Macri v The the Queen - [2022] NSWCCA 177

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Macri v R [2022] NSWCCA 177
Hearing dates: 11 March 2022
Date of orders: 22 August 2022
Decision date: 22 August 2022
Before: Beech-Jones CJ at CL at [1];
N Adams J at [15];
Lonergan J at [204].
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – historical child sexual offences – application for permanent stay refused – where indictment spanned five years – lack of particularity, delay, forensic disadvantage – standard of appellate review where stay refused and trial proceeds to conviction – House error and miscarriage under s 6(1) of Criminal Appeal Act – neither shown by applicant in this case
CRIME – appeals – appeal against conviction – unreasonable verdict – complainant’s testimony said to lack adequate particularity – complaint evidence – pretext calls – verdicts not unreasonable – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Evidence Act1995 (NSW), s 165B

Cases Cited:
Adler v District Court of NSW (1990) 19 NSWLR 317
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Bandao v R; Bruce v R [2018] NSWCCA 181
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
Cabot (a pseudonym) v R [2018] NSWCCA 265
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Hogan (a pseudonym) v R [2019] NSWCCA 125
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2015] NSWCCA 330
Jackmain (a pseudonym) v Regina [2002] NSWCCA 150
Jago v The District Court of NSW (1989) 168 CLR 23 [1989] HCA 46
JG v R [2014] NSWCCA 138
Kassab (a pseudonym) v R [2021] NSWCCA 46
KeesLangelaar v R [2016] NSWCCA 143
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Medich v R [2015] NSWCCA 281
Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
Palmer v The Queen (1998) 193 CLR 1; [1988] HCA 2
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v RD [2016] NSWCCA 84
R v Rogers (Court of Appeal (Qld), 6 May 1998, unrep)
R v S [2000] 1 Qd R 445; (1998) 102 A Crim R 418
R v Smith [No 1] [2011] NSWSC 725
Regina v Littler [2001] NSWCCA 173
Regina v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
SB v R [2020] NSWCCA 207
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
The Queen vEdwards (2009) 83 ALJR 717; [2009] HCA 20
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Category: Principal judgment
Parties: Christopher Macri (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr M Johnston SC with Ms A Cook (Applicant)
Mr B Hatfield (Respondent)
Solicitors:
GA Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/00167995
Publication restriction:
Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987, publication of the name of, or any matter which could identify the victim is prohibited.
Pursuant to section 578A of the Crimes Act 1900, publication of any matter which could identify the victim is prohibited.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

09 March 2021

Before:

Noman SC DCJ

File Number(s):

2019/00316270

HEADNOTE

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

On 2 March 2021, the applicant stood trial before Judge Noman SC and a jury of twelve on three charges of historical child sexual assault under the Crimes Act 1900 (NSW) as in force at the time of the alleged offences. The date range on the indictment was 26 February 1986 to 1 January 1991. The complainant was the daughter of the applicant’s girlfriend during this time; she was aged between 6 and 12 years old. On 9 March 2021, the jury returned verdicts of guilty on all counts. The applicant was sentenced to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 3 years. There had been an earlier trial (commencing 19 August 2020) of the applicant in respect of these charges before Judge Ingram SC which was aborted. Prior to this first trial, the applicant had made an application for a permanent stay of the prosecution which was refused.

The applicant appealed against his conviction under s 5(1) of the Criminal Appeal Act 1912 (NSW) on two grounds:

His Honour erred in exercising his discretion to refuse the application for a permanent stay of proceedings.
The verdicts on all counts are unreasonable and cannot be supported by the evidence.

In respect of ground 1, the applicant submitted that the broad date range on the indictment gave rise to incurable difficulties which precluded a fair trial, in circumstances where the complainant’s testimony lacked sufficient particularity – for example, the complainant could not say when or in which order the events making up the three counts occurred within the five-year range – and there had been significant delay and forensic disadvantage. Thus, the application for a permanent stay should have been granted. The applicant made similar submissions in respect of ground 2, namely, that the overall quality of the complainant’s testimony was so poor that a jury acting reasonably ought to have entertained a reasonable doubt in respect of each count.

The Court held (per N Adams J, with whom Beech-Jones CJ at CL and Lonergan J agreed), granting leave to appeal but dismissing the appeal:

In respect of ground 1:

Where proceedings against an accused person have resulted in conviction and, on appeal, challenge is brought to a decision to refuse an application for a permanent stay, the applicant will need to show both error in the exercise of the primary judge’s discretion in the sense of House v The King (1936) 55 CLR 499 and a miscarriage of justice at trial within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). This approach is dictated by authority: at [3]-[4] per Beech-Jones CJ at CL; at [161] per N Adams J; Lonergan J also agreeing.

The Queen v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237; Hughes v R [2015] NSWCCA 330 applied.

In this case, the applicant has shown neither House error nor a miscarriage of justice. Any difficulties caused by vagueness and delay did not warrant a stay of proceedings and the applicant’s trial was not in fact unfair: at [5] per Beech-Jones CJ at CL; at [175]-[176] per N Adams J; Lonergan J also agreeing.

In respect of ground 2:

The quality of the complainant’s recollection in respect of the three counts was sufficient to establish each of them: at [187] per N Adams J. Her evidence was reasonably clear and precise as to the acts making up the offences: at [8] per Beech-Jones CJ at CL. In addition, there was evidence of complaint by the complainant around the time of the alleged offending as well as a pretext call made by the complainant to the applicant in May 2019: at [194]-[198] per N Adams J. The verdicts are not unreasonable: at [5], [12] per Beech-Jones CJ at CL; at [202] per N Adams J. The quality of the complainant’s recollection in respect of the three counts was sufficient to establish each of them: at [186] per N Adams J. In addition, there was evidence of complaint by the complainant around the time of the alleged offending as well as a pretext call made by the complainant to the applicant in May 2019: at [195]-[199] per N Adams J. The verdicts are not unreasonable: at [5], [12] per Beech-Jones CJ at CL; at [202] per N Adams J; at [205] per Lonergan J.

Judgment

BEECH-JONES CJ at CL: I have had the advantage of reading the judgment of N Adams J. Subject to what follows I agree with her Honour.
In relation to ground 1, uninstructed by authority I would conclude that, if following a refusal of an application for a permanent stay on grounds that relate to the fairness of the forthcoming trial, an offender appeals their subsequent conviction on the basis that the proceedings should have been stayed, it is not necessary or even relevant to determine whether the decision to refuse a stay was affected by an error of the kind described in House v The King (1936) 55 CLR 499 at 505 (“House”). Instead, in that circumstance the (only) relevant inquiry should be whether, in light of the trial that took place, the matter or matters that were said to warrant the stay of the proceedings means that one of the three limbs of s 6(1) of the Criminal Appeal Act 1912 has been satisfied. A different analysis may be warranted where the basis for the application for the stay did not concern the fairness of the forthcoming trial (see for example Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50).
Thus, for example, a judge may have refused an application for a stay on the basis of pre-trial publicity by reasoning that any relevant prejudice might be cured by making appropriate inquiries of, and giving directions to, the jury panel or the jury. Alternatively, a judge may refuse an application for a stay on the basis that evidence has been lost by concluding that the evidence was not of such significance to warrant the extreme measure of halting the proceedings. In each case the decisions to refuse a stay might not be attended by House error. However, if, in the first example, there were no inquiries made of the jury panel or directions given at the trial that followed or if, in the second example, the trial unfolded in such a manner that the lost evidence became critical to an assessment of the accused’s guilt, then a miscarriage of justice might be occasioned notwithstanding the absence of error in granting the stay. On the other hand, House error might be shown in relation to the decision to refuse a stay but the manner in which the trial unfolded may demonstrate that the basis for any stay was untenable. If that approach was translated into this case, then the matters that were said to warrant a stay in this case, being delay in the proceedings and the time span of the indictment, would only fall to be considered as part of the determination of whether the verdict was unreasonable or there was otherwise a miscarriage of justice for lack of particularisation and the like.
However, I am not uninstructed by authority. The passages from the judgment of Mason CJ and Toohey J in The Queen v Glennon (1992) 173 CLR 592 at 598 to 600 and 605 to 606 set out in the judgments of N Adams J at [140]-[142] suggest that it is necessary to demonstrate both House error in relation to the decision to refuse a stay and that a miscarriage of justice was occasioned. Further, while the passage from Dupas v The Queen (2010) 241 CLR 237 at [18] to [19] cited by Her Honour (at[146]) refers to considering the issue by reference to what transpired at the trial that took place after the application for a stay was refused, that was stated in a context where the Court of Criminal Appeal found that the trial was affected by error for other reasons and was considering whether to order a new trial. The decision of this Court in Hughes v R [2015] NSWCCA 330 (“Hughes”) also suggests that House error and a miscarriage of justice must be shown. Thus, in Hughes, Beazley P, Schmidt and Button JJ observed (at [61] to [62]):

“In the result, on this appeal what arises for consideration is not only whether, on the material before his Honour at the pre-trial stage of the proceedings when the applicant’s applications were refused, there was error, but also whether there is error in light of what subsequently occurred at trial.
What is pursued on appeal must be approached in the way discussed in Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [19], that is, the complaints advanced cannot be approached purely prospectively, as Zahra DCJ had to consider what fell to him to decide. The issues lying between the parties on appeal must be resolved with the assistance provided by what actually transpired at the trial, including the steps taken to ensure that it was a fair trial, and their results.” (emphasis added)

This approach does involve considering whether the refusal of the stay was affected by error although it also involves considering what transpired at the trial. As noted by their Honour’s this approach is consistent with Dupas.
The trial judge’s reasons for refusing the application for a permanent stay were concise. His Honour identified the basis for the application and the principles governing the grant of a stay. His Honour considered the public interest in the prosecution of the alleged commission of serious sexual offences. His Honour considered that the applicant’s complaints about the effect of delay and the lack of particularisation of the offences. However, his Honour found that the effect of delay could be addressed through the identification of the evidence relied on for each count and the giving of directions to the jury about the effect of delay and the onus of proof. In these circumstances, I do not accept that any error of the kind described in House was established in relation to the trial judge’s refusal of the application for a permanent stay. Otherwise, for the reasons given by N Adams J in relation to ground 1 (and ground 2 but subject to what follows), I am not satisfied that the matters complained give rise to any of the bases for setting aside a conviction as provided for in s 6(1) of the Criminal Appeal Act.
In relation to ground 2, the relevant principles are stated in the judgment of N Adams J. To that discussion I would add that in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”) the High Court observed that the “assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury” (at [38]) and then described this Court’s function as follows:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (emphasis added)

The reference to “a case such as the present” in this passage is to a case where the principal evidence against an accused person is that given by a complainant.
I have reviewed the record of the applicant’s trial closely. I do not consider that the contents of his pretext call with Donna added much, if anything, to the case against him. The applicant repeatedly stated that he had no memory of the events and would not do what was alleged against him while at the same time apologising to Donna. This leaves the evidence of Donna including her complaints (as well as the evidence of the other witnesses including the applicant). The evidence of Donna should be addressed in a manner consistent with that stated in the above passage from Pell. Nothing raised by the evidence gives any reason to doubt Donna’s credibility in terms of her honesty as a witness. The strongest point made on behalf of the applicant concerns the reliability of her evidence given the length of time since the relevant events and the complaints about lack of particularisation and detail. However, although Donna had difficulty remembering some peripheral details with each count, her evidence about the acts said to constitute those counts was reasonably clear and precise. Hence in relation to count 1 she gave the following evidence in chief:

“Q.   Do you recall what year you were at school?
A.   No, I don’t know what year I was at school.
Q.   Were you able to see his penis?
A:   It was quite dark. I don’t remember seeing it. That’s not my memory.
Q.   You say he guided your hand to his penis. Do you recall which hand it was?
A.   It’s not a clear memory of which hand, but we’re saying when I was – when I was – when I retell it, feels like it was my left hand.
Q.   Are you able to recall whether his penis was hard or soft?
A.   It was hard.
Q.   How did you feel at that time?
A.   At the time, I don’t think I even realised that it was something wrong. I wasn’t scared of him.
Q.   Was anything said either by you or Chris?
A.   I don’t remember. I’m sure there would’ve been some words, but I don’t remember the words.
Q:   Where were you living?
A.   We were living at XXX Street, Tempe.
Q.   Can you tell the jury what you can recall in relation to that drive with Chris to go to the video store at Marrickville?
A.   Yep. I remember that he stopped off at a lane which is near Sydenham Station, and that he undid his pants and guided my hand to touch his penis.
Q.   Was there anyone else in the car apart from you and Chris?
A.   No.
Q.   Do you recall how old you were?
A.   I don’t remember my exact age, no.”

It is the case that in cross‑examination about this count, Donna referred to having a “flashback” but that was in the context of her being asked what happened outside the car (“a flashback type of experience rather than remembering my surroundings”).
With Count 2, Donna also provided a reasonably precise narrative of events as follows:

“Q.   Are you able to describe the bathroom? What was in the bathroom?
A.   In the bathroom there was a sink, a shower and toilet.
Q.   Where were you positioned when you say he was trying to do something to you?
A.   Next to the sink.
Q.   Next to the sink?
A.   Yeah.
Q.   Were you – which way were you facing?
A.   Facing – facing the sink.
Q.   Was a part of your body pressing up against the sink or were you away from the sink?
A.   It’s hard to remember that exact thing. It’s – the memory is more of something being put inside me and--
Q.   Do you say it was night-time?
A.   Yes.
Q.   Can you recall whether the light was on in the bathroom?
A.   The light wasn’t on. There – there was a bit of light, but I don’t remember the bright bright light.
Q.   At the time that you were living at [Tempe], if you were in the bathroom and the light wasn’t on, was there light from anywhere else in the house that could have been shining into the bathroom, or not?
A.   If the kitchen light was on, then it could shine into the bathroom or—
Q.   You say Chris was trying to do something to you; is that right?
A.   Yeah.
Q.   How do you know it was Chris?
A.   There was nobody else in the house. I know it was Chris. Yeah. Because we knew him.
Q.   Did you see him in the bathroom?
A.   Well, I must have seen him. I – yeah.
Q.   Where was he? You say you were up against the sink facing towards the sink; is that right?
A.   Yeah.
Q.   Where was Chris in relation to where you were?
A.   Behind me.
Q.   Just tell the jury what – what you felt when he was behind you?
A.   I felt something being – trying to be inserted inside me.
Q.   When you say, ‘inside me’, we have to—
A.   It’s in my vagina.”

The cross‑examination of Donna on this count focussed on her lack of precision as to what was attempted to be placed inside her, how she could not recall how she came to be in the bathroom or what she did afterwards or whether her mother was in the house or not. None of those matters are of much significance given that, on her version, the applicant was behind her, there is no reason why her presence in the bathroom of her own house would be memorable and the relative short time over which the incident occurred.
The evidence of Donna in support of count 3 is summarised in the judgment of N Adams J at [35] to [39]. Like her evidence in support of counts 1 and 2 I do not consider that it suffers from a lack of sufficient detail or precision such as to cast doubt on its reliability or otherwise support the contention that either the first or third limb of s 6(1) of the Criminal Appeal Act 1912 has been satisfied.

As noted, I otherwise agree with N Adams J. I agree with the orders her Honour proposes.
N ADAMS J: On 2 March 2021, Christopher Macri stood trial before Judge Noman SC and a jury of twelve on an indictment charging three historical child sexual assault offences said to have been committed on the daughter of his former girlfriend in the late 1980s or early 1990s when the child was aged between 6 and 12 years old. Although the child was referred to as “AD” in the written submissions, I propose to refer to her as “the complainant” or by the pseudonym “Donna”.
The indictment on which the applicant was convicted charged that between 26 February 1986 and 1 January 1991 the applicant committed the following offences:

Assault and act of indecency upon a person then under the age of 16 years under authority, contrary to s 61E(1A) of the Crimes Act 1900 (NSW) (as in force at that time);

Attempted sexual intercourse with a person then under the age of 16 years without consent and with knowledge that the person was not consenting, contrary to s 61F of the Crimes Act;

Sexual intercourse with a person then under the age of 16 years without consent and with knowledge that the person was not consenting, contrary to s 61D(1) of the Crimes Act.

On 9 March 2021, the jury returned verdicts of guilty on all counts. On 9 April 2021, the applicant was sentenced to an aggregate term of imprisonment for 4 years and 6 months with a non-parole period of 3 years.
Prior to the trial before Judge Noman SC, an earlier trial had commenced before Judge Ingram SC on 19 August 2020. The jury in that trial was discharged due to the late disclosure by police of certain school records. Prior to the commencement of that earlier trial, the applicant had sought a permanent stay before Judge Ingram SC which was refused.
The applicant appeals against his convictions under s 5(1) of the Criminal Appeal Act 1912 (NSW). There is no application for leave to appeal against the sentence imposed. The applicant relies on two grounds of appeal:

Ground 1: His Honour erred in exercising his discretion to refuse the application for a permanent stay of proceedings.
Ground 2: The verdicts on all counts are unreasonable and cannot be supported by the evidence.

A ground of appeal contending that a verdict or verdicts are unreasonable requires a grant of leave as it involves a question of fact or of mixed law and fact: Kees Langelaar v R [2016] NSWCCA 143 at [46]. The grant of leave was not opposed by the Crown in this matter.

The Crown case

The complainant was born in 1979. When she was five years old her parents divorced. After that she lived in Tempe with her mother, whom I shall refer to by the pseudonym “Carol”, and two siblings: a sister two years younger and a brother three years younger. Her mother commenced a relationship with the applicant in about 1985. The applicant was married and kept his relationship with the complainant’s mother a secret from his wife.
The applicant would visit Carol every Monday night and Saturday and sometimes another week-night. This was a regular pattern whilst she lived in Tempe. The relationship lasted from about 1985 (on the Crown case) and certainly from at least 1987 (the date inscribed on a bracelet he gave her) until about 1994.
In 2019, the complainant, who was by then 40 years of age, reported to police that the applicant had sexually assaulted her in the Tempe house whilst she was in primary school. She alleged that it happened on a number of occasions but she could now recall only three specific incidents (summarised below). She disclosed the applicant’s conduct to three friends over the years whilst she was still at school. She also told her mother in 1991, but the matter went no further at that time and her mother continued to see the applicant. The applicant agreed that Carol confronted him with the allegation in 1991 but on his version (denied by the complainant) the complainant withdrew the allegation when questioned by the applicant at that time.
Carol died in 2013.
After reporting the matter to police, the complainant telephoned the applicant and confronted him with the allegations. The telephone conversations were legally recorded by police. He neither directly denied nor admitted to the conduct, although he did apologise and ask how he could make amends. His explanation for this at trial was that he did not wish his wife to learn of the affair with Carol.
Although the complainant was unable to be provide any significant detail of the particular acts making up the offences, the three friends to whom she confided whilst still a child all gave evidence. Furthermore, the applicant admitted that the allegation was first made in 1991 and did not dispute his conduct during the pretext call in 2019, only the explanation for it. I have extracted that call below at [85]-[87].

The complainant’s evidence

The complainant could not recall how old she was when her mother commenced a relationship with the applicant, but it was after her parents divorced. She was at school at that time. He would visit on Mondays and sometimes Saturdays. When she was in primary school, she was learning Italian and she would speak to the applicant in Italian, just “little words”.
The complainant accepted that a sketch plan of the Tempe premises accorded with her recollection (exhibit A).

Count 1

The complainant remembered the applicant’s red sports car as it had “pop-up” headlights. She remembered a time when she and the applicant drove to a video store in Marrickville. He stopped in a lane near Sydenham Station, undid his pants and guided her hand to touch his penis. She does not recall her age or what year she was in at school. It was quite dark. She did not remember seeing his penis saying, “that’s not my memory”. When asked what hand she used, she stated, “[w]hen I retell it, feels like it was my left hand”. His penis was “hard”. She did not realise at the time it was something wrong. She was not scared of him. She could not recall if he did anything else nor how long it went on for.
An aerial photograph of the Sydenham area was tendered and became exhibit B.

Count 2

She remembered another incident which occurred at night in the bathroom of the Tempe house. She did not know how old she was nor the date. She remembered being in the bathroom and the applicant trying to put something in her vagina. She just remembers waking up in the bathroom and “that happening”.
She did not recall how she came to be in the bathroom. It was night-time, so she would have been in bed. She was positioned near the sink. She thought she was facing the sink. When asked what part of her body was pressing up against the sink or whether she was away from the sink she responded:

“It’s hard to remember that exact thing. It’s - the memory is more of something being put inside me and …”

The light was not on. There was “a bit of light” but she could not remember a “bright bright” light. If the kitchen light was on it could shine into the bathroom. She knew it was the applicant because there was nobody else in the house and she knew him. She stated that she must have seen him. She was at the sink. He was behind her and she “felt something being - trying to be inserted inside” her vagina. She could not recall what she was wearing. She did not have clothing around her vagina. There was “nothing stopping it”. When asked what was being inserted into her vagina she responded, “I think it was his fingers and it was - wouldn’t fit, so … it hurt and that’s why I think this time it stood out”. She did not recall any other feelings except it hurting but she still was not scared of the applicant.
Three photographs of the bathroom were tendered and became exhibit C and a photograph of the stove showing the doorway to the bathroom became exhibit D.

Count 3

The complainant then described the facts in support of count 3. It was night-time. She does not know how old she was, what time of the year it was nor what year she was in school. She was in the loungeroom:

“… my memory is Chris putting his fingers inside my vagina and this stood out to me - I believe I have this memory clear … because it was hurting. And when it hurt me, I would tell him that it hurt and he would stop for a bit and then he would lick his fingers and try again.”

This incident occurred on the lounge. She could see the hallway. She then clarified that it was either on the lounge or on the floor; a position where she could see the hallway. It was an “L”-shaped lounge – it maybe had five seats. The lounge was quite close to the floor. She was lying on her back. There was nobody else in the room. She guessed her mother was in bed; she does not know where her mother was, but not in the lounge room.
When asked whether she could see his hand she responded:

“I don’t have a memory of a vision. It’s more the feeling.”

She thought there was more than one finger because it was hurting. She does not recall the light being on. He was next to her, not on top of her. It was hard to say how many times he tried to insert his fingers. She said, “[i]f I think about my childhood, I think that he did these things to me many, many times …”. She did not know how many times he did on this occasion. She did not recall what she said to him when it hurt but he understood, as he would stop for a bit and try again.
A copy of exhibit A with the lounge drawn on it became exhibit E. Three photographs of the applicant on that lounge became exhibit F. Two further photographs of the applicant on the lounge became exhibit G. Two photographs of the applicant and Carol, at Carol’s sister’s home in Lewisham, were tendered and became exhibit H. A photograph of the applicant and Carol, with Carol wearing the bracelet the applicant gave her became exhibit I. Two photographs of the bracelet showing the engraving, “To Carol, With All My Love Chris 25.12.87”, became exhibit K.

Further evidence of the complainant

The complainant was asked whether there were any other incidents she remembered and she replied that she was not able to be specific enough to give evidence of other incidents. Although she has a memory of another incident on the bathroom floor, it was not clear enough to “go into detail for Court”.
When she was at Tempe High School the family moved home. They briefly resided with her aunt in Lewisham whilst their new home in Casula was being readied. She moved to Casula High School. She did not like it. One day she had truanted from school and saw “the counsellor” at Casula High. She did not remember their name or gender nor whether there was one or two of them. She accepted it would have been between August and September 1991. She told the counsellor that, “mum’s boyfriend had been touching me”. The person told her that she should tell her mum, so she did. The complainant does not recall her mother saying anything at that time.
There was another time after that when the applicant was there, and her mother confronted him about the allegation. The complainant described that the applicant was “very upset. He was actually vomiting and crying and saying things like he’s going to go to gaol”. She remembered that afterwards, her mother told her not to tell anybody. She could not recall the exact words that her mother said to the applicant, but the complainant had told her mother that the applicant was “sexually abusing” her. She does not recall seeing the applicant vomit, but she could hear him from the bathroom. It sounded like vomiting. The complainant said she felt “really bad” for the applicant and that generally she got on well with him. He was always nice to her, and he made her feel special. He treated all three of them the same, but she felt like his favourite.
The first person the complainant told about the offences was her friend NF. They went to primary school together and he lived up the street. She was still living in Tempe when she told him that the applicant was “touching” her. She cannot recall the exact words.
She also told her friend VK who she went to High School with from years 9-12. Again, she did not recall the exact words, but she told her that the applicant had “sexually abused” her.
She also mentioned it to a third friend, JA, whom she also met in High School in Year 9. She left the school in Year 10. Again, she told her that the applicant had “sexually abused” her. She was actually not sure when she told JA about this.
She agreed that the first time she went to police was in 2019.
On 23 May 2019, she made a telephone call to the applicant which was recorded by police. Although they asked her to make the call, there was no discussion beforehand as to what she should say to him.

Cross-examination

The complainant was questioned about the timing and sequencing of the events making up the offences. She agreed that she could not recall the order in which the incidents occurred, nor could she say if they occurred over a period of days, weeks or years. The offending started sometime after her mother met the applicant, which was “before year 3” at school, and ended by the time she was at High School (Year 7). She could not be any more precise in time.
In relation to count 1, she agreed that she “had very little recollection of anything that was happening outside the car” and that her memory had been triggered by going back to the area and having a “flashback type of experience”, meaning a “very brief memory of something”. The flashback was of her hand touching the applicant’s penis in his car at night near Sydenham railway station during an outing to the video store. The complainant could recall only the pop-up headlights and colour of the car and could not say how many times she had been in the car generally, when this incident occurred, or any details of the surroundings. She had a feeling that it was her left hand that touched the applicant’s penis, but she had no visual recollection of what occurred nor for how long it occurred.
In relation to count 2, the complainant could not recall when it took place or how old she was at the time. It was night, meaning it was dark outside, and it was dark in the bathroom but not pitch black. She did not recall how she came to be in the bathroom; her recollection started with the applicant trying to put something into her vagina (his fingers or something else). The focal point of her memory was this physical sensation, as opposed to what was occurring around her. She could not recall what she was wearing nor how long the incident lasted nor how it ended. She accepted that she did not describe herself as being anywhere else other than facing the sink; although she had another memory of lying on the bathroom tiles, separate to the incident in question.
The complainant did not remember the applicant saying anything and agreed that she did not have a memory of seeing him behind her, but that he must have been. She clarified that her evidence that “there was nobody else in the house” meant “no other men”, as her mother and siblings were there. She was asked whether she assumed it was the applicant in the bathroom, to which she said, “I know it was [him].” She accepted that she did not know where her mother was during the incident but assumed she was asleep.
She confirmed that count 3 occurred at night in the lounge room. She did not recall any television being on. She accepted that her mother would have been in the house but could not say where she was; the same was true of her brother and sister. She also accepted that the house was small, and that noise travelled between the rooms. Her memory of the incident effectively started at or about the time that the applicant was trying to put his finger(s) into her vagina, and she could not recall whether she was on the couch or the floor or lying or sitting or what she was wearing. Her memory was more of the feeling of finger(s) being inserted into her vagina. She remembered the incident especially because of the pain – it “stood out”. She did not recall how the incident ended.
In re-examination, the complainant said that she was not scared of the applicant and that even if he was “doing those things”, she would not have cried out or screamed. When she told him she was in pain, he stopped and she “perceived that as him caring for [me]”.
It was put to the complainant that the events did not occur, that she had dreamed them later and that they occurred but with someone other than the applicant. She denied these propositions.
The complainant was asked further questions about the timing of the incidents and rejected the suggestion that they could have occurred solely in the first half of 1991; she believed they happened over a number of years. She agreed that she truanted from her new school, Casula High School, soon after commencing there in August 1991 and as a result saw the school counsellor. She agreed she told the counsellor that her “mum’s boyfriend” had been “touching [her]” and that this was the first adult she had confided in about this “pretty significant matter”. She did not remember him or her saying they would report the matter to the Department of Community Services.
As for the conversation with her mother after meeting with the counsellor, the complainant said that nobody else could hear them, but her siblings may have been home. She did not remember her mother saying anything. When her mother “confronted” the applicant, the complainant said she knew they were talking about the applicant touching her from the applicant’s reaction. She thought she was there for the conversation; her main memory is of the applicant being sick and crying. The word “gaol” was used. She felt bad for the applicant and her mother.
The complainant denied telling her mother that the applicant was touching her as a made-up story to avoid getting in trouble for truanting. She also denied that the applicant spoke to her directly at this time and asked, “[d]id I ever touch you?”, and she said, “[n]o”.
She never spoke with her mother about the matter again, although her mother apologised when she was dying. In terms of her complaints to her three friends, the complainant agreed she did not go into any detail, nor did they tell her to report the matter to police. VK knew that the complainant had told her mother; it was sometime around or after Year 7.
As for an occasion when the complainant went to see the applicant when she was about 16 or 17 years old to borrow money, she agreed that she did not confront him at that time about the allegations. She was not scared of him when she was young and thought he cared about her and her family.
In relation to the pretext calls, the complainant agreed that the police did not tell her what to say but that she understood the purpose was to obtain an admission from the applicant. She did not think a lot about what she was going to say. She was asked about her answer, “[y]es”, to the applicant’s question, “do you still see your mum?”, and it was put to her that she knew this was misleading as her mother had died before the time of the call. She said that in her mind she did still see her mother, at the cemetery. She again denied that she had made up the allegations or convinced herself that they were true.

The three “complaint” witnesses

The complainant complained to three friends in the period shortly after the period of the alleged offending.
NF attended primary school with the complainant, and they were childhood friends. He gave evidence that when he was in Year 6 or Year 7, but more likely primary school, the complainant told her that the applicant had “touched” her and made her feel uncomfortable. He gave evidence that the complainant told him that the applicant “was touching her, making her feel uncomfortable. She didn't want to be in the same house when he was there and all that kind of stuff”, and that:

“[s]he was in tears and she - she couldn't. She - you know when you start crying when you're young and you - you start stuttering your words and stuff like that, so mostly she was saying that he - he's been touching, there's - he's been making her feel uncomfortable …”

VK is a childhood friend of the complainant. They attended Tempe High School together. VK gave evidence that in the holiday period between years 7 and 8, the complainant disclosed to her that she had been “sexually abused” when she was younger on occasions when the applicant would stay over. VK gave evidence that, in respect of the complainant:

“… on occasions when he would stay over, late at night when everyone was sleeping, that he would go into her room and either sexually assault her in the room or remove her from the room and take her into the bathroom.”

JA was the third witness who have evidence of complaint. She met the complainant in Year 9 at Birrong High School. They became friends and remained so after JA left the school about one year after they met. At some stage while they were at school the complainant told her that the applicant had sexually abused her and touched her inappropriately. Her evidence was that the complainant told her:

“… her mum’s boyfriend, Chris, had sexually abused her, had touched her, so - inappropriately, on quite a few occasions. Some of the occasions were when Chris would come over to her mum's house and he'd have her on her - on his lap, and he'd touch her, and he'd also get her to touch him. And sometimes also she'd go in the car with him to go to the video shop or to get some food, and it would happen there too … [s]he didn't have specific sort of timeline, but she just said, ‘Yes, it's happened on quite a few occasions when I was younger.’ She didn't really give an age.”

VK agreed that the topic had come up again over the years stating, “[o]bviously it's not something you ever forget, so there has been talk over the years”.

Stephen Whyte

Stephen Whyte was the school counsellor at Casula High School from 1989 to 1999. He has no memory at all of the complainant and the relevant records for 1991 are no longer available. He gave evidence that, as at 1991, if a child disclosed that they had been sexually abused it would be mandatory to report it to the Department of Community Services. If a child complained to him, he would not have told the child to tell their parent; he would have reported it.
He also gave evidence that if a student had truanted, they would have been referred to the home/school liaison officer at the school rather than to him.

Family members

The complainant’s sister

The complainant’s sister confirmed that the family commenced living at the Tempe house when she was three (so the complainant would have been five years old). She moved to Casula with the complainant, their mother and brother when she was about nine or ten years old. She described the layout of the Tempe house.
She could not remember how old she was when she first became aware of the applicant but his relationship with her mum lasted several years and continued for a little bit after the family moved to Casula. The applicant would visit her mother at the Tempe house about two to three times a week. This included Monday evenings, Saturday afternoons and either a Wednesday or a Friday.
After her parents separated, she and her siblings would go and stay with their father. She thought it could have been Wednesday nights and every second weekend. It would have changed over the years.
She saw the applicant with a red sports car at the Tempe house. It was possibly a Nissan and its front headlights popped up. She could not remember ever being in the car. When she was shown exhibit G, she recognised the applicant.
She was not cross-examined.

The complainant’s father

The complainant’s father gave evidence generally consistent with other family members as to dates and the occasions his three children would come to stay with him. He wanted to have the children every Wednesday so that he could keep regular contact with them. He moved a number of times but always lived in suburbs close to Tempe. He was aware Carol was seeing the applicant.
The complainant came to live with him twice during her teenage years, in 1992 and 1996. When she came to live with him in 1992, he asked her why and she said, "I can't stay with mum.” He assumed that there had been an argument. In 1996, she was in Year 12 and her best friend was VK.
In cross-examination he agreed that he had never met or spoken to the applicant and that Carol had never told him about her relationship with the applicant. He heard about it through his children and neighbours. He said it was on a date in 1985, 1986 or 1987. He remembers that his relationship with Carol ended in 1984 and when he heard of Carol’s relationship with the applicant. He thought it had not taken long for her to “have somebody there”.

The complainant’s brother

The complainant’s brother gave evidence generally consistent with other family members as to the relevant timeline although he had little memory of the applicant visiting the Tempe house. When he lived in Tempe, he shared a bedroom with his sisters. They had a bunk bed, and he had a single bed. His first memory of the applicant coming to the Tempe house was probably when he was in Year 3 or 4. He was maybe about eight or nine years old (being 1990-1991).
He remembered the applicant having a car which was a Nissan Patrol four-wheel drive. He had one vivid memory of the applicant being in Tempe, just from a photo in his photo album. He had more memories at Casula as he was older. His relationship with the applicant was “fine”.

The complainant’s aunt

The complainant’s aunt, whom I shall call Janet, gave evidence that Carol lived with her three children in Tempe in the 1980s until 1991 when they temporarily moved to live with her in Lewisham for a few months before they moved to Casula.
She could not remember exactly when Carol started seeing the applicant, but she was “fairly certain” it would have been at least between 1985 and 1986; although they were “definitely” in a relationship between 1984 and 1986. She met the applicant several times, including at the Tempe house. The applicant would attend the Tempe house about three times a week on either a Monday, Tuesday, or a Thursday. It was a regular pattern.
In 1991, Janet had quite regular contact with Carol as Carol babysat Janet’s daughter. The applicant would be there when Janet finished work and attended the Tempe house between 6.00-6.30pm to collect her daughter. She would not have usually been at the Tempe house later than that. She was “pretty sure” that the applicant had a Nissan 300ZX car. It was red and had pop-up headlights. She also saw he had a tow truck a couple of times. When Carol and the children stayed with her in Lewisham, the applicant visited a few times. She recalled that the complainant was “very quiet”.
In cross-examination she clarified that there were not specific days that the applicant visited Carol; rather she had just given an example of the fact that he would come over a few days a week. She did not believe he attended on weekends; he may have. She could not recall the exact days, but she was aware that it was a regular pattern, two to three days a week. It was possible that he visited on a Saturday, but she was not aware of that. To her knowledge, the applicant did not ever stay the night at Carol’s home.

Police evidence

Detective Senior Constable Paula Gardner (“the OIC”) commenced an investigation after meeting with the complainant. She outlined her inquiries which included into relevant motor vehicles. Although she was able to identify that the applicant owned a red sports vehicle from 1991 to 1998, the Roads and Traffic Authority records did not commence until 1991 so she was not able to establish the time in which the applicant first received ownership of the red sports car. That red sports vehicle was a “stag” (not the vehicle described by the complainant).
The OIC arranged for the complainant to telephone the applicant.
When she spoke to the accused about ownership of that vehicle, he agreed to owning a stag but could not remember when he owned it. The applicant declined to be interviewed. The OIC also spoke to Mr Whyte.

The pretext calls

The complainant telephoned the applicant on two occasions on 23 May 2019. Both conversations were recorded by police. Given the significance of what the applicant said to the complainant I propose to extract the contents in detail.
The first recording (exhibit N) recorded the following conversation:

“…
[Donna]:   Chris, my name is [Donna].
Applicant:   And?
[Donna]:   From a long time ago. I just needed to, I just need to talk to you, ‘cause I need to get a few things off my chest.
Applicant:   Right.
[Donna]:   I need you to know what you’ve, what you did to me was not O.K and the consequences that I’m living with now and the impact it’s had on my life.
Applicant:   Where did you get my number?
[Donna]:   I looked it up. What’s the difference of that, I just need you to hear what I have to say.
Applicant:   O.K.
[Donna]:   O.K.
Applicant:   Yes, I’m happy to hear what you have to say.
[Donna]:   Do you know what you did to me?
Applicant:   No, not really.
[Donna]:   Yes, you do.
Applicant:   Is there somewhere I can meet you and we can discuss this?
[Donna]:   No, I don’t want to meet you.
Applicant:   Oh O.K. All right… That ---
[Donna]:   Do know what you’ve don’t to my life Chris, honestly, from, from when I was a little girl you abused me and it’s had such a bad impact on my life, my whole life has changed because of it. You were someone that was supposed to be in my family and care about us---
Applicant:   Ah hmm
[Donna]:   --- and care about my mum.
Applicant:   A hmm.
[Donna]:   You know.
Applicant:   That’s, it’s, I, I, I, look I’m sorry, do you mind ringing me back in half an hour’s time? I, I’d be happy to talk you as long as you wish then. I’m not gunna run away but uh if you, if you’d like to give me half an hour, I’d be more than happy to talk to you.
[Donna]:   O.K.
Applicant:   Can you do that please?
[Donna]:   Yeah.
Applicant:   O.K. Thank you.”

The second recording (exhibit O) was as follows:

“Applicant:   Hello
[Donna]:   Hello
…
Applicant:   Look, I’ve been, I’ve been, I have been trying to track you down for the last three months, it’s been, uh, I’ve, I’ve always cared about you, I don’t know what I’ve done and it’s, if I’ve done what I say you, uh, uh, I’m really very sorry and if you tell me what you want I’ll agree to make amends, I will do whatever you ask. What more than that can I say?
[Donna]:   You can’t make amends Chris, what you’ve done to me.
…
[Donna]:   I just want, I , I just need to hear…
Applicant:   I, what? Tell me what I have done. I, I really don’t remember [Donna], I, I…
…
Applicant:   … let me give you a little bit of the inside history of me …
…
Applicant:   I find out tomorrow whether, whether I have cancer or not. But uh I, look I currently have a pacemaker, I’ve had a lot of heart problems, I’m lucky to be alive at, to this day so but if, tell me what I have done to you. Uh, I, I’ve been --- a period of that time uh when I was with your mother, I don’t know what I have done but uh…
[Donna]:   O.K. So what you have done is…
Applicant:   … just tell…
[Donna]:   … while I was a little girl living...
…
[Donna]:   … with mum, …
…
[Donna]:   … you have touched me, you have, you know in my private areas.
Applicant:   Did I have sex with you?
[Donna]:   No, I don’t think you had sex because it hurt me …
…
[Donna]:   --- and I remember ---
…
[Donna]:   --- telling you that it hurt me, and you would back off. I remember you ---
…
[Donna]:   --- making my hands touch your penis.
Applicant:   Yeah, where, when, I don’t recall that, I’m sorry, I don’t recall that, but uh if, if you say, if you say so, I can’t for the life of me think of any reason why you’d want to lie.
…
[Donna]:   No, how can you not recall that? How, see this is…
…
[Donna]:   to, to me, this, this is, this is what I want you to understand, you, ---
…
[Donna]:   --- you, you can’t recall it but his is something that has affected my whole life.
…
[Donna]:   My relationship with my mother, you know, ---
…
[Donna]:   --- when, when I told my mum and she told you and you were sick ---
…
[Donna]:   and you were apologising and I thought, I thought that you know, that’s it, she won’t even see you any more and she continued to see you. You know, like I would ---
Applicant:   Well, the relationship with me and your mother was pretty precarious, it was sort of a strange relationship that uh, …
[Donna]:   Yeah, because you were ---
Applicant:   --- that uh, yeah, I was. Yes. And she knew that. Yeah.
Applicant:   But uh, what do you want from me [Donna], as I’ve always cared for you but I don’t for the life of me I can’t bring myself to believe that I have done you wrong. If I have ---
[Donna]:   How can you not remember?
Applicant:   --- I’m very sorry.
[Donna]:   [The applicant]? You, you didn’t do it to me just once.
Applicant:   I don’t, I just don’t.
[Donna]:   It wasn’t even just once. It was many times.
Applicant:   Really?
[Donna]:   How can you not even remember?
Applicant:   I just, I don’t.
…
Applicant:   I, I just don’t believe that I could do something like that. That uh I was, that, that, or that whether, if I was, if I was capable of doing something like that, I don’t have a gun but if I had a gun, I’d blow my brains out. I’ve always been against that sort of thing…But uh ---
[Donna]:   I just can’t believe you don’t remember to be honest.
Applicant:   …Yeah, well, well I, I, I can’t, I can’t ---
…
Applicant:   That, that I, ‘cause I’ve always been against that
Applicant:   Look if I, if I, if I’ve done that to you I’m terribly sorry, and it’s definitely not O.K. It’s definitely not O.K. But uh, I, I, I, I ‘ve had, have a daughter and I have grandchildren and if someone done that to my, one of my daughters or grandchildren I would, I would, oh well I would hate to think what I would do to them… it’s definitely not O.K. [the complainant] and I … all I remember is uh really caring for the three of you kids but … I have searched for you on the internet ‘cause I wanted to see how you were getting on and uh but if you’re telling me that I’ve done those things then I, I, I don’t know, I, I, …I wasn’t alive anymore…
…
Applicant:   … Is there any way I can meet you for a coffee or something?
[Donna]:   No.
Applicant:   I’ll come and, I, I promise I will not ---
[Donna]:   Don’t ask.
Applicant:   --- lay a finger on you…
[Donna]:   I can’t see you, you’ve taken, you’re not understanding that what you’ve done has affected my life ---
…
[Donna]:   --- all the time ---
…
[Donna]:    --- I’s something that I’s always with me.
…
[Donna]:   It’s always affected the relationship with my mum.
…
Applicant:   Look I, I, I, would pray to God that he’d struck me dead here and now if I had ever done it to anybody for that matter…look I haven’t had a, a good life since I’ve left the uh, the work and what have you, and …I’ve only just retired and through ill health and I’m not trying to put a sob story on you ‘cause that uh, it doesn’t require that. But uh ---
…
Applicant:   --- I don’t know what else to say to you but uh, I’m sorry I couldn’t talk to you earlier, but I just had too many people around. … I don’t know what ---
…
Applicant:   --- you want me to do [Donna] … and I’m, I’m sorry to hear that uh this has sort of uh stuffed your life up, I’m very sorry to hear that. But, uh, tell me what you want from me.
[Donna]:   I don’t want anything from you….
…
[Donna]:   It was like … you were supposed to by you know, be good to us and you did that to me.
…
[Donna]:   And it’s
…
[Donna]:   --- something that can never be changed. You know, it’s ---
Applicant:   Unfortunately not, but uh ---
Applicant:   --- nothing can change that period, if I could change that period of my, my life I’d do it in a second but I can’t… I honestly don’t remember doing those things and I, I don’t remember a lot of that period at the time…. I was working a fair bit. And … I’m glad that period of my life is over and, and to be quite honest I wish this period was over too, it’s that bad I was going to … I should say this cause I know it’s … the sound of this but I loved you.
…
Applicant:   I loves youse at the time … to think that I could do that to you all, I just … I dunno, I dunno…
…
Applicant:   Well what, what have you been up to anyway [Donna]? How are you … apart from that? I’ve, I honest, I think about you. But uh on the, on your brother and sister, they’re, they’re … that’s a bad thing.
…
Applicant:   I think it was … that’s bad
…
[Donna]:   All I can say is, I just, I dunno, what, what you, you’ve done can ever be erased from me, it’s affected so many parts of my life, even though for you, you’re saying you can’t even remember like ---
…
[Donna]:   Like why do you think, think that sort of man, you’ve kept your hands to yourself and not really being in anybody else’s lives --
…
[Donna]:   --- in that way. You know for you to even say, ---
…
[Donna]:   --- you can’t remember…
Applicant:   I’m sorry, I, I, don’t do, uh, I wish for your sake, I, I could say yes and who should get over that but I wish I could be I can’t because there’s a lot of blood from that period in my life … so I just can’t believe that I would have done that because I’ve always detested that sort of thing.
[Donna]:   Well, I remember when my mum told you, you were vomiting and saying you’re sorry.
Applicant:   … see I don’t even remember that…
[Donna]:   It was at Casula.
…
Applicant:   Where, where’s uh the place that I was touching you? Was that at Casula?
[Donna]:   No, at Tempe.
…
[Donna]:   Not just one time.
…
[Donna]:   How can you not remember? It wasn’t even one time, it was too many times.
Applicant:   Wow. Wow.
[Donna]:   You know, and I, I think I blocked so much out, in my head, it’s like it wasn’t, it wasn’t even for a short time, it was years. We were there for a few years, you were seeing my mum for a few years.
Applicant:   … I don’t recall how long but I do recall it was a while. I remember helping you shift from uh Tempe to uh Casula.
[Donna]:   Yeah, that’s when I told my mum.
…
[Donna]:   Yeah, it was so my mum could keep seeing you…
Applicant:   I, as I say, the relationship me and your mother had, had, was a bit, a bit weird anyway. But uh, but I, I can’t even explain that to myself these days. I just cannot explain that to myself, what that was all about. But uh, anyway.
[Donna]:   Well I hope you’ve changed.
Applicant:   … Well I, I, well I certainly have, I just can’t believe I was ever that way [Donna], uh look if ever you want to talk to me again…free to give me a ring, I’m happy to talk to you. I’ll always ---
…
[Donna]:   I don’t want talk to you.
…
[Donna]:   To, to me you’re someone that hurt me the most in the world.
…
Applicant:   … you’re obviously talking to me to get, get it off, off your chest so I, I don’t know. If you were, but if it makes you feel better, if you want to beat me for Christ’s sake I, I’m happy for you to beat me…
Applicant:   What can I say? I, I can’t say that I remember doin’ it, if that would make you feel better, I just can’t do that uh, uh ‘cause I don’t, I honestly don’t. Something like that, it, I dunno, I, I, if I thought I done something like that I would get a gun to my head and I’d put myself down ‘cause there, I believe that’s what people like that deserve.
[Donna]:   Well I can tell you, you did.
Applicant:   Oh well.
[Donna]:   And you did more than one time.
Applicant:   Yeah.
[Donna]:   You did it more than two or three or four times, you did. Many times.
Applicant:   Wow. I’m sad to hear that, sorry to hear that.
[Donna]:   And you used to, you know, take me, you took me in the car.
Applicant:   I might, I was never alone with you in the car.
[Donna]:   We went to get a video or something.
Applicant:   Oh O.K. Now I’m sorry. I do, I do not remember…
…
Applicant:   [Donna] where do we go from here?
[Donna]:   There’s nothing that I want from you…
…
[Donna]:   No. Maybe an apology or some kind of explanation or, I don’t know, something but ---
Applicant:   I, I can’t explain what I don’t remember but if you’re telling me that I do, I profoundly apologise. I am very, very, very sorry if I’d done that, I, I don’t deserve to be on the face of this earth, I do not deserve it. And as I say, I, I, I pray to God that I get a bad result tomorrow and…

…
Applicant:   … do you still see your mum?
[Donna]:   Yes.
Applicant:   … not that you need to tell me, but is she O.K?
[Donna]:   No, I don’t need to tell you anything about mum.
Applicant:   No, O.K. That’s fine. … I have no right to be involved in any of your, any of ---
…
Applicant:   ‘Cause I always cared about you, this is what I can’t understand, that uh, If I’ve done these things to you. You know, I don’t know. You’re blowing my mind right out of me, uh I mean the ---
[Donna]:   How old are you now?
Applicant:   I’m 70. …
Applicant:   If I’ve done, if I’ve done half of what you’re telling me I’ve done I’m truly sorry but uh, and as I say, if I have I, I, I do not deserve to be on this earth and I hope that I do get a bad result tomorrow…
…
Applicant:   … Why did you let it go for so long?
[Donna]:   Well, because it’s, it’s not something easy to deal with ya know.
…
[Donna]:   It’s something you don’t want to think about
…
[Donna]:   You don’t want to deal with that.
…
Applicant:   … as I say to you and you have no reason to believe me but I promise you and I swear to God that I don’t even believe, know that I have done it to you and if I thought that there, no, there’s just no way. There’s no way.
[Donna]:   Well, I’m telling you you have so you can sit with that and ---
Applicant:   And look [Donna], I, I have no reason to believe that you would be lying to me ---
…
[Donna]:   I’m not lying. ‘Cause you know.
…
Applicant:   We always had, we always had a reasonably good relationship I thought.
[Donna]:   Yeah, because I wasn’t going feral and, and you ---
…
[Donna]:   You took advantage of me.
…
[Donna]:   It’s so twisted and it, in my head, it messes up your head. That’s what I need you to understand.
…
[Donna]:   --- It’s something that, this is twenty or thirty years later, thirty something years later, this is
…
[Donna]:   That’s something so little to you that you can’t even remember, I have to live with every day.
…
Applicant:   --- just, just uh tell me what you want me to do. Tell me what ---
…
[Donna]:   If you can sit with it today and feel a bit sick it’s, at least with yourself…
Applicant:   Oh don’t worry, I’m already feeling sick. I’m already feeling sick but uh it’s not something that I’m happy to hear about but uhm but especially when I’ve uh been so, so much against that sort of thing. I’ve always been against it.
…
Applicant:   Look I don’t blame you, it uh, if it’s so I can understand you would be tormented about it if uh, and it’s not right. As I say if there’s something I can do for you to make amends let me know.
…
[Donna]:   … What could you possibly do?
…
Applicant:   Look, as I, I, if it’s the case [Donna] I’m sorry and I hope you find some closure in it that, I know it’s not a nice thing that for me to hear of it but uh, but anyway, as I say, what can I say and what can I do? I don’t know what to say and I don’t know what to do.
…
Applicant:   … I wish there was a magic answer there.
[Donna]:   Maybe you, you know the truth in, in your head. I, I don’t believe that you don’t remember, so I hope that you know.
Applicant:   Well, I’ll certainly ponder on it. I’ll certainly ponder on it and I’m sure it will keep me awake nights thinking about it…
…”
(Emphasis added.)

The applicant’s case

The applicant gave sworn evidence to being married at the time of the alleged offences but having had an extra-marital affair with the complainant’s mother for some years. He agreed that he gave the complainant’s mother the bracelet dated 25 December 1987 and accepted he was in a relationship with her at that time.
He stated that he always met Carol at her house, usually on a Monday, “definitely” on a Saturday and, if the children were not there, on a Wednesday. He agreed that when he visited Carol’s house, he “always” had the Nissan 300ZX sports car which had pop-up headlights. He came into possession of the car in 1984 or 1985.
He would usually leave Carol’s home at about 11.30pm on a Saturday night and 11pm on a Monday night because he had to work the following day. He agreed he had some contact with the children when he went there during the week. He adamantly denied ever reading to them or putting them to bed as he did not even do that for his own children.
He stated that he did not recall Carol ever sleeping when he was there. He denied ever drinking to excess when he was visiting Carol as he had to drive home. He accepted that it was possible he had spoken in Italian with the complainant. He denied paying any special attention to any of the three children stating, “I cared for the three of them”. He saw the complainant’s mother less when she moved to Casula as it was too far away. He thought the relationship ended in about 1994 when his mother died. He denied ever driving the complainant alone in his car.
He stated that he would only shower at Carol’s place when the children were not there.
He remembered an occasion when the complainant was caught truanting. Carol confronted him on a Saturday afternoon and told him that the complainant had said he was “having sex with her”. The complainant was at Casula High by then, so this was in the period from August to October 1991. His evidence was that nobody else was present at this time. He was asked what he said to Carol, and he responded as follows:

“Q. What, if anything did you say to [Carol].
A. I told her ‘no, no way’. Then we were sitting on the lounge at the time and we had – I can’t remember the conversation we had but I remember saying to her, ‘Would you mind if I spoke to [Donna] with you present?’ And she said, ‘Yes.’ And I can’t remember if we – if she called [Donna] into the lounge or into the kitchen, I’m not sure, but I spoke to [Donna]. Her mum was present. I said to her, ‘Mum says you told her that I’ve been sex with you’, ‘Have I had sex with you?’ And she said, ‘No.’ I said, ‘Have I ever attempted to have sex with you?’ She said, ‘No.’ I don’t know how that conversation ended but that was it.”

He continued the relationship with Carol after this discussion for another 12-18 months.
About two to three years after he ended the relationship with Carol, the complainant contacted him and asked for money. He agreed to meet her in Arncliffe. She sounded “a little bit upset”. He gave her either $50 or $100. He gave her the money because he cared for her.
He was asked about the recorded telephone conversations with the complainant. He stated that he asked her to call back because he thought his wife might hear the conversation and he did not want that. He was in his home office for the first call. He went downstairs and into the backyard for the second call. He agreed that he knew by now that she had made an allegation against him. He was being truthful when he told her that he had been trying to track her down. When he said to her, “I’ve always cared about you”, he meant he had cared about her family.
When he said to her, “I don’t know what I’ve done”, and that he was “really very sorry and if you tell me what you want, I’ll agree to make amends”, he explained that she sounded “a little distressed” and he wanted to appease her “just to keep her calm”. He denied that he was apologising for anything in particular at that time. He explained that he agreed to make amends just to keep her “calm, happy” because he was worried that the affair would be exposed to his wife.
When he asked the complainant what she wanted during that call and stated, “I’ve always cared for you”, and “I can’t bring myself to believe that I have done something wrong,” he was referring to the allegation of sexual abuse. At that time, he had a recollection of the conversation in Casula in 1991.
After 1991, he had had no contact with the complainant about that issue before the telephone calls that day. He did not know why he used the words, “I just don’t believe I could do something like that”. He explained that it was true that he had been searching for the complainant and her family (on the Internet) because he wanted to know how they were getting on.
He vehemently denied vomiting during the conversation (where Carol put the allegations to him) in 1991.
He explained that he apologised to the complainant during the calls as he was just trying to keep her calm and she “sounded like she was getting more and more excitable”. He was not apologising for sexually assaulting her.
He otherwise denied each allegation.

Cross-examination

The applicant was asked about his explanation in the pretext call that he was trying to keep the complainant calm and explained that he thought she might have attempted to have hurt herself. He agreed that he had no knowledge of the complainant ever hurting herself or attempting to do so. He stated that he was worried about the affair coming out. He stated that he was not worried about the allegations because they were not true. He agreed that that was not what he said to the complainant.
He stated that he did not know why he did not deny the allegation in the pretext calls. He agreed that he was emphatic in his denials before the jury but not in the calls with the complainant but stated that he had a “few more things” going on in his mind during the call. When asked how telling that he could not remember would keep her calm he responded that he was just trying to appease her. He agreed that he did not once suggest to Donna that she had made it up, even though he knew what she had told her mother in 1991.
He agreed that he could not dispute that his relationship with Carol started earlier than the date on the bracelet (25 December 1987).
He was adamant that Carol had never fallen asleep when he was there. He was also adamant that there was never a time the complainant was in his car alone with him.
As for giving Donna the money two or three years after she alleged to her mother that he had sexually assaulted her, he explained it was because he “cared for her”. When asked whether he still cared for her even though she had accused him of sexual assault, he answered “[a]bsolutely”.
He stated that he was more worried about his wife finding out about the affair than the allegation of sexually assaulting a child.
He agreed that the reason he asked Donna how he could make amends in the pretext call was so that she would not go to police. He stated that he kept talking to her because he was concerned about her wellbeing. He denied he told her about his pending results to make her feel sorry for him so she would not report the mater to police. He agreed that his memory was “reasonable” at the time of the call; he certainly remembered the 1991 conversation

Summing up

Her Honour gave the following warning to the jury with respect to disadvantage to the applicant as a consequence of delay:

“DIRECTION ON DISADVANTAGE AS A CONSEQUENCE OF DELAY
There is a warning I must give you relating to this issue of the delay in any complaint being made by the complainant and the accused being made aware of the allegations. The focus is on the consequences of the delay as distinct from mere delay. It is most important that you appreciate fully the effects of the delay and the specific difficulties encountered by the accused in testing the evidence of the prosecution or in adducing evidence in his own case. The period charged is a period of almost five years. The evidence at trial concerns a period of time up to 35 years ago. This is a considerable passage of time. The accused was not made aware of any specific allegations until his arrest in May of 2019.
The complainant said she spoke to her mother in 1991 about the accused touching her and that the accused said he would go to gaol. The accused said this did not occur. He said the complainant did complain to her mother that he touched her when she was in trouble for truanting, but that she then retracted it. He said it was never spoken of again. The complainant’s mother died in 2013, and there is no evidence from her about the movements in the house and the terms of the complainant and the accused’s response. There is no dispute that in 1991 the complainant did tell her mother about the accused sexually abusing her. What is in issue is what was said in the presence of the accused. The passage of time has made it impossible to locate the home school liaison officer to ascertain if the complainant did make a complaint in 1991 and, if so, what was said.
The witnesses who were told of sexual abuse were unable to be precise about the timing or content.
When you consider the complainant’s evidence, you should bear in mind that the fact that she no longer has a memory and could not answer a number of questions made it difficult for Mr Johnston to challenge her account or obtain further evidence from her. One of the purposes of cross-examination is to allow the defence to test evidence adduced by the prosecution for the purpose of seeking to demonstrate weaknesses in that evidence or to elicit further material to raise a doubt with respect to the allegation. The defence is substantially unable to do that in this case for reason that the complainant indicated she had no memory of the incidents beyond her account of the act and some additional points.
The complainant’s inability to recall precise details of the circumstances surrounding incidents makes it difficult for the accused to throw doubt on the evidence by pointing to circumstances which might contradict it. Had the accused learned of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainant. Had the accused learnt of the allegation at a much earlier time, he may have been able to find witnesses or items of evidence that might have contradicted the complainant or supported his case or both. He may have been able to recall with some precision what he was doing and where he was at a particular time or particular periods and to have been able to bring forward evidence to support him. Memories may fade and become distorted by time. Accordingly, because the accused is put in this situation of disadvantage, he has been prejudiced in the conduct of his defence. As a result, before you can convict the accused, you must give the prosecution case the most careful scrutiny.”

The jury retired to deliberate at 1pm on Friday, 5 March 2021 and delivered its verdict at 4pm on Tuesday, 9 March 2021.

Application for a permanent stay

On 13 August 2020, the applicant filed a notice of motion before his Honour Judge Ingram SC seeking, inter alia, that the indictment be permanently stayed. The applicant relied on the affidavit of his solicitor, Gayanie Walton, affirmed on 13 August 2020 and the written submissions dated 12 August 2020. The Crown relied on written submissions dated 16 August 2020.
His Honour heard the application on 17 August 2020 and on 18 August delivered his reasons for refusing the application.

Reasons of Ingram SC DCJ

His Honour set out the Crown case and relevant procedural history. He went on to summarise the submissions in support of the application for a permanent stay as follows:

That the timeframe in the indictment was too broad being almost 5 years.

That 33 years has elapsed since the time of the alleged offending.

That not one of the indictment, the Crown case statement or any of the witness statements disclose sufficient particulars to allow the applicant to present any defence.

His Honour noted the applicant’s position that the range of dates disclosed is unreasonably broad and unfair. It was submitted that it precluded the accused from having a fair trial and would bring the administration of justice into disrepute.
It was further submitted that the delay resulted in significant forensic disadvantage to the accused by reason of several factors including the diminution of the complainant’s memory. Reliance was also placed on the fact that the complainant’s mother had died. It was submitted that a warning pursuant to s 165B of the Evidence Act1995 (NSW) in relation to the significant forensic disadvantage would be insufficient in the circumstances of this case.
His Honour went on to set out the relevant legal principles in some detail citing Jago v District Court of NSW (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Adler v District Court of NSW (1990) 19 NSWLR 317; Barton v Regina (1980) 147 CLR 75; Regina v Moore (2015) 91 NSWLR 276; Regina v RD [2016] NSWCCA 84; S v The Queen (1989) 168 CLR 266; Regina v Littler [2001] NSWCCA 173; and Jackmain (a pseudonym) v Regina [2002] NSWCCA 150.
In refusing to grant a permanent stay his Honour noted that the focus of the applicant’s submissions was the prejudice to him to the exclusion of other considerations such as the public interest and public confidence in the administration of criminal justice. He was satisfied, however, that the applicant accepted that those broader factors weighed against the grant of permanent stay in the applicant’s matter.
His Honour referred to the allegations of “serious child sexual assault offences” against the applicant and stated his satisfaction that the factors of public interest and public confidence weighed heavily against a permanent stay being granted. In considering the issues of delay and prejudice to the accused, his Honour noted that some evidence was no longer available but went on to observe that the prejudice could be cured either through the evidence of a Crown or defence witness and/or submissions of senior counsel appearing for the accused and/or by directions. His Honour then concluded in the following terms:

“Having regard to all the relevant circumstances including those relied upon by the accused, the court was not satisfied that the accused had discharged the heavy burden of establishing that the continuation of the prosecution is inconsistent with the recognised purpose of criminal justice and should be stated as an abuse of the court process. Further, the court was not satisfied that there is a fundamental defect going to the root of the trial which is of such a nature that there is nothing that a trial judge can do to relieve against its unfair consequences.”

Ground 1 – the stay

Applicant’s submissions

The applicant acknowledged that the decision whether to grant or refuse an application for a permanent stay involves the exercise of a discretion by the trial judge. Therefore, on appeal, “some error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40”. The applicant submitted that “it was not reasonably open to his Honour to refuse the permanent stay application having regard to the breadth of the indictment and the issues flowing from the delay”.
The applicant then set out some principles relevant to the determination of applications for a permanent stay of criminal proceedings (discussed below at [130]-[135]).
The applicant submitted that the date range on the indictment was “an extraordinarily broad period spanning almost 5 years”, giving rise to incurable difficulties, being the following:

“(1). The circumstances of the alleged offending were distinctly vague.
(2) There was an almost complete lack of any details of events, facts or circumstances surrounding the alleged offending.
(3) The Crown case was not even able to particularise the sequence of alleged acts in counts 1, 2 and 3 (that is, which alleged at occurred first, second or third).
(4) The lapse of time and the impact on both memory, and availability of evidence.
(5) The applicant was not in a position to properly understand the time that the alleged offences were said to have occurred.
(6) The applicant was hamstrung in his ability to properly challenge the Crown case and effectively test prosecution evidence.
(7) The applicant was, in effect, limited to a blunt and basic denial of the allegations (which a jury may well have found unconvincing as a result of the rudimentary nature of the simple basic denials).”

I am unable to accept the applicant’s contention that there were “unusual and extraordinary circumstances” in this case resulting in an inability to properly defend himself which meant he could not receive a “fair trial”. It is to be accepted that he had suffered forensic disadvantages on the bases I have already outlined. But I am satisfied they were cured by the directions provided pursuant to s 165B of the Evidence Act. It is also to be accepted that the applicant defended the allegations by “blunt and basic denials of the alleged events”, but that does not mean that he could not and did not receive a fair trial.
I have considered the submissions advanced on behalf of the applicant in the context of the way in which the trial unfolded. There is a high bar for the granting of a permanent stay. The applicant has failed to establish any error in the decision of Judge Ingram SC which resulted in an unfair trial. No miscarriage of justice has been identified. As the High Court observed in Edwards at [31]:

“[31] Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.”

I would not uphold this ground.

Ground 2 – unreasonable verdict

Applicant’s submissions

The applicant set out the relevant principles when determining whether a verdict or verdicts are unreasonable under s 6(1) of the Criminal Appeal Act. The focus of the applicant’s submissions on this ground was that the Crown case relied wholly on the complainant’s testimony and the evidence of complaint, and that the overall quality of the evidence was so lacking that this Court would be satisfied that a jury acting reasonably ought to have entertained a reasonable doubt in respect of each count. The applicant then detailed his complaint by addressing the following issues in turn.
First, the applicant raised “issues with the evidence of the complainant”. The applicant submitted that the recollection of the complainant was “exceptionally vague and lacking in particulars”, noting especially her inability to give any meaningful detail about time, sequence, or circumstance. The applicant characterised the nature of the complainant’s recall as “no more than a feeling”. In relation to the first count, it was pointed out that the complainant was uncertain if she in fact had a memory of the incident prior to the first “flashback”. In relation to the second count, the applicant noted that the complainant did not remember seeing the applicant but simply “knew” it was him. The complainant’s evidence was affected by a “real and tangible inadequacy”, preventing the applicant from challenging her evidence or credit, that ought to have created a reasonable doubt.
Secondly, the applicant addressed “the evidence of complaint”. It was noted that complaint evidence is not “independent” but simply “additional” evidence (citing SB v R [2020] NSWCCA 207 at [217]). It was submitted that the complaint evidence could not overcome the lack of particularity of the allegations themselves and that the complaint witnesses’ accounts differed somewhat to the complainant’s evidence of complaint. On the applicant’s submission, the same generality and vagueness affected the complainant’s complaint to her mother in 1991 and the subsequent “confrontation” with the applicant. There was also no evidence to corroborate the complainant’s evidence in respect of the school counsellor; in fact, the counsellor’s evidence somewhat contradicted the complainant’s evidence.
Thirdly, the applicant pointed out that the pretext call contained no admissions and that he was of good character (no criminal record). These factors meant that the jury ought to have either accepted the applicant’s evidence or that at least it raised a reasonable doubt.
Fourthly, the applicant relied upon the “forensic disadvantage”. It was submitted that the s 165B direction and the submissions of counsel could not overcome the disadvantage in this case. It was submitted that the jury could not comply with the trial judge’s direction to give the Crown case “careful scrutiny” as the allegations were so devoid of detail. The fundamental problem was that any conviction based on uncorroborated evidence would be unsafe.

Crown submissions

Counsel for the Crown identified the relevant principles and the decisions from which they are derived. He also responded to each of the complaints made by the applicant under this ground in turn. I have considered those responses in my determination of this ground below.

Consideration

The applicant contends that his convictions are unreasonable and cannot be supported having regard to the identification evidence of him as the perpetrator. The relevant principles for an appellate court to apply when considering whether a verdict is “unreasonable” in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way (at 493) (footnotes omitted):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is 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. But 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.”
(Emphasis added.)

The High Court re-stated the applicable test in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In their joint judgment at [13]-[14] French CJ, Gummow and Kiefel JJ stated the following (footnotes omitted):

“[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
‘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.’

…
[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.’”

The central complaint made under this ground is that the complainant’s account was so lacking in detail as to render the verdicts unreasonable. Although it is to be accepted that her recollection of the surrounding details to the assaults was minimal, her recollection of the three assaults themselves was sufficient to establish each of them. She was able to sufficiently identify each act and where they occurred. Although it is clear from her evidence that these were not isolated events, she conceded in her evidence that she did not recall sufficient detail of the other matters to make specific allegations in relation to them.
I have summarised the complainant’s evidence on count 1 above at [29]. She remembered the following: the applicant drove a red sports car with pop-up headlights; she remembered being in the car on only one occasion; on that occasion they drove to a video store at Marrickville; it was night-time; she was living at Tempe at the time; they were alone in the car; during the journey the applicant stopped the car in a laneway near Sydenham railway station; he “undid his pants and guided [her] hand to touch his penis”; his penis was “hard”; she did not remember seeing it; it was quite dark; she thinks it was her left hand that was used to touch his penis; her memory of that aspect is “not a clear memory”. She could identify on a map where the vehicle stopped.
As for count 2, the complainant could recall: that the incident occurred at night-time; that it occurred in the bathroom at the Tempe house; that the bathroom light was turned off; that she was near the sink in the bathroom when it occurred; that she woke up to the applicant behind her “trying to put something into [her] vagina”; she thought it was his fingers and “it … wouldn't fit”; that this incident stood out because “it was hurting”. Although she could not remember what she was wearing, she could remember that she was not wearing anything covering her up as the applicant was easily able to gain access. She was able to identify photographs of the bathroom tendered as exhibit C.
In relation to count 3, the complainant was able to describe: that it occurred at the Tempe house; that it occurred in the lounge room; that she was alone with the applicant; that it was night-time; that the applicant inserted his fingers into her vagina; she could not remember whether she saw his head as she did not have a “memory of a vision. It's more the feeling”. She recalled that she was in a position in the lounge room such that she could see down the hallway; she was either on the floor or the lounge; she was either seated or lying on her back; the applicant was next to her not on her. She explained that this memory was clearer because it was hurting; she explained that when it hurt her, she would tell the applicant that and he would stop for “a bit”, lick his fingers and “try again”. She was able to mark on exhibit A where the lounge chair was (exhibit E). She was also able to identify photographs of the applicant on the same lounge chair.
To the extent that the complaint is of a lack of particulars, the Crown relied upon the decision of the Queensland Court of Appeal in R v S [2000] 1 Qd R 445; (1998) 102 A Crim R 418 at 423-424 in which the Court outlined the minimum requirement of particularity as being sufficient particulars to identify one transaction from any other similar incidents suggested by the evidence (in fact adopting this formulation from the decision of Dowsett J in R v Rogers (Court of Appeal (Qld), 6 May 1998, unrep). The Court also noted that the nature of the offences and the circumstances of the complainant will be relevant in determining the extent to which further particulars should be required and that the age of the complainant may affect any decision as to the adequacy of the particulars. Ultimately, the particulars must be “reasonably sufficient for the purposes of the administration of justice and for the accused to make a proper defence” (at 423, again from Rogers).
I am satisfied that the level of detail in the complainant’s account in relation to all three counts was sufficient to identify distinct conduct and met the minimum requirement of particularity in giving sufficient detail to demonstrate one identifiable transaction meeting the description of each offence charged, distinguishable from any similar incidents suggested by the evidence.
The complainant was between 6 and 12 years old at the relevant time. It was common ground that the applicant regularly and frequently visited her home. It is not uncommon in historical child sexual trials for complainants to be able to remember the assaults without being able to accurately explain when in their childhood they occurred. Although details of when and where such assaults occurred are important in a criminal trial, the absence of them does not render a verdict or verdicts unreasonable. As Leeming JA observed in Cabot (a pseudonym) v R [2018] NSWCCA 265 at [64]:

“[64] … But the fact that a witness is uncertain as to the time at which an event occurs does not necessarily detract from his or her recollection that the event did indeed occur. Indeed, it is a matter of common experience that sometimes a witness who candidly accepts that he or she has a poor memory of one or more details is, for that reason, all the more compelling and convincing as to what he or she can recall.”

A further complaint levelled at the way in which the complainant gave her evidence is that at times she described the assault in terms of a “feeling” rather than a memory. For my part, I have no difficulty in accepting that a victim of child sexual assault would still carry a “feeling” of particular aspects of the assault more intensely than a detailed vision of it. That she expressed her evidence in this way on occasion does not detract from her other evidence derived from her actual recollection, which I have already summarised. I accept the Crown submission that the complainant’s description of having a “feeling” on a few occasions actually provided some authenticity to her account.
Even if it was to be accepted that the lack of detail in the historical complaints ought to have led the jury to have had a reasonable doubt, the Crown case was not confined to a bald allegation made many years after the fact. The complainant confided in three close friends in the years shortly after the alleged conduct. That is no small matter. I accept the Crown submission that the applicant significantly understates the importance of the complaint evidence in this case. Even if it is to be accepted that such evidence is not “independent” of the complainant (SB v R [2020] NSWCCA 207), in a historical child sexual assault matter such evidence can be very persuasive in that it rebuts any suggestion of recent invention. Although the weight or importance to be given to such evidence is a matter for the jury, a jury may well consider that a child or teenager is more likely to confide in a friend than report the matter to police.
In addition to the complainant’s evidence and that of the three contemporaneous complaint witnesses, it was open to the jury to consider some of the answers provided by the applicant in the pretext call as implied admissions. Although the accused attempted to explain some of his responses in his evidence, a jury may well have found them unconvincing. The applicant advanced a case that although the complainant made a false allegation against her in 1991, he was happy to meet with her alone a few years later to give her money and repeatedly told her how much he cared about her in the pretext calls. In those circumstances, his repeated answers in cross-examination that he was trying to appease her so his wife would not find out about a historical affair and that he was not worried about her claims of child sexual assault were matters the jury may well have found difficult to accept.
The trial judge gave a direction to the jury concerning admissions on the urging of senior counsel for the applicant. That was because it was accepted that some of the answers in the pretext call were capable of being regarded as admissions. Those answers included that when confronted with the allegation he did not directly deny it; rather, he simply asked, “[d]id I have sex with you?”. In addition, he repeatedly apologised and also offered to make amends.
It was open to the jury to place significance on the fact that it was common ground that in 1991 the complainant told her mother that the applicant was sexually assaulting her, although the terms of that complaint differed as between the complainant and the applicant, as outlined above, as did the evidence as to his reaction to the disclosure.
In circumstances where the applicant accepted that he knew that in 1991 the complainant told her mother he was sexually abusing her, his explanations in court for his evasiveness are difficult to accept. Furthermore, the jury was entitled to find the fact that this 1991 complaint was common ground as between the Crown and the defence had greater significance than the fact that the disclosure was in general terms.
Although the applicant placed some significance on the evidence of Mr Whyte, it seems to me, for the reasons I have already explained above at [174], that his evidence is neutral at best. There was no dispute that the complainant was truanting from Casula High in 1991 as she was unhappy there. It was also common ground that at about that time the complainant told her mother that the applicant was sexually assaulting her. The complainant’s explanation as to why she told her mother at that time was that the school counsellor told her to. In that factual context, the fact that Mr Whyte, who was the school counsellor at that time in 1991, did not remember her could not undermine her credibility. Mr Whyte’s evidence that the normal procedure would have been to notify the police due to mandatory disclosure requirements is consistent both with the complainant not telling the school counsellor and with her telling them and there being a failure to report the matter. In any event, there was evidence that if the student was truanting, they would not be referred to the counsellor; they would be referred to the home/school liaison officer, who was not called at the trial.
A significant part of the applicant’s evidence was directed at attempting to explain away his apparent acceptance and lack of denial of the allegations when they were put to him in the pretext call. His evidence was that he was attempting to appease the complainant to keep her calm because she seemed “excited” or “distressed” during the pretext call. In cross-examination he accepted that he had no knowledge of her ever harming herself. The jury may well have accepted the Crown submission that he was appeasing her so she would not go public with her allegations (allegations previously made in 1991) rather than because of any concern that she might self-harm.
Although the applicant came before the jury as a man of good character (and the jury was directed accordingly), juries have a greater understanding of child sexual assault and how it often does not come to light until many years later when the complainant reports the conduct to police. His character was relevant in part as to whether his evidence ought to have been believed. It could not outweigh the fact that some of his answers in cross-examination were difficult to accept.
When all of these matters are considered cumulatively it seems to me that it was well open to the jury to convict the applicant on all three counts. The verdicts are not unreasonable within the meaning of s 6(1) of the Criminal Appeal Act.
I would dismiss this ground and propose the following orders.

ORDERS

Leave to appeal granted.
Appeal dismissed.

LONERGAN J: I have had the significant advantage of reading the judgments of N Adams J and Beech-Jones CJ at CL in draft. I have carefully and critically examined the record of the trial, mindful of the task articulated in Pell at [38]. There is precision and cogency in the descriptions given by the complainant of the specific acts that constitute the criminal conduct of which the applicant was convicted by the jury. The language she uses to describe the acts and her recollections of them is clear and unembellished.

I am satisfied that it was well open for the jury to convict the applicant on all three counts.
I agree with her Honour’s reasons and the orders that she proposes, save that I am not convinced that the pretext calls added much to the strength of the Crown case. I agree with the additional comments of Beech-Jones CJ at CL.

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Decision last updated: 22 August 2022

Medium Neutral Citation:	Macri v R [2022] NSWCCA 177
Hearing dates:	11 March 2022
Date of orders:	22 August 2022
Decision date:	22 August 2022
Before:	Beech-Jones CJ at CL at [1]; N Adams J at [15]; Lonergan J at [204].
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIME – appeals – appeal against conviction – historical child sexual offences – application for permanent stay refused – where indictment spanned five years – lack of particularity, delay, forensic disadvantage – standard of appellate review where stay refused and trial proceeds to conviction – House error and miscarriage under s 6(1) of Criminal Appeal Act – neither shown by applicant in this case CRIME – appeals – appeal against conviction – unreasonable verdict – complainant’s testimony said to lack adequate particularity – complaint evidence – pretext calls – verdicts not unreasonable – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1) Evidence Act1995 (NSW), s 165B
Cases Cited:	Adler v District Court of NSW (1990) 19 NSWLR 317 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Bandao v R; Bruce v R [2018] NSWCCA 181 Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 Cabot (a pseudonym) v R [2018] NSWCCA 265 Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 Hogan (a pseudonym) v R [2019] NSWCCA 125 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v R [2015] NSWCCA 330 Jackmain (a pseudonym) v Regina [2002] NSWCCA 150 Jago v The District Court of NSW (1989) 168 CLR 23 [1989] HCA 46 JG v R [2014] NSWCCA 138 Kassab (a pseudonym) v R [2021] NSWCCA 46 KeesLangelaar v R [2016] NSWCCA 143 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Medich v R [2015] NSWCCA 281 Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 Palmer v The Queen (1998) 193 CLR 1; [1988] HCA 2 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v RD [2016] NSWCCA 84 R v Rogers (Court of Appeal (Qld), 6 May 1998, unrep) R v S [2000] 1 Qd R 445; (1998) 102 A Crim R 418 R v Smith [No 1] [2011] NSWSC 725 Regina v Littler [2001] NSWCCA 173 Regina v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 SB v R [2020] NSWCCA 207 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 The Queen vEdwards (2009) 83 ALJR 717; [2009] HCA 20 The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Category:	Principal judgment
Parties:	Christopher Macri (Applicant) Regina (Respondent)
Representation:	Counsel: Mr M Johnston SC with Ms A Cook (Applicant) Mr B Hatfield (Respondent) Solicitors: GA Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2019/00167995
Publication restriction:	Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987, publication of the name of, or any matter which could identify the victim is prohibited. Pursuant to section 578A of the Crimes Act 1900, publication of any matter which could identify the victim is prohibited.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Citation: N/A Date of Decision: 09 March 2021 Before: Noman SC DCJ File Number(s): 2019/00316270