicting accounts. It is not insignificant, therefore, that such an admission was inconsistent with the denials of the existence of that circumstance by the applicant in his ERISP which was played to the jury.

228. I accept that the evidence of Ms Best was relevant to the jury’s assessment of whether the applicant’s exculpatory account to police might be true. His exculpatory account also included an innocent explanation for his DNA having being present on ED’s “onesie” pyjamas, namely that he would have played with the children before they were put to bed. The absence of the evidence of Ms Best may have made it somewhat less likely that the jury would conclude that the applicant’s denials in his account to police could not possibly be true, permitting them to put his account to one side when considering whether the prosecution had proved his guilt beyond reasonable doubt by evidence the jury actually accepted: De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100 at [9].

229. However, as Price J has pointed out, the admission also appeared in paragraphs [9] and [10] of Ms Best’s police statement to which she was taken in evidence. I agree that her statement was properly admissible under s 65 Evidence Act: Fletcher v R (2015) 45 VR 634; [2015] VSCA 146 at [58] (Dixon AJA, Weinberg JA agreeing); R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306; (2015) 253 A Crim R 574 at [174]-[185] (Johnson J).

230. After giving these matters due consideration in the context of the whole of the evidence, and acknowledging that the evidence of ED and NH was not identical in all respects, I find the body of evidence to which I have referred, when taken together and with the evidence of the admission by the applicant contained in Ms Best’s police statement, both coherent and compelling. I am persuaded to the necessary degree that the wrongful admission of the evidence of Ms Best did not deprive the applicant of a chance of acquittal fairly open to him. To put it another way, I am satisfied that the evidence properly admitted at the trial proved the applicant’s guilt of the offences on which the jury returned its verdict beyond reasonable doubt: Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at 206 [38].

231. For the reasons given by Price J the applicant has not persuaded me that the sentence passed was plainly unjust and therefore manifestly excessive. In the case of offending contravening the now-repealed s 61M(2) Crimes Act 1900 (NSW), it is significant that the standard non-parole period was one of 8 years, or 80 percent of the maximum penalty of 10 years imprisonment. This relationship between the two may bring into sharp focus the significance of these legislative guideposts even as two only of the full range of factors relevant to determining the appropriate sentence for this offence and this offender: Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]; especially when one bears in mind the unchallenged finding of objective seriousness made by the learned judge. This and the considerations fully explained by Price J lead me to conclude that the sentence passed was not plainly unjust.

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Endnotes

Decision last updated: 06 May 2020