RW v R - [2023] NSWCCA 2

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: RW v R [2023] NSWCCA 2
Hearing dates: 16 November 2022
Date of orders: 03 February 2023
Decision date: 03 February 2023
Before: Basten AJA at [1];
Harrison J at [87];
Fagan J at [177]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the conviction of the applicant and order that there be a new trial.
(4)   Direct that the proceedings be listed for mention in the Sydney District Court arraignments list on 17 February 2023.

Catchwords:
CRIMINAL LAW – appeal – appeal against conviction – persistent sexual abuse – whether verdict of guilty unreasonable – whether trial judge erred by failing to direct jury regarding the requirement for an “unlawful sexual relationship” in the s 66EA offence

Legislation Cited:
Crimes Act 1900 (NSW), s 66EA
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(3)
Criminal Code (Qld), s 229B
Criminal Law Consolidation Act 1935 (SA), s 50
Criminal Procedure Act 1986 (NSW), s 293
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Abdul v R [2013] NSWCCA 247
AZ v R [2018] NSWCCA 294
BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48
Burr v R [2020] NSWCCA 282
Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
Dansie v The Queen [2022] HCA 25
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480; [2020] HCA 6
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Birks (1990) 19 NSWLR 677
R v CAZ [2011] QCA 231
R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59
R v Mann (2020) 135 SASR 457; [2020] SASCFC 69
R v RB [2022] NSWCCA 142
R v RB [2022] NSWCCA 142
R v Unger [1977] 2 NSWLR 990
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Scaysbrook v R [2022] NSWCCA 69
Spencer v Bamber [2012] NSWCA 274
Towse v R [2022] NSWCCA 252
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category: Principal judgment
Parties: RW (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Odgers SC with S Kluss (Applicant)
B Hatfield and A Bonnor (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/111584
Publication restriction: Statutory prohibition on publication of material identifying the complainant.
Decision under appeal

Court or tribunal:

District Court of NSW at Newcastle

Jurisdiction:

Criminal

Date of Decision:

03 September 2020

Before:

Gartelmann DCJ

File Number(s):

2018/111584

Judgment

BASTEN AJA: On 25 August 2020, the Director of Public Prosecutions presented an indictment against the applicant charging him under s 66EA of the Crimes Act 1900 (NSW) with a single offence of maintaining an unlawful sexual relationship with his daughter, then a child under the age of 10 years, in a period from January 2013 until May 2016. Count 1 contained six particulars of conduct each of which would, if accepted by the jury, constitute an unlawful sexual act. In the alternative to count 1, those acts were separately pleaded as specific offences in counts 2-7. Because the jury found the applicant guilty on count 1, the alternative counts did not arise.

Ground 1 – unreasonable verdict

As explained by Harrison J, the notice of appeal, as amended, sought to challenge the guilty verdict on six grounds. Ground 1 asserted that the verdict was “unreasonable”. It did not adopt the alternative formulation in s 6(1) of the Criminal Appeal Act 1912 (NSW), “or cannot be supported, having regard to the evidence”, although that was, understandably, the thrust of the submissions in support of that ground. That was appropriate: the statutory language constitutes a form of hendiadys, the absence of support in the evidence generally constituting the basis for a finding of unreasonableness.
Having considered the relevant evidentiary material, including the transcript of the evidence at trial, I am not persuaded that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt. I agree with the reasons of Harrison J in that regard.

Other grounds

Other members of the Court would dispose of this appeal by upholding ground 6. Ground 6, first raised in an amended notice of grounds of appeal filed on 22 August 2022 and supported by submissions filed on 10 November 2022 (the appeal was heard on 16 November 2022), read as follows:

“6. The trial judge’s directions with respect to the elements of the s 66EA offence were in error in that they failed to direct the jury regarding the requirement for a ‘sexual relationship’ over and above the requirement for two or more unlawful sexual acts.”

Although senior counsel for the Director conceded that there had been error in that respect, the concession was based upon an understanding of the operation of s 66EA discussed by this Court in R v RB [2022] NSWCCA 142. R v RB was an appeal brought by the Director with respect to a sentence passed in the District Court for an offence under s 66EA. The reasons for upholding the appeal against sentence did not turn on the observations as to the elements of s 66EA raised by ground 6. This Court would follow its own recent statement as to the operation of a statutory provision where the views of the Court in the earlier case were dispositive and thus binding, unless persuaded that the statement was clearly wrong in a respect which was material to the determination of the later case. However, the relevant passage in R v RB appears to be obiter and thus not binding. That is not to say that the Court should not apply obiter reasoning in an earlier decision; generally, it would. But where the trial was run on a different basis other issues arise. Ground 6 therefore raises a preliminary question as to whether the applicant should be permitted to rely upon it in the present case.
In Towse v R [1] I expressed doubts as to the correctness of aspects of the reasoning in R v RB. I continue to entertain those doubts, but they are not properly addressed in this case. For reasons explained below, while I accept that the reasoning adopted at trial was not consistent with R v RB, I am not persuaded that the Director’s concession that the jury direction was erroneous should be accepted, nor that the applicant is entitled to rely on it in this case.
1. [2022] NSWCCA 252 at [22].
It follows that these reasons must also determine grounds 2, 3, 4 and 5, which it was unnecessary for the majority to address. Those grounds should not be upheld. Accordingly, in my view the applicant should have leave (to the extent necessary) to appeal the conviction, but the appeal should be dismissed.
That conclusion raises a further question as to the fate of the appeal against sentence. In sentencing the applicant on 1 April 2021, the trial judge approached the circumstances of the offending by determining for himself which of the particulars identified in count 1 of the indictment were established beyond reasonable doubt. He accepted that all bar one had been proven. Accordingly, he sentenced on that basis. The sole ground of challenge to the sentence was that, it being sufficient that the jury had been satisfied of two particulars, unspecified, the judge was required to sentence on the basis of an assumption that only two particulars had been satisfied and that those were the least serious matters. That approach was required, the applicant submitted, by the reasoning of the High Court in Chiro v The Queen [2] and KMC v Director of Public Prosecutions (SA). [3] Those cases were treated as distinguishable by the trial judge, on the basis of a comparison of s 66EA of the Crimes Act with the South Australian provision applied in those cases. That approach was confirmed by this Court in the dispositive part of its reasoning in R v RB.
2. (2017) 260 CLR 425; [2017] HCA 37.
3. (2020) 267 CLR 480; [2020] HCA 6.
It follows that unless R v RB was wrong, the sentencing appeal must fail.
Senior counsel for the applicant was ambivalent at the hearing in this Court as to whether he sought to pursue the appeal against sentence, or was content to raise the matter so that it could, if necessary, become the subject of an application for special leave to appeal against sentence to the High Court. No written submissions explained why Chiro was to be applied, nor was the matter pursued in oral argument. Accordingly, leave to appeal against the sentence should be refused.

Ground 6 - misdirection of jury

It is convenient to deal next with the challenge to the judge’s direction as to the elements of s 66EA. It is necessary first to identify the legal issues raised by that provision.

Issues of statutory construction

Section 66EA has 15 subsections, including a series of definitions in subs (15). Subsections (1)-(5) are set out by Harrison J; it is sufficient to set out here the first two subsections, which read as follows:

66EA   Persistent sexual abuse of a child
(1)   An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty—Imprisonment for life.
(2)   An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.

Ground 6 assumed that these provisions included a requirement for a “sexual relationship” over and above the requirement for two or more unlawful sexual acts. That proposition derived its force from the fact that subs (1) identifies the offence as being committed when an adult “maintains an unlawful sexual relationship with a child”. However, the phrase “unlawful sexual relationship” is then defined in subs (2) as “a relationship in which” a person engages in unlawful sexual acts. To extract the two words “sexual relationship” from the defined term and to construe the definition by reference to the ordinary meaning of those words would be “to construe the words of a definition by reference to the term defined”, an approach described as “quite circular” by the High Court in Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc. [4]
4. (1994) 181 CLR 404 at 419; [1994] HCA 54.
While there may be circumstances in which words used in a defined term are relevant to understanding the definition, [5] the assumption underlying the present contention turns on adopting the common meaning of two words (sexual relationship), rather than one word (relationship). By contrast the definition identifies a kind of “relationship”. Further, the use of the term “relationship” explains the choice of verb in subs (1), namely “maintains”.
5. See, eg, Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 at [30-[34] (in my reasons); [101]-[130] (Leeming JA).
On its face, the definition in subs (2) assumes “a relationship”, identifying it as one “in which” the adult engages in sexual acts. Thus, the accused person must have a relationship with a child, but that relationship will be an “unlawful sexual relationship” if the adult engages in the unlawful sexual acts over any period. It would not only be circular, but inconsistent with the terms of the definition to require that there be some form of sexual relationship with a child beyond one in which two or more unlawful sexual acts are committed. Indeed, the concept of a sexual relationship with a child which is not in some sense unlawful is inherently problematic. What is clear from the definition is the intention of the legislature to impose no constraint on the scope of an unlawful sexual relationship other than that it involves at least two unlawful sexual acts with or towards the one child. In that sense, the term “relationship” has work to do: it excludes from the scope of the offence a person who commits unlawful sexual acts with a child with whom he or she has no relationship, and perhaps does not know that the victim is in each case the same child.
As senior counsel for the applicant accepted, the substance of ground 6 was not raised by trial counsel. However, the issue of how to formulate appropriate directions with respect to the elements of s 66EA was raised by the trial judge with counsel before they addressed, on the afternoon that the evidence concluded. The judge indicated the nature of the directions he was intending to give and sought submissions. Counsel for the accused referred the judge to the South Australian Full Court decision in R v Mann. [6] The issues raised in that case were discussed on the completion of the evidence; [7] the judge returned to the issue the following morning, indicated the nature of the directions he proposed to give and sought further comment from counsel. Counsel for the accused said: “I don’t want to say anything, your Honour”. [8] The prosecutor also declined.
6. (2020) 135 SASR 457; [2020] SASCFC 69 (delivered on 17 July 2020).
7. Tcpt, 1/09/20, pp 316(30)-321(17).
8. Tcpt, p 329(17).
Neither counsel at any point departed from the common position that the judge was properly entitled to rely upon and apply the reasoning of the South Australian Full Court in Mann. In his closing address, the prosecutor identified the nature of the relationship for the purposes of count 1 in the following terms: [9]

“Count 1 in relation to the indictment, I just wanted to say something about the nature of the relationship between the complainant and the accused and remind you of this. Obviously the relationship between the two of them is father and daughter. It was a relationship where they were living together for the vast majority of the charge period. You might think that the period [sic, accused?] was exercising at times sole supervision for the complainant for large parts of the period, particularly when you’ll remember that the complainant was living in Tamworth and her mum was working long hours. And the responsibility for her care largely fell to the accused – fell to the accused.
You’d also consider the complainant’s age when considering their relationship. She’s a very young child at the start of that relationship. She’s only two. And she’s only six years old at the end of the period. So you might think that given all of those circumstances the accused was in a position of trust – withdraw that, a position of authority over the complainant. So [what] the Crown says is that was the true nature of their relationship.”
9. Tcpt, p 345(35)-(50).

Counsel for the accused did not contradict, or address, the nature of the relationship as a relevant issue. The judge dealt with it in the summing up in terms consistent with his earlier indication and consistent with the observations of the prosecutor.
R v Mann involved a complainant who was the daughter of the accused’s former de facto partner. Section 50(1) and (2) of the Criminal Law Consolidation Act 1935 (SA) was in terms relevantly identical to s 66EA(1) and (2). The Full Court, constituted by Kourakis CJ (with whom Kelly J and Peek J agreed) answered a number of questions reserved by a District Court judge. Question 1 dealt with the elements of the offence under s 50(1). To a large extent Kourakis CJ answered the question as to the element of “relationship” by reference to passages in an earlier Full Court judgment, R v M, DV. [10] In holding that “it was an element of the offence that the accused maintained a relationship with the alleged victim, and that that element required more than proof alone of the commission of two or more unlawful sexual acts”, [11] the Chief Justice cited the following passages from his own reasons in R v M, DV:

“[1] … I would hold that the actus reus of the offence is the maintenance of a relationship, which need not be a sexual one, in which (in the sense of in the course of which) an adult engages in two or more unlawful sexual acts with a child .… On the undisputed evidence, therefore, there existed between them a relationship, whether it be described as a familial or residential one, and it is one which the appellant maintained ….”
10. (2019) 133 SASR 470; [2019] SASCFC 59.
11. Mann at [12].

In R v M, DV at [9] the Chief Justice noted that Blue J had identified three possible constructions of s 50:

“(1)   The relationship is constituted by the multiple unlawful sexual acts themselves.
(2)   There must be a relationship (not necessarily a sexual one) between the defendant and complainant in addition to proof of the commission of the multiple unlawful sexual acts themselves.
(3)   There must be a sexual relationship between the defendant and the complainant which is an additional element to the commission of the multiple unlawful sexual acts.”

The Chief Justice continued:

“10 I would adopt the second construction of the section for the following reasons. First, the words ‘in which’ in subsection (2) differentiate the relationship from the unlawful sexual acts. The unlawful sexual acts are not in themselves the relationship, they are acts which occur within it. I acknowledge that the words ‘in which’ can also be read as ‘constituting’, that is to say that an unlawful sexual relationship is the commission of the prescribed acts. However, to achieve that result the subsection could simply have read ‘an adult who engages in … is in an unlawful sexual relationship with that child’. In the absence of an express deeming of that kind, it is a strained use of the language to describe the victim and the perpetrator of two sexual offences as being in a relationship by reason of these acts alone and in the absence of any other connection.”

Section 50(3) of the South Australian Act required that the trier of fact be satisfied beyond reasonable doubt “that the evidence establishes that an unlawful sexual relationship existed”. Section 66EA(5)(a) is to the same effect. However, s 50(4)(c) provided that the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship; again s 66EA(5)(c) is to the same effect.
Kourakis CJ noted that if the relationship were constituted simply by multiple unlawful sexual acts (the first available construction), “the prosecution need not prove anything more than the commission of two or more unlawful sexual acts, there would be no conduct element of the offence of persistent sexual abuse on which the jury need be agreed, unanimously or by majority”. [12] That, the Chief Justice noted, would involve a radical departure from the principle that a charged offence must be proved to the satisfaction beyond reasonable doubt of the tribunal of fact on a unanimous conclusion as to the necessary elements. He continued:

“16 The second construction would resolve the inherent uncertainty in the conduct element of the conviction by requiring unanimity as to the existence of a relationship which whilst it subsisted was corrupted, and constituted an unlawful sexual relationship, by the defendant engaging in two or more unlawful sexual acts. It is not illogical for the jury to be satisfied beyond reasonable doubt that an unlawful sexual relationship in that sense existed, even though the jurors themselves are not agreed as a body as to the particular acts, and the time and circumstances, in which they were committed.” [Footnote omitted.]
12. R v M, DV at [14].

For the reasons noted at [14]–[15] above, the reasoning of the Full Court in L v M, DV, adopted in Mann, is persuasive; at the very least it is not clearly wrong.
However, even were a different approach reasonably open, the trial judge was correct to apply the principle there stated and, if the parties wished to dispute it, they should have raised objection at the time. It is not appropriate for this Court to be invited to depart from the course taken at trial and determine that that course was wrong in law on the basis of dicta raised by the Court in a subsequent case and in circumstances where no objection had been taken below. That principle is of longstanding authority, as explained by this Court in R v Unger. [13]
13. [1977] 2 NSWLR 990 at 993.

There is a line of authority dealing with attempts by applicants to obtain leave to review a conviction on the basis that a material element in the prosecution case has, after the trial, been authoritatively held to be incorrect. As identified in the joint reasons in Kentwell v The Queen,[14] cases concerned with “reopening a conviction in consequence of the correction by a court of authority of a misconception as to the state of the law”, which turn on the need for an extension of time, require the court to ask whether refusal of an extension would occasion “substantial injury” or substantial injustice” to the applicant, a test applied by this Court in Abdul v R. [15] Kentwell held that that approach did not apply with respect to an application for leave to appeal against sentence, but did not cast doubt on the test in relation to an appeal from a “stale conviction”. The joint reasons stated:

“29 The reliance in Abdul on the English line of authority was misplaced. The interests of justice in the review of a sentence that has been imposed upon wrong sentencing principle and that is still being served are to be distinguished from the interests of justice in the review of a stale conviction. The review of an old conviction may raise consideration of the capacity to hold a new trial that is fair to both sides. For example, witnesses may no longer be available and exhibits may have been lost or destroyed. Re-opening a conviction for an offence of violence may occasion acute stress to the victim, including by the prospect of being required to give evidence again. This appeal does not provide the occasion to consider the issues raised by an application to extend time in which to challenge a conviction on the ground that a misconception as to the law has been removed by later authoritative decision.” [Footnotes omitted.]
14. (2014) 252 CLR 601; [2014] HCA 37 at [28] (French CJ, Hayne, Bell and Keane JJ).
15. [2013] NSWCCA 247 at [46]-[49] (Hoeben CJ at CL, Johnson and Bellew JJ).

The present case has similarities to R v Unger, where Street CJ explained: [16]

“The extension of time is sought upon the basis that regulations forming an essential part of the Crown case and accepted as valid at the trial are, for the purposes of ruling on the extension of time, to be assumed to have been shown to be invalid. The point of time at which such invalidity is said to have been shown is the date when the decision in R v Lind was given, namely, 10^th March 1976. This date, it will be observed, was one year and nine months after the appellant was convicted. The application is presented by the appellant, not open there having been a change in the law subsequently to the trial, but rather upon a defect in the Crown case existing at the date of the trial, but only exposed in the subsequent decision of R v Lind.”
16. Unger at 993B.

As further explained by Street CJ, authorities in both criminal and civil jurisdictions “tend strongly against granting to the present appellant the extension of time that he seeks”. [17] The Chief Justice continued:

“There is no difference in principle between a subsequent judicial decision which has the effect of exposing a prior misconception in relation to a principle of law which was wrongly regarded as well founded at the time of the trial, and a subsequent judicial decision exposing the invalidity of regulations that were wrongly treated as valid at the time of the trial. The trial having been concluded and the time for appeal having gone by, the general principle is that the matter is regarded as at an end. It is to be borne in mind that the effect of a conviction in a criminal court, no less than a verdict and judgment in a civil court, is to merge in that conviction or judgment, as the case may be, all of the material upon which it proceeded.”
17. Unger at 995B.

Street CJ identified the underlying principle in the following terms: [18]

“This finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved.”
18. Unger at 995G.

This Court returned to those principles in Jackmain (a pseudonym) v R [19] a case in which the applicant sought to challenge an established construction of s 293 of the Criminal Procedure Act 1986 (NSW) which prevented him defending a charge of sexually assaulting a former partner by adducing evidence of an alleged tendency on her part to fabricate claims of sexual assault. Leeming JA, delivering the leading judgment, noted that overturning a line of authority amounted to holding that the reasoning in earlier decisions was wrong so that potentially there would be people convicted on the basis of a wrong understanding of the rules of admissibility of evidence. Leeming JA continued:

“162 The mere fact that a court has changed the law does not of itself entitle a convicted person to appeal out of time: R v Unger [1977] 2 NSWLR 990; R v Gregory [2002] NSWCCA 199 at [38]-[42] (the position is different in the case of an out of time appeal against sentence, which does not raise the spectre of a new trial, unavailable witnesses, and further trauma to the complainant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [29]). To simplify the position by invoking Lord Atkin’s adage in Ras Behari Lal v King-Emperor (1933) LR 60 Ind App 354 at 359 that ‘finality is a good thing, but justice is a better’ may tend to suggest that the values of justice and finality are less multifaceted than they in fact are. That said, where the change in the law would, if the point were permitted to be taken in an out of time appeal, lead to an acquittal, that would be a very powerful factor supporting the extension of time, although even then, as R v Unger holds, an extension is not inevitable. The narrowing of s 293(3) for which the applicant contends would not (save perhaps in a highly unusual case) lead to an acquittal, but to a retrial. Even so, such changes – necessarily with retrospective effect – have an unsettling effect on the fabric of the law – especially as applied in criminal trials where the law as applied had been regarded as ‘settled’.”
19. (2020) 102 NSWLR 847; [2020] NSWCCA 150.

As argued on appeal, the present case did not turn upon an application for an extension of time, although leave was sought to file a notice of appeal after expiry of the filing period, on 1 June 2022. Even if that extension were granted, the notice of appeal at that time did not include ground 6. Leave was also required to file an amended notice of appeal containing an entirely fresh basis for challenging the conviction, namely ground 6, filed in August 2022. It will be necessary to return to the significance of that matter.
The premise underlying ground 6 was that the law with respect to the operation of s 66EA of the Crimes Act had been altered by the judgment of this Court in R v RB delivered on 29 June 2022, after the first notice of appeal was filed. However, that premise took the matter beyond the constraints imposed by the reasoning in Unger. In Unger, the Court of Criminal Appeal had ruled upon the validity of the material regulation, albeit after the trial of Mr Unger. In contrast, this Court did not determine the proper construction of s 66EA in R v RB which, as explained above, involved a prosecution appeal against the inadequacy of the sentence. At the applicant’s trial, it was accepted that there was no authority of this Court determining the proper application of s 66EA. On the other hand, it was also accepted that the principles established in Mann, involving relevantly identical South Australian legislation, should be applied. This Court has never held that the reasoning in Mann was wrong; Mann was not addressed, even in obiter dicta, in R v RB. Accordingly, the degree of reticence required in granting leave to review a conviction based on a wrong understanding of legal principle demands a careful assessment of the factors identified in Jackmain and in Kentwell.
In the present case, it is appropriate to deal with that enquiry by reference to the requirement for leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in circumstances where that rule is inevitably engaged because the construction of the section put forward by the applicant was not raised at trial. It follows that this Court must be affirmatively satisfied that a substantial injustice would be inflicted on the applicant if leave were not granted. That is indeed the general principle which has applied to applications under r 4.15 and its predecessor. However, putting to one side the practical consequences for the complainant and other witnesses, who would be required on a retrial to revisit evidence given by them more than three years ago, the Court would need to be comfortably satisfied that the reasoning in Mann was wrong and that a different construction should be adopted of s 66EA. In my view, the applicant failed to satisfy that test. At some stage, it may be appropriate for this Court to determine whether the South Australian Full Court was correct or the dicta in R v RB should be preferred. In my view, applying the principles set out above, that is not this case.
Approaching the matter on that basis, it is not necessary to determine whether the necessary extension of time should be granted, but it is not clear that a different test would be applied in that context.
The offending parts of the direction to the jury have been emphasised in the extract set out by Harrison J below. However, read as a whole, the trial judge’s explanation is consistent with the elements of s 66EA identified above. The two inadequacies identified by the Director and set out by Harrison J at [169] below impose an additional requirement, namely that the prosecution needed to establish a “sexual relationship” other than one constituted by the familial relationship accompanied by two or more unlawful sexual acts. Properly understood, no such addition or element was required by the statute.

Ground 6 - conclusion

In these circumstances, and not being persuaded that any miscarriage of justice would arise if leave were refused, the appropriate course is to decline to grant the applicant leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to rely on ground 6.

Other grounds of challenge to conviction

Background

The applicant’s counsel dealt with the other grounds briefly and together in oral submissions. Ground 5 falls into a separate category, but the submissions with respect to grounds 2-4 turned on common elements of the procedural history of the trial, which is helpfully summarised at the outset. They relate to the use made of certain text messages between the applicant and his daughter, and aspects of the history of complaints, particularly to her foster mother, Ms Doyle. The complainant was removed from the family home on 13 December 2016 and lived for some months with her maternal grandparents; on 6 July 2017 she was moved to Ms Doyle’s home.
In opening the case to the jury, the prosecutor stated that some of the hundreds of text messages sent whilst the complainant was with her grandparents would be in evidence. Giving examples, he explained that the prosecution case was that “many of the messages are extremely affectionate and some of the messages demonstrate some emotional manipulation of the complainant by the accused”. [20]
20. Tcpt, 26/08/20, p 70(35).
The text messaging ceased after the complainant commenced living with Ms Doyle, no doubt primarily because the complainant did not have access to a phone. Ms Doyle gave evidence of what the prosecution submitted was sexualised conduct, the significance of which was explained in expert evidence which was not the subject of challenge on the appeal and need not be addressed. Ms Doyle also gave evidence of “complaints”, that is, statements by the complainant as to her relationship with her father involving sexual contact. Ms Doyle kept notes of the complainant’s conduct and remarks which raised her concern. Some brief evidence was called from her friend, Mr Young.
Evidence was also adduced from officers from the Department of Family and Community Services supervising access visits by the applicant of the behaviour of the applicant and the complainant witnessed by them. The observations included lengthy kissing and physical contact whilst the complainant was going down the slide at a playground.
In the absence of the jury on day 5 of the trial, the judge raised two issues in the following terms: [21]

“There are two discrete areas of evidence that, as I see it, need some explanation. The first concerns the evidence of complaint about uncharged conduct and the second concerns evidence of observations of uncharged conduct. We might deal with the latter first if that’s convenient. That’s the one that seems more difficult to me. The evidence was given without objection and it may be that the parties have an understanding of what it goes to that wasn’t apparent to me and, if so, it would be of assistance if that could be explained so that I can understand in order to inform the jury about it.”
21. Tcpt, p 233(5).

The prosecutor confirmed that the judge was referring to observations made by officers from the Department responsible for supervising the applicant’s access to his daughter after she left the home. The prosecutor explained that there was further evidence to be called, “but in broad terms the Crown says that evidence is relevant to the timing of the complaints made by the complainant. In other words, the complainant does not complain whilst she is still having physical and/or telephone contact with the accused almost immediately upon cessation of that conduct that she first complains”. The judge then identified it as being in the nature of “context evidence” and as going to explain delay in complaint. [22]
22. Tcpt, p 233(27) and (35).
The prosecutor then provided to the court copies of the text messages between the applicant and the complainant which it was intended to adduce through the officer in charge of the investigation. The prosecutor explained their relevance in the following terms: [23]

“What the Crown intends on saying to the jury about that is ultimately it does explain the delay in complaint …, but also, when you read through some of those messages, the Crown would say to the jury that it’s not an innocent father/daughter type relationship, but more a relationship that you would associate with boyfriend and girlfriend.”
23. Tcpt, p 235(13).

The judge asked counsel for the accused if there was likely to be any objection to the admission of that material, to which counsel responded that he did not anticipate that there would be.
Detective Senior Constable Melinda Kilkeary gave evidence in relation to the extracted text messages. Following her evidence, the judge gave the following direction to the jury late on day 5: [24]

“Before you do go, I must give you some directions about certain evidence that you heard on Friday [and] which you have heard today. It concerns two areas of evidence. The first is evidence of complaints of the complainant that do not concern the allegations that are the subject of the counts in the indictment. Let me remind you of the evidence I am talking about so that you understand it.
You will recall on Friday Ms Doyle and Mr Young both gave evidence of what they said the complainant told them about conduct of the accused. You may recall that they both referred to the complainant saying that the accused had done things to her or with her other than the acts that are relied upon for the counts in the indictment …. Having reminded you of that evidence, let me now explain the reasons you heard it. The evidence of what the complainant told witnesses that the accused had done to or with her that is not the subject of a count in the indictment. It’s before you only because that is how it is alleged her complaints came out about the conduct that is the subject of the counts in the indictment.
The Crown did not present this evidence of complaints about other conduct as evidence in support of any count in the indictment and so it cannot be used for that purpose. It is only relevant in assessing the credibility of the complainant’s account of the events that are the subject of the counts in the indictment. In other words, it’s relevant to whether you would find her account of those events believable and accurate so as to be reliable, but that is the only use that can be made of it.”
24. Tcpt, p 268(6)-(31).

The judge then made similar observations with respect to conduct that had been observed during access visits, which were seen by the supervising officers to be inappropriate, but which were not the subject of the charges. (It will be necessary to return to that material in dealing with ground 4).

Ground 2

Ground 2 alleged a miscarriage resulting from the prosecutor “suggesting to the applicant in cross-examination that he sent text messages to the complainant because he knew that he had sexually abused her”. The text messages in question were tendered as exhibit 9.
Although the submissions in support of ground 2 focused upon two questions in the course of the cross-examination with respect to the text messages, it is convenient to put those questions in context. The line of questioning was as follows: [25]
25. Tcpt, pp 305(40)-306(25).

“Q.   Do you agree that on an almost daily basis you’re telling [the complainant] how much you love her?
A.   Yes.
Q.   You’re very expressive about that?
A.   Yes.
Q.   You agree with that?
A.   Yes.
Q.   For example, you’re frequently telling her how you love her to the moon and back?
A.   Yes.
Q.   *Tell me if you agree with this proposition. You understood that it was very important that [the complainant] continued to think very fondly of you because you knew that you had been sexually abusing her and that it was less likely that she would tell anyone if she continued to like you?
A.   No.
Q.   You knew that it was in your best interest that she continued to love you, didn’t you?
A.   I wanted her to love me, but it wasn’t for that reason.
Q.   This is the sequence I’m suggesting to you. You did sexually abuse her in the way that she suggested before this period of time. You don’t agree with that, I assume?
A.   No, I didn’t.
Q.   *What you’re doing in these messages is you’re trying to find a way that she won’t tell anyone and you do that by sending her lots of messages so she will continue to love you?
A.   No.
Q.   You are playing on her emotions to make sure she kept loving you?
A.   No.”

The applicant’s submissions asserted that the two questions marked with an asterisk were improper because they supported an inference of consciousness of guilt on the appellant’s part in respect of the sexual abuse alleged in the indictment. No objection was taken to the questions. The damage, it was submitted, was done by the asking of the questions.
After the evidence was completed, the judge raised with counsel a number of issues relevant to the directions which should be given. These included the following exchange: [26]
26. Tcpt, p 325(5)-(40).

“HIS HONOUR: The last matter that’s potentially contentious concerns exhibit 9 I think, and it’s the text message exchange. The Crown put to the accused in evidence that he was in effect emotionally manipulating the complainant in order to dissuade her from making complaint about the alleged offences. That’s tantamount to raising at least the suggestion of consciousness of guilt. So does the Crown intend to put it to the jury as evidence of consciousness of guilt?
CROWN PROSECUTOR: No.
HIS HONOUR: All right. You say it’s relevant to credibility only?
CROWN PROSECUTOR: Yes.
HIS HONOUR: Then it’s a matter for you, Mr Bickford, whether you want me to give a Zoneff-type direction limiting it to credibility or leave it well alone.

BICKFORD: Leave it well alone is my submission, your Honour.
HIS HONOUR: It seems to me the jury still needs to be told something about how they may use that evidence and as I understand it it’s really relevant to the question of credibility of the accused.
CROWN PROSECUTOR: Is this the messages? And it also provides an explanation in part for the delay in complaint in the sense—
HIS HONOUR: Yes, regardless of the accused’s intention about it. Objectively it might have affected the complainant.
CROWN PROSECUTOR: Yes.
HIS HONOUR: Yes, that’s right. I think I’ve already told the jury as much. Is there anything else I should say to the jury about how it may be used?
CROWN PROSECUTOR: No.
BICKFORD: No, your Honour.”

The cross-examination by the prosecutor was unexceptionable. He had, at all stages through the trial, indicated that he intended to rely upon the text messages to demonstrate emotional manipulation of the complainant to attempt to avoid or reduce the risk of complaint. There is no suggestion that that course was inappropriate or prejudicial. Indeed, it would have been inappropriate to submit to the jury that the applicant had intended and attempted to manipulate the complainant if that proposition had not been put to him in the witness box.
However, reliance on the text messages for that purpose inevitably raised the inference of consciousness of guilt. It followed that the denial of the suggestion involved the accused being untruthful, as would denial of the direct suggestion that he had sexually abused his daughter, which was suggested and denied without objection. Such questioning is not improper: the presumption underlies the whole of the cross-examination to the extent that it challenges evidence in chief denying the offending. In such circumstances, there must be some basis for a concern that the jury will reason impermissibly from a challenge to the credibility of the accused as to his guilt of the offences charged. That possibility did not arise in this case, as it did not arise in Zoneff v The Queen,[27] a case in which a direction given in an attempt to foreclose the risk of impermissible reasoning was held to be unnecessary and was the source of a miscarriage.
27. (2000) 200 CLR 234; [2000] HCA 28.
Ground 2 should be rejected.

Ground 3

The proposition challenged in ground 3 was that the prosecutor used the text messages to show that the applicant saw himself in a “boyfriend/girlfriend relationship with the complainant”.
Ground 3 invoked the second area of evidence discussed by the trial judge in directions given to the jury at the end of day 5 of the trial. The first part of his direction, noted above, dealt with evidence of what the complainant had told Ms Doyle and Mr Young. The second area was described as “evidence of conduct that is not the subject of counts in the indictment”. [28] That evidence included the observations of the case workers as to the conduct of the applicant during access visits and also evidence given by Detective Kilkeary as to the phone messages. The judge’s directions on that occasion said nothing specific in relation to the text messages other than that they post-dated the period of the relationship set out in the indictment and that they were relevant “to put the complaint’s account into its proper and realistic context”.
28. Tcpt, p 268(34).
Those directions were given prior to the accused giving evidence and, accordingly, did not relate to his cross-examination. The cross-examination on day 6 commenced with the following questions: [29]

“Q.   Did you have a sexual interest in your daughter, …?
A.   No.
Q.   Did you see yourself in some sort of boyfriend/girlfriend type relationship with her?
A.   No.”
29. Tcpt, p 297(18).

Later in the cross-examination, the accused was referred to the text messages and asked the following brief questions: [30]
30. Tcpt, p 301(8).

“Q.   I want to suggest to you that the messages that you’re sending [your daughter] are overly affectionate. Would you agree with the description or not?
A.   No.
Q.   Are you sure during this period of time you’re not still seeing her in a sort of boyfriend/girlfriend relationship?
A.   No.
Q.   Do you agree that, during some of those messages, you’re trying to play on her emotions?
A.   No.
Q.   You don’t agree with that?
A.   No.”

The accused was then taken to a number of individual messages in exhibit 9 and asked if he was not trying to play with her emotions.
The prosecutor put to the accused each of the allegations of sexual conduct with his daughter, all of which were denied. [31] The final questions were to the following effect: [32]
31. Tcpt, pp 310-311.
32. Tcpt, p 313(11)-(36).

“Q.   It was the period from about Australian Day 2017 when you say you were having some difficulties in your life. Would that be right?
A.   Yes.
Q.   At about that time, you were communicating with [your daughter] by SMS message, it that right?
A.   Yes.
Q.   You were reaching out to [her] for support during that period, would you agree?
A.   Sort of, yes.
Q.   You wanted her to be able to help you emotionally?
A.   I just needed to be told that she loved me and, yeah.
Q.   Did you try and reach out to any other adult friends during that time?
A.   … Yes my adult son in Queensland.
Q.   Could this be correct? You were reaching out to [your daughter] because you saw her as your partner rather than your daughter?
A.   No.
Q.   The truth of the situation is that from 2012 until May 2016, that you had an ongoing sexual relationship with [your daughter]. That’s right isn’t it?
A.   No.”

No objection was taken at the trial to the deployment of the text messages in cross-examining the accused. Nor was that cross-examination the basis of the alleged miscarriage in ground 3 on the appeal. Nevertheless, it was the cross-examination which provided the basis for the submission to the jury that they could infer from the text messaging that the applicant had a sexual interest in his daughter. While the jury may or may not have accepted that submission, the submission itself was properly based and was not liable to give rise to a miscarriage.
It is true that the use made of the text messages, following the cross-examination of the accused, went further than anticipated by the judge’s direction at the end of day 5. However, the prosecutor had earlier explained [33] that he would invite the jury to draw an inference that the accused saw himself as in a boyfriend/girlfriend type relationship with the complainant. No objection was taken at any stage to that use of the text messages, either before or after the judge gave the jury the warning at the end of day 5. Ground 3 must be rejected.
33. See at [43] above.

Ground 4

Ground 4 was expressed in broad terms, alleging a miscarriage resulting from the prosecutor “using evidence of the complainant’s conduct to establish that the appellant had told a lie in his testimony”. The thrust of the written submissions was that the prosecutor had made a factual mistake in his closing address.
The subject matter of the ground concerned what was described as open-mouthed kissing by the complainant. As has been noted, on 7 July 2017, the complainant was placed in the care of Ms Doyle, who was a foster carer with CatholicCare. Ms Doyle gave evidence that when the complainant first came into her care she would kiss Ms Doyle “open-mouthed”. Her evidence continued: [34]
34. Tcpt, p 113(27).

“Q.   Did you say anything to [the complainant] in relation to the open-mouth kissing?
A.   I told her that she had – if she was going to give me a kiss, it had to be with her – I showed her – like, lips together just a quick peck on the cheek.
Q.   Did you also enquire who showed her how to do that?
A.   I did.
Q.   What did she say?
A.   She said to me that dad did and that’s how we [family name] do it.
Q.   The open-mouth kissing, was that on one occasion or more than one occasion?
A.   On more than one occasion.”

The thrust of the applicant’s evidence in chief was that he never engaged in any kind of sexual activity with his daughter, never interfered with her “in any kind of sexual or indecent way at any time”. [35] In cross-examination he denied having any sexual interest in his daughter and did not see himself as being in a sort of boyfriend/girlfriend type relationship with her. He denied that during the period from 2012 until May 2016, he had an ongoing sexual relationship with her. Apart from those general denials, he did not refer in his evidence in chief to open-mouth kissing, and it was not put to him in cross-examination that he showed her open-mouth kissing.
35. Tcpt, p 297(8)-(15).
The prosecutor commenced his closing address with an outline of the chronology of events. In particular, he noted that from June 2016 until 7 July 2017, the complainant was living with her grandparents, a period of about 13 months. During that period the applicant had face to face contact with the complainant, albeit access visits were supervised. However, there was extensive telephone and SMS contact between the two suggesting, the prosecutor said, that whilst living with her grandparents “the supervision of her was next to non-existent”. From 7 July 2017, when the complainant was placed in the care of Ms Doyle, the text messaging stopped. Within five weeks of the complainant being placed in Ms Doyle’s care she complained for the first time of her father’s conduct. The complaints to Ms Doyle were treated as significant in the chronology and Ms Doyle’s credit was supported by the fact that she had taken and retained a notebook containing her observations of the complainant’s behaviour and statements about her father. The prosecutor referred to Ms Doyle’s evidence in relation to open-mouth kissing and other sexualised behaviour which, when asked, the complainant attributed to her dad.
After addressing in turn the evidence of each of the witnesses called in the prosecution case, the prosecutor turned to the evidence of the accused and commenced with the following passage: [36]

“Can I move to the evidence of the accused ladies and gentlemen. Now the accused has given evidence but that doesn’t change the position that he doesn’t need to prove anything. It still remains for the Crown to prove that his evidence should not be accepted. And of course the accused’s position is that he never did anything of a sexual nature to the complainant. Can I remind you of some of the things he said in his evidence. He said he denied having a practice of kissing [the complainant] with an open mouth. The Crown says that you would accept that Linda Doyle’s observations on this topic, that is shortly after [the complainant] came into her care, she used to kiss Ms Doyle with an open mouth and that she did say that her dad was the one who showed her how to do it. Again, put yourself in Linda Doyle’s shoes. Is that something you are likely to be mistaken about?
If you accept that the accused wasn’t being honest with you when he gave that answer of denying that he used to kiss [the complainant] with an open mouth, the next question is how does that answer infect the rest of his evidence? And that’s a matter for you to figure out ladies and gentlemen. The accused denied saying something to the effect of that’s how the [family] do it. The accused denied ever having massaged [the complainant]. The accused denied ever having slept naked in bed with the complainant.”
36. Tcpt, p 344(1)-(20).

On the appeal, the Director accepted that the denials referred to by the prosecutor in this passage were not to be found in the evidence. The suggestion of such denials by the accused was factually wrong.
Whilst accepting the error, the Director submitted that the misstatement did not cause a miscarriage as it was not of the kind that could realistically have affected the verdict, referring to the test identified by Gageler J in Hofer v The Queen. [37] Whilst Gageler J found no miscarriage by applying this test, the joint reasons in Hofer dismissed the appeal on the basis that although there had been a miscarriage, the proviso was satisfied.
37. (2021) 95 ALJR 937; [2021] HCA 36 at [123].
In my view, ground 4 should be rejected on the basis that there was no miscarriage occasioned by the single factual error in the prosecutor’s summing up, but if that approach be wrong, the miscarriage was certainly not capable of being characterised as “substantial” and for that reason the ground should be dismissed. The reasons for that conclusion are as follows.
First, although the mistake provided a basis for challenging the credibility of the accused, the point in issue was of limited significance. There was no doubt that the applicant and the complainant were affectionate in a physical way. Another of the supervisors of access visits (before the complainant was placed in the care of Ms Doyle) gave evidence that she had intervened to stop the complainant and the applicant kissing for a time which she considered inappropriate. [38] The open-mouth kissing itself was not an element of the charge, but could have been viewed as sexualised conduct on the complainant’s part. If the jury did so view it, its significance lay in the evidence of Ms Doyle to the effect that the complainant had ascribed the conduct to her father’s showing her how to do it. In that respect it supported her other complaints of sexual misconduct. If it was not so viewed, it was immaterial.
38. Tanya Herrmann, Tcpt, p 148(5).
Secondly, although the specific matter was not put to the accused, his blanket denial of sexual activity, and having any sexual interest in the complainant, was consistent with the mistaken proposition that he denied the specific conduct. The consistency of the accused’s denials rendered a denial of a specific matter, it not being the subject of a charge, of limited relevance.
Thirdly, the fact that neither the trial judge nor counsel for the accused noted the mistake or sought to correct it suggested that it had, in the atmosphere of the trial as a whole, no significance. Objectively, that is unsurprising.
Fourthly, had it been noticed, it could and certainly would have been corrected. There would have been no forensic disadvantage to the accused in having the matter identified and corrected, had it been noticed and thought significant.
Fifthly, and summarising the matters set out above, the error was not of the kind which would prevent this Court from deciding that, notwithstanding the error, guilt was proved to the criminal standard on the admissible evidence at the trial. [39]
39. See Hofer at [59]-[60] (Kiefel CJ, Keane and Gleeson J).
Ground 4 should be rejected.

Ground 5

Ground 5 alleged a miscarriage resulting from the absence of a direction to the jury that “if they did not accept the evidence of the appellant but they considered that it might be true they must acquit him”. That phraseology, taken from the second limb of the formulation provided by the High Court in De Silva v The Queen,[40] did no more than reflect a suitable direction to reflect the fact that the accused was entitled to an acquittal if his evidence raised a reasonable doubt as to any necessary element of the prosecution case.
40. (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).
The need for such a direction must be viewed in the context of the case. The judge’s summing up, in dealing with the burden of proof, commenced by stating in categorical terms that “[t]he Crown has the onus of proof, the defence has none. The accused need not prove anything. In our system of justice, every accused person is presumed innocent unless and until proven guilty”. [41] After explaining in more detail the standard of proof and that upon which the prosecution depended in general terms, the judge continued: [42]

“As you know, the accused gave evidence in the defence case. You should assess the accused’s evidence just the same as you would any witness in the Crown case. But remember, he need not prove his account is true. This is because the Crown must prove the charges it bring[s] against the accused and, as I have said, the defence need not prove anything. It follows that the accused need not prove the truth of his account.”
41. Summing up, pp 2-3.
42. Summing up, p 4.

While it is true that the jury were not invited to consider whether the evidence of the accused “might be true”, in the sense of raising a reasonable doubt as to the prosecution case, that was clearly the thrust of the direction given and repeated. There was no suggestion that the jury should choose between the conflicting accounts; the jury were clearly told that they must weigh all the evidence and be satisfied beyond reasonable doubt as to the complainant’s evidence of the charged events.
Secondly, issue was taken with the judge’s summary of the prosecutor’s submissions in relation to the evidence of the accused, which was in the following terms: [43]

“The Crown argues you would not accept aspects of the accused’s account in evidence and that this would, in turn, lead you to doubt the whole of his evidence. The Crown argues you would, therefore, not be left with a reasonable doubt about the evidence in the Crown case because of the accused’s evidence and the Crown concludes saying you would find the complainant’s evidence sufficiently reliable to prove the accused committed the alleged acts that are the subject of the offences beyond reasonable doubt.”
43. Summing up, p 17.

The applicant submitted that the reference to being led “to doubt the whole of his evidence was misleading; rather the correct direction was that if the jury had a doubt as to whether it was false, if it were reasonably possible that it was true, they must acquit.”
With respect, the submission missed the point of the judge’s remarks. This second passage was not a general direction by the judge, but was recording a specific argument put by the prosecutor namely that, applying Markuleski reasoning to the accused, a doubt about some aspect or aspects of his evidence might cause them to doubt other aspects and indeed the whole of his evidence. The prosecutor had indeed suggested that, on that basis, they would not find that his evidence raised a reasonable doubt as to the prosecution case.
Read as a whole, there can be no doubt that the jury were clearly and consistently told that the prosecution was to establish the elements of the charged offence in count 1 (or the separate offences in the alternative counts) beyond reasonable doubt and that the accused was to be acquitted unless they were satisfied as to his guilt beyond reasonable doubt. Understandably, when offered the option of raising further issues before the jury were asked to retire, neither counsel sought to do so. Rule 4.15 was engaged, but in the absence of error, need not be addressed.
Ground 5 must be rejected.

Conviction appeal – conclusions

Grounds 1, 2, 3 and 4 arguably require leave under s 5(1) of the Criminal Appeal Act 1912 (NSW). To the extent necessary, that leave should be granted. Leave to rely on ground 6 should be refused under r 4.15. Each of the other grounds should be rejected. Accordingly, the appeal against conviction should be dismissed.

Sentence appeal

For the reasons noted above, the appeal against sentence must be dismissed. The sole ground relied on, namely that the principle established in Chiro that an offender found guilty of an offence under s 66EA should be sentenced on the basis that he committed only the two least serious underlying offences, rather than on the basis that the judge determine for himself the particulars which he considered had been made out beyond reasonable doubt, was, as counsel acknowledged inconsistent with the holding in R v RB. It was also inconsistent with the approach adopted by the Full Court of the South Australian Supreme Court in Mann. No attempt was made to submit that these decisions were clearly wrong.

Orders

I propose the following orders, namely:

With respect to the conviction appeal:

Refuse the applicant leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2015 (NSW) to rely upon ground 6;

To the extent necessary grant the applicant leave under s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal on grounds 1-5 and grant an extension of time within which to pursue the appeal;

Dismiss the appeal against conviction.

With respect to the sentence appeal, refuse the applicant leave to appeal against sentence.

HARRISON J: The applicant seeks leave, and an extension of time, to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912, against his conviction for one offence contrary to s 66EA(1) of the Crimes Act 1900, following trial by jury in the District Court at Newcastle before Gartelmann DCJ.
The applicant was charged with six counts on an indictment. Counts 2, 3, 4, 5 and 6 were alternatives to five of the six acts particularised by the Crown with respect to the s 66EA(1) offence in Count 1. Upon the return of a verdict on Count 1, verdicts on the remaining counts were not required.
His Honour sentenced the applicant on 1 April 2021 to a non-parole period of 12 years’ imprisonment commencing on 1 September 2020, with an additional term of 6 years commencing on 1 September 2032 and expiring on 31 August 2038.
The applicant relies upon the following grounds of appeal:

The verdict of guilty was unreasonable.

A miscarriage of justice resulted from the Crown prosecutor suggesting to the applicant in cross-examination that he sent text messages to the complainant because he knew that he had sexually abused her.

A miscarriage of justice resulted from the Crown prosecutor using text messages sent by the applicant to the complainant to show that he saw himself in a “boyfriend/girlfriend” relationship with the complainant.

A miscarriage of justice resulted from the Crown prosecutor using evidence of the complainant’s conduct to establish that the applicant had told a lie in his testimony.

A miscarriage of justice from [sic] the absence of a direction to the jury that if they did not accept the evidence of the applicant but they considered that it might be true they must acquit him.

The trial judge’s directions with respect to the elements of the s 66EA offence were in error in that they failed to direct the jury regarding the requirement for a “sexual relationship” over and above the requirement for two or more unlawful sexual acts.

The sentencing judge erred in failing to sentence the applicant on the basis that he committed only the two least serious underlying offences.

Ground 1

The applicant contended that the jury ought to have entertained a reasonable doubt regarding the complainant’s account that she was sexually assaulted by him. That submission proceeded principally, although not exclusively, upon the basis that so much of what the complainant has reported is, merely by reason of its content, inherently improbable and difficult to accept. The applicant also submitted that the complainant’s account was otherwise contradicted or not supported so that, quite apart from the content of what she said, assessment of her credibility and reliability should itself have given rise to the existence of a reasonable doubt.
In order to understand this ground, it is necessary to consider the Crown case and the evidence upon which it relied.
The complainant was born in January 2010. Count 1 alleged that the applicant, who is the complainant’s father, maintained an unlawful sexual relationship with her between 1 January 2013 and 31 May 2016, when the complainant was between 2 and 6 years of age. Count 1 particularised six unlawful sexual acts, five of which corresponded to the individual acts charged as Counts 2 to 6 on the indictment as indicated below:

between 1 January 2013 and 31 December 2014, at Tamworth, the applicant rubbed his penis on the complainant’s naked body (corresponding to Count 2);

between 1 January 2013 and 31 May 2016, at Tamworth or Greta, the applicant digitally penetrated the complainant’s vagina (no corresponding individual count);

between 4 January 2015 and 3 January 2016, at Greta, the applicant digitally penetrated the complainant’s anus (corresponding to Count 3);

between 4 January 2015 and 3 January 2016, at Greta, the applicant touched the complainant on the outside of the vagina (corresponding to Count 4);

between 4 January 2015 and 3 January 2016, at Greta, the applicant touched the complainant on the breast area (corresponding to Count 5);

between 4 January 2015 and 31 May 2016, at Greta, the applicant inserted his penis in the complainant’s vagina (corresponding to Count 6).

The complainant first disclosed the offending on 13 August 2017 after she was placed in foster care with Linda Doyle on 7 July that year. This led on 4 October 2017 to the first of what became four interviews with the Child Abuse Squad of the NSW Police Force (JIRT). However, the complainant made no disclosures of sexual offending in the first interview.
Ms Doyle gave evidence in the Crown case that the complainant made further disclosures on 1 September 2017. The complainant participated in a second JIRT interview on 22 January 2018, by which time she was 8 years old. During that interview, the complainant disclosed the incident which formed the basis of Count 1, particular (a), on the indictment.
On 26 January 2018 and 9 February 2018, the complainant made further complaints to Ms Doyle and also to Ms Doyle’s friend Graeme Young on 11 and 13 January 2018. She participated in a third JIRT interview on 9 April 2018 and disclosed incidents that formed the basis of particulars (b), (c), (d) and (e) of Count 1.
The complainant participated in a fourth and final JIRT interview on 14 February 2019, at which time she disclosed the incident which formed the basis of particular (f) of Count 1. On 26 September 2019, she was cross-examined in pre-recorded evidence. That evidence and the JIRT interviews were played to the jury at the trial.
In opening the Crown case to the jury and in closing submissions, the Crown acknowledged that there were aspects of the complainant’s evidence that the jury might have difficulty accepting. The Crown suggested that the real issue was expected to be whether her evidence about the various incidents that made up the allegations was sufficiently reliable to prove the charges.
[REDACTED], the complainant’s mother, [REDACTED], her maternal grandmother, [REDACTED], her maternal grandfather, and [REDACTED], her half-brother, all gave evidence in the Crown case at the trial. Dr Rita Shackel gave evidence essentially regarding behaviours of victims of child sexual abuse, including evidence concerning how such victims disclose it and factors that affect their disclosures. She also gave evidence about sexualised behaviour of children and whether it is indicative of abuse.
The applicant gave evidence in his trial. He denied the allegations.
In order to appreciate the applicant’s contentions that the jury ought to have had a reasonable doubt upon the basis that certain aspects of the complainant’s account are unreliable or inherently implausible, it is necessary to consider what she said in the JIRT interviews. The following modified summary is taken from the Crown’s submissions in this Court.

Second JIRT interview – 22 January 2018

In the second JIRT interview, the complainant first disclosed sexual conduct by the applicant by saying:

“Oh, yeah, yeah. My mum and dad, my dad, when we were in bed, I didn’t know that it was not OK to sleep naked and they, my dad said, like, you could, that I could sleep naked with him, and my mum slept in a different room … And my mum didn’t say anything about it, and my dad was touching me where he wasn’t supposed to.”

The complainant said that the applicant was touching her on “[t]he bottom and here, and here, and I was only, like, a toddler … Three and four and five … And two.” She said that the “year before last year, 2016, it was over … ‘cause I had my own room then”. The complainant and her mother [REDACTED] commenced living with the complainant’s grandparents [REDACTED] and [REDACTED] on 3 February 2016 and [REDACTED] moved out on 28 May 2016.
In pre-recorded evidence, the complainant did not accept that the applicant had never slept naked in the bed with her.
In this interview, the complainant was asked why she had put the “boys’ parts” on a diagram, and she said, “He was rubbing it against me”. This led to further questions which formed the basis of Count 1, particular (a), with the complainant saying that the applicant rubbed his “doodle” “against me everywhere… [h]e was rubbing it against me in there” (on her vagina), and also described him putting his penis on her nipples. In pre-recorded evidence, the complainant maintained that the applicant had rubbed his penis on her body.
In the interview, the complainant also described the following:

“Q.240 OK. And was he touching on the outside or the inside or something else on your vagina?
A. Inside, outside and around.
Q.241 OK. And when you say inside, what does that mean?
A. Like do you know in the hole there.
Q.242 In the hole? And what, what was in the hole?
A. Once I accidentally wet my bed, and then he, when I was, he was, I accidentally wetted on him, weed on him ‘cause he kept touching where there - - -
Q.243 OK.
A. - - - and I accidentally weed on him.
Q.244 So when he touched inside your vagina - - -
A. I accidentally weed on him every time. Well I actually done that on purpose to make him stop.”

The complainant described touching with the applicant’s feet as being “[t]he same with his hands”, but digging more because his “toenails are really long”, everywhere including the outside of her vagina. She said he stopped when there was blood, indicating her vagina and breasts, but subsequently said that her breasts did not bleed “’cause I had, like I had a bra and undies, but the undies were very thin”.
In pre-recorded evidence, the complainant confirmed that she meant the applicant’s toenails digging but the blood was coming from her thighs and she did not mean to say that she was bleeding on her breasts. When she had said she was naked in bed, she meant “when he was doing it, he like took my things off and then he started doing it, and that’s when I was starting to get naked”.
In the interview, the complainant said that the applicant “put his, his hands in the crack” of her bottom, the same as he had with her vagina, and “fidgeting around in there … [i]n my butt and then he went like”, and she demonstrated audibly. While the applicant was in bed with her touching her, her mother was cooking and at work, or cooking at work. The complainant also said that her mother came into the bed.
Evidence established that while the applicant, [REDACTED] and the complainant were living in Tamworth, [REDACTED] worked at least five days a week, up to 12 hours a day (including at night), and while she was at work, the complainant would be in the care of the applicant or, from when she was 3 years of age, at preschool.

The third JIRT interview – 9 April 2018

In the third JIRT interview, the complainant said that there were occasions when the applicant’s hands were rubbing on her vagina “when we were asleep in the bed, in bed”, “on our big bed”, when she was 3, 4 and 5, at the Greta house. The reference to the Greta house was to ** High Street, Greta where the applicant, [REDACTED] and the complainant (then about 5 years, 9 months) lived from 18 September 2015. [TW] and his girlfriend also lived there initially but moved out after about two months. [REDACTED] was still working in Tamworth two to four days a week, during which time the complainant was in the care of the applicant. The house had two bedrooms and a sunroom out the back. The complainant had her own bedroom, and the applicant and [REDACTED] had the other bedroom.
Asked about what happened when she and the applicant lay on the bed, the complainant said, “and mum”, then said “[s]o my dad would touch me here so here’s my dad, my dad would touch me here” (indicating her vagina) and on her bottom (Count 1, particular (d) on the indictment). She also said this:

“Q.148 Yeah. O.K. All right. So that last time that dad touched his hand on your vagina was on the inside or the outside or something else of your vagina?
A. Outside.
Q.149 On the outside of your vagina.
A. Like this like that.
Q.150 [20.48] O.K. What were his hands doing on your vagina?
A. Tickling me.
Q.151 Tickling you, and what could you feel on your body?
A. Like he’d always do it when I was asleep and I’m like and I scrunched up and I’d wake up and I’m like what’s happening and then I ripped his hand off.
Q.152 Yeah. O.K. And when he’s, when he’s tickling your vagina what did it feel like to you?
A. It felt like a bug was on it, on it.”

Immediately thereafter, the complainant disclosed that the applicant touched her breasts in a similar manner (Count 1, particular (e) on the indictment).
In pre-recorded evidence, the complainant was asked whether her mother was always in the bed when the applicant touched her on the vagina and breasts at Greta. She said, “no”. However she said, “[s]he was always in bed unless she needed to go to the bathroom as well. But she was waiting till I – I finished”. She did not accept that the applicant had never touched her on the vagina, breast or bottom, in the bed.
In the interview, the complainant continued as follows (Count 1, particular (c)):

“Q.165 O.K. So tell me about him touching your bottom on that time?
A. Like he, then I, when was doing, he put a like, do you know their hole there.
…
Q.173 O.K. So you tell me, you talked about the hole, what hole was it?
A. There. In the middle.
Q.174 O.K. In the middle of your bottom the hole.
Q.175 And what would go up that hole?
A. His finger.
Q.176 His finger. O.K.
A. Or his hand.
Q.177 And what could you feel on your body?
A. A poo coming out.”

The complainant said she could feel the applicant’s finger tickling inside her vagina, and she waited “like it was always when I was asleep. I woke up whipped his hand out and then but it had poo all over it”. She said that when that happened, her mother was always in the bed, and always asleep. In pre-recorded evidence, the complainant said that her mother was not in the bed when the applicant put his finger in her bottom, but was in the toilet and when the toilet flushed he would stop.
Continuing in the third interview, the complainant said that the last time the applicant touched her inside her vagina was 2015, when she was 5, then in kindergarten at school (Count 1, particular (b)). She said the applicant would make her scream “because he was tickling me” with his fingers or a fluffy glove with feathers (she later said she had made the glove with the feather attached, which pulled off, and the glove “would just go outside”, or the applicant “would take [the glove] in the bath and do it”). She pointed at her bottom when she said that, and then said that when the applicant touched insider her vagina he would “pick a feather and put it down and tickle with me, tickle me”, and use the feather to touch her inside her “vagina hole”. She described a rainbow feather, “[a]bout the size of my rude finger”, plus a stick. In pre-recorded evidence, she confirmed that she had said that the applicant touched her on the inside of her vagina with a rainbow feather, and that the feather came from a fluffy glove.
In the interview, asked again about the applicant rubbing his penis against her, the complainant said that was in 2013 at Tamworth. It appears that the complainant associated that with living next to Tamworth Hospital. She could not remember a specific time, but remembered “it was ten times or more or less”. As to whether her mother knew what things the complainant was doing with the applicant, the complainant said she “only knew that we were having baths with each other”.

The fourth JIRT interview – 14 February 2019

By the time of the fourth interview, the complainant was 9 years of age. She had made an additional disclosure the day before, which she recounted in summary as follows:

“So, like, on Monday, Wednesday, Friday, my mother took pictures and on Tuesday, Thursday, Saturday, my dad took pictures. And on Tuesday, Thursday, Saturday, my mum was, like, taking my clothes off, like, her, him videoing that and laying in the bed naked together and having a bath. So, like, her, uh, in the shower and her, him in and me in the bath. And, like, us two swapping…”

The complainant said this was in [REDACTED]'s bathroom and the applicant’s bathroom. The applicant filmed it, although he left and the iPad continued filming with a letter stuck on it with Blu Tack saying, “[REDACTED] I am filming this love from Dad”. She said [REDACTED] and [REDACTED] were at the pub at the time. This kind of incident happened more than once. She maintained this account in pre-recorded evidence.
The complainant described (Count 1, particular (f)) getting under her bed “‘cause I could fit under my bed but he grabbed my foot just when I was nearly fully under there”, and he pulled her out, and penetrated her with his penis. The complainant said she showed her grandparents a video of the applicant putting his penis in her vagina, and they told her to delete it, which she did. She said she deleted “well over 200 hundred videos and thingies, and photos”.

The applicant’s submissions: Ground 1

The applicant’s argument that the jury ought to have had a reasonable doubt regarding the reliability of the complainant’s account drew uncontroversially upon the test articulated by the High Court in M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence …”.

The applicant’s argument relies, in part, on evidence, mostly unchallenged by the Crown, which the applicant maintained makes particular aspects of the complainant’s account improbable so that the jury, acting rationally, ought to have entertained a doubt about his guilt: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [119]. The applicant maintained that the unchallenged evidence of [REDACTED], [TW], [REDACTED] and [REDACTED] indicates that significant aspects of the complainant’s account are unreliable. In particular, these include her claims that:

she slept naked in her parents’ bed with her naked father;

the applicant kept a stick with a feather and a glove with feathers in a locked drawer in her parents’ bedroom;

before and after being penetrated by the applicant’s penis, she was hiding under her bed;

the applicant and the complainant’s mother would video and photograph sexually inappropriate activity;

there were lots of cameras on the walls in the shed;

she showed her grandparents videos or photographs on her iPad of the applicant doing sexually inappropriate things with her and they told her to delete them.

The applicant also submitted that the complainant’s evidence that her mother had sexually abused her should be regarded as unreliable given that the Crown made no attempt to question her about those allegations when she gave evidence in the trial.
The applicant also submitted that the following aspects of the complainant’s account of events were inherently implausible:

the claim that the applicant would dig his toenails into her, causing her to bleed;

the claim that he was asleep when he touched her breasts and vagina;

the claim that the applicant made her a “paper penis” and taped it onto her vagina;

the claim that the applicant asked her to hold his penis and write names with his penis and then he urinated;

the claim that the applicant used a stick with feathers to tickle inside her vagina and a fluffy glove with rainbow feathers to tickle her breast area and inside her anus;

the claim made to Ms Doyle that the applicant put his penis in the complainant’s mouth and would ask her to lick his genitals;

the claim that she knew the applicant was filming her with her iPad “because on the top there was this letter stuck to it with Blu Tack saying [REDACTED] I am filming this love from Dad”.

The applicant submitted that it was not possible “to escape the inference that the unreliability of significant parts of the complainant’s account must raise a reasonable doubt as to the reliability of the rest” of her evidence. Conversely, the fact that the complainant can be shown to have given credible and reliable evidence of matters not directly related to the acts constituting the charges does not detract from the submission that her evidence is otherwise incredible and unreliable in significant and relevant respects.

The Crown submissions: Ground 1

The Crown made the following submissions in relation to this ground.
The actus reus of the offence against s 66EA(1) is the maintenance of an unlawful sexual relationship, and is not an individual occasion of sexual assault of the kind considered in Pell. The offence is directed to the quality of the relationship and not any single incident. By force of s 66EA(5)(c), the jury’s verdict did not entail any finding with respect to any individual sexual act particularised by the prosecution in order to establish the unlawful relationship. As was explained in R v RB [2022] NSWCCA 142 at [44], the satisfaction of one or more jurors that a particularised act in Count 1 on the indictment had been proved beyond reasonable doubt did not constitute a finding by the jury.
Moreover, the complainant’s evidence must be assessed taking into account her particularly young age during the period of the offence, the passage of time in her life since the incidents occurred, and the fact that she was still very young when she was interviewed, although older when she gave her pre-recorded evidence. Inconsistencies in a child’s evidence are to be considered in light of the child’s age at the date of the offences, the interval between the offending and first interview, and any further interval between a first interview and the child’s evidence: BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48 at [46].
Any difficulties of expression exhibited at times by the complainant are to be assessed taking into account that she was 7 or 8 years of age when giving her accounts of incidents that occurred when she was as young as 2, 3, 4 or 5 years old: see BCM at [44]. As this Court observed in AZ v R [2018] NSWCCA 294 at [169], 7 and 8 years of age is very young to be describing and demonstrating knowledge of sexual matters that a child of that age should not legitimately have. It is notable that by the time the complainant was 9 years of age, she articulated more clearly and succinctly in her pre-recorded evidence matters that she had sought to convey in the JIRT interviews when she was younger.
This Court has observed that the memories and thus the evidence of young children may be expected to deteriorate with the passage of even a relatively short period of time, something to which a jury would be entitled to have regard: AZ at [161]. Deterioration of the complainant’s memory of matters such as whether her mother was in the next room, or bathroom, or asleep, does not necessitate a finding of unreasonableness of the verdict.
In addition, the allegations made by the complainant which formed the basis of particularised incidents were specific and contained descriptions of sensations, experiences and observations that it was open to the jury to consider were of real memories and feelings, and unlikely to have been reconstructed or fabricated. It was open to the jury to assess her descriptions as supporting the authenticity of the critical aspects of her account, not the contrary. The example given by the applicant of the complainant saying to Ms Doyle “do you know men’s privates move”, and showing her how they move with her hand, demonstrates the point.
The complainant described feeling scared, nervous and sad when the applicant was touching her. She described incidents in a way that it was open to the jury to find was authentic: “my bottom was getting stretched” (which she demonstrated in interview); “it was inside of the bottom, I was feeling in the crack”; “his doodle was hairy”; “it felt like it was a bug on it”. She described the sensation she felt when she was penetrated: “Like whenever something goes up, it makes me need to go to the toilet”, and “tickling”. She also remembered and described the smell of faeces on her father’s hand after penetrating her anus. The complainant said that the feeling of being penetrated by the applicant’s penis was “it being inside of it, that’s how it felt”, and “my dad was putting his pants inside of where you like where he puts like the things where they make babies” (describing penetration of her vagina with the applicant’s penis). It was open to the jury to consider that the language used by the complainant underscored the veracity of what she said and her credibility.
The complaint evidence was also compelling. Ms Doyle took contemporaneous notes. The complainant gave evidence and said in interview that Ms Doyle told her to tell the truth and not to lie. Mr Young gave evidence that the complainant thought that sleeping with the applicant naked was normal. A passing, but notable, comment by the complainant in cross-examination was when she was asked “did you sleep on the bunk bed when you lived at nan and pop’s”, which she answered, “Yeah, and my nan slept with me with clothes on just until I go to sleep …” From the complainant’s position, it clearly warranted a remark that her grandmother had clothes on at the time.
Inconsistencies between the complainant’s account and that given by [REDACTED] were a matter for the jury to resolve. The jury asked for a transcript of [REDACTED]’s evidence and, it may be inferred, considered it closely.
To the extent that the applicant relies upon [TW]’s evidence, [REDACTED] and the applicant both gave evidence that he played little or no role caring for the complainant. He did not have any role trying to settle her after she had a nightmare. He had his own room at Attunga and in Greta he slept in a sunroom with his girlfriend.
The matters specifically raised by the applicant, considered individually or cumulatively, did not require the jury to have a doubt about the complainant’s credibility or reliability and did not imperil the conclusion that the applicant maintained an unlawful sexual relationship with her.
For example, in relation to the claim that the complainant slept naked in her parents’ bed with a naked applicant, Ms Doyle gave evidence that sometime after 13 August 2017, the complainant told Ms Doyle that she “slept in bed with her father, with no clothes on, naked … Both of them were naked”. In cross-examination, Ms Doyle said that she asked the complainant “How come you were naked” and the complainant said it was because her father said that her pyjamas were too small for her, and to sleep naked. Ms Doyle encouraged her to speak with JIRT, and the complainant said that her dad said, “I could sleep naked with him, and my mum slept in a different room”. In her pre-recorded evidence, the complainant maintained that she had slept with the applicant naked. Mr Young also gave evidence that the complainant had said she had slept naked with the applicant.
In relation to [REDACTED]’s evidence, the Crown submitted there is no rule of law that evidence which is not challenged in cross-examination must be accepted: Scaysbrook v R [2022] NSWCCA 69 at [98] applying Spencer v Bamber [2012] NSWCA 274 at [134]. Legitimate means other than cross-examination may be employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point: Scaysbrook at [98], applying R v Birks (1990) 19 NSWLR 677 at 686.
[REDACTED] was examined by the Crown on the allegation that the complainant had slept naked in her parents’ bed:

“Q . To your knowledge was there ever a time when [RW] was in your bed naked and [REDACTED] was also naked in your bed?
A. No.
Q. Was there ever a time when [RW] and [REDACTED] were in the same bed but with clothes on?
A. Yes there would’ve been some time.”

[REDACTED]'s evidence was limited to her knowledge, in circumstances where she was often absent at night for work. The issue was clearly raised by the Crown during her evidence and the Crown was not required to put to her that she was untruthful in order for the jury to find that she was not aware of occasions when the complainant was naked in her parents’ bed, or to elect not to accept her evidence or to accept only part of it. To the extent that there were inconsistencies with other evidence, they were matters for the jury to assess, bearing in mind that this Court must defer to the fact that the jury were in a better position to assess and determine any issues of credit: see Scaysbrook at [102].
In relation to the claim that the applicant kept a stick with a feather and glove with feathers in a locked drawer, the applicant relied at trial upon this evidence, and the complainant’s related account of them being kept in a “tricky or magic cupboard” or locked drawers, in support of submissions that the complainant was unreliable.
In pre-recorded evidence, the complainant maintained that she made a rainbow feather, and confirmed that she told the JIRT interviewer that it came from a fluffy glove and that the applicant put the fluffy feather inside her vagina. She said that the applicant put the fluffy glove with feathers in “the cupboard – not the cupboard, like the one that had the padlock on it”, and “I made it for him for his birthday so he could tickle my mother on the neck when she was asleep”, when she was two years old. She said she stuck a white feather and “the fluff things” on the glove, and stuck the feather on top, and painted them rainbow: “I would put the feather in sections so I know … what colour for what, so I made orange, yellow and then all the way through”. She maintained that she was telling the truth.
In closing submissions, the Crown acknowledged that there were parts of the complainant’s evidence which the jury would have difficulty accepting, and that at times her evidence was hard to follow and confusing. The Crown referred as an example to the “fluffy glove” which the complainant said the applicant used to touch her on the vagina, but submitted that the jury should accept part of what the complainant said, and could reject part. That is, “it’s open to you to reason that there are parts of [REDACTED]'s evidence that you do accept but there’s also parts of her evidence which you don’t accept”. The Crown obviously had to prove details of the allegations beyond reasonable doubt and maintained that the complainant’s evidence was sufficiently reliable with respect to the particular incidents that made up the charges.
[REDACTED] gave evidence that there were no locks on drawers in the bedroom at Greta, and [TW] said that he was not aware of a “tricky cupboard” or “magic cupboard”, or locks on drawers at Attunga or Greta. Their evidence of the extent of their awareness was not irreconcilable with the complainant’s account.
In relation to the claim that the applicant and the complainant’s mother would video and take photographs of sexually inappropriate activity, and that there were lots of cameras on the walls in the shed, that evidence was neither essential to Count 1 nor did it compel a conclusion that the complainant was generally unreliable.
The Crown examined [REDACTED] as follows in relation to videos and photographs:

“Q. Was there ever an occasions where you took photos of [RW] having sexual intercourse with [REDACTED]?
A. No.
Q. Was there ever an occasion when you took videos of [RW] having sexual intercourse with [REDACTED]?
A. No.”

[REDACTED] also gave evidence in cross-examination that there were no cameras on the walls in the granny flat at her parents’ residence.
In relation to the claim that before and after being penetrated by the applicant’s penis the complainant was hiding under her bed, the complainant said that she was trying to get under her bed, “’cause I could fit under my bed” but the applicant grabbed her foot “just when I was nearly fully under there”. He pulled her out and started to put his penis inside her, and “we were on my bed and I was trying to get off my bed, underneath my bed again”. It was night time and she was in her pyjamas when he came in and woke her up.
In pre-recorded evidence, the complainant said that in Greta she had her own bedroom with her own bed, which was the bed she was talking about crawling underneath. She gave evidence that the “green racing car bed” was actually a “little caravan thing” which was a double bunk which did not end up at Greta. She was shown the photographs which became exhibit 5 at trial, and maintained that in Greta, she had “a – the queens – king – single sort of bed and I didn’t have that bed” (referring to the green bed with the wheel on it). She said that when she told the JIRT interviewer about crawling under a bed to get away from her father, it was not the green bed but another one, with a “pinkish, purplish bed frame”. [TW] gave evidence at trial that the complainant also had a cubby house bed in Greta, with a “grey” area underneath, which was off the ground and used for toys, and the complainant would sleep in the racing car bed.
The complainant said that she showed her grandparents videos or photographs on her iPad of the applicant doing sexually inappropriate things with her, and they told her to delete them, which they denied. Ms Doyle gave evidence that the complainant told her, “When nan and pop both saw them” [i.e. pictures on her iPad of her father doing things to her], they told her to delete them without showing anyone.
The Crown put the Crown case on the deletion of videos and photographs in examination of the grandparents. The examination-in-chief of [REDACTED] included the following:

“Q. And you told her to delete it. Did that happen?
A. I beg your pardon.
Q. You told [REDACTED] to delete the video. Did that happen?
A. No.”

[REDACTED] was examined as follows:

“Q. Was there ever a time when [REDACTED] showed you a video of [RW] having sexual intercourse with [REDACTED] that was on her iPad?
A. No.
Q. Did she ever show you any photos of [RW] doing sexually inappropriate things with [REDACTED] on the iPad?
A. No.
Q. Did you ever tell [REDACTED] to delete any photos or videos off her iPad?
A, No.”

The issue was therefore raised by the Crown in this evidence, and the grandparents’ responses were patently contrary to the propositions in the questions which were put to them. The Crown was not required to put to the witnesses that they were untruthful in order for the jury to elect not to accept their evidence or to accept only part of their evidence.
The Crown made submissions in closing suggesting that parts of the grandparents’ evidence may not be credible or reliable: [REDACTED]’s evidence that her mobile phone sat in the cupboard at home, and [REDACTED]’s claim that only once had he seen the complainant with the iPad. In that context, the Crown also referred to their denials of telling the complainant to delete any photos or videos.
In relation to the aspects of the complainant’s account which the applicant contends were inherently implausible, the Crown submitted:

the complainant clarified in pre-recorded evidence that the blood was on her thighs and was specific that the blood did not get on the bed but did get on her and her father.

the complainant gave evidence that the touching did not all happen “when Dad was ‘dead fast asleep’”, nor did all of the rubbing. Moreover, asked what she meant by “dead fast asleep”, the complainant gave evidence which indicated a game involving the applicant purporting to be asleep. It was open to the jury to infer that the complainant did not mean to convey that the applicant was actually asleep, but rather in some play context. In her interview, the complainant said when she was little and she and her father played games, “we would, just say that if, like, we were playing a hospital game and we always fell asleep when we were playing it and we were trying to wake each other up, but we never woke up …”

evidence of the paper penis and writing names on the applicant’s penis considered in context, was not inherently implausible. For instance, the complainant’s reference to urination to Ms Doyle in the context of an incident where “she was writing, holding onto his penis writing [REDACTED] and their names”, may well have referred to ejaculation, a concept beyond the complainant’s knowledge at the time. Ms Doyle said, “she told me that she had hold of his penis and he told her to write their name with it. ‘Cause I said, and she said, moving it, like she was moving it while it was in her hand, like she was writing the names”. The complainant had a memory of it being lucky that her father had some tea towels under him because he “weed”.

there is nothing inherently implausible about the applicant having performed cunnilingus or fellatio with the complainant in all the circumstances.

the note described by the complainant, stuck on the iPad, was not central to any allegation in the indictment and was not implausible in context.

The acknowledgment by the Crown that the jury may not accept aspects of the complainant’s accounts, but that the particularised unlawful acts ought still be found to be established, employed orthodox reasoning. This reasoning was explained to the jury.
As to other matters raised by the applicant, the spontaneous nature of the complaints to Ms Doyle, that Ms Doyle exercised self-restraint against teasing out information from the complainant, and the proper manner in which the JIRT interviews were conducted, are relevant in support of reliability. Corroboration or support by objective evidence of aspects, such as the Luna Park trip, is relevant to an assessment of the reliability of the complainant’s overall account.
The opportunities that the applicant had distinguish the present case from Pell and were a circumstance that the jury was entitled to take into account. The Crown submitted that it was not suggested that, just because the applicant had opportunity (in the house at Greta), it followed that he did the things alleged to have occurred there.
The Crown maintained in these circumstances that on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant committed the offence in Count 1 in the indictment.

Consideration

The thrust of the applicant’s submission is that the complainant’s account is so replete with references to what are undoubtedly some very unusual, if not quite bizarre, items and activities that the jury ought to have retained a reasonable doubt about the truthfulness and reliability of the complainant in the circumstances. Rainbow feathers and fluffy gloves are certainly unusual items for a young girl to be describing to adults in formal interviews or in cross-examination and are on any view not things commonly encountered in the normal course of daily life, even in the wide experience of this Court. The applicant maintains, in effect, that his daughter’s descriptions are so fantastic and unusual that they could not be thought by any reasonable jury to be anything other than the product of a vivid imagination. More particularly is this said to be so having regard to the fact that some of the complainant’s evidence is the subject of competing evidence, such as that relating to the existence and deletion of video or photographic material.

However, as the Crown’s submissions somewhat graphically reveal, it is difficult to accept that the matters described in such detail by the complainant must necessarily or only be the product of her imagination. Her reference to the smell of “poo” is a prominent example. Her description of how she felt when penetrated is another. The seemingly inconsequential reference to the applicant’s toenails causing her to bleed is also in this category. The suggestion that the applicant made a paper penis and affixed it to her is on one view so extraordinary, having regard to what one might think to be the usual experiences of a primary school aged girl, that its truthfulness is thereby enhanced rather than shadowed in doubt. Such matters are properly ones for the jury to decide.
I am not satisfied that the complainant’s evidence lacks credibility for reasons associated with its extravagant content or for reasons that are not explained by the manner in which it was given. I am also not satisfied that her evidence contains discrepancies, or displays inadequacies, that ought to have led a jury to doubt it or that her evidence is somehow thereby tainted or otherwise lacks probative force. Moreover, in this case the jury had the advantage of seeing and hearing the JIRT interviews of the complainant and her cross-examination. The burden of the applicant’s contentions is that the complainant’s story is simply unbelievable. However, that submission does not find any support in the identification of some fact or circumstance that is obviously or even arguably irreconcilable with its truth so as to lead inevitably to a conclusion that the jury ought to have entertained a reasonable doubt. The Crown’s concession in opening the case to the jury and in closing submissions, that it would have difficulty accepting parts of the complainant’s evidence, and that at times her evidence may appear to be difficult to follow and confusing, is no less than a recognition of the fact that some suitable allowance needs to be made for evidence given by a child. In that context it is instructive to recall what was said by McHugh J in M at 534:

“It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.”

As the High Court recently reiterated in Dansie v The Queen [2022] HCA 25 at [8]:

“[8] …The reasoning in the joint judgment in… [M] establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’…”

In my opinion, upon an independent assessment of the whole of the evidence in the trial, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

Ground 6

His Honour Fagan J, in this Court in R v RB found at [62] that it is an element of a s 66EA offence

“that multiple unlawful sexual acts must have been perpetrated not merely in isolated circumstances or sporadically but with such a degree of continuity and habituality as to constitute an ongoing association or connection with respect to sexual activity.”

In the present case, the directions given to the jury did not, in the applicant’s submission, meet this requirement. The direction in fact given to the jury, with the parts about which the applicant complains emphasised in bold type, is as follows:

“Count 1 is an offence of maintain unlawful sexual relationship with a child under the age of ten years in which two or more unlawful sexual acts were committed.
…
Count 1 is the only offence of its kind. Its elements are that: the accused and the complainant had a relationship; the accused maintained that relationship; in the course of it he committed two or more unlawful sexual acts with her; and, when he did so, she was a child under the age of ten years. I will explain each of these elements in turn. The first element is that the accused and the complainant had a relationship. A relationship requires a connection over a period of time, not just an isolated interaction. It need not be continuous as it could be interrupted but then resume, provided it occurs over a period of time. It must have occurred with the period stated in the charge, that is, between 1 January 2013 and 31 May 2016, but it need not have spanned the entirety of that period. It need not have been a relationship in the colloquial sense, that is, such as one between partners, although it could be. Whether the accused and the complainant had a relationship is a question of fact for you to decide. You can take into account all the circumstances in considering this, including the nature of their association and interactions. The Crown says there was a relationship between the accused and the complainant as he was her father. She was very young. They were living together and he was exercising supervision over her during much of the position and he was in a position of authority over her.
The accused must have maintained the relationship. ‘Maintained’ means here what it ordinarily does, that is, carried on, kept up or continued. The accused must have knowingly maintained the relationship. That does not mean that he wanted a relationship or thought of it as one necessarily, but it requires that he knowingly did acts with the effect of maintaining the relationship.
The relationship must have been an unlawful sexual one. A relationship is an unlawful sexual one if, in it, an adult engages in two or more unlawful sexual acts with a child. The accused must have intentionally committed those acts, whether or not he knew they were unlawful. An adult is someone over 18 years and a child here is someone aged under 16 years.
As I have said, the accused must have engaged in two or more unlawful sexual acts in the relationship. The unlawful sexual acts on which the Crown relies are set out in Count 1 in the indictment. As you might expect, each of the acts set out there is an unlawful one if an adult intentionally commits it with a child. There has been no suggestion in this trial that any of these acts occurred but it was not sexual or unlawful. The issue has been whether the accused committed the acts.
As I have said, the Crown must prove the accused committed at least two of the identified acts. It does not matter which two and you do not have to agree on which two. The Crown can prove more than two but it must prove at least two. Remember though, you are concerned only with the acts that are identified in the paragraphs set out in Count 1. Evidence of other acts cannot be used in proof of Count 1.
The last element of this offence is that the complainant was aged under ten years at the time. There has been no issue about that in this trial.
In summary then for Count 1, the Crown must prove beyond reasonable doubt that: the accused and the complainant had a relationship; the accused maintained that relationship; in the course of the relationship he committed two or more unlawful sexual acts with her; and she was a child aged under ten years at the time. If the Crown has proved each of these elements beyond reasonable doubt, you would find the accused guilty of Count 1. If the Crown has not proved any of these elements beyond reasonable doubt, you would then need to go on and consider the alternative offences. These are Counts 2 to 6.”

Having regard to these directions, the Crown conceded in this Court that there was a material misdirection concerning the elements of the offence which carried with it the risk that the applicant’s conviction on Count 1 involved a substantial miscarriage of justice. That was said to be for the following reasons.
The Crown accepted that it is an element of the offence that it must prove that the relevant relationship that the applicant maintained with the complainant was of a sexual nature: R v RB. However, the Crown accepted that the direction in this case, taken as a whole, was inadequate because:

no reference was made to a “sexual” relationship when the “relationship” relied upon by the Crown was identified;

the effect of the direction would have conveyed that if the non-sexual relationship of father and daughter was maintained, then it would be an unlawful sexual relationship if in it the applicant engaged in two or more unlawful sexual acts.

Criminal Appeal Rule 4.15 applies to this ground of appeal. No redirection was sought. The Crown acknowledged that if its concession were accepted in this Court, it would also be appropriate to grant leave. The Crown also accepted that, if this ground of appeal is upheld, the appropriate order is one for a retrial and that it is not a suitable case for the application of the proviso under s 6(3) of the Criminal Appeal Act 1912.

Consideration

I consider that the Crown’s concession is properly made and should be accepted.
Section 66EA is in these relevant terms:

66EA    Persistent sexual abuse of a child
(1)    An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty—Imprisonment for life.
(2)    An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3)    It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.
(4)    In proceedings for an offence under this section, the prosecution—
(a)    is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and
(b)    is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

(5)    In order for the accused to be convicted of an offence under this section—
(a)    the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and
(b)    the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and
(c)    the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

It is apparent from the terms of the section that it is insufficient, when directing a jury on the elements of the offence, to say only that an accused and a complainant had a relationship, that he maintained that relationship and that in the course of it he committed two or more unlawful sexual acts with her. The relationship to which the section directs attention is an unlawful sexual relationship, not merely a relationship, for example of parent and child, in the course of which the accused engaged in two or more unlawful sexual acts with her. That proposition finds support in the terms of s 66EA(5)(a) which requires the jury to be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
Even if that distinction is thought to be unduly semantic in general, having regard to the fact that his Honour specifically directed the jury in this case that a relationship is an unlawful sexual one if, in it, an adult engages in two or more unlawful sexual acts with a child, that direction cannot cure the difficulty with the balance of the direction which says that there was a relationship between the accused and the complainant “as he was her father” and that in that context they were living together with him exercising supervision over her in a position of authority. Such a direction was in my view apt impermissibly to deflect attention from the statutory obligation of the Crown to prove the maintenance of an unlawful sexual relationship, as opposed to the proof merely of a father and daughter relationship, that by its very nature did not involve maintenance, and in the course of which unlawful sexual acts may coincidentally have been performed.

Grounds 2, 3, 4, 5 and 7

Having regard to the view I have formed with respect to Grounds 1 and 6, it is unnecessary to deal with these remaining grounds.

Orders

I would make the following orders:

Grant leave to appeal.

Allow the appeal.

Quash the conviction of the applicant and order that there be a new trial.

Direct that the proceedings be listed for mention in the Sydney District Court arraignments list on 17 February 2023.

FAGAN J: I agree with the orders proposed by Harrison J and with his Honour’s reasons. For the purpose of determining ground 1 it has been necessary to review the whole of the evidence in the trial and to consider the parts of the complainant’s evidence that the applicant submits were inherently implausible, inconsistent with other evidence or otherwise unreliable. Harrison J’s consideration of the jury’s capacity to accept so much of the complainant’s evidence as proved the alleged sexual acts, to reject unreliable parts of her evidence without feeling any reasonable doubt concerning the balance and to resolve conflicts between the complainant and other witnesses accords with my own assessment.
Grounds 2-5 concern two aspects of the Crown prosecutor’s cross-examination of the applicant, one passage of his address to the jury and one claimed omission from the trial judge’s summing up. No purpose would be served by determining those grounds in circumstances where ground 6 must be upheld and, in a retrial, the events of the first trial that gave rise to these grounds may not be repeated. I would only observe that the aspects of the cross-examination of the applicant and of the Crown address that are attacked in grounds 2-4 appear to have been of very little weight or value in advancing the Crown’s case. The prosecutor’s purpose, as he sought to explain it to the trial judge and as Crown counsel sought to explain it in this Court, was peripheral and obscure. The impugned questions and submissions bordered upon suggesting consciousness of guilt, without being explicit and apparently without intending to make the suggestion, and some of the questions could have been taken to suggest conduct in maintenance of a sexual relationship but occurring after the charge period. Upon retrial, the Crown would need to consider carefully whether these marginal and ambiguous points are worth the risk of creating unfairness and/or of generating arguable appeal points.
The Crown case upon retrial will, as in the first trial, depend upon jury acceptance of the complainant’s evidence. Questions and submissions about whether the applicant’s text messages were an indirect and manipulative attempt to discourage the complainant from pursuing her allegations against him, or whether the applicant saw himself in a “boyfriend/girlfriend” relationship with the complainant, or whether any asserted lie in his testimony was significant in its character as a lie appear to have been weak and unlikely to influence the jury in their fact-finding. The reasoning propounded, at trial and on appeal, to justify these small forensic steps is convoluted and difficult to follow.
With respect to ground 6 I note that the learned trial judge’s summing up was delivered on 2 September 2020. This Court’s decision in R v RB, in which the requirements for proof of “maintain[ing] an unlawful sexual relationship” were analysed in terms different from the way his Honour left the matter to the jury, was not handed down until nearly two years later, on 29 June 2022. It is through no fault of his Honour that the appellant must be retried.

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Endnotes

Amendments

06 June 2025 - Redactions made. Publication restriction removed.

Decision last updated: 06 June 2025

Medium Neutral Citation:	RW v R [2023] NSWCCA 2
Hearing dates:	16 November 2022
Date of orders:	03 February 2023
Decision date:	03 February 2023
Before:	Basten AJA at [1]; Harrison J at [87]; Fagan J at [177]
Decision:	(1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the conviction of the applicant and order that there be a new trial. (4) Direct that the proceedings be listed for mention in the Sydney District Court arraignments list on 17 February 2023.
Catchwords:	CRIMINAL LAW – appeal – appeal against conviction – persistent sexual abuse – whether verdict of guilty unreasonable – whether trial judge erred by failing to direct jury regarding the requirement for an “unlawful sexual relationship” in the s 66EA offence
Legislation Cited:	Crimes Act 1900 (NSW), s 66EA Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(3) Criminal Code (Qld), s 229B Criminal Law Consolidation Act 1935 (SA), s 50 Criminal Procedure Act 1986 (NSW), s 293 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited:	Abdul v R [2013] NSWCCA 247 AZ v R [2018] NSWCCA 294 BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48 Burr v R [2020] NSWCCA 282 Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 Dansie v The Queen [2022] HCA 25 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480; [2020] HCA 6 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Birks (1990) 19 NSWLR 677 R v CAZ [2011] QCA 231 R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5 R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59 R v Mann (2020) 135 SASR 457; [2020] SASCFC 69 R v RB [2022] NSWCCA 142 R v RB [2022] NSWCCA 142 R v Unger [1977] 2 NSWLR 990 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Scaysbrook v R [2022] NSWCCA 69 Spencer v Bamber [2012] NSWCA 274 Towse v R [2022] NSWCCA 252 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Category:	Principal judgment
Parties:	RW (Applicant) Rex (Respondent)
Representation:	Counsel: S Odgers SC with S Kluss (Applicant) B Hatfield and A Bonnor (Respondent) Solicitors: Ross Hill & Associate Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2018/111584
Publication restriction:	Statutory prohibition on publication of material identifying the complainant.
Decision under appeal	Court or tribunal: District Court of NSW at Newcastle Jurisdiction: Criminal Date of Decision: 03 September 2020 Before: Gartelmann DCJ File Number(s): 2018/111584