RM v The King

[2024] NSWCCA 148

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

RM v R [2024] NSWCCA 148

Hearing dates:

17 July 2024

Decision date:

07 August 2024

Before:

Adamson JA at [1];
Dhanji J at [278];
Sweeney J at [295]

Decision:

(1)   Grant leave to appeal and allow the appeal against the conviction in respect of count 5.

(2) Set aside the conviction in respect of count 5 and, instead, convict the applicant of the statutory alternative to count 5 namely an offence contrary to s 66C(4) of the Crimes Act 1900 (NSW) of unlawful sexual intercourse with a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely that the complainant was under the applicant’s authority.

(3)   Otherwise dismiss the appeal.

(4)   Remit the matter to the District Court arraignment list at 9.30am on 16 August 2024 for the applicant to be sentenced in accordance with law.

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — 11 counts of sexual offending by applicant against biological daughter — whether verdicts unable to be supported by the evidence — whether complainant lacked credibility — where complainant did not make contemporaneous complaint — whether complainant had motive to lie — where there were minor inconsistencies in complainant’s evidence as to tangential details — whether complainant’s version implausible

CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of offence under s 66C(2) of the Crimes Act 1900 (NSW) — where s 66C(2) requires proof that complainant was under 14 years of age at time of offending — where there was reasonable doubt as to complainant’s age — where alternative charge under s 66C(4) was left to jury — whether Court of Criminal Appeal could find the applicant guilty of the alternative count

Legislation Cited:

Crimes Act 1900 (NSW), ss 61H, 61J, 61KC, 61KE, 61M, 66A, 66B, 66C, 78H, 78J, 78K, 80AB, 80AF

Criminal Appeal Act 1912 (NSW), ss 5, 7, 12

Cases Cited:

Decision Restricted [2024] NSWCCA 81

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51

Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24

Kilby v The Queen (1973) 129 CLR 460; [1973] HCA 30

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

Maughan v R [2020] NSWCCA 51

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

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

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Bruce [1988] VR 579

R v JGW [1999] NSWCCA 116

R v Johnston (1998) 45 NSWLR 362

R v Marijacevic (2001) 3 VR 611; [2001] VSCA 188

Reed v R [2006] NSWCCA 314

Sivaraja v R; Sivathas v R [2017] NSWCCA 236

Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31

The Queen v A2; Magennis, Vaziri (2019) 269 CLR 507; [2019] HCA 35

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Xerri v R (2021) 292 A Crim R 355; [2021] NSWCCA 268

Z (a pseudonym) v R [2022] NSWCCA 8

Category:

Principal judgment

Parties:

RM (Applicant)
Rex (Respondent)

Representation:

Counsel:
K Hogan (Applicant)
E Jones (Respondent)

Solicitors:
A J & Associates Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/213495

Publication restriction:

Publication of names and any information or material that may lead to the identification of the applicant or the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

27 March 2023

Before:

Abadee DCJ

File Number(s):

2020/213495

HEADNOTE

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

On 27 March 2023, following a trial by jury over which Abadee DCJ (the trial judge) presided, RM (the applicant) was convicted of 11 counts of sexual offending against his biological daughter (the complainant). The offending occurred over nine years, from when the complainant was aged 9 to 18, and included indecent assault, unlawful sexual intercourse, aggravated sexual intercourse, and unlawful sexual touching. The applicant was sentenced to an aggregate term of imprisonment of 12 years, commencing on 3 January 2023, with a non-parole period of 8 years and 5 months.

The applicant sought leave to appeal against each of the convictions on the sole ground that the verdicts were unreasonable and unsupported by the evidence.

The applicant’s case was that the offending conduct had not occurred. He challenged the complainant’s credibility generally and relied on her lack of contemporaneous complaint, lack of recollection and inconsistency about details tangential to the offending conduct, and alleged motive to lie as undermining the reliability of her version. The applicant also pointed to aspects of his own and the complainant’s conduct which were alleged to make his commission of the offences implausible.

In respect of count 5 (a charge under s 66C(2) of the Crimes Act 1900 (NSW) of aggravated sexual intercourse when the complainant was “above the age of 10 years and under the age of 14 years”), the applicant submitted that the complainant’s evidence that she was “13 or 14” when the offending occurred created a reasonable doubt about whether she was under the age of 14 such that the applicant’s conviction on this count ought be set aside.

The parties made submissions in this Court as to the consequences of such a finding, given that the trial judge had ruled that the statutory alternative offence, s 66C(4), which is identical as to conduct to s 66C(2) but applies where the victim is above the age of 14 and under the age of 16, could be left to the jury. The Crown submitted that the applicant ought be found guilty of the alternative count, whereas the respondent submitted that this Court could not be satisfied that the jurors would have been unanimous in finding the applicant guilty under s 66C(4).

The Court held (Adamson JA, Dhanji and Sweeney JJ agreeing, with additional reasons of Dhanji J), granting leave to appeal, allowing the appeal against conviction in respect of count 5 but otherwise dismissing the appeal:

Issue 1: whether the verdicts were unreasonable

1. Save as to the conviction of count 5, having reviewed all of the evidence in the trial, it was open to the jury to be satisfied of the guilt of the applicant on all counts: at [253] (Adamson JA); [278] (Dhanji J); [297] (Sweeney J).

   M v The Queen (1994) 181 CLR 487; [1994] HCA 30, applied.

Issue 2: whether the verdict of guilty of count 5 was unreasonable

1. The evidence was insufficient to exclude the possibility that the offence was committed after the complainant turned 14 and it is necessary to quash the conviction on that count: at [254], [256] (Adamson JA); [280] (Dhanji J); [297] (Sweeney J).

Issue 3: effect of quashing the conviction of count 5

Per Adamson JA (Sweeney J agreeing):

1. It is consistent with the authorities (Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24 (Gilson) and R v JGW [1999] NSWCCA 116 (JGW)) to set aside the verdict in respect of count 5 and substitute a verdict in respect of the statutory alternative, an offence contrary to s 66C(4) of the Crimes Act. This approach is authorised by s 80AB(9) of the Crimes Act: at [273] (Adamson JA).

Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24; R v JGW [1999] NSWCCA 116, applied.

1. Applying JGW, as it is only the complainant’s age (whether she was under the age of 14 or not) that constitutes the division between an offence under s 66C(2) and s 66C(4) and the alternative offence under s 66C(4) is the lesser offence of the two, it is permissible for this Court to convict the applicant of the alternative count: at [272]-[273] (Adamson JA).

2. The matter ought be remitted to the District Court for sentencing under s 12(2) of the Criminal Appeal Act 1912 (NSW): at [273] (Adamson JA).

Per Dhanji J (Sweeney J agreeing):

1. The question for this Court is whether the jury must have been satisfied that the applicant committed an offence against s 66C(4) on the facts found by them, including that the complainant was under the age of 14. This question can be resolved by the proper construction of s 66C(4), without need for recourse to authorities: at [281], [292] (Dhanji J).

2. Reading s 66C(4) in light of its context and purpose (to criminalise intercourse with persons below a certain age), if the offence created by s 66C(2) cannot be proved only due to the inability to prove the complainant was under the age of 14, the accused will be guilty of an offence against s 66C(4) provided it can be proved the complainant was under the age of 16. The words “of or above the age of 14” in s 66C(4) do not create a further element for that offence: at [286]-[288].

3. The jury were satisfied of facts that would render the applicant liable to conviction for an offence against s 66(4) of the Crimes Act: at [292].

JUDGMENT

1. ADAMSON JA: RM (the applicant) was charged on indictment with 11 counts of sexual offending against his biological daughter (the complainant). On 27 March 2023, following a trial by jury over which Abadee DCJ (the trial judge) presided, the jury returned guilty verdicts on all 11 counts. The applicant was convicted and on 11 August 2023 the trial judge imposed an aggregate sentence of imprisonment of 12 years commencing on 3 January 2023 and expiring on 2 January 2035, with a non-parole period of 8 years and 5 months, expiring on 2 June 2031. The applicant does not challenge the sentence imposed.

2. The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against each of the convictions on the single ground that “the verdicts were unreasonable and unsupported by the evidence”.

3. For the reasons which follow, I am not persuaded that any of the verdicts are unreasonable, with the exception of the verdict with respect to count 5.

4. In order to address such a ground, this Court is required to consider all of the evidence adduced at the trial to determine whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of the applicant’s guilt of the charges of which he was convicted. The principles which apply to such a ground will be addressed later in these reasons. What follows is a narrative which is derived from the evidence adduced in the Crown case.

The indictment

5. The 11 counts of which the applicant was charged (and ultimately convicted) were as follows:

Count	Crimes Act 1900 (NSW) section	Time period	Offending Conduct
1	61M(2)	1 June 2011 – 31 December 2011	Indecently assaulted complainant (aged 9 years) by rubbing her chest, thighs and genital area when she was lying on her parents’ bed.
2	61M(2)	17 January 2012 – 31 March 2012	Indecently assaulted complainant (aged 10 years) by rubbing erect penis against her in the shower.
3	61M(2)	17 January 2013 – 21 July 2014	Indecently assaulted complainant (aged 11 or 12 years) by using her hand to masturbate his penis while lying in bed.
4	61J(1)	21 July 2014 – 31 December 2014	Unlawful sexual intercourse with complainant (aged 12 years) by licking her vagina while massaging her in bed.
5	66C(2)	17 January 2015 – 31 December 2015	Aggravated sexual intercourse with complainant (aged 13 years and under the applicant’s authority) by causing her to perform fellatio in the shower.
6	66C(4)	17 January 2015 – 16 January 2017	Aggravated sexual intercourse with complainant (aged 13 or 14 years and under the applicant’s authority) by penetrating her genitalia with his penis while massaging her in bed.
7	66C(4)	17 January 2016 – 31 December 2016	Aggravated sexual intercourse with complainant (aged 14 years and under the applicant’s authority) by licking her vagina while massaging her in bed.
8	61M(2)		Aggravated indecent assault with the complainant (aged 14 years and under the applicant’s authority) by rubbing penis against her vagina while massaging her in bed.
9	61M(2)	17 January 2017 – 31 December 2017	Indecently assaulted complainant (aged 15 years) by squeezing her bottom after a shower.
10	61KC(a)	19 July 2020	Unlawfully sexually touched complainant (aged 18 years) in bed.
11	61KE(a)		Unlawfully intentionally carried out a sexual act towards the complainant (aged 18 years) by masturbating in front of her in bed.

6. It is not necessary to set out the indictment in full. However, the terms of count 5 are significant because of the applicant’s submission that it was not open to the jury to prove beyond reasonable doubt that the complainant was under the age of 14 years at the time of the offending as required to make out an offence contrary to s 66C(2) of the Crimes Act. Count 5 on the indictment was in the following terms:

“[the applicant] between the 17th day of January 2015 and the 31st day of December 2015, at Glendenning in the State of New South Wales, had sexual intercourse with [the complainant], a person above the age of 10 years and under the age of 14 years, namely 13 years, in circumstances of aggravation, namely, [the complainant] was under his authority.”

The relevant statutory provisions

7. Section 66C of the Crimes Act relevantly provided:

“(2)    Child between 10 and 14—aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years.

....

(4)    Child between 14 and 16—aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years.”

8. Section 80AB(9) of the Crimes Act (formerly s 66E(4)) relevantly provides:

“If on the trial of a person for an offence under section 66C (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (3) or (4), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (3) or (4). The accused is liable to punishment accordingly.”

9. Section 80AF of the Crimes Act provides:

“80AF   Uncertainty about time when sexual offence against child occurred

(1)     This section applies if—

(a)  it is uncertain as to when during a period conduct is alleged to have occurred, and

(b)  the complainant in relation to the alleged conduct was for the whole of that period a child, and

(c)  there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence, and

(d)  because of a change in the law or a change in the age of the child during that period, the alleged conduct, if proven, would have constituted more than one sexual offence during that period.

(2)     In such a case, a person may be prosecuted in respect of the conduct under any of those sexual offences (except one that has a higher maximum penalty than any one or more of the other offences) regardless of when during that period the conduct actually occurred.

(2A)     In prosecuting an offence referred to in subsection (2)—

(a)  any requirement to establish that the offence charged was in force is satisfied if the prosecution can establish that the offence was in force at some time during that period, and

(b)  any requirement to establish that the complainant was of a particular age is satisfied if the prosecution can establish that the complainant was of that age at some time during that period.

(3)     In this section—

child means a person who is under the age of 16 years.

sexual offence means the following offences regardless of when the offence occurred—

(a)  an offence under a provision of [Division 10]

…

(c)  an offence … of attempting to commit any offence referred to in paragraph (a) or (b),

(d)     an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c).”

10. Section 7(2) of the Criminal Appeal Act 1912 (NSW) provides that:

“Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”

11. Section 12(2) of the Criminal Appeal Act provides that this Court “may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.”

The trial

The Crown case

Background

12. The complainant was born in January 2002 and was 21 years old when she gave evidence at the trial. The applicant is her father; his wife is her mother; and she has a brother, BM, who is about four years older than she is. The complainant was born with a congenital heart disease which required several operations, including an aortic valve replacement on 21 July 2014, when she was 12. The effect of this disease was that the complainant had considerably less energy than her peers, was sometimes out of breath and could not do a lot of exercise or activities which required exertion. She needed help with day-to-day tasks, such as washing her hair and doing laundry.

13. The complainant grew up in a suburban house near Mount Druitt with the applicant, her mother, BM and her maternal grandparents. Her parents had lived in the house since about 1994. The complainant initially occupied one bedroom in the house (her original bedroom) but after she came home following her heart surgery she moved to a larger bedroom in the house, which was off the kitchen and dining rooms (her second bedroom). Her parents always occupied the same bedroom in the house, as did her brother.

14. Between 2011 and 2017 the applicant worked night shifts and was generally not home at night time. According to the complainant’s mother, in July 2020, the applicant was working in Lidcombe as a forklift driver and had been in that position for the previous nine and a half years, having started in the “night shift, and then he went to afternoon shift”. When he did the night shift, he would leave home at about 8pm and come home at around 5am. When he was working afternoon shifts, he would start at about 1pm or 1.30pm and would typically return home at around 9pm. He worked five days a week. The complainant’s mother would go to bed at around 9.30pm but the applicant would “normally stay up for a couple of hours to wind down [and] watch a movie or TV or play on the PlayStation … in the lounge room or in the other room [the spare room]”.

15. The complainant agreed that sometimes when she was unwell at night, she would call out for help. Sometimes she would vomit and the applicant would “sometimes” “come and help [her]”. She recalled that he usually wore pyjamas but agreed that sometimes he was wearing a night shirt but not pants. The complainant’s mother confirmed in cross-examination that the complainant would become quite ill when she had her period and “would often vomit”. Because her mother would be sick if someone vomited, it was the applicant who would help the complainant when she was vomiting. She said that the complainant would “scream quite loudly” when she needed assistance. She also said that sometimes the applicant would wear a night shirt without pants to bed.

Count 1: indecent assault in latter part of 2011

16. When the complainant was about nine, she was in her original bedroom when she woke up after having a nightmare. She went into her parents’ bedroom and told her mother, “I had a nightmare, I’m just going to come in”. She climbed into the bed between her parents, “in the middle, a bit more closer to my mum”. The applicant pulled her closer to him. The complainant heard “a bit of a snore” from her mother, who was facing away from her towards the wall. She was wearing pyjamas but no underwear because she did not wear underwear under her pyjamas.

16. The complainant said that she felt the applicant rubbing her chest before his hand moved down to her groin area and “start[ed] to rub [her] vagina area”. She said that she “tried to … push it away a bit … [and] … just … wriggled away”. At that point, the complainant “just moved away and went back to sleep”. He touched her for “[a]bout ten to 15 minutes”. She explained that he rubbed her chest over her pyjamas for about five minutes before moving to the outside then inside of her thigh for about five minutes. He then slowly moved his hand under her pyjamas and was rubbing up and down.

17. In cross-examination, the complainant agreed that she said in a statement to police dated 21 July 2020:

“He did try to put his hand down the front of my underwear, but I shuffled around to avoid him going into my underwear.”

19. The cross-examination continued:

“It wasn't correct to tell the Court that you weren't wearing underwear.

A. I guess.”

20. During the incidents the complainant did not say anything. She “only just kind of thought, like, this is a bit uncomfortable”. The applicant did not say anything either. According to the complainant, the next morning “it never really got talked about”.

21. In cross-examination, the complainant agreed that although she was uncomfortable about what happened, she continued to sleep in her parents’ bed “sometimes”. She agreed that “sometimes” when she went into bed with her parents, the applicant “would hop out and go and sleep somewhere else”.

22. The complainant’s mother said that she and the applicant had a queen-sized bed until her fortieth birthday when the applicant purchased a king-sized bed. She recalled that from a young age the complainant would come to their bed as she “had a lot of nightmares”. The complainant would “wriggle around a lot” and “disturb” her parents, but, according to the complainant’s mother, she was the one who was mostly disturbed because she was a light sleeper whereas the applicant was a heavy sleeper who snored “very loudly”.

23. The complainant’s mother gave evidence that the applicant told her one morning when the complainant was in bed with her and the applicant, “he woke up and she was holding onto his penis”. The complainant’s mother said that the complainant was, at this time, “only young. Maybe … four or five”. As far as she could recall, the applicant told her “a day or so later”. She accepted that she had said in her police statement of 21 July 2020 that the complainant was eight when the applicant told her about this event but she maintained that she was unsure of the age but knew that she was “only young”. The complainant’s mother gave evidence that after that incident, she and the applicant decided that the complainant ought stop sleeping in their bed and sometimes her mother would go and sleep in her bed with her. However, the complainant would still come to her parents’ bed. The complainant’s mother said that the complainant did not tell her that the applicant was doing anything to her when she was in their bed.

24. The complainant’s mother agreed that when her son’s fiancée was staying over, the complainant and the fiancée (“the two girls”) would sleep in her son’s bed and BM would sleep in the complainant’s bed.

Count 2: indecent assault between January and March 2012

25. After the complainant’s tenth birthday, she was at home with her parents and BM, having dinner. The complainant said that she was going to have a shower. Normally, her mother would wash her hair but this time her father insisted on helping the complainant because the complainant recalled that her mother had had back problems “for a long time … as long as [she] can remember”. The complainant’s mother agreed that she first had back problems “[a]round 2013” and that she had also had “surgeries on her hands … [and] arms” which made it difficult for her to help wash the complainant’s hair.

26. The complainant agreed that she generally showered after 6pm. She also agreed that the heart surgeries she had had made it difficult for her to raise her arms up to wash her hair so she would ask for help to do so and the applicant was the one who “just came in”. She said that when her father helped her wash her hair, the bathroom door was closed.

27. The complainant recalled that after she had undressed and got into the shower, the applicant came into the bathroom, undressed and got in with her. She turned around so that she could not see him naked (“because, you know, he’s my dad”). The complainant said:

“… he was just right behind me and I could kind of feel like being pressed against him … I could feel like his penis, against like my lower back. … It was hard. … I just felt uncomfortable. I wasn't really too sure like what to feel because I was really only young and I didn't really know what was happening. … [This happened] [d]uring and just a bit after [he was washing my hair].”

28. She recalled the applicant’s penis being against her lower back for “[a]bout five minutes”. The applicant then told her that he had finished washing her hair. She “stepped out and started to get dry” and he “just continued his shower”. The complainant described her reaction as follows:

“I mean I remember just feeling like - that - like I wasn't too sure what was happening. Like, it was all a bit confusing, but the one thing I do remember is, like, feeling him kind of maybe stare at me through the shower. I mean I never actually turned around and saw, but it kind of just felt like he was watching me get dry.”

29. The complainant was cross-examined about her height (she denied that she was a “tall person”) and said, “I’m not too sure” when asked to explain how, given that she was short, the applicant’s penis was able to be pressed into her lower back.

30. BM gave evidence that when he was growing up, the applicant set a rule that when he or the complainant was in the shower, the other child had to be in their room “because we’re going through puberty around the same time”.

Count 3: indecent assault between January 2013 and 21 July 2014

31. The complainant recalled that before she had heart surgery (on 21 July 2014), she was in her own bed and “wanted to go in with mum”. When she got into her parents’ bed, she was in the middle between her parents when the applicant “moved a bit more closer [to her]”. The applicant “grabbed” her hand, “moved it under his underwear” and “started to move [her] hand in an up and down kind of motion”. His penis was erect. The complainant estimated that this went on for “[a]bout 20 minutes”. While this was happening, her mother was “sleeping” and “snoring”. The complainant did not recall the applicant ejaculating but thought that “it ended with him just moving [her] hand away”.

Count 4: aggravated sexual intercourse without consent between 21 July 2014 and 31 December 2014

32. In August 2014, after the complainant’s heart surgery, she was in bed in her second bedroom. She was lying down but she “had been complaining about [her] feet being sore”. In cross-examination, the complainant agreed that when she was growing up she had flat feet. She recalled that the applicant got an electric massager which he used to massage her feet “once or twice”. The complainant’s mother’s evidence was that if she tried to give the complainant a foot massage, the complainant complained that she did not “do it hard enough … Daddy does it better”.

33. The complainant said that it was “about night time”. The applicant “came in and had offered to give [her] a foot massage”, to which she agreed. When the complainant “had started to get tired and like sleepy, he kind of just asked [her] … if [her] calves were sore.” She did not respond to this. The applicant then started to move his hands above her knee and moved next to her in the bed. He massaged her thighs over her pyjamas and then pulled her pyjamas down and moved her legs apart and started “using his tongue to lick [her] vagina”. He continued for “about ten or 15 minutes”. She described it as “kind of up and down and also kind of like side to side and around”. She said:

“I was kind of just laying flat, and just … felt paralysed in a way, like I just didn't know what to do or how to move. But after a while, I had tried to like close my legs, but he would try to like kind of keep them open … he wouldn’t move his head away … [f]rom [her] vagina.”

34. When asked to describe how the incident ended the complainant said:

“He had kind of just stopped and tried to pull my pants back up, and then turned the lights off, like, I can't remember which ones it was, if it was the lounge room ones or the kitchen one. But yeah, he'd turn off the lights and then after that then I just kind of sat in my bed crying because I just didn't know what had happened.”

The start of the complainant’s self-harm

35. The complainant said that the morning after count 4 occurred she “wanted to tell mum about what had happened, but … didn't know if [she] could.” She said, “It was just kind of in my head thinking like maybe I shouldn’t and …[she] start[ed] hurting [herself] after that … on [her] thighs … [a]nd arm”. The complainant said that she was “pretty sure it was the next morning” when she started hurting herself (by cutting herself). The complainant could not explain why she did that but said that she continued to hurt herself for “one to two years”.

Count 5: aggravated sexual intercourse in 2015

36. At about 7.30pm one evening, when the complainant was “about 13 or 14”, she was having a shower and needed help to wash her hair. The applicant came into the bathroom and, when he was naked, asked if he could come into the shower. She said:

“He had stepped … into the shower …. And I noticed that his penis was erect. And I just kind of felt, like, uncomfortable about it, but I thought it was, you know, pretty normal, cause he comes into the shower with me so I just thought it was kind of normal. … He had grabbed my head. And he had placed it near his penis [and] had made me put my mouth around it. … He had one hand on my head, and the other hand was kind of on his penis, trying to get more. … He moved his hand that is on my head, so I kind of go up and down with my head on his penis … [f]or about five minutes.”

37. The complainant also said:

“From what I remember, I had walked out of the shower and I just kind of felt like something was wrong, that, like, what he did was wrong. But then he kind of just said, like, sorry in - or something like in a really joking tone and yeah … [while he was] still in the shower [and the complainant was] out of the shower. … I just picked up my towel and dried myself and just left and got dressed.”

38. The complainant said that at this time, she was continuing to hurt herself.

Count 6: aggravated sexual intercourse in about 2015 or 2016

39. When the complainant was 13 or 14, it was night-time and she was in bed in her pyjamas. She had sore feet and the applicant offered to give her a foot massage. She said:

“He had asked that question again, ‘Are your calves sore?’ And he would then continue up along my knees and up to where my calves are. And then I again then tried and not really move. He had then started to become naked [by taking off his pyjamas and his pants].”

40. She continued:

“He had taken my pants off as well and had the blanket kind of over him and me, because he was kind of now over on top of me [and] he would grab his penis [which was hard] and put it near my vagina … and then he had begun to kind of move his hips, like - in, like, a sideways motion. [His penis] was never in, but it was, like, almost in.”

41. The following exchange occurred:

“Q. Would you agree if I said the outer lips of the vagina were the labia majora? Do you understand that term?

A. Yes.

Q. If you think about your labia majora and you think about where the accused's penis was at the time that you're telling us about, was it outside the lips of the labia majora or inside the lips of the labia majora or something else?

A. It was, kind of, like, both, in a way. It was, kind of, like in the middle ground. Like, it would never - kind of, yeah.

Q. You say both. Do you mean at different times?

A. Yeah.”

42. According to the complainant, this continued for “about 15 to 20 minutes”. She could feel his penis on her clitoris but said that it was “hardly reaching” her labia majora. The complainant did not recall that he had ejaculated but did recall that the applicant was “trying to find [her] pants”, which she was “pretty sure … were in the bed somewhere” and that “he tried to put [her] pants back on and [she thought] he went to the bathroom”. After he had finished putting his penis near her vagina “[h]e was kind of just breathing really heavily”.

43. She agreed in cross-examination that the applicant did these things to her with her bedroom door wide open.

Count 7 (licking the complainant’s vagina) and count 8 (aggravated indecent assault by rubbing his penis against her vagina) in 2016

44. When the complainant was 14 years old, “around the time [she] was cutting [herself]”, she was in her second bedroom “after seven” wearing her “fluffy” pyjamas with “pink and blue” stars on them. The applicant came in and gave her another foot massage. He did as he had done before by proceeding further up her legs. The complainant was “kind of not that tired, so [she] was kind of pretending to sleep”, “hoping that, maybe, it would stop him from doing it”. While she continued to pretend to sleep, the applicant took her pyjama pants off and rubbed his penis on her vagina. He also licked her vagina. She also recalled that he stopped licking her vagina and said:

“He had stopped in his tracks for about two seconds, cause he noticed – I feel like he noticed that I had cuts on my thighs.”

45. The applicant then “started to grab his penis, and would start, like, thrusting near [her] vagina, but it never went … inside the vagina”. His pants were off, his penis was “hard” and the thrusting went on for “[a]bout ten to 15 minutes”. It came to an end when the applicant “pulled up his pants, and, like grunted [and] kissed me on the forehead goodnight, and went to the bathroom”. She inferred that he had gone to the bathroom because she “heard the toilet flush”.

The complainant’s involvement with Headspace

46. When the complainant was in year 7 or 8, she went to Headspace, which is “a company that has counselling that you can talk to”. It was accepted that the complainant was 13 when she was in year 7 and 14 in year 8. The complainant said that at Headspace:

“We talked about how I could, like, ways to help relieve my anxiety and my depression.”

47. She agreed that those things helped her with the cutting. She could not recall how long she had gone to Headspace for but said that it “would have been … months”. Although the complainant cut herself after she stopped going to Headspace, it continued “[m]aybe, like, a couple of months after but not as frequent as I did before”. The complainant also experienced “dark figures … in [her] mind” as a result of “anxiety”. She saw the dark figures from the time she first started cutting herself until she finished talking to Headspace.

48. In cross-examination, the complainant agreed that the applicant noticed that she was cutting herself in late 2015 and that she told her parents that they were from her bird Sonny. Her parents took her to her general practitioner to get a referral to Headspace. She confirmed that she was also hearing voices at the time as well as seeing and hearing things that were not there. The complainant also confirmed that she went to her Headspace appointments by herself. She was asked whether there were any problems at home and agreed that at the time she went to Headspace, she had “heart problems” and, in December 2015, her grandfather had cancer. She agreed that she said nothing to Headspace about her father but insisted that the cutting was to do with him.

49. Between 28 January 2016 and 8 August 2016, the complainant participated in the Headspace Youth Early Psychosis program. She agreed, by reference to the discharge summary which she was shown in cross-examination, that she told them that her grandfather had cancer and that she had had heart surgeries which led to her being bullied at school. She also agreed that she had told them that she was distressed about a breakup with her boyfriend in May 2016 (Exhibit 1). She agreed that she had told Headspace that she had not self-harmed since January 2016 and said that she had done so because she “didn’t want to keep seeing Headspace”. The complainant also agreed that she told Headspace that she “had a normal family life”.

50. The complainant was shown an article from the Daily Telegraph, entitled “[The complainant’s] story”, which was accompanied by a photograph of the complainant with her parents. She agreed in cross-examination that the article referred to her hearing voices in her head and being visited by a little boy. She also agreed that she had said (as reported in the article), “The voices made me hurt myself because they made me feel worthless”. She agreed that the article said that Headspace helped her.

51. The complainant’s mother said that the reason for the complainant being sent to Headspace was because she and the applicant noticed “some scratches on [the complainant’s] legs”. She confirmed in cross-examination that it was the applicant who raised a concern about the marks. The complainant said that they were “from the bird” (she had a cockatiel). The complainant’s mother said, “Well, I need to have a look because you don’t want to get an infection.” She explained that she was concerned about infection because of the complainant’s heart condition. The complainant’s mother recalled this conversation occurred at Christmas time when the complainant was 14. When her mother examined the scratches, she:

“… noticed that they were not what a bird would do. They seemed to be straight lines. They weren’t just like little scratches.”

52. When the complainant’s mother pressed her for an explanation, the complainant said, “I’ve been hearing – hearing voices, seeing people that aren’t there, that no-one else can see, and I’ve been harming myself.”. According to her mother, the complainant “wouldn’t say why she was doing it. She just said those – that voices were telling her to do it”.

53. The complainant’s mother’s recollection was that the conversations about the cuts occurred on Christmas Day. After lunch with the complainant’s mother’s family, they took the complainant to Nepean Hospital. After assessment, the suggestion was made that the complainant go to Headspace.

54. Her mother said that the complainant went to Headspace for about 12 months and that, after that time, the complainant did not complain about hearing or seeing things that were not there or experiencing hallucinations.

Count 9: indecent assault in about 2017

55. At some time after the complainant had stopped going to Headspace when she was 15, she remembered an occasion after she had been in the shower when the applicant came into the bathroom to have his shower. While she was still naked he “squeezed [her] butt”. After this occurred, according to the complainant:

“He kind of just said, sorry, and I just kind of felt uncomfortable, and I just grabbed my towel and dried myself.”

56. The complainant recalled that when she came out of the bathroom, her mother, who was in the lounge room, said, “Oh, you took forever”.

Lack of contemporaneous complaint

57. Up until this time, the complainant had not told anyone what the applicant had been doing to her. She explained the reason for this as:

“I was scared, and I -yeah, I didn't know really who to tell, because I didn't know if it was safe to or, yeah. That's kind of the reason”

Complaints made by the complainant about counts 1-9

Complaint to LR, the complainant’s friend

58. The complainant met LR in 2019 as they were both doing their certificate 3 health administration course at Nepean TAFE. They became friends. According to LR:

“Initially we would help each other with assignments, but we would just keep in touch through social media during the course, and we'd often play like online games and stuff together.”

59. According to LR, in June 2019:

“… we were having a discussion about just relationships and our lives, and she had disclosed to me that she had been sexually abused when she was younger. I said to her like, that's not good, do you want to talk about, but she said that she didn't at that time. … She just said that she had been sexually abused when she was younger. … I asked her who it was, and she said that she didn't want to talk about it.”

60. When asked how the complainant looked and presented at the time she made this disclosure, LR said:

“She seemed quite distressed. She kind of made herself a bit small. She looked really timid. She’s a timid girl, but she did look particularly upset and somewhat frightened at the time.”

61. In LR’s cross-examination, the following exchange ensued:

“Q. You've described [the complainant] as timid. Is it the case that she's actually quite a bubbly, chatterbox sort of type of person?

A. Once she's comfortable, yes.”

62. LR recalled that in about July 2020, the complainant made a further disclosure to her. LR’s evidence was:

“So, this first discussion took place, we were sitting in my car. We had just been shopping, and she looked a little bit stressed. So, I asked her if there was something on her mind, and she said, ‘I want to tell you something that’s been going on since I was nine’, and I said, ‘Well, did you want to tell me?’, and she said, ‘Not right now. I want to tell [WB] first’, and that was her boyfriend at the time.”

Complaint to WB, the complainant’s boyfriend

63. When the complainant was 17, she had a boyfriend, WB. WB gave evidence that he and the complainant met in about October 2019 and became boyfriend and girlfriend on 30 November 2019. They remained in a relationship until the beginning of 2021. At that time, WB was living with his parents, his twin brother and his younger sister. WB and the complainant spent time together at each other’s parents’ places. WB estimated that in the period between the end of November 2019 and July 2020, he visited the complainant’s home about ten times and met the applicant, the complainant’s mother and her brother. WB said that when he was at the complainant’s house, her parents made them leave her bedroom door open. WB was doing the HSC in 2020.

64. According to the complainant’s mother:

“[The complainant] said, ‘When I’m 18, I’m out of here, I'm moving out’, and she was dating [WB] at that time. … In the beginning, she didn't [say she wanted to move out with WB], but then when she was dating him, she said, ‘Yeah, we're going to move out, and we're going to - as soon as I turn 18.’”

65. The complainant’s mother’s response was:

“… we [the complainant’s mother and the applicant] were just like you're not going to move out, you're only working a couple of hours, you won't be able to afford it, you know, he's got to go to - he's supposed to be going to college, it was just like, I didn't take her seriously.”

66. She said that the complainant raised the topic “several times”. The complainant’s mother agreed that WB’s parents would not let the complainant stay over and that she and the applicant did not allow the complainant’s bedroom door to be closed when WB was with the complainant.

67. According to WB, the complainant first told him in the first half of 2020, when she was 18, about being sexually abused by the applicant. WB said that the complainant had attended his sister’s ninth birthday party the week before. The complainant told him that she had become quite uncomfortable because attending the party had caused her to recall “some memories of when she was around that age” (when her sexual abuse by the applicant started). WB said that, around a week after his sister’s birthday party, the complainant had told him about the sexual abuse, including oral sex with her father in the shower and “[i]nappropriate touching in her bedroom”. According to WB, the complainant told him that “it mainly occurred during the ages of nine to 14”. WB recalled that she also told him that the applicant would come into her bedroom and touch her thighs or her breast and that the applicant would also come to the bathroom when she was younger to help her wash her hair.

68. The complainant said that she first told WB about what had been happening to her because she had had a nightmare about something her father had done to her in the past. When she woke from the nightmare, she messaged WB and told him:

“That I'd had a nightmare about - really I just explained what happened in the nightmare and I'd then gone on to tell him that since I was about nine till now, that dad has been sexually touching me, in those terms.”

69. The complainant and WB then discussed what she should do about what the applicant had been doing to her. According to WB, the complainant “wanted some support for the trauma, and she also wanted to go to the authorities as well at some point”. He said:

“I recall [the complainant] saying if an event had occurred again with her father, that she would immediately go to the authorities, but her main focus at that time that she told me was she needed psychological and emotional help.”

70. When the complainant told WB, he went downstairs and asked his parents if the complainant could stay the night, which led to her staying for one night. He recalled having a discussion with the complainant that this “was for short-term basis to not be at her parents’ house, at her primary residence”. WB explained in his evidence:

“Initially, when [the complainant] had told me about the abuse the first time, and when I asked my parents if she could stay overnight, the concern was was she in any immediate danger, which she said she wasn’t. She felt uncomfortable, but she believed she wasn’t in immediate danger.”

71. On 30 June 2020, WB sent an email in the following terms to the Blue Knot Foundation:

“l am emailing this on behalf of my dear girlfriend, who has recently disclosed with myself sexual childhood trauma that she has experienced.

The following has been read over by my girlfriend, and she has consented to me sending this information to the foundation. We understand that due to this not being reported to the police -I would be disclosed as a witness and l accept the responsibility of this.

Since the age of 9, my girlfriend (now aged 18), has been dealing with frequent sexual behaviours from her father. This has involved touch of her breasts, thighs and genitals, as well as forcing her to suck his own genitalia.

lt is still continuous to this very day, and although lessened, there still have been numerous times that her father has tried to make her touch and sexually engage with him.

My girlfriend has never told anyone, and has only opened up to me about this recently.

Upon being told of this, I found the Blue Knot Foundation. I understand my girlfriend does not exactly meet the specifications of the foundation, with the main focus of more mature Australians with past traumas of sexual assault.

If you believe the foundation would be able to help, we would greatly appreciate a return.

…”

72. The complainant gave evidence that she and WB wrote the above email together. They chose the Blue Knot Foundation because their research indicated that she could stay anonymous and she “didn’t want to go legal yet … because [she] was still quite scared”.

73. On 2 July 2020, the complainant (who used the pseudonym, “Honey”) sent the following email to the Blue Knot Foundation:

“Hello and Greetings Blue Knot Foundation,

My partner, [WB], messaged two days ago, outlining the issues that I am currently facing, The email that he attached was not in use, and instead this email will be the one that I will be using for the future to talk to the foundation.

Your response has ensured there are little to no concerns now about confidentiality. I was very concerned about the communication being confidential at first, ensuring I could decide when the correct time to tell authorities, then family, would be.

In the email you suggested to call the Blue Knot Foundation, however I would like to wait until I am with my partner (we do not live together). This would most likely be on the Sunday or Monday, depending on schedule.

My current email is not my actual name, nor was the email attached in the original email that my partner sent. However, I would like to the use the name "Honey" for the mean time, until I feel comfortable with using my actual name with the foundation.

I would first like to understand my different options in going forward, on what treatments are available for myself, and what intervention could occur.

My partner and I have had a discussion over the past few days, and my own plan is to understand all of the possible options, to ensure I choose the option I am most comfortable with (family intervention, living situation etc.).

A significant question I had to ask was the following: Do l need to commit to a specific time frame on the Sunday or Monday to call? I could give you a rough time frame of when I would be able to call, and would this be needed?

One other significant question was my housing situation. I am still currently living at home, which means I still have my father present physically, and I do not feel safe or comfortable within my own home. A possibly [sic] would be to live with my partner for several days at a time (sleeping over), which my own parents would be comfortable with. I could not go with other family members, as this would raise suspicion, which I currently do not want to face.

In saying this, living with my partner would then mean l would have to tell his own parents partially about the current situation, which would be a lot easier than telling my own family (for the moment). Do you think this is a realistic plan or idea? I would like to hear your feedback on this please.

Thank you for taking your time to reply to our first email, and I hope to hear back from the foundation soon.”

74. The complainant explained in her evidence in chief that she created the email address because she “was still very scared about people knowing”. She said:

“I didn't want it to go, like, to the police, and for anything to happen because I wasn't ready for any of that because I'd only just talked to [WB]. … I was scared of what my dad was going to do if he found that I told someone.”

75. When cross-examined about the reference in her text message to telling WB’s parents being easier than telling her own, the complainant said that she “just thought maybe that was the only way that it was able to happen”. She denied that “it” was a reference to moving in with WB.

76. WB explained in his evidence:

“I can recall that another reason why [the complainant] didn't want to immediately go to the police is she wanted to have control on when people would know, when she would be comfortable with her mother or anyone else knowing about the incidents.”

77. WB also said that the complainant was scared about telling family members about what happened because she was “scared about not being believed about the incidents” and “also mentioned housing security as well in terms of if she did tell her mother about it, she might actually have to leave her home”. WB agreed that the complainant had not used the term “housing security” and that the complainant had “been talking about [how] she didn’t want to leave the family home”. In cross-examination, WB said that the complainant was worried about telling her mother because it might mean that she could not live at home anymore and she “didn’t have the financial support to sustain her own living accommodation”.

78. WB said in re-examination that he and the complainant had discussed moving in together but this was “for the future”, by which he meant “[l]ater down the track, several years into the relationship”.

79. On 3 July 2020 at 12.10am, the complainant texted WB and told him that the applicant “just tried to do something” but that she “was able to stop it from whatever it was he wanted to do” and that she “was too sleepy to know what he was trying”. She explained in a further text message:

“He just got into the shower which is why I texting you …”

80. Later that morning, after about 5.35am, the complainant sent WB further text messages, including the following:

“I’m going to tell you something but you have to promise me you won’t do anything about it

…

This is something I have never told a soul

…

Whenever I have a nightmare or I get scared I’m in the dark alone and also why I think become a little when I’m sleepy. [WB] when I was younger my dad – he essentially raped me and touched me. Please you can’t do anything about this okay?”

81. The timing of the disclosure in this text message would appear to be inconsistent with WB’s email to the Blue Knot Foundation on 30 June 2020 (which indicated that the complainant had already told him then). However, nothing was made of this at trial or on appeal and it is, accordingly, not necessary to address it further.

82. In the course of the same series of text messages, the complainant messaged:

“And this is also the reason why I like to go to your house more often be[c]ause I feel safer there th[a]n my own home

And also another reason for why I want to move out so quickly”.

83. In cross-examination, the complainant confirmed that she did not want to move out with WB, who was then living with his parents who were strict about not letting her stay over and with whom she did not get along. She agreed in cross-examination that WB’s parents did not let her move in and wanted her to go to a hotel instead. In re-examination, the complainant said that when she told WB’s parents that she was not safe at home, they “told [her] that they were going to book [her] a hotel and an Uber to go to like a safe place”.

84. In the same series of text messages which began at 5.35am on 3 July 2020, the complainant also said:

“Just so you know, no he didn’t take my virginity because he never put it in, mainly because I was too fricking young.

…

Also another reason why he never went in is because he always came on my sheets or on me.”

85. The complainant was cross-examined about this text as follows:

“Q. …You've said there to [WB] that ‘He always came on my sheets or on me.’ Do you agree that you’ve not given any evidence whatsoever about your father ever ejaculating either on you or on your bed or your sheets?

A. Yep.

Q. Your evidence is in fact that he didn't ejaculate on any of the occasions, is that right?

A. It was the fact that I didn't know.”

86. The text messages which the complainant sent to WB in the early morning of 3 July 2020 also included the following:

“The thing I hate most about it, is the fact he was always so gentle about it.”

87. On 11 July 2020, the complainant and WB phoned 1800RESPECT, an organisation to which she had been referred by the Blue Knot Foundation. WB recalled that they had gone to a public park near the Westfield Shopping Centre at Parramatta where it would be quiet so that they could make the call. WB recalled that, before making the call, the complainant told him that she wanted guidance about directly accessing help.

88. The transcript of the call recorded:

“[The complainant]   Well really it kind of stopped -- not really stopped-stopped but um -­ it stopped more like -when I was probably like 14 -- stopped being like really really like -- how do I say? … from 9 to 14 – like essentially was like

[WB]        Sexual assault -- it was essentially sexual assault -- there was times of basically forcing Honey or basically so like -- oral sex – touching her genitalia, her breasts, her thighs and essentially Honey's own mother had a back injury several years ago and so during Honey's childhood, it was her own father who would mostly be with her in terms of

[The complainant]   Like washing hair -­ … And looking after me -- uh yeah coz like, he would always be home as well -- because mum was in and out of hospital getting her back checked and stuff -- and especially when she wasn't home like he would basically act upon it- ever since I was 14 he kind of- like it slowly started to stop getting that like uh like

[WB]        Intense

[The complainant]   Yeah, intense. Yeah, it wasn't until I got a bit older- that was when I started to realise, this isn't actually a normal thing that happened – yeah because most of the time now he waits until I'm asleep to do anything … say if I was cleaning the kitchen or something, he would like put his hand like on my hips to go grab something - or like if I've - so, my legs, he'd like touch all the way up to my thighs and then go down -- or like – yeah

…

[WB]        essentially when Honey can get very exhausted, very tired – uh her personality kind of changes a bit and uh she becomes a bit uh more agreeing of the circumstances I guess you could say- so say, for example, uh Honey was staying at my house -- what do you want to do Honey? Do you want to watch another movie, or do you just want to go to bed? And Honey doesn't have any kind of opinion and really just kind of goes with whatever I may say- and she also becomes a childlike just with her vocabulary and kind of how she's speaking, it's a bit lighter and a bit childish –”

89. Towards the conclusion of the conversation, the complainant told the counsellor that she would tell her best friend about it because she did not yet know.

90. Later in the evening on Saturday 11 July 2020 at 9.21pm, the complainant, who was at home at the time, sent three messages to LR. In the third message she said:

“Okay so I know this might be a shock but like ever since I was 9 dad used to sexually abuse me, it’s not that frequent anymore it’s more or less not that dominant in me it’s more like touching my hips when I’m bending down and stuff like that. If you have any questions just ask.”

91. In cross-examination, the complainant said that when she said that it was “not that dominant”, she “meant that it didn’t happen as often”.

92. Soon after sending the text messages, the complainant said that she went to LR’s house and told LR. LR then told her mother, DL, who joined them. The complainant told them:

“That I was nine when it first started to happen - when he first started to sexually abuse me, up until that age, until I was 18.”

93. LR’s recollection was that the complainant came to stay at her house for the weekend of 11-12 July 2020. Her evidence was:

“[The complainant] had probably come over maybe around mid-morning, midday. She would come over like during the day and we’d spend the day together, and then she would sleep in my room for the night.”

94. LR described the circumstances and substance of the disclosure as follows:

“So, it was in the evening. It was probably around 9.30 after everyone else had gone to bed because she didn't want to have the discussion in front of the rest of my family. So, we went in my room. … So, she was quite nervous, and she had [WB] on FaceTime at the time because she had said that she wanted to tell me something. I could see that she was really stressed and she was having trouble trying to put it into words. So, I suggest to her that she write it in a text message and send it to me, and that was when she disclosed that she had been sexually abused by her father since she was nine.”

95. In her evidence, LR identified the text message extracted above which the complainant had sent to her after 9.21pm. LR’s evidence was:

“Well, I was obviously quite surprised. It wasn’t something that I was aware of, and we both started crying because we were very close at that time, and I was hurting for her. So, I gave her a big hug and I said, ‘Do you want to talk about it?’, and she said, ‘I don't want to talk about the worst of it’, and then she reiterated that it was at the - at that time, it was mostly he would come up behind her and touch her hips and make her uncomfortable …”

96. DL recalled that LR was with the complainant in her bedroom and then they both came down and spoke to her in the lounge room. DL’s evidence was:

“Well, [LR] was telling me that [the complainant] has [t]old her something, and she wanted to let me know too, so - because she was - didn't know what to do, so I'd become somewhat of a confidant for [the complainant], so she wanted to speak to me, so we spoke about the fact that her father had been abusing her for quite some time. …

Yes, she said that he would come into her room at night and masturbate in her room while she was there, and sometimes would even hop into bed with her. … [S]he said it [had been happening] for many years, since she was younger. I don't know the timeframe of how long, but I understand it was years and years.”

97. By the time of this disclosure, DL had met the complainant a “number of times” as she “used to come over and stay at [DL’s] place occasionally”.

Counts 10 and 11: unlawful sexual touching and unlawful carrying out of sexual act on 19 July 2020

98. WB said that on the evening of 19 July 2020, between about 6pm and 8pm, he had had a two-hour long video call with the complainant. He said that he would have been finishing off his homework and would have eaten his dinner at home.

99. The complainant’s mother said that the evening of 19 July 2020 was:

“Just a normal night. We have - we had dinner together. Then [the applicant] went to work. … I normally went - um between nine, 9.30, I normally went to bed. … It probably would have only been [the complainant] and I because [the applicant] wouldn't be home for dinner … [b]ecause he was working. … He would start at 1 - 1 o'clock in the afternoon, so [would finish his shift at] 8 o'clock, or 8.30, I think it was, and then - so normally, myself and [the complainant] would have dinner together … [and the applicant would typically get home] [a]round 9 o’clock.”

100. At about 11pm that evening, after BM had had a shower, the complainant was lying in her bed, wearing a red jumper, trying to get to sleep. The lights in her bedroom were off but the kitchen or loungeroom lights were still on. She was lying on her back closing her eyes when the applicant came into the room, stood next to the bedside table and pulled his pants down. He tried to touch her chest with one hand but she had her hands crossed over her chest. His other hand was “stroking” his penis, which was about 20cms away from her. When asked how the episode ended, the complainant said:

“Well, he was never able to move my hands and he put up his hands and left the room. And if I recall, he went to the bathroom. … [b]ecause after a couple of seconds, maybe a minute, he flushed the toilet.”

101. BM recalled that evening he came home from work and went to bed. He heard “people” outside his room between midnight and 1am. He could hear the applicant’s voice and his mother’s voice and was “pretty sure” that he could also hear the complainant’s voice. He could not hear what they were talking about but said that they were “[w]hispering, maybe. It was later at night, so they were probably trying to keep quiet”. He subsequently said that he was “certain that [he] heard [the complainant’s] voice”, “I could hear Dad and my sister’s voice”.

102. The complainant’s mother recalled seeing the applicant asleep in their bed that night at about 2am when she got up to go to the bathroom.

The complaint about counts 10 and 11 to WB and LR

103. Shortly after this incident, on the evening of 19 July 2020, the complainant messaged WB. The first message was sent at 11.31pm. The complainant told WB that she had just had a nightmare which “felt so real”. In subsequent messages, she said:

“He was jacking off in front of my face

And he tried moving my hand

And tried getting to my breasts

…

My heart is pounding

[WB] oml [Oh my Lord] it actually happened

Im scared

He tried so hard to move my hand

…

He[’]s just having a shower

…”

104. When the complainant was asked about the sequence of events, the following exchange occurred:

“Q. In those messages that I've just read to you, you talk about two things. You talk about the nightmare, the nightmare that we've talked about, and you also talk about what you say the accused did to you - actually did to you – in the bedroom, okay. You understand? Tell us about the sequence that you recall? What happened first? What order did those things happen in?

A. I had the nightmare, and then he did something.

Q. How long before he did something, did you have the nightmare? Was it?

A. It was immediately after, pretty much.”

105. The messages record that she and WB had a video chat and also that she said that they should tell LR in the group chat.

106. WB’s recollection was that he and the complainant had a video call which lasted about “ten to 20 minutes”. He said:

“Within the video call, [the complainant] was crying. She was overwhelmed, rapid – rapid breathing, short sentences, and she’d said that her dad had just come in and had masturbated in front of her while she was half - half asleep.”

107. He also recalled that the complainant had told him that she was in her bedroom and the applicant was “to the side of the bed”.

108. At 12.13am on 20 July 2020, the complainant put some messages on the group chat (between her, WB and LR), including:

“[The complainant]   So I had a really vivid nightmare about dad doing things to me and then minutes later he comes into my room and ---

[WB]   Essentially was touching himself in front of a half asleep [complainant]

…

[The complainant]   Touching himself by literally touching his penis right in front of my face”.

109. LR woke up at 8.30am and joined the chat at 8.31am. She explained in her evidence:

“I was asleep and I’d - I wasn’t awake when it happened, but I received a text message from [the complainant] saying that she had had a very vivid dream about her father doing things to her. She didn’t want to continue the message. So, [WB], who was in the group chat, because it was a group chat between the three of us, he had said that he would continue the message for me, and that she had woken up from this dream to find [the applicant] in her bedroom.”

110. The complainant, WB and LR then exchanged messages about the complainant telling her mother. The complainant said in a message:

“I think I’ve also been putting off telling mum because pa [her grandfather] just got told he has cancer in like 11 areas

But it[i] been a while since we got told so maybe tonight also be a good time to tell her since dad did something last night”

111. In the course of the messages, the complainant mentioned that she was in “shark week”, which was a reference to her having her period. She explained in her evidence:

“Well, I was kind of just saying, like, dad's not going to try and do much because I was on my periods. So, I assumed he wouldn't have been doing much to me.”

112. The messages also referred to a “game plan”, which the complainant explained was “a nicer version of saying that, just, the plan of what I wanted to do. If I wanted to tell the police. If I wanted to tell my mum”. She said that, at that time, her mother was working in a nursing home and would be home in the afternoon. The complainant’s mother confirmed that she worked in an “aged care facility” as a “support officer”.

113. LR’s attitude was as follows:

“Well, I was very clear that I thought [the complainant] needed to speak to her mum; that she needed to tell [her mother] what was going on because she had said that [her mother] was not aware, so I keep telling her that she did need to speak to [her mother], and I was asking her, ‘Did you want to come and stay with me at any time?’, if she didn't feel safe at home. … [The complainant] had made it clear that she was quite nervous to tell her [mother], and she wasn't sure if she felt brave enough to.”

114. WB’s recollection at this time was:

“[The complainant] wanted to ensure before the authorities [k]new, because she wanted to contact the authorities, that it was her, [the complainant], telling her mum … why the authorities were going to come to the house.”

115. Later in the morning, in a message to WB, the complainant reported that she “woke up to dad in [her] room playing with [P]eanut [the family dog]”. She messaged WB that the applicant’s hand “got pretty far up [her thigh] but it didn’t get that close”.

116. The complainant, later in the morning of 20 July 2020, texted WB:

“He had his hand on my leg and it kept getting further

I was just trying to show him my island on animal crossing”

117. In cross-examination, the complainant agreed that Animal Crossing was “a game on [her] Nintendo Switch.” The following exchange ensued:

“Q. Why were you trying to show him your Nintendo Switch the next day if you'd just done these terrible things to you?

A. Because I was kind of just used to everything happening.”

The complainant’s complaint to her mother on 20 July 2020

118. When the complainant’s mother came home from work at the nursing home on the afternoon of 20 July 2020, the applicant was at work and the complainant and her mother were together in the lounge room. The complainant gave the following evidence as to what occurred:

“I said - the first words I said was I know this is, like, something like, I know this isn't something you want to hear, but dad had been sexually touching me for a really long time. And I don't want to go to the police yet because I'm not ready, and I've told [WB] and [LR]. … [The complainant’s mother] started bursting into tears, and she felt very sick and started to vomit. So, I went to go and - go and grab my grandma who was next door in, like, her granny flat. …

My grandma had come in. Well, I had said to her, saying, mum needs you because she's feeling very unwell and is feeling very overwhelmed ….”

119. The complainant said something further, which resulted in a successful application by Ms Hogan, who appeared on behalf of the applicant at trial and in this Court, for the jury to be discharged. When a new jury was empanelled, an agreed edited version of the complainant’s evidence from the first trial (which had been recorded) was replayed to the jury. There was no challenge in this Court to this course being adopted.

120. WB gave evidence that on 20 July 2020 he and the complainant were on a voice chat and the complainant had put her phone “near where she was talking, or it was in her pocket”, which meant that WB could hear the complainant, her mother and her grandmother. He recalled that he was on the voice chat for “20 to 30 minutes” and that he heard the complainant asking her mother to sit down because she was going to tell her something important and he also heard her tell her mother that “there’d been sexual abuse from her father”. LR was also on the group chat, although not from the beginning. When she came onto the chat, LR “could hear that everyone was quite upset when she said that [the applicant] had been called, and he was coming home.”.

121. LR’s evidence about what she could hear from the chat was:

“…[The complainant], for the most part, stayed in her room after she had told her mum, so I couldn’t hear too much of [the complainant’s mother] was saying, but I could hear that - that she was crying, and I could hear that she was upset, but I can't really remember hearing anything really that [the complainant’s mother] had said, but I did hear [the complainant] say that [the applicant] had arrived home. I could hear him saying, ‘[The complainant], come out and talk to us. Why are you doing this? I'd rather kill myself than do anything like that.’ [The applicant] [k]ept saying, ‘Oh my God. Oh my God. It's not true’, and then, when she did come out of her room, I did hear him ask her, ‘Are you making this up because we wouldn't let you go to [LR’s] this weekend?’”

122. LR explained that the last question related to the complainant’s parents saying that she could not stay with LR again this weekend because she had stayed over the previous weekend.

123. The complainant’s mother’s evidence was as follows:

“I’d worked that day, then I came home, we had dinner together, and then I was in the lounge room. I[’]d been speaking to mum as well, how they’d sort of been, and then [the complainant] said, ‘Mum, I need to tell you something’, and I said, ‘Well, come on out here’, because she was in the bedroom. I said, ‘Well, come out here and tell me.’ She goes, ‘No, you have to come in here’, and I said, ‘I'm really tired, you know, I've been working all day and I just got settled in the chair.’ She goes, ‘No, you have to come in the bedroom. I have to tell you something.’ I said, ‘All right, okay. I'm coming’, and then I sat on the bed. … [The complainant] said, ‘I have to tell you something’, and she looked … funny. I said, ‘No, I hope you're not pregnant.’ … She just was quiet. She's normally bubbly and - so, you know, sort of person, and she was just really quiet, and she said - and she goes, ‘No, mummy. I have to tell you something serious.’ I said, ‘All right, okay. What?’, and that's when she started to say. …

She said, ‘Mummy, I have to tell you something. [WB] and [LR] already know what I'm going to tell you.’ She said, ‘Daddy's been touching me inappropriately’, and I was like what, what, what, what, and she said, ‘He's been doing it for a while.’ … She said … ‘Sometimes when he massaged my legs he would - he would touch me.’ … She … pointed to her vagina. … She said the night before he even – ‘He was touching himself and he tried to move my hand to make me touch it’ … I was just very upset and crying, very emotional. I didn't know what - what was sort of going on … [The complainant] had gone in and got my mum from next door …”

124. As a result of this disclosure, the complainant’s mother rang the applicant’s brother, MM, and said, “[The complainant’s] just said that [the applicant’s] been doing all this stuff to her and I don't know what to do. I’m just - can you come over.” MM and his wife LM came over.

125. The complainant’s mother described the complainant’s demeanour in the following exchange:

“Q. … Did she seem unconcerned to you, unfazed?

A. Yeah, she was just - even when she told me what was happening - it was just like a blank look on her face and she was just like wandering around as if nothing happened.”

The family conference

126. When they arrived, the complainant stayed in her bedroom and the complainant’s mother, the complainant’s maternal grandmother, MM and LM sat around the kitchen table. The complainant’s mother rang the applicant, who was at work on the afternoon shift. Her evidence was:

“I said um ‘You need to come home’ and he says, ‘Is everything all right’ and I said, ‘Nah, you just need to come home’. And he said, ‘Okay, well, I’ll come – I’ll come right now’.”

127. The complainant recalled that before the applicant came home from work, the following members of the complainant’s family were present: the complainant, her mother, MM and LM, as well as her maternal grandparents and possibly also the complainant’s brother. The complainant said in cross-examination that when MM and LM arrived, she was “shocked”. She agreed that they all sat around the dining room table and asked her what had happened. She did not recall what she had told them and said that she went into her bedroom, closed the door and texted WB and LR.

128. While the complainant’s mother was waiting for the applicant to come home, she had further discussions with the complainant. She said in evidence:

“I … asked her some questions. Sort of said, ‘Well, was daddy just touching you’ and she said, ‘Yes’. I said, ‘Did he – did you have sex or did you - did he put his penis in your vagina’ and she says, ‘No mummy, no. He just - just touchings’.”

129. The complainant’s mother recalled that the applicant got home about half an hour after she called him. She said in evidence:

“When he come home, he's like, ‘What's going on, what’s happened’. Because at that time his - my father and his father were ill. He thought something had happened to him and he’s like, ‘What's going on – are they all right’ and I said, ‘Yeah, it's - you better sit down, it's serious’. I said, ‘[The complainant] said that you’ve been touching her inappropriately’. And he was like, ‘What are you guys saying, is this a joke’. I said, ‘No, no. She's just told us’. And he got up and he went to the bathroom and he was sick. And then he came back and he’s like, ‘No, no, no - I wouldn't done anything’. I said, ‘Well she said you have and you’ve been doing it for a long time, even last night. She said that you'd done something to her". And he was like, ‘No way, no way’. And I said, ‘Well I have to ring the police’.”

130. The complainant heard the applicant outside her bedroom door “begging [her] to come outside and explain [herself]”. She also heard him denying her allegations.

131. Before phoning the police, the complainant’s mother spoke to the complainant. Her mother’s evidence was:

“I said to her, ‘I've gotta call the police’ and she says, ‘No mummy, you don't have to call the police. I just want daddy to go away from me’. … I sort of just said, ‘Well, you know, I hope you're telling the truth because the police - the police are coming and you have to tell them stuff as well’. … She said, ‘Yes mummy. Yes mummy, daddy did those things’.”

The report to police on 20 July 2020

132. As a result of what the complainant told her mother, her mother called the police who came to her home. In cross-examination, the complainant said that she had told her mother that she did not want her to call the police and she did not want the police to be involved, and it came as a shock to her that she did. In re-examination, the complainant explained this answer by saying:

“I was still scared about what would happen. I wasn't ready for telling the police. … I was worried about what my dad was going to do when I had been telling all of these and then getting the police involved. … I was also scared of losing my family.”

133. When the complainant’s mother was cross-examined about calling the police, she said:

“I was going to call them anyway cause, you know, I just thought, well, something has to be done. We can’t – one’s saying yes; one’s saying, no, so, I said, well, we’ll have to call the police. … [The applicant] said, ‘Well, call them then. I’ve got nothing to hide. I haven’t done anything.’ I said, ‘Well, I'm going to call them anyway.’”

134. The complainant’s mother also said that the complainant said, “Why did you call the police? I just wanted him away from me.”.

135. BM recalled that after he finished work on 20 July 2020 at about 9.30pm, he went home to find “the cop car is outside and forensics and all that”. He was told that he was not permitted to go inside.

The police investigation

136. Detective Senior Constable Goya Hedayat was the officer in charge of the investigation into the applicant. He confirmed that Mount Druitt police received a call from the complainant’s mother at about 8pm on 20 July 2020 concerning an allegation of sexual abuse. Detective Hedayat attended the complainant’s home at about 8.30pm with Leading Senior Constable Tariq Luqman, Detective Senior Constable Liam Daley and Constable Benjamin Holl. Detective Daley spoke to the applicant and the discussion was recorded by a body-worn camera. The audiovisual recording was played to the jury.

137. Detective Hedayat gave evidence that he had tried to obtain statements from MM and LM but his attempts to contact them to do so had been unsuccessful.

138. When the police came to her house on 20 July 2020, the complainant told the police a few things and showed them where her bedroom was. The police took some photographs. She also identified a green blanket and a grey blanket, which had been on her bed and not washed for a considerable time. Afterwards, she went with police to the Mount Druitt Police Station where a statement was taken.

139. The complainant’s mother confirmed in her evidence that the police had taken her and the complainant to the Mount Druitt Police Station, where she was taken into another room (separate from the complainant) where she was asked questions.

140. At 10.10pm that same evening, Benjamin Reid, a crime scene officer employed by the NSW Police Force, attended the house and collected and examined physical evidence. As a result of speaking with Detective Senior Constable Liam Daley, Mr Reid became aware of an allegation that masturbation had occurred in a bedroom. Mr Reid was subsequently joined at the residence by Leading Senior Constable Zoe Wells.

The applicant’s arrest and participation in a recorded interview

250. Ms Hogan submitted that because there was no evidence of the applicant having sexually offended against any child other than the complainant or JL (whose evidence she submitted ought not be accepted), the tendency to be sexually attracted to young females and to act on that sexual attraction had not been established. Further, she relied on the evidence, including of LM and MM, of witnesses who were not aware of any inappropriate conduct between the applicant and their children.

251. The first answer to this is that, in my view, the verdicts of guilty were reasonable even if the tendency evidence is put to one side. However, it does not follow from the lack of evidence of other offending (beyond the complainant and JL) that the applicant did not have paedophilic tendencies. After all, it was open to the jury to accept that the disclosure which the complainant made to her mother on 20 July 2020 was the first the mother had heard of this, notwithstanding that she had lived in the same house with the applicant and the complainant throughout.

252. Further, it was open to the jury to accept JL’s evidence. She came forward and made the disclosure about what had happened to her 32 years previously in circumstances where she had never before disclosed this. It was open to the jury to reject the postulated motive for the disclosure (that JL was in cahoots with MB, who did not like the applicant) and consider that JL was a truthful witness who came forward because she believed (correctly) that her evidence was relevant to the complainant’s allegations. It was also open to the jury to regard the different assessments made by different witnesses as to who was close to whom as incapable of diminishing the credibility of any of them and reflecting the type of variation you would expect in an assessment of social interaction from different participants, each of whom might be telling the truth as they saw it.

Additional matters

253. In addition to the matters referred to above, Ms Hogan submitted that it was not open to the jury to convict the applicant of count 6, given her evidence about the degree of penetration of the applicant’s penis into her genitalia. The direction given by the trial judge as to this matter is extracted in the portion relating to the summing up. No objection was taken to the form of the direction before the trial judge or in this Court, which accorded with the definition of sexual intercourse in s 61H(1)(a) of the Crimes Act (as it then applied) which means “sexual connection occasioned by the penetration to an extent of the genitalia of a female person … by … any part of the body of another person”. Having regard to the complainant’s evidence, extracted above, it was open to the jury to accept that evidence and find that the Crown had proved beyond reasonable doubt that the applicant did have sexual intercourse with the complainant.

Conclusion

254. Save as to the conviction of count 5, in so far as it pertains to the age of the complainant at the time of the commission of that offence, I am satisfied, having reviewed all of the evidence in the trial, that it was open to the jury to be satisfied of the guilt of the applicant on all counts. With that single qualification, I do not have any doubt of the guilt of the applicant on any of the counts.

The challenge to the conviction on count 5

255. Ms Hogan submitted that the evidence adduced by the prosecution was insufficient to prove beyond reasonable doubt that the complainant was under 14 years of age when count 5 was committed. While the Crown endeavoured to persuade this Court, by reference to the time within which the complainant engaged in acts of self-harm, that the offence could have been committed when the applicant was 13 years old, the evidence was insufficient to exclude the possibility that the offence was committed after the complainant turned 14.

256. I reject Ms Hogan’s submission that it ought be inferred that the return of a guilty verdict on count 5 indicated that the jury either acted irrationally generally or that they did not accept the complainant as a witness of truth. The complainant’s evidence, as referred to above, was that this count happened when she was “13 or 14”. It was this (understandable) uncertainty, which the jury was entitled to accept as honest, as to her precise age which gave rise to the alternative count.

Conclusion on count 5

257. Because of my view that the evidence was not capable of establishing beyond reasonable doubt that the complainant was under 14 years when count 5 was committed, it is necessary to quash the conviction on that count and address the alternative count.

258. I consider that, once it was appreciated that the evidence was incapable of establishing beyond reasonable doubt that the complainant was under 14 years at the relevant time, the Crown in the present trial ought to have withdrawn count 5 from the indictment and substituted a charge under s 66C(4) for the withdrawn charge under s 66C(2). This would have been a preferable course to the concession made in the Crown’s closing address about the complainant’s age and would have removed the risk of the jury returning an unreasonable verdict on count 5. I note for completeness that a trial judge does not have power to direct a verdict of acquittal solely on the basis that a verdict of guilty would be unreasonable in the circumstances: Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).

The statutory alternative to count 5

259. There was no challenge to the trial judge’s ruling that the alternative count (based on s 66C(4) of the Crimes Act) could be left to the jury. Because it returned a guilty verdict in respect of count 5, the jury did not need to consider the statutory alternative. However, as the conviction for count 5 needs to be set aside, the question arises as to what this Court ought do with the statutory alternative.

260. The Crown submitted that the Court ought find the applicant guilty of the statutory alternative and enter a verdict on the alternative count. The Crown also submitted that this Court did not have the material germane to re-sentencing on the alternative count and that, accordingly, the matter ought be remitted to the trial judge for sentence.

261. Ms Hogan submitted that once count 5 is set aside, there is no remaining alternative count because this Court could not be satisfied that the jurors would have been unanimous in finding that the complainant was between 14 and 16 years (as specified in s 66C(4)) rather than between 10 and 14 years (as specified in s 66C(2)). Accordingly, she submitted that the conviction on count 5 ought be set aside and the matter remitted to the trial judge for sentence.

262. The Crown accepted that, by reason of Stephens, it could not rely on s 80AF of the Crimes Act, as the trial had already commenced before reliance was foreshadowed. However, the Crown submitted that the statutory alternative was available and relied on Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24 (Gilson) and R v JGW [1999] NSWCCA 116 (JGW).

Gilson

263. In Gilson, the appellant, Gilson, was charged in the alternative with the common law offences of stealing and receiving stolen goods in South Australia. The evidence was consistent with either charge. The trial judge directed the jury that if they were satisfied that Gilson was guilty of one or other of the offences, they were obliged to determine, on the balance of probabilities, which one of them he committed and convict him of that one. The jury returned a verdict of guilty of receiving. The appellant appealed on the ground that the direction was erroneous because of the reference to the balance of probabilities. The High Court dismissed the appeal, holding that although the direction was erroneous, there was no substantial miscarriage of justice as the offence of receiving was clearly the lesser offence.

264. In coming to this conclusion, the Court noted various solutions to the problem. One was that where a jury is unsure of the guilt of the accused on one or other of two alternative offences, the accused ought be acquitted of both: see R v Bruce [1988] VR 579 at 601. The Court also reviewed the legislative solutions (applicable in Queensland and Western Australia) which provided that where stealing and receiving property were charged in the alternative and the jury found specially that the accused either stole the property or received it knowing it to be stolen, but were unable to say which of those offences was committed, the accused is not entitled to be acquitted, but the court shall enter a conviction of the offence for which the lesser punishment is provided.

265. The Court in Gilson noted that there was no corresponding legislative provision in South Australia. The plurality (Mason CJ, Deane, Dawson and Toohey JJ) said at 363:

“It is clearly unsatisfactory to require a jury to acquit an accused entirely when they are convinced beyond reasonable doubt that he was guilty of either theft or receiving, merely because, as a result of being required to apply the same standard of proof, they cannot determine which offence he committed. The law must surely be brought into disrepute if it is so bereft of answers that an accused who is clearly guilty of one offence or the other is allowed to escape conviction altogether.”

266. The plurality held at 364, that, where there are alternative charges, the trial judge should direct the jury which of the offences they should regard as the less serious and the jury should be instructed that if they are satisfied beyond reasonable doubt that the accused is guilty of one or other of the offences but are unable to say which, they should return a verdict of guilty of the less serious offence: see also Brennan J at 369 and Gaudron J at 370.

267. It was accepted that in the present case the trial judge did not direct the jury in accordance with Gilson, that is, the trial judge did not tell the jury that if they were satisfied that the applicant was guilty of either an offence under s 66C(2) or s 66C(4) but could not decide which, they ought return a verdict of guilty in respect of the less serious offence (s 66C(4)). Rather, the trial judge gave the direction set out above, which did not give the jury any guidance as to how they should return a verdict if there was no unanimity on the age of the complainant (by reference to the applicable charge). This omission may explain the verdict which was returned.

268. The correctness of Gilson has not been doubted. However, in R v Marijacevic (2001) 3 VR 611; [2001] VSCA 188, the Victorian Court of Appeal held that it did not apply to statutory offences in Victoria because of the particular statutory wording. I do not consider that this qualification to the application of Gilson affects the present case because the difference between the principal count 5 (s 66C(2)) and the statutory alternative (s 66C(4)) relates only to the age of the complainant and not to any other element of the offence. Further, the statutory alternative is expressly authorised by s 80AB(9).

JGW

269. In JGW, this Court addressed a similar issue to that which has arisen in the present case. The appellant, JGW, was, relevantly, convicted of a count 4 on indictment which charged attempted homosexual intercourse with a child under the age of 10 years contrary to s 78H of the Crimes Act. The complainant, NW, said that he was “about 10” when the offence occurred. Wood CJ at CL (Barr and G James JJ agreeing) said, at [84], that because the evidence left open the possibility that the offence was committed when the complainant was 10, the verdict was “unsafe and unsatisfactory” because the offence required proof beyond reasonable doubt that NW was under the age of 10 years.

270. His Honour continued:

“85 However, since the jury were satisfied that the conduct charged did occur, the appellant would properly have been convicted of the alternative and lesser offence available under s 78K Crimes Act, ie homosexual intercourse with a male person aged ten years or over but less than eighteen years. A conviction for this alternative is permissible under S 78J Crimes Act 1900. Although raised peripherally in argument, and not subject to any considered submission, I am not persuaded by the proposition that where the jury are satisfied that the conduct charged did occur, but are left uncertain whether the complainant was aged under or over ten years, they must return a verdict of acquittal of any offence.

86      The age is a matter of aggravation, attracting additional consequences by way of penalty. Where the jury is in doubt only as to whether the complainant was of an age that would attract an aggravation of penalty, then I am of the view that they could convict of the lesser offence, i.e. without the factor of aggravation.

87      For these reasons, I would uphold the appeal against conviction in respect of count four, and substitute therefore a conviction for homosexual intercourse with a male aged between ten years and under eighteen years.”

271. Although the question was not specifically addressed in JGW, it is necessarily implicit in the Court’s reasons that it was not necessary for the Crown to prove that the victim was above the age of 10 years before a verdict of guilty could be returned for an offence under s 78K of the Crimes Act (as long as the Crown could prove that the victim was under the age of 18 years).

272. While Gilson was not referred to in JGW, the same approach was adopted in JGW. In JGW because the jury could not have convicted JGW of the more serious offence (s 78H), but its (unreasonable) verdict of guilty in respect of count 4 indicated that it was satisfied beyond reasonable doubt of all other elements of that offence, this Court could set aside the conviction of the s 78H offence and enter a conviction of the lesser offence: namely the offence contrary to s 78K which criminalised “homosexual intercourse with a male person of or above the age of 10 years, and under the age of 18 years”. In JGW, this Court relied expressly on the provisions of s 78J(1) which provided:

“(1) Where on the trial of a male person for having homosexual intercourse with a male person under the age of 10 years, the jury is satisfied that the secondmentioned person was of or above that age, but under the age of 18 years, and that the accused had homosexual intercourse with that person, it may acquit him of the offence charged and find him guilty of an offence under section 78K, and he shall be liable to punishment accordingly.”

273. The Court in JGW held that a conviction for the alternative (lesser) offence was permissible under s 78J. The age of 10 years constituted the division between an offence under s 78H and an offence under s 78K. Because JGW is directly analogous to the present case and is, in my view, consistent with the approach in Gilson, this Court ought set aside the verdict in respect of count 5 and substitute a verdict in respect of the statutory alternative, being an offence contrary to s 66C(4), as authorised by s 80AB(9).

274. Although s 7(2) of the Criminal Appeal Act empowers the Court, when it substitutes a verdict found by the jury for a verdict of another offence, to pass sentence in substitution for the sentence that was passed as is warranted, this Court does not have the requisite material before it to perform such a task. Further, it is desirable that the applicant and the Crown have the opportunity to have that task performed by the trial judge, or another judge of the District Court in order to preserve their rights of appeal to this Court. Accordingly, it is appropriate for this Court to remit the matter to the District Court for sentencing under s 12(2) of the Criminal Appeal Act: see the authorities referred to in Sivaraja v R; Sivathas v R [2017] NSWCCA 236 at [195] (Meagher JA, R A Hulme and Beech-Jones JJ).

275. Although s 7(2) of the Criminal Appeal Act provides that the substitution of the verdict be done “instead of allowing or dismissing the appeal”, I consider that the appeal ought be allowed, as it was in JGW (when s 7(2) of the Criminal Appeal Act was in the same form), to indicate what has occurred.

276. I should add for completeness that I do not regard the unavailability of s 80AF as affecting my conclusion. The High Court held in Stephens that the provision was not, as a matter of construction, intended to apply after a trial has commenced.

Proposed orders

277. For the reasons given above, I propose the following orders:

1. Grant leave to appeal and allow the appeal against the conviction in respect of count 5.

2. Set aside the conviction in respect of count 5 and, instead, convict the applicant of the statutory alternative to count 5 namely an offence contrary to s 66C(4) of the Crimes Act 1900 (NSW) of unlawful sexual intercourse with a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely that the complainant was under the applicant’s authority.

3. Otherwise dismiss the appeal.

4. Remit the matter to the District Court arraignment list at 9.30am on 16 August 2024 for the applicant to be sentenced in accordance with law.

278. DHANJI J: In this matter I have had the considerable benefit of reading the reasons of Adamson JA in draft. I agree with the orders proposed by her Honour and generally with her Honour's reasons. With respect to the verdicts on each of the counts other than count 5, I would add only the following. Various arguments were raised by the applicant as to why these verdicts were unreasonable. I largely agree with Adamson JA as to the weight to be given to these arguments. In a case such as the present, some aspects of the evidence may legitimately be argued to be implausible or to expose a question as to a complainant's credibility. Whether such an argument is effective will depend on all the circumstances of the case. That is, as the High Court said in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], in a case such as this, this Court:

“… proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

279. Subject to what follows as to count 5, this was not a case where the matters raised by the applicant satisfy me that the jury ought to have entertained a reasonable doubt as to proof of the applicant's guilt.

Count 5

280. For the reasons given by Adamson JA, the verdict of guilty to count 5 was unreasonable. It was not open to the jury (in the sense that expression is used in M v The Queen (1994) 181 CLR 487; [1994] HCA 63) to be satisfied beyond reasonable doubt that the complainant was under the age of 14 at the relevant time. An element of the offence against s 66C(2) of the Crimes Act 1900 (NSW) was not established. This then raises the conundrum of whether a verdict for the less serious offence against s 66C(4) can be substituted by this Court pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW). There are three preconditions to the operation of s 7(2): that the “appellant has been convicted of an offence”; that “on the indictment the jury could have found the appellant guilty of some other offence”; and that “on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence”.

281. It is the last of the above preconditions that is in issue in the present matter. The question is, must the jury have been satisfied the applicant committed an offence against s 66C(4) on the facts found by them? The jury, in finding the applicant guilty of the s 66C(2) offence, were satisfied of each of the elements of that offence, including that the complainant was under the age of 14. Could it be said they were necessarily satisfied of an offence against s 66C(4), which, on the face of it, requires satisfaction that the complainant was of or above 14 years of age (and under 16 years of age)? The question is, in my view, resolved by the proper construction of s 66C(4).

280. Section 66C(4) provided as follows:

66C Sexual intercourse–child between 10 and 16

…

(4)    Child between 14 and 16—aggravated offence Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years.

283. Read literally and in isolation, this appears to require proof by the Crown, both that the complainant was of or above the age of 14, and under the age of 16. To read the provision literally and in isolation is not the proper approach to statutory construction: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382; [1998] HCA 28 per McHugh, Gummow, Kirby and Hayne JJ; Xerri v R (2021) 292 A Crim R 355; [2021] NSWCCA 268 per Hamill J at [158]-[163]. The task is to be approached in the manner described by Kiefel CJ and Keane J in The Queen v A2; Magennis, Vaziri (2019) 269 CLR 507; [2019] HCA 35, where their Honours said (at [32]-[33]):

“32 The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

33    Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve (footnotes omitted).”

284. To similar effect Bell and Gageler JJ said (at [124]):

“The principles of interpretation were not in issue on the hearing of the appeals. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of context in its widest sense and the purpose of the statute informs the interpretative task throughout. That consideration, and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words. Purposive construction, however, does not extend to expanding the scope of a provision imposing criminal liability beyond its textual limits (footnotes omitted).”

285. Section 66C was, at the relevant time, in Division 10 of Part 3 of the Crimes Act. Part 3 was headed “Offences against the person”, while Division 10 was headed “Offences in the nature of rape, offences relating to other acts of sexual assault etc”. Within Division 10, s 66A to s 66EB created a number of offences with respect to sexual misconduct against children. Those offences were, by reference to the section headings: “Sexual intercourse – child under 10”; “Attempting, or assaulting with intent, to have sexual intercourse with child under 10”; “Sexual intercourse – child between 10 and 16”; “Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16”; “Alternative verdicts”; “Persistent sexual abuse of a child”; and “Procuring or grooming child under 16 for unlawful sexual activity”. For the purposes of the present analysis it necessary to set out only the offences created by s 66A(1) and (2), s 66B, s 66C(1)-(4):

66A    Sexual intercourse–child under 10

(1)    Any person who has sexual intercourse with a child who is under the age of 10 years is guilty of an offence.

Maximum penalty—imprisonment for life.

(2)    A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life.

…

66B    Attempting, or assaulting with intent, to have sexual intercourse with child under 10

Any person who attempts to have sexual intercourse with a child who is under the age of 10 years, or assaults a child who is under the age of 10 years with intent to have sexual intercourse, shall be liable to imprisonment for 25 years.

66C    Sexual intercourse–child between 10 and 16

(1)    Child between 10 and 14 Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years.

(2)    Child between 10 and 14–aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years.

(3)    Child between 14 and 16 Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years.

(4)    Child between 14 and 16–aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years.

…

286. It is plain that these offences are concerned with criminalising sexual intercourse (as relevantly defined) with children under the age of 16. The provisions do this by creating a range of offences which provide for increased penalties for the aggravated forms of the offences in s 66A and s 66C, and as presently relevant, the extent to which the child is below the age of 16. It is not part of the purpose of the provisions to criminalise intercourse with persons above a certain age.

287. Turning to s 66C(4) the words of the provision do two things. They create an offence and they provide a maximum penalty for that offence. Given the purpose and context in which s 66C(4) appears, is clear that it provides the following elements of an offence:

1. The accused had sexual intercourse with another person;

2. That person was under the age of 16; and

3. Circumstances of aggravation applied.

   288. The words “of or above the age of 14”, in my view, do not create a further element. Those words are relevant only for the purposes of providing a demarcation from the offence in s 66C(2) for the purposes of penalty. If the offence created by s 66C(2) cannot be proved only due to an inability to prove the complainant was under the age of 14, the accused will be guilty of an offence against s 66C(4), provided it can be proved the complainant was under the age of 16. That was the case here.

   289. In expressing the above view, I am aware that, on my construction, there would have been no need for the legislature to introduce s 80AF, in so far as that provision applies where there is uncertainty as to age. The legislature’s perception as to the need for such a provision at the time it was enacted, however, provides no assistance as to the proper construction of s 66C as it stood at the relevant time, prior to the introduction of s 80AF.

   290. It might also be thought, having regard to the length of time such provisions have been in force, that it is somewhat surprising that, if my construction be correct, it has not been stated in this manner before. The only authority directly relevant to the issue to which this Court was directed was R v JGW [1999] NSWCCA 116, noting the Crown also relied on Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24. In R v JGW, the complainant said he was “about 10” at the time of the relevant conduct, leaving open the possibility he was 10 years old in the context of an offence that required proof he was less than that age. Wood CJ at CL, with whom Barr and Greg James JJ agreed, said (at [85]-[86]):

   “85 … since the jury were satisfied that the conduct charged did occur, the appellant would properly have been convicted of the alternative and lesser offence available under s 78K Crimes Act, ie homosexual intercourse with a male person aged ten years or over but less than eighteen years. A conviction for this alternative is permissible under s 78J Crimes Act 1900. Although raised peripherally in argument, and not subject to any considered submission, I am not persuaded by the proposition that where the jury are satisfied that the conduct charged did occur, but are left uncertain whether the complainant was aged under or over ten years, they must return a verdict of acquittal of any offence.

   86    The age is a matter of aggravation, attracting additional consequences by way of penalty. Where the jury is in doubt only as to whether the complainant was of an age that would attract an aggravation of penalty, then I am of the view that they could convict of the lesser offence, i.e. without the factor of aggravation.”

   291. Whilst expressed briefly, his Honour's reasoning is consistent with my own.

   292. Given my view of the proper construction of the provision, there is no need for recourse to any principle derived from Gilson v The Queen. The jury were satisfied of facts that would render the applicant liable to conviction for an offence against s 66C(4) of the Crimes Act.

The effect of the applicant's partial success in relation to count 5.

293. I have considered whether the doubt the jury should have experienced on count 5, causes me to have a doubt as to any of the other offences on the indictment. It does not. While the conviction on count 5 raises a concern as to the jury's approach to their task, the evidence in relation to the other counts was sufficiently cogent that I do not harbour a doubt as to the applicant's guilt with respect to those counts.

294. I agree with the orders proposed by Adamson JA.

295. SWEENEY J: I have had the advantage of reading in draft the judgment of Adamson JA. I gratefully acknowledge her Honour’s detailed analysis of the evidence in the trial and the issues in the appeal.

296. I have also had the benefit of reading in draft the judgment of Dhanji J and am grateful to his Honour for his consideration of the statutory provisions underlying Count 5 and its alternative.

297. Having conducted my own independent assessment of the evidence I am of the view that, leaving aside Count 5, the verdicts were not unreasonable. I agree with that conclusion by Adamson JA and the conclusions of her Honour and Dhanji J in respect of Count 5 and its statutory alternative.

298. I agree with the orders proposed by Adamson JA.

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Decision last updated: 07 August 2024