LP v Regina

[2013] NSWCCA 330

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	LP v Regina [2013] NSWCCA 330
Hearing dates:	9 September 2013
Decision date:	23 December 2013
Before:	Beazley P at [1] McCallum J at [2] Schmidt J at [101]
Decision:	Appeal dismissed
Catchwords:	CRIME - appeal against conviction - where appellant acquitted during trial on four counts of sexual assault and then convicted on remaining five counts - whether verdicts unreasonable - whether evidence of an alleged admission to the complainant's husband should have been excluded under s 137 of the Evidence Act - whether evidence of statements by mother of complainant excluded by consent ought to have been admitted
Legislation Cited:	Criminal Appeal Act 1912
Cases Cited:	M v R [1994] HCA 63; (1994) 181 CLR 487 MFI v R [2002] HCA 53; (2002) 213 CLR 606 Prasad v R (1979) 2 A Crim R 45 R v SKA [2009] NSWCCA 186 R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
Category:	Principal judgment
Parties:	LP (appellant) Regina
Representation:	Counsel: C Loukas SC (appellant) V Lydiard (Crown) Solicitors: Legal Aid NSW (appellant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2009/5106
Publication restriction:	None
Decision under appeal	Date of Decision: 2012-09-21 00:00:00 Before: Norrish DCJ File Number(s): 2009/5106

Judgment

1. BEAZLEY P: I agree with the judgment of McCallum J and the orders proposed by her Honour. With respect to ground 1, having made an independent assessment of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences of which he was found guilty.

1. McCALLUM J: LP was arraigned in the District Court on an indictment alleging nine sexual offences against his step-daughter. He pleaded not guilty to each count. He was acquitted during the trial on four counts (two by direction and two following a Prasad direction). At the conclusion of the trial he was found guilty on the remaining five counts. He now appeals against the convictions.

1. The charges on the indictment were as follows:

• Count 1 was a charge of assault with an act of indecency contrary to s 61E(1) of the Crimes Act 1900 allegedly committed between 1 January 1982 and 31 May 1982;

• Count 2 was a second charge under the same section allegedly committed between 1 January 1982 and 31 December 1982;

• Count 3 was a charge of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act allegedly committed between 1 January 1982 and 31 December 1982;

• Count 4 was a charge of unlawful carnal knowledge contrary to s 73 of the Crimes Act allegedly committed between 1 January 1984 and 31 December 1984;

• Count 5 was a second charge of unlawful carnal knowledge allegedly committed between 1 July 1984 and 2 April 1985;

• Count 6 was a charge of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act allegedly committed between 3 April 1985 and 2 April 1986;

• Count 7 was a further charge of sexual intercourse without consent allegedly committed between 1 October 1985 and 31 December 1986;

• Count 8 was a charge of sexual intercourse without consent contrary to s 61I of the Crimes Act allegedly committed between 1 February 1995 and 30 March 1995;

• Count 9 was a charge of assault with an act of indecency contrary to s 61L of the Crimes Act allegedly committed between 1 January 2003 and 30 December 2003.

1. It is necessary to explain the four acquittals. At the conclusion of the Crown case, the Crown drew the learned trial judge's attention to a problem with the evidence in support of counts 2 and 3, each allegedly committed during 1982. The complainant had given evidence that those two offences were committed after the family moved from their first home address to their second home address. However, other evidence established that the family did not move to the second address until 1983, just shortly before the appellant and the complainant's mother were married. The Crown frankly acknowledged that, based on his opening address and the evidence as it stood at the conclusion of the Crown case, there was no evidence falling within the particulars given in the indictment in support of counts 2 and 3 (since the dates were wrong). For reasons that were not fully articulated, the Crown further stated that he did not think it was appropriate to seek leave to amend the indictment at that point of the trial. The judge accordingly directed the jury to return verdicts of not guilty on those two counts.

1. On the application of the appellant, his Honour also gave a "Prasad direction": Prasad v R (1979) 2 A Crim R 45. In accordance with the principles stated in that case, his Honour directed the jury that, if they unanimously held a reasonable doubt about the accused's guilt of any of the remaining counts, they could return a verdict of not guilty before the end of the trial. The Prasad direction was based principally on the fact that the evidence of the complainant was contradicted by her mother in a number of important respects, but his Honour did also refer to other aspects of the Crown case. After what is described in the transcript as a "short adjournment", the jury sent a note indicating that they wished to acquit on counts 8 and 9 but to continue the case in respect of the remaining counts (counts 1, 4, 5, 6 and 7). The appellant was ultimately found guilty on each of the remaining counts.

1. The appellant had been on bail throughout the trial. The verdicts of guilty were returned on 28 May 2012. It appears from the particulars of trial provided by the Crown that the appellant remained on bail between that date and the date on which he was sentenced, 21 September 2012. The trial judge imposed separate sentences giving an aggregate sentence of imprisonment for a period of 8 years with a non-parole period of 4 years. There is no appeal against the sentences imposed.

1. After passing sentence, the trial judge acceded to an application for bail pending an appeal. For reasons that are not explained in the material before this Court, the notice of appeal was not filed until 7 March 2013. The appeal was heard on 9 September 2013. The appellant remains on bail.

1. Three grounds of appeal were pressed at the hearing of the appeal. A fourth, alleging error in the admission of "contextual" or relationship, evidence was abandoned at the outset of the appeal. The grounds pressed by the appellant were as follows:

(1) The verdicts are unreasonable, or cannot be supported, having regard to the evidence and particularly so, having regard to the acquittals on the remaining four counts on the indictment.

(2) Additionally, or alternatively, for reasons largely connected with the conduct of the trial on the part of the appellant's counsel, there was otherwise a miscarriage of justice.

(3) Notwithstanding the absence of objection or application by defence counsel, the trial judge erred by failing to exclude, pursuant to s 137 of the Evidence Act 1995, the evidence of the complainant's partner which was alleged to contain "admissions" by the appellant.

Ground 1 - whether the verdicts are unreasonable

1. Section 6(1) of the Criminal Appeal Act 1912 provides (inter alia) that, on an appeal against conviction, the Court shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.

1. In determining an appeal on that ground, the task for this Court is to make an independent assessment of the evidence both as to its sufficiency and its quality. The test is whether the Court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v R [1994] HCA 63; (1994) 181 CLR 487 at 493; MFI v R [2002] HCA 53; (2002) 213 CLR 606. However, the test is not one directed at assessing the legal question whether the evidence is capable of supporting the conviction. The issue for this Court is a question of fact. The requirement is for this Court to assess the evidence independently and to consider whether it entertains a reasonable doubt as to the accused's guilt.

1. The appellant submitted that this is not a case where the fact that this Court has not seen or heard the witnesses need have any bearing on its conclusion as to his guilt, because the sufficiency and particularly the quality of the evidence is such as to objectively undermine a conclusion beyond reasonable doubt that the appellant was guilty of those offences. He relied on the well-known passage from M at 494 per Mason CJ, Deane, Dawson and Toohey JJ:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

That passage continues:

In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

1. The principles stated in M do not direct the appellate court to disregard or discount the advantage enjoyed by the jury of seeing and hearing the witnesses. On the contrary, full regard is to be paid to that consideration, together with the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or otherwise. This Court should not usurp that role. In accordance with those principles, in my view the appellant's contention as to the significance of the fact that this Court has not seen or heard the witnesses must in this case be rejected.

1. It was submitted for the appellant that a number of features of the conduct of the trial "rationally and objectively accumulate and bear adversely upon the truthfulness and reliability of the complainant in such a way as to render the verdicts unreasonable or unsupportable and/or inconsistent with the acquittals on the other four counts". The allegedly unsatisfactory features of the evidence relied upon by the appellant include the delay between the alleged assaults and the first complaint to authorities; contradictions and discrepancies between the complainant's evidence and the evidence of her mother; the alleged vagueness and unreliability of the complainant's evidence generally and the contention that the jury "did not accept the complainant in relation to counts 8 and 9" (the two counts on which they acquitted the appellant after being given the Prasad direction).

1. I have read all of the evidence and undertaken my own assessment of it. I am satisfied that it was well open to the jury to conclude beyond reasonable doubt that the appellant was guilty on the five counts on which he was found guilty by the jury. In my assessment, the matters relied upon by the appellant in support of this ground raise issues the resolution of which is critically dependent upon the manner in which the evidence was given. I do not entertain any reasonable doubt as to the appellant's guilt on the counts on which he was convicted.

1. My reasons for reaching those conclusions are as follows.

Background facts

1. The complainant was born in April 1971. She was aged 9 years when her mother met the appellant on 31 December 1980. She was 34 when she first decided to go to police in relation to the events the subject of the charges against the appellant and 41 at the time of the trial.

1. The complainant's mother and the appellant lived together (with the complainant and her younger brother) at the first address until early 1983. In March 1983, the family moved to the second address, where the appellant and his wife remained for 19 years until they moved to a third home address.

1. The appellant and the complainant's mother were married on 4 June 1983. They have no children together.

1. As recorded in the indictment, the charges cover a period of many years commencing in 1982. The complainant turned 11 that year. Shortly before turning 16, whilst she was in year 9, the complainant left home and moved with a friend to Melbourne. After about six months she returned to live with her mother and the appellant at the second address. She gave evidence that she missed her mother and decided after about five and a half months to call her because they had not spoken since she left. The complainant said that when she rang her mother, her mother convinced her to come home (T45.1). After returning home, she began working and earning an income. She continued to live at home with her mother and the appellant until she was 21, when she moved out to live with a boyfriend at a caravan park. They had two children together, a boy and then a girl. While the complainant was pregnant with the second child, she and her partner and son moved to Nowra where they lived for about eight or nine months. After the birth of the second child, the complainant and her partner were having problems and moved back to live with the complainant's mother and the appellant, where they stayed for six to eight weeks before moving out locally.

1. In about June 2002, the complainant moved into a rented house at Belfrayden. Shortly afterwards, her mother and the appellant bought and moved into the house next door. In September 2003 the complainant had an argument with the appellant over the use of cheques on his business account. She moved out of the house at Belfrayden immediately after that argument and has had little contact with her mother since then. She met her current husband in October 2004. In February 2006, she decided to go to the police in relation to the allegations against the appellant. She first spoke to police a month or two before September 2006. She started making her statement on 7 September 2006. The process of taking the statement continued over a number of weeks. It was ultimately signed on 29 November 2006. The appellant was charged on 20 October 2008.

Evidence in support of the offences charged

1. Count 1 alleged an assault with an act of indecency committed between 1 January 1982 and 31 May 1982 (when the complainant was either 10 or 11). That count related to what the complainant described as her "first memory" of sexual abuse by the appellant. She said the incident happened at the family's first home address. She gave evidence that the appellant was sitting in the lounge room watching television while her mother was in the kitchen cooking dinner. She did not know where her brother was at that time. Her evidence in chief was as follows (T10.16-45):

Q. Tell us what's happened next?

A. The door that led to the rest of the house was closed. The front door was closed. He's called me over and asked me to sit on his lap. I've sat on his lap.

Q. Right. Now, when you've said you've sat on his lap, are you able to indicate which way you were facing?

A. I had my - when I sat down, he's turn me so that back is facing him (sic).

Q. Were you sitting on one or both of his legs?

A. I went to sit on one but he put me on both of his legs.

Q. You've told us you're sitting on his lap. Tell us what's happened next?

A. He's put his hands on my waist and started moving himself backwards and forwards and then started moving me backwards and forwards as well.

Q. Now, backwards and forwards, are you talking about in the same direction as his legs were facing or are you talking about a different direction?

A. In the same way his legs were facing.

Q. He's moving you backwards and forwards.

A. Yes.

Q. Could you feel anything?

A. Yes, I could feel his penis. It was hard against my bottom and the lower part of my back.

Q. Continue.

A. After a couple of minutes the lower part of my back was wet and he let go of me. I've got up and gone into my room.

1. She said that conduct of the kind described in that evidence happened once or twice a week while they were living at that address.

1. In my assessment, noting that I do not have the advantage of having seen the manner in which that evidence was given, the terms in which the evidence was given provide a compelling narrative. There is nothing inherently implausible in the complainant's account. On the contrary, it has the character of description rather than concoction.

1. As already noted, counts 2 and 3 related to events which the complainant said occurred at the second address. She said (in cross-examination) that what struck her about the event described as count 2 which allowed her to remember it was that it was the first time the appellant touched her breasts and put his hand on her thigh. She described sitting on his lap in a manner similar to the description given in respect of count 1. She said that the appellant started moving his groin up and down and then placed one hand on her leg and was rubbing the inside of her thigh and that he would then move his hand from there and try to rub her breast. She said that he moved his hand from her thigh, up her belly, up her stomach to her breast. She said that she had started puberty when she was about eight and a half or nine and had, at the time of the event she was describing, "rather large breasts for that age" (T14-15). She said that conduct of that type happened at the second address "once or twice a week or whenever [the appellant] was alone with me" (T16.20).

1. The next incident she remembered, which was relied upon in support of count 3, was also described as an event that happened at the second address. The complainant said that she was alone in the lounge room with the appellant and he got her to sit on his lap. Her evidence in chief as to that incident was as follows (T16.37 to T17.7):

Q. All right, please continue.

A. He unzipped my dress at the back.

Q. Do you remember what sort of a dress you were wearing?

A. It was my school uniform. It was a brown check school uniform.

Q. You've said that he's unzipped your dress.

A. Yes.

Q. Do you know what time of day this was?

A. It was in the afternoon.

Q. Do you know whether or not it was dark or light outside?

A. Not at the moment.

Q. You were talking about him unzipping your school dress.

A. Yes.

Q. Tell us what's happened.

A. He unzipped my school dress. He's got me sitting on his lap with my back facing him on both - both legs. He's put his hand under - under my dress and underneath my bra and was playing with my breast and my nipple.

1. She said that, after about five or ten minutes of playing with her breast and touching her nipple, the appellant put his hand between her legs and was rubbing the outside of her vagina and that he then put one of his fingers inside her vagina. She then gave evidence as follows (T18.6 to 31):

Q. Can you please tell us exactly what he did?

A. He put one of his fingers inside my vagina and was moving it in and out.

Q. Are you able to tell us how far the finger went in?

A. It went in past the second knuckle. I could feel his - the rest of his hand on my vagina when he pushed his finger in.

Q. So was it the case that his palm was facing down towards your vagina or facing up? You've just told us you could feel the rest of his hand.

A. Yes.

Q. Which part of his hand could you feel against your vagina? Was it his palm or was it the back of his hand?

A. It was his palm.

Q. Could you feel anything else?

A. I could feel his penis behind me.

Q. Continue.

A. The next thing I remember is him - the lower part of my back and that was wet and I got up crying and my dress was hanging off my shoulder.

Q. All right. So you say you could feel the back part of your - was it your dress that was wet or was it your back?

A. It was my - it was my dress that was wet but also my - the back of my undies because my dress was up a little bit.

1. As already noted, the learned trial judge directed verdicts of not guilty on counts 2 and 3 on the basis that, whereas the indictment particularised those events as having occurred at some point in 1982, they could only have occurred (as described) in 1983, since that is when the family moved to the second address. The particulars in the indictment alleging that those offences occurred during 1982 had been given by the Crown on the strength of the complainant's statement to police, in which she said that she was in year 5 when those offences were committed. From separate documents, the Crown had information that the complainant was in year 5 in 1982 (T229 and T232).

1. The appellant relies upon the circumstances which gave rise to the directed verdicts as an aspect of the vagueness and unreliability of the complainant's evidence pointing to the unreasonableness of the guilty verdicts. The learned trial judge was evidently of the same view and said so in the strongest terms (at T231.34 - 49). The appellant relied upon those remarks to support this ground.

1. I would respectfully not share that assessment of the significance of those circumstances in determining the measure of reliability of the plaintiff's account. The Crown made clear that he framed the indictment in the terms he did on the strength of the fact that the complainant had said, in her statement, that the relevant events happened when she was in year 5. In the circumstances of the evidence in this case, I would respectfully not share the view that uncertainty or doubt about such a particular is a fundamental failing in the complainant's recollection as to the acts charged. There is no suggestion that she was ever mistaken as to the detail of the events themselves or as to the address at which they occurred (see T244.39).

1. It is clear enough from the exchanges between the Crown and the trial judge that the Crown took "year 5" as the point of fixture for the dates in the indictment, whereas the complainant's evidence placed those events in the following year. To my mind, a more telling measure of the reliability of the evidence is the content of the narrative of the acts themselves. As with count 1, in my assessment the complainant's narration of the events relied upon to support counts 2 and 3 contains no inherent implausibility. It invokes the language and quality of recollection, not fiction or recent invention. She provided a cogent description of two plausible events.

1. Count 4 is an offence of carnal knowledge allegedly committed between 1 January 1984 and 31 December 1984. In support of that count, the complainant gave evidence of an event she said happened during her first year of high school. She was doing homework in her bedroom. She said that she heard her mother go to the car to go somewhere. She went out to see if she could go with her mother because she did not like to be left at home with the appellant by herself. The appellant told her that she was not allowed to go with her mother. Her evidence in chief was as follows (T20.19 to 43):

Q: Tell us what's happened?

A: He's come into my bedroom. He's closed my bedroom door. I've said I didn't want to do anything and he's made me lay down on the bed. He took my underpants - he pulled my underpants down. Only pulled them off one leg.

Q: Were you sitting or lying on the bed?

A: When he came into the room I was sitting on the bed and then I got up and then he's made me lay down on the bed.

Q: You've referred to the underpants.

A: Yes.

Q: Were you wearing any other clothing at that time?

A: Yes, I was - I was still in my school dress.

Q: When he's removed your underpants, did you still have the school dress on?

A: Yes, I did.

Q: Now, he's pulled down you underpants. Were they taken off?

A: No, he pulled them down and took one foot out of the underpants. Left the undies around the ankle of the other foot.

Q: Tell us what's happened next?

A: He's - he's standing there and he's taken his pants down a little bit and --

1. After an exchange between the Crown and the trial judge, the evidence continued (T21.12 to 22):

Q: Please continue.

A: He's laid down on top of me. He's put one hand beside my head. The other hand he's moved down between the stomach to his penis. He's then put his penis inside my vagina. And he was moving up and down. I don't know how long; maybe five minutes and he made a funny noise and then I was - between my legs was all wet. He's got up, pulled his pants up, told me to clean myself up before your mother gets home, before - he's gone to walk out the door and he's said to me as he's walking out the door, "Clean yourself up before your mother gets home". And I just stayed there for a little bit, crying, and then I've got up and - and gone into the bathroom. And I had a shower and - to clean myself.

1. The complainant said that incidents of sexual intercourse happened in her bedroom a couple of times a week at that period of time. She said if she and the appellant were alone then "he took the opportunity" (T27.44).

1. The complainant said that, during that year (her first year of high school), she told her mother that the appellant had been "doing things" (counsel's words) to her. She said her mother said something like "leave it with me and I'll get to the bottom of it". The appellant was on a fishing trip at that time. When he returned, the complainant could hear him talking to her mother. She heard him say that she (the complainant) was lying and that she was only trying to split them up (T28). The complainant said her mother then came to speak to her and said that she'd spoken to the appellant and the complainant said "I heard". The complainant said to her mother, "don't bother". She gave evidence that she said that because she knew her mother wasn't going to do anything (T29).

1. Count 5 alleged a second offence of unlawful carnal knowledge between 1 July 1984 and 2 April 1985. The complainant said that the appellant had a truck with a tank which he used to clean septic tanks and grease traps. To clean the tank of the truck, he would put water in the tank and then drive the truck around "to slosh the stuff - the sediment on the bottom about". She described an incident when they were doing that together and they drove to a reserve. Her evidence in chief was as follows (at T31.32 to T32.14).

Q: Just please continue.

A: It was dark, so it was late in the evening. We drove up near the - there's a tower up there. We drove up near there and [the appellant] said that this is no good because there was well used track and he didn't want people to see what he was doing, so we drove around a little bit - bit more and found a more isolated place to empty the tank. When we stopped I - I needed to go to the toilet so I got out of the truck and - and walked away a little ways to go to the toilet. I've come back to the truck. He's put his arm around me and he's told me that he loves me --

Q: All right, well as best you can, can you use the words that he was using?

A: Yes. He said, "I love you", and he said that "If you were older I would have married you instead of your mother."

Q: Keep going.

A: We've - he's put his arms around - he put his arms around me and he's gone to the - moved to the back of me. He's undone my jeans and taken them down, taken my shoe off and taken one leg out of my pants and my jeans. He's leaned me over and stood directly behind me and leaning on the tyre of the truck as well, with one hand and with the other hand he's put his penis in my vagina and it hurt a lot. And whilst he was moving his penis in - in and out of my vagina he placed both hands on my hips, around my waist and was moving me backwards and forwards. He made that - after a little while he made that little noise that he made and I - I knew that once he'd made that noise it was - it was over. He stepped back away from me once he -once he'd ejaculated and then pulled his pants up. He's gone to the door of the truck, grabbed out a rag, threw it over to me and told me to clean myself up and when I was wiping my - my vagina and - there was blood there. So I knew why it had hurt so much. After I'd cleaned myself up and he'd emptied the tank we've gone home. I was in the bathroom washing my underwear out and [the mother] asked me what I was doing and I lied to her and I told her I'd got my period 'cause [the appellant] was standing just outside the door.

1. Count 6 alleged an offence of sexual intercourse with a person under the age of 16 without consent. The complainant's evidence in chief of that incident was as follows (at T41.47 to T43.1):

Q: Now can you tell us what your next memory of something happening with the accused was?

A: It was in the evening. We were in the truck; we went from [the second address] out to a reserve or a dam on Church Plain Road which is off the Sturt Highway. We backed up to the dam, put the hose into the dam and pumped water onto the truck. I'm not sure how much water was put on the truck. After there was enough water in the - in the - in the tank we drove around a little bit and [the appellant] hit the brakes and I jerked forward, not expecting the brakes to be hit and he said this was to swish the selment (as said) on the bottom of the tank so that it would come away. He's - we've stopped the truck and let the water out and the water wasn't running clean so we had to go and put more water in the truck and do the same again and then as we were about to leave the - where the dam was he's driven across the road into the reserve across the road in behind the trees and that there where you can't be seen by the people from the highway. We've pulled up there.

He's got out of the truck and gone to the back of the truck. He's called me and I pretended not to hear. He's called me again so I've got out of the truck and gone round the back of the - around to the back of the truck. He's when I got to the back of the truck he put his arm - hands around my waist and he's put his hand on my vagina on the outside of my jeans and started rubbing it and I've said to him, "No, not now, please," and he's just , "Yes, now." He's undone my jeans and pulled them - pulled my jeans and my undies down. He had to take my shoe off to get the - my leg out of my jeans and my underpants but I've only taken the one leg out. He's bent me over and kicked my legs apart. He pulled his pants down and he's put his penis in my vagina and moving it in and out. He kept trying to touch my breasts but not trying to - trying to cover them and hold his - push his hand away from them.

Q: While he was moving his penis in and out, did you feel anything?

A: I could feel when - when he was pushing in. I could feel his groin area, the lower part of him, up against the back against my bottom. It - it - and he, he's pushing in, I was getting pains in the lower part of my belly. It was hurting. After a few minutes, five minutes or so, he sort of made a funny little noise and I knew that - when he made that noise that it was almost over. He stayed there - he stood there for maybe a minute with his penis still in my vagina and - and then when he's finished, he's pulled his pants up and walked to the front of the truck and grabbed a bag out, come to the back of the truck. I'm putting my jeans and that back on. He threw the rag at me and told me to clean myself up and - and because I was crying he - which made him angry, me crying --

Q: Sorry could you repeat that again?

A: It made him angry when I cried and I was crying because it hurt and I - I cried just about the whole way home. I think I did cry all the way home and I had to - when we got back to the house I had to get out and open the gates for the truck to go into the yard and as I got out of the truck, he's told me to go and wash my face under the tap out the front so [the mother] wouldn't know that I was crying. So I've opened the gates and I've gone to the front - into the front yard and used the tap to wash my face and [the mother]'s come out and she knew I'd - she could see I'd been crying and asked what was wrong and [the appellant['s just said to her, "Oh she's hurt herself but she's all right now." I've gone in - I've gone inside and gone into the bathroom and had a shower and quite often done the same thing. I couldn't get myself clean so I'd get the scrubbing brush and scrub myself until my arms and my legs and that bled.

1. Count 7 alleged a further offence of sexual intercourse with a person under the age of 16 without consent. The complainant's evidence of that incident was as follows (at T43.27 to T44.9):

Q: All right, can you tell us about the next thing that you can recall?

A: Yes. It was in the afternoon. We were going down to a friend of [the appellant]'s. He had a property down near the Ashmont Golf Club. And his property, part of it you could get access to the river. Now where we would go there's a big tree there and he had a endless chain attached to the tree so that you could take the tank on and off the truck.

HIS HONOUR

Q: What sort of chain did you say?

A: An endless chain. This was probably about three to four, maybe 500 metres from his house. He had a two storey house. And it was in the - down the sort of back of his house this - this big tree that was - that we had the access to the - the river. We've reversed up to the fence line there to get everything ready to clean the tank out. And we've pulled up there, reversed in. I've got out and started getting the pump and everything organised, because you had to pump the water up from the river into the truck to clean it out. So I was getting that organised and he's come over to me and grabbed me around the waist. I said "No, I don't want to do this". I don't remember what he said to me. He was saying something but I don't remember. And he undone my jeans and he pulled my -my jeans and my underpants down. I've had to take my shoe off. Taken one leg out of the pants and left the other leg in my pants and my shoe. And I was leaning between the - the pump and I was actually leaning on the tree. Bent me over to the - so to lean on the tree. Then he's taken his pants down a little and he's put his penis in my vagina and was moving it in and out. He made - after a few minutes he made the little noise and I knew that he was almost finished and it was almost done. When he'd finished he stepped back and pulled his pants up and went and got a rag out of the truck and told me to clean myself up, wipe myself. I'd done that and I tossed the rag away and he told me to hurry up so that we could get the job done quicker and once I'd got myself dressed and cleaned up, we proceeded to clean the tank out.

1. The cross-examination of the complainant as to counts 4 to 7 pressed her as to the matters now relied upon as demonstrating the unreliability of her evidence. The effectiveness of the points raised is, in my view, very much an evaluation which the jury was better placed to make than is this Court. As already noted, the complainant said that, while she was in year 7, she told her mother about what the appellant was doing to her. It was put to her in cross-examination that she never said any such thing to her mother, because nothing had in fact happened. She responded that it did happen and that she had told her mother so, on a number of occasions (T104).

1. Later, she was pressed as to the improbability of her mother doing nothing about the abuse, and indeed allowing the complainant out in the truck alone at night with the appellant, if she had in fact told her mother of the abuse (T108 to 109). It was undoubtedly a stark aspect of the Crown case that the complainant told her mother that the appellant was sexually abusing her; that her mother did nothing about it and that the abuse continued for many years.

1. In assessing that evidence, the jury had a conflicting version of events from the mother. It was, by any measure, an unusual account. The mother did not give evidence at the trial. A previous trial was apparently aborted or adjourned due to her being unwell. The trial judge was informed that she remained unwell. By consent, an edited version of an audiovisual recording of an interview with police was played to the jury (MFI 6, T198). A transcript of the interview became exhibit D.

1. The DVD was not before this Court, reflecting the approach approved in R v SKA [2009] NSWCCA 186 at [106] to [110] (that decision was overturned in the High Court but not on this point). A consideration of the transcript of the DVD (exhibit D) creates a poor impression of the reliability of the mother's version of events.

1. Two important aspects of the mother's evidence were that she denied that the complainant had ever told her about being sexually abused by the appellant and that she said she had once walked in on them having sexual intercourse which, from her observation, she took to be consensual. The appellant did not give evidence but the case put on his behalf in cross-examination of the complainant was consistent with the mother's account. In particular, it was specifically put to the complainant (at T151 to 152) that, on an occasion after she was 18 years of age, she and the appellant started having sex in the lounge room after the mother had gone to bed and that the mother came out and "caught" them. The complainant said that did not happen. She was asked "Sorry? You don't recall?" to which she said "I don't recall that ever happening." The judge then sought to confirm that she was not saying it did not happen, she just did not remember it happening (T152.44). She responded that she did not recall that ever happening.

1. The appellant submitted that the complainant's evidence that she did not recall any such event was "simply incredible". It was submitted that, consistently with her denial that there was ever consensual sex, one would expect her to have denied that event rather than to say she did not recall it.

1. The distinction between a denial and an absence of recollection is one which different witnesses deal with in different ways. Whether those answers would have been understood as a concession to the possibility of consensual sex with her stepfather or as a demonstration of intellectual honesty (or lack of appreciation of the distinction being put to her by his Honour) is hard to judge.

1. It is also relevant to consider the evidence of the complainant's current husband. He gave evidence that, in February 2006, he called the appellant. He said that they had a conversation which ultimately became heated. At one point, he called the appellant "a filthy fucking paedophile". The appellant responded "that she had asked for it" and "that it had happened over 300 times". The complainant's husband gave evidence that the conversation was fairly heated and happened fairly quickly. The husband said:

He said it had happened 300 times and then I replied, "what, a nine year old girl's asked for it?" and he said to me, "she wasn't nine". He then yelled out to [the mother] and asked when they were married and he come back and said she was 13.

1. The jury was thus confronted with evidence, no matter whose version they accepted, that the complainant and the appellant had sexual intercourse at some point. The factual contest lay not in whether that occurred but when it started and whether, when it started, it was consensual.

1. In the cross-examination of the complainant on that issue, there was no specificity as to how the allegedly consensual adult sexual relationship began. No meat was put on the bare bones of a denial that any sexual activity occurred when the complainant was too young to consent, coupled with a positive case put in cross-examination that once she was old enough to consent, she did. It was in that context that it fell to the jury to assess the extraordinary statement made by the mother to police that, when the complainant was about 19, the mother walked into the lounge room and found the complainant and the appellant having sex. As to that incident, the mother said (at Q151 of exhibit D):

And I can, well, it certainly wasn't a rape, because she didn't look like anyone that was being raped, she was, yeah, I just couldn't believe my eyes. And I was guaranteed that it would never happen again, and I was also told that it didn't happen again.

1. Later in the interview, the police pressed the mother on that incident (at Q302 to 309):

Q: This incident where you caught [the appellant] and [the complainant] having sex on the lounge, you said, well, what was [the complainant's], when you spoke to her afterwards what, what did she say about it?

A: She was just very embarrassed.

Q: Did you ask [the appellant] how that happened?

A: [no audible reply]

Q: Because, I don't know, correct me if I'm wrong, but that isn't quite the normal thing, is it?

A: No. No. I don't, I don't, I've never asked.

Q: You never asked?

A: No.

Q: Never asked [the appellant]?

A: No, never asked [the complainant] either.

Q: Why's, why's that?

A: Why, what caused this to happen.

Q: Yeah.

A: Maybe because I just, maybe I didn't want to know to be honest with you, love, maybe I just didn't want to know.

Q: Yeah.

A: Once I got their assurity that it would never happen again I thought, well, I'll leave it there, I won't go no further. And I told them both if it ever, if it ever happened again they'd be out on their arse. I would, I would doze until the kids come home. [The complainant] used to go to Cocos and all that, you know, she wouldn't get home till 3 o'clock in the morning.

1. The mother later expanded on those answers (at Q323 to 324):

Q: But [the appellant] offered no explanation as to how that came about?

A: Well, he started to and I just put my hand up and said "don't want to, shut up, don't want to know".

Q: What, what did he say, or what did he start to say?

A: He apologised. And then I realised what he was apologising for because I was doing other things and my mind wasn't on that.

1. One thing that emerges very clearly from the statement of the mother is that this was a family in which the relationships between mother, stepfather and daughter were unusual. There were also unusual aspects to the mother's denial that the complainant had ever told her of any sexual abuse by the appellant. She gave the following answers during the interview (at Q166 to 169):

Q: Righto. Well. Ok, well, just going, just going back to [the appellant's] statement, she says, and I'll quote from her statement. Says, the first person I told about [the appellant] abusing me was [the complainant's mother]. I was in about Year 7 and I wanted it to stop, we were home and I think [the complainant] had gone away fishing.

A: No, it's not true, love, no, it's not.

Q: Mmm.

A: So no, I'm sorry, no like, I'm not stupid, I would've protected my kids.

Q: Yeah.

A: But I don't, I trule don't believe it was because there was many times [the complainant] and I were home on our own, and she never mentioned it, never.

Q: Yeah.

A: And this is what I don't understand, you know.

1. Later (at Q174), she said:

And this is what I don't understand. Maybe I'm a bit senile. But I truly do not believe, no.

1. When pressed as to the specifics of the complainant's account of her complaint to her mother in year 7, the mother did remember an incident similar to that described by the complainant but maintained that it related to the appellant accusing the son of doing something he had not done. She said it did not relate to a complaint by the complainant.

1. According to the complainant's statement to police, the mother had at some point told her, after talking to the appellant, that he had said "he won't do it again". That evidence was not given in the trial by the complainant, but the mother's answers about that conversation were included in the material before the jury in exhibit D. In the context of answering questions on that issue, the mother told police that her mind was not good and that she had been on painkillers for many years. It is important to consider the full exchange (at Q194 to 202). It begins with the police putting to the mother what the complainant had said in her statement to police:

Q: And she says "Drove back to the house, I don't know what was said between ... [My mother] later said to me, he said, he won't do it again".

A: Well I could've said that but I could've been referring to [the brother].

Q: Yeah. Yeah.

A: Because that's what we had the argument about, it was about [the brother]. And I dare say, I probably said he won't, he won't accuse him again or whatever, I don't know. I don't, like, my mind's not that bloody good. It's pretty bad, actually. Quite often out of me tree. Well, I used to be, because I was on painkillers.

Q: Yeah.

A: A lot of thing I, yeah.

Q: So, like, well, get to the issue of your painkillers, have you been on painkillers for a long time?

A: Yes, yes, I have.

Q: And how do they affect you apart from pain relief?

A: Well, up until I was, just before we moved out to Belfrayden I was put on some bloody doozies, knocked me out. But up until then, no. I'd be on tablets that they were pain relief, that's what they were.

Q: Yeah.

A: But, because I've got arthritis and it's through the majority of my body, and some days I'm in a lot of pain and I can't get around too good but that's only been in the last, what, 10 years, yeah, yeah.

Q: Right.

A: And I was put on Oxycontin and I was 120 milligrams a day, yeah. And that's when we lived to at Belfrayden [sic]. And as I said, I was quite often out of my tree out there.

Q: Mmm.

A: I used to take 60 milligrams in the morning and 60 milligrams at night and if it didn't knock the bloody pain on the head I'd take some more, yeah.

Q: Mmm.

A: So yeah, I was out of, yeah, when we lived out there, yeah, I was quite often out of me tree but, you know, yeah.

1. Police also asked the mother about her relationship with the complainant since the argument over the cheques in 2003. She gave the following answers (Q217 to 223):

Q: So since, so since that time, like, since the argument over the cheques and all that, how's your relationship been with [the complainant] since then?

A: Well, there hasn't been one. She didn't want, she's virtually not spoke to me since. I seen her one day in the market place, I said to her, can we have a, can we have a chat. I heard what she said to me but I made out I didn't. She said, I've got nothing to say to you. And I said to her, there was people walking in between us, and I just said, I'm sorry, love, I said, I didn't hear what you said. I said, Can you tell me what you just said? She said, I have to go and ask [the complainant's partner]. And I said, I beg your pardon?

Q: [The complainant's partner], just for this, the statement, [the complainant]'s her husband or partner. Is that right?

A: Whatever. Now, he, yes, he's , she said to me, I have to go and ask Arthur if I can talk to you. I said, I beg your pardon? You've got to get permission to talk to me? And she said, Yeah. I said, Well, fuck off. My exact words. Don't want to talk to you.

Q: Uh-huh.

A: And I walked off. And she come running behind me. Yeah, I can talk to you, I can talk to you. And I though, well, you haven't had time to even pick the phone up let alone ring anybody. And I just said to her, I said, No, go home to your kids, I said, they'll be home waiting for you, go. And she kept following me around. And I eventually sat down and I said, she said to me, Why did you let him do these things to me? And I said, I beg your pardon? I said, [the complainant], you've never told me a bloody thing, never. I said, the only time I ever knew anything, I said, was when I walked into the lounge room, that's it. I said, so don't come the bullshit, because I'm not interested. I don't want to hear it. And that was about the .... of the conversation.

Q: So, at what stage did she, like, you say that she was, sort of, wanting you, wanting you to say something about [the appellant] doing these things to her ---

A: Yeah.

Q --- but the only time that you knew ---

A: Yeah.

Q: --- ... happened was when you walked in on them?

A: Exactly.

Q: Like, clearly [the complainant]'s saying that this, that was going on a lot, a lot more than once.

A: Yeah, obviously, but I didn't know anything about it, love.

1. The mother's version can scarcely be described as a compelling, inherently plausible, unequivocal denial that the complainant had ever said anything to her about being sexually abused by the appellant.

1. On this as on other issues in the appeal, the appellant's submissions rest on rigid preconceptions as to how people ought to react to sexual assault within the family home. The implicit premise of the submission that the credibility of the plaintiff is undermined by the evidence of the mother is that it is inconceivable that maternal feeling would not conduce a mother to support her daughter, rather than her partner, in the face of such allegations. A further, more subtle aspect of that untested assumption is that it is corroborated in the present case by the mother's response to the earlier abuse by her previous partner, whom she evidently reported to police.

1. But people do not always react to life events in accordance with common preconception. That is one of the advantages of having the evidence assessed by 12 people randomly drawn from the community in which such preconceptions arise. The jury saw the DVD of the mother's interview by police. Even on the strength of the transcript of that interview, she presents as an unimpressive witness and as a person who may not meet common preconceptions about maternal feeling.

1. Her statement was certainly capable of undermining the evidence of the complainant, but it could serve equally to explain, and give some cogency to, the complainant's account that the abuse continued notwithstanding the fact that she had told her mother about it. Obvious alternative explanations for the denial that the complainant had ever told her of the abuse were, first, impairment of memory due to medication or, secondly, shame or guilt at the prospect of having failed to protect her child from sustained sexual abuse at the hands of not one but two men introduced into the family by her.

1. The mother's statement could also serve to explain another matter relied upon by the appellant, that the complainant did not complain to anyone else (until she spoke to police in 2006). Any apprehension on the part of the complainant that her mother would not support her in any complaint would have been a significant discouragement to her as a child in taking the matter further or elsewhere.

1. The resolution of those competing considerations is quintessentially a task informed by the manner in which the complainant gave her evidence and the manner in which the mother spoke to police during the interview recorded in MFI 6. That glib phrase ("the manner in which the evidence was given") barely captures the many ways in which the assessment of factual issues is enhanced by seeing and hearing the witness. As noted in the decision in M, full allowance must also be made for the manner in which the jury exercises its function. The jury has the opportunity for private discussion about the impressions obtained from the evidence, as it is given, with all of its visual cues.

1. The delay between the incidents the subject of the counts on which the appellant was convicted and the complainant's first approach to police in 2006 was certainly substantial. However, as acknowledged in the appellant's written submissions, the jury was appropriately directed as to the forensic disadvantage for the appellant in defending such allegations. The appellant acknowledged that, in light of the learned trial judge's careful direction, the delay on its own was relatively unremarkable.

1. Apart from the matters already considered, the appellant relied upon the alleged vagueness and unreliability of the complainant's evidence including material inconsistencies and contradictions with other witnesses. It was submitted that the complainant's unreliability emerged "notwithstanding the circumstance that the complainant's statement was taken, apparently thoroughly, during six separate sessions with the police over a period of three months in late 2006 and in circumstances where some six months had elapsed between when the complainant first decided to complain to the police and when she in fact reported them".

1. The complainant was cross-examined about the circumstances of giving her statement to police. She said that the breaks between occasions upon which she spoke to police to provide a statement were due to the need to find dates when she, her counsellor and the officer in charge were all available. The appellant's submissions on this issue echo a remark made by the learned trial judge during the consideration of the application for directed verdicts (at T231). His Honour expressed surprise that there could still be uncertainty and doubt about particulars after such a lengthy period of taking the statement. I would respectfully not share that view. If this was a case of sexual assaults committed on a child but not reported until many years later, it would not be surprising that a statement had to be taken over several sessions. It is not difficult to imagine the factors which would contribute to the difficulty of making, in a single sitting, a full statement as to traumatic events ranging over a period of years. It is also not difficult to accept that there could still be doubt as to detail after such a process. Accordingly, I do not think the existence of doubt as to detail necessarily reflects on the likelihood that the events occurred as described.

1. The appellant relied upon the fact that, when the complainant first contacted police, the COPS entry records her as having said the assaults commenced when she was eight years old, whereas the evidence at the trial established that the events could not have started until she was at least nine. Once again, that submission reflects a remark made by the learned trial judge (at T231), who asked rhetorically why someone independently examining the matter would not regard that as a matter that might reflect adversely upon her credibility. For my part, I have no difficulty accepting that a person who at the age of 35 first reported events that started when she was in primary school might make an error as to her age when the conduct began. There was no exploration in the court below as to the precise words said during the conversation recorded in the COPS entry or as to how the complainant came to make that error (if she did make that error - it may have been an error in recording or comprehension on the part of the author of the entry). For my part, I would want to know more about those matters before concluding that it was an error which necessarily reflected on her credibility or reliability as a witness.

1. Another alleged anomaly or inconsistency in the complainant's evidence relied upon by the appellant is the fact that the COPS entry recorded her as having stated that she was reporting the matter to police because she had fears that the appellant might attempt to interfere with her own children. The appellant submitted that that was materially inconsistent with the evidence of three witnesses who had all observed the complainant leaving her children with the appellant and his wife, sometimes for extended periods. The complainant was briefly cross-examined as to those matters. The cross-examination concluded with the following exchange (at T175.21):

Q: You weren't ever forced by [the appellant] to part with [complainant's son] at all, were you?

A: I really didn't have much say in it. He just come and took [the son] whether I liked it or not.

Q: What, he did the same with [the daughter], did he?

A: I never let him have [the daughter].

1. Certainly on paper that reads as though it was probably powerful evidence from the complainant. As already noted, this was an unusual family. The evidence that the complainant may have left her children with her mother and the appellant from time to time does not necessarily undermine her credibility as to the acts of the appellant for which he was convicted, in my view.

1. It remains to consider the significance of the jury's acquittal of the appellant on counts 8 and 9.

1. Count 8 alleges an offence of sexual intercourse without consent between 1 February 1995 and 30 March 1995 (when the complainant was aged 23 years). The complainant gave evidence that the relevant incident occurred on the day on which she found out that she was pregnant with her second child. She said she went home and the appellant came to visit. The complainant and her partner had been talking about moving away from the area at that time. The complainant said that the appellant was rather upset at the fact that they were thinking about moving. She gave evidence in chief as follows (at T50.18):

Q: Could you just tell us what he said rather than what you think he may have been thinking?

A: He asked why we were moving and why would I take [child] away from them, them being him and [the mother], and I tried to explain to him that we hadn't decided on what we were doing and he got rather angry.

Q: You just said he was angry. How do you know?

A: The way he was speaking to me and he was yelling at me. I don't remember how but all I remember is going from the lounge room, being in the lounge room one minute and then the next minute being in my bedroom and - being in my bedroom and I was on the bed naked and he's pulled his shorts down. He's got my wrists held above my head. I couldn't - I was struggling with him and I couldn't get away from him. I couldn't get out of his grip.

Q: You said you were struggling with him. What were you doing?

A: Trying to get out of his grip because he had hold of my arms and I couldn't get him to let go of me.

Q: Did you say anything to him?

A: I asked him not to do it. "Please don't - please don't do this." He got both of my wrists and held them together with one hand and he was trying to kiss me. And I remember just shaking my head so he couldn't and saying to him, "Please don't do this". Then with his free hand he - then with his free hand he put his penis in my vagina and proceeded to move in and out. He was still trying to kiss me and I'm still trying to shake my head and trying to get away from him. Then after a little bit, I don't know how long, he got up and said something. He said, "I can't do this anymore". And I'm not sure what he was talking about. He's walked out of my room - pulled his pants up and he's walked out of my room. I've got my clothes and I've run into the bathroom and washed myself and got dressed and I could hear him in the lounge room. He's - when I've gone into the lounge room I've asked him to leave and he turned around and he said to me, "This is all your fault; this is the only way I know how to hurt you". And with that he left.

1. Count 9 alleged an offence of assault with an act of indecency in 2003. That was when the complainant, her mother and the appellant were all living at Belfrayden. A dispute had arisen because the complainant's mother had been writing and cashing cheques on the account of the appellant's business. The complainant's mother said that the money was for the complainant. The complainant denied that. She said that the appellant was very angry and confronted her (the complainant). She gave evidence at T63.7 to T63.12 as follows:

Q: He's come towards you. Tell us what's happened?

A: He's grabbed my shirt around the scruff of my neck really, really tight with one hand, and the other hand he's grabbed the front of my pants - my vagina, and he squeezed it really, really hard. And he's pulled me in and when he's yelling at me I could feel the spit on my face. And he said to me "I should fuck you up the asshole for what you're doing". I got away from him and I went out the back and I spoke to [the mother] and I told her that --

1. The complainant said that she moved away from Belfrayden immediately after that event and that the only time she returned to the house was to pack up and move. The evidence was that, in August or September that year, she obtained an AVO (T63 to T64).

1. The appellant submitted that the convictions on the five counts that went to the jury at the conclusion of the trial cannot logically or reasonably stand with the acquittals on those two counts. As noted in the appellant's written submissions, where an unreasonable verdict ground is supported by a claim of inconsistent verdicts, the focus of the inquiry is upon any explanation for an acquittal, not for a conviction: R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 at [128]. However, a threshold task is to determine whether there is an inconsistency.

1. The appellant noted that the jury was directed that, if they did not accept a particular part of the evidence of a significant witness and the part which they did not accept was a matter critical to proof of guilt of the appellant in relation to one or other of the counts, that may have implications for what they could reasonably accept from that witness in relation to other matters of critical importance in the case. The submission was that, since the proof of the guilt of the accused depended upon the truthfulness and reliability of the complainant, acquittal on two counts and not on the remaining five in itself entails perversity.

1. I do not accept that submission. The implicit premise is that the jury disbelieved the complainant's evidence as to counts 8 and 9 and that, having done so, they could not reasonably accept her evidence in relation to the other counts. Both propositions are wrong. First, the acquittals do not necessarily mean that the jury disbelieved the complainant. They mean that the jury entertained a reasonable doubt as to those two counts. Secondly, although the credibility of the complainant on counts 8 and 9 was capable of informing the jury's assessment of the other counts, it did not necessarily do so. That is reflected in the standard directions to a jury that it is open to them to accept some parts of a witness's evidence and to reject others. It is also reflected in the direction that, where an accused is charged with more than one offence, the jury must consider each charge separately.

1. If, contrary to the conclusion I have reached, the verdicts are inconsistent, there is in my view a rational explanation for the acquittals on counts 8 and 9. Those offences were alleged to have been committed considerably later than the counts on which the appellant was convicted. The event described by the mother of catching them having sex in the lounge room was not the event relied upon to prove count 8 but the prospect of consent was relevant to the determination of that count. It is not irrational to think that the evidence of the earlier events, if accepted, explained the appearance of the incident described by her. On the complainant's evidence, sexual intercourse with the appellant had become normalised by that time and there was little point resisting it. It was the mother's evidence that the sexual intercourse she observed appeared to be consensual, but that of course is not determinative as to whether the complainant was in fact consenting on that or any other occasion.

1. As strange as it seems, the jury may have accepted that consensual sexual intercourse did occur at some point. They may have considered it unlikely, but the spectre of adult consent in the context of a dysfunctional relationship may have caused them to entertain a reasonable doubt as to count 8. They may have entertained a doubt as to whether, as an adult, the complainant made her lack of consent clear to the appellant.

1. An assessment of the complainant's evidence in support of count 9 is also necessarily informed by the complex and dysfunctional relationship which had on any view developed between the complainant and the appellant by that point. As already noted, the jury was confronted with evidence which established that, at the very least, the complainant did have sexual intercourse with her stepfather, the contest being as to when such conduct began and whether it was consensual. Whichever way the issues of timing and consent were resolved, they informed the events of 2003 and may have contributed to the harbouring of a reasonable doubt as to the complainant's description of that event. The evidence in support of count 9 was complicated by mutual finger-pointing by the complainant and her mother as to who was to blame for the alleged misappropriation of funds from the appellant's business. That was also capable of rationally affecting the jury's assessment of count 9, but it did not necessarily have any bearing on the counts on which the appellant was convicted.

1. The appellant relied upon the evidence as to the circumstances in which the complainant came to live at Belfrayden as a further instance of direct and material contradiction of her evidence. As noted on behalf of the appellant, the effect of her evidence was that she moved to Belfrayden to escape from him. Her landlord, Mr Gibbons, gave evidence to the effect that, before she leased the house from him, she invited her mother and the appellant to visit the property and that during that visit they agreed to buy the property, suggesting that she well knew, before she took the lease, that her mother and the appellant were also planning to move there.

1. The inconsistency between the evidence of the complainant and that of the landlord on that issue is plainly relevant to an assessment of the complainant's credibility, but it is also relevant to a consideration of the alleged inconsistency between the acquittals on counts 8 and 9 and the earlier counts. There would be nothing irrational in accepting the complainant's evidence that she was sexually assaulted as a child and concluding that the events of those years coloured her recollection or description of later events when she was an adult.

1. A careful consideration of the evidence and the appellant's submissions as to the alleged unreliability of the complainant's evidence has not left me with any reasonable doubt as to the appellant's guilt on the counts on which he was convicted by the jury. In my view, ground 1 must be rejected.

Grounds 2 and 3

1. Ground 3 alleges that the trial judge erred by failing to exclude the evidence of the complainant's partner set out above. Ground 2 relies upon the admission of that evidence, together with the withholding from the jury of part of the mother's statement (excluded by consent), in support of the contention that there was a miscarriage of justice such as to invoke the application of s 6(1) of the Criminal Appeal Act. Ground 2 originally also relied upon the admission of the relationship evidence as an aspect of the alleged miscarriage of justice. However, as already noted, that point was abandoned at the outset of the appeal.

1. The appellant acknowledged that each of those grounds necessarily involves criticism of the way in which the trial was conducted by defence counsel. It was submitted that, particularly in relation to the admission of the evidence of the complainant's partner and the relationship evidence, there is demonstrated incompetence of such a degree as to warrant this Court's intervention without more. The force of that submission was diminished by the abandonment of the point as to the relationship evidence.

1. It is convenient first to consider the admission of the evidence of the complainant's partner. The evidence is outlined above. Counsel for the defendant at the trial did not object to the evidence or make any application to have it excluded in the exercise of the Court's discretion. It is nonetheless contended that the trial judge erred in failing to exclude the evidence under s 137 of the Evidence Act 1995. That section provides:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

1. Much of the appellant's argument in written submissions on this issue was directed to the alleged unreliability of the evidence. The written submissions were finalised on 4 March 2013, shortly before the publication of the decision of this Court in R v XY [2013] NSWCCA 121. Prior to the publication of that decision, this point may have been understood to be governed by the decision of the Victorian Court of Appeal in Dupas v R [2012] VSCA 328 in which it was held that, for the purposes of undertaking the assessment required by s 137, the alleged unreliability of the evidence is a factor to be taken into account in determining its probative value. The Court in Dupas refused to follow (and found to be manifestly wrong) the decision of this Court on that issue in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [47] to [65].

1. Accordingly, this Court in XY sat a bench of five to determine whether to follow Dupas or Shamouil. The Court held, by majority, that when assessing the probative value of evidence objected to under s 137 of the Evidence Act, the Court should not consider the credibility, reliability or weight of the evidence: at [66] per Basten JA; at [175] per Simpson J; Hoeben CJ at CL agreeing at [86] to [88]. Accordingly, so far as ground 3 is concerned, many of the appellant's arguments fall away.

1. Hoeben CJ at CL and Blanch J considered, however, that the Court can take account of competing inferences which might be available on the evidence: at [86] to [88] per Hoeben CJ; at [207] per Blanch J. Price J dissented, considering that the Dupas approach of enabling a trial judge to consider credibility, reliability or weight enhances the fair trial principle (at [224]).

1. Ms Loukas SC, who was not the author of the written submissions but who appeared for the appellant in the appeal, submitted with some ingenuity that competing inferences are available from the evidence of the complainant's partner in the present case, one consistent with the case for the Crown and one consistent with the case put for the accused. Ms Loukas submitted that the evidence was capable of giving rise to an inference that the 300 events referred to by the appellant had all occurred consensually after the complainant had turned 18.

1. I do not think the evidence is capable of supporting that inference. The only rational inference available, in my view, is that the appellant was denying that he had sexual activity with the complainant when she was aged nine years but admitting that there had been sexual activity from the time when she was 13 whilst asserting that she had "asked for it". That evidence had substantial probative value. It touched directly on a critical factual issue left to the jury, namely, when the sexual contact between the complainant and the appellant first occurred and whether, when it started, it was (or could have been) consensual.

1. As noted on behalf of the Crown, since the evidence was not objected to in the Court below, the appellant requires leave under rule 4 to rely on the admission of the evidence as a ground of appeal (or as an aspect of any ground). The appellant must accordingly establish that the ground is arguable and that a miscarriage of justice has resulted.

1. In my view, the evidence was plainly admissible and was not required to be excluded under s 137 of the Evidence Act. I should record that the trial judge remarked that, had the evidence been objected to, there is a real possibility that he would have excluded it (T234.25; T257.34). However, that is not determinative. The test is whether, applying the test in XY, the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant and whether its admission has resulted in a miscarriage of justice. In my view, the answer to each of those questions must be "no".

1. The consideration of ground 2 must be informed by that conclusion. The remaining consideration in support of that ground is the withholding from the jury of allegedly significant evidence from the complainant's mother. As already noted, the version of her statement to police admitted in the trial was edited by consent and following consultation between the Crown and counsel for the appellant at the trial.

1. In the mother's answers to police about whether the complainant told her that the appellant was abusing the complainant, one of the answers excluded by agreement was "because I would've, as I said to you the other day, I had no problem puttin' my first husband in gaol and I sure as hell wouldn't have had a problem puttin' [the appellant] in gaol if he'd have been doing anything like that (Q 265). Later in the interview, the mother told police that the complainant used to talk to the appellant about the things that the mother's previous husband had done. Police asked whether the previous husband was sexually abusing the complainant. The mother said (at Q 371):

Yeah, for many years, apparently, and I didn't know. Isn't that terrible?... She was only a little one and I, I never knew, how stupid, you know, I never knew....And she never said anything.

1. Counsel for the appellant swore an affidavit which was read on the appeal in which he stated that he thought the excluded evidence clearly offended s 293 of the Criminal Procedure Act 1986. There was some debate in the appeal about the correctness of that view but it is not necessary to determine that issue.

1. The excluded answers also raised an extremely delicate forensic choice. It may be accepted that the evidence could have been relied upon in ways favourable to the appellant. It tended to support the mother's denial that the complainant had ever told her of the appellant's sexual abuse. It may also have served to explain the complainant's ability convincingly to describe sexual events in the language of the experience of a child, as in my view she did.

1. Conversely, however, the evidence could have been extremely damaging to the defendant. Apart from anything else, the evidence established the possibility of concealing repeated sexual abuse from the mother in her own household. It tended to confirm that she may not have been the most vigilant of mothers. The description of the appellant regularly comforting the complainant could have taken on a sinister complexion in that context. The evidence revealed that the appellant knew the complainant was a girl who had previously been sexually assaulted and had not complained to her mother. It revealed the mother's bizarrely naïve response to such conduct.

1. In all the circumstances, the contention that the decision to withhold the evidence from the jury demonstrates incompetence of such a degree as to warrant this Court's intervention is untenable, in my view. Its exclusion by consent entailed a forensic decision. Such decisions are easily canvassed upon a review of the cold page of the transcript following a conviction.

1. Once again, the appellant invokes, in support of this ground, remarks made by the learned trial judge during the trial (at T203 to 204). His Honour certainly expressed the view that to withhold that evidence (that on a previous occasion the mother had reported to police a complaint by her daughter of sexual abuse) was an important point going to the complainant's truthfulness. Those remarks were made in an exchange with the Crown, who had made a decision not to lead the evidence. Importantly, his Honour's remarks did not prompt counsel for the accused to seek to have the evidence included (T203-204). That is a factor relied upon by the appellant as revealing the incompetence of that barrister in his conduct of the trial.

1. It must be remembered that the overriding duty of the learned trial judge was to ensure a fair trial. His Honour's remarks reflect his considerable experience in discharging that duty but were undoubtedly not intended to be understood as an attempt to second-guess the careful forensic decisions of the counsel appearing before him. Upon analysis, it may be seen that the excluded parts of the mother's statement were not unequivocally favourable to the accused. In my assessment of the circumstances faced by counsel for the accused, he was wise to adhere to the choice he had made, notwithstanding the judge's well-meaning observations.

1. For those reasons, grounds 2 and 3 must be rejected.

1. The sentences imposed by the trial judge as to counts 1, 6 and 7 were each fixed to commence on 21 September 2012. The sentences imposed in respect of counts 4 and 5 were fixed to commence two years later, on 21 September 2014. As already noted, following an application for bail pending his appeal, the appellant has been at liberty on bail since the commencement of the sentences. In accordance with s 18(2) of the Criminal Appeal Act, the time during which the appellant has been at liberty on bail does not count as part of his terms of imprisonment. Accordingly, it is appropriate to exercise the Court's power under s 28A of the Act specifying today's date as the date of the commencement of the sentences imposed on counts 1, 6 and 7 and 23 December 2015 as the date of commencement of the sentences imposed on counts 4 and 5. The first date on which the appellant will be eligible for release to parole is 23 December 2017.

1. The orders I propose are:

(1)   that the appeal be dismissed;

(2) pursuant to s 28A of the Criminal Appeal Act 1912, the sentences imposed upon the appellant by Norrish DCJ on 21 September 2012 are specified to commence as follows:

(a)   the sentence of imprisonment for 18 months imposed in respect of count 1 will commence on 23 December 2013 and expire on 22 June 2015;

(b)   the sentences of 4 years' imprisonment imposed in respect of each of counts 6 and 7 will commence on 23 December 2013 and expire on 22 December 2017;

(c)   the sentences of imprisonment for 6 years with a non-parole period of 2 years and a balance of term of 4 years imposed in respect of each of counts 4 and 5 will commence on 23 December 2015 with a non-parole period of 2 years expiring on 22 December 2017 and a balance of term expiring on 22 December 2021.

1. SCHMIDT J: I agree with McCallum J.

Decision last updated: 08 January 2014