MLW v The Queen

CITATION:MLW v The Queen [2022] NTCCA 2
PARTIES:MLW
v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CCA 7 of 2020 (21521727)
DELIVERED:  24 January 2022

HEARING DATES: 18 February, 10 & 11 May 2021
JUDGMENT OF: Grant CJ, Southwood and Brownhill JJ

CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict

Applicant found guilty of two counts of maintaining a sexual relationship with a child under 16 years following trial by jury – Whether one or more irregularities in conduct of trial comprised a miscarriage of justice – Failure to discharge jury after prosecution opening and after evidence led from complainants’ mother not a miscarriage of justice – Whether verdicts unreasonable and not supported by evidence at trial – The purported discrepancy between complainant’s evidence that offending happened on her fourth birthday and other evidence showing it could not have done so did not lead to a satisfaction that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt – Whether impropriety in Crown submission to jury that they could find guilt if they found the offending could have occurred on an occasion other than complainant’s fourth birthday – Whether appellant denied opportunity to address offending on some other occasion within period identified by indictment – Occasion of offending was not an element of the offence nor the basis for Crown’s case nor essential to conviction – Crown address not a miscarriage of justice – Whether trial judge misdirected the jury that no challenge to mother’s evidence about statement made by child – Direction to jury accurately stated defence position – Cross-examination of mother was necessary for defence to challenge mother’s evidence by rule in Browne v Dunn – Failure to do so and defence’s acceptance of trial judge’s proposition there was no challenge to mother’s evidence were deliberate tactical decisions by defence – No erroneous misdirection given – Whether Crown address improper – Crown submission to jury suggesting no explanation for child’s statement to mother other than guilt of accused – Crown submission did give rise to risk of jury giving statement undue weight – Risk adequately addressed by trial judge’s directions to jury – Whether refusing defence application to re-open re-examination of accused to give a live demonstration of his production of a Google Earth photograph, together with other matters raised in appeal, gave rise to miscarriage of justice – Refusal of application did not deny opportunity to restore credibility – No aggregate miscarriage of justice – Appeal dismissed.

Astbury v The Queen [2020] VSCA 132, BCM v The Queen (2013) 303 ALR 387, Browne v Dunn (1893) 6 R 67, Crofts v The Queen (1996) 186 CLR 427, Dossi v The Queen (1918) 13 Cr App R 158, FN v The Queen [2021] NTCCA 5, Foster v The Queen [2021] NTCCA 8, GAX v The Queen (2017) 344 ALR 489, GBF v The Queen (2020) 94 ALJR 1037, Hamide v The Queen [2019] NSWCCA 219, Hillier v The Queen (2008) 1 ACTLR 235, HML v The Queen (2008) 235 CLR 334, Hofer v The Queen (2021) 95 ALJR 937, Kennedy v The Queen (2000) 118 A Crim R 34, King v The Queen (1986) 161 CLR 423, Libke v The Queen (2017) 230 CLR 559, Lynch v The Queen [2020] NTCCA 6, M v The Queen (1994) 181 CLR 487, Maric v The Queen (1978) 52 ALJR 631, MLW v The Queen [2018] NTCCA 19, MWJ v The Queen (2005) 80 ALJR 329, Nadjowh v The Queen [2019] NTCCA 6, Nudd v The Queen (2006) 80 ALJR 614, Pell v The Queen [2020] HCA 12, R v Connolly (No 2) [1991] 2 Qd R 171, R v M, WJ [2004] SASC 345, Reid v Kerr (1974) 9 SASR 367, SKA v The Queen (2011) 243 CLR 400, Stevens v The Queen (2005) 227 CLR 319, Stringer v The Queen (2000) 116 A Crim R 198, The Queen v Anderson (1991) 53 A Crim R 421, The Queen v Colville (2003) 137 A Crim R 543, The Queen v Ireland (1970) 126 CLR 321, The Queen v Markuleski (2001) 52 NSWLR 82, The Queen v Morrow (2009) 26 VR 526, The Queen v Tangye (1997) 92 A Crim R 545, The Queen v Turner [1975] QB 834, Tran v The Queen (2000) 105 FCR 182, Tyrell v The Queen [2019] VSCA 52, VHP v The Queen (unreported, NSWCCA, 7 July 1997), Weiss v The Queen (2005) 224 CLR 300, referred to.
REPRESENTATION:
Counsel:
Appellant:JCA Tippett QC
Respondent:  S Robson SC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  81

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
MLW v The Queen [2022] NTCCA 2

CCA 7 of 2020 (21521727)
BETWEEN:
MLW
Appellant

AND:
THE QUEEN
Respondent

CORAM: GRANT CJ, SOUTHWOOD and BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered 24 January 2022)
THE COURT:

The appellant was charged with 15 counts relating to sexual activity with two children under the age of 16, CMW and CAW. Following a trial by jury, the appellant was found guilty of two counts (counts 1 and 12) of maintaining a sexual relationship with a child under the age of 16, contrary to s 131A(2) and (5) of the Criminal Code 1983 (NT) (‘Criminal Code’). Count 1 related to the child CMW and count 12 related to the child CAW. The appellant was also found guilty of three circumstances of aggravation in respect of count 1, namely: (i) having sexual intercourse with CMW when she was under 10, contrary to s 127(1)(a) and (3) of the Criminal Code; (ii) indecently dealing with CMW when she was under 10, contrary to s 132(2)(a) and (4) of the Criminal Code; and (iii) exposing CMW to an indecent film when she was under 10, contrary to s 132(2)(e) and (4) of the Criminal Code. The appellant was also found guilty of two circumstances of aggravation in respect of count 12, namely: (i) having sexual intercourse with CAW when she was under 10, contrary to s 127(1)(a) and (3) of the Criminal Code; and (ii) indecently dealing with CAW when she was under 10, contrary to s 132(2)(a) and (4) of the Criminal Code. The other 13 counts on the indictment were charged in the alternative to counts 1 and 12, so verdicts on those other counts were not sought.
The appellant was granted leave to appeal out of time against those convictions on six grounds. Before the hearing of the appeal, the appellant sought leave to add a further ground. At the hearing of the appeal, the appellant abandoned the proposed seventh ground, and sought leave to amend a number of the original grounds and add new grounds. A proposed Notice of Appeal was provided on around 10 May 2021, which repeated five of the six original grounds of appeal and added four new grounds of appeal. Leave was granted to the appellant to appeal on the nine grounds contained in the Notice of Appeal dated 10 May 2021.
Background
The prosecution of the appellant has a lengthy and complex history. It has now involved four jury trials. The first trial commenced on 30 November 2015 and resulted in a hung jury. The second trial commenced on 12 July 2016 and terminated when the jury was discharged mid-trial because a Crown witness became ill and was unable to give evidence. The third trial ran from 6 to 15 March 2017. At the conclusion of the third trial, the jury found the appellant guilty of maintaining relationships of a sexual nature with CMW and CAW when they were under the age of 16. Following that trial, the appellant successfully appealed to the Court of Criminal Appeal.[1] His convictions were set aside and a retrial was ordered. The fourth trial ran from 3 to 14 February 2020. At the start of the fourth trial, a fresh indictment was presented by the Crown, charging the appellant with the 15 counts referred to in paragraph [1] above. The verdicts of the jury after the fourth trial were as described above.
Crown case
The Crown case was that between January 2006 and January 2013, the appellant maintained an ongoing sexual relationship when in the company of the complainants while they were between the ages of 4 and 12. The appellant was between 58 and 65 years old during that period. He was the complainants’ paternal grandfather. The sexual misconduct included digital/vaginal penetration, fellatio, cunnilingus and exposing CMW to pornographic films. Evidence called by the Crown included the direct evidence of the complainants, complaint evidence, evidence of uncharged acts and evidence from the complainants’ mother, KJC, that in 2006, CMW told her that, ‘Grandad said that Nanna likes to drink the stuff that comes out of his penis’ (‘CMW’s statement’). CMW was five years old at the time, and had just returned from a shopping trip with the appellant. CMW did not recall making the statement to KJC or hearing the appellant say those words to her.
CMW’s statement – significant probative value as tendency evidence
In MLW v The Queen, the Court observed (at [9]) that CMW’s statement was a ‘very important piece of evidence in the Crown case’, and that:
The evidence is potentially very powerful evidence because the statement attributed to the appellant by CMW involves the appellant speaking about the sexual act which constitutes the majority of sexual offences said to have been committed by the appellant against CMW. The … statement reveals the appellant’s very particular sexual interest in CMW and him grooming her.
The Court held that CMW’s statement:
(a) was relevant to a fact in issue, could be used as if it was the evidence of CMW and was not excluded by the hearsay rule (at [29]);
(b) could not be used as corroboration evidence, ie evidence which independently supported CMW’s evidence (at [42], [47], [54]), except that KJC’s evidence about it being made independently supported the fact that CMW made a prior consistent statement that could be used to rebut the suggestion that CMW concocted her evidence (at [47]);
(c) was not complaint evidence, but an integral part of CMW’s account of what happened (at [54]);
(d) was tendency evidence because it revealed not just a sexual interest in CMW but a tendency of the appellant to act on his sexual interest in CMW (at [72]);
(e) had significant probative value as tendency evidence (at [32], [76]-[77]); and
(f) posed risks that the jury might misuse it with prejudicial effect on the accused, namely risks that:
(i) the jury’s assessment of whether the prosecution has discharged its onus might be clouded by the jury’s emotional response to it;
(ii) the jury would reason that because the appellant is the kind of person who would make such a statement to a child he is the kind of person who would commit the charged offences; and
(iii) the jury might give it disproportionate weight (at [78]-[79]).
The Court held (at [80]) that the risks could be overcome by appropriate directions to the jury and that the probative value of CMW’s statement substantially outweighed any prejudicial effect it may have on the appellant. The Court set out (at [89]) the directions to the jury which were required to address any prejudicial effect on the accused of admitting CMW’s statement into evidence.
We respectfully agree with the Court’s conclusions about CMW’s statement.
KJC’s explanations – inadmissible ‘bolster’
In describing the background of CMW’s statement, the Court in MLW v The Queen set out (at [12]) an extract of KJC’s evidence-in-chief given at that trial, in which KJC described the content of CMW’s statement and when it was made. She said she did not recall saying anything in response because she was in shock, she had never discussed such things with CMW, who was five at the time, KJC spoke to her sister about it either that day or the day after and, after doing that, KJC restricted the time that her children were left alone with the appellant, and then moved (from living with the appellant and his wife) to her sister’s home to ‘give distance’. The Court observed (at [13]) that KJC’s evidence about talking to her sister and restricting her children’s access to the appellant was inadmissible because it impermissibly bolstered the evidence of KJC.
Section 102 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’) prescribes ‘the credibility rule’, which provides that credibility evidence about a witness is not admissible. ‘Credibility evidence’ is defined by s 101A to mean evidence relevant to the credibility of the witness that: (a) is relevant only because it affects the assessment of the credibility of the witness; or (b) is relevant: (i) because it affects the assessment of the credibility of the witness; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6 of the ENULA.
There are a number of exceptions to the credibility rule, including evidence adduced in cross-examination that could substantially affect the assessment of the witness’s credibility (s 103), certain evidence adduced in cross-examination from the defendant in criminal proceedings (s 104) and evidence adduced in re-examination (s 108).
These provisions reflect the common law ‘bolster rule’, which has been described as follows:
[I]n general, evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up.[2]
The bolster rule prevents witnesses from accrediting themselves in examination-in-chief, a particular aspect of which is their incapacity to anticipate attacks which may be made in cross-examination. The bolster rule has been explained as follows:
Only facts in issue should be led in chief. A witness may not lift himself by his own bootstraps to enhance his credit. If the fact which he states is challenged by the adverse party then that will be made apparent during cross-examination. The witness’s reasons for doing the act or his purpose in doing so may then quite properly be asked, because it may help to show whether he should be believed in relation to that particular fact (ie on the question of credit). But it is for the cross-examiner, not the party calling the witness, to raise matters that go to credit. When this happens it may be permissible in re-examination to adduce evidence of the witness’s state of mind when he did the act or made the observation or statement.[3]
Generally speaking, we agree with the observation of the Court in MLW v The Queen (at [13]) that KJC’s evidence that she spoke to her sister about CMW’s statement and that she restricted the children’s time alone with the appellant was inadmissible as bolster. That is because it disclosed that KJC acted on CMW’s statement, which may help to show that KJC should be believed about CMW making the statement to her. However, we note that the Court was referring only to the purpose of the evidence as bolster, and was not purporting to refer to any other purpose for which the evidence might be admissible. In the language of s 101A of the ENULA, the evidence would not be credibility evidence (or ‘bolster’) if it is relevant for some other purpose for which it is admissible.
Ground 1: Failure to discharge jury after prosecution opening address
What happened at trial
The prosecutor’s opening address to the jury began as follows:
Ladies and gentlemen, the two words “if only” are probably two of the more futile words in the English language. That sense of regret of either having done something or not having done something in your past you can’t change and that had significant consequences for you or for the ones that you love, is something that unfortunately, probably all of us had to grapple with at some point in our lives.
If there was a moment where a decision was made and the future showed that it was the wrong one, for [KJC], that moment came in early 2006 when she had recently moved up from South Australia with her family. Her husband, [MCW] … and their two children, two daughters, CMW and CAW, came up to Darwin partly because of business and work reasons and partly because the father of MCW, the accused, MLW, lived up here.
Now in fact, he lived at a unit in Bayview and for the initial few months when they moved up from South Australia, they shared that accommodation with him. Now, the moment that I spoke about, the moment of regret for [KJC], came when her 5-year old daughter, her then 5-year old daughter, who had been alone with the accused in the moments, minutes before this moment, came up to her and had said, ‘Grandad told me that nanna likes to drink the white stuff that comes out of his penis.’
Now, for [KJC], having your 5-year old daughter say that to you out of the blue, no other lead up to that, shocked her to her core. She didn’t know how to respond to CMW. But she also didn’t know how to respond in the minutes and hours that followed. What do you do with that information? How does a 5 year old girl come out with that? What do I do?
Her initial response was to seek some assistance from friends and come to the conclusion that for the next point in time, she would control the amount of access that the accused, CMW’s grandfather, would have with her.
Now you might think, well hang on, how can that be all? Wouldn’t you do something more? Go to police. Do something else. Now, the context that surrounded this was that her husband, the accused’s son and the accused were unbelievably close. They worked together. They were mates. To be honest, they were probably as close as a father and son could be.
And she knew that if she raised what had been said to her by her daughter, their daughter, that that might have some irreversible impact on that relationship. So, she made the decision not to tell her husband. She made the decision not to contact police and for roughly, as I said, the next few months to a year, she tried to control the amount of time that the girl spent alone with the accused.
However, shortly after that 12 months was up, when CMW was 6 years of age, it will be alleged by the Crown that the accused, MLW, began to sexually abuse his granddaughter.[4]
At the end of the Crown’s opening, counsel for the appellant made an application for the jury to be discharged on the basis that evidence that, after CMW’s statement was made, KJC obtained assistance from friends, was inadmissible as pure bolster, was highly prejudicial to the appellant and could not be dealt with by the trial judge without drawing further attention to and placing emphasis upon it in the minds of the jury.[5]
The trial judge refused the application to discharge the jury on the basis that the matter was not of sufficient significance for a discharge at such an early stage of the trial, noting that he had spoken to the prosecutor about that evidence from KJC being inadmissible as bolster and that, consequently, the expectation was that it would not be led in the trial, unless KJC was cross-examined about her response(s) to CMW’s statement.[6]
The appeal ground
This ground asserts error by the trial judge in not discharging the jury. The appellant argued that the prosecutor’s opening was ‘particularly emotive’, gave CMW’s statement pre-eminence, and introduced impermissible bolster evidence ruled to be inadmissible in MLW v The Queen that was ‘severely prejudicial’ to the appellant, namely the references to KJC seeking assistance from friends, limiting the access the appellant would have with CMW, not telling her husband because he was so close to his father, the appellant, and not otherwise raising the matter because she feared it would have an irreversible impact on her husband’s relationship with his father. This was argued to have been done by the prosecutor knowing that the evidence was inadmissible, given he was the prosecutor in the third trial and counsel for the respondent in MLW v The Queen.
Legal principles: miscarriage of justice and failure to discharge the jury
This is an appeal against the findings of guilt brought pursuant to s 410 of the Criminal Code. By s 411(1) and (2) of the Criminal Code, such appeals must be allowed if the Court is of the opinion that the verdict of the jury should be set aside (relevantly) if there was a miscarriage of justice, unless the Court is of the opinion that no substantial miscarriage of justice has occurred.

In Weiss v The Queen,[7] the High Court held (at [18]) that a miscarriage of justice to which the equivalent of s 411 of the Criminal Code referred includes any departure from a trial according to law to the prejudice of the accused.
Where the appeal is founded upon a miscarriage of justice occasioned by a trial judge’s refusal to discharge the jury, the appeal is not against the failure to discharge the jury but against the findings of guilt.[8]
The High Court has expressed the principles that guide the exercise of a trial judge’s discretion whether to discharge a jury as follows (citations omitted):
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.[9]
Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge’s discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that ‘a high degree of need for such discharge’ must appear before a discharge will be ordered. When a trial judge’s refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.[10]
The High Court has also expressed the principles concerning appellate review of a trial judge’s discretion to refuse to discharge a jury as follows:
…[T]he duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?[11]
It should be noted that the reference to ‘a substantial miscarriage of justice’ reflects the language of ‘the proviso’ in s 411(2) of the Criminal Code, rather than the language of s 411(1), which refers only to a ‘miscarriage of justice’. The latter is, of course, the first step to be considered on this kind of appeal. It should also be noted that the admission of inadmissible evidence is not the only basis that raises the prospect of discharge of a jury.
The New South Wales Court of Criminal Appeal has held, in dealing with an appeal pursuant to a provision in similar terms to ss 410 and 411 of the Criminal Code, that the principles set out in paragraphs [22] and [23] above are the relevant principles to be applied to appeals grounded in a failure to discharge the jury, rather than the principles in House v The King (1936) 55 CLR 499, which generally apply to discretionary decisions.[12]
It has been held that an appellant will succeed in establishing that a miscarriage of justice has occurred if they can satisfy the Court that, as a result of the trial judge’s refusal of the discharge application, the appellant may have lost a chance which was fairly open of being acquitted.[13] However, while the loss of a chance of acquittal that was fairly open may amount to a miscarriage of justice, that possibility does not mean or require a conclusion that the miscarriage of justice was ‘substantial’.[14]
It has also been held that, because the appeal is an appeal against the ultimate findings of guilt, when individual faults are suggested to have caused a trial to miscarry, the faults, if established in fact, must be related to the conviction, and must be related in such a way as justifies an ultimate conclusion on the part of the appellate court that justice done according to law requires that the findings of guilt not be allowed to stand.[15]
More recently, in Hofer v The Queen,[16] Gageler J, although in agreement with the plurality (expressed at [80]), wrote a separate judgment to explain (at [81]-[98]) the content of the ‘miscarriage of justice’ ground and the ‘no substantial miscarriage of justice’ proviso, and the difference between them, as expounded in Weiss.
His Honour formulated the approach of an appellate court to this ground in a way which we respectfully adopt as both consistent with earlier authority and principle, and useful.
His Honour set out (at [114]) the observation of Gummow and Hayne JJ in Nudd v The Queen,[17] that ‘miscarriage of justice’, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial, and determining what is the miscarriage of justice requires consideration of what did or did not occur at the trial, of whether there was a material irregularity at the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
Gageler J observed (at [115]) that the need for an appellate court to consider, and ordinarily be satisfied of, a significant possibility that the acts or omissions affected the outcome of the trial has routinely informed the analysis undertaken to establish whether or not there was a miscarriage of justice in subsequent cases. His Honour agreed (at [118]) with the plurality’s conclusion and expression that there was ‘a real chance’ that the jury, in reaching its guilty verdicts, inferred from the manner of cross-examination of the accused leading to the admission of inadmissible evidence, that the appellant had invented his testimony, in a case where his credibility was very important. His Honour held that what is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial.
His Honour added (at [120]) that terms like ‘real chance’, ‘significant possibility’, ‘perceptible risk’ and ‘substantial risk’ are all different ways of expressing a realistic possibility of a causal connection between one or more identified legal errors or procedural irregularities and the verdict returned by the jury. His Honour explained (at [121]) that the requisite analysis in the context of finding a miscarriage of justice is factual, and the inquiry is into the tendency or propensity of an error or irregularity to have affected the basis on which the jury actually reached its verdict in the totality of the events that occurred in the trial that was had, rather than into the outcome of a hypothetical trial before a hypothetical jury in which the error or irregularity is assumed not to have occurred. His Honour observed (at [122]) that such is the proper framing of the inquiry to be undertaken by an appellate court since the High Court’s decision in Weiss, where before that decision both the miscarriage of justice ground and the non-application of the proviso had been commonly explained to involve the finding of a loss of a real chance of acquittal or of a chance which was fairly open of being acquitted.
In summary, we consider that to establish a miscarriage of justice arising from material irregularity in the trial, the appellant must show a realistic possibility that the identified procedural irregularity affected the basis on which the jury reached its verdict of guilt, in the context of the trial as a whole. It is only if that threshold is met that the appellate court is required to go on to consider the proviso and answer the quite distinct question of whether it is satisfied that no substantial miscarriage of justice actually occurred.
Consideration
Contravention of the Court’s ruling in MLW v The Queen?
The Court’s decision in MLW v The Queen was about the admissibility of CMW’s statement and the adequacy of the trial judge’s directions to the jury about it. The decision was not about the admissibility of KJC’s evidence. The Court’s observations at [13] about KJC’s evidence as bolster were not a ruling as to the admissibility of that evidence.
Counsel for the respondent argued that the Court’s observations did not speak for other potential uses of the evidence, such as the non-credibility purpose of explaining any delay between CMW’s statement in 2006 as a manifestation of the appellant’s sexual interest in her and the alleged commencement of the sexual relationship,[18] without which the jury might have considered it less likely that CMW’s statement demonstrated the appellant’s sexual interest. We agree that, if tendered for that purpose, the evidence would not have been bolster and would have been admissible.
A ‘mere slip’ or deliberate conduct?
Counsel for the appellant argued that, because the prosecutor was also the prosecutor in the third trial and counsel for the respondent in MLW v The Queen, he would have been aware of the Court’s observations (at [13]) about the inadmissible bolster evidence. The implication of the submission was that the prosecutor’s conduct was a deliberate breach of the prosecutor’s duties and an intentional flouting of the Court’s observations about the inadmissibility of bolster evidence in MLW v The Queen.
At this point in the trial, the jury had been told by the trial judge that the Crown’s opening address is not evidence and that the evidence may or may not come out the way the Crown expects it to.[19] For the prosecutor to refer to evidence which was patently (but had not been ‘ruled’ by the Court in MLW v The Queen to be) inadmissible for one evidentiary purpose, but was admissible for another, was neither a breach of the prosecutor’s duties[20] nor in contravention of the Court’s decision in MLW v The Queen.
The prosecutor’s opening was arguably emotive in the context of alleged sexual offending against children and the Court’s observations in MLW v The Queen about the risks of prejudice to the appellant arising from the admission into evidence of CMW’s statement. It was also arguably close to the bounds of objectivity or neutrality generally expected of a prosecutor. However, the content of and language used in the subject parts of the prosecutor’s opening was not such as to impermissibly or necessarily excite sympathy for the victims or prejudice against the appellant.[21] Further, this ground of appeal makes complaint in relation to the prosecutor’s reference to evidence inadmissible as bolster, but that was not the subject of the Court’s decision in MLW v The Queen. There was a single observation in the Court’s lengthy reasons about the inadmissibility of such evidence as bolster. Having regard to that context, the reference to the evidence in the Crown opening is appropriately characterised as a ‘slip’ rather than a deliberate attempt to flout the decision in MLW v The Queen.
Consequence of failure to discharge: bolster evidence sought to be led
Counsel for the appellant argued that the consequence of the trial judge’s failure to discharge the jury at this point was that the prosecutor sought to elicit the bolster evidence from KJC and the complainants’ father and appellant’s son, MCW. The (asserted) fact of this occurring is the subject of ground 2 and is dealt with below. The present ground related to the decision of the trial judge not to discharge the jury before this occurred.
At this stage in the trial, the trial judge had pointed out to the prosecutor that KJC’s evidence was inadmissible as bolster evidence and was told by the prosecutor that the evidence referred to would not be led in chief, and would only be elicited if there was an attack on KJC’s credibility.[22] The reasonable expectations and assumptions were that the bolster evidence would not be led, and the jury would follow the direction to decide the case on the evidence, not the Crown’s opening; or that the evidence would be led if KJC’s credibility was impugned in cross-examination, and the jury would hear evidence consistent with the Crown’s opening. A deviation from that course could not reasonably have been anticipated, and so could not sensibly bear on the trial judge’s determination of the application to discharge the jury. In light of the issues raised by ground 2, it is not necessary to consider this aspect of this ground further.
No bearing on a live issue
Counsel for the respondent argued that KJC’s credibility in relation to her evidence about CMW’s statement was not in issue in the trial, with the consequence that the reference to inadmissible bolster material in the prosecutor’s opening had no bearing on a live issue in the trial and could not have denied the appellant the chance, fairly open, of being acquitted.
This submission was founded on the fact that defence counsel did not cross-examine KJC about CMW’s statement,[23] and defence counsel's eventual agreement with the trial judge’s proposition that it was not contested that CMW said the words comprising CMW’s statement to KJC.[24]
Counsel for the appellant argued that the acceptance of the trial judge’s proposition was in error because the defence position was, as put in the defence closing address: the appellant had never said those words to CMW; given CMW’s recollection, she could not be cross-examined about it; the words were hearsay and consequently unreliable; KJC had given other evidence which was unreliable; and KJC did not ask CMW any further details about it, which in ordinary human experience one would expect.[25]
Whether or not KJC’s credibility regarding CMW’s statement was a live issue in the trial is dealt with below in relation to appeal ground 7. For the reasons there set out,[26] KJC’s credibility in relation to CMW’s statement was not a live issue in the trial.
Conclusion
It follows from the above that the appellant has not demonstrated a realistic possibility that the trial judge’s failure to discharge the jury after references in the Crown’s opening to evidence which was inadmissible to bolster KJC’s credibility regarding CMW’s statement affected the basis on which the jury reached its verdict of guilt on count 1. Accordingly, it did not give rise to a miscarriage of justice. This ground is not made out.
Ground 2: Failure to discharge jury after prosecution attempted to elicit bolster evidence
What happened at trial
On the sixth day of the trial, being the next hearing day after KJC and MCW had completed their evidence, defence counsel made a further application to discharge the jury. The basis for the application was the ‘damage done’ by the prosecutor’s opening, together with objections made by defence counsel to KJC’s explanations, which were said to give rise to ‘extreme prejudice’ to the appellant which could not be cured by directions to the jury.[27] During argument on the application, defence counsel again relied on the prosecutor’s opening referring to KJC’s responses to CMW’s statement; argued that the Court in MLW v The Queen had found that evidence to be ‘absolutely and utterly inadmissible’; and argued that the Crown opening was ‘severely prejudicial’ because there was no evidence before the jury about those responses, and none could now be called because the evidence of KJC was completed.[28] Defence counsel pointed[29] to his objections to the prosecutor asking KJC: (i) what her response was to CMW’s statement;[30] (ii) why she did not tell her husband about CMW’s statement;[31] and (iii) to describe the relationship between her husband and the appellant[32]. After the trial judge pointed out that the question in (i) was not part of the Court’s observation in MLW v The Queen (at [13]) that some of KJC’s evidence was inadmissible as bolster evidence,[33] defence counsel submitted that there were at least two occasions on which he had had to object to the prosecutor leading inadmissible bolster evidence.[34] Asked to identify occasions other than the two in (i) and (ii), defence counsel could not do so.[35] The trial judge then suggested the possibility that the evidence of MCW about the closeness of his relationship with the appellant[36] compounded the prejudice. Defence counsel adopted that suggestion, saying he could not have objected to that evidence in the circumstances.[37] Defence counsel also raised the prosecutor asking KJC when, during the period they lived with the appellant and his wife at the unit in Bayview, CMW’s statement was made.[38] This was argued to raise in the jury’s minds the reference in the prosecutor’s opening to the inadmissible bolster evidence of KJC limiting the children’s access to the appellant.[39]
Defence counsel argued that, by having to object, the jury would perceive him as preventing them from hearing evidence the prosecutor had referred to in the Crown opening,[40] and that if the jury were directed to put from their minds the inadmissible evidence referred to in the Crown opening, they would conclude that it was the defence who wanted to prevent them hearing about it.[41] Defence counsel also pointed to the sensitive and potentially prejudicial nature of CMW’s statement,[42] and the failure of the prosecutor to tell the jury that CMW’s statement was hearsay, ‘dangerous’ or ‘might be the subject of significant judicial attention’.[43]
The prosecutor submitted in response that the questions were asked for the purpose of eliciting admissible evidence about opportunity and to provide evidence about when in time CMW’s statement was made, and that there could not be unfair prejudice to the appellant from references to evidence inadmissible as bolster where the credibility of KJC as to CMW’s statement was not challenged in cross-examination.[44]
The trial judge refused the application to discharge the jury. The trial judge held that the references in the prosecutor’s opening to impermissible bolster gave rise to no more than minimal prejudice to the accused. That was because the defence case did not challenge the truth or accuracy of KJC’s evidence about CMW’s statement, and the possibility that the jury might give CMW’s statement undue weight would be eliminated to the maximum extent possible by the comprehensive directions set out at [89] of MLW v The Queen. In addition, the two objections identified by defence counsel did not impermissibly add weight to the prejudice.[45]
The appeal ground
Essentially the same argument put to the trial judge was put in relation to this ground of appeal.
Consideration
This ground raises essentially the same issues as ground 1, together with the asserted prejudice said to arise from the questions subsequently asked by the prosecutor as set out above. We reject the argument, for the reasons set out above in relation to ground 1 and the following additional reasons.
First, to the extent that the argument rested on the jury’s perception that, because of objections, the defence was seeking to keep information from the jury about KJC’s explanations referred to in the Crown opening, only two objections were identified. KJC’s evidence in total took from before the mid-afternoon break of 6 February 2021 to after the mid-morning break of 7 February 2021. During her examination-in-chief and re-examination, defence counsel made seven other objections. Of the two objections identified as prejudicial, one was an objection to KJC’s answer as irrelevant commentary, not to the question itself,[46] and the other objection was made without any indication before the jury of its nature or basis, and argued in the absence of the jury.[47] By their content and context, they are very unlikely to have raised the perception contended for in the jurors' minds.

Secondly, KJC’s evidence about her shock on hearing CMW’s statement is not bolster. That is, it is not credibility evidence within the meaning of s 101A of the ENULA because it does not affect the assessment of the credibility of KJC’s evidence about CMW’s statement. KJC’s evidence about why she did not tell her husband, and the closeness of the relationship between her husband and the appellant, could also have been relevant and admissible for the non-credibility purpose referred to in paragraph [35] above. That was the purpose for which it was said by the prosecutor to be relevant, as set out in paragraph [48] above. For that purpose, both that evidence and the evidence about leaving the Bayview unit were not credibility evidence within the meaning of s 101A of the ENULA.
Thirdly, even if KJC’s evidence was inadmissible bolster, the bolster of KJC’s credibility could not be prejudicial to the appellant when KJC’s credibility about the fact of CMW’s statement was not a live issue in the trial. As set out in paragraph [44] above, we have determined that it was not.
Fourthly, to the extent that the challenge to CMW’s statement otherwise rested on its hearsay nature, any prejudice to the appellant was addressed by the directions to the jury made by the trial judge which were consistent with the recommended directions given by the Court in MLW v The Queen.[48] The adequacy of the trial judge’s directions are the subject of ground 7, which is addressed below.
Conclusion
It follows from the above that the appellant has not demonstrated a realistic possibility that the trial judge’s failure to discharge the jury after references in the prosecutor’s opening to evidence which was inadmissible to bolster KJC’s credibility regarding CMW’s statement, and the prosecutor’s questioning or attempted questioning of KJC and MCW about some of those things, affected the basis on which the jury reached its verdict of guilt on count 1. It did not give rise to a miscarriage of justice. This ground is not made out.
Grounds 3 and 5: Guilt on count 12 unreasonable and not supported on the evidence
The relevance of count 13 to the finding on count 12
Counsel for the appellant argued that the verdict on count 12 arose from a material irregularity in the conduct of the case on count 13 which gave rise to a miscarriage of justice. In order to find the appellant guilty on count 12, the jury must have found him to have committed the offending alleged in count 13. That is because s 131A(3) of the Criminal Code requires the offender to have done an act constituting an offence of a sexual nature in relation to the child on three or more occasions, and those three occasions comprised the allegations the subject of counts 13, 14 and 15. These grounds of appeal challenge the finding of guilt on count 12 by reference to the necessary but implicit ‘finding of guilt’ on count 13.
The appeal ground
Counsel for the appellant argued that the prosecution opened on the basis that CAW would give evidence that the conduct alleged as the indecent dealing in count 13 occurred with CAW on her fourth birthday (which was on 22 August 2006), CAW gave that evidence and said the conduct occurred at the family home in Rosebery after CMW fed her dog ‘Tess’; and the defence met the allegation by eliciting evidence to show that the family had not taken up residence in that home at the time of CAW’s fourth birthday, and did not have the dog until mid-2007 after a boundary fence was built around the home. The appellant argued that these discrepancies should have caused the jury to have a reasonable doubt as to the guilt of the accused.
Legal principles – unreasonable verdicts
This ground of appeal rests on the reference in s 411(1) of the Criminal Code to a verdict that is ‘unreasonable or cannot be supported having regard to the evidence’.
The principles governing appeals on this ground of appeal were recently reviewed by this Court in Lynch v The Queen[49] and FN v The Queen,[50] and we largely repeat that review for ease of reference. In M v The Queen, the High Court stated:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’ or ‘dangerous or unsafe’. 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’.
…
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 and 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 regards to those considerations.[51]
The test in M v The Queen has been affirmed in subsequent decisions of the High Court.[52] An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, and to determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant. The task of conducting an independent assessment of the evidence requires an appellate court to weigh any competing evidence that might tend against the verdicts reached by the jury.[53]
In considering convictions for sexual offences, where it may be assumed that the jury assessed the complainant’s evidence as credible and reliable, there may be countervailing evidence which nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to guilt. The High Court has explained the process in the following terms:
The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the 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.[54]
In terms of resolving any doubt held by an appellate court, the majority in M v The Queen said:
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.[55]
In Libke v The Queen, Hayne J expressed the process of reasoning as follows (footnotes omitted):
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[56]
This formulation does not impose a stricter test than was laid down in M v The Queen. In Pell v The Queen, the High Court confirmed that the statement from Libke extracted above was consistent with what was said by the majority in M v The Queen.[57]
The matters which an appeal court may take into account in determining whether it was open on the evidence to be satisfied of guilt beyond reasonable doubt cannot be exhaustively catalogued. Matters which might give rise to a reasonable doubt include whether a lengthy delay in making complaint requires particular caution; whether there are material inconsistencies between the initial complaint and the evidence given at trial; whether the surrounding circumstances suggest some ulterior purpose for a complainant’s account; whether a complainant’s testimony should be considered unreliable due to intoxication or some impairment of memory or suggestibility; whether there is a real possibility that the complainant’s account was a reconstruction; whether collusion between a complainant and some other interested party cannot be excluded beyond reasonable doubt; or whether there are internal inconsistencies in the complainant’s evidence, or inconsistencies with other evidence, which necessarily give rise to a reasonable doubt.
Where it is asserted on appeal that a complainant’s evidence contained discrepancies, displayed inaccuracies, and otherwise lacked probative force that should lead to the conclusion, after making full allowance for the advantages enjoyed by the jury, that a jury, acting rationally, must have entertained a reasonable doubt as to guilt, the determination involves a two stage process.[58] The first stage involves determining whether each of the discrepancies or inaccuracies asserted by the appellant were in fact present in the evidence. The second stage involves determining whether such discrepancies and inaccuracies as there were, when taken either individually or in combination, go to the essential features of the complainant’s account of the offences;[59] and, if so, whether they necessarily give rise to reasonable doubt or whether they ‘were explicable in a manner that did not provide a basis for them to reflect on [the complainant’s] credit’.[60]
What happened at trial
CAW’s evidence from the 2015 trial was recorded when she was 13 years old. It was played to the jury in the trial which is the subject of this appeal and included the following passages:
CAW, when was it the first time that you can remember something happening with your grandfather?---My fourth birthday.
Okay. And do you remember where you were?---At my mum and dad’s place.
Okay, and was that in the Northern Territory in Darwin?---Yes.
Okay. Now, what do you remember about that occasion? You said it was your birthday. Can you tell the court about what happened?---Well, I don’t exactly remember much, but I remember everyone saying – well, everyone standing around the dining table, and CMW going to feed Tess, and I went to my room to go to bed.
And you said ‘feed Tess’, who was Tess?---My dog.
Okay. And you said that you then went to bed?---Yes.
And was it a bedroom that you had yourself or did you share it with someone?---I shared a bed with CMW, or shared a bedroom. We had different beds.
And you went to bed first. Was it night time or was it dark?---Not completely. There was a street light.
But the sun had gone down?---Yes.
And when you went into the bedroom, did you turn the light on or did you just leave it off?---I left it off.
And so what happened after you went to bed?---I laid down and watched TV on the TV I had in my room.
And did anyone else come in?---CMW came in afterwards.
And what did she do?---CMW when she was feeding Tess cut her hand on the can so she had a bandage on it.
And did she tell you about that when she came in?---No.
And where did she go?---She went to her bed.
And then did anyone else come into your bedroom?---Everyone did to say goodnight.
You said everyone. Is that your mum and dad?---Yeah. Mum, dad, nanna and grandad.
Did they come in all at the same time or did they come in by themselves?---One at a time by themselves.
And who came last?---My granddad.
And can you tell the court what he did when he came in?---He came in and said goodnight to CMW and gave her a hug and kiss, then came down and laid down next to me.
Now, when he lay down next to you, other than CMW, was there anyone else in the room?---No.
And when you said he laid down next to you, how were you laying? Were you laying on top of your blankets or underneath?---I was laying underneath my blankets on my back.
And the accused, how was he lying? Was he lying on top of the sheets?---On top of the sheets on his side.
And did he say anything to you?---He said ‘good night’.
…
And what did he do?---First he started rubbing my leg and then he worked his way up and started rubbing my stomach and my chest.
Now, when you say started rubbing your leg, was that on top of the blankets or underneath?---Underneath.
And do you remember – and it’s a long time ago – but do you remember what you were wearing that night?---I think my pink pyjama shorts and shirt.
And you said that he rubbed – was it with one hand or two hands?---One hand.
…
And on your stomach and chest, was that above your clothing or underneath?---Underneath.
And what happened after that?---Then he went back down and started rubbing the top of my vagina on top of my underwear.
And do you know … which hand he used?---No.
And was it one hand or two?---One.
What was he doing with the other hand or arm?---The other one was under my head…sort of holding my head up.
And you said with the other hand that he then touched – started rubbing the top of your vagina, on the top of your underwear; is that right?---Yes.
And then what else did he do?---Then he put his hand underneath my underwear so he was rubbing my vagina.
Now, when you say ‘rubbing’ are you able to describe what he was doing with his hands, how it was moving?---Just an up and down motion.
And was his hand or – what was he touching or rubbing your vagina with, his whole hand or his fingers?---Fingers.
Are you able to say which ones?---No.
And why was that?---It was dark and under my covers.
Now, do you know – when he was doing this, did he say anything to you?---No. All he said was ‘good night’ afterwards.
Do you know how long he rubbed your vagina for?---No.
Was it – are you able to – a short time, a matter of seconds, or a long time, a matter of minutes?---A few minutes.
…
How did it stop? Is there anything that happened or did he just stop doing what he was doing?---He just stopped doing what he was doing and got up and left.[61]
In cross-examination, CAW gave the following evidence:
Look, you told us that you remembered something that happened on your fourth birthday, and that was that … there was the rubbing, the touching under the covers, the rubbing went for a couple of minutes, he just stopped and got up and left. He used his fingers whilst he was rubbing your vagina. One hand was behind your head holding it up. You couldn’t remember that from your very first day of your fourth year, would you? What do you say to that?---I could remember it was under my head.
From your fourth birthday?---Yes.
Do you remember if you had a cake?---Yes.
Do you remember what was on the cake?---No.
Do you remember if you got a present?---Yes.
Do you remember what that present was?---Not all of them.
What I’m suggesting to you is that you just made that up. What do you say to that?---I didn’t.[62]
It was an agreed fact that the family lived in the Rosebery home between about October 2006 and November 2009.[63] The agreed facts were read by the prosecutor and tendered on the third day of the trial, before the evidence referred to below.[64]
KJC gave evidence that the family moved to the home in Rosebery in October 2006 and they lived there until November 2009,[65] that KJC, MCW and the children would catch up with the appellant and his wife ‘quite often’, especially after they built a house in the same suburb, which involved having dinner weekly either at KJC’s home or at the appellant’s,[66] and when the appellant and his wife went to KJC’s home, there was a bedtime routine which commonly included the grandparents each going in and saying goodnight.[67]
MCW gave evidence that the family moved to the home in Rosebery in about September 2006, when the building was not completely finished.[68]
In his evidence-in-chief, the appellant said that the family moved into the Rosebery home in around October or November 2006 and the fence was put up around the middle of 2007,[69] that the allegation in relation to CAW that allegedly occurred at the Rosebery home in August 2006 was an allegation he knew to be untrue,[70] which allegation included the fact that CAW was living in the Rosebery home and that the family owned a dog at that time.[71] He gave evidence that he got a Google Earth photograph of the home as at 31 December 2006, which did not show any fence around the home,[72] and that the family did not own a dog before the fence was put up.[73]
In cross-examination, the appellant agreed that from February 2006 to November 2009, he and his wife would see the family ‘very frequently’, possibly twice a week.[74] He denied that he rubbed CAW on her breasts and her vagina.[75]
Consideration
There was clearly a discrepancy between CAW’s evidence that the alleged conduct occurred at the Rosebery home on her fourth birthday and the evidence that the family did not move to the home until after that date. There was also a discrepancy between CAW’s evidence of the timing and location of the offending and presence of the dog and the evidence that the family did not have a dog at the home until the fence was put up in mid-2007.
To apply the language of the High Court in BCM v The Queen,[76] that the alleged offending occurred on CAW’s fourth birthday does not go to the essential features of the offending, namely the essential facts alleged in the indictment. The indictment alleges that count 13 occurred between 21 August 2006 and 22 August 2007, not that it occurred on CAW’s fourth birthday. On the essential features of her account of the offending (that is, what the appellant did and how and where he did it), there was no discrepancy between CAW’s evidence and the other evidence, and her evidence was internally consistent.
Counsel for the appellant argued that there was no suggestion from CAW that she was not other than certain of when, and where, the alleged offending took place and the specific events that preceded the offending. That may be so, but it is not sufficient.
CAW’s evidence is distinguishable from the evidence of the 12 year old complainant in Kennedy v The Queen,[77] to the effect that she was 100 percent sure that the offending occurred just after she watched the live broadcast of the Royal Wedding on television, at a time when her mother was not home. Her mother’s evidence was that she was at home during that broadcast. The complainant’s evidence was held (at [33]) by Studdert J (Heydon JA and Greg James J agreeing) to make time of the essence of the offence because it made the time essential to the acceptance of her evidence. Studdert J concluded (at [34]) that it was not possible to treat the complainant’s evidence as reliable as to the commission of the offence if it was not reliable as to the date upon which she said it occurred. Studdert J held it to be one of those cases where the evidence was such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.[78]
Here, CAW’s evidence that the offending occurred on her fourth birthday is to be considered in light of her age at the time the offending is alleged to have occurred (four or five) and the period of time between that and when she gave her evidence at the age of 13 (some eight to nine years).[79] It was not expressed with any degree of certainty as to the occasion, save that there were cake and presents. The period in the indictment spans both CAW’s fourth birthday and her fifth birthday. Her evidence about the offending occurring at the Rosebery home, and about the presence of the dog, anchors her evidence to that location and a time after the home was fenced and the family had a dog. Her evidence that there were cake and presents could rationally and reasonably be accepted by the jury as referring to her fifth birthday, or to some other occasion at the Rosebery home when the appellant and his wife were there which involved cake and presents.

Even if CAW’s evidence that the offending occurred on her fourth birthday went to an essential feature of her account of the offending, that evidence is explicable (as has just been described) in a manner that does not provide a basis for it to reflect on CAW’s credit. That is, it is reasonably possible to accept her evidence about the location, the presence of the dog and the offending conduct and reject her evidence that the offending conduct took place on her fourth birthday. The fourth birthday is not so integral to the offending conduct that the two are indistinguishable or inseparable.
While it may be accepted that the discrepancy between CAW’s evidence and the other evidence might have led the jury to have a reasonable doubt as to guilt, it cannot be said that it must have done so.
Counsel for the appellant argued that the ‘shift’ in the prosecution’s case (see grounds 4 and 6 below) indicated and had the effect that the prosecution had not excluded the reasonable possibility that the appellant did not commit the alleged offending the subject of count 13. As to the asserted indication, we reject this submission for the reasons set out above. As to the asserted effect, the ultimate prosecution case was consistent with the evidence as dealt with above. It was not the ‘shift’ in the prosecution case that mattered, but the evidence before the jury, which we have dealt with above.
Conclusion
For the above reasons, CAW’s evidence that the offending occurred on her fourth birthday does not necessarily give rise to reasonable doubt as to guilt on count 13. Grounds 3 and 5 are not made out.
Grounds 4 and 6: Irregularity resulting in miscarriage of justice as to count 12
As with grounds 3 and 5 (see paragraph [57] above), counsel for the appellant argued that the verdict on count 12 arose from a material irregularity in the conduct of the case on count 13 which gave rise to a miscarriage of justice. Again, these grounds challenge the finding of guilt on count 12 by reference to the necessary but implicit ‘finding of guilt’ on count 13.
The appeal ground
The material irregularity was said to be the prosecution opening a case that the alleged offending in count 13 occurred on CAW’s fourth birthday; CAW giving evidence that it occurred on her fourth birthday; no evidence being led from her to suggest it may have occurred on another occasion; the appellant giving evidence to establish that it did not occur by proving the family did not live in the Rosebery home or have a dog on CAW’s fourth birthday; the prosecution not suggesting through any witness or at any time until closing that the alleged offending occurred at some other time within the period identified in the indictment; the prosecution closing on the basis that the jury could nevertheless find guilt on count 13 because the events surrounding the alleged offending could have occurred on another occasion which fell within the period identified in the indictment; and the appellant thereby being denied the opportunity to address in his evidence that the alleged offending did not occur on any other occasion within that period.
Legal principles: time of the alleged offending and the conduct of the prosecution case
The principles relating to an appeal on the basis of material irregularity giving rise to miscarriage of justice are set out in paragraphs [19], [20] and [26] to [33] above. Those principles apply also to these grounds.
Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case.[80] The obligation of the prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury.[81] Any doubt about the nature of the Crown case, conceptually, is to be removed at that early stage, and if it is not done at that stage, or if there has been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses.[82]
Where the prosecutor has formulated the Crown's case on one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed.[83]
It is important to appreciate that these principles are directed to the early and consistent identification of the concept or nature of the Crown case. Further, they accommodate a change to that concept or nature; such a change is not necessarily a material irregularity giving rise to a miscarriage of justice. Whether it is depends on the trial as it occurred.
By way of example, in King v The Queen,[84] the indictment charged the appellant and another man with the murder of the appellant’s wife. The Crown case was presented at trial on the basis that the co-accused killed the appellant’s wife and the appellant was an accessory before the fact because he had arranged for his wife’s murder by the co-accused. The trial proceeded on that basis, closing addresses were made by the Crown and the defence on that basis, and the trial judge had partially completed his summing up, which included a direction that the jury must either find them both guilty or acquit them both. The next day, at the prosecutor’s urging, the judge told the jury to disregard that direction. He told them that they could find the appellant guilty if they found that the appellant had arranged for his wife’s murder by the co-accused or someone else, and the co-accused or that other person had killed her. The jury acquitted the co-accused but found the appellant guilty. The intermediate court of appeal quashed the conviction. It held that the element of surprise in the trial judge introducing in his summing up, for the first time in the case, the possibility that some person other than the co-accused had killed the appellant’s wife resulted in possible prejudice to the appellant’s case, his counsel having cross-examined the principal witness and addressed the jury in reliance upon the presentation of the case by the Crown that the person who killed the deceased was the co-accused. No issue with that decision was taken on appeal to the High Court. The question in the High Court was whether there should be ordered a retrial or an acquittal. Giving the judgment for the majority, Dawson J (Gibbs CJ, Wilson and Brennan JJ agreeing) held (at 435) that the identity of the principal offender was not an essential element in the proof of the appellant’s guilt, and while the case had proceeded as though the identity of the principal offender was an essential element in the case against the appellant, that was something which was capable of correction. His Honour held (at 435-436) that while the case as put by the redirection was open on the evidence and on the indictment, it ‘ought not to have been concealed until the last moment’, and for that reason the appellant was entitled to have his conviction quashed. The minority (Deane J with Mason and Murphy JJ agreeing) similarly noted (at 428-429) that this change to the Crown’s case came after the evidence and after addresses had been completed and part way through the trial judge’s summing up.
Generally speaking, a jury is not required to accept, in its entirety, either the prosecution or defence cases; rather, the jurors are entitled to form their own opinions about the facts.[85]
As regards the time of the alleged offending, in Dossi v The Queen,[86] Atkin J observed that, from time immemorial, a date specified in an indictment has never been a material matter unless it was actually an essential part of the alleged offence. It has been held that, although it is usual to insert the date or dates between which offences are alleged to have been committed, time has been stated to be of the essence in only four situations, namely: (i) when an act is criminal only when done within a certain time of some other act or event; (ii) when it is an essential ingredient of a particular offence that certain consequences should follow a particular act; (iii) when it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night; and (iv) when the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged.[87]
As instanced by the decision of Kennedy v The Queen referred to in paragraph [78] above, it may be that in a particular case, the conduct of the trial and the content of the evidence will lead a presiding judge to direct a jury that a Crown case is only made out if an offence occurred on some specific occasion or within a particular span of time established by the evidence.[88]
What happened at trial
In his opening address, the prosecutor said the following:
CAW is the younger sister of CMW. CAW was between six and 13 years of age when the relationship occurred. There are three particularised acts or pieces of conduct that the Crown relies upon; Counts 13, 14 and 15, as making out Count 12. Firstly, the first of these occurred between 21 August 2006 and 22 August 2007. I think before, I said that it was when CAW was six years of age. No, CMW was six years of age when it first occurred, CAW was four.
On that occasion – and it will be alleged that indeed it was on her fourth birthday – that the complainant will give evidence about the accused of rubbing the complainant’s vagina. …
It will be submitted, obviously, by the Crown that rubbing a 4 year old’s vagina in any circumstances would amount to an indecent dealing. Of course, that is a factual matter for you and you alone.[89]
CAW gave evidence-in-chief as set out in paragraph [68] above. She gave evidence in cross-examination as set out in paragraph [69] above.
The agreed fact about when the family moved into the home is set out in paragraph [70] above. Counsel for the respondent advised during the hearing of the appeal that the fact had been communicated to the appellant’s solicitor long before the trial commenced. That submission was not disputed.
KJC and MCW gave evidence about when the family moved in to the Rosebery home as set out in paragraphs [70] and [72] above.
The appellant’s evidence is referred to in paragraphs [73] to [74] above.
In his closing address, the prosecutor said the following:
… Now, the first count that [CAW] speaks of, Count 13, is the rubbing of the vagina and she talks about it as being when the accused came to put her to bed and here was some – her memory was that it was the 4^th birthday, her 4^th birthday that this occurred.
[Description of CAW’s evidence as to the conduct]
Now you will recall and indeed there’s some evidence before you both in the agreed facts and indeed in evidence before you about when the family moved in to their property [in Rosebery], and indeed there’s even – you will recall evidence lead by the accused in relation to when he believed there were fence [sic] up, connecting in a sense where the dog was. So there were considerable amounts of material or evidence before you in relation to whether or not and ultimately, no doubt my learned friend will suggest to you that, ‘Well this couldn’t have happened on the complainant’s 4^th birthday because they weren’t in that home yet’.
Now so I want you to think back about her evidence in relation to that. So again that’s her recollection that it was her 4^th birthday. Now you have got the count on the indictment, and it shows that it spans from her 4^th birthday through to her 5^th. The issue for you is to determine whether that offence occurred. Now if the issues in relation to her certainty, if you believe that it’s certain in terms of her 4^th birthday then that’s a matter for you to take into account absolutely. But if you when looking at her evidence believed that the – that the offence occurred but that it occurred in a period throughout that charged period then you’re still entitled to take that into account and be satisfied beyond a reasonable doubt.
The importance is that you take into account all of the evidence both for, supporting, corroborating, and going against the recollection of the complainant because the – I suppose the ongoing issue is to when the fence was up and whether or not they got Tess the dog who then was alleged to have bitten her sister. All of those are matters that you can take into account of the timing of the incident, but you also absolutely and indeed I supposed [sic] really obliged to make an assessment of CAW’s evidence in relation to that count about the conduct itself, and are you satisfied beyond a reasonable doubt that it occurred.
Remember this is a circumstance where in terms of CAW’s evidence you are entitled to use, if you are so satisfied remember, CMW’s evidence showing a sexual interest and you can use that in order to help your assessment of whether you accept CAW’s evidence or not.[90]

[100]In summing up, the trial judge directed the jury as follows:
In relation to CAW, Mr Tippett submitted that CAW was also unreliable. He gave a number of examples. …
…
Thirdly, in relation to CAW, in relation to the incident which happened on her fourth birthday, that’s 22 August 2006, Mr Tippett submitted to you that an examination of the surrounding circumstances, including her claim that she had a dog, CMW went to feed the dog and cut her hand on the can, came back into the bedroom with a bandage or a Band-Aid.
Mr Tippett said to you whilst it is not possible to disprove directly CAW’s allegations, the offending could not have taken place in the way described or in the overall circumstances described because the property had not been fenced at the time of the alleged offence, and hence the family would not have had a dog. So to that extent CMW’s [sic] memory of that event is suspect insofar as it is said to have occurred on her fourth birthday, as she asserted.[91]

Consideration
[101]The indictment identified the period of the offending as between 21 August 2006 and 22 August 2007. It also identified that CAW was a child under the age of 10 years, namely 4 years. Save that the child must be under the age of 16 years, neither the time of the offending nor the occasion on which it occurred are elements of the offence under s 132(2)(a) of the Criminal Code. For the circumstance of aggravation in s 132(4), the child must be under the age of 10 years. If the alleged offending occurred within the period in the indictment, the elements and the circumstance of aggravation would be satisfied.
[102]As we have found at paragraphs [76] to [79] above, CAW’s evidence did not make the occasion of her fourth birthday essential to a finding of guilt.
[103]CAW’s evidence was pre-recorded some years before the present trial. Both parties were aware what her evidence would be. The Crown opening referred to the period of alleged offending set out in the indictment and then stated that it would be alleged that the offending occurred on CAW’s fourth birthday. That was what CAW’s evidence would be. It was not for the prosecutor, in the Crown’s opening, to be making submissions about the reliability or otherwise of that evidence. The Crown case included both CAW’s evidence that the offending occurred on her fourth birthday and the agreed fact. The appellant was aware well before the trial of the Crown’s intention to press the agreed fact. The Crown’s case also included evidence from both CAW’s parents which indicated that if the offending occurred at the Rosebery home, it could not have happened on CAW’s fourth birthday. There was evidence in the Crown case that the appellant and his wife were often at the family home in Rosebery. All of this evidence was given before the appellant elected to give evidence. Viewed in the context of the evidence in the Crown case overall, including CAW’s specific and detailed evidence about the location, presence of the dog, and circumstances of the alleged offending, the prosecutor’s reference in opening to the offending being alleged to have occurred on CAW’s fourth birthday did not form the basis for the case against the appellant in relation to count 13. It is distinguishable from the situation in King v The Queen, where the basis of the Crown’s case throughout the trial was that the appellant in that case was an accessory before the fact to a killing by his co-accused. It is also distinguishable from the situation in Astbury v The Queen,[92] where the prosecutor had opened on the basis that the applicant had caused the death of the deceased by inflicting blows to his body by beating or kicking him, but closed on the basis the applicant had caused the death of the deceased by jumping on his chest, which proposition was not put to the pathologist called by the Crown or the applicant in cross-examination. As the Court held in that case (at [72]), the proposition put by the prosecutor in closing was not supported by the evidence adduced at the trial.
[104]Here, the evidence called in the Crown’s case clearly raised the prospect that CAW was mistaken about the alleged offending occurring on her fourth birthday, indicating that it could not have happened at the Rosebery home on that day. She was four years old or had just turned five in the period in the indictment. She did not give evidence about being absolutely certain in her recollection that it occurred on her fourth birthday. There was not, as counsel for the appellant described it, a material ‘shift’ in the Crown case. Nor was the ‘shift’ (as distinct from the evidence) indicative of a real possibility that the alleged offending against CAW did not take place.
[105]To the extent that counsel for the appellant argued that the prosecutor’s challenge of the appellant in cross-examination regarding the Google Earth photograph of the Rosebery home without the fence (see ground 9 below) confirmed a Crown case that the offending occurred on CAW’s fourth birthday, we reject that submission. That challenge came after the other Crown evidence we have referred to, was directed to the appellant’s credibility generally and was the subject of attention as set out below in relation to ground 9. It was not an attack upon the appellant’s evidence as to the fact of when the fence was erected at the Rosebery home.
[106]Counsel for the appellant submitted that the Crown called evidence from all other witnesses to support the conclusion that count 13 took place on CAW’s fourth birthday. However, no specific references to such evidence were identified. Based on the evidence referred to in paragraphs [95] to [96] above, we reject the submission. For similar reasons, we reject the submission that it was not open on the evidence for the prosecutor to close the case as he did and that the trial judge should have directed the jury accordingly.
[107]Counsel for the appellant argued that the trial judge’s failure to refer to the ‘shift’ in the Crown’s position and what that could mean in relation to an assessment of the accused’s guilt on count 13 deprived the appellant of a chance to be acquitted on count 13. That submission must be rejected. On the evidence in the Crown’s case viewed as a whole, there was no relevant ‘shift’ and no unfair impact upon the ability of the jury to properly assess the evidence as a whole and accept CAW’s evidence about the occurrence of the alleged offending whilst rejecting her evidence that it happened on her fourth birthday.
[108]We were referred to the decision in Stringer v The Queen.[93] In that case, the Crown sought to try the accused for certain sexual behaviour towards the complainant occurring prior to his 18^th birthday, where there had been a sexual relationship that continued after his 18^th birthday, and homosexual conduct within that continuing relationship would also have constituted the same kind of offending as the law stood at the time the conduct took place. However, the Crown expressly eschewed any intention to prosecute the appellant for any crimes that may have occurred after the complainant’s 18^th birthday. In refusing an application for a stay made before the trial had commenced, founded on the impossibility of obtaining objective evidence to establish that the sexual behaviour occurred after the complainant’s 18^th birthday and not before, Grove J held (at [21]) that a prosecutor cannot make time of the essence of an offence simply by pleading and submitting to being bound by the time which has been pleaded. As Adams J held in concluding that a stay should be granted (in dissent at [37]), it was not a case where one occasion was alleged but there was uncertainty as to its date. By contrast, the case before us is such a case. On the Crown case considered as a whole, the allegation in count 13 was of one occasion of offending but there was uncertainty as to its date. In the relevant respects, the prosecution opening, closing and the conduct of the Crown case generally was to be expected in that kind of case.

[134]If defence counsel was wrong to accept the trial judge’s proposition because he contested the third question referred to in paragraph [128] above, it may follow that the challenged portion of the trial judge’s direction was also wrong.
[135]Counsel for the respondent argued that, to the extent defence counsel made an error in accepting the trial judge’s proposition, the decision to do so was a deliberate tactical decision on the part of the appellant, and there is nothing unfair and no miscarriage in holding the appellant to that decision.[109] It is clear from the exchange between defence counsel and the trial judge[110] that defence counsel made a deliberate tactical decision to accept the proposition because he was faced with the alternative that the trial judge would be required to give a direction to the jury about the consequences of his failure to cross-examine KJC about matters relating to the third question referred to in paragraph [128] above. It must follow that no unfairness flowed to the appellant from the trial judge repeating to the jury the proposition to which defence counsel agreed.
[136]The argument put by counsel for the appellant that there was no Browne v Dunn obligation to cross-examine KJC because she could not give evidence about whether the appellant said the words to CMW in CMW’s statement (ie, the issue), or whether CMW accurately relayed to KJC what the appellant said to her (ie the second question referred to in paragraph [128] above), misses the point that KJC could give evidence about the first and third questions (ie, as to whether she fabricated CMW’s statement or could have misheard, misremembered or misunderstood CMW’s statement). To the extent that the appellant wished to put such submissions to the jury, the rule in Browne v Dunn imposed an obligation to put those matters to KJC in cross-examination. Accordingly, those submissions were made in breach of the rule in Browne v Dunn. They lacked the proper foundation, grounded in fairness to KJC and the Crown, to be put. The trial judge, correctly in our view, considered that, as a consequence of the failure to comply with the rule in Brown v Dunn on these matters, the third question referred to in paragraph [128] above (a matter of KJC’s credibility in relation to CMW’s statement) had not properly been put in issue and was not a live issue in the trial. The trial judge’s view was confirmed by defence counsel, who made a deliberate tactical decision to give that confirmation.
[137]The decision not to cross-examine KJC was also a deliberate tactical decision by defence counsel. The Crown had made known that if KJC’s credibility about CMW’s statement was to be the subject of cross-examination, it would call two witnesses to attest to prior consistent statements by KJC about CMW’s statement.[111] If the appellant wished to make submissions about the unreliability of KJC’s evidence relaying in court what CMW said to her in CMW’s statement (ie the third question in paragraph [128] above), defence counsel would have been required to cross-examine KJC as well as these two other witnesses. It can readily be seen why defence counsel would not do so, but that forensic difficulty did not relieve the defence of the obligation of fairness underpinning the rule in Browne v Dunn and allow defence counsel to put submissions challenging KJC’s credibility relating to the third (or the first) question without giving her and the Crown the opportunity to rebut that challenge.
[138]For the above reasons, the challenged portion of the trial judge’s direction about CMW’s statement was not an erroneous misdirection.
[139]The trial judge’s observation that there had been no cross-examination of KJC as to what CMW said to her was not a ‘Browne v Dunn comment’. It did not state or imply that the lack of cross-examination affected either the weight or cogency of defence’s submissions or the credibility of the appellant or any other witness. It was simply confirmation of the lack of dispute concerning the reliability of KJC’s evidence about CMW’s statement. As the remainder of the trial judge’s directions go on to make clear, there were other matters going to the assessment of that evidence, including its hearsay character and issues of reliability flowing from the second question in paragraph [128] above. Effectively, aside from the matters the subject of the third question, the trial judge repeated to the jury defence counsel’s submissions about the matters they should take into account in finding whether or not the appellant said the words attributed to him in CMW’s statement.
Conclusion
[140]It follows from the above that the appellant has not demonstrated a realistic possibility that the trial judge’s direction to the jury about CMW’s statement was an erroneous misdirection which affected the basis on which the jury reached its verdict of guilt on counts 1 and 12. It did not give rise to a miscarriage of justice. This ground is not made out.
Ground 8: Prosecutor’s closing address about CMW’s statement
What happened at trial
[141]In his closing address, the prosecutor said the following about CMW’s statement:[112]
Now if you don’t accept that [a five year old girl has been clearly mistaken about what was said or that she made it up], if you accept that that was told to CMW by her grandfather well where does that leave you? If that was said by the accused to his five year old granddaughter, I’m submitting to you, it’s a matter for yourself, but I’m submitting to you that there is no possible explanation for that conduct. It can’t be put off as a joke, ‘Oh, well I thought it was – perhaps it’s unsavoury, but I just thought I’d make some joke about nanna and her sexual preferences’, I mean it’s just nonsense.
What possible other explanation other than the guilt of the accused if you accept that the statement was made [sic] accused’s granddaughter other than that he had a sexual interest, a sexual interest in his granddaughter that he was willing to act on, and that in fact it formed the basis for an ongoing intent, and ongoing sexual desire to get his granddaughter CMW to perform fellatio upon him, and ultimately to swallow his semen.
…
Now – so, ladies and gentlemen, when you are looking at that piece of evidence and if you are satisfied of that sexual interest then you would use it in order to look at the evidence of CMW and whether or not you are satisfied beyond a reasonable doubt about it. Does it show that sexual interest that I say that it does. If you are so satisfied of it beyond a reasonable doubt then that can assist you when you’re making a determination of her evidence.

The appeal ground
[142]This ground alleges that the part of the prosecutor’s closing address italicised above suggested to the jury that, if they accepted that the appellant said the words to CMW attributed to him in CMW’s statement, they could find him guilty of the charges against him relating to CMW, which is impermissible reasoning on the basis of tendency evidence.
The legal principles
[143]This appeal ground is founded on a material irregularity giving rise to miscarriage of justice. Again, the applicable principles are set out in paragraphs [19], [20] and [26] to [33] above.
Consideration
[144]Leaving aside the words, ‘What possible other explanation other than the guilt of the accused’ for the present, what the prosecutor said in the challenged paragraph is a submission that the jury could use CMW’s statement as tendency evidence to conclude that the appellant had a sexual interest in CMW that he was willing to act on, namely an ongoing sexual desire to have CMW perform fellatio on him and an ongoing intent to have her do so. Taking the words, ‘What possible other explanation’ into account, it was a submission that the jury could reason that way because there was no other possible explanation. Such a submission is consistent with the proper use the jury can make of such tendency evidence.
[145]In MLW v The Queen, the Court held (at [79]) that the prosecutor telling the jury that, if they accepted that the appellant said the words attributed to him by CMW’s statement, there was no explanation consistent with innocence and the only rational explanation was the guilt of the appellant, tended to convey to the jury that they may convict the appellant on the basis of CMW’s statement alone. The Court similarly held (at [88]) that the prosecutor telling the jury a number of times that there was no explanation for the appellant saying those words other than the guilt of the appellant created a significant possibility that the jury may give the evidence undue weight.
[146]We agree that the words in the challenged submission, ‘What possible other explanation other than the guilt of the accused’, considered in isolation, created that significant possibility. If the words are considered in the context of the challenged paragraph, and in the broader context of what the prosecutor said before and after the challenged paragraph, that risk was reduced because the words may be understood as referring back to the submission that it was not the kind of statement that could be made to a five year old as a joke.
[147]Even if the challenged paragraph gave rise to a possibility that the jury may give CMW’s statement undue weight that was as high as the numerous such statements considered by the Court in MLW v The Queen, as the Court held (at [88]) the appropriate balance could be restored to ensure a fair trial by instructions to the jury by the trial judge.
[148]The trial judge gave the jury the directions consistent with those set out by the Court in MLW v The Queen (at [89]), addressing tendency evidence generally and more specifically in relation to CMW’s statement.[113] Further, consistently with the Court’s finding in MLW v The Queen (at [90]) that the circumstances of that case required the trial judge to place the prosecutor’s statement about there being no explanation consistent with innocence in its proper context, the trial judge said:[114]
The prosecution says that [CMW’s statement] reveals such a mental state and is proof of his engagement in the conduct alleged. Mr Nathan put to you in his closing address, ‘What other explanation is there, other than that he had a sexual interest that he was willing to act on?’
I point out, of course, though that whether [CMW’s statement] does so is a matter for you to determine. If you find that the accused spoke the words attributed to him in CMW’s statement in the context relied on by the prosecution, you may find it more likely that he committed those offences against CMW that I referred to earlier.

[149]By this instruction, the trial judge: (a) reformulated what the prosecutor had said about other explanation so that it referred to the tendencies rather than the guilt of the appellant; and (b) pointed out that it was for the jury to determine whether those tendencies were established, and if so, they may find it more likely that he committed the offences. That was an appropriate and fair way to address what the prosecutor had said.
[150]No redirection was sought by defence counsel after the jury retired, even though the trial judge instructed the jury that they may be called back if there was any additional issue raised with him by counsel.[115] In the context of this trial, the fact that no redirection was sought supports the conclusion that a redirection was not required.[116] In the context of the trial judge’s summing up as a whole, any risk of unfairness to the appellant raised by the challenged paragraph had been adequately addressed.
Conclusion
[151]It follows from the above that the appellant has not demonstrated a realistic possibility that the prosecutor telling the jury that the guilt of the accused was the only possible explanation for CMW’s statement affected the basis on which the jury reached its verdicts of guilt on counts 1 and 12. It did not give rise to a miscarriage of justice. This ground is not made out.
Ground 9: Combination or aggregate of errors giving rise to a miscarriage of justice
[152]An aggregate of faults, none of which, if it were the only fault, would afford a justification for an order for a retrial, may properly lead to the conclusion that the trial as a whole miscarried necessitating a new trial.[117]
The Google Earth photograph – a material irregularity?
[153]Counsel for the appellant relied on what was said to be an additional material irregularity, namely the failure of the trial judge to allow the appellant to demonstrate how he produced the Google Earth photograph relied on to show that the Rosebery home did not have a fence until after December 2006. This was said to be an error because the prosecutor attacked the appellant’s credit on the basis that the photograph was produced fraudulently, and the demonstration was necessary to allow the appellant to meet that attack and ‘resurrect’ his credit.
What happened at trial
[154]During his evidence-in-chief, the appellant said he went to ‘Google maps’ to look at the history of the Rosebery home, and found a satellite photograph dated 31 December 2006 which showed that home without a fence.[118] The photograph was tendered and its admission objected to because of a lack of provenance and because it included a label ‘Google Maps 31 12 2006’ which appeared to be an addition or edit to what would appear on the website.[119] The appellant gave further evidence that he chose the photograph by using a ‘sliding thing of times’ which he ‘slipped back to when there was nothing’, ie ‘just trees and bush’, and then chose the photograph.[120] He also said he may have put the label on the photograph, could not remember if he did or not, but could accept that he did.[121] The photograph was tendered and the objection withdrawn.[122]
[155]In cross-examination, the appellant clarified that the photograph was from Google Earth, he typed the address of the Rosebery property into Google Earth and the image in the photograph came up, he then slid backwards through different satellite images until he located the one he wanted, selected the area he wanted to print and printed the image appearing in the photograph.[123] The appellant could not recall whether he had typed the label onto the image, but said it could have been him.[124] The thrust of the cross-examination which followed was that when the ‘slider’ is used, a date appears on the screen, but the image the appellant had chosen to print for use in his criminal trial did not show that and instead had the label which he could not recall adding.[125] The appellant’s evidence was that he prepared the photograph for the trial in 2017, but when he was taken to the words ‘Google Earth Image © 2019’ in the corner of the photograph, he said he must have prepared the photograph for one of the other trials.[126] It was then put to him that his evidence about the photograph was ‘demonstrably false and contrived’ and he had lied about it, both of which suggestions he denied.[127]
[156]In the absence of the jury, the trial judge raised with the prosecutor his concerns that there was a lack of clarity about what was said to be ‘false and contrived’ or a lie, namely the timing of the appellant’s preparation of the photograph, or the presentation of the photograph as one depicting the situation as at 31 December 2006.[128] The prosecutor indicated that his instructor had then been able to produce from the Google Earth application a photograph from 1 January 2006, which was the same as or very similar to the photograph tendered, and a photograph from 1 January 2007, which showed a fence around the home.[129] The parties were invited to consider the matter.
[157]In re-examination, the appellant described again the process he had undertaken to produce the photograph and he confirmed that it accurately represented the Rosebery home in December 2006.[130]
[158]The defence case was closed after the appellant’s re-examination and the matter was adjourned to the following day. On that day, defence counsel applied to re-open the appellant’s re-examination in order to have him demonstrate to the jury, using a laptop linked to the screen in the courtroom, the process by which he had used Google Earth to produce the photograph which was tendered in order to ‘clearly demonstrate to the jury that the [prosecutor’s] attack [in cross-examination] was groundless and that [the appellant] was telling the truth when he talked about how he produced’ the photograph.[131]
[159]After lengthy argument, which included the prosecutor foreshadowing an application to further cross-examine the appellant if the application to re-examine further was permitted, the trial judge refused the application, but proposed to inform the jury that there was no evidence that the process engaged in by the appellant, as described in his evidence, would not have brought up the same, or substantially the same, image as depicted in the tendered photograph for the date 31 December 2006.[132]
[160]In his closing address, the prosecutor referred to the cross-examination of the appellant about the Google Earth photograph and submitted that the appellant’s lack of memory about what he added to that photograph and when he produced it, which was put to him as being false and untrue, could bear on their assessment of his credibility.[133] The prosecutor said that it was ‘not suggested at this point in time that the process that [the appellant] went through was improper’, but the question was whether his failing of memory was an honest failing or not.[134]
[161]After the prosecutor’s closing address, the trial judge gave more detailed reasons why he refused the defence application to re-open re-examination in this way and informed counsel of what he intended to tell the jury about the state of the evidence.[135] The trial judge concluded that the cross-examination was unfair and had the potential to cause considerable prejudice to the appellant because its likely effect was to have created in the minds of the jury the view that the appellant had presented in evidence a fraudulent document created by questionable means, when there was no evidence that the process engaged in by the appellant would not have produced the same image or essentially the same image of the Rosebery home for the stated date of 31 December 2006. However, the trial judge rejected the defence submission that the re-examination was not effective to overcome the perception created in the minds of the jury. This was because the appellant had rejected the propositions which had been put to him by the prosecutor, and then carefully explained in re-examination the process he had carried out to produce the image. The trial judge said that the application to reopen re-examination in order to conduct some further live demonstration was complicated by the prosecution’s contention that it could establish, by reference to a Google Earth image captured on 1 January 2007, that the photograph probably did not truly reflect the state of the fence at the Rosebery home on 31 December 2006. The trial judge was consequently concerned that the evidence sought to be led in the re-examination via a live demonstration would be misleading because the Rosebery home probably was fenced on 31 December 2006, as shown in the Google Earth image captured on 1 January 2007. However, the more important point was that the demonstration was not justified as necessary because of the appellant’s evidence which left intact his evidence that the fence had not been erected until the very end of 2006. The trial judge reiterated his intention to direct the jury as he had earlier indicated, as set out in paragraph [159] above.
[162]After the trial judge’s observation that the prosecutor had not made a concession which fully addressed the prejudice, the prosecutor made a brief address to the jury stating that it was conceded by the Crown that there was no evidence that the process engaged in by the appellant, as described in his evidence, would not have brought up the same or substantially the same image as depicted in the Google Earth photograph for the date 31 December 2006.[136] The prosecutor told the jury what the trial judge had indicated he would tell them.

[163]In his closing address on the subject, defence counsel said, amongst other things, that the prosecutor had conceded that everything on the photograph is the truth.[137] After the defence closing address, the prosecutor raised with the trial judge that the defence closing went beyond what had been conceded and suggested to the jury that what was portrayed by the photograph was all true, namely that the Rosebery home was not fenced as at 31 December 2006, when in fact it must have been given that a fence was shown in the Google Earth image captured on 1 January 2007.[138] The trial judge agreed, but did not see that there was anything that could properly be done about it, and the prosecutor did not take the matter any further.[139]
[164]In his summing up to the jury, and in the context of explaining that questions are not evidence unless the witness agrees to the proposition, the trial judge said as follows:
There is a good example in this trial of that very principle. It was referred to yesterday, so it is probably fresh in your minds. The learned prosecutor, in cross-examining [the appellant], said, ‘… your evidence in relation to this document, I’m going to suggest to you, is demonstrably false and contrived. Do you accept that?---No.’
Obviously if the answer had been yes, it would have amounted to agreement with the proposition contained in the question; but the answer ‘no’ is a rejection of the proposition, and so there is no evidence to the effect that the questioner sought to adduce. And you will recall, in any event, it was properly conceded by the Crown yesterday that the process engaged in by the accused with Google Earth as he described, would have brought out the same, or substantially the same image as in [the photograph].[140]

Consideration
[165]Counsel for the appellant argued that the nature and extent of the damage done by the attack in cross-examination was not balanced by what the prosecutor said in his closing address because the prosecutor did not unreservedly withdraw the attack and the appellant was deprived of the reliability of the photograph in support of his case.
[166]On the contrary, by his own evidence, the prosecutor’s closing concession and the trial judge’s summing up, the reliability of the photograph was confirmed to the appellant’s benefit. We do not accept that further re-examination in order to conduct a live demonstration of the process the appellant undertook to produce the photograph was necessary to alleviate the prejudice created by the cross-examination on this point. It had been appropriately addressed by the appellant’s own evidence, the prosecutor’s concession and the trial judge’s summing up. Further, the photograph was led to establish that the alleged offending the subject of count 13 could not have occurred on CAW’s fourth birthday as she said in her evidence. As has been referred to above, there was other evidence from multiple sources which indicated that family were not living in the Rosebery home at that time. The photograph was consistent with this evidence so there was no reason for the jury to discredit the appellant’s evidence on this point.
Conclusion
[167]We do not consider that the appellant has demonstrated a realistic possibility that any one or more of the matters raised in this appeal, in any combination including their totality, affected the basis on which the jury reached its verdicts of guilt on counts 1 and 12. There was no miscarriage of justice. This ground is not made out.
Disposition
[168]The appeal is dismissed.

___________________________

[1] MLW v The Queen [2018] NTCCA 19 (‘MLW v The Queen’).

[2] The Queen v Turner [1975] QB 834 at 842 per Lawton LJ (Nield and Cantley JJ agreeing), cited with approval in HML v The Queen (2008) 235 CLR 334 at [297] per Heydon J.

[3] R v Connolly (No 2) [1991] 2 Qd R 171 at 173-174 per Thomas J, cited with approval in HML v The Queen (2008) 235 CLR 334 at [297] per Heydon J.

[4] Transcript, pp 120-121: Appeal Book (‘AB’) 137-138.

[5] Transcript, pp 131-134: AB 148-151.

[6] Transcript, pp 135-136: AB 1152-153.

[7] Weiss v The Queen (2005) 224 CLR 300.

[8] Maric v The Queen (1978) 52 ALJR 631 at 634-635 per Gibbs ACJ (Mason and Jacobs JJ agreeing). In Maric, the proposition stated referred to ‘conviction’ not ‘findings of guilt’, because the appeal there sought by special leave was an appeal against the conviction, rather than an appeal brought against the finding of guilt.

[9] Crofts v The Queen (1996) 186 CLR 427 (‘Crofts’) at 440-441 per Toohey, Gaudron, Gummow and Kirby JJ.

[10] Crofts at 432 per Dawson J (in dissent but not as to the principle).

[11] Crofts at 441 per Toohey, Gaudron, Gummow and Kirby JJ and at 432 per Dawson J (in dissent but not as to the principle).

[12] Hamide v The Queen [2019] NSWCCA 219 (‘Hamide’) at [11] per Bathurst CJ, at [127] per Bell P (Davies J agreeing). See also Nadjowh v The Queen [2019] NTCCA 6 at [15] per Grant CJ, Hiley J and Riley AJ.

[13] Hamide at [91] per Bell P (Bathurst CJ and Davies J agreeing), citing Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J, The Queen v TS [2004] NSWCCA 38 at [118] and Samadi v The Queen (2008) 192 A Crim R 251 at [133], [135].

[14] Hamide at [93] per Bell P, citing Weiss v The Queen (2005) 224 CLR 300 at 315 [39].

[15] The Queen v Colville (2003) 137 A Crim R 543 at [44] per Sully J (Handley JA and Buddin J agreeing), citing Maric v The Queen (1978) 52 ALJR 631 at 634-635 per Gibbs ACJ.

[16]Hofer v The Queen (2021) 95 ALJR 937.

[17]Nudd v The Queen (2006) 80 ALJR 614 at [24].

[18]CMW’s evidence was that the first time the appellant did something sexual to her was when she was six or seven years old. She turned six on 22 December 2006. See Transcript, p 23: AB 209.

[19] Transcript, p 8: AB 28.

[20] Summarised in MLW v The Queen at [20]. See also Tran v The Queen (2000) 105 FCR 182 (‘Tran’) at [132] per Black CJ, Weinberg and Kenny JJ.

[21] Tran at [132].

[22] Transcript, pp 135-136: AB 152-153.

[23] Transcript, pp 214-226; 230-245; 250: AB 340-352; 356-371; 376.

[24] Transcript, p 668: AB 822.

[25] Transcript, pp 651-653: AB 805-807.

[26] Concluding at paragraph [136].

[27] Transcript, p 323: AB 449.

[28] Transcript, pp 379-381: AB 505-507.

[29] Transcript, pp 381-382: AB 507-508.

[30] This question was asked at Transcript, p 192: AB 318. The answer was that KJC did not respond, she was shocked ‘because a five year old shouldn’t know---’. Objection was made, not to the question, but to the answer, on the basis that it was irrelevant ‘comment’ and the Crown did not proceed further.

[31] This question was asked at Transcript, p 192: AB 318. Objection was made to this question, which was asked after the question whether KJC told her husband about CMW’s statement and she said: ‘No’. Thereafter, argument about the objection was heard in the absence of the jury (at Transcript, pp 194-196: AB 320-322). The trial judge took the prosecutor to MLW v The Queen at [13] and what was there said to be inadmissible bolster, and the prosecutor agreed not to ask any further questions about limiting the appellant’s access to the children.

[32] This question was asked at Transcript, p 200: AB 326. The answer was that they were always very close.

[33] Transcript, pp 382-383: AB 508-509.

[34] Transcript, p 392: AB 518.

[35] Transcript, pp 396-397: AB 522-523.

[36] Transcript, p 397: AB 523.

[37] Transcript, p 397: AB 523.

[38] MCW was asked to describe the relationship with his father and the answer was: ‘He’s my best friend’, at Transcript, p 199: AB 325.

[39] Transcript, pp 398-399: AB 524-525.

[40] Transcript, p 382: AB 508.

[41] Transcript, p 384, 396: AB 510, 522.

[42] Transcript, pp 394-395: AB 520-521.

[43] Transcript, p 395: AB 521.

[44] Transcript, pp 411: AB 537.

[45] Transcript, p 429: AB 555.

[46] See footnote 30 above.

[47] See footnote 31 above.

[48] Transcript, pp 703-704: AB 857-858.

[49] Lynch v The Queen [2020] NTCCA 6 at [16]-[22] per Grant CJ, Blokland and Hiley JJ.

[50] FN v The Queen [2021] NTCCA 5 at [15]-[21] per Grant CJ, Brownhill J and Hiley AJ.

[51] M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ.

[52] SKA v The Queen (2011) 243 CLR 400 at [11]-[14]; GAX v The Queen (2017) 344 ALR 489 at [25]; Pell v The Queen (2020) 268 CLR 123.

[53] SKA v The Queen (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ.

[54] Pell v The Queen (2020) 268 CLR 123 at [39].

[55] M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.

[56] Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113].

[57]Pell v The Queen (2020) 268 CLR 123 at [44]-[45]; see also Tyrell v The Queen [2019] VSCA 52 at [70].

[58] Foster v The Queen [2021] NTCCA 8 at [4] per Grant CJ, Kelly and Brownhill JJ.

[59]See Lynch v The Queen [2020] NTCCA 6 at [38], citing BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387 at [46] per the Court.

[60]See Lynch v The Queen [2020] NTCCA 6 at [38], citing R v M, WJ [2004] SASC 345.

[61]Transcript, pp 83-86: AB 265-268.

[62]Transcript, p 117: AB 295.

[63]AB 657.

[64]Transcript, pp 157-158: AB 174-175.

[65]Transcript, p 199: AB 325.

[66]Transcript, p 200: AB 326.

[67]Transcript, p 200: AB 326.

[68]Transcript, p 288: AB 414.

[69]Transcript, p 454: AB 580.

[70]Transcript, pp 454-455: AB 580-581.

[71]Transcript, p 455: AB 581.

[72]Transcript, pp 455-456: AB 581-582.

[73]Transcript, p 456: AB 582.

[74]Transcript, pp 494-495: AB 620-621.

[75]Transcript, p 506: AB 632.

[76]BCM v The Queen (2013) 303 ALR 387 at [46].

[77]Kennedy v The Queen (2000) 118 A Crim R 34.

[78]See VHP v The Queen (unreported, NSWCCA, 7 July 1997) at 15 per Gleeson CJ, cited in Kennedy v The Queen (2000) 118 A Crim R 34 at [33] per Studdert J (Heydon JA and Greg James J agreeing).

[79]See BCM v The Queen (2013) 303 ALR 387 at [46].

[80]Tran v The Queen (2000) 105 FCR 182 (‘Tran’) at [133] per Black CJ, Weinberg and Kenny JJ.

[81]The Queen v Tangye (1997) 92 A Crim R 545 (‘Tangye’) at 556 per Hunt CJ at CL (McInerney and Sully JJ agreeing), cited in Tran v The Queen at [134].

[82]Tangye at 556.

[83]Tran at [148], citing The Queen v Carr [2000] 2 Cr App R 149.

[84]King v The Queen (1986) 161 CLR 423.

[85]Stevens v The Queen (2005) 227 CLR 319 at [29] per McHugh J, at [75] per Kirby J.

[86]Dossi v The Queen (1918) 13 Cr App R 158.

[87]Stringer v The Queen (2000) 116 A Crim R 198 at [20] per Grove J, citing Halsbury’s Laws of England (4^th ed), Vol 11, [207] n 4.

[88]Stringer v The Queen (2000) 116 A Crim R 198 at [22] per Grove J; VHP v The Queen (unreported, NSWCCA, 7 July 1997) at 15 per Gleeson CJ (Handley JA and Studdert J agreeing).

[89]Transcript, p 124: AB 141.

[90]Transcript, pp 602-603: AB 756-757.

[91]Transcript, pp 602-603: AB 756-757.

[92]Astbury v The Queen [2020] VSCA 132.

[93]Stringer v The Queen (2000) 116 A Crim R 198.

[94]Hillier v The Queen (2008) 1 ACTLR 235 (‘Hillier’).

[95]AB 675-682.

[96]The Queen v Markuleski (2001) 52 NSWLR 82. The New South Wales Court of Criminal Appeal held that it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case and some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count: at [186] per Spigelman CJ, at [257] per Wood CJ at CL, at [280] per Grove J.

[97]Transcript, p 682: AB 836.

[98]The Queen v Anderson (1991) 53 A Crim R 421 at 449 per Gleeson CJ (Finlay J and Slattery AJ agreeing).

[99]Transcript, p 702: AB 856.

[100]Browne v Dunn (1893) 6 R 67.

[101]MWJ v The Queen (2005) 80 ALJR 329 (‘MWJ v The Queen’) at [38] per Gummow, Kirby and Callinan JJ.

[102]Ibid at [38]. See also at [18] per Gleeson CJ and Heydon J.

[103]Ibid at [18] per Gleeson CJ and Heydon and at [41] per Gummow, Kirby and Callinan JJ.

[104]See, for example, The Queen v Morrow (2009) 26 VR 526 at [48] per Redlich JA (Nettle JA and Lasry AJA agreeing).

[105]See Reid v Kerr (1974) 9 SASR 367 at 373-374 per Wells J, cited in The Queen v Morrow (2009) 26 VR 526 at [52].

[106]The Queen v Morrow (2009) 26 VR 526 at [59]-[61].

[107]The Queen v Morrow (2009) 26 VR 526 at [62]-[70].

[108]Transcript, pp 651-653: AB 805-807.

[109] In reliance on the observations of Kirby J in The Queen v Abou-Chabake (2004) 149 A Crim R 417 at [63] per Kirby J (Mason P and Levine J agreeing), cited with approval in Hamide v The Queen [2019] NSWCCA 219 at [88] per Bell P (Bathurst CJ and Davies J agreeing).

[110] Transcript, p 668: AB 822.

[111]Transcript, p 662: AB 816.

[112]Transcript, pp 613: AB 767.

[113]Transcript, pp 700-704: AB 854-858.

[114]Transcript, p 702: AB 856.

[115]Transcript, p 711: AB 865.

[116]See GBF v The Queen (2020) 94 ALJR 1037 at [25] per the Court.

[117]See The Queen v Ireland (1970) 126 CLR 321 at 331 per Barwick CJ (McTiernan, Windeyer, Own and Walsh JJ agreeing).

[118]Transcript, pp 455-456: AB 852-853.

[119]Transcript, p 456: AB 853.

[120]Transcript, pp 456-457: AB 852-853.

[121]Transcript, p 457: AB 853.

[122]Transcript, p 457: AB 854. The photograph is at AB 674.

[123]Transcript, pp 502-503: AB 628-629.

[124]Transcript, p 503: AB 629.

[125]Transcript, p 503: AB 629.

[126]Transcript, p 504: AB 630.

[127]Transcript, pp 504-505: AB 630-631.

[128]Transcript, pp 514-518: AB 640-644.

[129]Transcript, p 518: AB 644.

[130]Transcript, pp 520-521: AB 646-647.

[131]Transcript, pp 531-577: AB 685-731.

[132]Transcript, p 578: AB 732.

[133]Transcript, pp 611-612: AB 765-766.

[134]Transcript, p 611: AB 765.

[135]Transcript, pp 615-618: AB 769-772.

[136]Transcript, p 622: AB 776.

[137]Transcript, p 657: AB 811.

[138]Transcript, p 669: AB 823.

[139]Transcript, p 669: AB 823.

[140]Transcript, p 696: AB 850.

[2022] NTCCA 2

24 January 2022

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Procedural Fairness