Miller v The The King

[2022] NSWCCA 255

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Miller v R [2022] NSWCCA 255

Hearing dates:

8 June 2022

Date of orders:

5 December 2022

Decision date:

05 December 2022

Before:

Meagher JA at [1];
Mitchelmore JA at [113];
Bellew J at [115]

Decision:

(1) Grant leave to appeal in respect of grounds 1 and 2.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against conviction – judge-alone trial – where applicant found guilty of five counts of sexual offences – where applicant gave evidence conceding he had opportunity to commit offences but denying offending – where trial judge did not believe applicant’s denials – whether trial judge’s reasons for rejecting applicant’s evidence inadequate – whether verdict unreasonable and cannot be supported by evidence

CRIME – appeals – appeal against conviction – fresh evidence – whether miscarriage of justice due to unavailability of fresh evidence at trial

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 578A(2)

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

Criminal Procedure Act 1986 (NSW), s 133

Evidence Act 1995 (NSW), ss 59, 65, 66

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 6

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417

Category:

Principal judgment

Parties:

Daniel Edward Miller (Applicant)
Regina (Respondent)

Representation:

Counsel:
C McGorey (Applicant)
B Hatfield (Crown)

Solicitors:
O’Brien Solicitors (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2019/6974

Publication restriction:

Pursuant to Crimes Act 1900 (NSW), s 578A(2) and Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1), publication of any matter which identifies or is likely to identify the complainants CD and HH in connection with this proceeding is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

26 June 2020

Before:

Woodburne SC DCJ

File Number(s):

2019/6974

JUDGMENT

1. MEAGHER JA:

Introduction

Pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(b), the applicant, Daniel Miller, seeks leave to appeal against his conviction on four counts of indecent assault and one of aggravated sexual intercourse.

2. In the narrative which follows, the complainants and close members of their families are referred to by pseudonyms, in view of the statutory prohibitions on publication of information identifying either of them (Crimes Act 1900 (NSW), s 578A(2) and Children (Criminal Proceedings) Act 1987 (NSW), s 15A).

3. The applicant was tried in a judge-alone trial in the District Court (Woodburne SC DCJ) on eight counts of alleged offending, five against HH and three against CD. The evidence was given over 6 days from 10 to 17 June 2020, with closing addresses made on 17 and 18 June. On 26 June, the applicant was acquitted of the three counts relating to CD.

4. The five counts relating to HH of which the applicant was convicted on 1 July 2020 were:

• Counts 1-4: Between 1 January and 31 December 2017, did indecently assault HH, a person under 16 years, namely 12 years, contrary to Crimes Act s 61M(2) (since repealed);

• Count 5: Between 1 January 2017 and 31 December 2017, did have sexual intercourse with HH, a person aged over 10 and under 14, namely 12 years, in circumstances of aggravation (victim under authority) contrary to Crimes Act s 66C(2).

5. On 4 December 2020, the applicant was sentenced to a term of imprisonment of 7 years, with a non-parole period of 4 years expiring on 1 September 2024. Leave is not sought to appeal from that sentence.

6. The applicant’s grounds of appeal are:

1. The trial judge erred in not giving sufficient reasons to explain why the applicant’s evidence denying the offences was rejected.

2. The verdicts were unreasonable.

3. A miscarriage of justice was occasioned due to the unavailability at trial of fresh evidence.

7. The applicant’s position is that, in the event of success on either of grounds 1 or 3, a re-trial should be ordered; and that only in the event of success on ground 2 would this Court enter an acquittal.

8. The applicant requires leave to appeal in respect of grounds 1 and 2, each involving mixed questions of fact and law (Criminal Appeal Act, s 5(1)(b)).

9. For the reasons which follow, I would grant leave to appeal in respect of grounds 1 and 2 and, having rejected the arguments made in support of grounds 1, 2 and 3 I would dismiss the appeal.

10. I will address the grounds in the order in which they were raised. Before doing so I will summarise the circumstances in which the alleged offending occurred and the issues at trial.

Background

11. During 2017 the applicant was in a de facto relationship with SW, who was HH’s half-sister. Their mother is MW. In that year HH lived with MW in Sydney and visited SW, the applicant and her younger half-sister CD at their Central Coast home on occasional weekends and during school holidays.

12. CD is SW’s daughter from an earlier relationship with GD. She was between 8 and 9 years old during 2018, when the offending against her was alleged to have been committed. That offending, as charged, consisted of three counts of indecent assault of a person under 16 years, contrary to Crimes Act s 61M(2).

13. The relationship between SW and GD commenced in about 2005. CD was born in 2009. In 2011 GD went to prison, and was eventually released on parole in February 2017. The relationship between the applicant and SW commenced some time in 2014.

14. During 2017 the applicant and SW lived in a three-bedroom, two-storey townhouse on the Central Coast, and CD lived full-time with them. During the latter part of 2017, and after GD had been released on parole, CD stayed with him at his home in Morisset every second weekend and during some parts of her school holidays. From August 2017 GD’s then partner, EM, and her son also lived with him in the Morisset home.

15. The offending against HH of which the applicant was convicted occurred in 2017, although no specific dates were identified in the evidence. (That offending as described in HH’s evidence is summarised at [60]-[63] below in addressing ground 2.) Counts 1 and 2 occurred on the same evening; count 3 on the following morning; and counts 4 and 5 on separate occasions. All occurred during HH’s visits to the Central Coast home on occasions when the applicant, SW and CD were living there, although SW (who worked as a nurse, including on night shifts) was not present in that home when the incidents occurred.

16. Following SW’s suicide in January 2018, HH continued to live with her mother, and did not return to stay with the applicant or CD, who after that event moved to live with the applicant’s mother Teresa in Kanwal on the Central Coast. During the Easter period in 2018 MW and HH visited CD at her grandmother Rosie’s house, also on the Central Coast. Rosie was GD’s mother.

17. After moving to Kanwal the applicant did not permit GD to have the same access to CD as he had enjoyed whilst SW was alive. This resulted in a dispute as to the custody of CD. That dispute was the subject of Family Court proceedings. In about September 2018 those proceedings were resolved. The applicant was granted custody of CD with GD having access essentially on the same terms as had applied in the latter part of 2017.

18. In October 2018 HH, who was living with MW, made a general complaint of inappropriate touching by the applicant to a schoolteacher, Alison Mathieu. Her first recorded interview with police occurred on 11 December 2018.

19. On 1 June 2020, shortly before the commencement of the trial, HH took part in a second recorded police interview and corrected two matters that she had spoken of in the first.

20. In her first interview HH identified the first person that she had told about the applicant’s conduct as being her cousin Darryl. In the later interview HH said she did not remember telling him anything. The second matter corrected was that in the first interview HH said that she had told Ms Mathieu that someone had told her that the applicant was a “paedophile” who had sexually assaulted girls before. In the later interview HH said that was not true. No one told her that, and she “just said that to find a way to tell her”.

21. Over the Christmas period in 2018 CD stayed with her father GD. At the end of that period he decided not to return her to the custody of the applicant and Teresa. GD’s evidence was that on Christmas Day MW had told him that HH had made a complaint against the applicant. GD’s evidence was that at no time did he have any conversation with HH about her having made those allegations.

22. CD took part in a recorded interview with police on 3 January 2019, making allegations of touching against the applicant whilst she was living in his mother’s home in Kanwal.

23. On 8 January 2019 the applicant was arrested, and took part in a police interview. He firmly denied touching HH or committing any offences against her. This interview was terminated early after the applicant had become emotionally upset.

The issues at trial

24. The Crown’s evidence in relation to the counts against HH included her answers given in the police interviews on 11 December 2018 and 1 June 2020. That audio-visual evidence was played as her evidence-in-chief, and supplemented by brief oral evidence. MW gave evidence about the frequency of HH’s visits to the applicant’s house during 2017. They occurred on weekends and during school holidays. MW would accompany HH on the train, stay for a night or a couple of nights and then return, leaving HH behind. MW also gave evidence about a conversation she had with HH in early 2018, just after SW’s death, in which she asked HH whether the applicant had “touched her inappropriately”, to which HH replied that “he just brushed past her”.

25. Ms Mathieu, HH’s year 8 school adviser and a teacher, gave evidence concerning a conversation she had with HH on 22 October 2018. In that exchange HH had said to her that “if somebody does stuff to children, how - why would somebody get full custody or have that child with them all the time?” HH also used the word “paedophile” to describe such a person, and Ms Mathieu said to her that she needed to be careful about what she said about someone who “hasn’t been charged” and tried, to which HH replied “he hasn’t been charged because I haven’t said anything to anybody”. Ms Mathieu and HH then had a conversation with the deputy principal in which HH disclosed that she “would visit her sister and when her sister was not there, her sister’s fiancé would do inappropriate things” to her.

26. The applicant’s audio-visual record of interview was tendered in the Crown case. He also gave evidence. He accepted that on some occasions in 2017 he had been alone with HH at the Central Coast home when SW was at work. However, he strongly denied that any of the events described by HH had occurred.

27. In circumstances where MW’s unchallenged evidence established that there were times when HH was in the care of the applicant, the Crown submitted that the question for the trial judge was whether she accepted HH’s evidence beyond reasonable doubt. Although the applicant had made an immediate and general denial of the allegations in his record of interview and denied them more specifically in his oral evidence, the Crown submitted that there was “nothing in particular in the accused’s case that would prevent” the trial judge from accepting HH’s evidence.

28. Counsel for the defence agreed. At the commencement of his closing address he said: “… it’s a question here whether the acts occurred with the accused denying that any such acts occurred. He’s made his denials on oath, he previously was spoken to by police made a denial… he became upset and the interview was concluded at that time”. In his concluding remarks counsel stated: “… we have the allegations and we have opportunity… I got that evidence from the accused, there’s no issue that opportunity wasn’t there, the accused merely says on oath, look, that just didn’t happen”.

29. In addition to making submissions that called into question HH’s credibility and reliability by reference to a close analysis of her evidence, the defence case included an alternative possible thesis, being that HH had been influenced by others to make the complaint against the applicant in October 2018. This was said to be a possibility in view of the dispute which had begun shortly after SW’s death as to who should have primary custody of CD. The possibility was that HH’s complaint was contrived by members of CD’s family, including MW and GD, to support the latter’s case for removing CD from the applicant’s care.

Inadequate reasons (ground 1)

Relevant principles

30. A conviction may be set aside on an appeal under s 6(1) of the Criminal Appeal Act if “on any other ground whatsoever there was a miscarriage of justice”. In a judge-alone trial the judge’s failure to give adequate reasons is an error of law capable of constituting a miscarriage of justice and requiring a new trial. See Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27].

31. Section 133 of the Criminal Procedure Act 1986 (NSW) provides in relation to a judge-alone trial:

133 Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

32. As the Court noted in Fleming in relation to the predecessor to s 133(2), whilst not using the expression “reasons for judgment” that provision should not be taken as intending that its requirements be “satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached” (at [28]). One reason for this requirement is “the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal” (DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]).

33. In DL, the majority emphasised that not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict, and that the adequacy of reasons “will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial” (at [33]). Dealing with extreme cases, the Court also observed:

At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge's conclusion’. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.

34. As to the matters which the trial judge’s reasons might usually address, the majority in DL adopted Heydon J’s description in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [85]: “Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed”. See also the observations of Bell J (albeit in dissent) in DL at [82] and of Gummow and Hayne JJ in AK at [44], each citing Fleming at [28].

Disposition of ground 1

35. By this ground the applicant contends that the trial judge failed to give adequate reasons for rejecting as truthful the applicant’s denial that the events described in HH’s evidence had occurred.

36. The trial judge’s reasons for doing so are stated shortly, in a case where the outcome of each count depended on whether her Honour was satisfied beyond reasonable doubt that HH’s evidence was credible and reliable. In circumstances where the applicant had denied the truth of her evidence, the case was one which turned “on a conflict between the evidence of a prosecution witness and the evidence of a defence witness” (Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66 per Brennan J).

37. As there observed (at 515), notwithstanding that the resolution of that conflict requires an assessment of the credibility and reliability of each of the witnesses, the position remains that the trial judge or jury must be satisfied beyond reasonable doubt of the truth of the prosecution witness in order to convict.

38. The trial judge appreciated that it was not sufficient for her to convict the applicant that she preferred HH’s evidence. Her Honour correctly described the position as being:

One, if I believe the accused’s account in his interview with police and/or his evidence on oath, to the effect that he did not sexually touch the complainant, I must acquit. Two, if I do not believe that account in his ERISP or in his evidence but I consider that it might be true, I must acquit and three, if I do not believe the accused’s account in his interview with the police and/or his evidence, I should put that account and evidence to one side. The question will remain, has the prosecution on the basis of evidence that I do accept proved the guilt of the accused beyond reasonable doubt?

39. Her Honour then turned to the question whether she believed the applicant’s evidence, or at least could not exclude the possibility that it might be true, in either case leaving a reasonable doubt as to his guilt. She did so after having summarised HH’s evidence in some detail.

40. In considering the credibility and reliability of the applicant’s evidence, an obvious matter to be taken into account was HH’s wholly inconsistent account. However, as the applicant’s written submissions emphasise, that HH “impressed as a credible and reliable witness did not, of itself, exclude the possibility that the applicant’s account was truthful in its denials”. The plausibility of that evidence and that the trial judge regarded it as “strikingly genuine and compelling” were factors to be weighed in assessing whether the applicant’s evidence was true or might be true or was to be rejected. There was no other factual dispute arising on the evidence of HH and the applicant to be taken into account in making that assessment.

41. Her Honour made that assessment and gave the following reasons explaining why:

This is a case where I do not believe the accused’s account in his record of interview or his evidence on oath that he did not sexually touch [HH]. In so stating, I have not overlooked those matters pointed to in his favour that he participated in an ERISP with police and gave denials and was emotional about it. The accused also gave evidence strongly asserting and maintaining his denials.

As the tribunal of fact, I was not impressed with the accused’s evidence. While [counsel for the applicant at trial] placed reliance on the fact that opportunity was admitted by the accused, in my assessment, the accused took every opportunity to minimise such opportunity (Q & A 62, Q & A 66, Q & A 69, p 233.10 – 233.17, p 233.24 – 26, p 233.29, p 237.23, p 237.25 – 34, p 239.23).

42. That explanation includes an assessment as to the applicant’s credibility which was formed after hearing and seeing his albeit fairly short evidence.

43. The applicant makes the following arguments in support of his contention that the trial judge’s reasons are inadequate. First, it is submitted that her Honour did not explain why she did not “believe” the applicant’s denials other than to say that in his answers he had minimised his opportunity to commit the offences.

44. In my view, her Honour’s explanation is sufficiently stated in her conclusion that “the accused took every opportunity” to minimise the opportunity for the offence to have occurred in the passages of evidence referred to. The references are to answers given in the applicant’s police interview on 8 January 2019 and in examination and cross-examination. That evidence was given in circumstances where there was no contest as to the fact being, as MW had said in evidence, that HH “would often go up and stay with [her sister] usually for about half of the school holiday, each school holiday” and “on the weekends”; whereas whilst MW accompany her she would “only stay a night or a couple of nights” whilst HH would remain.

45. The trial evidentiary references include:

1. The applicant’s first answer to the question whether there were occasions when HH would stay without MW or MW’s brother was “Not that I can recall”. He then agreed that there were “some times” when this occurred, but that it was “not often”. He later said that there “might have been once, once or twice, yes”;

2. That “normally” MW would be at the applicant’s home with HH, except “one time, if I remember at the Christmas time”;

3. That “there may have been a couple of times” when he had care of the complainant and CD without SW being present.

46. The trial judge’s assessment of these exchanges, and from the balance of his testimony, was that she was not “impressed” with the applicant’s evidence. That assessment was plainly open, as was her Honour’s rejection of the applicant’s evidence in the face of HH’s wholly contradictory evidence which she assessed to be honest and reliable.

47. Secondly, it is said that her Honour did not explain how the applicant’s evidence on the subject of opportunity “materially conflicted” with the other evidence on this subject, and why her Honour rejected his account where it differed from that other evidence and accepted that other evidence.

48. This submission does not address her Honour’s reasons for forming an adverse view as to the applicant’s credibility and reliability. The trial judge was not required to resolve any factual dispute which the evidence might otherwise have presented as to opportunity because that was conceded, and the applicant’s evidence did not contradict that concession. The trial judge’s observation was directed to the way in which the applicant gave this evidence by his answers, volunteering material which was not directly responsive and minimising the possibility of opportunity at each point in the line of questions by emphasising the presence of other family members, including CD or SW.

49. For example, the evidence to which the trial judge referred included answers given in chief. That evidence started with an answer “Not that I can recall” to the question whether there were occasions on which HH stayed without MW or her brother. The applicant then accepted that there were some times when there were no other family members there. When pressed by his counsel as to there being occasions when HH did not sleep on a mattress in CD’s room, he responded that on those occasions HH slept mostly on the mattress in CD’s room and otherwise “in the spare room or on the mattress”, adding that CD “would be with her”.

50. Thirdly, the applicant submitted that her Honour did not explain why she concluded that any differences between any “other evidence” and the applicant’s evidence were explained as deliberate rather than as being inaccurate or mistaken. There were no such differences which called for explanation. Rather, the trial judge’s assessment was directed to the manner in which the applicant answered questions directed to opportunity.

51. Finally, it is submitted that her Honour did not explain why “her view as to the applicant’s [evidence minimising opportunity] meant his denial of the offending should be rejected”. If such a finding as to the applicant’s credibility was open and made, it is not submitted that it was not then open to the trial judge to reject his evidence denying the offending. Rather, it is said that such a finding “did not necessarily follow”. That is correct. The applicant’s written argument directed to the adequacy of her Honour’s reasons continues: “Her Honour did not find the applicant’s account was otherwise unbelievable, implausible, or contradicted by other evidence (other than that given by HH). No adverse demeanour findings were made.”

52. This argument raises two matters relevant to the adequacy of her Honour’s reasons for rejecting the applicant’s evidence. First, contrary to what is put, the trial judge’s reference to not being “impressed” with the applicant’s evidence constituted an adverse finding as to his credibility based in part on the way in which he had responded to the questions concerning opportunity. Secondly, the trial judge provided comprehensive reasons for why she was satisfied that HH was a reliable and truthful witness. It necessarily followed that the applicant’s denials were contradicted by evidence which the trial judge believed.

53. In a case where the accused had denied the complainant’s allegations on oath, the trial judge had to be satisfied beyond reasonable doubt as to the truth of the complainant’s evidence. That required the trial judge to address the conflicting evidence. In doing so her Honour had to consider whether the applicant’s denials were to be believed or at least left a reasonable doubt as to his guilt. Her Honour’s reasons explain how these questions were resolved. Taking account of all of the evidence she was satisfied beyond reasonable doubt that HH was a truthful and reliable witness. She was also satisfied that the applicant’s denials of HH’s allegations should be rejected, in part because of a demeanour-based credit finding.

54. Her Honour’s reasons expose her reasoning process for being satisfied beyond reasonable doubt as to the applicant’s guilt. Ground 1 is not made out.

Unreasonable verdict (ground 2)

Relevant principles

55. The question for this Court when considering an unreasonable verdict appeal in a judge-alone trial is whether (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9]):

…upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge’s finding of guilt is “unreasonable” or “cannot be supported”.

56. In answering that question in relation to a jury verdict the court must do two things. First, it must make an independent assessment of the whole of the evidence to determine whether the court itself has a reasonable doubt about the guilt of the accused. Secondly, if the court does have a reasonable doubt, it must consider whether the jury had an advantage capable of resolving the doubt experienced by the court: M v The Queen (1994) 181 CLR 487 at 493-495; [1994] HCA 63.

57. Returning to Filippou, the majority continued at [11]-[12]:

[11] … for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt.

[12] … It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced.

58. Where, as in this case, the evidence of the complainant has been assessed by the judge to be credible and reliable, the approach of the appellate court is to examine the record to see whether, notwithstanding that assessment – “by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the Court is satisfied that [the judge], acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt” (see Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]). In undertaking this exercise, there is no requirement that a complainant’s evidence be corroborated before the jury, or judge in a judge-alone trial, may return a verdict of guilty. However, where there is no independent support for the acceptance of that evidence it must be assessed on that basis (see Pell at [53]).

59. Finally, it is to be kept firmly in mind that the question for this Court is not whether it was “satisfied that the judge’s account was correct”, but rather whether the ultimate finding of guilt was one which was “open” on the whole of the evidence (Filippou at [56]).

HH’s evidence as to offending

60. First incident (counts 1 and 2, aggravated indecent assaults): HH’s sister SW was at work, and CD had a bath in the bathroom, which was separate from the applicant and SW’s bedroom, and then went to bed. HH was in the applicant and SW’s bedroom watching a movie on Netflix. The applicant entered the bedroom not wearing a shirt and laid on her. He then shifted to lie next to her and put his arms around her and one arm up her skirt, underneath her bra, and touched her breasts, playing and squeezing them (count 1). The applicant asked her whether she liked “the movie and stuff” and moved his hand lower, at first above her underpants and touching her leg. He then moved his hand back and went underneath her underpants, putting his hand on her vagina, squeezing it and moving his fingers around (count 2). He persisted when HH tried to move his arm away. HH said she had to go to the toilet, which she did (being the en suite toilet). She then said she was tired and went to bed in the spare room.

61. Second incident (count 3, aggravated indecent assault): The next morning HH woke up lying on her side in bed in the spare room. The applicant was lying next to her and put his arm around her. He squeezed her breast over her shirt. That caused her to wake, then he put his hand on her stomach and then touched her vagina over her underpants (count 3). She then got up and went to wake CD.

62. Third incident (count 4, aggravated indecent assault): On another night during an earlier visit, HH and the applicant were watching a “scary movie” in the lounge. HH thought it was “Conjuring 2” and on Netflix. CD had gone to bed. SW had left to go to work. The applicant sat next to her and pushed her so that she was on her side. He touched her “belly” and moved his hand down towards her vagina and felt her sanitary pad. He then took his hand out “straight away” and said “you’re a big girl now you’ve got your period” (count 4). HH went to bed soon after.

63. Fourth incident (count 5, sexual intercourse): On an occasion when CD was at GD’s mother’s house and SW was at work, at first the applicant was cleaning up while HH was playing outside. When HH came back inside they watched a movie on the downstairs lounge. HH was laying down facing the TV and the applicant moved to lie behind her. He squeezed both of her breasts underneath her shirt and above her sports bra. He then took his hand out and went “through her pants”. HH said she had to go to the toilet. The applicant said “Why do you always need to go to the toilet when I’m laying with you?”. HH responded that she “will just forget about it” and lay down again. They watched the movie for five minutes or so and then the applicant moved his hand inside her pants and placed his fingers in her vagina. HH was scared and started shaking. She kept as still as she could. The applicant moved his fingers around. HH tried to put her legs together to stop the applicant. He continued to move his fingers (count 5). The applicant eventually stopped and went outside to have a smoke.

64. The applicant’s unreasonable verdict argument emphasises that the applicant gave evidence on oath denying each of the charged offences, and directs attention to four particular respects in which the credibility and reliability of HH’s evidence was questioned. They are (1) a prior inconsistent statement said to have been made by HH to her mother; (2) HH’s account of her first complaint to Ms Mathieu in October 2018; (3) the timing of HH’s first complaint; and (4) HH’s evidence as to pornographic material on her iPad.

The rejection of the applicant’s evidence

65. Putting to one side the applicant’s evidence as to opportunity, he gave the following evidence. Responding to counts 1, 2 and 3, the applicant said that he had never moved the PlayStation upstairs to watch Netflix and denied that he had entered the bedroom without a shirt on and sexually touched HH, or that he did so the following morning.

66. As to count 4, the applicant recalled an occasion when he watched a “scary movie” (called Conjuring 2) in the downstairs lounge room, but denied that he had laid on the lounge with HH or touched her pants or stomach, or put his hands into her pants and touched her sanitary pad.

67. As to count 5, the applicant denied ever laying behind HH on the couch and squeezing her breasts or touching her vagina or that he had digitally penetrated her.

68. The trial judge did not believe these denials. From the trial judge’s perspective there was no objective material by which to test or consider HH and the applicant’s evidence. One aspect of the applicant’s case which was not pursued by any other evidence was the possibility or otherwise of moving the PlayStation upstairs so as to be able to watch Netflix as HH said had happened. In the absence of such evidence the issue whether that could and did happen was left to be resolved as part of the larger dispute as to whether HH’s evidence should be accepted beyond reasonable doubt.

69. All of this is consistent with the way the trial was conducted. Whilst the applicant had made immediate denials in his police interview and on oath in his oral evidence, as the Crown stated in its closing address “there was nothing in particular in the accused’s case that would prevent [the Court] from accepting [the complainant’s evidence] beyond a reasonable doubt”. In circumstances where the applicant had given evidence the defence position was that the trial judge could not be satisfied beyond reasonable doubt of his guilt solely on the basis of HH’s evidence. The following matters were relied on as giving rise to such doubt.

Matters said to give rise to reasonable doubts as to the credibility and reliability of HH’s evidence

Prior inconsistent statement to MW

70. MW asked HH in early 2018 whether the applicant had touched her inappropriately. HH answered “yes” and said that the applicant had “brushed past her”. It was found that this conversation was likely to have occurred in January 2018, shortly after SW’s death, though MW’s evidence was that it was a “couple of months” after SW’s death.

71. In her first police interview, HH said that she had “lied” to MW at this time and told her the applicant had only touched her “up here he didn’t go anywhere” (here being her shoulders). In re-examination at trial, HH said that she told MW that the applicant had “only touched my legs”. MW’s evidence as to why she had asked this question was that “it was just a feeling that I had”.

72. The applicant suggests that this prior inconsistent statement of HH has significance for two reasons. First, it undermines her credibility and/or reliability; and secondly, it is one instance where MW raised with HH that applicant had touched her, supporting the possibility that HH was influenced by MW and others to later make allegations against the applicant which were not true.

73. HH explained in her first police interview that she lied to her mother because she did not want her to worry as “her daughter just passed away and I didn’t want to add anything to it”. The trial judge regarded this explanation as plausible and genuine, and rejected “any implication that [HH] may have been encouraged deliberately or otherwise to make any false complaint”. Her Honour also found, having observed MW give evidence, that “it was very apparent that she remains affected by her daughter’s death and I accepted her to be an honest and genuine witness”. Each of these conclusions was well open on the evidence.

HH’s first complaint on 22 October 2018

74. It is submitted that a number of discrepancies or inconsistencies arise from HH’s evidence in relation to the making of her complaint to Ms Mathieu. Taking them in the order in which they are raised in the applicant’s written submissions, the first concerns an answer given during her police interview. HH was giving in a fairly unstructured way an explanation for why she had not made any earlier complaint. With reference to a conversation with Ms Mathieu, she said: “I told her I didn’t [report it] because, … when I wanted to tell someone it was when [the applicant] and my niece’s biological father [GD] tried to get custody for CD and my mum said, ‘if you tell the court now they’re going to think you’re trying to, just trying to get CD back’. And then so I said, ‘there’s no point in reporting it’.” The reference in this answer to what her mother had said, if understood as having been said to HH before her report to Ms Mathieu, was not consistent with MW’s unchallenged evidence that she did not know about the allegations involving the applicant until after that report and when she was called to the school.

75. The sense in which this rambling answer is to be understood is not clear. It occurs in a passage in which HH had said that Ms Mathieu was the “first” person she complained to and the passage extracted above concludes, “that’s how youse [the police] got involved”. In giving that answer it is possible that in describing her first complaint for the benefit of the police, HH was including matters which she had spoken to her mother about after MW had been called to the school. That is wholly consistent with HH’s statement that after she told Ms Mathieu they went to the deputy principal, who then got her mother involved.

76. Secondly, it is suggested that from HH’s perspective the custody dispute was “front and centre” of her complaint. Ms Mathieu’s evidence was that HH began by asking how someone could get “full custody” of a child when they were “doing something to kids”. Ms Mathieu responded saying “You can’t just say that and make accusations without evidence” and them being “charged”. HH fixed on the word “charged”, responding that “he hasn’t been charged because I haven’t said anything to anybody”. HH and Ms Mathieu then spoke to the deputy principal, where she overheard HH say that “when she would visit her sister and when her sister was not there, her sister’s fiancé would do inappropriate things” and that such things occurred “during school holidays and generally it would happen when her sister was not present, when she’d go to work, so she’d stay up at her sister’s house for holidays and these incidents would happen when her sister had gone to work”. Ms Mathieu also overheard HH say that “if she said anything that [the applicant] would hurt her, because no one would believe her over him”.

74. The trial judge expressly rejected as a reasonable possibility that “HH had a particular motive to make false allegations against the accused”, namely the custody issues in relation to CD, and made the following findings:

I reject any implication that [HH] may have been encouraged deliberately or otherwise to make any false complaint. [HH] gave evidence of her mother positively discouraging her because it would be perceived as simply being related to the custody matters. [GD] gave evidence which I accepted as honest and reliable, that [MW] did nothing to support him in his attempt to get custody of his daughter, [CD]. Indeed, [MW] did not even inform him about the disclosure by [HH] or any investigation in relation to [HH]. Rather it was he who discovered that there was such investigation in a phone call.

Further I reject the suggestion that there was significance in the fact that the timing of the complaint was in October 2018, in circumstances where some resolution had occurred in relation to the custody in September 2018. First, there is no evidence [HH] was aware of that resolution or its particulars. Secondly, the whole circumstance in which complaint was made, contradicts the suggestion that the complaint was made for the purpose of custody proceedings or arrangements.

Ms Mathieu’s unchallenged evidence was that it was she who saw [HH] and approached her but for that approach, there is nothing to suggest that the complaint would have emerged in the way it did and being made to Ms Mathieu. This is not a case of [HH] having sought out someone to complain to, with the object of affecting custody proceedings or arrangements. [HH] gave evidence which was not challenged that the complaint came out in the context of talking to her teacher about worries about her family.

78. Each of these conclusions was open. The supporting evidence included that HH did not complain at the time of the events for fear of upsetting her sister SW; that she did not do so after SW’s suicide out of concern for her mother; that she was not planning to tell Ms Mathieu and that the matter just “accidentally slipped out”; that according to GD’s evidence, MW did nothing to support his attempt to get custody of CD; and that he did not know that HH had made allegations against the applicant until December 2018, after the custody dispute had been resolved and HH’s complaint had been made.

Timing of HH’s first complaint

79. The submissions addressing this matter also seek to support as a reasonable possibility that the making of HH’s allegations in October 2018 could have been influenced by her exposure to various concerns of MW about the applicant.

80. The specific matters relied on are:

1. That the first complaint was made approximately 9 months after SW’s death and following a period during which HH knew that CD was living in the full-time care of the applicant;

2. That the complaint was made in circumstances where HH had heard MW say that the applicant was to blame for SW’s suicide and that MW was not seeing as much of CD after the applicant had “got custody”;

3. HH’s awareness of the custody position with respect to CD included that she was living with the applicant who had custody, and that there was a court order or settlement which resulted in GD having access.

81. These matters do not take the position any further than those dealt with above in relation to the making of the first complaint. The references to HH’s different understandings concerning any custody and access are plausibly explained as due to the time at which those understandings may have arisen. It was accepted that HH was aware that at some stage there were custody proceedings, and that the applicant ultimately obtained custody. That was all HH needed to know to ask her “indirect” question of Ms Mathieu, prompting the response which led to her complaint being made. The findings made by the trial judge and extracted above at [77] rejected as a reasonable possibility that HH had made a false complaint.

82. The applicant’s further submission that HH’s delay of 9 months in making complaint also raised as a possibility that the complaint was made for a reason other than to report true events was also rejected by the trial judge, and that conclusion was open on the evidence. HH’s reasons for her failure to report the events at an earlier point in time included: that she was too scared to say anything because the applicant could get “really violent”; that she did not want to break up the relationship between her sister SW and the applicant; that at one time she was going to tell her sister but got “scared”; that at another time she was going to ring her sister but changed her mind because she did not want her and the applicant to break up; that at times she blamed herself for her sister’s suicide; and that the applicant had told the complainant not to tell anyone what he did to her.

Material on iPad

83. This material is relied on for two reasons. First, it is said to have been evidence of HH’s attitude towards the applicant and preparedness to make untrue allegations against him. In addition it is said to have been evidence of HH’s “past exposure to sexual content” and as such relevant to the force of the Crown’s contention which the trial judge accepted, that HH’s at times “naive” reactions during her first interview were consistent with having lived through the experience she described, rather than having made it up; the suggestion being that she could have gained her recited “experience” through watching sexual content on her iPad.

84. In that first interview HH said that she got in trouble with SW on an occasion when SW found out that CD had watched “inappropriate stuff” on HH’s iPad, which HH had accidentally left at her sister’s home. SW initially blamed HH for showing that material to CD. In cross-examination HH agreed that someone had watched “some sexual stuff” on her iPad. She denied that it was her, or that she showed that material to CD. In her evidence CD denied that HH had shown her any such material.

85. HH identified the applicant as the one who “taught” CD how to watch “that stuff” on her iPad. In cross-examination she agreed that she had attempted to put the blame on the applicant. HH also agreed that she did not know whether he was in fact responsible.

86. It is not apparent how this evidence assists in relation to the second matter referred to above. Although HH admitted that someone had been viewing material with sexual content, she denied that she was that person, and her denial was not challenged.

87. As to the first matter, whilst she had blamed the applicant for showing CD how to view the material, HH accepted that she did not know that to be the fact. It remained, however, a realistic possibility as the only persons who lived in the house where HH had left the iPad were the applicant, SW and CD; and CD had given evidence that the person who showed her the material was not HH.

Disposition of unreasonable verdict ground

88. I am conscious that this is a case in which the complainant’s evidence is not corroborated, and that accordingly her Honour’s verdict depends on her assessment of the credibility and reliability of HH’s evidence in circumstances where the applicant had given sworn evidence denying her allegations. In such a case, it is necessary for this Court to consider HH’s evidence very carefully and to examine any discrepancies or other inadequacies in that evidence to be satisfied that they do not give rise to a reasonable doubt as to the applicant’s guilt. I have undertaken that exercise with the benefit of the trial judge’s analysis of the submissions of the parties which address HH’s credibility and reliability and the applicant’s counsel’s written and oral submissions addressing that question.

89. The trial judge rejected the applicant’s evidence and separately considered whether she was satisfied beyond reasonable doubt as to the honesty and reliability of HH’s evidence. In this case, each of those matters involved an assessment of the witness which this Court is not in a position to replicate. Having regard to that evidence, it was open to the trial judge to be satisfied beyond reasonable doubt as to the applicant’s guilt, believing the complainant’s evidence and rejecting the applicant’s denial as not giving rise to a reasonable doubt as to his innocence.

90. Having examined the evidence and allowing for the advantage of the trial judge in assessing the credibility of the complainant and the applicant, I do not have a reasonable doubt as to the applicant’s guilt notwithstanding that the complainant’s evidence was not corroborated.

91. It follows that ground 2 must be dismissed.

A miscarriage of justice due to unavailability at trial of fresh evidence (ground 3)

Relevant principles

92. The reason allowing an appellate court to set aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial is a miscarriage of justice under the third limb of s 6(1) of the Criminal Appeal Act (Mickelberg v The Queen (1989) 167 CLR 259 at 301; [1989] HCA 35). There can be no miscarriage in the failure to call evidence at trial if that evidence was then available, or with reasonable diligence could have been available.

93. As Toohey and Gaudron JJ observed in Mickelberg at 301, there is no “very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal”. More fundamentally the inquiry as to whether there has been a miscarriage takes its form from the order sought – whether a verdict of acquittal or a new trial – and the capacity of the new or fresh evidence to sustain that order.

94. Here the applicant seeks an order for a new trial. In such a case, as summarised by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63], the following two questions arise with respect to the “fresh” evidence:

1. Is it “credible” or at least capable of belief (Gallagher v The Queen (1986) 160 CLR 392 at 395; [1986] HCA 26 per Gibbs CJ), or “plausible” (Mickelberg at 301 per Toohey and Gaudron JJ)?

2. If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher at 410 per Brennan J) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher at 402 per Mason and Deane JJ)? See Mickelberg at 301-302 per Toohey and Gaudron JJ.

The “fresh” evidence

95. The “fresh” evidence on which the applicant relies is that of Ms Boyling given by an affidavit affirmed on 12 November 2021. In that affidavit she gives evidence of a telephone conversation with MW which took place between 30 June and about 3 July 2020. In that conversation Ms Boyling says that MW told her of a meeting between MW, GD and GD’s parents Daniel and Rosie, at which HH and CD were present. The context in which the conversation between Ms Boyling and MW took place was Ms Boyling’s informing MW that the applicant had been found not guilty of the charges concerning CD. That verdict of not guilty was delivered on 26 June 2020. According to Ms Boyling’s note which is Annexure “B” to her affidavit, MW said: “We all got together one day and decided Daniel had done the same thing to [CD] and [HH] after [HH] had spoken to her”. Ms Boyling “asked her who [the] ‘we were’ that she was referring to and she advised GD, his parents, Rosie and Daniel, herself and [HH]”.

96. The note does not say when they all “got together”. However, it refers to those present deciding in relation to CD that the applicant had done the “same thing” to HH and suggests that the participants did so “after [HH] had spoken to her”, that being a reference to MW. It must follow that the conversation and “decision” referred to occurred some time after October 2018.

97. If Ms Boyling’s note is read in this way, it is consistent with para 56 of her affidavit, in which she says that she asked MW “when did this happen?” and was told “in 2018 after [SW] died”. Her oral evidence did not take the matter further. She confirmed that she did not know “when in 2018” the allegedly reported conversation had occurred. Ms Boyling was not otherwise cross-examined about this being the correct understanding of her note, which her affidavit evidence suggests was prepared in November 2020 to be forwarded to a Detective Hinds (paras 68, 69 and 70 – the references to the date of the email to the detective being to November 2020).

98. The Crown acknowledges that this evidence appears to be “fresh” in the sense that it was not actually available to the applicant at the time of the trial, and could not by reasonable diligence have been available.

99. In her affidavit sworn 20 May 2022 and in cross-examination MW denied having a discussion with Ms Boyling in the terms described in her affidavit. That said, there was undoubtedly a telephone communication between Ms Boyling and MW in late June or early July 2020. There were then text message exchanges, including a message from Ms Boyling to MW sent at 5:38pm on 3 July 2020 which included:

… I received a call to tell me Daniel had been convicted and they are going to appeal. What else can I say to you. … [HH] said she was hoping to change schools soon. I told [SW] and [HH] it was best not to discuss this at the party but if they ever needed me just to let me know. To see the hurt in SW of this situation was truly sad knowing what she had gone through herself. But I am a forgiving person, I felt I stuck by you and your family over the years when I could. One of [SW’s] old girlfriend[s] told me about Daniel.

100. That message contained no reference to or comment upon any recent conversation in which MW had said that she and others had met and decided that the applicant was guilty of sexually assaulting CD as well as HH. That was so notwithstanding that in cross-examination Ms Boyling said that she was completely “shocked and taken aback” by MW’s information, which she understood to imply that the charges against the applicant were a “fabrication”.

101. As to the potential relevance of this evidence in the context of the evidence given at trial, counsel for the applicant contended that Ms Boyling’s evidence as to what had been said and agreed, and in the presence of HH, suggested that HH was exposed to strong suggestive statements expressed by family members close to her about the applicant and his conduct, and that this was likely to have had some influence on the statements she went on to make, presumably by complaint to the school, then in her interviews with the police and finally in her evidence to the court.

102. Thus its relevance is said to be as hearsay evidence of a conversation between MW, GD and his parents in the presence of HH and CD; and its significance depends on that conversation having occurred before HH made her complaint to Ms Mathieu in October 2018. Ms Boyling could not give direct evidence as to either of those matters, and her note suggests that as described any such conversation could only happened “after” HH had made her allegations to Ms Mathieu and then to MW.

103. The source of that hearsay evidence, MW, denied that she had had any such conversation with Ms Boyling, and also denied that the asserted underlying conversation had occurred. Furthermore, there was evidence at the trial which was inconsistent with such a conversation between MW, GD and his parents having occurred in the presence of HH at any time before October 2018. Some of that evidence, referred to below, informed the trial judge’s findings extracted at [77] above.

104. GD’s evidence was that the “first time” he heard anything about allegations against the applicant made by HH was during the Christmas period in 2018, when MW told him of them. His evidence was that at that time he did not have a good relationship with MW and that he never had a conversation with HH about her allegations concerning the applicant.

105. MW’s evidence was that the first time she was told of the allegations was in October 2018. She accepted that she told GD’s mother Rosie about HH’s complaint but could not remember when. She had visited Rosie’s house on the Central Coast earlier during Easter in 2018 with HH. However, her evidence was that she had no conversation with GD’s “side of the family” about the custody of CD during 2018 because she “didn’t want to have nothing to do with her” or it.

106. HH maintained that her teacher was the first person she spoke to. She did not tell any family members or anybody else in 2018 that she was “scared for [CD]”. She did not speak to GD in 2018. However, she did visit his parents’ house at Easter time with MW so she could see CD. She appreciated at some time that there was a possibility that if the applicant went to prison GD might get full-time custody of CD, and described the occasions on which she saw GD and CD in 2018 as “not often at all”.

107. Finally, in her cross-examination CD denied having any conversations with HH about whether Daniel had “done any sexual things” to her.

108. Addressing the first question raised by this ground, where the probative value of the evidence is as hearsay and the source of the hearsay denies that she made the statement relied on as well as the truth of the underlying facts asserted, the hearsay evidence can have little probative value. More fundamentally MW, the maker of the “previous representation”, gave evidence at the trial and presumably would be available to give evidence at any re-trial. In that circumstance, Ms Boyling’s evidence of MW’s statement would not be admissible by reason of the hearsay rule (Evidence Act 1995 (NSW), s 59) and the likely unavailability of the exceptions in ss 65 and 66.

109. However, it is not necessary to resolve that question of admissibility because even if the hearsay evidence had been available, it is not at all likely to have caused the trial judge to have entertained a reasonable doubt as to the applicant’s guilt by reason of the possibility that HH’s evidence was not to be believed. The occurrence of the allegedly reported conversation in early 2018 was contradicted by the terms of Ms Boyling’s note, MW’s outright denial of such a conversation having taken place, and the evidence of MW, GD, HH and CD given at the trial.

110. Its happening and giving rise to any reasonable doubt as to the credibility and reliability of HH’s evidence was inconsistent with the trial judge’s findings at [77] above, and the evidence sought to be led does not give rise to any real prospect that the trial judge might have found differently in those respects.

111. It follows that the unavailability of the “fresh evidence” at the trial did not give rise to or constitute any miscarriage of justice. Ground 3 should also be dismissed.

Conclusion

112. For these reasons the applicant should be granted leave to appeal in respect of grounds 1 and 2, and the appeal on those grounds and ground 3 should be dismissed.

113. MITCHELMORE JA: I have had the advantage of reading in draft the judgment of Meagher JA. I agree with the orders his Honour proposes for the reasons his Honour has given.

114. In relation to Ground 2 specifically, Meagher JA has summarised the evidence in the trial that is of particular relevance to the issues that the applicant raised in relation to this ground. I have conducted an independent assessment of the evidence in the trial and am of the view that it was reasonably open to the trial judge to be satisfied of the applicant’s guilt on counts 1 to 5 of the indictment beyond reasonable doubt.

115. BELLEW J: I have had the advantage of reading, in draft, the judgment of Meagher JA and agree with the orders that his Honour proposed, for the reasons he has given.

116. Specifically, in respect of ground 2, I have undertaken an assessment of the evidence before the trial judge. I am not satisfied that her Honour ought to have entertained a reasonable doubt as to the appellant’s guilt. For the reasons given by Meagher JA, her Honour’s conclusion that she was satisfied of the appellant’s guilt beyond reasonable was open.

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Decision last updated: 05 December 2022