LH v The King

[2024] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

LH v R [2024] NSWCCA 165

Hearing dates:

27 May 2024

Date of orders:

6 September 2024

Decision date:

06 September 2024

Before:

N Adams J at [1];
Sweeney J at [291];
R A Hulme AJ at [292].

Decision:

(1) Leave to appeal against conviction is granted.

(2) The appeal against conviction is dismissed.

(3) Leave to appeal against sentence is granted.

(4) The appeal against sentence is dismissed.

Catchwords:

CRIME – Appeals – Appeal against conviction –whether miscarriage of justice arose out of conduct of Crown prosecutor – right to silence – consciousness of guilt reasoning – drawing of inferences unavailable on evidence – whether trial judge erred directing the jury it could rely on consciousness of guilt reasoning arising from the applicant’s demeanour and answers in ERISP – whether tendency directions amounted to a denial of procedural fairness appeal – appeal dismissed

CRIME – Appeals – Appeal against sentence – multiple sexual assaults of child aged 10 years – whether sentencing judge erred in incorporating elements of s 66EA into sentencing decision – De Simoni principle – appeal dismissed

Legislation Cited:

Children (Criminal Proceedings) Act1987 (NSW), s 15A

Crimes Act1900 (NSW), ss 66C(2), 66DB(a), 66EA, 578A

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Evidence Act 1995 (NSW), ss 20, 89

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

Cases Cited:

AB v R [2023] NSWCCA 165

Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288

Armstrong v R [2013] NSWCCA 113

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25

Crockford v R [2022] NSWCCA 115; (2022) 100 MVR 206

Day v R (No 2) [2023] NSWCCA 312

DC v R [2019] NSWCCA 234

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Elmasri v R [2010] NSWCCA 11

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373

Glenn (a pseudonym) v R [2020] NSWCCA 308

Gould v R; R v Gould [2021] NSWCCA 92

Greenhalgh v R [2017] NSWCCA 94

Harper v R [2022] NSWCCA 211

HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330

Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62

Kramer v R; R v Kramer [2023] NSWCCA 152

Latu v R [2023] NSWCCA 19

Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

Lyndon v R [2014] NSWCCA 112

Marco v The King [2023] NSWCCA 307

Mark McKey v Regina [2012] NSWCCA 1; (2012) 219 A Crim R 227

Maxwell v R [2020] NSWCCA 94

Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398

MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180

MM v R [2023] NSWCCA 236

MRW v R [2011] NSWCCA 260

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107

Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; [1991] HCA 34

R v Baden Clay (2016) 258 CLR 308; [2016] HCA 35

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

Rahman v R [2021] NSWCCA 290

Rassi v R [2023] NSWCCA 119

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Roos v R [2019] NSWCCA 67

RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

Saunders v R [2022] NSWCCA 273

The Queen v Favata [2006] VSCA 44

Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23

ZA v R [2017] NSWCCA 132; (2017) 267 A Crim R 105

Zhou v R [2021] NSWCCA 278

Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Zurshig v R [2021] NSWCCA 309

Category:

Principal judgment

Parties:

LH (Applicant)
Rex (Respondent)

Representation:

Counsel:
K Ginges (Applicant)
M Millward (Respondent)

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

File Number(s):

2020/324611

Publication restriction:

No.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 August 2023

Before:

Culver DCJ

File Number(s):

2020/00324611

HEADNOTE

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

The applicant was found guilty by a jury of three counts of sexual offending against his biological daughter between December 2019 and July 2020. There were two charges of sexual touching of a child aged 10 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW) and two counts of aggravated sexual intercourse with a child aged under 10 years under authority contrary to s 66C(2) of the Crimes Act. The applicant was acquitted of one of the s 66C(2) counts. An aggregate sentence of 10 years imprisonment with a non-parole period of 6 years and 3 months was imposed.

This was the applicant’s second trial following a hung jury. Prior to the commencement of the trial, the applicant’s counsel indicated that she did not intend to revisit any rulings from the previous trial. One of those rulings was that the Crown would be permitted to rely upon each count on the indictment as tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW). The two identified tendencies were: to be sexually attracted to his daughter and to act on that attraction.

The applicant participated in an electronically recorded interview of a suspected person (ERISP) and gave evidence at trial.

The issues arising on the appeal were whether:

1. (i) The conduct of the Crown prosecutor’s cross-examination and closing address occasioned a miscarriage of justice, including by:

1. commenting on the appellant’s failure to deny allegations;

2. unfairly urging upon the jury to engage in consciousness of guilt reasoning; and

3. by drawing on inferences not supported by the evidence.

2. (ii) The trial judge erred in:

1. directing the jury it could rely on consciousness of guilt reasoning arising from an assessment of the appellant’s demeanour in his ERISP and his failure to refer to the maternal grandmother in part of his response to police questioning;

and,

2. failing to direct the jury it must not draw any unfavourable inference (including as to credibility) from the appellant’s asserted failure immediately to deny allegations put by Police.

(iii) The trial judge’s directions to the jury on tendency amounted to a denial of procedural fairness and occasioned a substantial miscarriage of justice.

With one exception, none of the complaints raised in this appeal were before the trial Judge; Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies.

The applicant also appealed against his sentence on the basis that the sentencing Judge erred by taking into account matters of aggravation which would have attracted the more serious charge of persistent sexual abuse pursuant to s 66EA of the Crimes Act, contrary to the “De Simoni principle”.

The Court held (per N Adams J, Sweeney J and R A Hulme AJ agreeing) granting leave to appeal and dismissing all four grounds of appeal:

As to the conduct of the Crown prosecutor

1. No unfairness arose from the Crown prosecutor’s cross-examination of the applicant and closing address. The applicant at no time exercised his right to silence. The Crown prosecutor sought to explore the veracity of the answers that the applicant provided. Although the Court was not satisfied that the answers in the ERISP were clear failures to deny the allegations, any risk of prejudice arising from the cross-examination of the applicant (and the Crown closing address) regarding his answers in his ERISP was ameliorated by the directions given by the trial Judge. The Court rejected the applicant’s submission that the jury could not draw any adverse inference from the applicant’s responses to the allegations when assessing his credibility: [166], [171]-[172], [175], [177] (N Adams J); [290] (Sweeney J); [291] (R A Hulme AJ).

2. No error was disclosed in the way consciousness of guilt was left to the jury. It was open for the jury to draw the inferences the Crown invited it to. Further, an Edwards direction was given. The trial Judge gave protective directions about the use of demeanour and summarised the defence submissions in the summing up. The jury was provided with the respective arguments regarding demeanour and instructed that they could only have used it in the way advanced by the Crown if satisfied of all of the matters included in the Edwards direction: [187]-[188], [193], [196] (N Adams J); [290] (Sweeney J); [292] (R A Hulme AJ).

3. Nor was any unfairness occasioned by the Crown submissions regarding the demeanour of the complainant. The Crown invited the jury to use their common sense and life experience in their assessment of the complainant’s evidence, as occurs in all trials when the Crown case rests significantly on evidence given by a central witness: [184], [219], [221] (N Adams J); [290] (Sweeney J); [291] (R A Hulme AJ).

The Queen v Favata [2006] VSCA 44; Day v R (No 2) [2023] NSWCCA 312; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Zurshig v R [2021] NSWCCA 309; Crockford v R [2022] NSWCCA 115; Day v R(No 2) [2023] NSWCCA 312

As to the alleged errors of the trial Judge’s summing up regarding consciousness of guilt

1. It followed from the findings made under Ground 1 that the Court would not uphold Ground 2 either, given the protective nature of the Edwards direction, the trial Judge’s directions as to the drawing of inferences and the trial Judge’s direction as to the caution required before assessing demeanour under Ground 1. The suggestion that the jury should have been directed that that they could not draw any inferences from the applicant’s responses, including as to his credibility, is flawed; the jury was entitled to assess the manner of the applicant’s denials to the allegations when assessing the credibility of those denials and defence counsel relied on the same answers to boost his credibility: [231], [232] (N Adams J); [290] (Sweeney J); [291] (R A Hulme AJ).

Rahman v R [2021] NSWCCA 290; MM v R [2023] NSWCCA 236; Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Mark McKey v Regina [2012] NSWCCA 1; (2012) 219 A Crim R 227

As to the lack of procedural fairness regarding tendency evidence

1. The sole complaint under this ground was of a denial of procedural fairness. The difficulty for the applicant under this ground was that defence counsel at trial (the person best placed to evaluate the question of a loss of opportunity) did not perceive there to be any procedural unfairness at the time, in the atmosphere of the trial, and she informed the trial Judge accordingly: [256]-[258] (N Adams J); [290] (Sweeney J); [291] (R A Hulme AJ).

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288; Greenhalgh v R [2017] NSWCCA 94; Latu v R [2023] NSWCCA 19; Marco v R [2023] NSWCCA 307

As to the sentence appeal

1. The sentencing Judge was alive to the De Simoni principle and the sentencing task she was required to undertake. The existence of s 66EA of the Crimes Act as an offence does not mean that when an offender in a position of authority is sentenced for multiple offences (rather than under s 66EA) that the sentencing judge is precluded from having regard to the nature of the relationship between the victim and the offender when assessing the objective sentence: [283], [286] (N Adams J); [290] (Sweeney J); [291] (R A Hulme AJ).

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31; ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132; Maxwell v R [2020] NSWCCA 94; MRW v R [2011] NSWCCA 260; PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107

JUDGMENT

1. N ADAMS J: On 8 June 2023, the applicant was found guilty by a jury of two counts of sexual touching and one count of aggravated sexual intercourse. The offences were all committed on his biological daughter who was ten years old at the time. Given the statutory prohibitions on publishing the identity of the applicant’s daughter, [1] I have referred to her as “the complainant”. I have anonymised her family members in a similar manner.

   1. s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

The indictment

2. The period of the alleged offending behaviour was from December 2019 until July 2020. The indictment contained the following four counts which were said to have occurred across three occasions:

The first occasion

1. Sexual touching of a child aged 10 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW). This concerned an allegation that the applicant touched the complainant’s vagina.

2. Sexual touching of a child aged 10 years under s 66DB(a) of the Crimes Act. This concerned an allegation that the applicant touched the complainant’s breasts.

The second occasion

1. Aggravated sexual intercourse with a child aged 10 years (under authority) under s 66C(2) of the Crimes Act. This concerned an allegation that the applicant licked the complainant’s vagina.

The third occasion

1. Aggravated sexual intercourse with a child aged under 10 years (under authority) under s 66C(2) of the Crimes Act. This concerned an allegation that the applicant inserted his penis into the complainant’s mouth.

3. The applicant was convicted of the first three counts and acquitted of the fourth.

4. On 18 August 2023, the applicant was sentenced by Judge Culver to an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years and 3 months.

The Grounds of Appeal

5. The applicant appeals against his convictions pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

“Ground 1:   The conduct of the Crown prosecutor’s cross-examination and closing address occasioned a miscarriage of justice, including by:

(i)   commenting on the appellant’s failure to deny allegations;

(ii)   unfairly urging upon the jury to engage in consciousness of guilt reasoning; and

(iii)   by drawing on inferences not supported by the evidence.

Ground 2:    The trial judge erred in:

(i)   directing the jury it could rely on consciousness of guilt reasoning arising from:

(a)   an assessment of the appellant’s demeanour in his ERISP; and

(b)   the appellant’s failure to refer to the maternal grandmother in part of his response to police questioning;

and,

(ii)   failing to direct the jury it must not draw any unfavourable inference (including as to credibility) from the appellant’s asserted failure immediately to deny allegations put by Police.

Ground 3:   The trial judge’s directions to the jury on tendency amounted to a denial of procedural fairness and occasioned a substantial miscarriage of justice.”

6. The applicant also seeks leave to appeal against his sentence under s 5(1)(c) of the Criminal Appeal Act on the following ground:

“Ground 4: The sentencing judge took into account matters of aggravation which would have attracted the more serious charge of persistent sexual abuse pursuant to s 66EA of the Crimes Act, contrary to the ‘De Simoni principle’.”

7. The applicant does not contend that the verdicts are unreasonable or that there is any inconsistency between the convictions and the acquittal. The complaints are all directed at the cross-examination of the applicant at trial, the Crown closing address and the summing up. In seeking to establish that various discrete portions of the applicant’s cross-examination and the Crown closing address were unfair and that the summing up did not go far enough to correct the unfairness, the applicant’s counsel took the Court to various portions of the trial transcript. This required counsel for the Crown to take the Court to other portions of the trial transcript to place the impugned portions in context and ultimately submit that the trial did not miscarry.

8. Although I have endeavoured, where possible, to describe the various portions of the transcript relied upon by the applicant rather than extract them in full, for the most part the nature of the complaints cannot be properly understood without setting out the entirety of any impugned passage. It is for that reason that these reasons are lengthier than they might have been.

Leave to appeal

9. None of the grounds of appeal pertaining to the convictions involve questions of law alone. This means that the applicant requires leave to bring his conviction appeal: s 5(1)(b) of the Criminal Appeal Act.

10. Further, most of the complaints now made in this Court were not raised by trial counsel before the trial Judge. This means that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is engaged.

Pre-trial rulings

11. This was the applicant’s second trial. The first jury was hung. Prior to the commencement of the trial, the applicant’s counsel indicated that she did not intend to revisit any rulings from the previous trial. One of those rulings was that the Crown would be permitted to rely upon each count on the indictment as tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW). The two identified tendencies were: to be sexually attracted to his daughter and to act on that attraction.

12. Consistent with the pre-trial ruling, the Solicitor Advocate who appeared for the Crown at the trial (hereinafter “the Crown”), opened to the jury by outlining on tendency evidence to the jury as follows:

“SOLICITOR ADVOCATE: Furthermore, it’s also the Crown case that the accused had two tendencies. It's the Crown case that he had a tendency to have a particular state of mind, and a tendency to act in a particular way. Firstly, it’s the Crown case that the accused had a particular state of mind. That particular state of mind we allege he had a tendency to have is a tendency to have a sexual interest in his daughter, the complainant. Secondly, we say that the accused had a tendency to act in a particular way. The tendency we say the accused had was a tendency to act in a particular way, which was a willingness to act upon his sexual interest in his daughter and engage in sexual contact or activity with her.

Ultimately, what the crown will ask you to do at the end of the trial will be to ask you to consider the evidence regarding the conduct alleged by the four counts on the indictment based upon the evidence given by the complainant. We say, in our case, that that evidence demonstrates that the accused had a tendency to think and act in particular ways, and I’ve just outlined the particular ways, on the Crown case, we say the complainant’s allegations demonstrate he acted. So, he had the particular tendency to think in a particular way, and a tendency to act in a particular way, and I’ll address you on that in more detail at the end of the trial.”

The Crown case at trial

Overview of the complainant’s living arrangements

13. At the time of the alleged offending, the complainant was 10 years old and her body had started developing. She lived in a two-bedroom apartment with her younger brother, her parents and her maternal grandmother. The sleeping arrangements in the apartment changed depending on whether the complainant’s grandmother was at home. The evidence was that she worked 3-4 nights a week and did not come home on those nights.

14. When the grandmother was at home, the applicant would sleep with his wife in their bedroom. The applicant’s wife would stay awake in bed playing video games every night from about 9:30 or 10:00pm until 2:00, 3:00 or 4:00am. The grandmother would sleep in the second bedroom on a king-sized bed with the complainant’s little brother whilst the complainant would sleep on a mattress on the floor which was pulled out from underneath the king bed.

15. On the nights when the grandmother was away at work, the applicant would sleep in the second bedroom in the king bed with his son whilst the complainant slept next to them on the floor. A walk-through video of the apartment was played to the jury (Exhibit 9). It depicted that the mattress and the king bed were very close to each other in the second bedroom.

13. The Crown case is that all of the offences were committed whilst the grandmother was away, and the applicant was sleeping in the bed next to the rollout bed in which the complainant slept.

The complainant’s evidence

17. The complainant gave a JIRT (Joint Investigation Response Team) interview on 13 November 2020 in which she disclosed counts 1, 2 and 3. That interview was played for the jury at trial. The complainant told police that when she was sleeping the applicant came in and she woke up and he, “[l]ike just did all that weird stuff”. She stated that “at first it was like really awkward for me and really uncomfortable. But then I didn’t judge because I’m like the type that doesn’t, the type that’s really shy and I get really nervous around people”. She told police that it was “not very nice” and that the applicant told her not to tell anyone. She told police, “I didn’t trust anyone until the other day I was talking to my teacher about my life. And then I decided I can’t really take this anymore. So I basically told the teacher”.

18. During the interview, the complainant was asked to write things down and draw diagrams. These were tendered at the trial.

19. The complainant was due to commence her first day of her pre-recorded evidence for the court proceedings on 12 October 2021. The day before her pre-recorded evidence began, she watched her JIRT interview with police and when she finished watching it, she disclosed further conduct by the applicant which gave rise to Count 4 (the count in relation to which the applicant was acquitted). The complainant gave evidence that the reason she did not tell police about this incident in the first interview was because she felt “uncomfortable and … unsafe” “because I don’t like what happened”.

20. The complainant’s allegations can be summarised as follows.

21. Around December 2019, on the nights where the applicant slept in the second bedroom, he began taking the complainant’s pyjama pants off and touching and licking her on her vagina. The complainant said this occurred “once or twice a week”, after her brother had fallen asleep. She said the touching made her feel “really awkward” and “really uncomfortable” and that the applicant told her not to tell anyone. The circumstances comprising Counts 1 and 2 occurred in this period.

22. As for Counts 1 and 2, the complainant was asleep in her bedroom when the applicant came in and took her pyjama pants off. He touched her vagina in the “middle part” with his index finger (Count 1). He took off her shirt and touched her breasts (Count 2). During the JIRT interview, the complainant wrote down the sequence of events that occurred that day on a red Post-it note which was tendered at the trial (Exhibit PR2).

23. The complainant also gave evidence that on a night before July 2020 she was sleeping in the double bed with her brother because she was scared of her father and the dark. She gave evidence that the applicant entered her bedroom and inserted his penis into the side of her mouth and began thrusting back and forward. The complainant gave evidence that, as this was happening, the applicant’s eyes were “slightly open”, and she could see him “looking at the door which was like 10-20 centimetres open”. After three to four minutes, the applicant took the complainant’s brother, who had been facing away from her sleeping throughout the incident, to the bathroom. The complainant gave evidence that afterwards she asked the applicant what he was doing, and he told her: “don’t tell anyone”. This allegation was Count 4 upon which the applicant was acquitted.

24. The complainant gave evidence that on another occasion, the applicant entered her bedroom, took off her pants and licked her vagina “in the middle”. She said it felt “really weird … like slime pouring onto you” (Count 3). The complainant said this was probably the last time he did this to her. She wrote down the sequence of events which occurred that day on a blue Post-it note which was tendered at trial (Exhibit PR3).

25. The complainant told police that the applicant touched her vagina and breasts more than once on other nights as well. She also told police that she had written down on a piece of paper about the sexual abuse when it happened and put it in a folder with friendship letters but threw it out when her brother was looking at the folder once.

26. The complainant gave evidence that in July 2020 she told the applicant to stop and he did stop sexually touching and assaulting her. The complainant gave evidence that she nonetheless continued waiting until her father went to sleep before she fell asleep, in an effort to prevent further offending.

Complaint evidence

27. Five teachers from the complainant’s primary school gave evidence of complaint and observations of the complainant during the period of the alleged offending.

28. Ms Rebecca Churchland was a student learning support officer at the complainant’s school. In June 2020, she observed that the complainant was “particularly down” and enquired as to how she was feeling. The complainant told Ms Churchland that she did not “believe her life was worth living” and revealed that she had contacted the Kids Helpline.

29. Crystal Tuazon was a teacher at the school. On 12 November 2020, she asked the complainant how she was going. The complainant responded that she felt she was “trapped in a mirror maze” and was not “getting a lot of sleep". The complainant told Ms Tuazon that she kept herself awake because her father sexually assaults her: “My father sexually assaults me in [sic] bed where he pulls down my pants and touches me.”

30. Ms Tuazon and the complainant went to speak to the principal, Ms Estelle Southall. The complainant repeated the account and said her “father had sexually assaulted her multiple times, even when she told him to stop and that it had happened last July.” The complainant said that the first person she “felt comfortable to disclose to” was Mrs Tuazon, because she did not want her parents to get divorced.

31. Ms Southall gave evidence that between June 2020 and November 2020 the complainant was “pale, tired” and “not comfortable” and reported feelings of worthlessness and made statements such as “I shouldn’t be here".

32. Following the complaint on 12 November, Ms Tuazon and Ms Southall contacted police regarding the complainant’s disclosures. On 13 November 2020, Senior Constable Sally Penman arranged for the complainant’s parents to bring her to the police station to participate in an interview.

33. Emma Tamsett was the assistant principal. She first met the complainant in 2016 and described her as a “gorgeous and friendly little year 4 girl”. She remembered a conversation with the complainant in 2019 when she told her that she was sad. The complainant told her “my mum hates me”. Also, in mid 2019 the complainant told Ms Tamsett that her mother is strict and angry whereas her father is nice to her and buys her things. Ms Tamsett did not speak to the complainant in 2020 but she heard from other teachers and staff that the complainant was sad and having difficulties and “not the little girl that I knew in 2019”.

34. Emily Bull was the complainant’s teacher in 2020. She described the complainant as “happy and lively” at the beginning of 2020 but as the year progressed her demeanour changed. She withdrew from learning and was “rarely happy” by the end of Term 2 and start of Term 3 in June 2020. She spoke to Mr Churchland around the end of June 2020 which led her to check on the complainant daily.

The complainant’s mother

35. The complainant’s mother gave evidence that her mother (the complainant’s grandmother) lived with them “occasionally” with periods when she was there every day and periods when she was there for two to three days a week. When she was there, she would sleep in the big bedroom with the children, sharing the bed with her grandson while the complainant slept on a mattress on the ground. When she was not there, the applicant, who would normally sleep with her in the small bedroom, would sleep in the big bedroom. Her evidence was that once or twice he slept on the mattress but never with the complainant.

36. She gave evidence that in general her children were closer to the applicant than to her but that from the second half of 2019 into 2020 she noticed that the relationship between the applicant and the complainant “was not as close as before” and was deteriorating. She attributed that to the applicant’s work.

37. Her evidence was that in “roughly” 2019 or 2020 the complainant told her that the applicant touched her in “private area” when she came back from school. She immediately called the applicant who was at work at the time as she did not understand what the complainant meant by “touch”. The applicant told her that “he might have accidentally touched her” when he reached to catch the complainant who was about to fall out of bed. She confirmed that the word the complainant used to describe the touch in Chinese was “pong” and that it meant “a very slight touch”, “like touched by accident” but that it could also be “touch quickly”. Her evidence was that her mother was not staying over that night.

38. The complainant denied both telling her mother this and that the incident ever occurred.

Dr Susan Pulman

39. Dr Susan Pulman was called as an expert witness. She is a clinical neuropsychologist and forensic psychologist whose area of expertise is children. She explained that children generally do not scream or run away but rather are generally confused if someone they love or trust starts to abuse them. Dr Pulman gave evidence about the power dynamics between an adult parent and a child. Dr Pulman also explained that memory is a reconstructive process and that when an individual describes something that happened to them repeatedly, it is not uncommon for each description to be slightly different.

40. Dr Pulman gave evidence that children specifically do not have as much information in their memory storage as adults, and that as the brain develops so too does the capacity to store information. She explained that children generally lack the same memory retrieval strategies available to adults and that “errors children may make in recalling and distinguishing particular acts of abuse from others are more likely to be about identifying particular details rather than reporting details that never happened”. She also gave evidence that in a situation where there have been many incidents of abuse, children will quite likely remember the first and last occurrences.

41. Dr Pulman gave evidence about behavioural changes following abuse and the correlation between awareness of sex and disclosures of sexual abuse. In cross-examination she agreed that she was not familiar with any of the evidence in the trial proceedings and had never personally interacted with or assessed the complainant.

Officer in charge SC Penman

42. On 13 November 2020, the same day she received the information, Senior Constable Sally Penman arranged for the complainant’s parents to bring the complainant to the police station to participate in an interview. When she spoke to them on the phone, she told them that it was in relation to a report involving the complainant without conveying any information in relation to the allegation.

43. When the complainant attended with her mother, the applicant, and her brother, SC Penman repeated to the complainant’s parents what she told them when they spoke on the phone including that the interview with the complainant would be recorded. The applicant remained in the foyer with the complainant’s younger brother during the interview.

44. In cross-examination, SC Penman denied that she had any off-record conversations with the complainant or that the complainant was encouraged during the interview to “take a guess” if she did not know something.

The ERISP (electronically recorded interview with a suspected person)

45. Immediately following the first interview with the complainant, SC Penman arrested the applicant and took him to Mascot Police Station. He was offered the opportunity to participate in an interview with police, which he accepted. The applicant is Chinese-Australian and his first language is Mandarin. He declined the assistance of an interpreter.

46. At the time of his interview, the allegations giving rise to Counts 1-3 were put to the applicant. When each of them was put to him he was asked whether he had anything he wished to say. His responses were as follows.

Sleeping arrangements

47. When the applicant was asked by police about the sleeping arrangements in the family house, he initially stated that he shared a small bedroom with his wife whilst his mother-in-law slept with his daughter and son in the big room. When asked how they fit in the bedroom, the applicant told police that his mother-in-law and his son shared a “really big king-sized bed” and his daughter slept on a “little bed which is on the bottom, single bed” and that “they are not on in the same level, so a special single bed is for her”. When asked whether his wife and the mother-in-law worked, he told police that his wife did not work and that his mother-in-law worked “around one, two days a week” in “age care or home care, something like that”.

Accidental touching admission

48. The police asked the applicant whether he had ever spoken to his daughter about any of the allegations put to him in the interview. He said that he had “a story here. That’s what you remind me of in 2019…and if want here I can tell you”. The applicant said that one morning in the winter of 2019, at about 5:00 or 5:30am, he had entered the complainant’s room to “have a look” because “they sleep over different room with me. Once I got ready, dressed up, I will go to their room.” The applicant told the police that the complainant was “half falling from the bed, sleep, to lay down, so I just pick her up. My hand was in the, you know, not correct position. So it was on her, basically private part and she was awake.” The applicant later clarified to police that the private part of the complainant he had touched was her vagina.

49. The applicant told police that his wife had confronted him the same day of the incident in 2019. He told her it was an accident. The applicant told police that his wife told him to keep some distance from the complainant because she was “growing up, so noticing a lot of things now, so you be careful what you’re doing.”

Allegation of touching vagina

50. When police put the allegation of touching the complainant on the vagina to the applicant he answered as follows:

“Q151   … it’s alleged that … sometime last year, ah, you have…got into…her bed and … have touched on her vagina. Can you tell me anything about that?

A   Seriously? I sleep with her mother, so if I sleep with her mother, I can’t go to the bed, because her mother sleep late night. Her mother play the games. Her mother plays the games. I have to sleep around 10.30 to get up at 5 o’clock, 5.30 in the morning and her, my wife, ah, just sleep like 3 o’clock in the morning or 4 o’clock in the morning. She’s playing computer games, so the time is very …so it’s---

Q152   There’s nothing more you can tell me about that?

A   I, seriously, there’s nothing I can tell you, because if I get up or go to that room, my wife would know straight away.

Q175   … So is there anything you can tell me about what I’ve just asked you in relation to the allegation of you touching your daughter’s vagina with your fingers?

A   Basically, I didn’t do that ….”

(Emphasis added.)

51. When the same allegation was put to him later in the interview, the applicant responded as follows:

“Q215   What can you tell us about that:

A   Nothing. I didn’t do that. How can I tell you that?”

Allegation of touching breasts

52. When the allegation of touching the complainant’s breasts was put to him, the applicant’s responses were as follows:

“Q176   … t he allegation is … that whilst you’re in that bed with your daughter is that after touching her on the vagina, you have then taken her top off and touched her on the breasts. Can you tell me anything about that?

A   There’s nothing I can tell, seriously.

Q179   … you do not have to say or do anything, O.K.

A   … I’m very easy sleepy guy, and, ah, my wife knows that. Once I sleep on the bed, five minutes ….. so I’m not trying to explain myself, but I don’t know what’s happened out here and I explain what best I can. So that’s it. If my daughter says I did it, there’s nothing I can explain to you guys now. So---

Q180   Also this is … the best chance for you to tell us your side of the story.

A   Ah, yes. I did tell all of story of my side now, but, um well, you have been talking to my daughter for a long time. ... there’s really not much I can explain now.”

(Emphasis added.)

Allegation of licking vagina

53. In relation to the allegation of licking the complainant’s vagina, the applicant’s response was as follows:

“Q241   ... So the next incident, your daughter recalls … in around July this year … while she was in bed … you have come into the bed and you have taken her pants off and you have licked her vagina. Can you tell me anything about that?

A   Jesus. What … ah, there’s nothing I can tell you for this one either.”

(Emphasis added.)

The defence case

The applicant’s evidence at trial

54. The Crown case closed on the fifth day of the trial, 29 May 2023. The same day, the applicant gave evidence. He was briefly examined in chief before being cross-examined. The applicant’s written submissions extracted significant portions of his cross-examination where the Crown put certain portions of his ERISP to him. In particular, complaint is made about the following passages.

Denying the allegation by reference to his wife rather than his mother-in-law

55. The complainant gave evidence that the sexual assaults occurred on nights when her grandmother was not there, and the applicant was sleeping in her room. In that context, the following questions were put to the applicant in cross-examination:

“Q. Well, when you hear the precise allegations spelt out to you for the first time, you didn’t respond by saying something to the effect of, ‘That’s impossible. My mother-in-law would’ve noticed’, do you?

A. WITNESS: Yeah - I didn’t - I did not mention her. Yes.

Q. Now, your response was that - essentially, ‘That’s impossible because my wife would have noticed’, in a nutshell?

A. WITNESS: Yes.

Q. So you somehow knew that the allegation was that the offending occurred when your mother-in-law was absent?

A. WITNESS: I didn’t know that.

Q. Then why didn’t you, at this point, say something to the effect of, ‘That’s impossible. My mother-in-law sleeps in the same room as my daughter. If any of this had happened, she’d have noticed’?

A. WITNESS: I just didn’t mention her. That’s all.

Q. You didn’t mention her because you know that the offending occurred when your m other-in-law was absent?

A. WITNESS: Of course not.

Q. You know the offending occurred when your mother-in-law was absent because you daughter’s allegations are true?

A. WITNESS: I disagree.”

Applicant’s response to allegations when first put

56. The applicant was cross-examined about the answers in his ERISP when it was first put to him that he had touched his daughter’s breast (see above at [53]) as follows:

“Q. I’ll ask that again. Hearing that your daughter has accused you of touching her breasts would have been shocking for you at the time?

A. WITNESS: Yes.

Q. And when you heard it for the first time, as I’ve just read out, you understood that that’s a really serious allegation to be made against you?

A. WITNESS: Yes.

Q. When the police officer spelt out the allegation and said, ‘Can you tell me anything about that?’, you responded with, ‘There’s nothing I can tell. Seriously’. Correct?

A. WITNESS: That’s right.

Q. Why didn’t you respond with, ‘That never happened’?

A. WITNESS: It’s my English ability.

Q. Was it your English ability or was it your inability to bring yourself to deny the allegation because you knew it was true?

A. WITNESS: I - sorry.

A. INTERPRETER: ‘Seriously’, means shocking, so what I mean is that all these things never happened, so I have nothing to say. I couldn’t tell anything because they never happened.

Q. I’m suggesting that you knew, within yourself, that that allegation was true, and so you were finding it really difficult to respond to it by saying, ‘No, that never happened’; do you agree?

A. WITNESS: I disagree.”

Applicant’s demeanour in the ERISP

57. The applicant was cross-examined about his demeanour and his first responses to the allegations as follows:

“Q. At the end of that answer, you said, “If my daughter says I did it, there’s nothing I can explain to you guys now”; do you see that?

A. WITNESS: Yes.

Q. Isn’t that another example of you being unable to bring yourself to deny the allegation because you knew, and you know within yourself, that it’s true?

A. WITNESS: As a father, I was really sad and upset. I am sad and upset right now. As a father, my heart was broken. If my daughter has accused me of this crime, I couldn’t explain myself.

Q. Are you saying that during the interview, you were feeling really sad and upset?

A. WITNESS: Yeah, after I - after I heard alleged accusation.

Q. Can I suggest that throughout the interview, you seem completely unsurprised and unphased upon hearing the allegations; do you agree?

A. WITNESS: Of course not.

Q. The reason you appear totally unphased and unsurprised each time you heard the allegations is because they weren’t surprising to you at all, were they?

A. WITNESS: The video presented by the police have been cut. The parts that I was excited was not in the video.

Q. So we have seen footage of allegations being put to you by the police, haven’t we?

A. WITNESS: Yes.

Q. When they’re made to you, you’re totally unphased, aren’t you?

A. INTERPRETER: I am shocked, but I can’t do anything.

Q. You’re totally unsurprised when you hear the allegations, aren’t you?

A. INTERPRETER: Of course, I am shocked.”

(Emphasis added.)

Failure to deny the touching of breast allegations put by police

58. The applicant was cross-examined about his failure to deny the allegations of touching the complainant’s breasts as follows:

“Q. You would - going to go about this a different way. On this page you’re hearing about the allegation that you touched your daughter’s breasts for the first time. Correct?

A. WITNESS: Yeah. That’s correct.

Q. And you’re first response - your immediate response is to say, three times, ‘There’s nothing I can tell seriously.’ Secondly, ‘If my daughter says I did it, there’s nothing I can explain to you guys now’. And thirdly, ‘So if she says all, this all, there’s really not much I can explain now’?

A. INTERPRETER: Question 176? - Yeah.

A. WITNESS: Yeah.

Q. Your immediate reaction isn’t to say, ‘No. I didn’t do that. That never happened’. It’s just to say, ‘There’s nothing I can explain to you guys now’?

A. WITNESS: Yeah.

Q. So your immediate response was not to deny the offending. Correct?

A. WITNESS: Of course not.

Q. Because you did it?

A. WITNESS: I didn’t do it.

Q. That’s why your immediate response wasn’t to deny it. Because you did it. That’s what I’m suggesting --

A. INTERPRETER: I couldn’t deny it because when the alleged crime was spelt out to me, I couldn’t explain it.”

(Emphasis added.)

Failure to deny licking of vagina allegation put by police, looking “unphased”

59. The applicant was cross-examined about his failure to deny the allegations of licking the complainant’s vagina and looking “unphased” as follows:

“Q. I’ll come at it from a different angle. Do you see your answer or your response to hearing about the allegation of licking your daughter’s vagina is, ‘Jesus, what...uh, there’s nothing I can tell you for this one either. I’m sorry about that’. You see that?

A. WITNESS: Yes.

Q. My suggestion is that as during Senior Constable Penman’s description of the allegation, as the words, ‘You have licked her vagina’, fell from Senior Constable Penman’s mouth, you were totally expressionless and unphased.

A. WITNESS: I’m shocked.

Q. You weren’t shocked.

A. WITNESS: I disagree.

Q. You were unsurprised at hearing the allegation that you had licked your daughter’s vagina.

A. WITNESS: I disagree.

Q. This moment in the interview is the first time you’ve heard about this particular allegation, isn’t it?

A. WITNESS: I can't remember. Yes, maybe.

Q. You don’t react to that allegation until Senior Constable Penman says, ‘Can you tell me anything about that?’

A. WITNESS: I disagree with that.

Q. Up until Senior Constable Penman saying, ‘Can you tell me anything about that’, I suggest you were expressionless, and you appeared totally unphased upon hearing this p articular allegation.

A. WITNESS: I disagree with that.”

(Emphasis added.)

Failure to immediately deny allegation of licking complainant’s vagina

60. The applicant was cross-examined about his failure to immediately deny the allegations of licking the complainant’s vagina as follows:

“Q. And again, hearing the allegation that you licked your daughter’s vagina, you didn’t say, ‘That never happened’, that wasn’t your first response, was it?

A. WITNESS: It didn’t happen, that’s why I said nothing to tell.

Q. It was only afterwards when the police officer said, ‘Can you recall a time when something like that may have happened’?, that you replied, ‘Never has’?

A. WITNESS: Yes.

Q. But saying, ‘This never happened’, wasn’t your first response upon hearing the allegation, was it?

A. INTERPRETER: My mind wasn’t very clear.

A. WITNESS: I was stunned by that time.

Q. Can I suggest that, during that interview, you look anything but stunned. You look calm and unphased.

A. WITNESS: I disagree with that.

…

Q. I’m suggesting this is another example of your inability to bring yourself to actively deny the allegation because you know, within yourself, that it’s true.

A. WITNESS: I disagree. I just answered the question.”

61. The applicant was also cross-examined about the innocent explanation he provided to police. It was suggested to him that he volunteered a story about accidentally touching the complainant on the vagina because he knew that was what the allegation would be.

62. Consistent with the Crown opening, it was put to the applicant that he had the two tendencies relied upon by the Crown. The applicant denied that he was sexually attracted to his daughter and/or had acted on that.

Re-examination

63. The applicant was re-examined. He explained that the reason he slept in the second bedroom was because his wife had “very bad depression” and insomnia and playing video games helped her and that he would sleep in the other room to “give her a bit of quiet space” and look after the children. He agreed that in his culture it was normal for a parent to sleep with a five-year old child.

64. The applicant agreed that he arrived at Strawberry Hills Police Station at 6.30pm. The complainant was interviewed until after 8.00pm. His interview started at 9.55pm and finished after 11.00pm. It was his first time being arrested. He felt “exhausted”. He was asked why he agreed to be interviewed without a lawyer or an interpreter and he replied:

“A.   Actually, I was exhausted, I was stumped, and my mind was all crumbling, so didn’t even hear clearly what they talking about, so I just tell whatever is.

Q.    Were you trying to lie to them at all in the interview?

A.   No. I just tried to explain.”

65. He was asked about the answers he gave such as “there’s nothing I can tell you”. He explained that he was just trying to answer the questions. He explained that his first language is Mandarin and that in order to answer in English he needs a “translator to my language in my head, then try to speak back in English”.

Discussion about legal directions before closing addresses

66. The defence case closed the following day, on 31 May 2023. Prior to the commencement of closing addresses, the trial judge raised some proposed directions with the parties including the tendency direction:

“HER HONOUR: Now, can I come back to the two areas of perhaps more delicacy. And that is firstly, concerning the Crown's position as regards tendency in our consideration of Rassi. [2] What do you say? I don’t think there’s any controversy concerning the admissibility of the counts vis-a-vis each other as tendency evidence. Can I turn now to the evidence of [the complainant], to the effect that this had occurred on other unparticularised occasions? What’s the Crown's approach to that evidence?

2. Rassi v R [2023] NSWCA 119.

SOLICITOR ADVOCATE: After some significant consideration, your Honour, I’m fairly confident I won’t be invoking tendency reasoning in my closing address.

HER HONOUR: So more a context position?

SOLICITOR ADVOCATE: More context--

HER HONOUR: I’m comfortable with directing on that basis. Do you want me then to hold off to hear how you posit that to the jury, and then we can all return to that point, to finalise that direction?

SOLICITOR ADVOCATE: Yes, your Honour. I’m fairly confident I won’t be making a tendency submission to the jury.

HER HONOUR: All right. Do you agree, Ms Goodwin, that given that’s the Crown’s current position that we hold off just to hear the way in which it's put to the jury.

GOODWIN: Yes, your Honour.”

67. The trial Judge then raised the issue of lies or conduct going to consciousness of guilt. The Crown indicated that he would particularise those in his closing address. The trial Judge asked him to particularise them before his address to avoid “some issue arising after the closing address” and indicated that she needed defence counsel to be on notice about this so there was no surprise. The proposed direction was discussed including by reference to the decision in R v Baden Clay. [3] Defence counsel requested a number of further directions on matters such as the applicant not needing to establish a motive to lie and delay. Her Honour deferred her decision on some of these directions until she had heard the closing addresses.

    3. (2016) 258 CLR 308; [2016] HCA 35.

68. There was also a discussion between her Honour and counsel about directions in respect of demeanour. Her Honour proposed a direction about the dangers in attempting to assess the truthfulness of a witness by reference to their body language or demeanour where different cultural backgrounds are involved given that the Crown cross-examined extensively on that. In response, defence counsel requested a specific direction in relation to cultural differences in responding to police questioning.

The Crown closing address

69. The Crown closing address began in the morning of 31 May 2023 and finished in the morning of 1 June 2023. I have extracted the portions which are the subject of complaint under Ground 1.

Complainant’s credit

70. The Crown submitted that the jury would find the complainant to be a truthful witness. In doing so, he invited them to consider the manner in which the complainant gave her evidence, both in her interviews and her evidence. Part of the address about which complaint is now made was in these terms:

“I’d like you to consider Miss Southall’s description of [the complainant]’s demeanour when she disclosed the allegations. Miss Southall said [the complainant] appeared quite calm and factual. She was clear and direct. Now that’s quite similar to what Miss Tuazon said when describing [the complainant’s] demeanour when [the complainant] initially disclosed the offending to Miss Tuazon. Miss Tuazon said that [the complainant] was ‘quite matter of fact about it, she wasn’t overly emotional. She was sort of stating a fact and continued talked but she was talking quite fast when she was saying everything as well.’

It’s a matter for you. Demeanour isn’t everything but you might think it’s important because some people might struggle to control their demeanour. You might think children, in particular, might struggle to control or confect their demeanour. You might have thought that [the complainant], as I said earlier, is quite unfiltered. Another way of describing it is unvarnished and you might think that those descriptions of her demeanour when disclosing the offending describing disclosing it in a sort of matter of fact way, calm and factual, clear and direct, matter of fact about it, may think that that is consistent with the complainant telling the truth when she made those initial disclosures.”

(Emphasis added.)

71. The Crown also addressed the jury on the complainant’s evidence in the JIRT interview and pre-recorded evidence:

“… consider the way [the complainant] delivered her evidence, the way she appeared, her demeanour, when being interview by the police, and when she was giving evidence. When she was being asked questions by the prosecutor who asked her questions when she was giving evidence and when she was being cross-examined. Consider how she presented as a witness, and that might be something you’ve already individually or collectively formed a view about.”

72. The Crown submitted that the complainant’s written record of the account was also relevant to the jury’s assessment of her credibility. The Crown told the jury that the complainant’s written account, created during the police interview, took “a considerable amount of bravery and resolve…to actually commit these things to paper in the way she did”. The written record included some drawings created by the complainant, in relation to which the Crown told the jury: “it would be really difficult for [the complainant] to do this unless it really happened to her”. The Crown submitted:

“You might think it’s one thing for [the complainant] to say to her teacher that her dad sexually assaults her, you might think that that’s an allegation which is fairly simple and straightforward, and easy to say. You might think that it’s a different proposition entirely to actually write down on a piece of paper in the way that [the complainant] did step-by-step what her dad did to her. You might think that it takes a considerable degree of bravery and resolve for [the complainant] to actually commit these things to paper in the way she did with the red note.

You might think that [the complainant]’s preparedness to write this down on paper speaks to her credibility, it speaks to her truthfulness, it speaks to the truthfulness of the things she wrote on the paper. So her willingness to write this down on paper with her willingness to write down what her dad did to her on the red Post-it note is consistent with an honest account, you might think. Ultimately, the submission is that it’s easier to say something than it is to write it down and commit it to paper.”

(Emphasis added.)

73. The Crown also referred to the complainant lifting her finger when providing her account of the offending:

“Now, one thing you might have recalled during that moment in the interview is that when [the complainant] was saying, ‘In the middle’, she actually lifted up her index finger and made a motion going downwards. She demonstrated it. She demonstrated with her index finger. Why is that relevant? Well, this is something I’m going to come back to again later on, but when you’re looking for whether or not a witness is giving you an honest account or a real memory, you might think that people something [sic] involuntarily or unconsciously gesture when their accounting [sic] an authentic memory.”

(Emphasis added.)

74. The Crown made a similar closing submission in respect of Count 4 in reference to the complainant raising her right hand to point to her right cheek in describing the allegation. He submitted that behaviour was consistent with an “honest witness giving an authentic memory” and it was “exactly the kind of little details that you would expect in an honest, truthful account; a real memory being conveyed to you.” The Crown further submitted that “[i]nvoluntarily or automatically gesturing when you’re recounting a memory is something that we all do when we’re telling people about something we experienced.”

75. In relation to the drawings made by the complainant during her JIRT interview, the Crown also submitted:

“[The complainant] later actually drew out where she was positioned, where her brother was positioned, and where her father was positioned. You all have that as PR 4. PR 4 is the photo of the bedroom and this relates to the red note, so it relates to counts 1 and 2, and this is significant for one particular reason. [The complainant]’s drawn in in red - it’s not that easy to see, but you can see she’s drawn her brother and she’s labelled it, ‘brother’, she’s drawn herself lying on the mattress, but then what she’s done - and this is what the Crown says is particularly important - she’s drawn her father on top of her.

Earlier, I made a submission to the effect that [the complainant]’s preparedness and willingness to put to paper on the red note, ‘This is what my dad did to me’, and put to paper on the blue note, ‘This is what my dad did to me’, says a lot about her truthfulness. The submission was to the effect of that it’s easy to say these things happen to you but it’s a lot harder to write them down on paper. You might think that it’s even harder to draw it. This is a drawing [the complainant] did of her father sexually assaulting her. You might think that it would be really difficult for [the complainant] to do this unless it really happened to her.”

(Emphasis added.)

Consciousness of guilt

76. The Crown suggested that the applicant’s denials were not “worthy of [your] acceptance” and that:

“… there are aspects of the things he said during his interview with police which might have left you with the impression that he is guilty of these offences.”

(Emphasis added.)

77. The Crown said this about the story the applicant gave of touching the complainant as she was falling off the bed:

“He told this account to the police in order to provide an innocent explanation for the allegations he anticipated his daughter had made. How was he able to anticipate that the allegations would involve his hand touching his daughter’s vagina?”

78. The Crown also submitted:

“… the accused’s response, upon hearing of the specific allegations for the first time, revealed in his response, he revealed that he had knowledge about the complainant’s allegations that the police had not conveyed to him yet. He somehow already knew that the offences occurred on a week night. He somehow already knew that the offending occurred on a week night and he somehow already knew that the offending occurred when the grandmother was away.”

79. The Crown also addressed the jury about the applicant’s failure to tell police that the offending would have been impossible because of the presence of his mother-in-law:

“He also places a significant amount of emphasis on the fact that this could not have happened ‘because my wife would have noticed’. We know that the arrangement at the time was that the grandmother would spend several nights a week sleeping at the apartment, sleeping in the bedroom with the children. When that would happen, the accused would sleep in the bedroom with his wife. If the accused is going out of his way to emphasise how impossible the allegation is because his wife would have noticed, you might think he would also say this is impossible because the grandmother would have noticed because she sleeps in the same room as them but he doesn’t mention her at all. He doesn’t say that. He doesn’t say this is impossible. The grandmother would have noticed and why because he knows that these offences were committed when the grandmother was absent. [sic]

This is quite an important answer because it reveals the knowledge that the accused brought into the interview. This is information that the police had not already conveyed to him. He somehow knows it already. His answer reveals that he possesses information about the allegation that he could only have if he committed the offences. It’s a matter for you but you might think that particular answer, the way he responded to it, revealed a lot.”

(Emphasis added.)

80. The Crown said the following to the jury in relation to the applicant’s disclosures regarding the sleeping arrangements:

“He wants to leave the police with the impression that the sleeping arrangements were arranged in a particular way so that the offences couldn’t have happened but it’s misleading. Why was that his first response upon hearing the specific allegations for the first time? Why was his first response to lie to the police about the sleeping arrangements? Why was his first response upon hearing the specific allegations spelt out to imply that the offending was a practical impossibility? Why is that how he would react straight away? It’s a matter for you.

You might think that it’s hard to accept him as a credible and honest witness if that was how he responded when he first heard the allegations spelt out. You might think the reason his first reaction was to lie is because he’s guilty. You might think that choice he made in that moment reflects a consciousness of guilt, an awareness on his part that he’s guilty and that awareness, that consciousness leads him down the path to making decision about how he’s going to respond and that decision was to lie. You might recall the evidence he gave when I was cross-examining about this response and you might think he was quite stubborn. He was quite obstinate. He wouldn’t accept that he deliberately mislead [sic] police. It’s a matter for you how you assess him as a witness given his refusal to accept that he was deliberately misleading police in that moment.”

81. The Crown went on to say this:

“Now, in the interview he does go on to eventually acknowledge that he would sleep in the kids’ bedroom on occasion but you really need to read the question and answer of how that came about because he doesn’t volunteer it. The police actually ask him, ‘So when your mother-in-law goes to work, who sleeps in the bedroom?’ He hears that question asked, ‘When your mother-in-law goes to work, who sleeps in the bedroom?’ And then he says it’s him. He says, ‘Most of the time, me’. He doesn’t offer it. He doesn’t volunteer it. He doesn’t put up his hand and say, ‘Oh, actually, I do sleep there sometimes.’ The police probe and then, then he admits that he sleeps there sometimes. So, it’s not information he volunteered. It’s information the police extracted by asking questions.”

82. In relation to the applicant’s demeanour in the ERISP, the Crown said:

“You might have thought that his reaction every time he learnt of a new allegation was totally unfazed, expressionless, emotionless. He didn’t seem surprised at all. He didn’t seem shocked at all. I’m not saying demeanour is everything and everybody is different, and everyone reacts different to different situations. We aren't all the same. This isn’t the be all and end all of the entire case. It’s just one detail that I want to emphasise.

He has almost no reaction to learning of the specific allegations. Now it’s not as if he’s someone who’s incapable of responding, of being animated, of showing emotion, of showing surprise. You know that because there is a moment within the ERISP when he does convey surprise, when he does seem a bit shocked, when he becomes a bit animated; and that’s when he's asked by the police whether or not he’s ever had any discussions with his wife about divorce.

…

He actually does express surprise, authentic surprise, in his voice. He’s not incapable of expressing himself in that way. It’s not a concrete feature of his personality, you might think, that he never expresses surprise. He can express authentic surprise, and there’s only one moment in the entire interview when he does, and that’s it. Not when he hears the allegations.

When he was told about the allegation of licking his daughter’s vagina, you might have found that response he gave to be inauthentic. If you watch it back, you’ll notice that he essentially gives no reaction as the police officer is saying the words to him that the allegation is that ‘He licked his daughter’s vagina.’ He’s essentially providing no reaction.”

83. The Crown went on to address the jury about the lack of denials in this way:

“Now another feature of the interview is his failure, his frequent failure, to actually actively deny the allegations when they're levelled. Now it may be suggested later that the question he was asked was, ‘What can you tell me about that?’ So, he responds, ‘Well, there’s nothing I can tell you about that.’ And that that’s in line with what he’s being asked. ‘What can you tell me about that? “Nothing. I can’t tell you anything”.’ Okay, sure, that makes sense on one level, but on another level, wouldn’t you also deny the allegation in that moment? Why doesn’t he? Why doesn’t he straight away say, ‘That never happened?’ Why isn’t that his first reaction when the allegations are levelled that [sic] him?”

84. The Crown suggested to the jury that the applicant’s explanation in court about his responses to police that he was exhausted “says a lot about his actual guilt” because he did not say he was bewildered, confused, upset, panicked or shocked. The Crown submitted “there are moments in that interview that in our submission reveal his awareness or his guilt to these offences. They tell you a lot about his perspective.”

85. At the conclusion of the Crown closing, the trial Judge asked whether there was anything arising from the closing address and defence counsel responded: “No, your Honour.”

The defence closing address

86. The defence closing address commenced in the morning of 1 June 2023 immediately after the Crown closing address and finished that day. Defence counsel responded to matters raised in the Crown closing as to the applicant’s ERISP and the demeanour of both the complainant and the applicant. As for the applicant’s initial answers to police, she suggested:

“You also, if you so choose to have reference to it though, can consider the accused’s evidence and what he told the police. Of course you can consider that. It’s a matter for you. Because he waived his right to silence. He even waived his right to an interpreter at the police station. He went to the police, he answered their questions. He jumped in the box, he answered my questions, he answered the Crown’s questions. And can I suggest that a fair understanding of his evidence is that it’s- he’s saying ‘I didn’t do it, I’m not guilty’. Can I suggest that a fair understanding of his evidence in the situation he was in at the time, having been working throughout the day and then waiting for [the complainant] to give her interview and being arrested, thrown in the- put in the police truck and taken to the other station and sitting around for a couple of hours and then starting the interview at 10pm, can I suggest that a fair understanding of that is that he was saying, ‘I didn’t do it. I’m not guilty’.

And he appeared to be honest when you take those things into account, can I suggest? Can I particularly ask you to remember that during that police interview, he’s giving his answers in English. English isn’t his first language. And can I suggest there are times in that interview that there’s clearly some sort of language barrier affecting his understanding of what he’s doing? He can get by, he understands English pretty well, absolutely. But there’s language or cultural barriers at play, can I suggest? You can’t judge him the same way that you might answer the questions in an interview. But again, can I ask you to put yourself in his shoes when you assess that interview?”

(Emphasis added.)

87. Defence counsel then said this about the applicant’s account of accidentally touching the complainant:

“Yeah, I mean, if you’d had this situation and, you know, in the prior year or whatever where [the complainant] said that you touched her private parts and you knew about that and you knew that that was false or that it had been an accident, I mean, not that it was false but that it had been an accident at the time and she was saying in a way that made it sound deliberate, of course that’s the first thing that’s going to come to your mind. Oh, I’ve been charged about sexually touching and sexually assaulting [the complainant]. She spent an hour talking to the police.

‘I’m going to offer this, I’m going to tell them this because this happened,’ and again, it’s not in dispute that this happened. Of course, of course, he’s offering it to the police as an innocent explanation as to why she could be making allegations. Is it particularly surprising? And as for this suggestion that he only offered it because he must have known that what she would be alleging would include a hand on the vagina or touching her vagina, no, no. You’ve been told a number of times, twice before you get into the interview room and three times also during the interview, that you’re being charged for sexual assault and sexual touch.

I mean, what do you think it’s going to involve? Wouldn’t your first thought go, ‘Oh, well, touch, what did I use to touch from my hand? They’re alleging I’ve touched her, are they alleging down there?’ Bearing in mind again, this is actual real thing that happened. It does provide an innocent explanation, doesn’t it? I mean, of course, that’s what he’s going to raise.”

88. The applicant’s counsel submitted the following with respect to the drawing of inferences regarding the applicant’s response to this allegation:

“… the learned Crown prosecutor was making submissions to you about why things the accused said particularly in his interview may indicate a prior knowledge about the accusations or the allegations, why they reveal to you as I understand the learned Crown’s argument and cross-examination that he must’ve known what had happened before he went into the interview and that’s why he could give these answers?

They’re inferences that you’re being asked to draw, all right. You’re being asked to jump to those or to make those conclusions based on what’s said and based on other surrounding circumstances, such as the nature of the allegations themselves. I expect you’ll be told something about inferences by her Honour, when you can draw them and when you can’t but can I suggest this, that there are some many different inferences that can be drawn from things like that. None of them that were submitted to you that should be drawn by the learned Crown can I suggest are the only inferences available to be drawn? And not only the rational inferences available to be drawn.”

89. As for the applicant’s failure to mention the grandmother when providing his explanation for why the offences could not have been committed, the applicant’s counsel said this:

“Let’s also not forget granny wasn’t always there, and that’s important because the crown prosecutor asked you to infer that the accused knew that an allegation was being made about something he had done. Granny wasn’t there and the only way he would know that was if he had done it, so you're being asked to infer from that that he must have done it because that’s how he would know that.

Again, can you think of other rational explanations for this stuff? Can I suggest one of them is just going to be if these sort of allegations are being put with you, why would you ever think, they are suggesting to me that that happened on a night when granny was there. Why would you ever think that? That doesn’t make sense. That they would be suggesting to or asking you it necessarily happened while grandma was there. I mean, grandma was there full-time apparently for some time during two years or whatever, was there half the nights a week or something for some other time. Why would you not just assume, are they talking about some time when granny wasn't there, and it would seem a weird thing to allege that it happened right in her presence.”

90. With respect to the Crown submission that the applicant’s response to the question suggested an awareness that the alleged conduct occurred on a school day, the applicant’s counsel responded:

“What about the suggestion that because he talked in that answer about getting up to go to work, get up about 5 o'clock, 5.30 in the morning, that he must have known it was being alleged that he had done these things on school days. That's a conclusion you've also been asked to draw, and of course, you’ve been asked to infer that because he must have known that because he provided that answer straightaway, that he therefore actually committed the offences because he wouldn't have known it otherwise when he was being asked and he wouldn't have volunteered that …

Even their case that they are asking you to consider is that those things happened on a day that is not identified with any precision, and let's not forget, there are other times the Crown is alleging that this stuff happened outside of the charged acts. How can you possibly say, he has raised this in this answer because he must have known that it was being alleged that he had done this stuff on a school day because that's what [the complainant] wrote on the Post-it note and had been at school. although that's not necessarily something that you would have to find beyond reasonable doubt. You could find that it happened on any day so long as the act comprising the count.”

91. With respect to drawing inferences with respect to the sleeping arrangements, defence counsel submitted that:

“… There’s a number of things about this answer that the Crown as I understand it asked you to conclude about it, all of which the Crown invited you to reason made it more likely that the accused is guilty in effect.

The first one is looking at that answer that the accused gives at 151, is that the accused was being dishonest when he gave that answer, because he’s giving the impression that he sleeps with [the complainant]’s mother every night, all right. So the Crown said that was his initial response and it was dishonest and - in my words he responded - in effect that he was trying to mislead the police by indicating that, ‘It couldn’t have happened because I sleep with my mother, I don’t sleep in her room or I'm not in her room.’ Can I refer you just down the page to question 158. He is given a caution after that answer, and he is asked more about it, about when his mother-in-law goes to work, and he is asked, ‘So when your mother-in-law goes to work, who sleeps in the bedroom?’ He says, ‘Most of the time, me.’

Really, it’s being suggested he was lying at 151 because, in effect, he wasn't admitting to sleeping in the room with [the complainant]. It’s within seconds, maybe a minute or something. I don't know. Four questions, question and answers, and they are only the caution, but he does say to the police, ‘I sleep there.’ How dishonest is that? This is one of those occasions where you put yourself in his shoes. He has just been asked these questions. He is trying to answer them. He is not necessarily going to get it right straightaway. It's within seconds or a minute or whatever where he does say, ‘Yeah, I sleep there.’

Is it more likely that he has just come out with this at 151, having heard what's being alleged and he hasn't gotten the full picture and he has gone on to explain that? Is that more likely? You might think, can I suggest, he is actually just being honest about it. This is one of the occasions you might notice an aside that he is asked, ‘Can you tell me anything about that?’, and I'll come back to that. Can I tell you that 12 times during the interview that you've got, he is asked, ‘Can you tell me anything about that?’, so he does. He goes on to tell about that whenever he can. He goes on to tell, ‘I sleep with the mother. Mother played the games. I go to sleep around 10.30, get up at 5,’ and can I ask you to bear in mind too that his evidence is not that he is sleeping there every night with [the complainant] and [the complainant’s brother]. He says, ‘Most time’.”

92. Defence counsel addressed the Crown’s invitation to draw inferences from the applicant’s failure to deny allegations when they were put to him by saying this:

“You’re asked to draw conclusions, but he must be guilty because he says these phrases like, ‘There’s nothing I can tell’. Again, have a look at the questioning, and you can see for example, on that question, ‘Can you tell me anything about that?’. And he’s asked again at 152, after he’s given that initial answer:

‘Q There’s nothing more you can tell me about that.

A Seriously, there’s nothing I can tell you. She’s made it up.’

It’s right there, 152, 153. Count them up. I could be wrong in my math, but I counted around about 12 times, where he’s asked, ‘Is there anything more you can tell me about that’ or ‘Is there nothing more you can tell me about that?’ in effect. Can I ask you to remember English is not his first language, but also, rather than suggest that a more plausible response were he innocent might be to deny it, to say, ‘that didn’t happen’ or ‘that never happened’, a more rational explanation, he’s actually answering the question. He’s taking it pretty literally in his response, and perhaps that’s something to do with trying to interpret or Mandarin way of asking certain things, I don’t know, but he’s obviously answering the questions.

There are actually times in there where he says ‘I didn’t do it’. He does say that at times, but that’s what he’s asked 12 times in the interview. He’s asked, ‘Is there anything else you can tell me about that?’ or ‘is there nothing more you can tell me about that?’. Can I suggest that’s a more rational explanation.”

93. As for the applicant’s demeanour, defence counsel said the following:

“In effect, his reaction was too slow, in terms of his demeanour, but he only reacted when giving the answer and says, ‘Jesus, there's nothing I can tell you for this one either. I'm sorry about that’. Do you think that’s a realistic and fair inference to draw, that because he didn’t react immediately to the question, because he was alleging something so heinous, that it must, therefore, somehow more inculpate him into the offence? This is a guy, again, sitting here after waiting around for hours and hours. This is getting up to 11pm at night. Yes, he's been here for 23 years or whatever. He’s going through this process in his head of interpreting what he's asked, and he's got to interpret back to answer. And he said to you he was tired. He said to you he was exhausted.

Can I suggest that you’ve got to take all these things into account when you assess these answers. The most reasonable explanation might be that he's just telling the truth and taking all that into account. He's actually just trying to be honest and give an honest answer. Can I suggest that’s a more reasonable explanation. You may not take anything at all. You may think nothing of his demeanour at the time, because, of course, everyone has different temperaments; everyone has different ways of reacting to things. He's clearly not, can I suggest, the type of guy to bang his fists and jump up and down. You saw him. He was relatively calm during the Crown Prosecutor's cross-examination, and he was asked in re-examination, ‘How would you describe your temperament?’. He said, ‘Like, now’, in effect. My words, not his, but in effect, can I suggest to you that what he responded with was, ‘You’ve just seen it. I’ve just given evidence’. You might think that during the interview, that’s a lot of what he showed. He's got a pretty even-handed temperament.

Again, you might take into consideration, well, he said he was tired. And of course, he would have been, can I suggest. He says near the end of it, he says, ‘It’s pointless’. Maybe by now he's resigned to the fact that, look, she's obviously said this stuff about him, and the police are going to charge him for it. They’ve arrested him for it. What else can you say to make a difference? You might think that reply is an indicator when he says that. ‘I can't tell you that’. You know, ‘You’re obviously going to charge me for it. She’s obviously said it. What else can I say to change what you're going to do?’. I'll just ask you to put yourself in his shoes and think about what he tried to do during that interview, taking everything into account, all the circumstances into account. I expect you’ll be told that you can also take into account issues of culture and language.”

Ground 1(iii): Crown inviting inferences not based on evidence

Applicant’s submissions

212. The applicant submitted that the Crown at trial made a number of submissions as to why the jury should accept the evidence of the complainant that were not based on the available evidence at trial.

213. It was submitted that these submissions compounded the unfairness that arose from the complaints made under Grounds 1(i) and (ii), particularly where the jury was invited to find support for the complainant's evidence from her demeanour and hand movements. It was submitted that these matters should not have been given the significant emphasis they were afforded, particularly given the recognised and inherent difficulties of drawing any inferences (let alone of guilt) solely from observing a person's demeanour.

214. One of the portions of the Crown address relied upon was suggesting that the complainant’s physical gestures enhanced her credibility because it was as if she was reliving an authentic memory. It was submitted that this was objectionable because it was not based on expert evidence. The Crown had adduced evidence from Dr Pulman, and it was submitted that she should have been asked to comment about these aspects of the complainant’s evidence.

215. A similar complaint was made that the Crown suggested to the jury that the complainant’s writing or drawing in her interview with police enhanced her credibility and authenticity when there was no expert evidence about this. It was submitted that such behaviours may have no bearing on the credibility or authenticity of a child’s account at all or may be consistent with a child’s imaginary or falsely reconstructed account of events and that Dr Pulman should have been asked about these matters so that there was a proper evidentiary basis to put the submission. Further, if these matters had been put to Dr Pulman the applicant would have been on notice of it.

216. At the hearing of this appeal, it was conceded that counsel was unaware of any case in which an expert such as Dr Pulman has given evidence about a complainant’s demeanour when making complaint or giving evidence or their believability generally. [10] It was also accepted that there is no general principle that a Crown cannot make submissions about the demeanour of a child complainant unless expert evidence has been given about children’s demeanour more broadly. [11]

     10. Ibid, p15.

     11. Ibid, p16.

Crown submissions Ground 1(iii)

217. The Crown submitted that there was no unfairness in the Crown seeking to draw on the jury’s common sense and life experience to find that the complainant was both credible and reliable. Most of the submissions to the jury were prefaced with the phrase, “you might think”. It was submitted that such submissions do not need to be supplemented by expert evidence. Nor was there any requirement for the Crown to adduce expert evidence as to whether writing down allegations, drawing aspects of the allegations, gesticulating while outlining an allegation or giving a detailed account made the allegation more credible or reliable. None of these matters were properly a matter of expert evidence.

218. Finally, as with the other complaints now made, reliance was placed on the fact that defence counsel did not raise any of the issues raised under this sub-ground at the conclusion of the Crown’s closing address. Instead, defence counsel chose to respond to these submissions in her closing address and submit, in effect, that none of the matters raised by the Crown indicated that the complainant was credible or reliable.

Consideration: Ground 1(iii)

219. It is unsurprising that the focus of the Crown closing address was on the evidence of the complainant given her significance in the Crown case. The jury was invited to find her to be both a reliable and credible witness. In that context, they were directed to the way in which she first disclosed the offending and the observations made by complaint witnesses of her. There is nothing unfair about doing so.

220. I have considered all of the portions of the Crown closing about which complaint is made for the first time in this Court. There was nothing unfair or inappropriate in the Crown invitation to the jury to assess the complainant’s demeanour. The Crown invited the jury to use their common sense and life experience in their assessment of the complainant’s evidence. This occurs in all trials when the Crown case rests significantly on evidence given by a central witness.

221. As for the suggestion that aspects of the Crown’s submissions were not supported by evidence, it is difficult to identify what that evidence would have been. The evidence of Dr Pulman was narrowly confined and general. The jury was directed that it was not a comment upon the evidence of the complainant. It is difficult to see how Dr Pulman could have properly been asked to comment on aspects of the evidence of the complainant. Rather, her evidence was largely adduced to avoid the jury making false assumptions.

222. To the extent that the applicant suggests that the Crown impliedly invited the jury to reason that the complainant’s “version must be more truthful than the [applicant’s]”, because the applicant did not write or draw any of his responses, I do not accept that that reflects the Crown closing address when considered overall.

223. I am not satisfied that an unfairness arose from the Crown closing address insofar as the jury was invited to accept the complainant’s evidence.

224. I would grant leave to argue this sub-ground, but I would not uphold it.

Ground 2: Errors in summing up regarding consciousness of guilt

225. There were three separate sub-grounds under Ground 2:

1. The trial judge erred in directing the jury it could rely on consciousness of guilt reasoning arising from an assessment of the applicant’s demeanour in his ERISP: Ground 2(i)(a);

2. The trial judge erred in directing the jury it could rely on consciousness of guilt reasoning arising from the applicant’s failure to refer to the maternal grandmother in part of his response to police questioning: Ground 2(i)(b);

3. The trial judge erred in failing to direct the jury it must not draw any unfavourable inference (including as to credibility) from the applicant’s asserted failure immediately to deny allegations put by Police: Ground 2(ii).

226. There is significant overlap between these sub-grounds and Ground 1. By necessity, I was required to consider the complaints made about the Crown conduct in the context of the ameliorating directions given by the trial Judge.

Applicant’s submissions

227. It was submitted that it was not appropriate to direct the jury that they could derive any consciousness of guilt from the applicant’s apparent demeanour during the ERISP for the reasons explained under Ground 1.

228. As for the second complaint, it was submitted that the trial Judge's decision to leave the absence of reference by the applicant to the grandmother to the jury as being available for consciousness of guilt reasoning was prejudicial to the applicant because it suggested that there was an onus on the applicant to explain every reason why he might not be guilty.

229. As for the third complaint, although it was accepted that the trial Judge directed the jury it could not use his purported failure to deny the allegations for a consciousness of guilt purpose, the applicant submitted that the trial Judge erred in failing to direct the jury that it could not use the applicant’s purported failure to deny the allegations in any other way unfavourably to him.

230. It was submitted that although the trial judge expressly directed the jury that it could not use the applicant’s failure to immediately verbally deny the allegations as consciousness of guilt, she directed the jury that they could rely on the applicant’s demeanour during the ERISP as consciousness of guilt. This was unfair because the jury was directed that it could not rely upon the verbal part of the applicant’s denial, but they could rely upon the non-verbal part of the same representation to infer a consciousness of guilt. It was submitted that it would have required the jury to engage in “mental gymnastics” in reviewing the footage of the ERISP, to see whether an adverse inference as to consciousness of guilt from the applicant’s demeanour could be drawn by ignoring his words while simultaneously relying on both the applicant’s demeanour and his words in assessing his credibility at the point when allegations were first put to him by police.

231. The applicant submitted that the trial Judge’s direction in relation to consciousness of guilt left open to the jury that it could use the applicant’s silence or failure to deny allegations as evidence for drawing other unfavourable inferences, including in respect of credibility. Otherwise, the applicant repeated his submissions made under Ground 1 in support of this ground.

Consideration: Ground 2

232. It follows from the findings I have made under Ground 1 that I would not uphold ground 2 either. I have already considered the protective nature of the Edwards direction, the trial Judge’s directions as to the drawing of inferences and the trial Judge’s direction as to the caution required before assessing demeanour under Ground 1.

233. As I observed under Ground 1, the suggestion that the jury should have been directed that that they could not draw any inferences from the applicant’s responses, including as to his credibility, is flawed; the jury was entitled to assess the manner of the applicant’s denials to the allegations when assessing the credibility of those denials and defence counsel relied on the same answers to boost his credibility.

234. Not only is the Edwards direction protective in nature, the trial Judge gave other directions on this issue including regarding inferences and the caution required before relying on demeanour.

235. Leave is required under r 4.15 to advance sub-ground 2(i)(a) and sub-ground 2(ii). Defence counsel agreed that it was appropriate to give the directions that are now the subject of complaint. Leave pursuant to r 4.15 is not required with respect to that sub-ground 2(i)(b).

236. The applicant relied on the manner in which this Court dealt with a failure to raise the issue before the trial judge in Rahman. In Rahman none of the matters complained of on appeal had been raised before the trial judge but the appeal was allowed. In relation to the purported failure to give an Edwards direction (Ground 1), leave to argue that ground was refused under r 4.15 on the basis that there was an obvious reason why no such direction was sought: it would have undermined the submission that no lie had been told. It was held that no miscarriage of justice was occasioned by the trial judge’s failure to give an Edwards direction because lies amounting to consciousness of guilt did not arise at the trial.

237. Despite this, leave was granted to argue Ground 3 in Rahman. That ground was upheld, and the appeal allowed. Ground 3 concerned the right to silence. The applicant had abruptly discontinued an ERISP. No direction was given at the time that the ERISP was tendered about his right to silence. Nor at any other stage was the jury directed not to draw any negative inferences from the fact that he did so. Davies J (with whom Harrison J (as his Honour then was) and Wright J agreed) found (at [88]) that: “it is difficult to conceive of any forensic reason why that was not done. It must be assumed to be inadvertence on the part of counsel for the accused.”

238. Similarly, it was submitted before this Court that the failure by defence counsel to object to the matters now complained of must be due to inadvertence as there was no tactical reason for such an approach. I do not accept that submission. Rather, I am satisfied that in the atmosphere of the trial, defence counsel did not perceive any of the unfairness now alleged.

239. As for the reliance placed on the exchanges between the trial Judge and defence counsel extracted above at [107] to explain why objection was not taken at trial, given that it is not clear to me that the applicant’s right to silence was in fact breached, I do not accept that submission either.

240. I have read the transcript of trial and it reflects that defence counsel was vigilant to ensure that the appropriate directions were given and that the Crown’s arguments were forcefully met in the defence closing address.

241. Given the issues raised, I would grant leave to argue these sub-grounds but dismiss Ground 2.

Ground 3: Error in summing up re tendency evidence

Applicant’s submissions

242. The applicant submitted that the trial Judge’s directions to the jury on tendency evidence occasioned a substantial miscarriage of justice because it arose in circumstances where the Crown had abandoned reliance upon tendency reasoning prior to its closing address. Accordingly, neither the Crown nor the applicant addressed the jury on tendency.

243. It was submitted that the applicant was denied procedural fairness. Further, complaint was made that it was the trial Judge who invited the Crown to reconsider his position after both parties had completed their closing addresses. It was submitted that the trial Judge should not have “stepped into the arena”, given that it was an adversarial process in which the Crown had explicitly disavowed reliance on tendency reasoning.

244. Complaint was made that the trial Judge did not provide an anti-tendency direction as requested by defence counsel. It was submitted that the jury could have been told that although the Crown had opened with tendency and the applicant had been cross-examined on it, it was no longer relied upon by the Crown and was not therefore addressed by defence counsel in her closing address, such that they must not engage in any tendency reasoning.

245. The applicant submitted that there was no forensic advantage or reason for the applicant’s counsel to acquiesce to the tendency direction and that the forensic decision by trial counsel to inform the judge that there was no unfairness should not bind the applicant on appeal.

246. It was submitted that it was unfair that the Crown had the forensic benefit of opening and cross-examining the applicant with respect to tendency. Then, after disavowing it and making no reference to it in his closing address, defence counsel was entitled to expect in the circumstances that tendency would no longer be relied upon and that the trial Judge would provide an anti-tendency direction. The result was that the applicant was denied the ability to argue in his closing address why tendency reasoning should not be engaged.

247. The applicant also submitted that he was denied the benefit of having his perspective reflected in her Honour’s directions on tendency, which referred to what “the Crown says” and “the Crown alleges” etc. He was denied, by that process, a countervailing argument during the direction to the jury of what he through his counsel might have said about tendency not being established on the evidence. It was submitted “with respect” that this was incurably unfair and occasioned substantial prejudice to the applicant.

248. During the hearing of this appeal, counsel was asked to identify the lost opportunity to make submissions given that trial counsel did not identify any and instead informed her Honour, in effect, that she was ultimately not prejudiced by a tendency direction being given. Appeal counsel submitted that “I don’t know that she’s really thought it through” and that defence counsel was “rob[bed] [of] the ability to make submissions about the tendency and the effect on it”. [12]

     12. Ibid, p18.

Crown submissions

249. The Crown relied on the way in which the issue evolved at trial and the fact that throughout the trial there were a number of discussions about the Crown’s reliance on tendency reasoning. It was submitted that in that context the trial Judge’s directions in relation to tendency did not amount to a denial of procedural fairness.

Consideration: Ground 3

250. There is no complaint under this ground about the terms of the tendency direction or the decision that the Crown be permitted to rely upon the counts on the indictment as tendency evidence. Rather, the sole complaint under this ground was of a denial of procedural fairness. Before turning to consider that claim, it is important to trace through the background as to how the tendency direction came to be given. I have extracted the relevant transcript above at [67], and [95-97]. It does not support the applicant’s submission that the trial Judge “stepped into the arena”. In summary, the issue emerged as follows.

251. There had been a pretrial ruling that the charges on the indictment could be relied upon as tendency evidence. The applicant agreed to be bound by the pre-trial rulings given this was a second trial. The Crown opened on tendency and cross-examined the applicant to suggest that he had a sexual attraction to his daughter and that he acted on it. The applicant denied this and denied all charges.

252. In discussions with the parties regarding the suitable directions for the jury, prior to the commencement of the closing addresses, the trial Judge noted the recent decision in Rassi v R. [13] In an exchange with counsel, the Crown told the court that he was “fairly confident” he would not be invoking tendency reasoning in his closing address.

     13. Ibid.

253. After closing addresses, in which neither party referred to tendency reasoning, defence counsel sought an anti-tendency direction given that the Crown had disavowed tendency. The trial Judge reflected on the fact that the Crown had opened on tendency evidence and put the two tendencies to the applicant in cross-examination. In those circumstances, her Honour discussed with counsel how she could give an anti-tendency direction after the Crown had opened and cross-examined on tendency. Her Honour commenced her summing up before that issue had been resolved.

254. When the Crown subsequently indicated that, on reflection, he did seek a tendency direction, the trial Judge asked defence counsel whether there was any unfairness in that course to which she replied that there was not. No doubt that was because the defence case was one of outright denial of all the offences. In denying all offences, it necessarily followed that the applicant disputed that he had either of the tendencies alleged or that there was conduct from which those tendencies might be inferred.

255. It was apparent to the trial Judge that the applicant’s defence to any tendency argument was the same as the allegations in the indictment: a complete denial. This is reflected in the trial Judge’s summary of the defence case that included the defence submission that, “[y]ou would not find that the accused committed any offence and you would not find he had a sexual interest in [the complainant] or a tendency to act on that sexual interest”.

256. It is to be accepted that when it was thought that tendency would not be relied upon by the Crown, defence counsel sought an anti-tendency direction. But later, after the Crown changed its position and did seek a tendency direction, defence counsel’s response to that was that there would be no unfairness.

257. The difficulty for the applicant in now alleging a denial of procedural fairness is that the person best placed to address the question of a loss of opportunity was defence counsel and she did not perceive there to be any procedural unfairness at the time, in the atmosphere of the trial, and she informed her Honour accordingly. The transcript does not reflect that defence counsel misapprehended what the trial Judge was going to do. This is reflected in the fact that no complaint was made after the tendency direction was given either. Further, it is necessary when complaining of procedural unfairness to identify what submission it was that you were prevented from making and none was identified on this appeal beyond a general description that defence counsel was denied the opportunity to put the applicant’s case on tendency.

250. The content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34] per Gleeson CJ. A party complaining of procedural unfairness must be able to demonstrate a material error: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17, meaning a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, it was held (at [14]) that the question of materiality is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. The word “realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable.

251. I am not satisfied that the applicant was denied procedural fairness because defence counsel at trial was invited to address on whether she had lost any opportunity and she did not do so. But even if I was satisfied that there had been any such denial, I am not satisfied that it was material.

252. Applying these authorities to third limb miscarriage under s 6(1) of the Criminal Appeal Act, it seems to me that if the making of submissions on tendency in the defence closing address could realistically have led to a different result, then the procedural unfairness would be of such a fundamental nature that there could be no application of the proviso. If, on the other hand, an applicant does not establish that the purported denial of procedural fairness could have led to a different result, then there would be no “third limb” miscarriage.

253. My conclusion that the applicant was not denied procedural fairness is confirmed by the position taken by defence counsel at trial: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121] (per Beazley P, Hall and Wilson JJ): Greenhalgh v R [2017] NSWCCA 94 at [42] (Basten JA, Button and N Adams JJ agreeing); and see also Latu v R [2023] NSWCCA 19 at [76]-[77] (Davies J, Bell CJ and Fagan J agreeing); Marco v R [2023] NSWCCA 307 at [64] (Ward P, Walton and Fagan JJ agreeing).

254. I would grant leave to argue this ground but dismiss it.

255. Accordingly, I would dismiss the appeal against conviction.

Leave to appeal against sentence

264. The applicant also seeks leave to appeal against his sentence on the following ground:

Ground 4: Her Honour erred by taking into account matters of aggravation which would have attracted the more serious charge of persistent sexual abuse pursuant to s 66EA of the Crimes Act, contrary to the “De Simoni principle”.

265. Before turning to consider the applicant’s submissions it should be acknowledged that the applicant stood to be sentenced for two offences contrary to s 66B(a) of the Crimes Act (sexual touching of a child between 10 and 16 years of age) and one offence contrary to s 66C(2) Crimes Act (aggravated sexual intercourse with a child between 10 and 16 years of age). He was not sentenced in relation to an offence contrary to s 66EA Crimes Act.

266. The offence under s 66EA of the Crimes Act carries a maximum penalty of life imprisonment. Such an offence occurs when an adult maintains an “unlawful sexual relationship” with a child. An “unlawful sexual relationship” is defined by s 66EA(2) as being a relationship in which an adult “engages in 2 or more unlawful sexual acts with or towards a child”. Before considering the applicant’s complaints under this ground, I will first extract the impugned passages of the remarks on sentence. Given the narrow scope of the one ground of appeal, it is not necessary to summarise the remarks on sentence in any detail.

Remarks on sentence

267. Relevant to the assessment of the objective seriousness of the offending, the applicant relied on the fact that there was no grooming, coercion or threats of violence. In response, the Crown submitted that the absence of these factors was not particularly mitigating on the facts of this case given the relationship of trust between the applicant and the complainant.

268. Her Honour accepted the Crown submission as follows:

“I am persuaded by the Crown’s submission. I am not saying that, had there been evidence of coercion and grooming, it would have exposed the offender to a potentially higher offence in breach of the Di Simoni [sic] principle, and that is not submitted by the Crown. I am persuaded that this is a matter where the proper lens by which to understand the case is the gravity of the relationship between the father offender and the victim child in circumstances where, so grave was the breach of trust, that it is unsurprising that there was no evidence of grooming or coercion.”

(Emphasis added.)

269. Her Honour went on to note a number of other matters relevant to the objective seriousness before noting the following:

“The Court is also asked by the Crown to decline to mitigate the offending on the basis of it being spontaneous. The Crown submits the spontaneity must be seen as informed by the way in which the offender exploited the opportunities that arose in a circumstance where the offender would have known about the arrangements for the children to sleep in the bedroom when the grandmother was not there, together with the offender.

In other words, the Crown does not rely on establishing an aggravating feature beyond reasonable doubt of premeditation, but the Crown submits that to the extent that there was spontaneous offending, it nonetheless was in the context of the offender exploiting the opportunities. I accept the Crown’s submission in that regard.”

(Emphasis added.)

270. Later, when considering Count 3, her Honour observed the following:

“Again, another difference compared with counts 1 and 2 is that the element of the offender breaching his authority in committing this offence is an inherent element of the offence, unlike for counts 1 and 2. The Court is careful not to aggravate an offence by an inherent element. Nonetheless there is the additional feature of a breach of trust, but as I have said in the circumstances of this case, there is considerable overlap and the salient feature is the overarching relevance of the fact that the offender is the biological father of the victim and lived in the same household and committed these offences in her bedroom in circumstances where both the victim and the mother placed their trust into the offender.”

(Emphasis added.)

271. When considering the application of the totality principle, her Honour noted the following:

“In this case, counts 1 and 2 occurred in circumstances where it was in the same episode of criminality. Whilst each offence bears its own criminality, there is that considerable degree of overlap which will be sounded in a sense of concurrency. The offending in count 3 was separate to the offending in counts 1 and 2, but it occurred within the same relationship. I take into account those matters.”

(Emphasis added.)

Applicant’s submissions

272. It was submitted that the italicised portions of the Remarks on Sentence extracted above establish that the sentencing Judge elevated the offences for which the applicant was being sentenced to an offence under s 66EA. In doing so, it was contended her Honour breached the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (“De Simoni”). The applicant relied on the decision of Gould v R; R v Gould [2021] NSWCCA 92 for the recent re-statement of that principle.

273. Reliance was placed on the fact that at the commencement of the trial her Honour observed the following.

“HER HONOUR: I’m going to ask a question that’s in the ignorance of what has transpired previously. I’ve just come out of a trial proceeding concerning a charge under s 66E(A). These offences themselves sometimes touch on that offence provision. Can I just understand if this results in – I don’t know what the verdict will be – guilty verdicts, there will not be any DeSimone(?) issue suggesting some ongoing sexual relationship?

WALDMANN: Though potentially—

HER HONOUR: And it’s not to question the charging discretion of the prosecution. Not at all. I’m just thinking ahead because my mindset has just come from a trial of that nature.”

274. The applicant relied on this passage to suggest that by the time her Honour came to sentence the appellant, she did what she stated she would not do. It was submitted that her Honour treated the existence and nature of the relationship between the offender and the complainant as relevant to the determination of the objective seriousness of the offending and that her Honour erred in doing so.

275. It was submitted that when her Honour noted that the lens by which to consider the question of grooming was the “gravity of the relationship between the father offender and the victim child in circumstances where, so grave was the breach of trust”, this was in fact a finding about the nature of the existence of an “unlawful sexual relationship” between the appellant and the complainant which is an element of an offence under s 66EA.

276. It was further submitted that her Honour erred in considering the factors of breach of trust and breach of authority because they were features which arose from the existence of the (unlawful sexual) relationship between the appellant as father and the complainant as daughter, which is an element of s 66EA.

277. Overall, it was submitted that her Honour's emphasis on the nature of the relationship between the appellant and the complainant in determining the objective seriousness of the offences and the aggregate sentence imposed offended the De Simoni principles by incorporating all the elements of the s 66EA offence.

278. The applicant accepted that it is undoubtedly a difficult task to sentence an adult offender convicted of at least two offences against one child complainant in the context of a familial relationship where the charges are separate counts, without infringing De Simoni. But it was submitted that this difficulty cannot be “side-stepped” by sentencing the offender as though he had been charged with an offence under s 66EA. It was suggested that factors which could otherwise be relied upon as aggravating features in determining the objective seriousness had the charge been under s 66EA, must be excluded from a consideration of those factors in this case because of the De Simoni principle.

Consideration

279. The “De Simoni principle” is a well established principle of sentencing derived from the decision of the High Court in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. It simply states that an offender is only to be punished for the offence of which he or she has been convicted and not for other acts which are not the subject of the verdict which could have constituted a more serious offence: at 389 and 392. As Gibbs CJ (with whom Mason and Murphy JJ agreed) observed at 389:

“… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.”

280. I do not accept that the De Simoni principle was breached by the sentencing judge in this matter.

281. It is to be accepted that only a month before the applicant was sentenced, a five judge bench of this Court delivered its decision in MK v R; RB v R (2023) NSWLR 96; [2023] NSWCCA 180 which considered the meaning of “unlawful sexual relationship” in s 66EA (2) of the Crimes Act. Beech-Jones CJ at CL (with whom the other four judges agreed) observed at [95] that what converts a “relationship” (such as parent and child) into an “unlawful sexual relationship” is the commission of two or more unlawful sexual acts in the course of that relationship or a relationship that arises from the commission of the unlawful sexual acts themselves.

282. The fact that an “unlawful relationship” for the purposes of s 66EA can exist when there is a relationship (such as that between the applicant and the victim in the present matter) in which two or more unlawful sexual acts occur does not mean that a sentencing judge who is sentencing for individual child sexual assault offences, as in the present case, must ignore a feature such as the father/daughter relationship when assessing the objective seriousness of the offending.

283. The applicant stood to be sentenced on three separate counts. As for Count 3, although the complainant had given evidence at trial of other uncharged acts occurring between December 2019 and July 2020, her Honour did not rely on those acts as an aggravating feature; rather, she held that this denied the applicant any mitigation that might have flowed had there been an isolated act.

284. No error is disclosed in the trial Judge assessing the objective seriousness of Counts 1 and 2 by having regard to the grave breach of trust by a father against his own daughter: see for example ZA v R (2017) 267 A Crim R 105 at [104]; [2017] NSWCCA 132 and Maxwell v R [2020] NSWCCA 94 at [115].

285. Further, her Honour was careful not to give undue weight to the factor of the abuse of trust where abuse of authority was an element of Count 3: MRW v R [2011] NSWCCA 260 at [77]-[78] and PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107 at [73]. This is to be considered in the context that defence had accepted that in respect of Counts 1 and 2 (but not Count 3), the offending was aggravated “by virtue of the abuse of the offender’s position of authority pursuant to s 21A (2)(k)”.

286. Significantly, at no time did the sentencing Judge use the language of s 66EA by finding that the applicant had an “unlawful sexual relationship” as defined in s 66EA(2). Rather, her Honour assessed the objective seriousness of each offence separately.

287. It is to be accepted that it was important that her Honour take great care to ensure that the sentence she imposed and the sentencing exercise she undertook did not traverse the De Simoni principle. Her Honour’s reasons disclosed that she was alive to the De Simoni principle and the sentencing task she was required to undertake. The existence of s 66EA of the Crimes Act as an offence does not mean that when an offender in a position of authority is sentenced for multiple offences (rather than under s 66EA) the sentencing judge is precluded from having regard to the nature of the relationship between the victim and the offender when assessing the objective sentence.

288. I would grant leave to appeal given the length of the sentence imposed but I would dismiss the appeal against sentence.

Orders

289. Accordingly, I would propose the following orders:

1. Leave to appeal against conviction is granted.

2. The appeal against conviction is dismissed.

3. Leave to appeal against sentence is granted.

4. The appeal against sentence is dismissed.

290. SWEENEY J: I agree with the orders proposed by N Adams J, and with her Honour’s reasons for those orders.

291. R A HULME AJ: I agree with N Adams J.

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Endnotes

Amendments

09 September 2024 - coversheet correction

Decision last updated: 09 September 2024