Long (a pseudonym) v R - [2021] NSWCCA 212

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Long (a pseudonym) v R [2021] NSWCCA 212
Hearing dates: 4 August 2021
Decision date: 03 September 2021
Before: Basten JA at [1]; Adamson J at [30]; Campbell J at [145]
Decision:
(1) Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1, 2 and 5.
(2)   Refuse leave to appeal in respect of ground 6.
(3)   Otherwise grant leave to appeal.
(4)   Dismiss the appeal.

Catchwords:
CRIME — appeals — appeal against convictions for child sex offences — evidence in chief given via a pre-recorded interview and evidence given at trial via audio visual link require warnings pursuant to ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) — statute does not specify when the warnings ought be given — within discretion to give warnings in opening and summing up — direction concerning the use of complaint evidence as supportive of the victim’s claims — complaint evidence cannot be independent of the complainant corroborative evidence must be independent — reference to complaint evidence as “independent” was not capable of having any real bearing on the jury’s understanding as to its use — trial judge did not err in replaying recorded interviews when the jury requested “video transcripts” — applicant’s trial counsel did not object to replaying the interviews once — appropriateness of the direction as to the meaning of “appropriate concessions” — alleged inconsistent verdicts — evidence in respect of count 4 was qualitatively different in that it was limited — the evidence might have led the jury to believe that the complainant had misunderstood of what occurred and that count 4 had not been proved beyond reasonable doubt — alleged unreasonable verdict — on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the other counts
CRIME — appeals — appeal against sentence —sentence is not manifestly excessive — youth and immaturity of the applicant — applicant knew his conduct was wrong — offending characterised by exploitation, opportunism, a sense of entitlement, and increasing severity

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 15A
Crimes Act 1900 (NSW), ss 61HA, 61M, 66A, 66C, 578A
Criminal Appeal Act 1912 (NSW), s 6
Criminal Procedure Act 1986 (NSW), ss 306M, 306X, 306Z, 306ZI
Evidence Act 1995 (NSW), s 164
Jury Act 1977 (NSW), s 55C
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
AB v R [2019] NSWCCA 82
DBG v R [2002] NSWCCA 328; 133 A Crim R 227
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Gatley v The Queen (2007) 232 CLR 208; [2007] HCA 55
Jarrett v R [2014] NSWCCA 140
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nguyen v R [2017] NSWCCA 145
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v ACK [2000] NSWCCA 180
R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 29
R v Murray (1987) 11 NSWLR 12
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
R v Osborne [1905] 1 KB 551
SB v R [2020] NSWCCA 207
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Texts Cited:
Criminal Trial Courts Bench Book (NSW)

Category: Principal judgment
Parties: Long (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
G Newton (Respondent)
Solicitors:
Swifte Law (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/254512
Publication restriction: Publication of names and any information or material that may lead to the identification of the applicant or the victims is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 July 2020

Before:

Beckett DCJ

File Number(s):

2017/254512

Judgment

BASTEN JA: The applicant in this matter seeks leave to appeal from his convictions and aggregate sentence for seven sexual offences committed between 2 September 2012 and 10 October 2016. Having been born in December 1997, he was a child for the purposes of the Children (Criminal Proceedings) Act 1987 (NSW) until December 2015, and thus when many of the offences occurred. Because there is a prohibition on the publication or broadcasting of his name or any information which might identify him, or lead to his identification, he has been given a pseudonym for the purposes of this judgment.^[1] Similar protection is given to the victims of the offending who are identified as “Kate” and “Nettie” for the purposes of this judgment. [2]
1. Children (Criminal Proceedings) Act, s 15A.
2. Crimes Act 1900 (NSW), s 578A.
In 2011 Kate, Nettie and their brother were placed in foster care with the applicant’s parents. The victims’ paternal grandfather was a brother of the applicant’s mother: she was, therefore, their great aunt. Nettie was born in October 2004 and was between seven and eight years of age when the offending commenced. Kate was born in December 2007 and was between the ages of four and five years when the offending against her commenced. All of the offending took place in the home where the applicant lived with the two victims. It continued over a period of some four years.

Challenges to convictions

The offences involved eight counts, four with respect to each victim. The applicant was convicted on seven counts and acquitted of one, being the only charge of sexual intercourse involving Kate. He was convicted of three counts of indecently assaulting Kate, one indecent assault on Nettie, and three charges of sexual intercourse with Nettie, commencing when she was 7 years of age.
The proposed appeal with respect to the convictions contained seven grounds. The first two were in identical terms and challenged the adequacy of the warnings given by the trial judge with respect to the evidence given by the victims by way of audio visual recording of police interviews, and from a remote location by audio visual link for the purposes of further examination and cross-examination.^[3]
3. See generally Criminal Procedure Act 1986 (NSW), Pt 6.
Pursuant to s 306X of the Criminal Procedure Act 1986 (NSW), where evidence in chief is given by way of a recording of a police interview, the judge is required to warn the jury “not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.” Further, with respect to the evidence given at trial by closed circuit television, a further warning is required in similar terms, but also a statement that “it is standard procedure for the evidence of vulnerable persons in such cases to be given by those means”: s 306ZI.
There is no dispute that appropriate warnings were given prior to the evidence being heard by the jury. The challenge turned on the fact that the warning was not given immediately prior to them hearing that evidence.
The statute does not state when the specified warning and information should be given; such matters are left to the discretion of the trial judge. It is true that in DBG v R^[4] Howie J expressed the view that it is “highly preferable that a trial judge give such information and warnings … either immediately before or immediately after the giving of that evidence rather than to wait to fulfill that obligation during the course of the summing up.” As he further observed, it might be necessary to repeat such statements, “[b]ut whether such a course is necessary in order to ensure a fair trial and one according to law will depend upon all the circumstances of the particular case”. Where a convicted offender seeks to appeal against his or her conviction, and there has been compliance with the express requirements of the law, the question for this Court is whether there has nevertheless been a miscarriage of justice.^[5] That is a matter to be assessed in the circumstances of each case. So much was recognised by Howie and Johnson JJ in R v NZ [6] and accepted in Jarrett v R. [7] Various factors may affect whether a warning or information is given in a manner which is effective, having regard to the purpose for which it is given. There is no rule that it be given “either immediately before or immediately after” the giving of the evidence. Nor is there any rule that it should be given more than once. On occasion that may be desirable, on other occasions not. Repetition of a warning that the jury should not draw any inference “adverse to the accused person” based on the form in which the evidence is given, if overemphasised, may invite speculation as to what could give rise to such an adverse inference, thus undermining the purpose of the warning.
4. [2002] NSWCCA 328; 133 A Crim R 227 at [23].
5. Criminal Appeal Act 1912 (NSW), s 6(1).
6. (2005) 63 NSWLR 628; [2005] NSWCCA 278 at [210] (Wood CJ at CL and Hunt AJA agreeing)..
7. [2014] NSWCCA 140 at [72]-[73] (in my judgment, RA Hulme J and Campbell J agreeing).
No further warning was sought in the present case, and in fact much of the warning was repeated when the jury were allowed to view the audio visual evidence a second time. I agree with Adamson J that there is no basis to grant leave to appeal on these grounds.
Ground 3 challenged a statement by the judge in summing up to the jury, advising them that they could use evidence of complaint by the victims as supportive of their claims. The gravamen of the complaint was that the judge used the word “independent” at one stage in dealing with evidence of complaint. Before considering the effect of that one word, it should be put in context. The directions with respect to such evidence covered some 16 pages of the transcript of the summing up. The directions were clear and detailed. They commenced as follows:^[8]

“Now another separate kind of evidence. You have had direct evidence, inferences, context evidence, and now I want to talk to you about another heading and that is complaint evidence. The reason why it is a separate category is because you can rely upon it in a different way. … Complaint evidence is pretty common sense, it is what you think it is. It is when somebody tells somebody about what they say has happened to them. In this case there are different kinds of complaint evidence. There is complaint made by the children to each other. There is complaint evidence alleged to have been made to [their foster mother], and then of course there is the complaints that are made to [two members of the family to which they removed in 2017] in relation to the sexual assaults.”
8. Summing up, 24/02/20, p 38.

The judge then set out the evidence in some detail and continued:^[9]

“That is all the evidence in relation to complaint evidence. … You can use it going to the truth of the facts asserted. It is for you to decide whether you accept that the complaints [were] made, and what the contents of the complaints were. … In determining those matters you are entitled to take into account a number of factors, including the circumstances in which the complaints were made, the details of the complaints, any inconsistencies in the complaints generally, or in respect of the evidence given by the complainants.
If you find that the complaints were made substantially to the effect that the accused had sexually assaulted or indecently assaulted one or both of the complainants, then you can use evidence of what was said in the complaint as going to the truth of the facts. That is, you can use it as some evidence independent of the evidence given by the complainant in the trial. You can use the evidence that they give, the direct evidence that they say that happened, and then you can give weight to the fact of the complaints. … [Y]ou are entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable. That is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate.”
9. Summing up at pp 52-53.

Heard in context, the word “independent” was used, and would have been understood by the jury, in the sense of “separate from”. Lawyers might read the term differently. At a time when corroboration was required with respect to particular kinds of evidence, and particular offences, corroborative evidence had to be “independent” of that which it corroborated: that is, it had to come from a separate source. It was sometimes described as a rule (really a principle) against self-corroboration. The law no longer requires corroboration^[10] and no issue arose as to any warning about unreliability in the present case. There is no reason to suppose that the jury would have misunderstood the word “independent” in the context of the directions.
10. Evidence Act 1995 (NSW), s 164(1).
The underlying basis of the challenge was that in SB v R^[11] Rothman J stated (with the agreement of Hoeben CJ at CL and Hamill J) that “the use of the term ‘independent’ was erroneous and should be avoided”.^[12] Arguably the term should be avoided, and that view is now reflected in the standard form of direction contained in the Judicial Commission’s Criminal Trial Bench Book. However, to describe the term as “erroneous” did not imply an error of law or a miscarriage of justice in the context in which it was used: the challenge was dismissed in SB.
11. [2020] NSWCCA 207.
12. SB at [130].
However, the reasoning in SB turned on the proposition taken from the joint judgment of Gleeson CJ and Hayne J in Papakosmas v The Queen^[13] that “[e]vidence of complaint cannot constitute corroboration in the technical sense, because it is not independent of the complainant.” That statement was undoubtedly correct, but it appears, understandably, in a passage (i) dealing with the common law and (ii) referring to the use of evidence of complaint as corroboration. This case is not dealing with the common law and is not concerned with any requirement for, or suggestion of, “corroboration”.
13. (1999) 196 CLR 297; [1999] HCA 37 at [17].
No point having been taken before the trial judge as to the need for correction, leave is required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to pursue this ground. It may be that counsel at trial saw no error because the direction complied with that in the Bench Book at the time. That fact does not, in my view, warrant a grant of leave: first, if counsel considers that a direction given in accordance with the Bench Book would endanger the fairness of the trial, objection should be taken, and, secondly, there was no error.
Ground 6 alleged that the verdicts were unsupportable having regard to the failure of the jury to be satisfied beyond reasonable doubt with respect to count 4. However, the fact that a jury discriminates between different counts on an indictment cannot, by itself, demonstrate a miscarriage of justice. The circumstances in which a miscarriage can arise depend on an inference that the verdicts constitute a compromise and not the proper exercise of the jury’s function.
Two principles are at play in such circumstances. The first is the categorical obligation of the jury to consider each count separately and determine whether the elements of each are established beyond reasonable doubt. The second is that where more than one count turns solely or substantially upon the evidence of a single witness, rejection of the truthfulness or reliability of the witness in respect of one count may properly affect the jury’s view of the witness in relation to the other count or counts. These propositions are encapsulated in standard directions given to juries.
There may be cases in which, at least on the transcript of the evidence, it is difficult to discern a rational basis upon which a jury could accept the witness’ evidence in respect of counts 1 and 2, but not in respect of count 3. In such a case, it may be inferred that the jury did not give proper attention to the need to consider whether disbelief as to one count should have affected their conclusions as to the other two counts. On the other hand, there may have been hesitation or a change in tone, not reflected in the transcript, which provided a sound basis for discrimination.
In the present case the nature of the conduct in relation to count 4 (anal intercourse) and Kate’s evidence that it did not cause pain, provided a ready explanation for the failure of the jury to be satisfied beyond reasonable doubt as to count 4 without casting any doubt on the truthfulness or reliability of other evidence given by Kate. The jury might well have reasoned that, while she felt pressure between her buttocks, a seven year old child would not likely have suffered anal penetration without pain. Needless to say, she could not see what was happening to her. None of the other charges involved similar circumstances. It follows that the differential verdicts are readily explained and give rise to no plausible explanation involving a miscarriage of justice.
It remains to consider briefly the final ground, namely that the verdicts of guilty were unreasonable and not supportable on the evidence.
As Adamson J notes, the Court was given no assistance in identifying why that conclusion might be reached. In theory it is possible that even rejection of a number of specific grounds could give rise to a lingering doubt that the convictions were reasonable. However that is not this case. As has been sufficiently illustrated by reference to aspects of the judge’s summing up, the jury were provided with clear and detailed directions in terms, not merely of generality, but with particular reference to the issues to be decided. Further, while the convictions on each count depended primarily on acceptance of the evidence of one victim, which was denied on oath by the applicant, it was, as Adamson J explains, entirely plausible that the jury accepted the evidence of the victims and rejected that of the applicant. Although in one sense the words of one person were pitted against those of another, that provides a simplistic view of the whole trial. There was significant contextual evidence in relation to the domestic arrangements in the household, and as to the responses of the victims which, in each case, tended to support their veracity. I agree with Adamson J that this ground should be rejected.
I also agree with all aspects of the reasons of Adamson J in relation to grounds not specifically addressed above and agree with the orders she proposes.

Challenge to sentencing

There remains the application for leave to appeal against sentence. The challenge of manifest excess was based upon the youth and potential immaturity of the applicant. However, it could not be said that these were not factors taken into account by the sentencing judge: on the contrary, they were expressly and carefully addressed.
There were factors which provided a favourable view of the applicant’s character and circumstances. He had reported a happy childhood to his psychologist and had no history of drugs, alcohol or gambling.^[14] He had no criminal convictions. The judge stated:^[15]

“I accept that the offender is a loving brother and son, helpful to his family, gifted academically and in sports and considered by those persons as a worthy individual.”
14. Sentencing judgment, 24/07/20, p 23.
15. Sentencing judgment, p 24.

Paradoxically, these findings (combined with denial of any wrongdoing) provided no satisfactory explanation for his predatory behaviour, which it may be inferred was solely for sexual gratification, in relation to two very young and vulnerable girls (one under the age of 6 and one under 12).

The most serious individual putative sentence identified by the judge was that in respect of count 5, being imprisonment for 4 years. Count 5 occurred when Nettie was about eight years of age and the applicant between 14 and 15 years. The judge’s account was as follows:^[16]

“The offender called for [Nettie] to come inside. She was led to his room where he blindfolded her with a brown scarf. The victim heard him take off his belt. He instructed her to get onto her hands and knees on the bed. [Nettie] peeked under the blindfold and could see his ‘private part’. He told her to open her mouth and she felt his ‘private part’ in her mouth. The offender put his penis into her mouth and held her on either side of her face and moved her head back and forth. [Nettie] said that she choked on his penis and felt it going up and down. The offender ejaculated into her mouth. … The offender told her to swallow it before removing the scarf and telling her to ‘get out’ when he heard the garage door opening, signalling the offender’s mother had arrived home. … [Nettie] said that this occurred between 20 to 40 times over the course of … two years.”
16. Sentencing judgment, p 7.

Count 6 also involved fellatio; by that time Nettie was aged nine. Count 8 was a further charge of fellatio which occurred two weeks before Nettie’s eleventh birthday. The individual sentences which would have been imposed with respect to counts 6 and 8 were imprisonment for 3 years 6 months and 3 years respectively.
The judge described the offending as “opportunistic” in the sense that the incidents took place when the offender was alone with the children. However, as she also correctly stated, these were not isolated occasions. Indeed, they constituted a lengthy period of abuse. The judge also found that “[w]hilst there was a degree of sexual immaturity the offender knew what he was doing was wrong.”^[17] It may be accepted that he did not understand the true harm he was likely to have been causing to his victims. That was something which the Court was entitled to and did take into account.
17. Sentencing judgment, p 14.
Counsel for the applicant submitted that, whilst the aggregate sentence may have been appropriate for an adult, it was excessive for a person of the applicant’s age at the time of the offending. In other circumstances, and viewed abstractly, there might be force in that argument. However, the nature of the offending, the extended period over which it took place, the young age and the vulnerability of the victims, combine to deprive the challenge of its superficial plausibility. I am fortified in that conclusion by the fact that the sentencing judge had the considerable benefit of having conducted the trial as well as the sentencing hearing and, in the course of a clear and careful judgment, having provided ample support for the conclusions she reached.
Given the length of the sentence and the age of the offender, I agree that the Court should grant leave to appeal from the sentence; nevertheless, the appeal must be dismissed.
ADAMSON J: The applicant seeks leave to appeal against his convictions for child sex offences following a trial by jury conducted by Judge Beckett in the District Court. He also seeks leave to appeal against the aggregate sentence imposed on him for those offences by Judge Beckett of 8 years and 6 months’ imprisonment, commencing on 5 March 2020 and expiring on 4 September 2028, with a non-parole period of 4 years and 6 months to commence on 5 March 2020 and expire on 4 September 2024.
All references to legislation in these reasons are, unless otherwise stated, references to the Crimes Act 1900 (NSW).
At the commencement of the trial on 4 February 2020, the applicant, who was then a juvenile, was arraigned on an indictment which charged the following offences:

1.    Between 2 September 2012 and 3 February 2013, at Ambarvale in the State of New South Wales, did assault [Kate] and at the time of that assault committed an act of indecency on [Kate], a child under the age of 16 years, namely between 4 years and 5 years.
2.    Between 2 September 2012 and 3 February 2013, at Ambarvale in the State of New South Wales, did assault [Kate] and at the time of that assault committed an act of indecency on [Kate], a child under the age of 16 years, namely between 4 years and 5 years.
3.   Between 1 January 2014 and 31 December 2014, at Ambarvale in the State of New South Wales, did assault [Kate] and at the time of that assault committed an act of indecency on [Kate], a child under the age of 16 years, namely between 6 years and 7 years.
4.    Between 28 January 2015 and 31 December 2015, at Ambarvale in the State of New South Wales, did have sexual intercourse with [Kate], who was at that time under the age of ten years, namely, 7 years.
5.    Between 12 September 2012 and 31 December 2012, at Ambarvale in the State of New South Wales, did have sexual intercourse with [Nettie], who was at that time under the age of ten years, namely, between 7 and 8 years.
6.    Between 11 October 2013 and 31 December 2013, at Ambarvale in the State of New South Wales, did have sexual intercourse with [Nettie], who was at that time under the age of ten years, namely 9 years.
7.    Between 11 October 2014 and 10 October 2016, at Ambarvale in the State of New South Wales, did assault [Nettie] and at the lime of that assault committed an act of Indecency on [Nettie], a child under the age of 16 years, namely between 10 years and 11 years.
8.    Between 26 September 2015 and 11 October 2015, at Ambarvale in the State of New South Wales, did have sexual Intercourse with [Nettie], a person aged over 10 but less than 14 years, namely between 10 and 11 years.

As can be seen from the counts, counts 1-4 concern Kate and counts 5-8 concern Nettie. Kate and Nettie are sisters. Kate was born in December 2007. Nettie was born in October 2004. Counts 1, 2, 3 and 7 charged offences of aggravated indecent assault contrary to s 61M(2), now repealed, for which the maximum penalty was 10 years’ imprisonment. Counts 4, 5 and 6 charged offences of sexual intercourse with a child under 10 years of age contrary to s 66A(1), for which the maximum penalty is life imprisonment. Count 8 charged an offence of sexual intercourse with a child between the ages of 10 years and 16 years contrary to s 66C(1), for which the maximum penalty is 16 years’ imprisonment.
The applicant pleaded not guilty to each charge on the indictment. On 5 March 2020, the jury returned verdicts of guilty to counts 1, 2, 3, 5, 6, 7, and 8 and not guilty to count 4.
The applicant seeks leave to appeal against each of his convictions on the following grounds:

“1.    Her Honour failed to warn the jury at the time the evidence was given that they should not give the pre-recorded evidence any greater weight than the evidence [was] received in court nor [sic, not to] consider the process adverse to the accused. Her Honour failed to warn the jury at the time the evidence [was] received by remote Audio Visual means [that it should not be given] any greater weight than the evidence received in court nor [should it] consider the process adverse to the accused. [The last sentence was repeated.]
2.    [Terms identical to ground 1.]
3.    Her Honour erred in her directions regarding the use of complaint evidence.
4.    Her Honour’s replaying of the recorded evidence in response to the jury question seeking the transcripts of the recorded interviews caused an irregularity in the trial that caused the trial to miscarry.
5.    Her Honour’s Directions as to ‘appropriate concessions’ caused an irregularity in the trial.
6.    The verdicts of the jury in respect of Counts 1-3, and 5-8 should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence and the verdicts of not guilty in respect of Count 4.
7.    The verdicts are unsafe and unsatisfactory.”

Leave is required for any ground that does not involve a question of law alone. Grounds 1, 2, 3 and 5 also require leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as no issue was taken by the applicant’s trial counsel as to her Honour’s directions.
The applicant seeks leave to appeal against his sentence on the sole ground of alleged manifest excess.
The breadth of grounds 6 and 7 would usually require the whole of the evidence to be canvassed. However, the written submissions of Ms Kluss, who appeared for the applicant, indicated that the sole basis for ground 6 was the alleged inconsistency between the verdicts of guilty in respect of counts 1-3 and 5-8 and the verdict of not guilty in respect of count 4, and that ground 7 was, in substance, an omnibus ground which was designed to incorporate the effect of all the other grounds. However, in oral submissions, Ms Kluss confirmed, without written expatiation, that she contended, in support of ground 7, that it was not open to the jury to convict the applicant of counts 1-3 and 5-8. The Crown, which had not been put on notice of this submission, responded orally and directed the Court to the most salient passages in the evidence in support of its submissions that the jury’s verdicts were not unreasonable. Given the basis on which Ms Kluss now presses ground 7, it is necessary to canvass the whole of the evidence. This will, however, be done in the context of ground 7, which will be considered last.

The trial

The Crown case

The Crown case at trial was as follows. The applicant, who was born in December 1997, was living with his mother (SL) and his father (PL) and his two older sisters in Ambarvale, Sydney (the Ambarvale family). In September 2010, Kate, who was born in December 2007 and Nettie, who was born in October 2004 (the complainants), and their brother, who was born in March 2006 (collectively, the children), were removed from their mother’s care and placed in the care of the Department of Family and Community Services (FACS). There was a familial relationship between the complainants and the applicant in that SL was not only the applicant’s mother but also the children’s great aunt, as she was their grandfather’s sister. FACS arranged for the children to live with the Ambarvale family. The children lived there between February 2011 and December 2016. The Crown alleged that the offending conduct took place between these dates during which the applicant was aged between 14 and 17 years’ old; Kate was between the ages of 4 and 7 and Nettie was between the ages of 7 and 11. The age difference between the applicant and Kate was 11 years and between the applicant and Nettie was 7 years.
In December 2016, SL asked FACS to find another placement for the children, who were moved to another foster family. In mid-2017, the complainants disclosed the applicant’s conduct to their new foster family, who reported the matter to the authorities which led to its investigation and the applicant being charged.
The defence case at trial was that not only had the offences not been committed but that the applicant had had no opportunity to commit them because in the almost six years during which the children had lived with his family, he had never been left alone with them. Further, the defence case was that the children were motivated to lie about what occurred because they bore malice towards the applicant’s family for making them move out in December 2016.

The evidence in the trial

Warnings given regarding pre-recorded evidence and evidence given remotely

It was common ground that each of the children was a “vulnerable person” within the meaning of s 306M(1) of the Criminal Procedure Act 1986 (NSW). LS, a school friend of Nettie, was also a child, and therefore a vulnerable person. Each gave evidence in chief by way of a pre-recorded interview and was cross-examined by audio-visual link. On 4 February 2020, in opening remarks to the jury, the trial judge said:

“In some circumstances, such as the trial that you are about to see the evidence may include audio and visual recordings. This trial involves allegations of sexual assault and indecent assault, and the law allows for certain procedures to be put in place for this type of evidence. One such procedure is that the evidence-in-chief is adduced by way of a pre-recorded interview by the police with the complainant, in this case there are two complainants, and that is the way that the evidence will be given in this trial.
None of these procedures are unusual in trials of this type and so you must not draw any inference adverse to the accused simply because those procedures are put in place. These are not unusual procedures in cases such as this kind of case, involving these sorts of allegations. It is important that I warn you that simply because the evidence of the complainant is taken by way of an audio visual link, i.e. not in the Court itself but by way of the screens which are in front of you, you must not give this evidence any more or lesser weight than you would give evidence in any other case. It is the same as hearing evidence from a witness within the Court. But be aware that it is evidence that you will only see once, and I’ll give you some warnings in relation to that in a moment.”

This warning is relevant to grounds 1 and 2, as is the warning in the summing up referred to below.
On 5 February 2020, the day after the warning was given, Kate was called to give evidence. Before the first recorded interview of Kate, conducted on 25 July 2017, was played to the jury, the Crown provided a transcript of the interview to the jury. At the time it was provided, her Honour said:

“So you’ll be provided with a copy of the interview, ladies and gentlemen, in writing as well as being able to listen to it. The actual evidence is in fact the recording. If you discern there’s any difference between what you hear and what you see on the page, then it’s whatever you think you hear, rather than what is written. Those documents - because that’s not an exhibit, it’s an MFI; the exhibit is the recording, then you don’t retain those documents. However, if there’s a particular part of it that you think is important, you may wish to mark it. You can put your initials on the top of the document and later on, if needs be, that document, you might be able to access it to see if there’s any marking on it. So that becomes MFI 4.”

After the interview was played, the members of the jury were asked to return their copies of the transcript of the interview. This practice was consistently adopted for each of the witnesses who gave evidence in this way (each of the children and LS). This direction is relevant to ground 4.

The summing up

The trial judge began her summing up on 24 February 2020. When directing the jury about assessing a witness’s evidence, her Honour said, at SU p 9:

“There are many factors which can have a bearing on a witness’ honesty. In considering the question of honesty, you might consider the impression the witness made upon you and that was where I requested that you watch witnesses as they give their evidence. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress you as someone doing their best to be truthful? Or did the witness impress you as someone deliberately trying to deceive you? Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer the question that was asked? Did the witness strike you as being objective and impartial? Or did the witness strike you as appearing to have an axe to grind or to be colouring his or her evidence in some way, or to have a particular agenda. Or to put it another way, did the witness appear to you to have another reason or motive for saying what they were saying? Did the witness make appropriate concessions about their evidence?”
[Emphasis added to indicate the passage which was thought to be the genesis of the jury question which prompted the further direction which is the subject of ground 5.]

In the course of explaining the concept of direct evidence, her Honour referred to the evidence of the children, who had given evidence remotely. Her Honour said, at SU pp 30-31:

“… Now I want to talk about categories of evidence. The first thing I want to talk to you about is direct evidence and evidence from which you can draw inferences. That is inferences drawn from direct evidence. Sometimes in a criminal trial the evidence relied upon by the Crown to prove its case beyond a reasonable doubt is called or drawn from direct evidence. Direct evidence is what a witness says they saw or what the accused said or did to them, or it might be an admission by an accused.
A simple example in this case is the direct evidence that is given by the … children about what they say the accused did to them. Of course you will have noticed that those children had given evidence before you by way of a recorded interview, and they have also been cross-examined from a remote location. There are two relevant directions I have to give to you in respect of the manner in which their evidence was given. The first is that they were given, remember, the records of interview. Each child had multiple records of interview. The law provides that witnesses as complainants give evidence in that way. That is an entirely standard procedure. There is nothing special about this trial in relation to the way that the children gave evidence. That is how it is done in relation to matters of this type.
You should assess their evidence in those records of interview from those locations in the same way as you would assess any evidence as if they were in the witness box. You will also notice that when the children were required for cross-examination and re-examination they were in a remote location, not in the courtroom themselves. That again is standard procedure and has nothing whatsoever to do with this accused. Any matter of this type, evidence is given in that way. So do not give their evidence any greater or lesser weight because they were giving evidence from a remote location.”

Her Honour continued by giving a Murray direction (R v Murray (1987) 11 NSWLR 12 at 19E (Lee J)), with specific reference to count 4 (which is relevant to ground 6) as follows, at SU p 31:

“The next issue is in relation to how you treat evidence where it is essentially the only evidence in relation to a particular event. So when you are looking at direct evidence, evidence where there is only one person who is giving evidence in relation to whether something took place. Even though you might look at the overall context, but essentially it comes down to whether you can rely on the evidence of the particular child. For example, we will take count 4 in relation to the sexual intercourse concerning the anal intercourse. There is really only one person who that evidence relies upon and that is the evidence given by [Kate]. That is the direct evidence in respect of that case. Yes, you can look at other factors around it, but essentially if you do not accept the evidence that she has given, then I do not think it is controversial from the bar table, then you would not find it beyond a reasonable doubt, if you did not accept what she had to say about that.”

In the summing up, after summarising the complaint evidence and reading extracts from the transcript concerning the complaints made, the trial judge said, at SU pp 52-54:

“That is all the evidence in relation to complaint evidence. You can see how it is developed in that chronology. This evidence is referred to at law as complaint evidence and you can use it in a different way from the other evidence. You can use it going to the truth of the facts asserted. It is for you to decide whether you accept that the complaints [were] made, and what the contents of the complaints were. As judges of the facts, that is entirely in your domain. In determining those matters you are entitled to take into account a number of factors, including the circumstances in which the complaints were made, the details of the complaints, any inconsistencies in the complaints generally, or in respect of the evidence given by the complainants.

If you find that the complaints were made substantially to the effect that the accused had sexually assaulted or indecently assaulted one or both of the complainants, then you can use evidence of what was said in the complaint as going to the truth of the facts. That is, you can use it as some evidence independent of the evidence given by the complainant in the trial. You can use the evidence that they give, the direct evidence that they say that happened, and then you can give weight to the fact of the complaints. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged. A jury is entitled, you are entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable. That is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate.
It is a matter for you whether you draw that conclusion in the particular case …
Of course the fact that a person says something on more than one occasion does not necessarily mean that it is true or accurate. A false or inaccurate statement does not make it more reliable simply because it has been said a number of times …”
[Emphasis added to indicate the aspect which is alleged on behalf of the applicant to be erroneous.]

This direction is the subject of ground 3.
At 3.25pm on 24 February 2020, the trial judge sent the jury out to consider its verdict. Before the Court adjourned for the day, the jury sent a note:

“The jury would like to request all three video transcripts of [Kate]’s interview.”

Her Honour consulted with counsel. Mr Hoare, trial counsel for the applicant, understood the jury to be asking for the transcripts only although her Honour construed the request as being for the videos of the interviews. Mr Hoare then made this suggestion:

“I suppose your Honour might just inquire from them as to whether they want to watch the videos again.”

However, her Honour appeared to consider the issue to be whether the videos would need to be watched in court or whether the videos could be given to the jury for a limited time for viewing in the jury room, rather than whether the jury wanted copies of the transcripts of the interviews or to view the videos of the interviews. After consulting with counsel, the trial judge asked the jury to return to court at 4.04pm. Her Honour said, at SU pp 94-95:

“I have received your note, which will become MFI 37. In relation to [Kate]’s interview she of course made four records of interview so probably for completeness you should be provided with access to all of those, and the practical way that that is done is to simply play those again, because remember that the transcript of what is recorded is not in fact evidence. The evidence is in fact the recording, and there is law that says that in relation to that sort of evidence it just has to be played again. So that is fine. What we will do is tomorrow when you come back we will have that evidence played again and you will have the transcript as you go through it, and you will also be provided with the transcript of her examination-in-chief, cross-examination and re-examination because you cannot just look at one part of her evidence, you have to look at all of the evidence in relation to her. So we will make that available for you. The time is now getting onto 5 past 4, so obviously time to let you go this afternoon.”

The following morning, 25 February 2020, the jury sent a further note:

“At the conclusion of each video evidence, the jury would like to have a 20-minute period in the jury room to review and discuss as a group.”

In response to the second note, Mr Hoare objected to the jury being allowed to see the videos of the recorded interviews (on the basis that they could not “replay” the evidence of other witnesses whose evidence had not been recorded). However, he contended that the jury ought be provided with the transcripts of the recorded interviews of Kate, together with the transcript of her evidence which had been given remotely, which included cross-examination and re-examination. In the alternative, he submitted that the videos ought be replayed in court once and that her Honour ought inform the jury that they were permitted to do this “only on this one occasion.”
In discussion with counsel, her Honour confirmed having read AB v R [2019] NSWCCA 82 and R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, decisions of this Court on the question of replaying recorded interviews of vulnerable witnesses. Her Honour also informed counsel that she would allow them to have access to the recordings but only for the purposes of their being replayed in court, and provide them with the transcript of Kate’s interview (which comprised her examination in chief), cross-examination and re-examination. She also indicated that she would warn the jury not to give the recording disproportionate weight.
At 10.16am on 25 February 2020, the jury was asked to return to the Court. Her Honour said, at SU pp 100-101:

“We have received both of your notes in relation to your request to have the evidence of [Kate] made available to you again. The law is quite clear in relation to how that is to take place. You will recall that I spoke to you in the early days about the difference between exhibits and MFIs. The recording of [Kate] and the same in relation to [Nettie] and [their brother] is that their evidence that you heard played is not, in fact, an exhibit and that is because their evidence is, in fact, no different from any other witness in this court, in the sense that you only get to usually see a witness once, in that if you had asked to see any other witness, for example, a complaint evidence like [ZH], we would not be able to play you are recording. But because it is recorded, you can see it again.
However, care is to be taken that, because it does fit into that class of evidence that is recorded in that way, you are really not to give it any disproportionate weight. It is not to be given any disproportionate weight, all right? You have to see it in the context of all of the evidence in the trial. Of course, [Kate]’s evidence that was recorded was followed by the questions that she was asked in cross-examination by the accused and re-examination again by the Crown. For that reason, we will replay all of that material, the transcripts I beg your pardon, the recordings - that were made with the police. We will play all of them, not just the first three. We will play all of them because you must see them all together, and you will be provide[d] with the transcript of the cross-examination and the re-examination, or all of the evidence. I do not think there was any re-examination.
You are also - and I will give you this warning again at the end - to not just see it in an isolated way. You must take into consideration that there was other evidence that was given in relation to [Kate]’s complaint, of course, directly in relation to the evidence of [ZH] and [JH]. Then you must also consider in relation to her evidence the denials made by the accused in his record of interview and, of course, in the evidence that you heard he gave before the Court. My rulings will be in relation to it that you should guard against the risk of giving it disproportionate weight simply for the reason that it is no different from other evidence given in this case, and bear in mind the other evidence in the case.
In relation to your request for 20 minutes at the end of each of that recording, we, again, are concerned that that would mean that that would be a compartmentalised approach to the evidence and that what we are asking you to do is to look at it as a whole, in its entirety on its own, but also as part of the case and the other evidence in the case. For that reason, we will play it, all of it, as much as we can together, however, there will be normal breaks for morning tea and so on, comfort breaks, all right?”

During the luncheon adjournment, after some of the recorded interviews had been played, the jury sent a further note asking for access to the transcripts of the evidence of the mother, father and daughter of the children’s new foster family (where they had moved at the end of 2016). After consulting with counsel, her Honour told the jury, when it returned to court at 2.07pm, that they would be given the whole of the transcript of the evidence of all of the witnesses. The transcript recorded that, at 2.55pm, the final recording of Kate’s evidence had been replayed to the jury and the jury retired to continue its deliberations. The transcripts of the evidence, including that given out of court, were provided to the jury either after court on 25 February 2020 or on 26 February 2020.
The jury continued to deliberate on 26 and 27 February 2020. On the morning of 2 March 2020, a Monday, the jury sent the following note to her Honour:

“1.    What is meant by ‘making appropriate concessions’?
2.    Under what circumstances can you make appropriate concessions?
3.    Is there anything we can’t make appropriate concessions about?”

Her Honour consulted the legal representatives (the applicant’s solicitor, Mr Velcic, made submissions on behalf of the applicant, as Mr Hoare was otherwise engaged). Mr Velcic volunteered, after having consulted with Mr Hoare, that the jury should be directed that if there were any concessions to be made, they should be made in favour of the accused and that the jury should be reminded of the onus and standard of proof. There was further discussion between the trial judge and the legal representatives as to how the question ought be answered. In this context, Mr Velcic referred to “the bizarre questions [asked by] a jury in the course of deliberations.”
As to question 1, her Honour reminded the jury of the context in which she had referred to “appropriate concessions” in the summing up and said, at SU pp 134:

“In the closing addresses there were some references made to … what the children said and whether they could have embellished their evidence and whether they did or they did not. So that is the most that I will have to say in relation to one.”

As to question 2, her Honour told the jury that she was not sure what it meant except that it might relate to “inferences and speculation”. The transcript recorded her Honour’s observation that some of the jurors “seem to be nodding [their] heads”. Her Honour said further, in answer to questions 2 and 3:

“But what you are not allowed to do, and it comes back to the onus of proof on the Crown, is to speculate. So your deliberations have to be based on the evidence. If there is a flaw in the evidence where you cannot be satisfied beyond a reasonable doubt then you are duty-bound to acquit. So that comes back to the fundamental direction that I gave you in relation to being satisfied of each of the elements on the elements document which relates to the indictment beyond a reasonable doubt. If you are not satisfied of any one of those elements on the evidence in the trial then you must acquit.
What you do not have to be satisfied of beyond a reasonable doubt is the other evidence that is not an element, all right, but in relation to the elements you must be satisfied beyond a reasonable doubt and if I were to look at question 3 and question 2 together, then I would just remind you that you are to do that on the basis of the evidence. You are not to speculate if there is not evidence there. If you have a reasonable doubt in relation to a matter then you are duty-bound to acquit. I hope that assists. All right, you can continue with your deliberations.”

After her Honour sent the jury out to continue to deliberate, she apologised for not asking the parties’ legal representatives whether there was anything they wished to add. Both the Crown and Mr Velcic confirmed that they had nothing to add. The jury continued to deliberate on 2, 3 and 4 March 2020.
At about 4pm on 4 March 2020, the jury sent a further note to the trial judge which said:

“We have considered all the evidence but require clarity on a particular count. Would we be able to please just watch [Nettie]’s police interview on 14 August 2017 to assess demeanour?”

The jury returned to court at 4.05pm. The trial judge, after reading out the jury note said, of present relevance, at SU p 145:

“For the purpose of watching it, we will all watch it with you. So tomorrow at 10am we will reconvene and we will watch it. Because you have all of the transcript and all of the associated transcripts of the interviews, perhaps you might bring with you your own copy of that record of interview transcript. So if you bring that with you, that might assist. All right, so I will excuse you this afternoon.”

After the jury had left the court, the Crown asked her Honour to remind the jury that they should not permit the video to “dwarf their overall assessment of the evidence”.
On 5 March 2020, the interview that the jury had requested was replayed in court, following which her Honour said, at SU p 148:

“Can I please remind you, as I did when I gave you my summing-up initially, that it is important that you not consider pieces of evidence in isolation, that when you are assessing demeanour, of course, you are looking at all of the evidence given by that particular witness, taking into consideration that she was, of course, present in Court, although via AVL and she was asked questions in cross‑examination by the accused’s representative and she was also asked questions in re‑examination by the Crown and, of course, you are to take into consideration all of the other evidence in the Crown case and the evidence that was given, of course, in the accused case. So I just again encourage you to not look necessarily at just one thing in isolation.”

At 10.37am, the jury retired to resume its deliberations. At 3pm that afternoon, the jury returned verdicts of guilty in respect of counts 1, 2, 3, 5, 6, 7, and 8 and not guilty in respect of count 4 (the alleged inconsistency is the subject of ground 6).

Grounds 1 and 2: alleged failure to warn regarding pre-recorded evidence

These grounds were in identical terms. The applicable legislative provisions are as follows. Section 306X of the Criminal Procedure Act provides for a warning to be given in respect of pre-recorded evidence as follows:

“306X Warning to jury
If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.”

Section 306ZI of the Criminal Procedure Act relevantly provides for a warning to be given where the evidence of a vulnerable person is given by means of closed-circuit television facilities as follows:

“306ZI   Warning to jury
(1)    In any criminal proceeding in which the evidence of a vulnerable person is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 306ZB), the judge must—
(a)     inform the jury that it is standard procedure for the evidence of vulnerable persons in such cases to be given by those means, and
(b)     warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology.

…”

Ms Kluss accepted that the warnings that were given in the opening remarks conformed to the substance of these provisions and that the warnings were, at least in part, repeated in the summing up. However, she submitted that her Honour was in error in failing to give the warnings at the time, and every time, evidence was given which attracted the warning. She relied on R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227, where Howie J (Meagher JA and Simpson J agreeing) said at [23]:

“For my part, I believe it is highly preferable that a trial judge gives such information and warnings as are required in respect of a particular part of the evidence that is to be given in a trial before a jury either immediately before or immediately after the giving of that evidence rather than to wait to fulfil that obligation during the course of the summing up. Generally speaking, it would be expected that any information or warning that a jury is required to consider in their assessment of a particular piece of evidence would have considerably more impact upon the jury if given at a time proximate to the evidence. This does not mean that it would not be advisable, or even necessary in some cases, to convey that information or warning again during the course of the summing up. But whether such a course is necessary in order to ensure a fair trial and one according to law will depend upon all the circumstances of the particular case and the nature of the information or warning that must be given.”

Ms Kluss submitted that because FACS workers gave evidence before the children (who were each, by definition, vulnerable persons) gave their evidence, “it is probable that the jury would have forgotten what she had said to them” by the time the children gave their evidence. She submitted that the direction in the summing up did not comply with the statutory requirements since her Honour merely referred to the giving of pre-recorded evidence and giving evidence remotely as being “standard procedure” and that they ought not give the evidence any greater or lesser weight. Thus, she submitted that the direction in the summing up was insufficient to cure the deficiency that the direction had not been given at the time the evidence to which it related was given.
While ss 306X and 306ZI of the Criminal Procedure Act require the trial judge to warn the jury about the matters covered by the sections, Parliament has not specified when such warnings ought be given. This Court has said, in the passage extracted above, that it is preferable that such warnings be given before the summing up and indeed, before or immediately after the evidence is given.
However, the timing of the warnings and whether, and how often, they are to be repeated, remains within the discretion of the trial judge. While one can understand why giving the warning only in the summing up could be thought to be too late, since the jury may already have given the evidence greater or lesser weight, having not been directed to the contrary, the same concern does not arise when it is given in the opening remarks. In the present case, although evidence of non-vulnerable witnesses was given between the opening remarks (where the warnings were given) and the calling of Kate, the time between the warnings and the adducing of Kate’s evidence was relatively short. To repeat a warning every time a vulnerable witness is called runs the risk of insulting the collective intelligence of the jury and, perhaps even more importantly, of giving the jurors the impression that they need not listen carefully to what the trial judge is saying because any important direction will be repeated ad nauseum. Further, there is a risk that if a trial judge keeps reminding the jury that they are not to regard pre-recorded interview evidence differently from oral evidence given in the witness box, it will only serve to highlight the difference in form, when the purpose of the warning is to the contrary. In any event, the substance of the warning was repeated immediately prior to replaying the recorded evidence. The statement that no inference adverse to the accused should be drawn from the nature of the procedure was not repeated. However, to make too much of that warning is apt to invite the jury to consider why they would think the procedure implied something adverse to the accused.

In my view, the trial judge not only complied with the statutory provisions referred to above, but did so in a way which highlighted their import. I am not persuaded that leave under r 4.15 ought be granted in respect of grounds 1 and 2.

Ground 3: alleged error with respect to complaint evidence

The basis for ground 3 is the highlighted passage, “That is, you can use it as some evidence independent of the evidence given by the complainant in the trial”, in the summing up concerning complaint evidence. Ms Kluss argued that this direction was erroneous as the complaint evidence was not independent of the complainant and that the direction had the effect of giving unwarranted weight to that evidence.
It was common ground that complaint evidence could not, as a matter of logic, be independent of the complainant since the complainant was, inevitably, the source of the complaint evidence (even in cases where another witness gives evidence of the complaint by the complainant). However, the complaint evidence was relevant and admissible on two separate bases. First, the complaint evidence was admissible, even at common law, if it was a recent complaint of an alleged sexual offence, and was admissible as a prior consistent statement: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (Papakosmas) at [12] (Gleeson CJ and Hayne J). Second, the use of complaint evidence for the hearsay purpose (namely, to prove the truth of the underlying facts complained of) was subsequently authorised by legislation, which created an exception to the hearsay rule as long as the complaint was made when the underlying facts were fresh in the memory of the complainant. Neither of these two uses of the complaint evidence required it to be independent of the complainant. Evidence of complaint cannot corroborate the conduct complained of, because its source remains a statement by the victim. However, it may be corroborative of the fact of complaint of which the victim has given evidence. Corroboration is, by definition, independent evidence: Papakosmas at [16]. When and to whom the victim first complained may be important to her credibility. Legal principles relating to the requirements as to corroboration (which are no longer part of the law) were not matters explained to the jury, nor should they have been. Complaint evidence has been referred to as corroborating a complainant’s direct evidence of an offence since it is regarded as making it stronger: see the discussion of R v Osborne [1905] 1 KB 551 in Papakosmas at [16]-[17].
Accordingly, her Honour was in error in describing the complaint evidence as independent. The source of the error was the Criminal Trial Courts Bench Book (the Bench Book), in its then form, which formed the basis of the direction her Honour was giving. The Bench Book has subsequently been corrected as a result of this Court’s decision in SB v R [2020] NSWCCA 207 (SB). The question for present purposes is the effect of the error. Lawyers might be acutely conscious of the distinction between evidence which, being independent, is capable of being corroborative and evidence, such as complaint evidence, which not being independent is not capable of being corroborative. However, the relevant effect of the direction is its effect on the jury, not its effect on a punctilious lawyer. In common parlance, the word “corroborative” means making stronger or more credible. The requirement that corroborative evidence be independent is one on which the law insists but which has not necessarily found its way into common usage. Even in R v Osborne, the House of Lords described the complaint evidence as being “corroborative of the complainant’s credibility”, terminology which was criticised by Gleeson CJ and Hayne J in Papakosmas as “strictly speaking, inaccurate”.
I am not persuaded that her Honour’s reference to the complaint evidence as “independent” was capable of having any real bearing on the jury’s understanding of her Honour’s directions as to the use to which the complaint evidence could be put.
Further, leave is required under r 4.15 as the point was not taken at trial. Ms Kluss submitted that this Court ought grant leave because it would have been futile to object to a direction which corresponded with the then current Bench Book. She referred to SB in support of this contention. The Bench Book is designed to be of assistance to trial judges and counsel but it does not have authoritative force. I would refuse leave under r 4.15.

Ground 4: alleged error in replaying the video interviews of vulnerable witnesses

Ms Kluss argued that her Honour was in error in allowing the recorded interviews to be replayed in circumstances where the jury, at least on 24 February 2020, had asked only for the “video transcripts”. Ms Kluss submitted that her Honour had, by misconstruing the jury’s question, elevated Kate’s evidence in chief and given the jury the incorrect impression that it was entitled to ask for and view the further video of Nettie’s interview which took place on 14 August 2017. Ms Kluss contended that her Honour ought simply have provided the jury with the transcripts of the interviews and not offered the jury the opportunity to re-watch the videos.
It is apparent from the transcript that there was an ambiguity in the jury’s question since it was not clear from the wording of the question whether the jury wanted to re-watch the videos of the interviews or have access to the transcripts of the video interviews. Her Honour (and, apparently, the Crown) understood the question to relate to the actual videos of the interviews. Mr Hoare understood the question to relate to the transcripts. While Mr Hoare suggested that her Honour might want to clarify with the jury what it meant, he did not press this suggestion with any force. Nor did he take issue with what her Honour had said to the jury on the afternoon of 25 February 2020 or object to the replaying of the videos. The trial judge agreed with the protocol which he suggested, namely that the videos would have to be viewed once in court (to ensure that they not be further replayed); Mr Hoare did not object to what was proposed. Nor did the jury, which was not shy to ask questions, cavil with the course taken, perhaps because if they had wanted the transcripts, they got them.
I consider Mr Hoare’s conduct to be binding on the applicant. Ms Kluss’s submissions to this Court were not made in terms to the trial Court. Further her Honour directed the jury as to the way in which they ought regard the evidence (as a whole) and refused the jury’s request that they be permitted 20 minutes after the replaying of each video interview to discuss the contents of the video. There was no error in her Honour’s approach.
Because Mr Hoare originally objected to the videos being replayed, albeit on the basis that the jury had not requested it, I do not consider that leave under r 4.15 is required, but I am not persuaded that this ground has been made out.

Ground 5: alleged error as to the reference to “appropriate concessions”

Ms Kluss argued that her Honour failed to engage with the jury’s request for an explanation as to the meaning of appropriate concessions and submitted that this omission had led the trial to miscarry because the trial judge had, effectively, withheld from the jury, guidance as to how they ought assess the complainants’ evidence. She submitted that, as the credibility of the complainants was the principal issue in the trial, her Honour’s failure had led to a miscarriage of justice.
At the outset, it is important to note that the assessment of the credibility of witnesses is regarded as a matter falling almost entirely within the domain of the jury. There is relatively little that trial judges can say to juries on the topic of credibility since the jury’s assumed ability to assess credibility for itself is one of the foundations of the system of trial by jury. Beyond directing the jury that jurors should observe not only what witnesses say but also how they say it; that it is open to them to accept or reject all or part of a witness’s evidence; and warning the jury that some witnesses might be unreliable for various specified reasons (such as that they are criminally involved), judges generally leave assessment of credibility to the good sense of the jury: see, generally, McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5.
It is relatively plain from the transcript that her Honour and the parties’ legal representatives were unsure what to make of the jury’s questions about “appropriate concessions”. Indeed, Mr Velcic’s observation about jury’s asking “bizarre” questions while deliberating supports this inference. Further, I infer that the jury simply did not understand the phrase since its third question on the topic indicated that the jury considered that it was the party responsible for making appropriate concessions or otherwise. It would seem to have been common ground that, rather than having the trial judge giving a lecture on what lawyers mean by a witness making appropriate concessions, it would be more effective to remind them of general concepts such as the standard and onus of proof and the difference between speculation and inference. Mr Velcic agreed with this course. After this consultation, her Honour (as set out above) proceeded to direct the jury about these general matters. As her Honour noted, this appears to have been what the jury was interested in, since some jurors nodded when her Honour referred to speculation and inference. No further questions on this topic were forthcoming, by which I infer that the jury regarded her Honour as having satisfactorily answered, if not its questions, then at least its concerns.
I reject Ms Kluss’s submission that her Honour should have done more, or should have answered the questions differently. Leave under r 4.15 is required as Mr Velcic endorsed the approach proposed by her Honour. I would refuse leave under r 4.15 to argue this ground.

Ground 6: alleged inconsistency between the verdicts of guilty for counts 1-3 and 5-8 and the verdict of not guilty for count 4

The applicant argued that the verdicts were inconsistent because the jury, by its verdicts, had apparently accepted Kate’s evidence on count 1, 2 and 3 but not on count 4. A complaint that a jury verdict is unreasonable because of inconsistency with other verdicts gives rise to the question whether the differentiation can be explained as a matter of logic and reasonableness: see the summary of authorities in Nguyen v R [2017] NSWCCA 145 at [34]-[47] (Macfarlan JA, Campbell J agreeing) and [52]-[53] (Adamson J).
Further, one cannot assume that different verdicts are inconsistent merely because a jury returns different verdicts with respect to different counts in respect of the same complainant. Thus, it cannot be inferred from the jury’s verdict in respect of count 4 that the jury did not find Kate credible and otherwise reliable, particularly where guilty verdicts have been returned on other counts concerning Kate.
In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said at [34]:

“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”

In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (Markuleski), Wood CJ at CL explained, at [221], that an acquittal on a particular count did not amount to a positive finding that the act did not occur or that the evidence of the complainant was rejected as a lie or as lacking in credibility. Further, his Honour, when listing the possible explanations for differences between verdicts returned by juries, identified the following at [235(h)]:

“the jury were entitled to conclude, in relation to the event in respect of which the accused was acquitted, that the complainant misunderstood or misinterpreted what it was that had occurred (R v ACK [2000] NSWCCA 180 provides an example of such a case).”

In R v ACK [2000] NSWCCA 180, James J (Spigelman CJ and Ireland J agreeing) said at [51]:

“It was submitted that the verdict of not guilty on the first count was inconsistent with the verdicts of guilty on the second and third counts. However, the different verdicts on count 1 and counts 2 and 3 are capable of being explained on the basis of the evidence of complaint. The complainant complained to Miss H that the appellant had rubbed his penis over her, being conduct of the kind alleged in the second and third counts on which the appellant was convicted, but did not complain to Miss H that she had been anally penetrated, which was conduct of the kind alleged in the first count.”

In the present case, the evidence in respect of counts 1, 2 and 3, which concerned Kate, was qualitatively different from the evidence in respect of count 4. For counts 1, 2 and 3, Kate gave detailed, explicit evidence about the acts of indecent assault which were perpetrated on her by the applicant. However, for count 4 (penile-anal sexual intercourse) Kate’s evidence was relatively limited. She did not refer to the facts in count 4 in her first interview on 25 July 2017 but did refer to them in the second interview on 14 August 2017. Kate said that the applicant had called her into his room, while Nettie and their brother were “out the back yard”. When she went to his room, he wrapped a brown scarf around her eyes and told her to turn around. He asked her to pull her pants down, which she did, and left them around her “legs”. He then asked her to lie down on the bed, which she did. Kate said that, while she was lying face down, he then “put his, um his, um, his, like, doodle in.” When she was asked what she could feel, she said, “I just felt something in my bum.” She said that she “felt a bit scared” and “[bit] the blanket.” When she was asked whether it hurt, she said, “Uh, a little bit.” She said, “[h]e just pushed in,” and “[h]e just stayed still and then, um he took it out.” She said that it was “in” for a “little time” and that he was “staying still” while “his doodle was in [her] butt.” When Kate was asked how she knew that it was his “doodle”, she said, “’cause it was round”. By the time Kate took off scarf which had blindfolded her, the applicant had his pants back on.
In cross-examination, Kate said that she did not feel the applicant’s “doodle” going inside her and when she was asked, “[w]hat did you feel?”, she answered, “[n]othing.” Although she confirmed that he had put his “doodle” in the place “where [the] poo comes out”, she maintained that she did not feel anything when this occurred.
The present case appears to me to be an example of the appropriately cautious approach of the jury to the decision whether the Crown had proved count 4 beyond reasonable doubt. The jury might have reasoned that, had there been such penetration, it would be inevitable that it would have hurt Kate more than “a little bit.” Because count 4, unlike counts 1-3 (which charged indecent assault), charged sexual intercourse, it was necessary, in the context of penile-anal intercourse, that there be penetration by, in this case, the applicant’s penis, into Kate’s anus: s 61HA(a). Putting his penis between her buttocks would not be sufficient to amount to penetration, and thus, would not be sufficient to establish sexual intercourse. The jury may well have accepted Kate’s description of what had happened, in so far as the applicant’s penis had touched her buttocks (which would have amounted to indecent assault, had that been charged), but not been satisfied beyond reasonable doubt that there had been any actual penetration of her anus, and therefore not have been satisfied that there had been unlawful sexual intercourse. On this basis, the jury’s verdict in respect of count 4 may have reflected an acceptance of what Kate said about what happened and adherence with the trial judge’s directions about the need for the Crown to establish penetration beyond reasonable doubt. It was open to the jury to consider that Kate had misunderstood or misinterpreted what had occurred, a situation referred to by Wood CJ at CL in the passage extracted above from Markuleski.
This explanation for the jury’s verdict of not guilty of count 4 is sufficient, as Ms Kluss accepted. Indeed, Ms Kluss conceded that it was “perfectly available as a conclusion.”
In further support of this ground, Ms Kluss relied on the circumstance that, as recorded in the transcript, Mr Hoare asked her Honour in the short adjournment on the afternoon of 24 February 2020 (during the course of the summing up) whether her Honour had given a Markuleski direction (that if the jury were to find the accused not guilty on any count, particularly due to doubts about the reliability of the complainant’s evidence, the jury would have to consider how that conclusion affected its consideration of the remaining counts). The transcript recorded (as Ms Kluss accepted) that her Honour had given a Markuleski direction earlier that day. Ms Kluss submitted that this Court could infer from the fact that the direction had not impinged on Mr Hoare’s consciousness that “it is unlikely that the jury would have given it any weight or attention …”. I regard this submission as a non sequitur. It is the experience and observation of trial judges that juries listen attentively to the summing up. If the attention of particular jurors is waning, judges adjourn proceedings for a short period to allow jurors to refresh themselves and focus on the directions which are being given to them.
For these reasons, I would refuse leave to appeal in respect of ground 6. The submissions in support of this ground were without merit.

Ground 7: alleged unreasonable verdict

As referred to above, ground 7 is relied upon both as an omnibus ground, which encompasses grounds 1-6 (none of which has been made out) and as a stand-alone ground. Ms Kluss made brief oral submissions as to why the verdicts in respect of counts 1-3 and 5-8 were unreasonable and submitted that it was necessary for this Court to make its own independent assessment of the whole of the evidence to determine this ground. In substance, she submitted that it was not reasonably open to the jury to accept the complainants’ evidence because they had lied on other occasions; had stolen items; and had a motive to lie by reason of their grievance against the applicant’s family.
I confirm that I have reviewed the whole of the evidence. The following summary of the evidence in the trial is sufficient to indicate my reasons for rejecting this ground.

The Crown case

FACS was notified in 2010 of “care issues” regarding the children, who were at that time effectively homeless. FACS sought to identify an appropriate foster family with whom they could live. The children’s father suggested that the children be placed with his aunt, SL. This led to the children’s placement with SL, her husband and children, who included the applicant. During the time the children were placed with the applicant’s family, FACS had relatively little involvement with them, except to ensure that they went to school, rather than being home-schooled, as was the case with the applicant and his siblings. To the extent to which FACS monitored the children’s welfare while at the Ambarvale home, its case workers found the children’s situation to be satisfactory.

Counts 1-3: counts concerning Kate

The first recorded interview with Kate was conducted by Detective Senior Constable (DSC) Wilson on 25 July 2017. Subsequently, further interviews were conducted. In the course of these interviews, Kate told police that the applicant lied about what he did to Kate and Nettie and that whenever the complainants tried to tell their great-aunt, SL, about what the applicant did to them she told them that they were lying and smacked them. Kate described that the applicant would blindfold her with a brown scarf and performed, and made her do, the acts which formed the basis of, relevantly, counts 1-3.

Count 1: aggravated indecent assault

Kate said that when she was about 4 or 5 years old (and the applicant was between 14 and 15), she was sick and stayed home from school. She was lying on her bed and wearing a pink dress with flowers on it, when the applicant came in and lifted up her dress and exposed her underwear. He looked at her for a brief period and then returned to his room. This is the conduct relied on for count 1.

Count 2: aggravated indecent assault

When Kate and the applicant were about the same ages as for count 1, the children were at home with the applicant. They were playing in the backyard when the applicant beckoned Kate inside. He blindfolded her with a brown scarf and led her into the bedroom. She heard him undo his belt. He lay down beside her on the bed and asked her to touch his penis and move her hand up and down. He instructed her to keep going. Eventually he “peed” (ejaculated) on her head. The liquid dropped onto her hand and she observed that it was white. Kate said that events such as this one happened at least five times when she was 4, 5 and 6 years old.

Count 3: aggravated indecent assault

When Kate was about 6 or 7, she was playing with her siblings in the backyard. The applicant instructed her to come to his room where he blindfolded her with the same brown scarf. He made her lie on the bed and touch his “doodle thing” (penis). At his direction she masturbated him with both hands until he told her to stop. He then took her into the hallway and removed the blindfold.

Counts 5-8 concerning Nettie

The first recorded interview with Nettie was conducted by DSC Wilson on 25 July 2017. When DSC Wilson asked Nettie why she had come to talk to her, Nettie explained it was because they had told JH, their new foster mother, what happened at “Aunty’s” [SL’s]. She said that they had been assaulted and “punished in the wrong way” and “another relative did something to me and [Kate].” She also said that SL “wouldn’t believe us”. In the course of the first interview, Nettie gave details of the violence that was inflicted on her and her siblings by SL and members of the family. She also said that she had stolen an apple, which had caused them to start hitting her. Nettie also described verbal abuse towards her and the children and said that SL and her family would call them “shitheads”. When describing the offending conduct (set out below), Nettie said that it mostly happened when everyone else in the family was out except the applicant, Kate, her brother and herself.
A second interview was conducted on 14 August 2017, at which Nettie told DSC Wilson about the conduct which became count 7. A third interview took place on 7 May 2018 at which Nettie told police about the conduct that became count 8. The police conducted a further interview on 8 July 2019

Count 5: sexual intercourse with a child under 10

When Nettie was about 7 or 8, she was playing in the backyard with her siblings when the applicant asked her to come inside. He blindfolded her with a brown scarf and took her to his room. Nettie heard him take off his belt. He directed her to get on the bed on her hands and knees. Nettie saw his “private part” under the blindfold. He instructed her to open her mouth. He put his penis inside her mouth and moved her head back and forward. Nettie choked and the applicant ejaculated into her mouth. Nettie told police that she thought he had “peed” into her mouth. He instructed her to swallow it. She heard the garage door open, which indicated that SL had come home. The applicant instructed her to “get out”. When Nettie left the room she saw the applicant putting his pants back on. Nettie, who felt like vomiting, spat the semen into the bathroom basin and washed out her mouth. She said that this had occurred between 20 and 40 times over the course of about two years.

Count 6: sexual intercourse with a child under 10

When Nettie was in year 2 at her local public school, and aged 9, and the applicant was between 15 and 16, Nettie was in the garden with her siblings when the applicant instructed her to come to his bedroom. He was unable to locate the brown scarf on this occasion. He instructed Nettie to get on her hands and knees on the bed and suck his penis. He moved her mouth up and down until he ejaculated into her mouth. She described its taste as “sour”. Nettie became aware of someone approaching the garage. She left the bedroom and went to the laundry to spit out the semen.

Count 7: aggravated sexual assault.

When Nettie was between the ages of 10 and 11 years and 11 months old, she was at home with her siblings and the applicant. The applicant instructed Nettie to go to his room where he blindfolded her with the brown scarf. He told her to take off her pants and lie on the bed. She felt him get onto the bed and heard him undo his belt. She felt a wet substance on her private part. He told her to leave. She took off the blindfold and saw him without his pants on. She picked up her clothes and went into her bedroom. She wiped off the wet substance from her vulva with toilet paper. She then went outside and told her siblings what had happened.

Count 8: sexual intercourse with a child over 10 and under 14 years

About two weeks before Nettie’s 11^th birthday, she and her siblings were playing in the backyard when the applicant called her into his room. He blindfolded her and told her to lick his penis. He performed fellatio and ejaculated into her mouth. Afterwards she went to the laundry and spat out what was in her mouth, which she observed to be white. She said that this was the last time he had done this to her but it had occurred about 20 times.

Violence in the Ambarvale home

Kate and Nettie gave evidence about being hit by SL and her husband while they were living at the Ambarvale home. Their brother also gave evidence about this. Kate admitted, in cross-examination, that she got into trouble from SL for telling lies.
LS, a prosecution witness, had been in Year 4 with Nettie at the local public school was also interviewed by police. The video of her interview was played to the jury as her evidence in chief. She recalled Nettie having a conversation with her to the following effect:

“… I remember her telling me that whenever she was at home she felt very unsafe because if something didn’t happen, I mean, like, something that she hadn’t done for her parents, um, she would get hit. Um, [Nettie] told me that she felt like running away. Um, she told me that school was her safe place, and that when she was at school she felt safer with her brother.”

LS also said that Nettie told her that “if she didn’t obey her parents she’d get slapped or hit” and that “[Nettie] and her brother were scared of being at home.”

Whether the children were left at home with the applicant

The Crown relied on the evidence of the children that they were frequently left at home alone with the applicant. They also relied on admissions made by the applicant in his Electronic Record of Interview with Suspected Person (ERISP) that “there were some cases”, but “not too many times” when he was left alone with the children. These admissions were inconsistent with the applicant’s evidence in the trial (and that of his family members) that he was never left alone at the Ambarvale home with the children.

The relocation of the children in December 2016

In December 2016 the children were moved by FACS from the applicant’s home as SL was having difficulties, since she had had a stroke. Eventually, just before Christmas 2016, they moved to live with their new foster family, JH and her husband and their daughter, ZH. Kate and ZH were school friends.
Kate was “angry” when the children had to leave the Ambarvale home in December 2016 because she was fond of LL (one of SL’s daughters) and because she felt that they did not want her and her siblings anymore. In cross-examination, Kate admitted that she was “pretty confused” about what was happening on the day they were moved from the Ambarvale home because she had not been given any warning that it was about to happen. She also admitted that she was “a little bit sad” and a “[l]ittle bit angry” when she was told in December 2016 that SL did not want to see her or her siblings again.
In cross-examination, the applicant’s trial counsel put to Nettie that, with all the terrible things that had happened to her at the Ambarvale home, she would have been happy to leave. The following exchange occurred:

“Q. You would have been happy to leave there, wouldn’t you?
A. Well, when we left, we started feeling guilty cause well, we were raised there kind of. So we were pretty naïve children.
Q. What’s “naïve” mean?
A. Not really like knowing anything, I guess.
Q. You didn’t know that you were going to leave [SL’s] until the day that you were told to pack your bags, did you?
A. Yeah.”

Nettie also said that for a while after she had left the Ambarvale home, she wanted to go back and live there. She accepted that when she moved there, it was the first time she had experienced stability. Nettie also gave evidence about being taken to her natural mother’s funeral while she was still living in the Ambarvale home by Fia, the last FACS caseworker allocated to the children when they were living at Ambarvale. She said that she did not tell Fia about the applicant’s conduct because Fia was close to SL.

Complaint evidence

Kate said that she had told SL once about what the applicant had done to her but that SL had not done anything to (punish) the applicant and she had not made another complaint. In about mid-2017, Kate told ZH about what the applicant had done to her and ZH told her mother, JH. Nettie also said that she had told SL once about what the applicant was doing to her but did not complain again. Nettie said that after they had been living with their new foster family for about six months, she and Kate told ZH about what the applicant had done to them because they trusted her.

The complainants’ response to the assertion that they had fabricated the complaints

The complainants consistently denied that they had made up the complaints. Nettie’s response was as follows:

“Q. … you eventually heard, didn’t you, that [SL] didn’t want to have anything more to do with you, didn’t you?
A. Yes.
Q. It was after that, that you sat down with your brother and sister, and you said to them, one of you suggested that maybe, ‘We want to get someone in trouble,’ didn’t you?
A. No.
Q. You thought that the person you would get into trouble wasn’t your two older sisters, but it was [the applicant], wasn’t it? That’s what happened, wasn’t it? You decided to tell lies about [the applicant] because the family didn’t want you. That’s true, isn’t it?
A. No, that’s not true. Why would we make something like this up?”

The applicant’s case at trial

The applicant’s case at trial was, in substance, that the children were lying about the violence inflicted on them at his home and that Kate and Nettie were lying about the applicant’s offending conduct and had a motive to lie because they had a grievance against the applicant and his family because they wanted to continue to keep living there after December 2016 when they were asked to leave. There were general attacks on the credibility of the complainants, including that they had stolen various items (which neither denied) and that they had misbehaved at school (which neither denied). His case also included that he had no opportunity to commit any of the offences because he was never alone with them at home.
The applicant denied the offences. His family members (his parents and his two sisters) were called. They all denied that there was ever any violence inflicted on the children or on him or his siblings and, notwithstanding the admissions the applicant had made to the contrary in his ERISP, denied that he had ever been left alone with the children in the entire period from 17 February 2011 to 6 or 7 December 2016. He explained that his mother would never have let “that happen” (his being alone with the children). Notwithstanding this answer, he said that she trusted him. When he was cross-examined about what he had said in his ERISP, he said that he “took [the question] in the wrong context.”
The applicant’s evidence did not support the case which his trial counsel had sought to make through cross-examination of the complainants that they had a motive to lie. He said that they treated each other like “real siblings”, that they were all “pretty close” and that his relationship with them was “good”.

Consideration of ground 7

This Court’s task in addressing ground 7 is stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In M v The Queen, at 493, the High Court said that the appellate court must ask itself:

“... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
[Footnotes omitted.]

The High Court also said that, in answering that question:

“... the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
[Footnotes omitted.]

The jury’s verdicts on counts 1-3 and 5-8 indicated that it accepted the evidence of Kate and Nettie in respect of those offences, and rejected the applicant’s evidence and that of his family members as to his alleged lack of opportunity to commit the offences. The jury had the advantage of seeing and hearing the evidence of the witnesses, including Kate, Nettie and the applicant, and was properly instructed as to the onus and standard of proof. All other appropriate directions were given to the jury. For the reasons given above, none of the alleged errors in the conduct of the trial has been made out.
It was open to the jury to regard as implausible the evidence adduced by and on behalf of the applicant that there was no occasion when he was left alone with Kate, Nettie and their brother (particularly having regard to the applicant’s concessions in the ERISP that this had happened). Further, it was open to the jury to reject the applicant’s case that Kate and Nettie had a motive to lie by reason of their thwarted wish to return to the Ambarvale home, which was, when they were evicted from it in December 2016, the only stable home they had ever known. It was also, in my view, open to the jury to reason that, if they had had such a motive, it was more likely that they would have disclosed the narrative of what the applicant had done to them, earlier than mid-2017, and that the fact that they did not disclose the narrative until that time was an indication that it took some time for them to trust ZH and their new foster parents sufficiently to make the disclosures. Further, the jury may have been impressed by Nettie’s response in cross-examination to the suggestion that she had simply fabricated the assaults when she asked, rhetorically, “[w]hy would we make something like this up?” Although the prosecution is not permitted to pose such a question to an accused person, since it has the effect of reversing the onus of proof (Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [7]-[11] (Brennan CJ, Gaudron and Gummow JJ)), it was open to the jury to regard the spontaneous response by Nettie to the suggestion as utterly credible.
For these reasons, I am not satisfied that the jury’s verdicts in respect of counts 1-3 and 5-8 were unreasonable.

Application for leave to appeal against sentence

The applicant sought leave to appeal against the aggregate sentence imposed on him by Judge Beckett on 24 July 2020 of 8 years and 6 months commencing on 5 March 2020 and expiring on 4 September 2028 with a non-parole period of 4 years and 6 months. The ratio between the non-parole period and the total term of 53% reflected her Honour’s finding of special circumstances. Her Honour noted that no applicable standard non-parole period applied as the applicant was under 18 years at the time of the offending.
The offences, indicative sentences and maximum penalties are set out in the following table.

Count

Section of Crimes Act

Maximum penalty (years’ imprisonment)

Indicative sentence

1

61M(2): indecent assault with child under 16 years

10

s 10(1)(b) (of the Crimes (Sentencing Procedure) Act 1999 (NSW)) bond for 12 months without proceeding to conviction

2

Ditto

10

18 months

3

Ditto

10

16 months

5

66A(1): sexual intercourse with child under 10 years

25

4 years

6

Ditto

25

3 years, 6 months

7

61M(2) indecent assault with child under 16 years

10

18 months

8

66C(1) sexual intercourse with child over 10 years but less than 14 years

16

3 years

Ms Kluss confirmed that the basis for the sole ground of appeal in respect of the sentence was manifest excess and she relied solely on latent, rather than patent, error. That is, she contended that the sentence was outside the range which was open to her Honour. She argued that the applicant’s youth made the sentence, which might have been appropriate for an adult offender, manifestly excessive.
The sentencing judge found facts consistently with the recitation of the Crown case as set out above with respect to ground 7. In assessing objective seriousness, her Honour noted that the offending took place over three years (when the applicant was between 14 and 17 years’ old). The age difference between the applicant and Kate was 11 years and between the applicant and Nettie was 7 years. The sexual acts perpetrated on Nettie were more “invasive” than those on Kate, which indicated that the applicant had become “emboldened” as the abuse continued. The offences were not isolated. The last offence against Kate was committed about a year before the children left the Ambarvale home. The last act concerning Nettie took place two months before the children left the Ambarvale home. The applicant took advantage of occasions when he was alone with the children to commit the offences, which made them opportunistic. Her Honour also found:

“Whilst there was a degree of sexual immaturity the offender knew what he was doing was wrong. For that reason he used a blindfold, at least initially, with the children and kept an eye out for the arrival home of other members of the family.”

Her Honour assessed the objective seriousness of the individual offences in an absolute way, and also relative to each other. As to count 1, her Honour found the level of physical contact to be “low”. Her Honour assessed that count 2 was the most serious of the offences concerning Kate, but also noted that there was no touching of her genitals and neither pain nor threats reported. Her Honour noted the degree of physical contact which was involved with count 3. As to counts 5-8, her Honour recorded the age of the applicant, the age difference, the degree of physical contact and other matters referred to above.
Her Honour considered the offending conduct to have been aggravated by the circumstance that it took place in the victims’ home. Her Honour addressed the Crown’s argument that the offending was aggravated by reason of the fact that the applicant was in a position of trust vis-à-vis the complainants. Her Honour did not accept the argument and preferred to address the question on the basis of the complainants’ vulnerability. Her Honour set out the circumstances of the complainants’ deprived upbringing which had led them to be fostered at the Ambarvale home. As her Honour found:

“Placed in the [applicant’s] family they could not have faced a bigger contrast. The [applicant’s] family were high functioning with parents who valued education and sporting achievements, with an expectation of excellence for their own three children.”

Her Honour also found:

“The impact of this stark contrast between the lives the children had lived prior to coming to the [applicant’s] family made them particularly reticent to complain.
…
The extent of their vulnerability was evident in the observation that they were jointly prepared to withstand the abuse from the offender rather than risk losing the stability of the first real home that the family had provided them.
Of course, the offender is not to be punished for the vulnerable state of the children, and the disadvantaged life they had lived up to the time they joined the family. However, whilst I decline to consider the children as a ‘class of vulnerable people’ such as to justify an aggravating feature under s 21A(2)(l) I do consider it part of the context of the offending. It was the very fact that these children were young and had no other protectors outside the family that meant that they were dependent on the offender’s family and vulnerable to the offender’s exploitation of that vulnerability. I find that the offender, despite his youth, recognised them to be such.”

Her Honour noted reports which said that the applicant lacked insight, was in denial and “felt angry at being in this position and blamed the victims for his predicament, portraying himself as the victim of false accusations”. As to the character evidence, her Honour said:

“I accept that the [applicant] is a loving brother and son, helpful to his family, gifted academically and in sports and considered by those persons as a worthy individual. However, none of the references put forward provide any acknowledgment that the offender is guilty of the offences charged, nor an acknowledgment of the seriousness of the charges.”

Her Honour found that the applicant had good prospects of rehabilitation. Her Honour noted and accepted the opinion of Mr Milic, psychologist, that denial of the offending is not necessarily associated with a risk of re-offending and that “it is likely that the [applicant’s] adolescence and psychosexual immaturity played a significant part in his offending.” Her Honour found that the applicant was unlikely to re-offend.
Her Honour noted that because of each of the charges related to a serious children’s indictable offence under s 3 of the Children (Criminal Proceedings) Act 1987 (NSW), each was required to be dealt with according to law. Her Honour, in the context of the applicant’s youth, and the prospect that he was not fully aware of the consequences of his actions, referred to the relevant authorities on sentencing youthful offenders. Her Honour found no remorse but allowed “modest mitigation” for the efficient way in which the trial was conducted. Her Honour took into account the effect of the COVID-19 pandemic on the conditions of custody and addressed the comparable cases identified. Her Honour found special circumstances based on the fact that it was the applicant’s first time in gaol.
As referred to above, no allegation of patent error is made in respect of the sentence. Ms Kluss submitted that it was too long, particularly having regard to the applicant’s youth. Whether a sentence is manifestly excessive is a conclusion and does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).
The nature, extent and duration of the offending conduct are as set out above. The offences were not isolated conduct. While the applicant was young, he knew that what he was doing was wrong and escalated the seriousness of his offending as time went on. The gravity of the offending, which was characterised by exploitation, opportunism, a sense of entitlement and its increasing severity, warranted a relatively lengthy custodial sentence, even for a young offender. The finding of special circumstances has the effect that the applicant is required to serve only just over half the total term. If parole is granted, the remaining term will be served in the community in circumstances where he can be supervised and his rehabilitation assisted by the authorities. I am not persuaded that the sentence is manifestly excessive.

Proposed orders

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

Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1, 2 and 5.

Refuse leave to appeal in respect of ground 6.

Otherwise grant leave to appeal.

Dismiss the appeal.

Since drafting these reasons, I have had the benefit of reading in draft the reasons of Basten JA. I agree with his Honour’s reasons.
CAMPBELL J: I have had the considerable advantage of reading and considering the judgment of Adamson J in draft. I agree with the orders proposed by her Honour for the reasons she expresses. I agree too with the judgment of Basten JA which I have also considered in draft.
I wish to make an additional comment in relation to Ground 4 and the replaying of the recordings of the police interviews with the vulnerable witnesses which constituted their evidence in chief under the provisions of Division 3 of Part 6 of the Criminal Procedure Act 1986 (NSW).
I would have understood the jury’s request for “video transcripts” as a request for access to the transcript provided to each of them as an aide when the videos were played. That my colleagues and the learned trial judge have taken the other view amply demonstrates that the request was ambiguous. From her Honour’s reference to AB v R [2019] NSWCCA 82 and R v NZ (AB 105), the trial judge was well aware of the care with which the jury’s request was to be treated to maintain fairness and balance in the way the case of each party was to be left to the jury. Her directions at AB 107 – 109 reflect this.
Having refreshed her memory overnight, as she said, her Honour would have reminded herself of the reference in AB v R to the judgment of Hayne J in Gatley v The Queen (2007) 232 CLR 208; [2007] HCA 55 (with whom the Chief Justice the other justices agreed) concerned with Queensland legislation cognate with the relevant provisions of the Criminal Procedure Act. His Honour said (at [96]):

“The purpose of reading or replaying for a jury considering its verdict some part of the evidence that has been given at the trial is only to remind the jury of what was said. The jury is required to consider the whole of the evidence. Of course the jury as a whole, or individual jurors, may attach determinative significance to only some of the evidence that has been given. And if that is the case, the jury, or those jurors, will focus upon that evidence in their deliberations. While a jury’s request to be reminded of evidence that has been given in the trial should very seldom be refused, the overriding consideration is fairness of the trial. If a jury asks to be reminded of the evidence of an affected child that was pre-recorded under [the cognate legislation] and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused. It may be desirable, in some cases necessary, to repeat the instructions required by [s 306S, s 306X Criminal Procedure Act]. Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence.”

(See also Jarret v R referred to by Basten JA at [7] above.)

Her Honour’s approach accorded with that of Hayne J and cannot be criticised.
Having said that, given that the recording is evidence and the practice in New South Wales is to provide a transcript of evidence at trial if the jury so “request” (s 55C Jury Act 1977 (NSW); cf s 306Z Criminal Procedure Act), it may not be necessary in every case to play the recorded evidence. Had the jury merely requested the transcript and not the video, it would have been permissible for it to be provided with the usual direction or warning as to the use to be made of the trial transcript.
The usual direction given when a transcript of evidence is requested by the jury emphasises the care that should be taken when referring to the transcript of the evidence of a given witness during their deliberations, again in the interests of preserving fairness and balance in the conduct of the trial. I record here that after the recordings were replayed her Honour provided inter alia the transcript of the recording and the cross examination of each of the vulnerable witnesses. She also provided copies of the transcript of evidence of other witnesses at the trial. Before the recording was replayed, her Honour directed the jury in the appropriate terms (AB 107-108). The same direction would have been appropriate had the jury been given the transcript only without the video being replayed:

“However, care is to be taken, because it does fit into that class of evidence that is recorded in that way, you are really not to give it disproportionate weight. It is not to be given any disproportionate weight… You have to see it in the context of all of the evidence in the trial. Of course, [the witness’s] evidence that was recorded was followed by the questions that she was asked in cross-examination by the accused and re-examination again by the Crown.
… You must take into consideration that there was other evidence that was given in relation to [the witness’s] complaint, of course, directly in relation to the evidence of [complaint witnesses]. Then you must also consider in relation to her evidence the denials made by the accused in his record of interview and, of course, in the evidence that you heard he gave before the Court.”

So far as the question of whether the verdicts of guilty were open to the jury is concerned, my review of the evidence accords with that of Adamson J. It was for the jury to resolve the conflicts in the evidence bearing in mind the onus and standard of proof. There is nothing in the record below that suggests in accepting the evidence of the complainants and rejecting the evidence of the applicant, the jury in any way misapplied the directions of law given by the trial judge or misused their forensic advantage.

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Endnotes

Decision last updated: 03 September 2021

Medium Neutral Citation:	Long (a pseudonym) v R [2021] NSWCCA 212
Hearing dates:	4 August 2021
Decision date:	03 September 2021
Before:	Basten JA at [1]; Adamson J at [30]; Campbell J at [145]
Decision:	(1) Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1, 2 and 5. (2) Refuse leave to appeal in respect of ground 6. (3) Otherwise grant leave to appeal. (4) Dismiss the appeal.
Catchwords:	CRIME — appeals — appeal against convictions for child sex offences — evidence in chief given via a pre-recorded interview and evidence given at trial via audio visual link require warnings pursuant to ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) — statute does not specify when the warnings ought be given — within discretion to give warnings in opening and summing up — direction concerning the use of complaint evidence as supportive of the victim’s claims — complaint evidence cannot be independent of the complainant corroborative evidence must be independent — reference to complaint evidence as “independent” was not capable of having any real bearing on the jury’s understanding as to its use — trial judge did not err in replaying recorded interviews when the jury requested “video transcripts” — applicant’s trial counsel did not object to replaying the interviews once — appropriateness of the direction as to the meaning of “appropriate concessions” — alleged inconsistent verdicts — evidence in respect of count 4 was qualitatively different in that it was limited — the evidence might have led the jury to believe that the complainant had misunderstood of what occurred and that count 4 had not been proved beyond reasonable doubt — alleged unreasonable verdict — on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the other counts CRIME — appeals — appeal against sentence —sentence is not manifestly excessive — youth and immaturity of the applicant — applicant knew his conduct was wrong — offending characterised by exploitation, opportunism, a sense of entitlement, and increasing severity
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 15A Crimes Act 1900 (NSW), ss 61HA, 61M, 66A, 66C, 578A Criminal Appeal Act 1912 (NSW), s 6 Criminal Procedure Act 1986 (NSW), ss 306M, 306X, 306Z, 306ZI Evidence Act 1995 (NSW), s 164 Jury Act 1977 (NSW), s 55C Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited:	AB v R [2019] NSWCCA 82 DBG v R [2002] NSWCCA 328; 133 A Crim R 227 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Gatley v The Queen (2007) 232 CLR 208; [2007] HCA 55 Jarrett v R [2014] NSWCCA 140 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Nguyen v R [2017] NSWCCA 145 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v ACK [2000] NSWCCA 180 R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 29 R v Murray (1987) 11 NSWLR 12 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v Osborne [1905] 1 KB 551 SB v R [2020] NSWCCA 207 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Texts Cited:	Criminal Trial Courts Bench Book (NSW)
Category:	Principal judgment
Parties:	Long (a pseudonym) (Applicant) Regina (Respondent)
Representation:	Counsel: S Kluss (Applicant) G Newton (Respondent) Solicitors: Swifte Law (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2017/254512
Publication restriction:	Publication of names and any information or material that may lead to the identification of the applicant or the victims is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 24 July 2020 Before: Beckett DCJ File Number(s): 2017/254512

Count	Section of *Crimes Act*	Maximum penalty (years’ imprisonment)	Indicative sentence
1	61M(2): indecent assault with child under 16 years	10	s 10(1)(b) (of the Crimes (Sentencing Procedure) Act 1999 (NSW)) bond for 12 months without proceeding to conviction
2	Ditto	10	18 months
3	Ditto	10	16 months
5	66A(1): sexual intercourse with child under 10 years	25	4 years
6	Ditto	25	3 years, 6 months
7	61M(2) indecent assault with child under 16 years	10	18 months
8	66C(1) sexual intercourse with child over 10 years but less than 14 years	16	3 years