Name Suppressed v The King

[2023] NSWCCA 130

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Name Suppressed v R [2023] NSWCCA 130

Hearing dates:

5 May 2023

Date of orders:

9 June 2023

Decision date:

09 June 2023

Before:

Ward P; Walton J; Ierace J

Decision:

1.   Leave to appeal granted.

2.   Dismiss both the conviction and sentence appeals.

Catchwords:

CRIME – Appeal against conviction of child sex offence – Sexual touching of a child under the age of 10 years – Incompetence of counsel – Whether counsel erred by failing to cross-examine the mother of the complainant as to whether she originated the complaint with a view to obtaining sole care of the complainant

SENTENCING – Appeal against sentence – General principles – whether the primary judge erred by taking into account extraneous material

Legislation Cited:

Crimes Act 1900 (NSW), s 66DA(a)

Criminal Appeal Act 1912 (NSW), s 5(1)

Evidence Act 1995 (NSW), s 137

Legal Profession Uniform Conduct (Barristers) Rules 2015, r 65

Cases Cited:

AK v R [2022] NSWCCA 175

Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1

Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419

Browne v Dunn (1893) 6 R 67

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Davis v R [2017] NSWCCA 257

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

Fuller v R [2022] NSWCCA 203

Gardiner v R [2023] NSWCCA 89

Hanna v R [2022] NSWCCA 7

House v The King (1936) 55 CLR 499

Ignjatic v R (1993) 68 A Crim R 333

LN v R [2020] NSWCCA 131

Madden v R [2022] NSWCCA 196

Momoa v R [2020] NSWCCA 328

Monteiro v R [2011] NSWCCA 113

Moustafa v R [2019] NSWCCA 89

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

R v Birks (1990) 19 NSWLR 677

R v Carbone [2022] NSWSC 373

R v Isaacs (1997) 41 NSWLR 374

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Tsiakas v R [2015] NSWCCA 187

Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460

Category:

Principal judgment

Parties:

Name Suppressed (Applicant)
Rex (Respondent)

Representation:

Counsel:
B Walker (Applicant)
A Bonnor (Respondent)

Solicitors:
Walker Criminal Lawyers (Applicant)
Office of the Director Public Prosecutions (Respondent)

File Number(s):

2020/00227143

Publication restriction:

Statutory non-publication order in respect of any identification of complainant pursuant to s 15A(1) Children (Criminal Proceedings) Act 1987 (NSW).

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 September 2021

Before:

Huggett DCJ

File Number(s):

2020/00227143

HEADNOTE

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

On 23 September 2021, following a judge-alone trial in the District Court, the applicant was found guilty and convicted of one count of intentionally sexually touching the complainant, being a child under 10 years, contrary to s 66DA(a) of the Crimes Act 1900 (NSW).

The applicant sought leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the ground of incompetence of counsel, namely that his counsel at trial did not conduct the case on the basis of the applicant’s contention that his ex-wife, the mother of the complainant, had encouraged the complainant to make a false allegation in order to obtain sole custody of the child in Family Court proceedings then on foot.

The applicant also appealed against his sentence on two grounds. First, that the sentencing judge erred in taking into account matters which were not material before her Honour. Second, that the sentencing judge erred in making findings of fact adverse to the applicant which were not available on the evidence.

The Court (Ward P, Walton and Ierace JJ) held, granting leave to appeal but dismissing the appeal:

As to the conviction appeal:

1. As a general rule, an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, absent something occurring, such as flagrant incompetence involving or causing a miscarriage of justice: [111]

   Monteiro v R [2011] NSWCCA 113; Ignjatic v R (1993) 68 A Crim R 333 considered.

2. The applicant accepted when cross-examined that he was advised by his counsel that the Family Court proceedings should not be brought into his defence in the criminal trial and that he accepted this advice. The applicant also accepted that his counsel would challenge the reliability of the complainant rather than the ex-wife, and left the conduct of the case to his counsel. There was a rational explanation for the course followed by counsel, namely that there was nothing to provide any foundation for the applicant’s contention, and there was a concern not to raise matters that might introduce evidence of other complaints of this nature: [112]-[116].

As to the sentence appeal:

1. In sentencing proceedings the judge is not constrained by earlier findings of fact in the trial, provided that any finding of fact on sentence is consistent with the verdict and the reasons given for that verdict: [146].

   R v Carbone [2022] NSWSC 373 considered.

2. Evidence that the conduct that was the subject of the offence was not an isolated instance was clearly before the trial judge when her Honour came to sentence the applicant, and it had been admitted in spite of counsel’s invitation to reject the evidence pursuant to s 137 of the Evidence Act. The fact that the evidence formed no part of the evidence on which her Honour was satisfied beyond reasonable doubt of the applicant’s guilt on the offence charged does not mean that her Honour could not properly take it into account on sentencing (it not being inconsistent with the verdict reached): [147]-[148].

JUDGMENT

1. THE COURT: The applicant was found guilty by Huggett DCJ, following a judge alone trial in the District Court, on 23 September 2021 of one count of intentionally sexually touching a child under 10 years. The complainant was his daughter, then aged between five and six years old. The offence was alleged to have occurred between 1 January 2020 and 26 July 2020. The applicant had pleaded not guilty to the charge. The Crown case was that the applicant sexually touched the complainant (by placing his hand under her pyjama pants and underwear and touching her vagina while she was in bed with him). The applicant’s case at trial was that the alleged conduct did not occur and that the complainant was lying. The nub of the applicant’s complaint in this Court on his conviction appeal is, in essence, that his defence counsel did not conduct the case on the basis of the applicant’s contention that his ex-wife (the complainant’s mother) had encouraged the complainant to make a false allegation (in order to assist his ex-wife to obtain sole custody of the complainant in Family Court proceedings then on foot).

2. The applicant was sentenced on 26 November 2021 to four years and six months imprisonment to commence on 24 November 2021 and to expire on 23 May 2026, with a non-parole period of two years and three months imprisonment to date from 24 November 2021 and to expire on 23 February 2024. The applicant will thus be eligible for parole from early next year.

3. The applicant seeks leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) to appeal against his conviction and seeks an order that the conviction be quashed and the matter remitted to the District Court for retrial. The sole ground of appeal on the conviction appeal is that there was a miscarriage of justice arising from the conduct by the applicant’s legal representatives of his case. The applicant also seeks leave to appeal from his sentence. On the sentence appeal the applicant raises two grounds of appeal: that the sentencing judge erred in taking into account matters not properly before her Honour (complaints as to other similar conduct) and that her Honour erred in making adverse findings of fact that were not available on the evidence.

Background

4. As noted, the applicant is the complainant’s father. The applicant was married to the complainant’s mother for thirteen years. The couple separated in October 2016 and divorced in February 2018. The complainant is the only child of the marriage. The complainant’s mother (to whom for convenience and to preserve the complainant’s anonymity I will simply refer as the mother) remarried in July 2019.

5. The mother gave evidence in the trial as to the custody arrangements in respect of the complainant after the couple separated, namely that there was initially a verbal agreement as to shared custody but the mother had primary care of the complainant; that Family Court orders in 2019 provided for joint custody of the complainant; and that, in May 2020, final orders were made which provided for the applicant to have custody of the complainant from after school on Thursday until Monday morning each fortnight. As at May 2020, the complainant was in year two at school. In re-examination, the applicant’s evidence was that, while the initial parenting orders were by consent, there was subsequently a contest over these orders, and the further interim and final orders were orders that the Court had to adjudicate.

6. The disclosure which ultimately led to the charge against the applicant was made to the mother in late July 2020. The mother’s evidence is that the complainant told her that the applicant “did touch my private part”; that this was in the early morning when the complainant was sleeping with the applicant at his house; and that the applicant put his hand not inside her but inside her underwear. The mother said that the complainant also said to her that at one time in the bathroom she could see her father’s private part.

7. The mother made a statement to the police on 29 July 2020 as to the disclosure made by the complainant to her to the effect that the applicant had touched her “private part”. On the same day, the complainant made a similar disclosure to her teacher. The teacher’s statement dated 4 August 2020 was tendered in evidence at the trial (Ex 1). In that statement the teacher said that the complainant had approached her and said “I have to tell you something private. My dad puts his hands on my private parts” ([5]) and that the complainant subsequently said to her:

My dad puts his hands in my private parts ... he does it when we are in bed in the morning ... It happens a lot... I told mum and my aunty and mum said to tell you or any other teacher on our classroom today ... Mum made me pinky promise to tell her that I would tell you or another teacher today and I remembered when I was writing that I needed to tell you. ([6]).

8. On 31 July 2020, the complainant participated in an interview with police (the JIRT interview) which was recorded and the transcript of which was marked MFI 1 at the trial.

9. On 4 August 2020, the applicant participated in a police interview (ERISP) in which he accepted that the complainant slept in his bed at his home sometimes and also with her grandparents (Q/A 64-70) (Ex 2). An Apprehended Domestic Violence Order (ADVO) was issued. In the course of the ERISP (Q/A 178) the applicant said: “So this is her mum? Initiated by her mum?”, to which the police officer responded that the complainant had made a complaint to her mother, who made a report to the police, and that the complainant had told a teacher and the police the same thing.

10. On 24 May 2021, the complainant gave pre-recorded evidence before Shead DCJ on 24 May 2021 (the transcript of which was marked MFI 2). The complainant promised to tell the truth and confirmed that she had told the truth in her JIRT interview. The complainant was cross-examined by defence counsel.

11. The trial commenced on 13 September 2021 before the judge alone. The trial was conducted with all parties appearing via Audio Visual Link. It was accepted at trial that the opportunity existed for the offending to have occurred. The issue was whether the alleged touching had occurred at all. Each of the mother and the applicant gave evidence and was cross-examined. Evidence was also given by the complainant’s paternal grandmother (through a Nepalese interpreter) and by a woman (to whom I will refer as B) who had resided with the applicant some nights a week when the applicant lived in Padstow and then full-time when the applicant moved to Panania in late 2019.

12. The mother’s oral evidence was taken on 13 and 14 September 2021. The mother gave evidence in chief that she had not told the complainant at the time of the disclosure to tell her teacher about it but that she used to tell the complainant now and then that if anyone “does the bad thing or touching” the complainant needed to tell her teacher or to tell her; and she said that this was educating her about the private part and that the complainant did do “the pinkie promise” to her that if anything happens to tell the teachers and to tell her (see T 13/9/21; T 25.47-26.10). The mother’s cross-examination commenced on 14 September 2021 and concluded some time before noon on that day, with brief re-examination by the Crown. The Court adjourned at 12.06pm that day. On the resumption of the hearing on 15 September 2021, after the tender of various exhibits, the Crown case closed. (This timeline is significant when considering the evidence as to the discussion to which the applicant has deposed as to the raising of his contention as to the mother’s responsibility for what he is adamant was the false complaint – see below.)

13. The applicant gave evidence on 15 September 2021. His evidence included that he bathed the complainant once a week in the shower in the ensuite to his bedroom in the first half of 2020 when he was living at Panania, and that the complainant “had no underpants on when she had a shower with me”; and the applicant said that he used his hand to wash the complainant’s “private part” when he was helping her to shower. The applicant denied being aware of a Nepalese cultural custom in which children were encouraged to wear underwear whilst bathing (as the mother had maintained there was) and denied ever having had a discussion with the mother about wearing underwear while bathing.

14. The applicant denied: touching the complainant on her vagina area outside of bathing her or giving her a shower in the first half of 2020 and denied having ever touched the complainant with a view to having a sexual interest in her. The applicant also denied: that in 2020 he touched the complainant’s vagina on the outside of her vagina inside her underpants on his bed; that he touched the complainant’s vagina in the manner that she indicated in her JIRT; that the complainant pulled his hand out of her underpants when he was touching her vagina; that he did not say anything to the complainant when he was touching her vagina in the bed; that he would turn over and go back to sleep after he had touched the complainant in the bed; and that he pretended to be asleep when he touched the complainant on her genital area under her underwear in the bed. The applicant said that he could remember an occasion when he used the toilet whilst the complainant was in the bathroom cleaning her teeth in 2019 (this being relevant to the complainant’s account of having seen her father’s private part on such an occasion).

15. Evidence was then given by the complainant’s paternal grandmother and by B. The grandmother’s evidence was that when she lived in Panania sometimes the complainant would sleep with the applicant in his bed and sometimes she noticed the complainant with the applicant and B in the bed. B’s evidence was that, at Panania, she occasionally slept in the same bed as the applicant, and that the complainant “most of the times” shared the applicant’s bed with her and the applicant. B clarified that she would sleep in her own room when she had to work and had late shifts, and that when she did not have to work, she would share a bed with the applicant and the complainant would come and get into the bed with her and the applicant. When there was a lockdown due to the COVID 19 pandemic, B was no longer able to work and her evidence was that the complainant would sleep with her and the applicant “most of the time” and that the complainant would “sometimes” sleep in the complainant’s bed with her grandmother. The applicant accepted that he had commenced a romantic relationship with B towards the end of 2019 and that there were several occasions when he shared his bed the whole night with both the complainant and B.

16. In evidence at the trial was the recorded JIRT interview and a transcript of the interview. The Crown notes that the prosecution and defence representatives had discussed the content of the JIRT interview and transcript, and had agreed to edits, before it was played at trial; and that it was played without objection. There was also in evidence the pre-recorded cross-examination of the complainant.

17. On 16 September 2021, after the close of the prosecution and defence cases, and prior to closing addresses, the trial judge sought to clarify that the issue was not whether, if the touching occurred, it was not an intentional sexual touching but, rather, the issue was as to whether the sexual touching occurred at all (see T 16/9/21; T 127.16). Defence counsel indicated that that was so (i.e., that the issue was whether there was an intentional sexual touching at all) expressly disavowing that there was an innocent explanation for the touching (if it occurred) though noting that there was some evidence in the complainant’s pre-recorded evidence to suggest that there was some ambiguity that might constitute a basis for a submission as to a possibility that the touching had occurred in some inadvertent sense (see T 16/9/21; T 127.19ff).

18. The trial judge then asked whether the evidence given by the complainant to the effect that “he does it a lot of the time” or “that kind of thing a lot of the time” was before the Court as relationship or context evidence explaining that the conduct was not isolated, to explain why the complainant might be confused, “and all those other legitimate uses of that type of evidence” (see T 16/9/21; T 127.43).

19. Defence counsel’s submission on that issue commenced with noting that in the pre-recorded interview the complainant gave evidence that the conduct happened “a lot” and estimated at one point that it was “between 20 and 30 times”. Her Honour observed that the complainant kept saying she did not know how many times, then when pressed provided a number (which the defence counsel confirmed was 20 to 30) (see T 16/9/21; T 128.1ff) when pressed. Defence counsel then submitted:

WEBB: -and the officer was trying to clarify that, and that was clarified and then it was “I don’t know how many times,” and then the..(not transcribable)..the complaint witness being the mother - the mum says between..(not transcribable)..100 times.

…

WEBB: That formed part of the complaint evidence, and it is submitted that, in the context of this case - or to reuse the word - that evidence is not admissible because it would be subject to, it is submitted, exclusion under 137 insofar as the ultimate assertion of the child is that; namely, “I don’t know how many times it occurred,” and in this case, it is submitted, the child made it tolerably clear - not necessarily the only interpretation upon the evidence within the indictment period - but that it was early in the school year.

20. The defence submission that the evidence was not admissible as it would be subject to exclusion under s 137 of the Evidence Act 1995 (NSW) was on the basis that the ultimate assertion of the complainant was “I don’t know how many times it occurred” (and defence counsel also submitted that it was tolerably clear that the alleged conduct the subject of the single count was early in the school year). The submission in that context was that the evidence had “very limited, if any, probative value” because the Crown did not allege that the conduct was continuing after this early time in the school year (see T 16/9/21; T 128.26ff).

20. The Crown contended that the relevance of the complainant’s evidence that it happened a number of times (even though there was only a single count) was “really quite limited”, saying that it was limited to the fact that (if it were to go to a jury) this would answer a question that the jury might have as to why someone would do this just once and then stop “out of the blue” (see T 130;22-31). In particular, the Crown said:

It would seem unlikely that somebody would do this just once and then stop. That’s about the size of the - or the significance - of the evidence about it happening, other than the particular time - which is what the Crown relies on - the first time, as the charge on the indictment.

22. In response, defence counsel submitted that the evidence was not context evidence or relationship evidence (see T 16/9/21; T 131.2), to which her Honour raised the question as to whether it might also address any confusion of the complainant around the specifics of the offence, particularly given the complainant’s age. Her Honour observed that it is a permissible use of such evidence where a complainant says that something happened on an indictment, and that that event happened on other occasions (see T 16/9/21; T 131.14-32).

23. Her Honour noted that there had been no objection to the evidence, i.e., that it be excluded and said that “to be quite frank, I don’t think it’s any - for want of of a better word, you know - fatal blow, one way or the other”; in other words, if it was relevant it was not greatly relevant; and , if it was excluded not much was lost, suggesting that ultimately this evidence might not be a big deal (see T 16/9/21; T 131.46).

24. After a submission by defence counsel as to the opaqueness of the assertion, and that it generated an issue in terms of prejudice to the accused because, in order to consider the assertion her Honour would have to reach satisfaction that there was a disposition going to the issue of sexual attraction (as nothing else could explain the complainant’s assertion), her Honour noted that the Crown was not relying on this as tendency evidence and said that, if the evidence did answer a question that might arise (for example, explaining a relationship or a background or providing context), then the evidence could be admitted for that purpose (subject to ss 135 and 137) and that then a tendency direction would have to be given (to herself) that the evidence could not be used to establish a propensity or tendency (see T 132). Her Honour said that the Crown was not saying that this was sexual interest reasoning.

25. Defence counsel for the applicant then argued that the evidence went to or formed part of an inference that, to the extent that the complainant was in the bed with the applicant, the purpose of that was one that went to sexual gratification (reasoning that her Honour did not accept was what the Crown was saying) (see T 16/9/21; T 132.24). (On the appeal, Counsel for the applicant went to this passage and said that her Honour did not provide a direction to limit the use of the evidence because her Honour in substance excluded it – the Crown cavils with that suggestion.) Her Honour said at T 133 that she would not engage that kind of reasoning.

26. The following day, the trial judge sought to clarify the position of the defence as to whether there was or would be a submission by the defence that the Court might find that the touching was inadvertent (something that I note the defence counsel had disavowed in opening submissions) (see T 17/9/21; T 13). In that context, her Honour queried whether, if such a submission was pressed, it might be a basis to admit the complainant’s evidence as to any other occasion(s) in which such conduct had occurred. Her Honour expressed the view that a submission as to inadvertent touching might make relevant evidence related to other times “which would otherwise be off the table”; and defence counsel then informed her Honour that (having regard to the applicant’s unequivocal or categorical denial), the issue of inadvertent touching was not pressed and the question would be whether it actually happened (T 17/9/21; T 138).

27. The issue was raised again (see T 17/9/21; T 140-T 141) when defence counsel foreshadowed that in due course the trial judge would rule as to whether evidence of the conduct happening on one occasion was able to be taken into account as context evidence. Her Honour at that point indicated that she did not consider it was available as context evidence because it did not really address what had occurred; but then said that it might address why the complainant was a little confused about the occasion; and then said that she had already determined that she would not have regard to the evidence suggesting that there were other times (see T 17/9/21; T 141). Pausing there, I do not read this as a ruling that the evidence of complaint as to other times on which the conduct had occurred was rejected as inadmissible. Rather, I read this as her Honour confirming that she would not have regard to it (inferentially, when determining the issue of guilt or otherwise in respect of the single count charged) because of its limited relevance to the issue as to whether the offending conduct had occurred.

28. It may be noted that in the verdict judgment the trial judge did not refer to the complainant’s evidence in the JIRT interview of sexual touching having occurred on other occasions.

29. Also in the course of closing submissions, defence counsel responded to a question by her Honour as to whether he was alleging that the mother and the complainant were deliberately telling untruths by saying (at T 17/9/21; T 166):

WEBB: I’m not suggesting that about mum. I think, in my submission, in terms of what was said legally, that mum was probably taken aback and stuff like that. But it’s no part of the defence case to say that mum was dishonest. To the contrary, mum presented as a very honest person.

HER HONOUR: Are you saying that [the complainant] was deliberately dishonest?

WEBB: Yes, you Honour. It is submitted that [the complainant] knew this had not happened, and she was in two minds about what to do with it. She didn’t want to make mum unhappy. She would not have understood the profound implications of a matter such as this being proved. And another part of her wanted to perhaps, you know, keep seeing dad and being in circumstances where there were people to hang out with that she really liked like [B], and she probably was pretty close to granny because granny was good company when she was at home and night [sic] …

30. The applicant’s contention, however, was that the mother had encouraged the complainant to make a false complaint (in order to procure a particular outcome in relation to Family Law proceedings between the couple) and his present complaint is that this was not raised during the trial. That said, in the course of oral submissions the nub of the present complaint is not so much that the Family Law issues were not brought into the defence case (the applicant accepting that Dr Webb advised against this and that he accepted that advice) but, rather, that the applicant was not made aware that Dr Webb would not cross-examine the mother as to her role in the making of the false complaints (see below).

31. The trial concluded on 17 September 2021. On 23 September 2021 the trial judge delivered an oral verdict judgment. The trial judge was satisfied beyond reasonable doubt that the Crown had proved the offence alleged in the indictment.

32. The sentencing proceeding was on 26 November 2021. In written submissions, the Crown submitted on sentence that the facts were those found by the trial in her verdict judgment of 23 September 2021.

33. In his written submissions on sentence, the applicant submitted that the Court was dealing with a single example of the offence and in oral submissions reiterated that “in terms of the placing of the offence within the context of the charge, it is submitted that it’s a single act’’. In oral submissions there was the following exchange on this issue:

HER HONOUR: But it wasn’t isolated. The complainant said it happened a lot. She said that several times, so whilst that doesn’t - and if I accept that beyond reasonable doubt, and there’s no reason I wouldn’t, if he - that doesn’t aggravate it, but he doesn’t get the leniency of an isolated instance of offending.

WEBB: Your Honour would also be mindful, I submit, that if it goes no further than an - not having an isolated incident to deal with, because in my submission, your Honour would have difficulty beyond reasonable doubt in determining what numeric qualities would attach to this other behaviour, so there was 20 or 30 occasions nominated in the evidence of the complainant, and otherwise there was a good deal of vagary in terms of when it happened on the last occasion referable to the time when the interview was given, and what is conveyed is that this particular matter or incident was not singular in its nature, but to reach satisfaction beyond reasonable doubt as to the extent of any other contextual or relationship based conduct would be something unable to be reached in terms of the sentencing task.

[see T 26/11/21; T 3)

34. The Crown submitted that, as the complainant could not specify the other occasions, it was for her Honour to determine whether she was satisfied beyond reasonable doubt of those matters.

35. In her Honour’s reasons for sentence, her Honour relevantly found that:

In the reasons I delivered on 23 September 2021, I identified the facts I found established by the evidence including the essential facts I found proven beyond reasonable doubt. I don’t propose repeating those factual findings and to that extent, these reasons should be read in conjunction with those delivered on 23 September 2021.

One matter not addressed in the reasons provided on that day was whether the offence was completely isolated or whether it was a representative offence. In that regard, that complainant stated in her recorded interview with police that, “He’s done it like, a lot of times”, and she said, “It’s been like, more than one, it’s been more than multiple, it’s been like, a lot maybe, but he did do it a lot”. She then stated when pressed to provide a number that she did not know how many times, but maybe 20 or 30 times. In that regard, I accept beyond reasonable doubt that the offence for which the offender has now been convicted was not an isolated offence, however I am unable to determine the number of other occasions that conduct similar to that described by the complainant occurred on other occasions.

I make clear, however, that whilst I accept the fact that the one count was not an isolated occasion, that does not aggravate the present offence, but rather it deprives the offender of any claim to mitigation and attendant reduction of an appropriate sentence on the basis the one offence before this court was isolated or out of the blue.

36. Her Honour’s reasons for sentence then continued to consider the objective seriousness of the offence committed, assessing this as falling below, but not significantly below, the middle range of objective seriousness (noting what the offending involved; that it was in the offender’s home, which was effectively one of the complainant’s homes; that the complainant was well below the threshold age of 10 years at the time of the offence, thus very young and vulnerable; that the offender was her biological father and that the offending constituted a very serious breach of the trust placed in a parent). Her Honour accepted that the offender did not use threats or manipulation but said that this carried very little weight bearing in mind the complainant’s age and vulnerability, her helplessness and the significant position of trust the offender held as her father. Her Honour recognised that an offence of child sexual misconduct causes harm (referring to this not as a matter of aggravation but as something to take into account as one of the purposes of sentencing).

37. Her Honour then turned to the applicant’s personal circumstances and accepted that he had good prospects of rehabilitation. Her Honour noted that the applicant had no relevant criminal history. Her Honour referred to the importance of general deterrence, as well as punishment and denunciation, as important sentencing considerations. Her Honour was of the opinion that no other sentence than imprisonment was appropriate and that anything less than that would constitute error as it would be manifestly inadequate.

38. Her Honour then made a finding of special circumstances warranting a significant degree of variation to the otherwise applicable ratio, those being the combination or cumulative effect of the following: that this was the applicant’s first term of imprisonment, his age, his fragile emotional state and the impact of COVID-19 on the conditions for persons in custody.

39. The applicant was then sentenced to the term of imprisonment of four years and six months with a non-parole period of two years and three months, as noted earlier. Her Honour considered this to be the minimum justice required in the circumstances.

Conviction Appeal

40. As noted above, the sole ground on the conviction appeal is that there was a miscarriage of justice arising from the conduct of the applicant’s legal representatives of the applicant’s case. In support of this ground, the applicant affirmed an affidavit on 9 November 2022. The applicant was cross-examined via AVL from his place of incarceration. The Crown relied on affidavits from each of the solicitor (Ms Coorey) and barrister (Dr Webb) who had appeared at the trial on behalf of the applicant; and each was cross-examined by the applicant’s Counsel (Mr Walker) – Ms Coorey by AVL and Dr Webb in person.

41. In that regard, while focus is to be directed, to the extent reasonably possible, on the objective features of the trial process in determining an incompetence of counsel ground (TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 (TKWJ) at [8] per Gleeson CJ), it has been accepted that in exceptional circumstances resort might be necessary to subjective evidence concerning the legal representatives’ reasoning at trial or to evidence as to communications between the appellant and those representatives (Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 (Alkhair) at [31] per Macfarlan JA; that approach being followed in Moustafa v R [2019] NSWCCA 89 at [40]-[58] per Payne JA (Wilson and lerace JJ agreeing; and see Hanna v R [2022] NSWCCA 7). In the present case, it was appropriate to permit such evidence to be relied upon in the present case, as a matter of fairness to the legal representatives whose conduct of the trial is here being impugned by the applicant (see the reasoning in Momoa v R [2020] NSWCCA 328 per McCallum J, as her Honour then was).

Applicant’s evidence

42. In his affidavit, the applicant deposes that he instructed both Ms Coorey and Dr Webb that the complaint originated from the mother (see at [4]) and that he was shocked when Dr Webb told the primary judge towards the end of the trial that the mother was an honest witness.

43. The applicant has deposed that he was represented by Ms Coorey on the day of his bail application after his initial arrest and charge; and that he subsequently obtained a grant of Legal Aid after which he met once with Ms Coorey to receive a USB and CD (presumably the prosecution brief) and that after that he communicated with Ms Coorey via email, text message and telephone. The applicant has deposed that he met Dr Webb once at his chambers with Ms Coorey prior to the trial and then saw him during the trial (see at [5]-[6] of the applicant’s affidavit).

44. At [7], the applicant deposes that, during his meeting with Dr Webb and Ms Coorey prior to the trial (my emphasis) he told them that he was not guilty and that he thought that the mother was manipulating the complainant to make these complaints. The applicant says that he told his legal representatives that the mother had got everything she was seeking in the Family Court except the parenting order; that the Family Court proceeding had finished in May 2020; and that because the mother wanted a sole parenting order from the court she had “started this new event”, the sexual touching allegation, in order to get the sole parenting order in the future.

45. Annexed to his affidavit is a copy of an email dated 16 October 2020 from the applicant to Ms Coorey, in which the applicant states that he had read the brief of evidence (sent to him on 23 September 2020) and refers to a conversation with Ms Coorey in gaol on 5 August 2020 in which he says that Ms Coorey asked him “why do you think mum would set up”. The applicant’s response to this question (in the 16 October 2020 email) was (with emphasis as per the email) “THE REASON FOR SUCH ALLEGATIONS IS TO OBTAIN SOLE CARE OF [the complainant]”.

46. The email continued:

1.   On 22 May 2020, Mum got sole parental responsibility from Family Law Court orders. She had spent $172,848K to her lawyers during Family Law Court proceeding but did not sought [sic] Sole Care of [the complainant] in family court because she learned from her lawyer it was not possible at Family Law Court.

2.   Mum was learning the possible way of getting “Sole Care of [the complainant]” from her lawyer. After Family Law Court awarded mum the Sole Parental Responsibility of [the complainant], she started to concept a false allegation that would possibly award her a Sole Care of [the complainant]. Mum also learned child support will not apply to her when she have sole care of [the complainant].

3.   09 June 2020, Mum open [sic] up a case in the Family Law Court. She further lodged Application in a Case on 11 June 2020 with the help of her same lawyer. The matter was then listed for Mention on 31 August 2020.

4.   On 27 July 2020, Mum constructed a false allegation. Then she instigated a criminal case against me with the help of her same lawyer on 29th July 2020 that would possibly reward mum a sole care of [the complainant] and at same time would prison me [sic].

47. The applicant deposes that he specifically recalls telling Ms Coorey that the mother wanted a sole parenting order and had started the sexual touching allegation when he and Ms Coorey first met on or around 22 July 2020; and that he remembers telling Dr Webb this on or around January 2021 when the applicant first met Dr Webb in his chambers (see at [8]). (Pausing here, in cross-examination on the present appeal, the applicant accepted that this January 2021 date is not correct and he accepted that the one conference that he had with Dr Webb and Ms Coorey, in the former’s chambers, was around the middle of May 2021, before the complainant gave her pre-recorded evidence in the proceeding – see T 5/5/23; T 3.33-4.35.)

48. In cross-examination on the appeal, the applicant recounted the advice given by Dr Webb as being that:

A.   He said in the matter that was already discussed, already happened in the Family Court it’s not relevant to these charges. So anything you want to bring into this criminal court about your past family matter would not help it would be considered as a whining and too much whining which is not relevant to this particular matter is not going to benefit you.

So we need to focus on this criminal matter, anything you say about the past relevation [sic] from your ex-wife it’s already passed, it’s been already dealt in Family Court and his advice was not to bring them in the criminal court.

…

I mean it’s not relevant whining, too much whining you know because what I was trying to explain to Mr Webb is look in the past my ex-wife said what I was trying to explain to Mr Webb is look in the past my ex-wife has said this, had done this and these things were not true and I was just giving him a background that in the past if that can happen this particular matter can also happen that it’s coming from my ex-wife.

So I was just giving him a background about the past that happened, I’m trying to link it to the current criminal matter.

[T 5/5/23; T 5.33ff]

49. Questioned further on this, there was the following exchange:

Q.    And Dr Webb said didn’t he that in the trial it would be better to challenge [the complainant]’s reliability?

A.    Perhaps he had said that but I did not think he had said that but what I remember is he said we need to focus on the current in the matter not what happened in the past.

Q.    So you accept do you that Dr Webb did say it would be better to challenge [the complainant]’s reliability?

A.    I’m not really sure about whether he said or not that he was going to challenge the reliability of my daughter.

Q.    Could you just listen please very carefully to my words, do you accept that he said it would be better to challenge [the complainant]s reliability?

A.    I’ll accept that.

Q.    And he said didn’t he that if you did not want to take that advice you should find other counsel?

A.    Yes.

Q.    Because he said didn’t he that other counsel may have a different view about whether to raise the Family Court matter in your defence?

A.    Yes.

[T 5/5/23; T 6.109ff]

50. The applicant says that he also met Dr Webb in the courtroom during the court hearing when Dr Webb was interviewing the complainant in front of the primary judge (in context this must be a reference to the pre-recorded cross-examination before Shead DCJ); and that he also conversed with Dr Webb during the main trial by audio-visual link (see at [8]). The applicant deposes that he never changed his version of events to either of his legal representatives and always maintained that the allegation was coming from the mother (see at [8]). The applicant says that he told Ms Coorey many times that the allegation came from the mother and that he told Dr Webb one or two times when he spoke to him about this (see at [9]).

51. At [10], the applicant deposes that he specifically recalls telling Dr Webb on a phone call during the trial (which phone call he placed as occurring on approximately 25 or 26 September 2021), that it was the mother who was manipulating the complainant to make this allegation and goes on to say that he specifically recalled telling Dr Webb the same when the mother was giving evidence during the trial (see at [10]). In cross-examination, the applicant accepts that this conversation happened during the trial after the mother had given evidence about something to do with the Hindu religion (T 5/5/23; T 7.28). Since the mother’s evidence concluded on 14 September 2021 and the trial was completed on 17 September 2021, this conversation cannot have been as late as 25 or 26 September if, as the applicant was adamant it had, it was during the trial and when the mother had brought up the topic of the Hindu religion in the trial.

52. The applicant says that in this conversation Dr Webb said words to the effect that the complainant was “telling everything” to the mother; and that Dr Webb referred to the complainant as being dishonest (when referring to the bathroom incident), which the applicant says that he did not like. The applicant says that “I then told him that I know my daughter and this isn’t true it is my ex-wife [the mother] influencing [the complainant] to say all these things”.

53. The applicant goes on to say:

Mr Webb asked me if I was happy with the way he conducting the trial and, if not, he would pull out. I had the feeling that if I said no, there would be consequences and I didn’t want this. So, in order to avoid any conflict and the potential of Dr Webb not representing me, I said yes that I was happy for him to proceed, but in reality I was not happy.

54. Having regard to Dr Webb’s contemporaneous note of the conversation it appears that this was on 14 September 2021 (just before the close of the Crown case but after the mother had given evidence). As to the applicant’s account of the conversation to the effect that Dr Webb said that if the applicant was not happy with the way he was conducting the trial he would pull out, the applicant accepted in cross-examination that this was the impression he had formed, not what Dr Webb had said (see T 5/5/23; T 10.7ff); and that this was a feeling that he had (T 5/5/23; T 13.26ff).

55. The applicant deposes that, after the trial concluded on 23 September 2021, when he found out the verdict, Ms Coorey said to him words to the effect that she knew that he did not do this and that “Don’t worry, we will appeal the verdict and do everything we can to get this overturned. I know it’s your ex-wife but this is the system in Australia” (see at [11]). Ms Coorey disputes this (see below).

56. Relevantly, in the context of the complaint now made (as to defence counsel submitting that the complainant was being dishonest), in cross-examination on the appeal, the applicant said that he accepted Dr Webb’s advice that he would not bring into the defence the past allegations already dealt with in the Family Court but he was not sure whether Dr Webb was going to challenge the complainant or going to challenge the mother (see at T 5/5/23; T 8.17ff), before accepting that Dr Webb might have said that it would be better to challenge the complainant’s reliability (see at T 5/5/23; T 8). The applicant accepted that he had not given Ms Coorey any instructions as to any questions to put to the prosecution witnesses (T 5/5/23; T 10) and he said that he had no clear understanding how his defence counsel would run the trial or how he would do his job but he believed in and trusted Dr Webb (T 5/5/23; T 14).

Dr Webb

57. By affidavit sworn on 14 April 2023, Dr Webb deposes that he met the applicant around mid-May 2021 with Ms Coorey at chambers in relation to taking the applicant’s instructions (see at [5]); that it was clear to him that the applicant wished to introduce the Family Law proceedings in respect of custody, which had concluded with the mother having primary custody (see at [6]); that the applicant said words to the effect that “Her mother has put her up to this” by which he understood at the time that the applicant was alleging that the mother had caused the complainant to make a false allegation for the purpose of excluding him from the complainant’s life (see at [7]); and that at the conference in his chambers he informed the applicant that it would be unhelpful to raise the Family Court matter and its outcome, and that it was better to challenge the complainant’s reliability in response to the charge (see at [8]).

58. Dr Webb’s evidence is that it was clear to his mind that the applicant was disappointed with this advice, and Dr Webb says that he indicated to the applicant that if he did not wish to take the advice on this issue then he should retain other counsel who may have a different view about it (see at [9]).

59. As to the conversation referred to by the applicant in his affidavit at [10] (the telephone call with Dr Webb when the applicant says that he said “it was the mother who was manipulating my daughter to make this allegation”), Dr Webb says that this did not take place during the trial proper, commencing with the pre-recorded proceedings; but that it took place in the mid-May 2021 conference (see at [11]-[12]) and that it was in different terms (see at [13]). Dr Webb deposes that he said words to the following effect:

… I will not run the family court matter in your defence at trial. It is better to challenge the account given by your daughter as to what she says happened. There may be other barrister’s [sic] who will have a different view to me and you should ask Ms Coorey to brief them.

60. Dr Webb says that the applicant indicated he would accept Dr Webb’s advice to place the truthfulness of the complainant in issue (see at [14]), and that the applicant indicated that he was content to proceed upon that advice and would be prepared to give evidence in his defence (see at [14]). Dr Webb says that the applicant said words to the effect in his chambers that “OK then we will do it like you have said and I will give evidence in support of my case if you think that’s a good idea. I’ll take your advice about that” (see at [15]).

61. Dr Webb deposes that it was clear to his mind that the applicant held a genuine belief that the mother had put the complainant up to the allegation as a device through which to obtain sole custody on her part (see at [16]).

62. In his affidavit Dr Webb deposes to the reasons that he had some confidence that the applicant would advance his defence by giving evidence and says that he was encouraged in his decision to call evidence by his rejection of any defence going to incidental touching, which Dr Webb said he had specifically raised with him (see at [17]).

63. Dr Webb deposes that at the close of the Crown case he asked the applicant, on a call with his solicitor, whether the applicant was happy with the conduct of his case and the way in which it had been raised by his counsel and that the applicant said yes (see at [18]).

64. Dr Webb annexed to his affidavit his handwritten contemporaneous notes of the telephone conference on 14 September 2021 at about 1.45pm. Also annexed is an email that the applicant sent to Ms Coorey on 21 September 2021 at 8.15pm and copied to Dr Webb (in which the applicant states that he was happy with the way Dr Webb represented him in the court).

65. Dr Webb has deposed that his approach to the cross-examination of the mother at trial was to highlight to the extent possible that the complainant was at the time a small child, very attached to her mother and missed her mother when away from her, and said that he also sought to elicit in cross-examination that a strict code of modesty applied with the mother in relation to the complainant. It was noted that it was also raised with the mother that the access arrangements were very “choppy” particularly while the Family Law proceedings were unresolved and that the complainant was timorous when being washed by the applicant at his place, seeking to raise a contrast with the approach of each parent to washing the child (from which it was sought to be advanced that these matters may have alarmed the complainant as to seek some distance from the applicant given her young age so that it remained a possibility that the evidence of the complainant was unreliable) (see at [23]).

66. In cross-examination, Dr Webb accepted that from start to finish of the trial the applicant never wavered from his opinion that the genesis of the complaint of sexual misconduct originated from the mother (see at T 5/5/23; T 16.1-4). As to the conversation in which Dr Webb asked the applicant if he was happy with the way his case had been raised by his counsel (on 14 September 2021), Dr Webb did not accept that he asked that question because the applicant had reiterated during the phone call that the genesis of the complaint originated from the mother (T 5/5/23; T 16.30) or that the applicant had expressed confusion during the phone call that the mother had not been challenged on this during her cross-examination (T 5/5/23; T 16.34). Dr Webb denied that a lot of the phone call had involved discussions about the mother having played a part in the case (T 5/5/23; T 17.4). In response to a question from Ierace J, Dr Webb said that the applicant did not express any concern to him (either before or after his response to the trial judge accepting that he was saying that the complainant was deliberately dishonest) about that submission made to the trial judge (T 5/5/23; T 17.26).

Ms Coorey

67. Ms Coorey affirmed an affidavit on 20 April 2023, affirming that she met the applicant at least once in person when representing him at Bankstown Local Court (for the bail proceeding) and thereafter maintained communication with him via email, text messages and by way of telephone conferences.

68. Ms Coorey deposes to the conference with the applicant in Dr Webb’s chambers in May 2021 prior to the Pre-Trial recording; that at the conference the applicant said he was not guilty and that he thought the mother was manipulating the complainant to make the subject complaints so that she could obtain sole custody; and that there was no occasion on which he touched the complainant in a sexual way on any part of her body. Ms Coorey noted that he gave instructions that the complainant sometimes slept in his bed and that he touched the outside of her pants with a view to seeing if she had wet the bed during the night; however, this had not occurred at the Panania home. Ms Coorey noted that the applicant specifically declined to raise any defence of incidental touching as there had never been any at the time (see at [4]).

69. Ms Coorey deposed that at this conference Dr Webb “specifically declined to press the recently concluded Family Court matter concerned with access and custody arrangements for the child” because the real issue was the reliability of the complainant; that Dr Webb took a “stern position” in that he would not run the case in that way and that he invited the applicant to seek assistance from other counsel; and that the applicant indicated that he wished to proceed with instructions to Dr Webb (see at [5]). Ms Coorey said that at no stage did the applicant provide her with affidavits from the Family Law proceedings (see at [6]).

70. Ms Coorey is not aware of any private conversation between the applicant and Dr Webb nor was she aware of any conversation occurring between them at any time in which the applicant indicated that the complainant was honest in relation to the allegations at the trial (and says that if such an assertion had taken place she would have instructed Dr Webb to take instructions with the applicant as to a plea of guilty and otherwise to discontinue acting) (see at [7]).

71. Ms Coorey accepts that she did believe in the applicant’s innocence and did advise him that he could appeal but denies that after the verdict she said “I know it’s your ex-wife but this is the system in Australia” (see at [8]). Ms Coorey says that at no stage during the trial or beforehand did the applicant indicate that he was unhappy with how the trial was being run, or that he wished particular questions to be put to prosecution witnesses (see at [9]).

72. As to the conversation referred to in [10] of the applicant’s affidavit, Ms Coorey deposes to having read Dr Webb’s affidavit and that she agrees that the conversation was one that did not occur during the trial but at a conference in Dr Webb’s chambers in mid-May 2021 prior to the cross-examination in the Pre-Recording. Ms Coorey says that Dr Webb said it would be unhelpful to “bring the family law matter into the trial, that he would not do so, and if the [applicant] was unhappy with this approach he could engage another [b]arrister”. Ms Coorey says that the applicant did not ever request Dr Webb not to challenge the reliability or honesty of the complainant, and states she would have remembered such an instruction as it would have been inconsistent with any viable defence (see at [11]).

73. Ms Coorey deposes that during the course of the trial the applicant raised the issue of whether or not to call the aunt who was apparently present after the complaint and that Counsel formed the view that it was not appropriate to do so as it would be evidence of more complaint (see at [12]), annexing a copy of a letter dated 14 September 2021 from Dr Webb in that regard.

74. Like Dr Webb, in cross-examination Ms Coorey accepted that from the start to the finish of the trial the applicant maintained his opinion that the genesis of the complaint of sexual misconduct against the complainant arose from the mother (T 5/5/23; T 20.4), though adding that it was not something that came up in every conversation. Ms Coorey was not able to recall the conversation on 14 September 2021 but did not recall any complaints by the applicant during the trial (T 5/5/23; T 20). However, Ms Coorey was adamant that if there had been complaint by the applicant it would have been explored further and that she would have recalled if there was a complaint (T 5/5/23; T 21).

Applicant’s submissions

75. The applicant accepts that on an incompetence of counsel ground of appeal it is not sufficient simply to establish incompetence but that he must also establish that a miscarriage of justice has occurred as a result (noting the position in TKWJ at [97] per Gaudron J and Madden v R [2022] NSWCCA 196 at [452]) and that (with some exceptions as justice demands – see Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 (Nudd) at [10] per Gleeson CJ) a party is bound by the conduct of the party’s counsel.

76. In written submissions, the complaint by the applicant is that a miscarriage of justice occurred by virtue of the applicant’s case not being presented by his counsel as per his instructions, and an implausible “ulterior case theory” being prosecuted. The reference to the applicant’s instructions must be a reference to the applicant’s contention that the mother had manipulated the complainant to make false allegations in order to obtain sole custody of the complainant (since there is no evidence of any other particular instructions that it is said his legal representatives did not follow). It is said that this contributed to a finding of guilt and subsequent imprisonment without the applicant’s defence being tested in court.

77. However, a more nuanced position appeared to emerged in the oral submissions on appeal, where the complaint in essence was that (although the applicant accepted that Dr Webb would not raise the Family Court matter during the applicant’s defence at trial) his defence counsel did not cross-examine the mother as to the contention that she had manipulated the complainant to make false allegations (and it was not indicated to the applicant that the mother would not be challenged as to her being the genesis of the complaint) (see at T 5/5/23; T 22.10-15). The applicant accepted in cross-examination (as noted above) that he was advised by Dr Webb not to bring the Family Court proceedings into the trial but the applicant maintains that he did not understand that the mother would not be cross-examined consistent with his contention as to her role in the making of the allegations.

78. As “corroborative evidence” of his contention, the applicant refers to the complainant’s police interview in which, when questioned about the bathroom incident (when the complainant said she saw her father’s private part), there was the following exchange:

Q:    And why do you remember that?

A:    My mum said to tell you.

and to the teacher’s evidence that the complainant told her that her mother had made her “pinky promise” to report his conduct to teachers at the school the next day (rather, it is said, than reporting it to police). Some significance also appears to be attached by the applicant to the fact that the mother contacted her family lawyer prior to reporting the matter to police (referring to the transcript on 13 September 2021 at T 25.40-26.15).

79. The applicant maintains his contention that he never sexually touched the complainant and that the genesis of the complaint is a concoction from the mother in an effort to obtain sole custody of the complainant. The applicant complains that this narrative was never presented in court by his counsel and the applicant argues that there was no legitimate forensic purpose for not doing so. In oral submissions, the applicant argues that his case theory does not require a submission that the complainant is honest; rather that case theory still includes by necessity the notion that the complainant is lying but that the genesis of the lie on this case theory is the mother (see T 5/5/23; T 22.23-28). Thus, the applicant argues that there was nothing to preclude the defence running a trial on two bases – one, that the mother influenced the complainant to make up the false allegations in order to gain an upper hand in the concurrent Family Law Court proceedings and, two, as an alternate submission that the complainant was deliberately dishonest (that being said to be the way the trial was conducted). It is submitted that there was no legitimate forensic basis in excluding the first case theory and that it was not in the applicant’s benefit in refusing to run the applicant’s case theory side by side with that which was run by defence counsel (see at T 5/5/23; T 23).

79. Pausing here, it is not necessarily apparent from the transcript that the defence case was conducted throughout on the basis that the complainant was being deliberately dishonest (it being consistent with there being simply a challenge to the reliability of the complainant’s evidence – given her age, for one thing). However, when pressed by the trial judge to clarify whether the defence was saying that the complainant was being deliberately dishonest, the answer that was given by defence counsel squarely put the issue as one of dishonesty (as noted earlier).

80. The applicant also points, as “corroborative evidence” for his alternative case theory, to the evidence that was given by the complainant during her cross-examination at the trial, in relation to the bathroom incident (where the complainant said that she had seen the applicant’s private part), that:

Q:    Did your mum tell you to say that to the police; true or false?

A:    I don’t know.

[T 24/5/21 at T 53.5-10]

Q:    Did you say that to the policeman because your mum told you to say that; true or false?

A:    I don’t know.

[T 24/5/21 at T 53.45-50]

Q:    Did you tell the policeman about that event of brushing your teeth in the bathroom because your mum asked you to say that; was that why you said that?

A:    I don’t know.

[T 24/5/21 at T 55.20]

82. As to the mother’s evidence, the applicant notes that questions were asked of the mother relating to the Family Court proceedings and the related order made in May 2020 which resulted in more consolidated time periods of the complainant spending time between the mother and the applicant, and less travel of the complainant between the two (T 14/9/21; T 33.20-35.30); but that it was never suggested to the mother that the allegation did not in fact originate from the complainant (but came from the mother) nor was it suggested to the mother that she instructed the complainant to tell police certain allegations (the applicant pointing to what was elucidated from the police interview with the complainant in MFI 1) or to “pinky promise” to report the sexual allegation to a school teacher on 29 July 2020. The applicant’s contention is that the relevance of the ongoing Family Court proceeding at that stage was that the genesis of the complaint originated from the mother because the mother was not gaining success in the Family Law proceedings in relation to custody (see T 5/5/23; T 24.38).

83. It is noted that the applicant was questioned in chief as to a change in parenting which occurred due to Family Law court orders around May 2020 (T 15/9/21; T 55.35) and in re-examination he accepted that there were contentious Family Court orders made around 2018 and May 2020 (T 15/9/21; T 86.15-40).

84. The applicant submits that, given that he had instructed his counsel that the mother was the genesis of the complaint of sexual touching of the complainant, at the very least this should have been put to the mother during her cross-examination (consistent with Browne v Dunn (1893) 6 R 67). Further, the applicant contends that, in advancing his case as instructed, the mother should have been cross-examined as to: the mother’s motivations for instructing the complainant to tell police about the incident involving the applicant entering the bathroom while the complainant was brushing her teeth (referring to the complainant’s evidence on 24 May 2021 at T 52.25-30); the mother’s motivations for not taking the complainant to the police station upon hearing the complaint of sexual touching from the complainant but instead contacting her Family Law lawyer prior to contacting police (T 13/9/21; T 25.40-26.15); the mother’s evidence that she did not tell the complainant to report the sexual touching allegation to the school on 29 July 2020 (T 13/9/21; T 25.45-26.5) but that it was a general standing instruction provided from the mother to the complainant (T 13/9/21; T 25.45-26.10), and the evidence of the teacher that the complainant had told her that she had “pinky promised” the mother that she would tell her teacher or another teacher at school specifically on 29 July 2020 (Ex 1 at [6]). The applicant says that this evidence was all available before the trial through his instructions and the brief of evidence.

85. The applicant says that it is clear that his instructions to his legal counsel were that the complaint originated from the mother with the motive of obtaining sole custody of the complainant (and indeed this does not appear to be disputed having regard to the evidence of Ms Coorey and Dr Webb referred to above, and the 16 October 2020 email to Ms Coorey); and that although there was cross-examination of the mother in relation to the concurrent Family Law orders the mother was never tested as to the idea of her implanting the idea of the complaint upon the complainant.

86. The applicant further complains that his defence counsel submitted to the trial judge that it was no part of the defence case to say that the mother was dishonest; and that the mother presented as a very honest person (T 17/9/21; T 5166.35). The applicant contends that this submission was in direct contrast to his instructions (referring to Annexure A to his affidavit in which – as noted above – the applicant gave instructions to that effect) (and see T 5/5/23; T 22.20). The applicant says that defence counsel was aware of the “potential inference” of the mother telling the complainant to make the complaints.

87. As to the submission by defence counsel that the complainant was deliberately dishonest regarding the sexual touching allegation (because she did not want to make the mother unhappy and she wanted to keep seeing her father), the applicant says that this was inconsistent with his instructions and implausible on the evidence that was adduced. The applicant notes that the complainant’s evidence in cross-examination was that the complainant did not want to go to his place anymore because he gave her smacks and raised his voice at her (T 24/5/21; T 57.10-30). The applicant maintains that there was no forensic advantage to the applicant in his counsel conducting his case in a manner contrary to his instructions that the complaint originated from the mother with the motive to obtain sole care of the complainant in the concurrent Family Law proceedings.

88. Thus, it is submitted that defence counsel acted with incompetence (indeed, the applicant submits that in those circumstances it was flagrant incompetence) and the applicant maintains that his right to a fair trial has been thwarted on the basis that his case was not advanced to a standard expected of his legal counsel on the foundation of the applicant’s instructions.

Crown submissions

89. The Crown submits that the affidavit evidence given by Dr Webb and Ms Coorey is inconsistent with the applicant’s contention that the case presented at trial was contrary to his instructions; and that the applicant is bound by the way counsel conducted his trial.

90. In particular, the Crown argues that the applicant was advised against pursuing a defence case that the mother was responsible for the complaints; that Dr Webb was not prepared to present a defence case framed in this way; and that the applicant accepted this advice. It is noted that this advice was given (and accepted by the applicant) prior to the pre-recorded cross-examination of the complainant. Further, the Crown says that the applicant was advised that if, notwithstanding, he wished to pursue a case that the mother was responsible for the complaints, he could brief alternate counsel. The Crown relies on the affidavits as establishing that the applicant accepted Dr Webb’s advice including that a better defence case was to challenge the complainant’s reliability. It is noted that Ms Coorey has deposed that it would have been memorable had the applicant instructed that the truthfulness of the complainant not be challenged, on the basis that Ms Coorey considers that this would in effect have meant accepting the allegation in the indictment.

91. The Crown notes that the conference in or about May 2021 (at which the relevant conversation about not bringing in the Family Court proceedings occurred) postdates the email dated 16 October 2020 from the applicant to Ms Coorey (upon which the applicant relies to indicate that he gave instructions which were not followed). Hence, it is submitted that the applicant received advice by Dr Webb in response to his contention that the mother was responsible for the complaints.

92. The Crown argues that the forensic decision that it was preferable to focus upon the complainant lacking credibility and/or reliability was entirely rational and also that a consideration of the objective features of the trial demonstrates that no miscarriage of justice arose in that the applicant did not lose a fair chance of acquittal. In that regard, the Crown notes the following matters.

93. First, that the applicant in his affidavit states that in the conference with Dr Webb and Ms Coorey before trial the applicant only “thought” the mother was manipulating the complainant to make the allegations. The Crown says that there was negligible evidence to support this thought, beyond an asserted coincidence of timing noted in his email to Ms Coorey of 16 October 2020 (i.e., that the mother made a further Family Law application on 9 June 2020 and the complaints were made in late July 2020). The Crown emphasises that, in that email, the applicant refers to Ms Coorey having asked why he thought the mother would “set up” the allegations (which the Crown suggests indicates that Ms Coorey was at that time exploring whether there was any proper basis to his allegation).

94. Second, that in the pre-recorded cross-examination of the complainant, counsel questioned her on the topic of whether the mother had made suggestions to her. The Crown says that the cross-examination did not elicit evidence that advanced the proposition that the mother was responsible for the complaints, reference being made to the following exchange in cross-examination (as to the JIRT interview at Q/A 247-248 where the complainant said that she thought she was “in kindy that day” because “[m]y mum said to tell you”):

Q.    Is that something that your mum said that you should tell the policeman?

A.    I don’t remember.

Q.    Do you actually remember that event happening?

A.    What event?

Q.    The one that you’ve just talked about there when you were speaking with the policeman? [this is a reference to the bathroom incident where the complainant said she had seen the applicant’s private part]

A.    Yeah, I still remember it...

...

Q.    Did you mum tell you to say that to the police; true or false?

A.    I don’t know...

...

Q.    But your mum did tell you to say that to the police; true?

Her Honour:    Q. Or false?

WEBB       Q. Or false?...

[This question was rejected because the complainant had said she did not know.]

Q.    The policeman said, “And why do you remember that?” And you said, “My mum said to tell you.” Do you remember saying that to the policeman?

A.    Yes.

Q.    That’s because your mum told you to say that to the policeman, isn’t it?

HER HONOUR:   I reject that question. The “Isn’t it?” The tag.

WEBB Q.    Did you say that to the policeman because your mum told you to say that; true or false?

I don’t know.

… (After a break I the interview)

Q.    Did you tell the policeman about that event of brushing your teeth in the bathroom because your mum asked you to say that; was that why you said that?

A.   I don’t know.

95. Third, that the mother gave cogent evidence of circumstances in which the complainant first disclosed an incident to her, saying that that she and the complainant were playing a tickling game and that the complainant accidentally touched the mother’s breast; and that when the mother reminded the complainant not to touch her “private part”, the complainant “suddenly said “‘Pappay [the applicant] did touch my private part” (which the mother said was using a word that meant the complainant’s vagina). The mother gave evidence of having questioned the complainant about her disclosure, including that after she asked the complainant how many times the touching had occurred, the complainant said, “around 30 to 100” and the mother said:

I ask her “why don’t you tell mummy, or even teacher, because... (not transcribable)...why don’t you tell your teacher, why don’t you tell the mummy?’’ And she starts crying and said, “I’m scared of Pappay, he yelled at me, I get scared that he will yell at me”. And she started crying.

96. The Crown notes that the mother’s first language is not English and says that it is apparent in context that the questions phrased “why don’t” meant “why didn’t”, and were not an invitation seeking to elicit further disclosures. It is noted that the mother went on to give evidence that she would tell the complainant every now and then, to educate her, that if anybody did bad things to her or touched her, she needed to tell a teacher or her mother, and that she did a “pinkie promise” that if anything happened, she would tell her teachers and her mother. It is noted that in the reasons for verdict, the trial judge recounted evidence of the complaint, observing it to have been spontaneous, and said that in telling her mother and the teacher, the complainant did what her mother had previously taught her to do.

97. Fourth, the Crown argues that, whether it was contended at trial that the mother told the complainant to make allegations or it was contended that the complainant’s evidence was simply not credible or was unreliable, both cases depended upon the trial judge finding that the complainant’s evidence should not be accepted beyond reasonable doubt. It is accepted that defence counsel challenged the complainant’s evidence but the Crown says that the trial judge’s assessment of the complainant did not equivocate in finding the complainant to be credible and reliable on the essential matters. Her Honour found that:

The complainant was aged five or six at the time of the alleged offence, six when she participated in her JIRT interview (MFI 1) and seven when she participated in the pre-recorded evidence hearing (MFI 2). She struck me as being an articulate, responsive, balanced and intelligent witness. Much of her evidence regarding events in her life was accurately recalled. Save for when she appeared to be getting tired and/or losing concentration, she thought about what she was being asked and appeared to be making genuine efforts to give precise answers and to avoid guessing. At times she corrected the questioner if she thought she had been misunderstood. At times she corrected herself if she realised she had made a mistake. She was not a witness eager to embellish her account or add information that might paint the accused in a bad light. For example, she denied that the accused rubbed her private part stating he just put his hand there and touched her private part; she did not attribute words to the accused such as threats or manipulation; she said she liked going to his home; she accepted she did not say anything to the accused when he touched her on the private part while acknowledging she knew that no one was allowed to touch her on her private part; and she accepted that the accused did nothing to her when he came into the bathroom and used the toilet when she was in kindergarten telling police that she did not think it was important to even provide that information to police.

98. It is noted that her Honour found that “the circumstances in which the complaint was made provides some support for the truthfulness of the complainant’s evidence and I do not accept the submission advanced on the accused’s behalf that it undermines the complainant’s reliability in some way”.

99. Finally, it is noted that defence counsel did submit that the complainant had tailored her evidence (which submission the trial judge rejected), noting that counsel submitted that the complainant had tailored her evidence to protect her mother (as the applicant had a new partner), which the trial judge found to be “most unlikely’, and due to a concern about how the mother would react if she found out the applicant was not bathing the complainant in accordance with her wishes (which her Honour rejected, finding that if that was a genuine concern, and given the complainant liked going to the applicant’s home, she would have withheld and not volunteered such information).

100. The Crown says that the fact that the applicant made no complaint about the approach taken by his counsel either during the trial or after it had concluded is significant, noting Dr Webb’s evidence that at the close of the Crown case the applicant responded that he was happy with the conduct of the case and noting that in an email to Ms Coorey on 21 September 2021, the applicant made an apparently unsolicited comment that he was happy with the way Dr Webb represented him in court.

101. The Crown also argues that the “corroborative evidence” relied upon by the applicant does not call into question the reasonableness of counsel’s advice and conduct of the trial; nor does it call into question the Crown’s position that no miscarriage of justice arose.

102. First, as to the applicant’s reliance on the complainant having said “[m]y mum said to tell you”, in response to a question in the JIRT interview as to why she remembered the bathroom incident, the Crown notes that the interviewer then asked the complainant “[b]ut do you remember seeing that happen?”, to which the complainant said “yeah”, and that she also told her teacher. The Crown says that the complainant’s answer demonstrated an independent memory. And as to the mother’s evidence of asking the complainant questions after the complainant disclosed being touched by the applicant, the Crown points to the following exchange:

Q.    Can you remember what you asked her?

A.    Yeah. So, I ask her “Did you put his hand, like, inside or just like outside” and she said, “Not inside”, and she said “outside, but inside the underwear”. And I ask her further questions, “did you touch Pappay’s private part?” And she said “no, but I have seen his private part”. And I ask her when, she said one time she was preparing to go to school..(not transcribable)..bathroom and said, “Pappay..(not transcribable)..and then use the toilet”, and she could see his private part and she says she wants to get out, but she couldn’t open the door. So, she just looked away and keep brushing the teeth.

103. Second, the Crown says that the fact that the mother told the complainant to tell police officers what the complainant had told her does not lead inexorably to a conclusion of false allegations. The Crown argues that the more readily available conclusion in the context of all the evidence was that the mother quite properly encouraged the complainant to tell police officers what the complainant had disclosed, uncontaminated by anything the mother had said.

104. Third, the Crown argues that, given the complainant’s age at the time of the disclosures, and the passage of time before her pre-recorded cross-examination, it is unremarkable that she could not recall whether her mother had told her to tell the police her complaints, noting that the complainant was six and a half years old at the time of the JIRT interview on 31 July 2020 (only very shortly after the complainant made disclosures to the mother) and that the pre-recorded cross-examination was approximately ten months later.

105. Fourth, as to the “pinkie promise” between the mother and the complainant, the Crown argues that, on a proper reading of the mother’s evidence, the promise was not to report the complaint made in July 2020 to teachers after the mother became aware of the allegation; rather, it was a promise made in a context of the mother generally educating the complainant (before the disclosures were made in July 2020) to report inappropriate touching. In this regard, the Crown refers to the following evidence given by the mother:

Q.    Sorry to interrupt, I just want to ask before you go on with anything about what you did the next day. Did you tell [the complainant] to tell her teacher something? Don’t tell me what you told her to say, but did you tell [the complainant] that following morning when she went to school to tell something to her teacher?

A.    Not that day, but I used to tell [the complainant] every now and then, like, you know, teaching her private part, if anybody does the bad thing or touching and anything, so I used to educate her, I used to teach her every now and then reminding her if anything happens, you need to tell a teacher, or you need to tell mummy, you need to tell - you know. So not that time, but I used to tell her before, like, all the time, if - like, educating her about the private part, educating, and you have to tell the teacher. And did do the pinkie promise to me that if anything happens, you will tell the teachers, you will tell mummy. So not that day, but the other times, I have told her multiple times to tell the teacher, yes. [Emphasis as per the Crown’s submissions]

106. Fifth, the Crown says that there is nothing untoward about the mother having called her lawyer before calling the police and that this was understandable in the mother’s state of shock and distress about what the complainant had told her. It is said that the mother did not seek to conceal this in her evidence, which might be expected if she had concocted allegations, but had candidly volunteered this fact. The mother called the police soon after she spoke with her lawyer; and went to Liverpool Police Station the next day.

107. The Crown contends that, having regard to the whole of the evidence and the lack of evidentiary foundation for alleging that the mother had incited the complainant to make false allegations, the approach taken by counsel in respect of the matters referred to above also reflected r 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, which governs the circumstances in which serious allegations of impropriety may be made.

108. Thus, the Crown submits that, on the basis of Dr Webb’s and Ms Coorey’s evidence and the objective features of the applicant’s trial, the applicant has not established that the conduct of his trial by his legal representatives involved some failing or irregularity, nor that the conduct of his trial resulted in or contributed to a miscarriage of justice.

Determination

109. The principles applicable when considering a ground of appeal based on incompetence of Counsel were not in dispute (see R vBirks (1990) 19 NSWLR 677). In AK v R [2022] NSWCCA 175, Beech-Jones CJ at CL referred to TKWJ, Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1, and Nudd, summarising the principles (at [7]) as follows:

7.   Generally, in considering whether some failing of an accused’s legal representative caused or contributed to a miscarriage of justice, inquiries into the subjective thought processes of the legal representatives are avoided. Instead, the question is whether there could be a reasonable explanation for the course that was adopted at trial... If there could be such an explanation, then no error or defect in the trial occasioning any miscarriage of justice will have occurred.

110. See also Tsiakas v R [2015] NSWCCA 187, where Beech-Jones J, as his Honour then was, with whom Leeming JA and Johnson J agreed, noted (at [42]) that “what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial” and that it was not sufficient to warrant intervention simply to point to some failing (even a gross failing), of the legal representative – rather, that in conviction appeals, where incompetence to the relevant standard is demonstrated, “the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial” (see at [44], citing Nudd at [24]). Reference may also be made in this context to what was said by this Court in Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429 (Bathurst CJ, Bell P (as his Honour then was) and Johnson J) at [154]; Davis v R [2017] NSWCCA 257, Price J (Hoeben CJ at CL and Schmidt J agreeing) at [59]; and Alkhair, Macfarlan JA (Rothman and Bellew JJ agreeing) at [31]).

111. As to the discretion of Counsel in the conduct of the trial, in Monteiro v R [2011] NSWCCA 113 Simpson J (Hoeben and Price JJ agreeing) pointed out at [155] that, as a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client; and that it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence (absent something occurring, such as flagrant incompetence, which is recognised as involving, or causing, a miscarriage of justice). See also Hunt CJ at CL’s similar observations in Ignjatic v R (1993) 68 A Crim R 333 at 336, his Honour there recognising the wide discretion of Counsel as to the manner in which proceedings are conducted; and stating that it is not sufficient that the appellant may have merely lost a chance to raise various issues which were not raised at the trial and that “[t]here was no miscarriage of justice unless it can be shown that there was at least a substantial chance that the appellant would have succeeded in relation to those issues”.

112. In my opinion ground 1 is not made good. The applicant quite fairly accepted when cross-examined that he was advised that the Family Court proceedings should not be ‘brought into’ his defence in the criminal trial and that he accepted defence counsel’s advice to that effect and trusted defence counsel to act in his best interests. In the context of the instructions given by him in the conference prior to the pre-recorded evidence taken from the complainant, it is clear that the reference to bringing the Family Court proceedings into the trial could only have been to the contention of the applicant that the mother had procured the complainant to make false allegations against him (in order to obtain sole custody of the complainant). The suggestion in submissions that this was guidance by his counsel not to bring in “a voluminous amount of information from the concurrent Family Law Court proceedings” is not reflected by anything in the evidence – rather, the evidence before this Court is that what the applicant wanted to “bring in” from or about the Family Law Court proceedings was his belief that the false allegations were being brought at the mother’s instigation in order for the mother to obtain sole custody of the complainant. It is not clear on the evidence before this Court whether there had been any such allegations made in the Family Court proceedings (and indeed it might be inferred that there had not been any such allegations at that stage since had there been there would presumably have been a police investigation at an earlier stage). Therefore, there is no basis for concluding that what Dr Webb was advising (and the applicant was accepting) was simply that a voluminous amount of material from those proceedings would not be adduced (but that the alternative case theory which was linked to those proceedings would be pressed). In those circumstances, it cannot be said that defence counsel acted contrary to the applicant’s instructions in not putting forward such a case theory in his conduct of the defence.

113. However, as noted earlier, the complaint raised in oral submissions was more nuanced – in that the focus of the applicant’s complaint, as I understand it, is now a complaint that his defence counsel did not cross-examine the mother to suggest that she was the source of the allegations made against him and, further, accepted in closing submissions that the mother presented as an honest witness. The complaint about the former (the lack of cross-examination on this issue) seems to me squarely to fall within the ambit of the issue that Dr Webb made clear he would not introduce into the defence (i.e., allegations in or relating to the Family Court proceedings). As to the latter (the complaint that the mother was accepted to be an honest witness), the only aspect of the mother’s evidence that the applicant relevantly contends was dishonest is that which relates to the making of the allegations against him by the complainant (and hence it forms part of the Family Court issues that Dr Webb had refused to bring into the defence case). While it may be accepted that the applicant’s instructions were inconsistent with the mother’s honesty or integrity, the applicant appears to have accepted that Dr Webb might have said that he proposed to challenge the reliability of the complainant (i.e., not the mother) and the applicant clearly left it in Dr Webb’s hands to make forensic decisions as to the conduct of the case.

114. To the extent that the applicant seems to have had a complaint as to the acceptance by defence counsel, in the course of closing submissions, that the complainant was dishonest, the applicant in oral submissions appears to have accepted that this is inherent in the case theory that the applicant wished to propound, insofar as it involves the notion that the accusations were false. This, as I understand it, is the basis on which Ms Coorey’s position as expressed in her affidavit evidence to the effect that a submission that the complainant was honest would involve an acknowledgement of guilt (since her evidence was that she would then have sought instructions as to a guilty plea). That, however, does not necessarily follow. The complainant might, for example, have honestly but mistakenly believed the allegations to be true if the real position was that the complainant had been in some way misled into that belief but the difficulty is that there is nothing in the evidence to suggest a foundation for some case theory that the mother had engaged in some coaching of the complainant in order to create a false belief on the latter’s part. Rather, the case theory of the applicant appears to involve the notion that the complainant dishonestly made the allegations, albeit at the instigation of the mother.

115. The question as to whether the course adopted by the applicant’s legal representatives was incompetent requires consideration, as explained above, both as to whether there was a rational explanation for what was done and as to whether the course that was followed deprived the applicant of a real possibility of acquittal (so as to amount to a miscarriage of justice).

116. In my opinion there was a rational explanation for the course that was followed. There was nothing (other than speculation based on the temporal coincidence of the application apparently made by the mother by a motion filed in June 2020 in the Family Court proceedings, following the parenting orders that had been made in May 2020, and the reporting in July 2020 of the allegations) to provide any foundation for the applicant’s contention that the mother was the source of the false allegations. Indeed, one might have thought that if the mother had been motivated to procure the making of false allegations in order to obtain sole custody she would have done so at a much earlier step in the Family Court proceedings (in circumstances where the custody or access issues appear to have been contentious for some time). The evidence of the complainant that the mother had told her to tell her teacher or teachers of the conduct goes nowhere in circumstances where the mother’s evidence (by no means implausible on its face) was that this was a general instruction that had been given by her as part of the mother’s education of the complainant as to respect for her personal privacy. Nor does the fact that the mother contacted her lawyer before contacting the police provide a foundation for the alternative case theory. It is hardly surprising that a person who has already retained lawyers in ongoing proceedings would seek advice from those lawyers as to what had been disclosed. Moreover, it seems clear that there was a concern on the part of the defence counsel not to raise matters that might introduce evidence of other complaints of this nature (having regard to the advice by Dr Webb not to call the aunt as a witness as this might be more evidence of complaint).

117. As to the submission that there was no legitimate forensic advantage in not raising the alternative case theory (because there was no inconsistency with the case that was run since both were predicated on the complainant’s evidence being dishonest or false), apart from the difficulty that this Court does not know what might have emerged had the interstices of the Family Court proceedings being opened for examination in the context of the criminal trial, at most this might demonstrate a poor forensic decision on the part of the defence counsel. I cannot see, having regard to the evidence before this Court, that the failure to conduct the case on that basis amounts to flagrant incompetence; nor, as indicated above, can it be said to be a failure to follow instructions (even leaving aside the difficulty that Dr Webb would have had in that he would have been ethically precluded from raising allegations of serious impropriety without a proper foundation for those allegations) in circumstances where Dr Webb made clear that he would not bring the Family Court proceedings into the criminal trial and the applicant in cross-examination on the appeal accepted that he understood that past allegations or conduct of the Family Court proceedings would not be part of his defence.

118. Nor do I consider that, by reason of this issue not being raised, the applicant can be said to have lost a real chance of acquittal. The trial judge is an experienced judge well capable of assessing the credibility of witnesses and her Honour made clear that she had carefully assessed the whole of the evidence in reaching her conclusion as to the offending by the applicant. Her Honour found the complainant to be a credible witness notwithstanding some inconsistencies in her evidence and her difficulty in recalling various things about which she was cross-examined. Her Honour was also in a much better position to assess the credibility of the mother and of the applicant than is this Court. Having regard to her Honour’s findings as to the evidence given by the complainant, it is difficult to see how the raising of the alternative case theory would have provided a real possibility of acquittal for the applicant.

119. Thus, the conviction appeal should be dismissed.

Sentence Appeal

120. The grounds of appeal in relation to the sentence appeal, as adverted to above, are as follows:

Ground 2: The learned sentencing Judge erred in taking into account matters that was not material properly before her Honour.

Ground 3: The learned sentencing Judge erred in making findings of fact adverse to the applicant which were not available on the evidence.

Applicant’s submissions

121. It is submitted that there was error in the House v The King (1936) 55 CLR 499 (House v The King) sense by the sentencing judge taking into account other purported acts of sexual touching that were not in evidence as part of the sentencing proceedings. The applicant refers in this context to Gardiner v R [2023] NSWCCA 89, where Adamson JA, with whom Button and McNaughton JJ agreed, noted at [97] that in a judge alone trial the trial judge’s findings in the reasons for verdict form the basis for the reasons for sentence (together with any further evidence adduced on sentence).

122. The applicant accepts that evidence pertaining to other allegations of sexual touching was adduced without objection during the trial, including the following from the police interview of the complainant:

Q 118:   All right. So how many times has he touched your private part?

A:    I haven’t counted because then I’ll, because I haven’t counted but it has not been only one time, it’s been like more than one, it’s been more than multiple. It’s been like a lot maybe.

…

Q 243:    No. So how many times has he done it?

A:   I don’t know.

…

Q 270:    Yep. O.k. And he had a habit of doing this but you can’t tell me how many times —

A:    Because there’d been like a lot of times —

123. However, the applicant refers to the fact that, after the close of both party’s cases during the trial, his defence counsel raised a potential s 137 objection to evidence of other uncharged instances of purported sexual touching (see as outlined in the background section of these reasons) and notes that the trial judge determined that she would not have regard to that evidence (T 17/9/21; T 141) i.e., in the determination of the applicant’s guilt on the single count with which he was charged.

124. As to the evidence on sentencing, it is noted that there was a Sentence Assessment Report, Crown Bundle (Ex 1 on sentence), Crown submissions (Ex 2 on sentence), report of Mr Watson-Munro (Ex 3 on sentence), references and information in relation to the offender’s studies (Ex 4 on sentence), and a defence outline of submissions on sentence (Ex 5 on sentence); and that the Crown had submitted that the facts in this case were those found by the trial judge in the decision of 23 September 2021. The applicant emphasises that those findings of fact did not include any finding as to any other purported acts of sexual touching.

125. The applicant’s complaint is that the sentencing judge found beyond reasonable doubt that the offence for which he had been convicted was not an isolated offence (T 26/11/21; T 2), on the basis of the complainant’s statements in her recorded interview (MFI 1, played to the court) with police that: “He’s done it like, a lot of times’’; “It’s been like, more than one, it’s been more than multiple, it’s been like, a lot maybe, but he did do it a lot”.

126. The applicant points out that her Honour used the evidence of other uncharged acts as depriving him from any claim to mitigation and attendant reduction of an appropriate sentence (i.e., on the basis that the one offence could not be said to be isolated or out of the blue) (see T 26/11/21; T 3). The applicant submits that this consideration of extraneous material vitiated the sentencing process and constituted a House v The King type error.

127. Further (and leaving aside the complaint that the evidence of “previously excluded” uncharged acts was taken into account on sentence), the applicant submits that the “vaguery” of the evidence concerning other incidences of sexual touching could not constitute a finding of these other uncharged acts of sexual touching beyond a reasonable doubt. (A similar submission as to the inability to make such a finding beyond reasonable doubt on the evidence as outlined in the Crown submissions was made by the applicant in oral submissions at T 5/5/23; T 31.1.)

Crown submissions

128. The Crown (as did the applicant) has addressed together grounds 2 and 3, both of which it notes concern evidence of occasions additional to the count in the indictment upon which, on the complainant’s evidence, the applicant committed acts of sexually touching the complainant.

129. The Crown notes that evidence adduced at trial disclosed that the count on the indictment was not an isolated incident, noting that in the JIRT interview the complainant said the following:

Q103   O.K. So tell me about [the applicant]?

A    [the applicant]?...

Q105...

A.    So the thing that I don’t like about, urn. [the applicant]l is that he screams at me, he smacks me and he touches my private parts all day. So when we wake up he touches my private part.

Q106 A   All right. Well, let’s talk about [the applicant], your dad —

A    Yeah.

Q107   — and him touching your private part. So when you say - -

A    That’s why my mum got me here.

Q108    That’s why she got you here? Yeah.

A    I think, I don’t know.

Q109    Do you remember your dad touching your private part?

A    Yes, he’s done it like a lot of times.

130. The Crown notes that there was no dispute that the complainant’s reference to “private part” meant her vagina. Further questions and answers were:

Q116    Yep. So when did this happen?

A    That was, when I wake up at the morning when I’m with [the applicant] he just puts his hand in the private part.

Q117    So is it, you said in the morning, is it only in the morning he touches you?

A    Only in the morning when we wake up, when we’re still in bed, when I wake up my dad’s still asleep he just puts his hand on my private part for no reason.

Q118    All right. So how many times has he touched your private part?

A.    I haven’t counted because then I’ll, because I haven’t counted but it has not been only one time, it’s been like more than one, it’s been more than multiple. It’s been like a lot maybe.

Q119    Can you count them on your fingers?

A.    I don’t remember.

Q120    You don’t remember?

A.    But he did do it a lot.

Q121    Did he?

A    Yeah.

Q122    So it is, urn - -

A.    Maybe thirty or twenty, I don’t know.

Q123    Maybe three or twenty, you’re not sure.

A.    Maybe thirty or twenty, I don’t know.

131. It is noted that later in the interview, after describing the occasion which informed the count on the indictment, the interviewer asked about any other time when the applicant touched the complainant’s “private part” and the complainant said it happened a lot of times but that he had stopped doing it, and that “[h]e had like a habit to doing that but now he just stopped. He didn’t, urn, just he didn’t feel like doing it anymore”.

132. The Crown notes that at the trial defence counsel cross-examined the complainant upon the evidence of other instances of sexual touching having occurred, including defence counsel asking the complainant why she said in the JIRT interview she did not know how many times the applicant had “done it” and the complainant said it was “[because I didn’t know]”.

133. The Crown submits that it was clearly open to the trial judge, in the exercise of her Honour’s sentencing discretion, to consider evidence admitted at trial (ground 2); noting that the sentencing proceeding does not constitute a separate substantive proceeding from the trial.

134. The Crown points out that the defence objection to the complainant’s evidence of other occasions (see as outlined earlier) included that the complainant could not say how many other times sexual touching had occurred and also that the evidence of other occasions was not admissible as context evidence. The Crown points out that the trial judge explained that a permissible use of the evidence could be to address any confusion of the complainant about specifics of what occurred and says that, although it was admitted without objection, her Honour’s reference to it not being any “fatal blow” meant that it was not of significance to determination of the issues in dispute at trial. It is noted that the Crown relied on the evidence to answer any question of why the applicant would only sexually touch the complainant once and then stop “out of the blue”.

135. The Crown points to the fact that when (on 17 September 2021) the trial judge said in effect that, although the evidence may address why the complainant was a little confused about the occasion on the indictment, she had determined she would not have regard to the evidence, defence counsel did not subsequently press for exclusion of the evidence. The Crown says that her Honour did not rule that the evidence was not admissible or that it was excluded from the body of evidence of the trial.

136. It is submitted that in the sentence hearing, both parties and the court proceeded upon a basis that the evidence was part of the body of evidence at trial, noting that when her Honour commented that the act which constituted the offence was not isolated and that the complainant said it happened a lot, defence counsel made submissions on the effect of the evidence of other occasions and what may be concluded from it (which the Crown says was an implicit acknowledgement that the evidence was before the court in relation to sentence having been admitted in the trial). The Crown submits that the evidence of other occasions was admitted at trial and that this is consistent with defence counsel’s position in relation to the evidence in the sentence hearing.

137. The Crown thus contends that the applicant’s submissions to the effect that the evidence was “excluded” and that it was “extraneous material” are thus not consistent with what actually occurred in relation to the evidence in the trial, the understanding of each of the parties and the court in the sentence proceedings (and says there is an implicit acknowledgement of this in the applicant’s written submissions at [24] (which extracted evidence pertaining to other allegations of sexual touching which the applicant accepts were adduced without objection during the trial)). Hence, it is contended that the evidence was before the sentencing judge and was able to be taken into account on sentence.

138. As to the submission by the Crown on sentencing to the effect that the facts for sentencing were those found by her Honour at trial, the Crown here says that this was implicitly referring to the facts of the offence on the indictment and did not purport to limit her Honour from finding additional facts as may have been relevant to the sentencing exercise. It is accepted by the Crown that, in the verdict judgment, the trial judge made no finding either way on the question whether other sexual acts perpetrated upon the complainant by the applicant were established beyond reasonable doubt but says that it remained open for her Honour to consider in the exercise of the sentencing discretion whether her Honour was satisfied beyond reasonable doubt that those acts had occurred.

139. The Crown refers to authorities in support of the proposition that uncharged conduct of a similar nature to that for which an offender stands to be sentenced may be taken into account to demonstrate that the offender is not entitled to the leniency which he or she might otherwise have been afforded if the offence was an isolated incident (referring to the review of authorities in LN v R [2020] NSWCCA 131 at [113]ff per Hamill J, whom I note was there in dissent as to the determination of the first ground but not as to the applicable principles).

140. As to whether it was open to the sentencing judge to be satisfied beyond reasonable doubt that the offence on the indictment was not an isolated occurrence, the Crown notes that the trial judge found the complainant to be an honest and reliable witness and that the trial judge was satisfied that non-essential matters upon which the complainant was mistaken and/or inaccurate did not affect the reliability of the complainant’s evidence. It is noted that, in finding the complainant’s evidence of the offence to be established, the trial judge referred to having carefully considered all the matters raised by defence counsel as to why her Honour would entertain a reasonable doubt. The Crown says that, her Honour having assessed the credibility and reliability of the complainant at trial, it was unnecessary for her Honour to repeat that analysis in the sentencing judgment; nor was it necessary for her Honour to repeat factual findings.

141. It is also noted that, in the reasons for sentence, her Honour expressly referred to having considered the evidence given by the complainant in the JIRT interview of multiple occasions of sexual touching, and quoted the complainant’s evidence, inter alia, that the applicant had “done it like, a lot of times”.

142. The Crown submits that, in light of the evidence and the trial judge’s assessment of the credibility and reliability of the complainant, it was well open to her Honour to find that the offence on the indictment was not an isolated offence (ground 3). The Crown points out that, consistently with sentencing principles, her Honour made clear that this did not aggravate the offence but, rather, deprived the applicant of any claim to mitigation.

143. Finally, in relation to ground 3, the Crown emphasises that in the sentence hearing defence counsel implicitly acknowledged that the evidence of other occasions of sexual touching was part of the body of evidence before the sentencing court. The Crown submits that, for the reasons observed by Johnson J (with whom McClellan CJ at CL and Rothman J agreed) in Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460 at [81]-[82], this Court should not lightly entertain the applicant’s arguments in relation to ground 3.

Determination

144. It is accepted that appellate intervention in the sentence would be justified only if error in the House v The King sense (see at [505]) is established in the exercise of the sentencing discretion. The applicable principles in relation to the exercise of fact-finding by a sentencing judge were considered in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) at [14] per Gleeson CJ, Gummow and Hayne JJ, citing R v Isaacs (1997) 41 NSWLR 374 at 377-378. Relevantly, it was there said that the primary constraint upon the power and duty of decision-making in that context is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury; a second constraint being that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. Any reasonable doubt must be resolved in favour of the accused. See also R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ; and more recently Fuller v R [2022] NSWCCA 203 at [9]-[13] per Adamson J, as her Honour then was, and at [105] per N Adams J).

145. Where there are competing versions of events which were not essential for the determination of guilt (such as where there are competing versions as to motive as was the case in Cheung), the sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending (see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) at [70]). Moreover, the plurality in the High Court (French CJ, Bell, Keane and Nettle JJ, with whom Gageler J agreed) said in Filippou, at [68], that in the case of a trial before a judge alone:

... the judge is the jury and knows the basis on which he or she has found the accused to be guilty. In such circumstances, even if the judge is not satisfied beyond reasonable doubt of the version of events which is unfavourable to the accused, the judge well knows whether the favourable version of events is or is not established on the balance of probabilities. If it is not, the judge is entitled to sentence accordingly.

146. The Crown has referred to R vCarbone [2022] NSWSC 373 where, in sentence proceedings following a judge alone trial, Garling J stated that the judge in sentencing is not constrained by the earlier findings of fact in the trial, provided that any finding of fact on sentence is consistent with the verdict and reasons given for that verdict (see at [17]); nor is the judge precluded from being satisfied of a fact beyond reasonable doubt in the sentencing exercise, if he or she had not in the trial already found that he or she could not be satisfied of that fact beyond reasonable doubt. Garling J there observed that findings at trial are made in a different context and for a different purpose than on sentencing (at [17]-[18]).

147. In the present case, the evidence that this was not an isolated instance (vague in its detail as it may be accepted it was) was clearly before the trial judge when her Honour came to sentence the applicant. It had been admitted without objection and I do not accept that her Honour subsequently rejected its admission (even if only implicitly) pursuant to s 137 of the Evidence Act. The trial judge had certainly been invited to do so but ultimately no such ruling was made, her Honour simply indicating what she considered to be its limited relevance (i.e. as evidence that would provide an answer to any question as to why such conduct would take place once and no more). Her Honour made clear that she was not taking the evidence into account as going to tendency or context. Nevertheless, the evidence (that had been admitted without objection) formed part of the overall body of evidence at trial and the fact that it was not part of the evidence on which her Honour was satisfied beyond reasonable doubt of the applicant’s guilt on the offence charged does not mean that her Honour could not properly take it into account on sentencing (it not being inconsistent with the verdict that had been reached).

148. Her Honour therefore did not err as contended by grounds 2 and 3. Further, her Honour was properly cognisant of the need for any finding of fact relevant to sentencing to be proved beyond reasonable doubt and reached the conclusion (open to her on the evidence) that she was satisfied beyond reasonable doubt that this was not an isolated incident. That finding is not the subject of challenge per se, although it is the subject of complaint in the written and oral submissions for the applicant and was responded to by the Crown, as outlined above. In my opinion no error has been shown in relation to the making of that finding. The finding was of a level of generality (i.e., her Honour was satisfied beyond reasonable doubt simply that there had been other instances of such conduct but not as to the specific instances) but was open on the evidence (and had been tested in cross-examination of the complainant). Moreover, reliance was placed on this finding only to the extent that it meant that the applicant could not rely on the submission that there was only a single instance of offending.

149. Accordingly, grounds 2 and 3 are not made good and the sentence appeal is also dismissed. It is thus not necessary to engage in the exercise of re-sentencing. Had that arisen, I would have concluded that no lesser sentence was warranted (even on the hypothesis that the applicant was not precluded from relying in mitigation upon the offence being an isolated event). That is because this offence (an offence contrary to s 66DA(a) of the Crimes Act 1900 (NSW)) is a serious child sexual offence with a maximum penalty of 16 years’ imprisonment and a prescribed standard non-parole period of 8 years and the objective circumstances of the offending included the very young age of the complainant at the time, her vulnerability, and the fact that the offence occurred in her father’s home and by her own father.

Conclusion

150. For the above reasons, I would grant the applicant leave to appeal but dismiss both the conviction and sentence appeals.

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Amendments

09 June 2023 - Amendment in quotation at [105]

Decision last updated: 09 June 2023