RR v R - [2011] NSWCCA 235

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RR v R [2011] NSWCCA 235
Hearing dates: 8 September 2011
Decision date: 08 December 2011
Before: Bathurst CJ at [1]; James J at [127]; Johnson J at [128]
Decision:
(1) Appeal against conviction dismissed.
(2) Leave to appeal against sentence granted, appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal - conviction - evidence - false statements - whether false statements could be lies evidencing consciousness of guilt

CRIMINAL LAW - appeal - conviction - whether misdirection in presentation of defence case in summing up to jury

CRIMINAL LAW - appeal - conviction - objections not taken below - whether miscarriage of justice - Criminal Appeal Rules r 4
CRIMINAL LAW - appeal - sentencing - whether manifestly excessive - Crimes Act 1900 s 66A
Legislation Cited: Court of Appeal Act 1912
Criminal Appeal Rules
Criminal Procedure Act 1986
Crimes Act 1900 s 61M(2), s 66A, s 66C(1)
Cases Cited: CC v R [2010] NSWCCA 337
Condon v R (1995) 83 A Crim R 335 Darwiche v R [2011] NSWCCA 62
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
Edwards v R [1993] HCA 63; (1993) 178 CLR 193
Eedens v R [2009] NSWCCA 254
Germakian v R [2007 NSWCCA 373; (2007) 70 NSWLR 467
Han v R [2009] NSWCCA 300 Hili v R; Jones v R [2010] HCA 45; (2010) 85 ALJR 195
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v R [2011] HCA 39; 85 ALJR 1154
Pemble v R [1971] HCA 20; (1971) 124 CLR 107
Picken v R [2007] NSWCCA 319
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472
Tekely v R [2007] NSWCCA 75
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Araya [2005] NSWCCA 283; 155 A Crim R 555
R v Cook [2004] NSWCCA 52
R v Davis [1999] NSWCCA 15
R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310
R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
R v Heyde (1990) 20 NSWLR 234
R v HJWG [2011] NSWCCA 50
R v ITA [2003] NSWCCA 174
R v Lane [2011] NSWCCA 157
R v Lucas, (Ruth) [1981] 1 QB 720
R v Morgan (1993) 70 A Crim R 368
R v PGM [2008] NSWCCA 172
R v Sutton (1986) 5 NSWLR 697
R v Tillot (Court of Criminal Appeal, 8 April 1991, unreported)
R v Veverka [1978] 1 NSWLR 478
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260
R v Zorad (1990) 19 NSWLR 91
RPS v R [2000] HCA 3; (2000) 199 CLR 620
Stock v R [2011] NSWCCA 49; 206 A Crim R 574
Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: RR - Appellant
Regina - Respondent Crown
Representation: Counsel
A Francis - Appellant
J Pickering - Respondent Crown
Solicitors
Legal Aid Commission - Appellant
Solicitor for Public Prosecutions - Respondent Crown

File Number(s): CCA 2008/11347
Decision under appeal

Before:

Hock DCJ

File Number(s):

CCA 2008/11347

Judgment

BATHURST CJ: On 14 September 2009 the appellant was arraigned before her Honour Judge Hock at the Newcastle District Court on the following charge:

"That he on 22 March 2008 at [RT] in the State of New South Wales, did have sexual intercourse with [MW], she then being under the age of 10 years.

Section 66A Act No. 40/1900."

Section 66A of the Crimes Act 1900 carries a maximum penalty of imprisonment for 25 years, with a standard non-parole period of 15 years.

The appellant pleaded not guilty but was found guilty by a jury on 18 September 2009.

On 23 April 2010, the appellant was sentenced to a term of imprisonment consisting of a non-parole period of nine years to commence from 10 October 2008 and to expire on 9 October 2017, with a balance of term of three years to expire on 9 October 2020.

The appellant has appealed against conviction and sought leave to appeal against sentence. His appeal against conviction relies on two grounds:

(1) Her Honour erred in allowing the prosecution to rely upon the appellant's denial as a lie evidencing a consciousness of guilt and, consequently, erred in giving a "lies used as evidence of a consciousness of guilt" direction.

(2) In summing up, the trial judge failed to properly put the defence case.

The evidence at the trial

Having regard to the nature of the grounds of appeal it is necessary, in my view, to consider the evidence placed before the Court at the trial, the closing by each of counsel for the Crown and the appellant, and the directions given by her Honour to the jury.

Primary reliance was placed by the Crown on the evidence of the complainant MW. In fact, she did not give evidence at the trial but rather a DVD of her evidence at a previous aborted trial for the same offence was played before the jury.

The evidence given by MW in chief primarily consisted of verifying a record of interview which took place between her and a Detective Senior Constable Aitken on the evening of 22 March 2008, the day the incident in question occurred.

During the course of the interview MW said she was playing hide-and-go-seek with the appellant's seven year old son, LR, at the rear of the appellant's premises. She said she went to hide in the shed, which she described as a room with a microwave, air-conditioner, PlayStation, TV, blanket, lounges, tools and clothes. She said the appellant was in the shed, that he was wearing bluey black pants and a shirt, and that "there was a hole in his pants too when he did it ... where his rude part was" (interview Q 144 - Q 148). She said he was standing in front of her and she was also standing (Q 230). She stated that he covered her mouth with his hand so she could not say anything, put a red blanket taken from the lounge over her head, told her to open her mouth wide and then put his "rude part" or "doodle" in her mouth (Q 90 - Q 230). In the interview, she said she knew that "dick" was another word for "the rude part" or "doodle" (Q 159), and circled where his "rude part" was on a diagram of a boy given to her by the police officer (this diagram was in evidence before the jury). She said that she had said no to the appellant but he just yelled at her and she had to do it (Q 175). She said that he moved it back and forward in her mouth for a little while (Q 179 - Q 181), and had his hands on top of her head "tight ... Just holding it down" (Q 235 - Q 237). She said that "nothing came out of his doodle before he stopped" (Q 201). When he stopped she asked if she could watch a movie with LR inside (Q 189) and he said yes (Q 202). She stated he said "Don't tell our secret", "don't tell anybody" (Q 137, Q 203). MW said she felt terrified "Cause he did it"(Q 209 - Q 210). She said when she went with LR to watch the movie she then said "can I go to mum first and then [LR] said yes" (Q 202). She said she then went home and told her mother what had happened (Q 139 - Q 140).

During the course of the interview the following exchange occurred:

"Q78 OK. So, can we make an agreement today to only tell the truth, to only tell what actually happened?

A About [the appellant]?

Q79 Yep, yep. Just tell, tell the truth. Can we make an agreement to do that?

A He forced my head, pushed my head down, made me suck it.

Q80 OK.

A That's the real truth.

Q81 OK.

A I ... the words, ... mum ... going ... ..., say 'em.

Q82 Yep. OK.

A I said, I know the words mum."

MW's mother, LW, was not in the room at the time of interview. Defence counsel relied upon this exchange, particularly the words "I know the words mum", in closing to suggest that LW had coached or otherwise influenced MW's evidence.

In cross-examination she was asked if she had practiced what to say with her mother or anyone else before going to see the policeman:

"Q: And before you went to see the policeman that night did you practice what you were going to say to the policeman?

A: No.

Q: Did you practice with mum or anyone else?

A: No."

In cross-examination it was suggested to her that she was playing with LR at the front of the appellant's house but she maintained she was playing at the back. She agreed that she often played hide-and-seek with LR, sometimes outside, sometimes in LR's house and sometimes in the shed. She agreed that on the day in question she was playing dirt castles with LR and got dirty hands and dirty clothes and that the appellant told her and LR to go inside and wash their hands because the rain was getting heavy. She agreed that thereafter she went inside to watch a DVD, but the power and lights were off for a time and then the lights subsequently came back on. She agreed that after the DVD started she said to LR she wanted to go home to see her mother.

Subsequently in her cross-examination she stated that she played hide-and-seek before she and LR washed their hands. She rejected the suggestion that the hide-and-seek game could have taken place on another day. She also stated that she was sure that the blanket she saw in the shed was a red one, not a blue one.

MW was then asked whether she recalled an incident which occurred on another day. She agreed she remembered playing hide-and-seek and on that day she was sitting on the appellant's lap under a red blanket. She said that she was not sure whether the blanket in question on that day might have been blue not red. She again, however, asserted that she was sure she was playing hide-and-seek on the day in question. At the conclusion of her cross-examination the following exchange occurred:

"Q: [MW], nothing bad happened on this day, did it?

A: I'm not sure.

Q: Well you've told use that [RR] made you suck his doodle?

A: Yeah.

Q: And you're only a little girl and I don't want to get you confused. Do you remember telling the police that?

A: Yeah.

Q: [RR] really didn't do that, did he?

A: I didn't hear you.

A: [RR] didn't really do that, did he?

A: I'm not sure."

However, in re-examination she was asked the following question without objection:

"Q: Now at the end of my friend's question of you, he asked you - he said to you 'You told the police that [RR] sucked your doodle - [RR] made you suck his doodle' and you said yes. And then he put to you that he didn't really do that and you said you weren't sure. Now what did you mean by that? Are you saying to the jury that you aren't sure whether [RR] made you suck his doodle that day?

A: He did."

The appellant's mother LW gave evidence. She said that she and her family including MW lived across the road from the appellant and that on the day in question she gave MW permission to go to the appellant's premises and play with LR.

She said she was away from her house for about 15 minutes and she saw MW about 2 1/2 minutes after she returned. She stated that MW appeared to be white, scared, crying and angry and that she told her that "[RR] made me suck his cock". She said MW told her that:

"she was playing hide-e-go-seek with [LR] and [LR] was counting and that she had asked [RR] where to hide and [RR] said 'You can hide here in the shed' ... She said that he had made her, he yelled at her for her to suck his dick and then she continued saying how he was making her, he was going back and forth motion. She told me that she didn't like it and I told her that what he had done wasn't right and that we would talk to the police about it and get something done about it. ... She told me that [RR] was standing in front of her, he told her to hide in the shed and to sit down on the lounge or chair that he had in the shed he threw a blanket over the top of her head, and then he did the back and forth motion and nearly made her feel sick ... I'd asked her where [LR] was at the time and she said she didn't know, that she'd just come straight home to tell me."

She stated that she went to the appellant's home and that the appellant was standing in the doorway saying, "I didn't do it. I didn't do it" or "I didn't know nothing about it". She claimed she said "That's not what my daughter's saying to me at the moment. She's come home in a hysteric mess and she's confused and upset and she's just told me that this is what you made her do". She said that the appellant said MW had walked into the toilet while he was having a pee.

After this occurred she rang the police and told them her daughter had been sexually assaulted.

LW was then permitted to refresh her recollection from a statement she made on the date of the incident. She said having read that statement that MW said that the appellant was yelling at her while he was in the process of doing it to open her mouth wider and that he told her to keep it a secret.

LW was cross-examined extensively about the terms of the conversation that she had with the appellant. She agreed that as she approached him she said "You, you bastard" and that the appellant said, "What have I done". She stated that when MW came to her house she used the word "doodle" not "rude part".

She rejected the contention that RR did not say to her anything about taking a pee in the toilet. However, she agreed that after the appellant denied the incident she said, "That's a load of crap she's in tears" and that he said, "That's not true, that's not true" and "I didn't do it. I didn't do it". She agreed that her statement to the police did not talk about taking a pee in the shed but she denied that was a lie. She agreed that she spoke to MW about the incident after the police arrived and before the formal interview, but maintained that MW told her about RR "making her suck his doodle" before LW asked her about it.

In those circumstances, the critical challenges to MW's evidence were first that the appellant said to her "What have I done" rather than "I didn't do it" when he was initially challenged, and that she lied when she said that the appellant said to her that MW came across him when he was in the toilet in the shed.

The appellant's son LR gave evidence. In chief he said that he was playing dirt games and monkeys in a barrel with MW in the little patch of dirt in his backyard. He said at the time his father was either in the shed or standing in front of the shed. He said that when RR was in the shed he was sitting down.

LR said that at some point the appellant asked him and MW to go inside. They did and he (LR) put a DVD on, but MW said she would check if her mother was home.

In cross-examination LR did not accept that he was playing with MW out the front but repeated that they were playing dirt castles near the shed. He stated that the appellant told him and MW to go and wash their hands and after than that they had a go at hide-and-go-seek and then they put on a video or DVD.

He was asked about a previous interview in which he had participated and recalled that he had told the interviewer about a hide-and-seek in the shed and that he had found MW in the shed and under a blue blanket. He affirmed that it was his recollection that this happened on 22 March, which he recalled as the "police incident day" and the "third day of Easter", and that he found MW on the appellant's lap on her knees facing away from the appellant, under the blanket. He said he then had a go at hiding, she found him, they played dirt castles again, and then they went inside. He said that his dad's clothes were sometimes on the floor of the shed, and that when his dad came into the house after they had been sent inside, he had changed clothes.

The former de facto partner of the appellant gave evidence that the appellant kept his work clothes in the shed, that they were rarely washed, and often strewn about the floor. She said the complainant and her son, LR, often played in the shed.

A Detective Sergeant Lawson gave evidence. He attended the home of LW and MW on the afternoon of 22 March. He observed MW sitting with her mother holding her tightly. He recalls MW mumbling something and MW saying, "Blanket over head". He also recalled her saying, "I couldn't see he yelled at me open your mouth". The appellant gave Detective Sergeant Lawson permission to search the shed, which he did. He said the shed was untidy and contained a number of blue blankets. He stated in cross-examination that there were no red blankets there, and that on first arriving at the W premises LW summarised what she said MW had recounted to her, in front of MW.

A Mr Bruce, an analyst at the Division of Analytical Laboratories, gave evidence. He gave evidence that no testing was done on the blankets he received. Testing of semen was conducted on the complainant's dress but no semen was detected.

He gave evidence that DNA was recovered from a tape lift taken from the inside right front area of the appellant's jeans. He said that the DNA appeared to be a mixed profile that originated from two individuals, one male and one female. He stated that the female contributor had the same DNA profile as the complainant and the male contributor of the DNA matched the DNA profile of the appellant. A similar result was obtained from a tape lift taken from the inside left front fly area of the jeans.

Samples were also recovered from tape lifts taken from the outside right front area of the jeans and the outside left fly area. The DNA appeared again to be a mixed profile that originated from two individuals. The major profile was consistent with originating from the appellant and the complainant could not be excluded as the minor contributor. Mr Bruce said the most likely source of the minor contributor's DNA was a high yield source such as saliva, blood, semen or vaginal secretions. Three centimetre-square pieces of the jeans were taken from the inside fly area and tested for the presence of saliva, but none was found.

In cross-examination Mr Bruce agreed it was possible that the minor contributor to the DNA on the inside of the jeans could have deposited that DNA by touch, although it was more likely the source was a high yield source such as saliva, blood, semen or vaginal secretions. He agreed he could not say how long the DNA had been on the jeans.

The appellant did not give evidence but an electronically recorded interview between him and Detective Senior Constables Aitken and Cornes was admitted into evidence.

The appellant stated during that interview that he had come home from his work at the wrecking yards and saw his son LR and MW playing in the front in a mud puddle near the tap (Q 99). He stated that he was in the backyard trying to work out why the power had cut out (Q 101).

The appellant stated he did not take much notice of LR and MW until it started raining (Q 150 - Q 151) and then he walked around the front and told them to get out of the rain and wash their hands (Q 152 - Q 154). He stated that he probably went into the shed to grab some screwdrivers and to check the power board (Q 164).

He stated that when MW went home he was sitting on the front step.

The appellant was asked the following questions concerning whether either MW or LR had been in the shed that afternoon:

"Q213 Whilst you were out in the backyard, did you see [MW] or [LR] out in the backyard?

A Yeah, I told them to go and wash, wash their hands and that.

Q214 OK.

A 'Cause they were covered in mud and it was flogging down rain.

Q215 Yes.

A To get out of the rain.

Q216 And whilst in the shed, did [MW] come in the shed at all?

A No, not that I can recollect, no. No. No.

Q217 No.

A No.

Q218 OK. So whilst, because, I've been informed that whilst, did [MW] and [LR], did they play any games like hide and seek?

A Couldn't tell you.

Q219 OK. So you didn't ask, say, for, for, for [MW] to hide in the, she could hide in the, in the shed?

A No.

Q220 OK. So, I've just been informed that [MW]'s gone into the she [sic] where you were standing.

A No, no, no-one went into the shed this evening.

Q221 Well it's this afternoon I'm talking about

A Yeah. Well -

Q222 When [MW] was there.

A - yeah, well no-one's been in the shed."

During the interview RR persistently denied the allegations against him. His denials are summarised in the concluding portion of his interview:

"Q228 Where you were standing and, facing, facing her, where you've asked her to open, open her mouth. What can you tell me about that?

A I can't tell nothing about it because it's something that never happened.

Q229 OK. She said then what's allegedly happened, that she said, No, so then you've yelled at her, where you've asked, told her to open her mouth, which -

A I don't even raise my voice to my own kids.

Q231 Then after you yelled at her, she has opened her mouth where you've pulled your penis out from a hole in you jeans, so the fly of your jeans, and placed it in her mouth. What can you tell me about that?

A I can't tell you anything, like, [LR], my son and her are thick as thieves.

Q232 Mmm hmm.

A And like wherever she is, he is. And like, you've got me at a loss, like -

Q233 OK.

A - [LR] spoke to his mother and, yeah, what.

Q234 Yes. OK. I'll just finish off. And once, once you've done that, this is what the allegations are, that you've placed a blanket over her head and put your hands on top of her head, put, forcing her head down, and then you've moved her [sic] penis in and out --

A You're kidding me.

Q238 Yes. OK. And then she's, you've told her not to say anything because it was, Our secret.

A No."

Prior to counsels' addresses to the jury, the Crown Prosecutor indicated that she was relying on the material from answers 216-226 of the transcript of the interview of the appellant, where the appellant denied that whilst he was in the shed MW was in the shed with him at all, as a lie evidencing consciousness of guilt; this amounting to a claim that he had no opportunity to commit the offence as alleged by the complainant. Counsel for the appellant responded that he did not think that he could be heard against the Crown in that regard, although he stated that the evidence as recorded was open to at least two interpretations. However, he said he could not oppose a direction concerning consciousness of guilt and, at least implicitly, that the Crown could rely on the evidence for that purpose.

Immediately prior to the commencement of closing addresses to the jury the trial judge said that she would not be "canvassing the evidence in detail with the jury in summing-up so that the parties should take the jury to such parts of the evidence as they see fit." There was no protest to this course.

In her closing address the Crown relied on the following matters as evidence on which the jury could rely beyond reasonable doubt. First, that MW gave credible evidence and was not shaken on any of the key elements of the evidence. Second, the fact that MW made immediate complaint, relying on the evidence of LW and Detective Sergeant Lawson. Third, that MW's evidence was supported by the evidence given by LR, and that when LR came into the shed trying to find MW he found her under a blanket with the appellant. Fourth, the Crown said the DNA evidence supported its case and finally, that the interview with the appellant was at odds with the evidence of LR and MW on key elements. She stated (T 10) that if the jury found that the appellant was untruthful on the key issue of whether he was in the shed with MW and MW was under a blanket, and the jury found that his denial was a deliberate lie told by the appellant out of a consciousness of guilt, it corroborated the Crown case that sexual intercourse with MW occurred.

Later in her closing (T 18-20) the Crown referred to questions 216-226 in the interview and said the jury could find those answers were lies arising out a consciousness of guilt. The Crown said, however, that the jury could only use that material in that way if they found that it was a deliberate lie, that it related to a material issue, that the motivation for telling it must be a realisation of guilt or fear of the truth and that it must be shown to be a lie by evidence independent of the complainant.

Counsel for the appellant in his address requested the jury to look at the whole of MW's evidence, saying he did not propose to quote large lumps of it. However, he made specific reference to that portion of the evidence to which I have referred above where MW said she was not sure if the appellant "didn't really do that". He also referred to the re-examination and to MW's denial that anyone told her what to say coupled with her statement "I know the words mum" and her lack of recollection as to what she meant.

So far as LW was concerned he pointed to the discrepancy in LW's evidence between her saying that after she confronted the appellant he said "What have I done" as compared to "I didn't do it. I didn't do it".

In relation to the evidence of LR counsel for the appellant made the following remarks:

"Now the next witness to give evidence in that chronological order I was talking about, was [LR]. You might have noted that [LR] did not tell a story that might have come from his father. Despite his father telling the police that [MW] and [LR] were like - I'm using paraphrasing here, 'two peas in a pod', they were always together. You will recall that [LR] was not interviewed for some time. There is not one hint, not one suspicion that [RR] on returning home has gone and spoken to [LR] and said, 'This is what you must say'. [LR] has given his little boy version and you would not dismiss it. You would not be dismissive of any of it. You'd look at the contradictions to what is said by [MW], because they are important contradictions.

[LR]'s evidence should concern you because in the important things, they are largely at odds with [MW]. My friend wants to have them mirror images. They are largely at odds with each other. [LR] says that they were outside playing dirt castles, then they played hide-and-seek, this is in the back yard. Keep in mind they were in the front and we know they were playing near the tap, but outside playing dirt castles, then hide-and-seek. He found her in the shed, both my client and [MW] were seated, was [LR]'s memory. [MW] was on his knee. He described in detail the blue two toned blanket you will recall. He then talked about another game of hide-and-seek in which he got to hide. Remember he talked about hiding behind the lounge. Then there were more mud castles. You're dirty, it's going to rain. They washed in the cat's water and went inside and there was a game of hide-and-seek inside where [MW] hid and hid in his sister's bedroom. Then they went to put the DVD on and [MW], before it started, [MW] said she was going home to check if mum was there. Hurry back he said, or words to that effect, was his evidence. And as she went, dad was sitting on the step having a smoke and she went past him to go home. Not that can't sit with [MW]'s version. It can't sit with a terrible assault.

This is your life experiences, this is where your commonsense comes into it. If the crown's version is to be believed, [MW] was terribly assaulted, and then she played another game of hide-and-seek and then she played a game of dirt castles and then they washed their hands and went inside and then they played another game of hide-and-seek in the bedroom and then they put the DVD on and then she said she will go home. How does that sit with your life experiences and your commonsense? How does that sit with what you known to happen in the real world? It's not the way of these things. Commonsense might tell you say. Examination of the evidence would raise the doubt."

So far as the DNA evidence was concerned, counsel for the appellant pointed out that Mr Bruce was not able to say how long it had been there, in what order it was deposited or how it was deposited. Counsel also pointed out that no saliva was detected, that MW's DNA could have been transferred by touch, that MW played in the shed often and that RR's clothes were often strewn about. He said:

"You might be surprised if [MW]'s DNA was not on it, seeing the kiddies apparently played in there regularly.

Certainly it's a shame that there's not tested for [LR]'s and others. Certainly a shame, which might give you great comfort if the inside leg for instance or either of these legs of these trousers had been tested and what say [LR]'s, or what say, what say [MW]'s DNA was found down the back of the calf somewhere... You don't know because the evidence is silent."

In answer to the record of interview and in particular the questions relied on as evidence of consciousness of guilt, counsel for the appellant made the following remarks:

"But let me put it to you that you have a look at what he said and have a look at the way he said it. Have a look at his demeanour, his presentation. He is, in my respectful submission, an open book. 'And whilst in the shed did [MW] come in the shed at all?' Page 18, question 216. 'No, not that I can recollect, no, no, no.' He'd just been finished asking about 'Did you go in the shed? You'd probably been in and out of the shed?' 'Yes, more than likely.' He's not saying, 'I didn't go anywhere near the shed.' He's the one that volunteers about urinating behind the shed but says 'No one walked in on me.' What a great excuse, what a great excuse, maybe that's where she got the seed of the idea of this terrible allegation. He's not looking to create that sort of lie."

The trial judge, in her summing-up, referred to the evidence of Dr Bruce and stated that it was not challenged and, accordingly, "unless it was unbelievable, you [the jury] would have to have a good reason to reject it" (SU 7). In relation to the evidence of MW she emphasised that the Crown depends on her word and therefore it was necessary to look very carefully at her evidence. She referred to MW's evidence in chief and stated that counsel for the appellant relied particularly on the last question "[RR] didn't really do that did he" and MW's answer "I'm not sure". She also referred to re-examination by the Crown Prosecutor, who asked MW "Are you saying that you aren't sure whether [RR] made you suck his doodle that day?", to which MW answered 'He did".

Her Honour noted that in his record of interview the appellant absolutely denied that he committed the offence. She also noted that there was a complete denial of the allegation that he was in the shed with MW.

After referring to this denial the trial judge again emphasised that the Crown case depended very heavily on accepting MW as a witness of truth. She then referred to other evidence which the Crown said supported MW's evidence, the first being immediate complaint. In this context she referred to the evidence of LW, but referred to the fact that counsel for the appellant suggested LW would not be accepted as a reliable witness.

Her Honour then referred to the evidence of LR. She stated that counsel for the appellant suggested LR's evidence did not support the Crown case. She said that counsel for the appellant had reminded the jury that LR said he found MW seated not standing, whereas MW said she was standing in her first account, and that LR's evidence was that she was under a blue blanket whereas the complainant's evidence was that it was a red blanket. She also referred to the fact that counsel for the appellant had reminded the jury that LR's evidence was that they had played other games before MW went home, and that if that was accepted it was inconsistent with MW having been sexually assaulted as she said.

In relation to the DNA evidence her Honour pointed out that counsel for the appellant had referred to the fact that there was no blood, semen or saliva found in testing by the laboratory, and the testing did not establish when the cellular material was placed on the jeans, how long it had been there, or how it came to be there. She also referred to the suggestion that it may have arisen from touching.

Her Honour then returned to that portion of the evidence said to establish consciousness of guilt. In that context she gave a direction consistent with what was suggested by the High Court in Edwards v R [1993] HCA 63; (1993) 178 CLR 193 at 210-211.

At the conclusion of the trial judge's address, counsel for each party were asked whether they wished her to add anything. Counsel for the appellant said that he did not require anything more to be said.

In their deliberations the jury had available to them the DVD of the appellant's interview of 22 March 2008, the DVD of MW's interview of that date, the transcript of the evidence of MW at the previous trial and a transcript of LR's first interview with the police.

The appellant's submissions on the first ground of appeal

The appellant in his written submissions, in reliance on the decisions of this Court in R v Sutton (1986) 5 NSWLR 697 and R v Heyde (1990) 20 NSWLR 234, submitted that it was only in rare cases that a lie told by an accused could amount to corroboration as evidence of consciousness of guilt. He submitted that whether the statement said to be a lie is capable of providing corroboration is a question of law to be decided by the trial judge. He submitted that only lies which suggest that the liar cannot give an innocent explanation of proved facts are capable of providing corroboration and that to amount to an admission of guilt the only reasonable inference from the circumstances must be that he knew that if he told the truth he would be found guilty.

At the hearing of the appeal, counsel for the appellant focused principally on the evidence which was said to independently establish that the appellant lied when he said that MW had not been in the shed on the day in question, namely, the evidence of LR. She submitted that to establish that RR had lied the jury must have accepted LR's evidence, and if they had the jury would have to find RR innocent because what LR observed was inconsistent with what MW said occurred. She further submitted that if "the evidence was capable of rationally bearing upon the proposition that the appellant lied about being in the shed, the question then was whether he was lying about being in the shed because of the fear of the truth of the complainant's allegations or whether he was lying because he was fearful of his son's observations." She submitted that if there was an explanation consistent with innocence it was important that the trial judge put it to the jury. She relied in this regard on the decision of this Court in R v Cook [2004] NSWCCA 52.

Counsel for the appellant conceded that the matters the subject of this ground were not raised at the trial. In particular she conceded that no objection was taken by counsel for the appellant to the Crown relying on the alleged lies as evidencing consciousness of guilt, or to the direction given by the trial judge on this issue. In these circumstances she accepted that r 4 of the Criminal Appeal Rules applied. However, she asserted that the error amounted to a miscarriage of justice.

The Crown's submissions on the first ground

In its submissions the Crown pointed first to the fact that counsel for the appellant at the trial neither objected to the Crown relying on the answers to questions 216-226 in the interview of the appellant as lies demonstrating consciousness of guilt, nor to the direction proposed by the trial judge. The Crown submitted that the direction in fact was beneficial to the appellant. The Crown submitted that the direction given satisfied the requirements of Edwards v R supra as adapted to the evidence in this case.

The Crown also submitted that leave under r 4 should not be granted, submitting that it should be inferred that the decision not to object to the use by the Crown of the lies as consciousness of guilt or to the direction was for sound forensic reasons, citing R v ITA [2003] NSWCCA 174, and that for leave to be granted under r 4 the appellant must show he had lost a real chance of acquittal, something which had not occurred in the present case.

The Crown in particular pointed out that at the time the appellant gave the interview containing the alleged lie his son had not made any statement and, therefore, the appellant had no knowledge of what his son would say.

Consideration

As I indicated the appellant placed reliance upon what was said by this Court in R v Heyde supra in support of the proposition that the Crown should not have been permitted to use the answers to questions 216-226 as lies evidencing consciousness of guilt. In that case, Gleeson CJ, who agreed with Clarke JA, made the following comments (at 236-7):

"If, by evidence or admission, it is proved that an accused person has told a lie, that is to say, made a deliberately false statement, in court or out of court, then, provided various conditions are fulfilled, the jury may regard the lie as demonstrating a consciousness of guilt and may treat the lie as corroboration. The conditions in question are discussed in various cases referred to in the judgment of Clarke JA including, R v Lucas, (Ruth) [1981] 1 QB 720. However, commonsense and ordinary human experience indicate that a judgment as to whether a lie reveals a consciousness of guilt, although one which people not infrequently make, may, depending upon all the circumstances, be very difficult. People tell lies for many reasons other than a consciousness of guilt. For example, a person may tell lies to escape a false accusation, just as a person may be put to flight by the threat of unjust arrest."

Whilst the conclusion of Clarke JA was to the following effect (at 246):

"My conclusion is that there is only a very limited class of lies by an accused which are capable of constituting corroboration of the evidence of a prosecution witness. For my part I think that the most helpful test is that which emerges from Eade and that it is only lies which suggest that the liar cannot give an innocent explanation of proved facts, or that he is unable to account for what witnesses say they saw in any way consistent with his own innocence which are capable of providing corroboration."

In that case Clarke JA at [244] suggested that both the primary facts (the statement said to constitute the lie and the fact it was a lie) and the inferred fact (that the lie demonstrated consciousness of guilt) must each be proved beyond reasonable doubt. However, as was pointed out by the plurality in Edwards v R supra (at 210), an admission constituted by the telling of a lie may be considered with other evidence, and for that purpose does not have to be proved to any particular standard of proof but may be considered with other evidence which as a whole must establish guilt beyond reasonable doubt.

R v Sutton and R v Heyde were decided before the High Court decisions in Edwards supra and Shepherd v The Queen (1990) 170 CLR 573 (on circumstantial evidence generally) and it is to Edwards and subsequent New South Wales cases, rather than to Sutton and Heyde, that reference should be made for the principles applying to lies as consciousness of guilt.

The circumstances in which lies can be used as evidencing consciousness of guilt, in my opinion, were correctly summarised by Simpson J in R v Lane [2011] NSWCCA 157 at [56]-[58]:

"[56] The principles applicable to evidence of lies told by an accused person as evidencing consciousness of guilt were comprehensively spelled out in Edwards v The Queen [1993] HCA 63; 178 CLR 193. They had their origin in Reg v Lucas (Ruth) [1981] QB 720 as summarised (uncontroversially) by McHugh J in Edwards (although in a dissenting judgment as to their application). They are (I have slightly paraphrased):

(1) the lie must be deliberate;

(2) the lie must relate to a material issue;

(3) the motive for the lie must be a realisation of guilt and a fear of the truth;

(4) the statement said to constitute a lie must clearly be shown to be a lie by admission or by evidence; where evidence of the lie is tendered as corroboration of the evidence of a witness, the evidence showing that the statement is a lie must be from a person other than that witness.

[57] In the joint judgment of Deane, Dawson and Gaudron JJ, the following appears:

'But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'.

[58] Underlying the four propositions stated by McHugh J (and echoed in the joint judgment) is an initial proposition that is so obvious that it hardly needs to be stated (and usually is not). That is that the statement made by the accused said to be a lie is factually false or wrong. That a statement is factually false or wrong does not necessarily connote that it is a lie - that is what is meant by including in the requirements that it is a deliberate lie. (Where such evidence has been admitted for the stated purpose, it is always necessary that the trial judge give a direction drawing to the jury's attention possible alternative reasons that the accused person might have lied. That issue does not presently arise.)"

In the present case the lie identified was that MW was not in the shed on the day in question. Having regard to the answers given by the appellant to questions 216-226 in the interview, there can be little doubt that that was what the appellant was asserting.

The second question was whether the jury could find it was a deliberate lie. The evidence was contrary to the evidence of MW and, more importantly, to that of LR. If the jury accepted that LR was correct when he said that he saw MW and RR in the shed that day, the jury could find the appellant was lying, particularly in circumstances where the denial took place on the same day that the incident in question was said to have occurred.

Counsel for the appellant placed great stress on what was said to be the inconsistencies between the evidence of MW and LR; the colour of the blanket, the position MW was in when found by LR and, importantly, that MW agreed that an incident of the nature of that described by LR had occurred on a different day. The latter matter formed the basis of the appellant's submission that if LR was believed the jury should have entered a verdict of acquittal.

In my opinion, it was open to the jury to accept the evidence of LR to the effect that he saw MW and RR in the shed on the day in question. It was, of course, a matter for the jury to evaluate the discrepancies in the evidence of MW and LR as part of their determination of whether the offence was proved beyond reasonable doubt. However, it was open to them to conclude that LR was correct in saying that he saw MW and RR in the shed on the day in question, whilst not accepting other parts of his evidence to the extent it differed from that of MW.

In the present case, the lie plainly related to a material issue, namely the fact that MW and RR were in the shed together on the day in question.

The fourth matter referred to by Simpson J in Lane at [56], namely that the evidence demonstrating the statement was a lie should come from a person other than (in this case) MW, was satisfied in the present case by the evidence of LR.

It follows in my view that the trial judge was justified in permitting the evidence to go to the jury as evidence of consciousness of guilt.

Thus far I have dealt with the matter without reference to r 4. Its effect was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]):

"There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, a trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted."

Subsequent cases have established that the following matters are important in considering the operation of r 4:

(a) The requirements of r 4 are not mere technicalities. The Court of Appeal Act 1912 does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA supra at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].

(b) The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].

(c) A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that he said nothing hoping to gain an advantage at a later stage, or that he took no objection as, in the atmosphere of the trial, he saw no injustice as to what was being done: Germakian v R [2007 NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [62].

(d) An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [89], [130]-[133].

Having regard to these matters, even if I was of the view that the trial judge was in error in permitting the evidence to go to the jury as evidence of consciousness of guilt, I would not have granted leave under r 4 as I do not consider that the appellant has demonstrated a miscarriage of justice. There was a significant body of evidence apart from the alleged lie on which the jury could have convicted the appellant. Most significantly, there was the evidence of the immediate complaint to LW and later to Detective Sergeant Lawson. There was also the DNA evidence which, although by no means conclusive, supported the Crown case. In these circumstances I am of the view that the appellant has not made out that there was a miscarriage of justice.

The appellant ' s submission on the second ground of the appeal

The appellant submitted that whilst a trial judge does not have to summarise all the evidence given in a trial, it must put the defence case squarely before the jury. In particular he submitted that the appellant was entitled to a summing-up which would enable a jury from the terms of the summing-up itself to comprehend and understand the defence case: R v Veverka [1978] 1 NSWLR 478. He submitted that this obligation is not affected by s 161 of the Criminal Procedure Act 1986.

The appellant contended that the summing-up of the defence case was inadequate. The appellant submitted that the trial judge did not sum-up on the following issues:

"the substance of the appellant's account;

the support for the substance of the appellant's account that was derived from the complainant's cross examination;

the support for the defence case that was derived from the cross examination of the complainant insofar as she agreed that what the appellant's son described occurred on another day;

the potentially innocent explanation for the alleged lie if the jury were ultimately satisfied of the account of the appellant's son;

that the appellant was not guilty of the offence as alleged by the complainant if the appellant's son's evidence was to be accepted;

the important inconsistencies in the account of LR and the complainant. That is, the incident said to give rise to the sole count on the indictment could not have occurred if the interaction was as described by LR and

the appellant's account of his experience with his daughters over the years and his disbelief at the allegation."

The appellant detailed the relevant aspects of the evidence on which the trial judge failed to sum-up in the following terms:

"4.1 The appellant accounted for his conduct on the day in question consistently and at length in the record of interview. None of the details of his case formed part of the summing up. Apart from LR's account of the game of hide and seek LR's account was entirely consistent with that of the appellant.

4.2 It was the appellant's case that whilst he alone had care of the complainant and his son for a brief period on the day in question the complainant did not come into the shed with him.

4.3 He said that the two children were playing in the yard, they were playing in the mud, it began to rain and he told the children to wash their hands and go inside.

4.4 He said the children had asked if they could play in the shed but he told them they could not because there was no power either in the house or in the shed on account of a blackout.

4.5 The power cut was confirmed by other evidence including the appellant's wife and from a report from the power company.

4.6 After the children washed their hands they went into the house, he followed and went and opened the front door and had a cigarette.

4.7 Shortly after the appellant said that they could not play in the shed the complainant went home.

4.8 Before the complainant left the appellant became aware that the power came on in the house as his son was playing with the video.

4.9 At no point did he raise his voice with the complainant. (This was supported by the evidence of his son)

4.10 Albeit that no evidence was called as to the appellant's good character, the appellant raised his character in sofar as he asserted in his ERISP that 'he didn't raise his voice with his own kids' and 'like I've got two daughter of my own, one through a previous relationship and that, and kids ... associate with each other all the time and they sleepover and what not and, like I just cannot believe that allegation.' (No character direction was given or requested.)

4.11 Whilst he was out the front of the house the complainant's mother came over swinging an axe handle around and she wasn't making sense.

4.12 He denied having ever told the complainant's mother that the complainant had walked in on him having a pee.

4.13 The appellant said that the complainant would come over virtually everyday to play with his son and they would spend a lot of time playing in the shed.

4.14 The appellant did not change clothes and provided them to the police. According to the appellant's wife these work clothes were clothes that the appellant would wear for days and weeks in a row and were left strewn about in the shed.

4.15 The appellant's son (LR) gave evidence that he and the complainant were playing outside, it began to rain, his father told them to wash their hands and they came inside. Later he said that he and the complainant played hide and seek in the shed whilst playing in the yard.

4.16 LR described a game of hide and seek and he described that as having been played inside at one point during which the complainant hid under a bed (this was not the complainant's account) and that at another time he found the complainant in the shed, on his dad's knee under the blue blanket which is kept in the shed.

4.17 Whilst LR's evidence was that a hide and seek game did occur on the day in question his observations were entirely inconsistent with the conduct alleged by the complainant said to have given rise to the sole count on the indictment.

4.18What LR described of the hide and seek game was that:

The complainant hid under a bed his sister's room;

That he found her in the shed under the blue blanket;

This happened right after we played dirt castles;

The complainant was on her knees, on his dad's lap, crouching down, facing away from his dad and his dad was sitting on the lounge. LR lifted up the blanket and could see her.

This account was entirely inconsistent with the crown case and incapable of constituting the event giving rise to the sole count on the indictment. The complainant's account made, inter alia, no reference to being found by LR nor the incident having taken place in circumstances where she was on her knees, facing away from the appellant and found by LR rolling onto the lounge.

The complainant was facing the wall and not wearing shoes.

The complainant accepted that the events as described by LR occurred on another day. This was of critical importance to the defence case because if this were so, there was no support to be found for the complainant's version in the evidence of LR.

LR did not hear his father shout at the complainant in the manner described by the complainant at such time as they were playing hide and seek. It was the complainant's account that she could hear LR proximate to the shed when the appellant was alleged to have screamed at her more than once to 'open wide'. LR denied hearing this.

4.19 It was the defence case that the hide and seek game as described by the appellant's son (LR) occurred on a day other than the date in question. This was explored with LR and he denied it. Clearly LR was not a witness who could be described as unreliable because of a motive to protect his father. It otherwise became apparent during the trial that LR was not aware of the nature of the allegation against his father. Importantly however the complainant was cross examined to the effect that this game, as described by LR, was played on another day and she accepted the same.

4.20 What was significant about this evidence of the complainant was that it supported the appellant's case that the observations of LR were correct but that they occurred on another day. Moreover these observations were capable of explaining transference of DNA.

4.21 In addition the complainant's concession significantly undermined the cogency of any argument that LR's evidence was capable of establishing that the appellant had lied in a material respect when he denied that the complainant had been in the shed that day.

4.22 Moreover, accepting that the jury were satisfied that LR was describing an incident that took place on the day in question, the appellant's lie (established by the same) concerning the children being in the shed could not be regarded as material. Rather any reluctance to admit these events was a lie in an immaterial respect and incapable of constituting an admission to the offence.

4.23 No reference was made in the summing up to the evidence that the complainant had had ample access to the shed which was otherwise capable of explaining transference of DNA.

4.24 The appellant's wife described the appellant as flabbergasted over the allegations made by the complainant's mother. When she asked the appellant about what had occurred he said that 'They wanted to go in the shed' and he said to them 'You're not playing in the shed.' He told them to go inside and LR put a DVD on."

The Crown ' s submissions on the second ground of appeal

The Crown pointed to the fact that no objection to the summing-up had been taken by counsel for the appellant at the trial. To this it might be added that counsel did not demur when, immediately prior to the summing-up, her Honour indicated that she would not be canvassing the evidence in detail with the jury. The Crown in these circumstances relied on r 4.

The Crown accepted that the trial judge had the responsibility of putting the defence case fairly before the jury; however, it pointed to the fact that it was a relatively short trial and that the complainant's evidence comprised her video recording to the police and her evidence from a previously aborted trial. The Crown also pointed out that the record of interview of the appellant was played to the jury on the third morning of the trial (the last day of the evidence). As I indicated earlier (at [56]) the jury had available to them in their determination the DVD of the appellant's interview of 22 March, the DVD of MW's interview of that date, the transcript of the evidence of MW at the previous trial and a transcript of LR's first interview with the police.

In these circumstances, the Crown submitted, it was not necessary to identify and repeat the points made by the defence, and in particular relied on what was said by Wood CJ at CL in R v Davis [1999] NSWCCA 15 and R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260.

Further, the Crown submitted that the trial judge properly put the defence case in any event.

Consideration

In R v Veverka supra, Street CJ, with whom the other members of the Court agreed, referred to the principle enunciated by Barwick CJ in Pemble v R [1971] HCA 20; (1971) 124 CLR 107, to the following effect:

"Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict on whole or in part." ( Veverka at 480)

He also emphasised (at 482) that a summing-up must contain an adequate presentation of the defence case to enable the jury from the terms of the summing-up itself to comprehend and understand what the defence case is ; See also CC v R [2010] NSWCCA 337 at [25].

In R v Zorad (1990) 19 NSWLR 91 this Court stated (at 105):

"A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resum e of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence".

In R v Tillot (Court of Criminal Appeal, 8 April 1991, unreported) Hunt J said that the trial judge's obligation to collect the evidence and the outline of the arguments applies to those ingredients (elements) which were in dispute at the trial (and not, as Zorad might suggest, every element of the offence). Similarly, in Condon v R (1995) 83 A Crim R 335 the Court emphasised (at 347) that the task of the trial judge is not merely to give formal directions of law as to the legal elements of the offence, but to explain to the jury the application of these elements to the respective cases of the Crown and the accused.

The application of these principles does not mean that the trial judge is obliged to summarise all the events at the trial. So much is made clear by s 161 of the Criminal Procedure Act . In R v Williams supra, Wood CJ at CL, with whom Spigelman CJ and McInerney J agreed, made the following observation as to the application of these principles in short, single issue trials:

"[42] His Honour went into no greater depth in dealing with the prosecution case. In a single issue trial as short as this, when the summing-up concluded within a morning and followed immediately upon the address of defence counsel, I am unconvinced that it was necessary for the trial judge to have undertaken a comprehensive analysis of the kind that the appellant now contends for. His Honour's assessment of the position was made evident by the observation as to the eloquence of the defence submissions concerning the complainant's credibility, which he said would 'still be ringing' in the jury's ears.

[43] The common sense and intelligence of the jury requires respect, as does the experience of trial counsel who, in this case, expressly stated that he did not require any further direction or redirection.

[44] I am unpersuaded that in a short trial, where the focus was on the complainant's credibility, anything would have been achieved by yet another restatement of that issue or of the points made either by the Crown or by the defence. The position is likely to be otherwise in a complex and lengthy trial, to which the observations in Domican are particularly apposite. It would also have been otherwise had the trial judge here undertaken, for example, a detailed analysis of the Crown case and then dismissed the defence case in short terms. What is required is a fair balance when any excursion into the issues and evidence is undertaken. Again I am of the view that leave should be refused to argue this ground under r 4 of the Criminal Appeal Rules .

[45] Without wishing to labour the point which has now been made many times, I would repeat the observations that I made in PAH concerning the need for trial counsel, among whom I include both the Crown Prosecutor and defence counsel, to be vigilant in ensuring that any necessary directions or redirections are sought at trial. A clear risk of a miscarriage of justice will need to be identified, before this Court would intervene, where complaint has not been made at the trial. Particularly is that the case in relation to those matters which are well recognised as potentially calling for warnings."

His Honour made similar observations in R v Davis supra (at [24]):

"Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary [of] the evidence and of the submissions, than the judge proposes."

The fundamental task of the trial judge is to ensure that the accused has a fair trial. The position was summarised by the plurality of the High Court in RPS v R [2000] HCA 3; (2000) 199 CLR 620 in the following terms (citations omitted):

"[41] Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes."

The extent that the requirement of a fair trial will involve a detailed analysis of the evidence will depend, as was pointed out in R v Williams supra and R v Davis supra, on the particular circumstances of the trial.

In the present case the trial was short and the jury had most of the evidentiary material available to them in the jury room. Further, counsel did not complain as to the course adopted. These matters, although by no means decisive, do point to the fact that the appellant received a fair trial.

The appellant's complaints can be divided into four categories. The first is that the trial judge failed to adequately refer to the evidence of LR. I have set out in some detail (at [46] above) the remarks made by counsel for the appellant on that evidence in his address to the jury. He emphasised the inconsistency with the evidence of MW, referring in particular to LR stating that he found MW on the appellant's knee and the description of the blue blanket in detail. He pointed out in his address that LR's evidence of what occurred after MW left the shed was inconsistent with an assault of the nature of that alleged. The trial judge in her summing-up referred to each of these matters. The fact that she did not refer in detail to the evidence which supported these submissions does not seem to me of great significance in circumstances where the jury had very recently heard it.

In these circumstances, it seems to me that the trial judge fairly put the appellant's case to the jury on this issue.

The second category which is related to the first is that the trial judge did not deal specifically with the complainant's evidence that the events described by LR occurred on another day, and that this was capable of explaining the transfer of the DNA. This evidence must be considered in the context that the defence case at trial was that the events described by LR occurred on the day in question and that that evidence should have led the jury to have reasonable doubt as to MW's version of the events. The appellant having sought to make use of the evidence in that way cannot, in my opinion, complain of an absence of a fair trial because of the failure of the trial judge to put to the jury a version of the events on which he was not relying: See Darwiche v R supra.

The third category of evidence is the appellant's record of interview. That was the last piece of evidence the jury saw and heard and the jury had a copy of the DVD. Counsel for the appellant emphasised that the jury should look at what he said and how he said it. Her Honour noted the appellant's absolute denial of the offence. In these circumstances, it was not necessary, in my opinion, for the trial judge to go through the aspects of the evidence of the appellant's interview referred to in pars 4.2-4.14 of the appellant's submissions referred to above, particularly when no particular reliance was placed on this evidence by counsel who appeared for the appellant in the court below.

The fourth category was the evidence of the appellant's wife to the effect that the appellant was flabbergasted at the complaint and that the appellant wore his work clothes for days and weeks in a row and they were left strewn about the shed. (See pars 4.14 and 4.24 of the submissions referred to above.) No reliance was placed on this evidence by counsel for the appellant and it does not seem to me that a failure to refer to it deprived the appellant of a fair trial.

In these circumstances, ground 2 of the grounds of appeal has not been made out.

Thus far I have dealt with the matter without reference to r 4. However, having regard to the course of the trial and the matters to which I referred when I considered the application of this rule in respect of the first ground of appeal (see at [76]) it does not seem to me that there was any substantial miscarriage of justice. In those circumstances, I would not grant leave under r 4 to raise this ground of appeal.

It follows that the appeal against conviction should be dismissed.

The application for leave to appeal against sentence

The sole ground of appeal against sentence was that the sentence imposed was manifestly excessive. It was not suggested that the trial judge made any errors in her approach to sentencing.

The remarks on sentence

In her remarks on sentence the trial judge set out the facts as summarised above. She had regard to the victim impact statement and noted that the offence had had a very serious effect on the child MW and her relationship with both adults and other children.

Her Honour stated that in assessing the objective gravity of the offence she took into account that it was isolated and opportunistic and that the form of sexual intercourse was enforced fellatio rather than penile/vaginal intercourse. She noted MW was only five years old at the time of the offence and that the younger the child the more serious the offence. She noted the offender was informally in a position of responsibility towards the complainant. In these circumstances she found that the offence was moderately below the mid-range of objective gravity.

So far as the subjective circumstances of the appellant were concerned, she noted that the appellant was 47 years old at the time of sentencing (46 at the time of the offence), that he had left school at 14, and could read and write but not well. Her Honour noted that he had four children from his first long term relationship and four from the relationship he was in at the time of his offence. She noted that the latter group of children were taken into care by the Department of Community Services in October 2009.

Her Honour noted that the offender had a history of heart disease, having stents inserted in 2009, and had also had a stroke which affected his left leg and his mobility. He had abused amphetamines for many years and his intellectual functions were found to be borderline to extremely low. Her Honour also noted that he had apparently suffered a head injury in custody some years before which led to memory problems and possibly changes in his personality.

Her Honour noted that he had a relatively minor criminal history including convictions for drug offences, driving offences and dishonesty offences but no prior history of sexual assault matters.

Her Honour found that the prospects for rehabilitation appeared to be reasonable and would be enhanced by his participation in a suitable programme for sex offenders.

The appellant ' s submissions

In his written submissions the appellant contended that the sentence was manifestly excessive. In support of this ground he relied by comparison on three cases. The first of these was Eedens v R [2009] NSWCCA 254. In that case the appellant was sentenced by the sentencing judge to a term of imprisonment comprising a non-parole period of nine years and a balance of term of three years for an offence under s 66A of the Crimes Act involving fellatio with a nine year old girl. A similar offence with an eight year old was taken into account on a Form 1, whilst an offence under s 66C(1) involving a similar incident with a 13 year old was also taken into account. The sentence was arrived at after a 25 percent discount for early plea.

On appeal, this Court found error and proceeded to resentence. The Court found the offence was significantly below the mid-range of objective seriousness and taking into account the offences on the Form 1, sentenced the offender to a term of imprisonment comprising a non-parole period of six years and two months, with a balance of term of two years and one month. Removing the 25 percent discount for the early plea this translated into a head sentence of 11 years and a non-parole period of eight years and three months. There were no significant mitigating factors to distinguish that case from the present case.

The second case on which reliance was placed was the decision of this Court in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575. That was a Crown appeal involving forced fellatio with a strong subjective case. It was held (at [27]) that the offence fell somewhere below the mid-range of an offence under s 66A. The Court took into account an additional offence of aggravated indecent assault contrary to s 61M(2) of the Crimes Act and imposed a sentence of a non-parole period of two and a half years with a balance of term of two and a half years. Removing the discount of 25 percent for the early plea, this translates into a head sentence of six years and eight months with a non-parole period of three years and four months.

The third case on which reliance was placed was another Crown appeal R v PGM [2008] NSWCCA 172. This involved six offences against one child, three of them being offences of having sexual intercourse contrary to s 66A of the Crimes Act , with three being offences of indecent assault contrary to s 61M(2) . Fullerton J, with whom the other members of the Court agreed, accepted that it was reasonably open to the sentencing judge to find that the three offences under s 66A fell below the mid-range of objective seriousness for offences of that nature (at [38]) but that the acts of indecent assault were in the mid-range and well above the lower end of that range (at [40]). Her Honour imposed a total term of nine years with an effective non-parole period of seven years and six months. In respect of the individual offences under s 66A her Honour imposed three concurrent terms of nine years with a non-parole period of six years.

The Crown submissions

The Crown pointed to the maximum term for the offence and to the standard non-parole period. The Crown submitted that her Honour was entitled to be cautious about the appellant's rehabilitation prospects and that the appellant's previous criminal history did not entitle him to leniency. The Crown pointed to the age of the child, the fact that the offence involved a gross breach of trust and the impact on the victim. The Crown submitted that the sentence was not manifestly excessive.

Consideration

The fact that the sentence may be thought to be severe does not mean that it was manifestly excessive. In asserting that the sentence was manifestly excessive the appellant, in effect, is asserting that the sentence was unreasonable or plainly unjust: See House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. Put another way, it must be concluded that the length of the sentence is such that there was some misapplication of principle even though where and how is not apparent from the statement of reasons: See Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [58]; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [58]-[59], [75]-[76].

In considering whether or not a sentence is manifestly excessive, it is important to bear in mind what was said by Gleeson CJ and Hayne J in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [6]:

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A court of criminal appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and it reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."

In the present case it is not in dispute that her Honour was entitled to find that the offence was moderately below the mid-range of objective gravity for the offence and to take into account the objective and subjective factors to which I have referred. The question is whether, taking these factors into account along with the maximum term of imprisonment for the offence and the standard non-parole period, the sentence was manifestly excessive.

In my opinion, a sentence of 12 years with a non-parole period of nine years was manifestly excessive. Although, as I indicated, the maximum term of imprisonment and the standard non-parole period for a contravention of s 66A indicates the gravity of the offence, the sentence seems to be disproportionate to an appropriate sentence for an isolated offence, but rather one more appropriate for significantly more serious or consistent criminality.

Her Honour described the offence as isolated and opportunistic. She also found that the offence was moderately below the midrange of objective gravity. Further, although the offence was a serious one against a five year-old child, her Honour noted it involved enforced fellatio rather than penile/vaginal intercourse. It seems to me in those circumstances that a sentence of 12 years with a non-parole period of nine years is one which is unreasonable and unjust. It is true this followed a plea of not guilty and there was absence of any remorse. Against this it must be remembered that her Honour found that the appellant's prospects of rehabilitation were reasonable.

It is evident that in imposing a sentence on the appellant the sentencing judge took into account the standard non-parole period as a reference point. Having regard to the state of the law as then perceived (see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168) she was justified in doing so. However, as the High Court has subsequently pointed out in Muldrock v R [2011] HCA 39; 85 ALJR 1154 at [31] the standard non-parole period is not the starting point for sentencing for a midrange offence after conviction.

Her Honour in sentencing stated that she had been referred to a number of cases by the Crown and considered that R v AJP supra and Eedens v R supra were apposite to the present case.

A long line of authorities caution the use of sentencing statistics or simple sentence comparison when determining the outcome of a sentence appeal. In R v Morgan (1993) 70 A Crim R 368, Hunt CJ at CL (with whom Allen J and Loveday AJA agreed) said:

"It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) 154 CLR 606 at 612:

'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender.'"

In R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38 at [48], the Court held that, at the most, "other cases can do no more than become part of a range for sentencing" (see also R v Araya [2005] NSWCCA 283; 155 A Crim R 555), and in Hili v R; Jones v R supra, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [54]):

"In Director of Public Prosecutions (Cth) v De La Rosa ( [2010] NSWCCA 194) , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence '. When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'." (emphasis as added in Hili v R. )

It is therefore necessary to exercise caution when considering the submissions of the appellant that his sentence is manifestly excessive when compared against other offenders' sentences for the same offence. Nevertheless, such cases "can, and should" provide a yardstick against which this Court may examine MRW's sentence, and help to establish a "limited range of years appropriate to the circumstances in which the offence was committed", particularly where care has been taken to note the subjective circumstances in which the offences subject of comparison were committed, and the character, antecedents and conditions of the respective offenders.

Each of the cases referred to in the appellant's submissions involved either offences against a number of children ( Eedens, AJP ) or multiple offences against a single child ( PGM ). The sentence in the present case was significantly higher than the sentences imposed in AJP and PGM and higher than that in Eedens . To the cases referred to by the appellant there can be added R v HJWG [2011] NSWCCA 50, where an aggregate non-parole period of eight years with a balance of term of three years (after allowing for a 25 percent discount for plea) was ordered for one count of aggravated indecent assault on a child under 10 years in contravention of s 61M(2) of the Crimes Act, two counts of aggravated indecent assault in contravention of s 61M(1), and one count of sexual intercourse with a child under 10 (digital penetration) in contravention of s 66A. The sentence was described by the Court of Criminal Appeal in that case as severe but not manifestly excessive having regard to the standard non-parole period. The actual sentence for the contravention of s 66A was a non-parole period of six years with a balance of term of three years.

Her Honour gave no explanation as to why she imposed a sentence significantly higher than the sentence imposed in AJP supra (where, on a Crown appeal following a guilty plea for an act of fellatio on an eight year old, the sentence was increased to a head sentence of five years with a non-parole period of two years and six months) or Eedens supra.

Having regard to those matters, in my opinion, the sentence in the present case was manifestly excessive and it is necessary to resentence the appellant.

There is no dispute that the offence was moderately below the mid-range or that the subjective factors taken into account by her Honour were matters which could be taken into account. In addition, we have been furnished with three affidavits concerning the appellant's current position. They demonstrate that the appellant has sought to engage in educational programmes including a literacy course. They also indicate the appellant is having continuing difficulty with his health and since his imprisonment has had a mild stroke resulting in numbness in his left arm and has contracted a minor case of Hepatitis C. These are subjective factors which, in my opinion, can be taken into account in considering the appropriate sentence.

Although, in my opinion, the sentence was manifestly excessive, the offence was a serious one and warrants a significant term of imprisonment. Taking into account the findings of the trial judge, the maximum term of imprisonment, the standard non-parole period for the offence and the matters referred to in par [115] I am of the opinion that the appropriate sentence is one of eight years with a non-parole period of six years.

In these circumstances I would make the following orders:

(1) Appeal against conviction dismissed.

(2) Grant leave to appeal against sentence and allow the appeal.

(3) Quash the sentence imposed in the District Court and in lieu thereof sentence the appellant to a term of imprisonment comprising a non-parole period of 6 years with a balance of term of 2 years. The sentence is to date from 10 October 2008 and the appellant is eligible to be released on parole on 10 October 2014.

JAMES J: I have had the advantage of reading in draft the judgment of the Chief Justice and the judgment of Johnson J. On the conviction appeal I agree with the judgment of the Chief Justice. On the sentence appeal I agree with the judgment of Johnson J.

JOHNSON J : I have had the advantage of reading the draft judgment of the Chief Justice. I agree with his Honour's reasons and proposed orders concerning the conviction appeal.

I regret to say that I have reached a different conclusion with respect to the sentence appeal. In my view, the ground of appeal concerning sentence has not been made out. Although leave to appeal against sentence should be granted, the appeal ought be dismissed. I should explain why I have reached this conclusion.

With due respect to the Chief Justice, I do not agree with his Honour's approach to determining the ground of manifest excess. Further, upon application of the appropriate principles, I do not consider that the ground has been established.

The experienced sentencing Judge in this case was undertaking a discretionary task in sentencing the Appellant after trial. As the High Court has stressed, sentencing involves a process of instinctive synthesis: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373 [26].

Of course, that process is not undertaken in a statutory vacuum. The maximum penalty and the standard non-parole period are " two legislative guideposts " which a sentencing Judge must take into account: Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 at 1162 [27]. The maximum penalty for an offence under s.66A Crimes Act 1900 is imprisonment for 25 years and the standard non-parole period is one of 15 years.

As the Chief Justice has observed at [101] and [113], the sentencing Judge here found that the offence was moderately below the mid-range of objective gravity and this finding was not challenged on appeal. No other finding of the sentencing Judge is challenged on appeal.

A number of sentencing decisions of the Court of Criminal Appeal for sexual assault offences against children, including offences under s.66A Crimes Act 1900, were placed before the sentencing Judge and were referred to in her Honour's remarks on sentence. The Chief Justice refers to these decisions in his judgment.

This Court has observed that where a sentencing court is provided with other sentencing decisions, it is important that the purpose for which the information is provided be identified and kept in mind: Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53 at 77-79 [73]-[81]; R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at 583-584 [60].

In the passage cited by the Chief Justice at [119], the High Court in Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54] referred with approval to the statements of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at 98 [303]-[305], concerning the proper use of information about sentences that have been passed in other cases.

The Chief Justice refers as well to a long and consistent line of authority in this Court which disapproves of a manifest excess ground being argued by reference to a few sentencing decisions. These many cases include R v Morgan (1993) 70 A Crim R 368 at 371; R v George [2004] NSWCCA 247; 149 A Crim R 38 at 47 [48]; R v Araya [2005] NSWCCA 283; 155 A Crim R 555 at 567 [69]-[70]; Han v R [2009] NSWCCA 300 at [32]-[39] and Stock v R [2011] NSWCCA 49; 206 A Crim R 574 at 587-588 [48].

The High Court has said, with respect to consistency of sentencing, that what is sought is consistency in the application of relevant legal principles, not some numerical or mathematical equivalent: Hili v The Queen at 527 [18], 535 [48].

At [114], the Chief Justice expresses the opinion that the sentence in this case was manifestly excessive. His Honour expresses the view that the sentence " seems to be disproportionate to an appropriate sentence for an isolated offence" but was "rather one more appropriate for significantly more serious or consistent criminality ".

His Honour then refers to sentences imposed in R v AJP [2004] NSWCCA 434; 150 A Crim R 575, Eedens v R [2009] NSWCCA 254, R v PGM [2008] NSWCCA 172 and HJWG v R [2011] NSWCCA 50. It should be observed at once that AJP and PGM were both Crown appeals so that resentencing of the offenders in those cases by this Court would have involved a measure of restraint.

His Honour observes that the sentencing Judge was referred to Eedens , AJP and PGM . The Chief Justice at [117] notes that the sentencing Judge said that the decisions in AJP and Eedens were apposite to the present case. At [122], his Honour notes that the sentencing Judge gave no explanation as to why she imposed a sentence significantly higher than the sentence imposed in AJP or Eedens .

It is appropriate to set out that part of her Honour's remarks on sentence which refers to AJP and Eedens (ROS4):

" I have been referred to a number of cases by the Crown prosecutor. They are set out in the Crown's written submissions and I will not record all of them in these remarks. I have, however, read the cases and considered them carefully, in particular, R v AJP [2004] NSWCCA 434 and Eedens v R [2009] NSWCCA 254 which are apposite to this particular case ".

Her Honour then proceeded in a manner which sheds light upon the way in which the authorities were used on sentence (ROS4-5):

" In assessing the objective gravity of the offence, I have taken into account that it was isolated and opportunistic and that the form of sexual intercourse was enforced fellatio rather than penile-vaginal intercourse. While age is an element of this offence, this child was extremely young, only five years old and the range for such an offence under s.66A is up to ten years. The authorities make clear, the younger the child the more serious the offence. Further, the emotional harm she suffered was substantial, as is evidenced by the contents of the victim impact statement and as was conceded by counsel for the offender. In addition, the offender was informally in a position of responsibility towards the complainant, he having been left in sole care of her and his own son for a short period of time.

Weighing all those factors, I find that the offence falls moderately below the mid-range of objective gravity for such an offence. For that reason the standard non-parole period does not apply, but does remain as a reference point. A further reason for not imposing the standard non-parole period is that the offender has not previously been convicted for an offence of this type, accepting that good character has less weight in cases of sexual assault. I have also taken into account his poor state of health at a relatively young age and the fact that this is his first lengthy period of imprisonment at this age ."

In my view, the sentencing Judge was referring to AJP and Eedens not as mathematically comparable sentences to be applied to this case, but as authorities where the circumstances provided greater assistance to the discretionary determination of sentence for this Appellant. A reading of the transcript of sentencing submissions in the District Court does not suggest that the parties were inviting her Honour to engage in a mathematical comparison of sentences in these other cases. Submissions made in the District Court appear to have related to sentencing principles and factors which bear upon an assessment of objective seriousness.

With the greatest of respect, I consider it to be erroneous to read more into her Honour's approach than this. In particular, I consider that this Court would be falling into error if the construction was to be adopted that her Honour was in some way required to explain why she imposed a sentence upon the Appellant which was significantly different from the sentences imposed in AJP and Eedens . Such an approach would be contrary to sentencing principles applicable to first instance sentencing courts and contrary to principles concerning the determination by this Court of a sentence appeal on the ground of manifest excess.

The Chief Justice at [115] refers to the description of the offence as isolated and opportunistic, and the sentencing Judge's assessment of objective gravity, and then says that " in those circumstances " a sentence of 12 years with a non-parole period of nine years is unreasonable and unjust. With respect, I do not agree.

It will be apparent immediately that a most significant feature of the present case is that it involved a five-year old victim, an age well removed from the age limit of 10 years which demarcates a s.66A offence. None of the cases referred to before her Honour, or before this Court, involved a five-year old victim. Her Honour referred expressly to the child in this case being " extremely young, only five years old and the range for such an offence under s.66A is up to ten years ". The offence in this case involved penile penetration of the mouth of the five-year old girl. Her Honour had referred earlier in the remarks on sentence to the harm done to the victim as a result of the offence (ROS2-3):

"The victim impact statement details the impact this offence has had on this child. I note she has had to undergo blood tests, and as at October 2009, the date of the statement, she was engaged in counselling once a week. Her mother has noticed a significant change in her personality. From being extroverted and confident, she has become quiet, constantly worried and insecure. Quite clearly and understandably, the offence has had a very serious effect on the child and on her relationships with both adults and other children."

Her Honour had regard to the fact that the offence was " opportunistic ". The finding that the offence was " isolated " was to be understood in the context of the immediate complaint by the child to her mother followed by the speedy arrest of the Appellant. The fact that an offence of this type (committed against a five-year old victim) was proved after a contested trial, relates to the fact that there was early complaint and an opportunity to gather physical and forensic evidence which implicated the Appellant. As her Honour observed, the existence of DNA evidence obtained from clothing " was no doubt a compelling consideration during the jury's deliberations " (ROS2).

The experience of the criminal courts is that offences of this type committed against very young victims are difficult to investigate and prosecute successfully where the charge is contested. The Appellant in this case went to trial and was convicted by the jury. The discount applicable to other offenders who plead guilty, and any allowance for contrition and remorse which may exist in other cases, had no application to the Appellant.

Her Honour had regard to subjective factors bearing upon sentence and no ground of appeal challenges these findings.

By asserting manifest excess, the Appellant alleges that the result embodied in the sentencing Judge's order was unreasonable or plainly unjust. No specific error is alleged. Rather, the Appellant asserts that it was to be inferred from the result that there was a failure to properly exercise the discretion which the law reposes in the sentencing court: House v The King [1936] HCA 40; 55 CLR 499 at 505.

Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605 [58]; Hili v the Queen at 538-539 [58]-[59]. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15].

The sentence passed in this case was substantial. However, it lay within the proper range of sentence for this offence committed by this offender. No error has been demonstrated in the exercise of sentencing discretion in this case. In particular, it has not been demonstrated that the sentence is unreasonable or plainly unjust so as to satisfy the requirements for a ground based upon manifest excess.

I agree with the Chief Justice that the appeal against conviction ought be dismissed. However, with respect to the sentence appeal, I propose that leave to appeal be granted, but that the appeal be dismissed.

**********

Decision last updated: 08 December 2011

Medium Neutral Citation:	RR v R [2011] NSWCCA 235
Hearing dates:	8 September 2011
Decision date:	08 December 2011
Before:	Bathurst CJ at [1]; James J at [127]; Johnson J at [128]
Decision:	(1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted, appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal - conviction - evidence - false statements - whether false statements could be lies evidencing consciousness of guilt CRIMINAL LAW - appeal - conviction - whether misdirection in presentation of defence case in summing up to jury CRIMINAL LAW - appeal - conviction - objections not taken below - whether miscarriage of justice - Criminal Appeal Rules r 4 CRIMINAL LAW - appeal - sentencing - whether manifestly excessive - Crimes Act 1900 s 66A
Legislation Cited:	Court of Appeal Act 1912 Criminal Appeal Rules Criminal Procedure Act 1986 Crimes Act 1900 s 61M(2), s 66A, s 66C(1)
Cases Cited:	CC v R [2010] NSWCCA 337 Condon v R (1995) 83 A Crim R 335 Darwiche v R [2011] NSWCCA 62 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 Edwards v R [1993] HCA 63; (1993) 178 CLR 193 Eedens v R [2009] NSWCCA 254 Germakian v R [2007 NSWCCA 373; (2007) 70 NSWLR 467 Han v R [2009] NSWCCA 300 Hili v R; Jones v R [2010] HCA 45; (2010) 85 ALJR 195 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v R [2011] HCA 39; 85 ALJR 1154 Pemble v R [1971] HCA 20; (1971) 124 CLR 107 Picken v R [2007] NSWCCA 319 Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 Tekely v R [2007] NSWCCA 75 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v Araya [2005] NSWCCA 283; 155 A Crim R 555 R v Cook [2004] NSWCCA 52 R v Davis [1999] NSWCCA 15 R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310 R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38 R v Heyde (1990) 20 NSWLR 234 R v HJWG [2011] NSWCCA 50 R v ITA [2003] NSWCCA 174 R v Lane [2011] NSWCCA 157 R v Lucas, (Ruth) [1981] 1 QB 720 R v Morgan (1993) 70 A Crim R 368 R v PGM [2008] NSWCCA 172 R v Sutton (1986) 5 NSWLR 697 R v Tillot (Court of Criminal Appeal, 8 April 1991, unreported) R v Veverka [1978] 1 NSWLR 478 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 R v Zorad (1990) 19 NSWLR 91 RPS v R [2000] HCA 3; (2000) 199 CLR 620 Stock v R [2011] NSWCCA 49; 206 A Crim R 574 Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53 Wong v R [2001] HCA 64; (2001) 207 CLR 584
Category:	Principal judgment
Parties:	RR - Appellant Regina - Respondent Crown
Representation:	Counsel A Francis - Appellant J Pickering - Respondent Crown Solicitors Legal Aid Commission - Appellant Solicitor for Public Prosecutions - Respondent Crown
File Number(s):	CCA 2008/11347
Decision under appeal	Before: Hock DCJ File Number(s): CCA 2008/11347