Scott v R

[2020] NSWCCA 81

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Scott v R [2020] NSWCCA 81
Hearing dates:	4 September 2019
Date of orders:	29 April 2020
Decision date:	29 April 2020
Before:	Brereton JA at [1] Hamill J at [2] Fagan J at [172]
Decision:	(1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence allowed. (5) Quash the sentence imposed in the District Court and in lieu thereof: (6) The applicant is sentenced to an aggregate sentence of 5 years commencing 5 June 2018 and expiring 4 June 2023, with a non-parole period of 2 years and 6 months expiring on 4 December 2020. (7) The applicant will be eligible for release to parole at the expiration of the non-parole period.
Catchwords:	CRIMINAL LAW – indecent assault of 8 year old grandchild – allegations of kissing on or near vagina – sexual intercourse – cunnilingus – whether trial miscarried by failure of counsel to lead evidence of alibi – new evidence presented on appeal – whether evidence established alibi – where time not of the essence – where indictment specified range of dates – whether miscarriage of justice – whether verdict unreasonable – analysis of evidence – audio visual recordings – whether appellate court should review evidence played to jury – where transcripts referred to gestures – gestures significant in determining whether prosecution proved sexual intercourse – advantages enjoyed by jury – verdicts not unreasonable     CRIMINAL LAW – sentence – hardship to third parties – extra-curial punishment – specific grounds not made out – whether sentence manifestly excessive – exceptional case – applicant’s contributions to community – relevance of good character – elderly offender – medical conditions – leave to re-open – COVID-19 – conditions of incarceration – vulnerability of offender – relevance to sentence – objective criminality – fleeting offence – applicant stopped when asked – sentence excessive – applicant re-sentenced
Legislation Cited:	COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) Crimes Act 1900 (NSW), ss 61HA, 61M(2), 66A(1), 578A Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5A), 53A(2)(b) Criminal Appeal Act 1912 (NSW), s 7(1) Evidence Act 1995 (NSW), s 66
Cases Cited:	AH v R [2015] NSWCCA 51 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246; [1981] HCA 20 CF v R [2017] NSWCCA 318 Director of Public Prosecutions (NSW) v Knight [2006] NSWSC 646; 162 A Crim R 555 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 Guo v The Queen [2020] NSWCCA 40 Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 Pell v The Queen [2020] HCA 12 R v Abbott (1985) 17 A Crim R 355 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Allpass (1993) 72 A Crim R 561 R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 R v DB [2001] NSWCCA 320 R v Edwards (1996) 90 A Crim R 510 R v Ehrenburg (Court of Criminal Appeal (NSW), 14 December 1990, unrep) R v Goodwin (1990) 51 A Crim R 328 R v Hunter (1984) 36 SASR 101 R v Munday [1981] 2 NSWLR 177 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 R v Severo Dossi (1919) 13 Cr App R 158 R v Simon [2003] NSWCCA 147; 142 A Crim R 166 R v Smith (1987) 27 A Crim R 315 R v Westerman (1991) 55 A Crim R 353 R v Wran [2016] NSWSC 1015 RC v R; R v RC [2020] NSWCCA 76 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Silvano v R [2008] NSWCCA 118; 184 A Crim R 593 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category:	Principal judgment
Parties:	Mr Scott (Appellant) Regina (Respondent)
Representation:	Counsel: G Smith SC (Appellant) E Balodis (Respondent)   Solicitors: Ducimus Lawyers (Appellant) Director of Public Prosecutions (Respondent)
File Number(s):	2016/385200
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 31 August 2018 Before: Judge L Flannery SC File Number(s): 2016/385200

Judgment

1. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Hamill J. I agree with the reasons given by his Honour, and with the orders that his Honour proposes.

2. HAMILL J: Pursuant to the provisions of s 578A of the Crimes Act 1900 (NSW), the applicant cannot be named. Scott is a pseudonym. Mr Scott seeks leave to appeal against his conviction in relation to three counts of assault with an act of indecency on a child under 16 years (counts 1-3) and one count of sexual intercourse with a child under 10 years (count 4). In each case, the child was Mr Scott’s granddaughter and she was 8 years old at the time of the alleged offence. The first three counts alleged contraventions of s 61M(2) of the Crimes Act and the fourth count alleged an offence under s 66A(1) of the Crimes Act. Mr Scott was convicted in the District Court after a jury trial presided over by her Honour Judge Flannery SC. He was sentenced to an aggregate sentence of 6 years with a non-parole period of 3 years and 6 months. He also seeks leave to appeal against that sentence.

3. The prosecution relied on the evidence of Mr Scott’s granddaughter who I will call Sarah, also a pseudonym. Sarah first made the allegations to her mother on 21 December 2016. This was the day after the offence alleged in count 4. Her mother recorded part of their conversation on her telephone. Later that day the allegation was reported to police and Sarah was interviewed by members of the “Child Abuse Squad”. Her evidence was pre-recorded before Judge Girdham SC on 15 November 2017. The trial commenced on Wednesday, 30 May 2018. The prosecution called four witnesses, read a statement of the first police officer who spoke with Sarah, and played Sarah’s police interview and pre-recorded evidence. A number of exhibits, including the conversation recorded on Sarah’s mother’s telephone, were tendered. Mr Scott’s wife and a character witness gave evidence in the defence case. The jury returned the guilty verdicts on Wednesday, 6 June 2018. Sentence proceedings took place on 17 August 2018 and sentence was imposed on 31 August 2018. A bail application, pending the appeal against conviction, was refused.

4. The applicant raised the following grounds of appeal:

1. The verdicts are unreasonable.

2. The appellant was deprived of an opportunity of acquittal, due to the incompetence of counsel.

3. A miscarriage of justice was occasioned in that the appellant’s counsel failed to call the appellant to give evidence of alibi to the effect that the appellant and his wife were absent from their home at the time of the alleged offences.

4. A miscarriage of justice was occasioned in that the appellant’s counsel failed to adduce from the appellant’s wife evidence of alibi to the effect that the appellant and his wife were absent from their home at the time of the alleged offences.

5. Her Honour erred in finding that the appellant was not subject to extra-curial punishment.

6. Her Honour erred in finding that the hardship caused to the appellant’s wife as a result of the appellant’s incarceration is not exceptional.

7. The sentences imposed were manifestly excessive.

The prosecution case at trial

5. The prosecution case was that Sarah and her younger brother stayed over at their paternal grandparents’ home on a number of nights in the two months leading up to the allegations. Their mother was pregnant in 2016 and gave birth in September of that year. Mr Scott and his wife looked after the children to provide some respite. It was alleged that Mr Scott kissed Sarah on or near the vagina on a number of occasions during those sleepovers. On all but the last occasion, Sarah said he kissed her on the outside of her clothing, although her evidence as to this was somewhat inconsistent. She could not be specific about the dates and the first three counts of indecent assaults were framed as occurring at some time during a specified period leading up to 6 December 2016. On the last occasion, 20 December 2016, the prosecution alleged that Mr Scott kissed Sarah on the vagina itself, that is either under her pants or swimming costume or while she was not wearing clothing.

Initial complaint and conversation with her mother

6. There was no dispute that Sarah and her brother stayed with Mr Scott and his wife on 20 December 2016. The children returned home on 21 December. In the context of the children kissing the new baby, Sarah’s brother, then aged four, said something along the lines of “but not on the bottom, not – not like [Mr Scott] kisses on the bottom”. When the mother asked him to explain what he meant, the little boy said “not me, [Sarah]”. The mother then asked Sarah about this and she said “Oh just sometimes when he’s giving me a massage”. She asked if “it was the back bottom or the front bottom” and Sarah said “in the middle”. At that stage, according to the mother, she started to record the conversation on her telephone.

7. This recording was tendered (Exhibit 5), played to the jury and a transcript was provided as an aide memoire (MFI 4). The transcript recorded the following:

“DETECTIVE SENIOR CONSTABLE WATKINS

Q1   This is an electronically recorded, electronic recording between [Mother] and Detective Senior Constable WATKINS at Chatswood Police Station. The date is Friday 23rd of December 2016. The time is 10.47am. [Mother] just for the purpose of transcription can say your name and spell your surname for me please?

[MOTHER]

A   [Mother]

Q2   Thankyou [Mother] and my name is Suzie WATKINS, surname spelt W-A-T-K-I-N-S and I am a Detective Senior Constable at Chatswood Police Station. Now [Mother] as I’ve already explained to you, what we want to do today is get a recording of a recording that you took with, um, your daughter, [Sarah]…

A   [Sarah].

Q3   [Sarah], yep, ah, now [Sarah] had a conversation with you on the twenty first of the twelfth 2016 is that correct?

A   That’s right.

Q4   Okay, and what we’re gunna do just for the recording is we’re gunna play this recording. So what I’ll get you to do is just play that recording for me.

RECORDING IS PLAYED AND THE VOICE OF [SARAH] AND [MOTHER] IS HEARD

[SARAH]

A   …..he was kissing me and then he went up…..

[MOTHER]

Q5   He was kissing you where?

A   on my legs…..

Q6   He was kissing you on your legs?

A   I think, I can’t remember.

Q7    You just, you just tell me and I won’t interrupt.

A   …..I can’t really remember. He was just giving me a massage and then he, I, I don’t know, he just did it and I didn’t say anything so, ah, I guess it became a thing.

Q8   So he kissed you on the front bottom the first time?

A   Ah, middle.

Q9   In the middle area. Okay, um, and for a long time or just a quick one?

A   Just a quick one.

Q10   Ok, all right, and then what, so each time you stayed over?

A   Mmmmmmmmmmmm, sort of but sometimes I didn’t really want to and I just said no thankyou, not tonight.

Q11   So he would say, ‘do you want a massage tonight?’

A   Mm

Q12   Yep. Is that what he said? A massage?

A   Yeah

Q13   Okay. Yes.

A   Yeah and I guess after that one time, um, he would just assumed that that’s what I wanted when I said can I have a massage.

Q14   Right, Okay, so he would kiss you on the bottom..…

A   …..Yeah..…

Q15   …..as well as the massage?

A   Mm. Is it concerning.

Q16   Yeah, my baby, well it’s just not the right behaviour as mummy said,    Yeah? [Sarah’s brother] baby…

[SARAH’S BROTHER]

A   (NO AUDIBLE ANSWER)

[SARAH]

A   One thing you can’t do…

[MOTHER]

Q17   I know, I just need to speak to [Sarah] for a second…

A   One thing you can’t do is get [Mrs Scott] involved because that might…..

Q18   So tell me, yeah, tell me the whole thing with [Mrs Scott] and [Mr Scott]. What has [Mr Scott] said about [Mrs Scott]?

A   [Mr Scott] said, [Mrs Scott], if [Mrs Scott] hears, cuz she’s already had suspicions that something’s wrong with me and she might get divorced with me and I’ll have nothing and to all of that.

Q19   All right…..

A   …..and so yeah…..

Q20   Okay and…

A   …..and mum…..

Q21   Yep

A    I don’t know what’s really happened with them but something’s happened.

Q22   Something’s happened…..

A   Yeah.

Q23   Okay, and with telling mummy and daddy?

A   [Mr Scott]’s like, they prob…..they’re going to get really angry at me and I could possibly even go to gaol and I don’t wanna be in gaol and then [REDACTED] and [REDACTED] will stop seeing me and stuff like that and he was really worried.

Q24   Yeah. Okay baby, so he told you not to tell anyone?

A    At least not until New Year and after New Year he said just say once when we sit, when I was massaging you, I accidently kissed you on the back bottom.

Q25   Right, but it wasn’t the back bottom?

A   Well I, he does, he does…..

Q26   …..off there [Sarah’s brother] please…..

A   …..either one. It’s not always front bottom, it’s not always back on, it’s not always middle.

Q27   O.K. and are they just quick kisses?

A   They’re medium

Q28   So kissing for like, awhile?

A   Like, ah, 10 seconds.

Q29    Okay baby.

A   Is that it?

Q30   Well is there anything else that you want to tell mummy about?

A   No, not that I know of.

Q31    No. Do you have any feelings about it? What are you thinking?

A    I’m just feeling a bit nervous because like, I know [Mr Scott] is part of the family and I should trust him and the stuff that he was saying was a bit nerve racking because, like, if I did, if I didn’t tell you I probably wouldn’t be able to sleep and have stomach pains like I did last night, and yeah. But then on the other hand if I did tell you [Mrs Scott] might find out, they might divorce and the family will go a bit haywire.

Q32    Right, my baby, yeah. But if somebody has done the wrong thing my angel, what happens after that is because of them, not because of you. Do you understand?

A   Yeah

Q33   Okay. Good. [Sarah’s brother] stop doing that please. [Sarah’s brother] Stop.

[SARAH’S BROTHER]

A    (NO AUDIBLE ANSWER)

MOTHER

A    When I was about to go for a swim then I started getting nervous and had a big talk to [Mr Scott] and [Mr Scott]’s eyes were almost crying, shaking.

Q34    But what talk were you having baby? Telling him what?

A   I was telling him that I normally, whenever I feel like I’m hiding something or something like that and yeah.

Q25   Okay. [Sarah’s brother] please stop doing that. [Sarah’s brother], right now or you’re going to get into trouble. Yes, so that’s what brought on the tummy ache yesterday baby was it?

A   Yeah maybe, I…..

Q36   You felt like you were hiding something and you had a chat…I’m really going to get cross [Sarah’s brother]…..

A   I think it was also the food, like a mixed combination.

Q37   Sure, sure my baby. Okay, munchkin I’m so, so sorry that I didn’t come and pick you up last night…..

A   ..…yeah…..

Q38   …..and I’m sorry that anything that’s happened…..

A   …..it’s fine, I understand…..

Q39   …..has made you feel upset or awkward…..

A   …..I understand, it um, I didn’t want to tell you because like I didn’t want the family to break up…..

Q40   Of course not my baby of course not. Yeah. Okay

A   I don’t want anything bad to happen

Q41   Yeah of course not my angel. I know you’re such a good girl. Such a good girl. Can I say though you’ve done the right thing by telling me. Yeah? You’ve done the right thing. This is the right thing to do munchkin okay?

A   …..might get to angry?

Q42   Baby, daddy and I will have a talk about it and we’ll work out the best way to hand this. Yes, but very inappropriate behaviour by [Mr Scott]. Okay?

A   ……..

Q43   Mmmmm

A   Even the fact it wasn’t right and that he just wanted to love me he didn’t know how to do that or show that. I don’t know why this has happened but…..

Q44   .….yeah…..

A   …..and besides, he’s um, [Sarah’s brother], matchsticks

[SARAH’S BROTHER]

A    (NO AUDIBLE ANSWER)

[MOTHER]

Q45    No you can’t play with fire put that down please

A    (NO AUDIBLE ANSWER)

Q46    No [Sarah’s brother], no. Give me the matches, where did you even get those

A    …..in the kitchen.

Q47    No, we are never, ever, ever allowed to touch matches. Do you understand? It’s very hard to have this very important talk with your sister.

[SARAH]

A    (NO AUDIBLE ANSWER)

Q48   Yes, my baby, yes me too. All right you guys.

A   What are you doing?

Q49    I’m just checking my….

DETECTIVE SENIOR CONSTABLE WATKINS

Q50   Okay, that’s the end of the recording, um, Do you have any other recordings on [there] [Mother]?

A   In regards to this?

Q51    Yeah

A   No

Q52    No. Okay, the time is now 10:56am and I’m going to stop the video tape.

RECORDING CONCLUDED.”

8. This evidence was admitted as evidence of the truth of the allegation in count 4, and the alternative charge in count 5: Evidence Act 1995 (NSW), s 66, Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37. [1] It was not so admitted in relation to counts 1, 2 and 3 and the jury was directed that the delay in making the complaint in respect of the earlier incidents may be taken into account in assessing Sarah’s credibility. [2]

   1. Summing up (SU) 12, Appeal Book (AB) 17.

   2. SU 11 (AB 16).

The first complaint to the police and use of the word “vagina”

9. Sarah’s mother contacted the police and then attended Chatswood Police Station. Sarah’s mother had a conversation with Senior Constable Watkins. Ms Watkins’ statement was read to the jury (MFI 13). She said Sarah’s mother “advised that her daughter [Sarah] had told her that her grandfather known as [Mr Scott] had kissed her on the bottom and this had happened a few times,” but the mother was unable to answer further questions about the disclosure. The officer then spoke to Sarah. After establishing that she knew the difference between the truth and a lie, the conversation was recorded as follows:

“I said, '[Sarah], could you please tell me what you told your mummy earlier?' [Sarah] said, 'Well [Mr Scott] who is my granddad, he likes to give me massages on my legs before I go to bed and he has kissed me on the bottom a few times.' I said, '[Sarah] when your granddad kisses you on the bottom, where on the bottom does he kiss you?' [Sarah] said, 'Down there'. I said, 'What do you mean down there?' While indicating with her head and her hand, [Sarah] said, 'Down there' while pointing at her vagina area.

I said, 'On your vagina?' She said, 'Yes.' I said, 'When your grandfather kisses you there, do you have your pants on or off?' She said, 'Most of the time, it's not been a lot, only a few times, maybe five or six. It has been with my pants on and one time with my pants off'. I said, 'The time when you had your pants off, when did that happen?' She said, 'Yesterday.' I said, 'Can you tell me what happened?' She said, 'I was at my granddads and I was getting changed to go for a swim. [Sarah’s brother] wasn't in the room and he asked if he could kiss me.' I said, 'Okay.'

Granddad kissed me down there after I told granddad not to do it again because it makes me feel uncomfortable. Granddad agreed. He asked me not to say anything and I promised I wouldn’t. He asked me if we could still be friends. I promised I wouldn’t say anything and gave him high fives.

[Sarah] also said, 'I don’t want my granddad to get into trouble. He hasn't done anything wrong. He just loves me a bit differently to the boys, that's all. Granddad only did it a few times, I think five to six times. I don’t want granddad to get into trouble. He just loves me, he doesn’t hurt me.' I said, '[Sarah], did you go for a swim yesterday after this happened?' She said, 'No, I had a tummy ache and didn’t go for a swim and it was too cold.' I said, '[Sarah], have you had a bath since this happened?' She said, 'No.'”

The interview with police and the final incident

10. Sarah was interviewed by police between 6:37pm and 8:02pm on Wednesday, 21 December 2016. The recording of this interview comprised the vast majority of Sarah’s evidence in chief. The disc containing the recording was marked for identification (MFI 3) and the trial Judge ordered that it not be provided to the jury or be permitted to go to the jury room. [3] The recording was played to the jury on the second day of the trial. The interview commenced with questions designed to determine whether Sarah understood the difference between the truth and a lie. She did.

    3. R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, CB 314; T.8

11. When asked “how did you get here today?”, Sarah responded:

“Um, my grandfather did something to me that was a bit inappropriate.”

12. She said:

“[H]e likes to give me massages … Sometimes at night and stuff like that, and um, he, once, I don’t know what got into him but he kissed me in the vagina.”

13. She said he had done it “a couple of times about five-ish” and that most of the time it was when she had her pants on “but one time it wasn’t.” She said that the “one time” was “last night”. She told her grandfather “that feels uncomfortable, can you please stop?” and he stopped. He asked her not to tell anybody about it. She explained that her little brother told her mother and her mother then asked her about it. She said her mother recorded their conversation. Asked for more detail about the incident itself, she said:

“A   And last night, last night nothing really happened but it was before the night, it was about, oh, 4 o’clock and I was about to go into the pool, just getting changed and he said, ‘Can you come into the room with me?’ And he said, ‘Can I’ you know. And then um, did it and I said, ‘Can you please not do that again, it makes me feel a bit uncomfortable.’ And then he said, ‘Promise me that you’ll never leave me and promise me that you won’t tell anybody.’ And I didn’t really think, I didn’t really hear him but I know him really well so I just promised without really, yeah. And then um, when I was in, going in the pool he um, said, I said, ‘Am I allowed to tell everybody what happened eventually?’ And he was like, ‘No, because I might get in, I’ll get in very big trouble and everything like that.’ And he seemed really serious and I’ve never seen him like that. And it was for a good reason because this has happened. Um, and I get anxiety…

Q66   Ah hmm.

A   ---so I have a stomach ache which is because I, whenever I feel like I’ve been told to hide something I get anxiety and I need to tell people---

Q67   O.K.

A   ---especially mum.”

14. Sarah gave somewhat different accounts of what she was wearing at the time of the incident:

“Q143   Yep. So when you were in this room what were you wearing?

A   I was wearing, well, I was wearing before I had got, so when I was in that room or before and when I, oh, I’ll, so I was wearing my swimmers which my swimmers bottoms---

Q144   Ah hmm.

A   --- and I was wearing this top.

Q145   Yep.

A   And I was about to get changed into my full swimmers.

…

Q161    Were you wearing anything else?

A   Apart from my underpants. Wait, no, I wasn’t wearing underpants, no.

Q162   O.K.

[A]   No…

Q163   So you’re in your room, you’re wearing a blue shirt, you’re wearing your swimmer bottoms?

A   (NO AUDIBLE REPLY)

Q164   What happened next?

A   Then um, oh, wait, was I wearing my swimmer bottoms? Um, yeah, I think I was wearing my swimmer bottoms. I just, yeah, I think I was.

…

Q182   O.K. So when his mouth touched your vagina was that on the inside of your swimmer bottoms, the outside of your swimmer bottoms or something else?

A   He normally, well, since he started doing it he normally does it with, with my clothes on. But for some reason today he just, they, I’m not sure if I wasn’t wearing them or not because this was… as I said I don’t have the best memory.

Q183   Mmm.

A   Um, I, yeah, I think, I either took them off or I wasn’t wearing them just yet. I was in the middle of..…

Q184   O.K.

A   Yeah. Um, yeah.

Q185   All right. I was just a little bit confused by what you said then. So did you have your swimmer bottoms on or did you have them off or something else?

A   I can’t really remember. I think I might have either had them off, on or off but I’m not really sure because I had them on but then I don’t remember having them when he did do it because I didn’t have any pants on. He doesn’t normally take them off.

Q186   O.K.

A   But, yeah, I’m not sure.”

15. When she spoke to her mother, Sarah said the applicant touched her on the “middle bottom”. It is not clear what she meant by that. There was no evidence that she used the word “vagina” until she was interviewed by the police after Senior Constable Watkins had introduced that word. In the course of the interview she gave the following accounts. The descriptions of the gestures in square brackets are mine, based on viewing the video recording of the interview.

“Q38   O.K. So tell me about that, what did your grandfather do?

A   So he likes to give me massages.

Q39   Ah hmm.

A   Sometimes at night and stuff like that, and um, he, once, I don’t know what got into him but he kissed me in the vagina.

…

Q168   Yep. So he said that, he said, ‘Can I kiss you?’ Is that right?

A   Right.

Q169   O.K. Did he say anything else?

A    Um, ‘Can I kiss you?’ in this area (gestures).

[The ‘gesture’ she made when giving this answer was to point in the area of her abdomen or tummy.]

…

Q174   So you said that he was looking down there. So what’s down there?

A   My vagina and my bottoms.

…

Q180   O.K. But what did he use to kiss you?

A   His mouth.

Q181   Yep. And what part of your body did his mouth touch?

A   My vagina.

…

Q284   O.K.? Carly? Yep. O.K. Carly just has one question. So remember earlier you said that he used his mouth to kiss you on the vagina?

A   Yes.

Q285   Yep. What part of his mouth touched your vagina?

A   I’m really not too sure how to answer that one because it was mostly his mouth but I felt, I sort of felt a tongue a bit but I’m not sure if it was his tongue. I’m, I’m not sure.

Q286   O.K. Where do you think you felt the tongue?

A   Like, like where in my vagina?

Q287   Yeah.

A    Or---

Q288   Yep.

A   ---like, just in the vagina, not---

Q289   O.K.

A   ---a specific area or anything.

Q290   So when you say ‘in the vagina’---

A   Yeah

Q293   --- do you mean the outside of your vagina, the inside of your vagina or something else?

A   So like out here---

Q291   Yeah.

A   --- but in here (gestures)

[The gesture made was to point at the upper area of the thighs and then to the middle of genital area.]

Q292   Sorry?

A   What do you mean by that? Sorry.

Q293   I’m just trying to think how I can word it there.

UNIDENTIFIED PERSON

A   Maybe you could ask when she goes to the bathroom.

DETECTIVE SENIOR CONSTABLE DAVIS

Q294   Yeah. O.K. So, O.K. O.K. So I’m just trying to think how I can word it for you so that you will understand what I mean.

A   Like, do you mean if it was like in the vagina area or like just around the vagina? Is that what you mean?

Q295   That’s exactly what I mean.

A   So it was mostly, it was like, oh, I would say about here (gestures)--- [The gesture made was to point to the middle of the genital area.]

Q296   O.K.

A   --- sort of.

Q297   [19:18] Yep.

A   Mmm.

Q298   O.K. Carly, does that clarify or do you need more? Yep. O.K. So Carly also wants to know where your legs were positioned. So we know that you were lying there.

A   My legs were positioned, do you mind if I examine, I don’t really know how to, my legs were positioned. So I was lying down --- (demonstrates)

[The demonstration was to lie flat on her back with her legs together directly in front of her.]

Q299   Yep.

A   --- and they were sort of like that.

…

Q375   O.K. Do you remember, the last time you said that you felt a little bit of tongue?

A    Pardon?

Q376   The last time you said---

A   Yeah, he, I, I still felt a little bit of tongue and I was like, ‘Do you have your tongue in there or something?’ And, and he was like, ‘No, no, no’. And I was like….. and I still felt tongue but I, I wasn’t sure, yeah.”

The earlier incidents

16. The interview then turned to the earlier incidents:

“Q319   O.K. Now, so Carly, before I move on do you have anything in relation to that particular incident? O.K. So you remember earlier how you said that he’s done this before?

A   Yes, well, he’s done it before but, like, only when he was massaging me as a bit of the part of a massage and I’ve never told him to stop and I think he, the first time he did it I never said anything like, it was just like he said, ‘Is that O.K.?’ And I was like ‘Yes.’ I didn’t really think about it. And um, and then the next couple of times I think he, when I say, ‘Can I have a massage?’ I think he just um, he’s only done it ten to five times so I’m not sure exactly how many. Um, it’s much ---

Q320   Can you remember the first time that it happened?

A   The first time it happened? Like how long ago?

Q321   Yep, when was the first time?

A   Um, I’m not really, about a month ago, I’m not sure.

Q322   Was it this year, last year or something else?

A   It was definitely this year.

Q323   O.K. And how old were you when it happened?

A   8.”

17. Sarah was asked about the frequency of the sleepovers:

“Q399   And so how are the sleepovers arranged?

A   Well, either, oh---

Q400   It’s all right.

A   Sorry.

Q401   That’s all right, Florence can get that.

A   Mmm. Um, we normally have one every second Friday night.

Q402   All right.

A   And some Friday nights some, we’ve once had one Saturday night.

Q403   Yep.

A   So I mean, yeah, Saturday I think. Sorry. Um, and today we had, last    night we had one---

Q404   Ah hmm.

A   ---because it’s school holidays. Um, yes.

Q405   O.K. So normally every second Friday night?

A   So normally every second Friday night.”

The first count of indecent assault

18. Sarah said the first time it happened, she had got out of the shower and was in bed. The applicant massaged her with a “special cream” (“like a baby lotion”) and then “kissed me on the vagina, on the middle area between my bottom and my vagina that first time”. She said she was wearing pyjamas and “he kisses me with my pants on, with my pants on normally and he’s only done it not once”. The “not once”, meaning “not with my pants on, once”, was yesterday – that is the occasion of count 4. Sarah was asked if the kiss was on the outside or inside of her pants and she said:

“…I can’t remember. But it wasn’t like deep and definitely not deep in my pants…or anything like that. I think he might have pulled my pants down a little bit but he, he wasn’t complete taking them down and kissing me or anything like that.”

19. Sarah said the applicant may have said “beautiful” but wasn’t really sure what, if anything, was said. She said he only kissed her once but was massaging her for a few minutes. It stopped because she was “getting a bit tired” and he had to go for dinner. She said the kiss was “sort of on my pants but sort of on my um, skin. Mostly on my pants though.”

The second count of indecent assault

20. Police asked Sarah about the second time – “the next time it happened after the first time”. She said it was the “next time we had a sleepover” although “I think he skipped one or two times we’ve had a sleepover because it hasn’t happened too many times.” She said she couldn’t really tell police about the second time because it was “pretty much the same as the first time … they’re pretty much all the same as the first time apart from the last time --- which I’ve clarified”. When asked to describe from start to finish what happened on the second occasion, Sarah said “[H]e was giving me a massage and then he kissed me as part of the massage … Kissed me in the vagina.” The kiss was with his mouth and it was “part skin, part pants”. It finished when “he needed to go for dinner again and I was getting quite sleepy”. He may have said “beautiful skins and stuff like that”. He might have said “I like it, do you like it”. She said the second time it happened was during a sleepover two weeks after the first time.

The third count of indecent assault

21. Sarah said the third time it happened was two weeks after the second time and four weeks after the first time. She said he was giving her a massage when she was in bed. He was “putting the cream on and then he kissed me on the vagina with his mouth.” It was the same as the first two times and the kiss touched part of her skin and part of her pants. She was asked “whereabouts was it touching your skin” and she said “in my vagina.” The questioning that followed suggested that there may be some confusion as to whether Sarah was describing the third occasion or the last occasion.

22. Once again, Sarah said the incident ended because she was getting tired and Mr Scott had to have dinner.

Other incidents

23. It was not completely clear how many other incidents occurred. Sarah said the fourth time was the same as the third time and that “the only thing that was different was the fifth (?) time [as transcribed] … because he kissed me without my pants on.”

Being told not to tell and Sarah’s defence of her grandfather

24. Sarah said that after the final incident Mr Scott told her not to tell anybody. She gave slightly different versions of this at different times. However, the thrust of what she said was that Mr Scott told her not to tell anybody because he would “get in very big trouble”. He said especially not to tell his wife because “she thinking of maybe divorcing or something like that.” Later in the interview Sarah said the applicant said things like “they will kill me” and “I might go to gaol” and there may be a divorce and “bad things will happen”. Sarah said she asked if she could eventually tell people. At one stage she said he said it would be okay to talk about it “after New Year” but at other times she claimed he said she could never tell anybody. She said “I’m not sure” and “I don’t know the details”.

25. In the end her brother was making jokes about “kissing on the butt” and that is when her mother asked her what was going on.

26. One aspect of the police interview worth noting is that Sarah defended her grandfather’s actions on several occasions. For example, she said:

“I don’t think he intentionally knew it was the wrong thing…I think he was just trying to love me and he just did it in an uncomfortable way.”

27. At another stage she said “he’s never done anything like this and I can’t imagine he would intentionally do it like as a bad thing”. She also said “he doesn’t ever mean to hurt me or anything, or do anything bad to me or anything like that”.

The pre-recorded evidence and cross-examination

28. Very little additional evidence-in-chief was adduced during the pre-recorded evidence. It was disclosed through the witness that she told the Prosecutor in conference that the kissing on the first three occasions involved more touching of the skin than she had previously indicated.

29. The pre-recorded evidence consisted mostly of the cross-examination undertaken by counsel appearing for Mr Scott. There was questioning about the detail and timing of the incidents and it was put to Sarah that her evidence was not true. She disagreed with this. Sarah agreed that her mother and the applicant did not “have the best relationship” and “they’re not really close”. However, she was not aware of any arguments between them. Sarah agreed that she said nothing about the applicant sporting a moustache and could not remember whether she felt anything prickly when the applicant kissed her on or near her private parts.

30. In terms of clarification of her earlier disclosures and evidence, Sarah said that “front bottom” meant her vagina while “back bottom” meant her “actual bottom”. As to her “middle bottom”, Sarah said she meant “kind of in-between the back bottom and the front bottom”.

31. Challenged as to whether she had been kissed on the legs and whether she told the police about that, Sarah said:

“I agree, I didn’t tell the police about it because I, I was, yeah, I was, yeah, it was, yeah. Because it didn’t happen, it did not happen, I was kissed on the vagina, not the legs unless you count the vagina as, just yeah.”

Mr Scott’s arrest and interview with police

32. Mr Scott was arrested on 22 December 2018. He participated in a recorded interview and denied the offences. He agreed that the children had a sleepover at his home on 20 December 2018 and that Sarah had gone into the pool. He said she wore a two piece suit and had changed into the swimming costume in the dining area. He agreed the children had sleepovers on some Friday nights and came over for pancakes on Saturday mornings. He said they did not come every Friday night but came when the children’s father (his son) “decides”. The idea was to give the parents a break. The arrangement had been in place for “maybe a couple of months” and the children had stayed over “six or seven times”. He agreed that he and his wife sometimes gave Sarah massages. He said this was on the legs but not on the shoulders. He agreed he used cream to do this. Mr Scott denied massaging Sarah on 20 December 2016.

33. Mr Scott co-operated with the police. He gave written permission for the investigators to attend his premises and take photographs and co-operated in the forensic procedure to enable police to obtain his DNA profile. As to the DNA investigation, the interview included the following:

“Q258   O.K. That’s generally what happens. The children go up to hospital and a medical procedure is performed where a number of swabs are taken from the child, O.K. And that’s what happened last night. [Sarah] went to hospital and she participated in a sexual assault investigation kit and a number of swabs were taken from her vagina area.

A   Mmm.

Q259   O.K. Is there any reason why your saliva may come up on those swabs?

A   No, there is no reason at all. No reason at all.

Q260   [15.00] O.K. So those swabs will obviously be sent off for testing.

A   Yeah. No, no, there is no reason at all, at all why my saliva should end   up ---

Q261   O.K.

A   --- in her body at all. I don’t kiss her. Even when I kiss her on her forehead I don’t put my saliva on at all.

Q262   Is there any reason why your DNA may come up on those swabs?

A   No.”

34. The officer in charge of the investigation agreed that Mr Scott had no previous criminal matters on his record.

DNA evidence

35. David Bruce was a scientist and DNA expert. He explained the nature of DNA evidence and provided the results of his examination and analysis of various exhibits. A summary of his results was tendered (Exhibit 6). Swabs had been taken from the child’s vulva, labia minora, perianal area and anus. Mr Scott’s DNA profile was obtained. The DNA testing was unsuccessful in some instances. No male DNA was detected on the labia minora and perianal swabs. The inside crotch area of Sarah’s underpants produced mixed results (using the less specific Y-profiler test). The DNA located included more than one male contributor but the result was “too weak/complex” for any conclusions to be drawn. In short, there was no DNA evidence capable of advancing the prosecution case.

Medical evidence

36. Dr Paul Hotton examined Sarah at the Sydney Children’s Hospital on 21 December 2016. He gave evidence that he noticed an area of redness on the “hymen around sort of the 9 o’clock position”. He said he could not say whether the mark he observed was caused by kissing the “vaginal area” or was pre-existing. He said to cause the mark on the hymen in a child of that age, there would have to be penetration beyond the labia majora and minora. In cross-examination the doctor agreed that in the absence of any suggestion of penetration, the mark he observed was a “naturally occurring variant” that “was there prior to the event.” He agreed the “hymen was intact” and was “not ruptured”.

Evidence of Sarah’s mother

37. Sarah’s mother gave evidence of the occasions that the two children would have sleepovers at Mr Scott’s home. She said this occurred more frequently over recent months because of her pregnancy and the birth of her third child. She said it happened around every fortnight and there was no particular day of the week. She confirmed there was a sleepover on 20 December 2016 and gave evidence of the conversation she had with Sarah when the children returned home. She also gave evidence of taking Sarah to the police station.

37. In cross-examination, Sarah’s mother denied that there were any problems with her relationship with her husband’s parents (Mr Scott and his wife). She agreed there were some differences of opinions but no arguments. She denied not taking their telephone calls. She denied wanting to end the relationship with her in-laws although she agreed she had cut ties with her own parents at various times.

38. She was cross-examined on her witness statement and it was suggested that, to some degree, she led Sarah into making the allegations. There was also questioning about the extent and detail of any conversation before she started to record the conversation on the telephone. She agreed that Sarah had only referred to being kissed on the “middle bottom” and that she may have introduced the suggestion that she was kissed on the “front bottom”.

39. There was some implicit criticism of her for recording the conversation instead of going straight to the police or speaking to her husband. This criticism, which is patriarchal and of no substance, was repeated in the submissions on appeal.

The defence case at trial

41. Mr Scott’s case was that the allegations were untrue. He relied on the denials in his interview and on evidence of his good character. There was no dispute that the children had a sleepover on 20 December 2016 or that there were a number of sleepovers in the months leading up that date.

42. The applicant’s wife gave evidence. In relation to the dates of the sleepovers she gave the following answers:

“Q. Why was it that you and your husband would look after [Sarah] and [Sarah’s brother] on these occasions?

A. Can you--

Q. Why was it that you and your husband would be looking after [Sarah] and [Sarah’s brother] on these occasions?

A. It's because they wanted a bit of time to themselves and they were – we were happy to do it for them - for the sake--

Q. If we could focus on the period of time from around when [the baby] was born?

A. Yes.

Q. That's around late September 2016?

A. Yep.

Q. Until about 21 December 2016?

A. Yep.

Q. Which nights would these usually occur, that is the overnight stays?

A. The arrangement was - they were coming to our place on Fridays, every other Friday and - but that would've been one day after Friday or Saturday and one could have been - but mostly it was on the Fridays.”

43. She gave evidence of the general routine when the children stayed over and explained the layout of the house. She said the children were sometimes given massages with cream on the feet and legs. She mostly did that but Mr Scott also did it, especially with Sarah’s younger brother. She gave a detailed account of the events of 20 December 2016 commencing from when she was leaving work at around 4:00pm. She received a call from her husband about how to make a smoothie for Sarah. When she got home 30-45 minutes later the children were “happily watching television”. Her husband and the children went out for a while and when they returned Sarah asked what was for dinner. She said she had a “tummy ache” and only ate a rice cracker for dinner. Later, they called Sarah’s parents and Mrs Scott heard Sarah say “she wanted to go home”. There was discussion about taking her to a medical centre but Sarah’s father said it was not necessary. Mrs Scott gave evidence of Sarah’s reaction to eating too much sugar and that this includes her getting “very hyper”, crying and having tummy aches. Everything was normal the next morning; they had breakfast and went out. Sarah and Mrs Scott went to Bunnings and Petbarn while Mr Scott took the brother to swimming classes. They then had lunch at a Thai restaurant before dropping the children home.

44. Mrs Scott said her husband was a good man, was involved in various charities and was not capable of committing the offences alleged against him.

45. Selva Saverimuttu also gave evidence in the defence case. He had known Mr Scott for 50 years and considered him to be “a decent man…a good man, trustworthy man, honest man.” He was “very kind” and “very generous”. He gave detail of the extensive and important charity work that Mr Scott performed over many years. He was aware of the allegations and was of the opinion that “[Mr Scott] is a person I know won’t do that.”

The evidence on the appeal

46. The defence case on appeal was quite different to that advanced at the trial. Grounds 2, 3 and 4 alleged that the trial miscarried due to the failure of Mr Scott’s trial lawyers to challenge the evidence of opportunity and in failing to present an “alibi” in respect of the earlier charges of indecent assault (counts 1, 2 and 3). The central piece of evidence was a calendar used by the applicant and his wife along with a spreadsheet or table setting out relevant dates and what Mr Scott was doing on those dates. It was submitted that the calendar established an alibi and that Mr Scott could not have committed the offences alleged in counts 1, 2 and 3 because the children could not have been at a sleepover at his home on the occasions alleged.

47. To establish this case, Mr Scott read affidavits of himself, his former solicitor (Mr Awada) and Selva Saverimuttu. Annexed to Mr Awada’s affidavit were the relevant pages (months) of the calendar. The applicant also tendered the spreadsheet (Exhibit A-1), written instructions (Exhibit A-2), documents confirming a number of the entries in the calendar and spreadsheet (Exhibit A-3) and a number of letters or reports from his solicitor prepared at the time of the trial (Exhibit A-4). The Court rejected the tender of a number of documents which were tendered for the purpose of demonstrating material that was available to counsel at the time of the trial, but which was created after the trial. The documents that existed at the time of the trial were admitted (Exhibit A-3) but the documents created since the trial were rejected because they were not relevant to the purpose identified by Senior Counsel in pressing the tender.

48. The prosecution read a second affidavit by Mr Awada and an affidavit of trial counsel. This evidence was relevant to the forensic decisions taken at the trial, the advice provided to the applicant and his supporters, and the reason the applicant was not called to give evidence. The evidence went to establish the reasons the case was not conducted on the basis that the applicant had an alibi or did not have the opportunity to commit the offences charged against him. Both Mr Awada and trial counsel acknowledged that they were aware of the calendar at the time of the trial but made a forensic choice, in consultation with their client, not to conduct the case in the manner now suggested.

49. Each of the deponents was cross-examined on the hearing of the appeal.

Review of audio visual evidence

50. An issue that arose on the hearing of the appeal was whether the members of this Court should watch and listen to a number of the recordings that were tendered at the trial. These included:

1. The recording of the conversation between Sarah and her mother,

2. Sarah’s interview with police,

3. Sarah’s pre-recorded evidence, and

4. The electronically recorded interview with Mr Scott.

51. Senior Counsel for the applicant submitted that the Court should view the material to place itself in the same position as the jury. He did not identify any particular forensic reason that the Court should view the material: cf SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at 410-411; Pell v The Queen [2020] HCA 12 at [35]-[39] (decided after the hearing of the appeal). Counsel for the respondent said the Director would not “stand in the way” of the Court viewing the material. He pointed to a number of occasions in the police interview where the transcript recorded Sarah making gestures. Further, the kind of imbalance that troubled the Court in SKA did not exist where the cross-examination and the applicant’s ERISP were also available for viewing.

52. Since this case was argued the High Court decided Pell v The Queen. In that case members of the Victorian Court of Appeal viewed the recordings of the complainant over the objections of counsel for the appellant (the accused). The High Court said:

“35. In this Court, the applicant maintained the position that it was unnecessary and undesirable for the members of the Court of Appeal to have watched the recordings of any of the witnesses. Nevertheless, the applicant was not disposed to contend that the course taken by the Court of Appeal was itself an appealable error. The respondent maintained the position that the existence of the recordings was enough to make it ‘appropriate’ for them to be watched by the Court of Appeal.

36. The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court.”

53. In the present case, I formed the view that it was appropriate that this Court view and listen to the material. A critical issue in the present case is whether the guilty verdict on count 4 is unreasonable. This involves careful consideration of the complainant’s version(s) of where Mr Scott kissed her. As can been seen from the review of the evidence undertaken above, the complainant used different terminology in relation to this issue. Initially she said it was the “middle bottom” and her use of the term “vagina” only arose after a police officer asked directly if that is what she meant. In the course of the interview, which became her evidence in chief, the complainant used gestures on a number of occasions. What she was indicating or, in some instances, pointing at “can only be discerned visually”: Pell at [36]. Once I determined that it was appropriate to watch the complainant’s interview (evidence in chief), balance and fairness required that the cross-examination and the appellant’s ERISP should be subject to the same scrutiny.

54. Accordingly, I have watched and listened to the recorded material set out at [50]. I have done so at the urging of the applicant and for the particular purpose of understanding the gestures made by the complainant in the interview. In making an independent evaluation of this evidence, I have not lost sight of the fact that the jury found the complainant to be credible and reliable and have not attempted to “duplicate the function of the jury in its assessment of the credibility of the witnesses”: Pell at [37]. As the High Court said in Pell at [37]:

“...The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.”

Appeal against conviction - Grounds 2, 3 and 4

(2)   The appellant was deprived of an opportunity of acquittal, due to the incompetence of counsel.

(3)   A miscarriage of justice was occasioned in that the appellant’s counsel failed to call the appellant to give evidence of alibi to the effect that the appellant and his wife were absent from their home at the time of the alleged offences.

(4)   A miscarriage of justice was occasioned in that the appellant’s counsel failed to adduce from the appellant’s wife evidence of alibi to the effect that the appellant and his wife were absent from their home at the time of the alleged offences.

55. These grounds can be dealt with together. The applicant’s written submissions took the same approach. Each ground raises the same general issue; that is, the assertion that there was a miscarriage of justice because trial counsel failed to conduct the trial on the basis that the there was an alibi in relation to the first three counts on the indictment. The source of the evidence going to this ground is set out in [46]-[49] above. The “alibi” arises from the information contained in the calendar and spreadsheet, the evidence of potential witnesses and in documents supporting the information contained in the calendar. In short, this body of evidence is said to support the proposition that on the nights when counts 1, 2 and 3 allegedly occurred, the applicant was not at home and therefore could not have indecently assaulted his granddaughter as alleged by the prosecution.

The calendar and spreadsheet

56. Mr Scott gave evidence on the appeal that the entries on the calendar were made by him or his wife when arrangements or appointments were made. It seems most of the entries were made by Mrs Scott. Initially, Mr Scott said “we do not put sleepovers in” and the entries “would be the other commitments”. However, there is one entry on Friday, 4 November 2016 that says “Sleep over 4/11”.

57. The applicant relied on entries on the calendar relating to Friday nights during the periods charged in counts 1 (20 October – 6 December 2016), 2 (3 November – 6 December 2016) and 3 (17 November – 6 December 2016). For example:

• On Friday 21 October 2016 Mr Scott and his wife had dinner at Mr Saverimuttu’s home. There was an entry on the calendar and Mr Saverimuttu provided a statement confirming the dinner.

• On 28-29 October 2016 the calendar indicated that Mr Scott was playing golf at Morrissett or Lake Macquarie and stayed over at a friend’s place. The friend provided a statement confirming this.

• On 11 November 2016 the applicant had a medical procedure on his eye. There was a note on the calendar to that effect and supporting evidence in the form of hospital records. The records suggest that Mr Scott “checked out” of the hospital at 15:45.

• On 17 November 2016 Mr and Mrs Scott went to Tasmania. There was a note on the diary and a travel itinerary, credit card receipts and a hotel bill suggesting they were away between 17-20 November.

• There was a calendar entry on Friday, 25 November 2016 stating “Ameena dinner” and a statement from Ameena [REDACTED] indicating that they had dinner at a restaurant on that evening.

58. Mr Scott gave evidence that the spreadsheet was prepared by his wife. He conceded in cross-examination that it was created after the trial. It includes explanations for the calendar entries and, in some cases, information that is not included on the calendar. For example, the calendar for Friday, 2 December 2016 (a date potentially relevant to each of the first three counts) is blank. However, the spreadsheet says “Made [Sarah’s brother’s] Birthday cake for Party on Saturday NO KIDS”. Similarly, the calendar is blank for Friday, 9 December 2016 but the spreadsheet includes an entry “No Kids” (emboldened in the original). Insofar as the spreadsheet summarises the case the applicant now seeks to put, it is of some assistance. However, it cannot support the suggestion of incompetence because it did not exist at the time of the trial. Further, in the absence of evidence from its author, it must be treated cautiously when it adds information not contained in the calendar and is not supported by other evidence.

The trial lawyers’ knowledge of the possible “alibi” and the written instructions

59. There is no dispute that both Mr Awada and trial counsel were aware of the calendar and of the fact that Mr Scott and his wife could provide evidence that they were not home on some or most of the Friday nights covered by the periods in the first three counts of the indictment. The evidence of the precise date upon which they were made aware of this was not completely clear but counsel acknowledged that he knew about it before he conducted the pre-recorded cross-examination of the complainant on 15-16 November 2017. At one stage, during the trial, it is clear that the lawyers intended to use the evidence because Mr Awada made enough photocopies to provide each of the jurors with a copy. The lawyers acknowledged they did not serve an alibi notice and each gave evidence that they did not believe the calendar or the surrounding evidence supported an alibi.

60. It was acknowledged by the trial lawyers that they intended originally to call Mr Scott to give evidence but that a decision was made in conference not to call him or to use the material in the calendar. The most significant reason for their decision was that the assertion that Mr Scott was not at home on most of the Friday nights in the relevant period was inconsistent with what he told police in the recorded interview. Further, the issue as they saw it was not whether Mr Scott had the opportunity to commit the offences but whether the incidents alleged by Sarah occurred at all. Counsel also pointed out that there was no suggested alibi for the most serious incident because there was no dispute that Sarah slept over at the Scotts’ home on 20 December 2016.

61. Written instructions signed by Mr Scott and Mr Awada were annexed to Mr Awada’s second affidavit (read by the respondent on the appeal). There were written instructions dated 28 May 2018 and 31 May 2018 neither of which were relevant to the grounds of appeal. The written instructions dated 4 June 2016 were in the following terms:

“I, [Mr Scott], [redacted], have instructed my lawyers Fouad Awada and Barrister that I do not wish or intend on giving testimonial evidence at my trial.

I confirm that I will be relying on my recorded interview with police dated 22 December 2016, and I do not wish or intend to give oral evidence in court at my trial.

My lawyers have explained and discussed with me the advantages and disadvantages, and after being informed of these, I make the above decision of my own volition and free will. I have not been coerced or pressured into making this decision.

I have also instructed my lawyers that I do not wish to tender or rely upon the calendar I provided them. I am aware that it may contain a number of inconsistencies when compared with my interview with Police. I do not wish to rely or use the calendar (2016) in my trial.”

62. Mr Scott gave evidence that he signed the documents because he trusted his lawyers and felt “under duress” even though he did not really accept the advice he was given.

63. There was a dispute between the witnesses as to whether counsel said words to the effect of “this is gold” or “good as gold” when he became aware of the calendar. It is not necessary to resolve that dispute although I am inclined to accept that he said something to that effect. It is clear that there was a plan at one stage to use the calendar because 15 copies were made. It is also clear that the intention was for Mr Scott to give evidence. However, a decision was taken during the course of the trial not to use the calendar, not to call Mr Scott and to rely on the denials in the interview, Mrs Scott’s evidence and the evidence of good character. The question is whether those decisions led to a miscarriage of justice.

Relevant principles

64. In his affidavit, Mr Scott expressed his belief that the conduct of his counsel “amounts to flagrant incompetence”. Senior Counsel used the same language in some of his submissions. Such language, and similar epithets such as “egregious error”, was used in some of the earlier cases in New South Wales and England. However, in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 the High Court made it clear that this is not the correct focus of the inquiry. Gleeson CJ said:

“29. Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial – ‘fresh evidence’, as it is usually called. The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be ‘flagrant incompetence’, an ‘egregious error’, ‘extreme conduct’ or ‘significant fault’. Thus it was that the argument in the present case was premised on counsel having made a ‘wrong’ decision.

30. Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s 6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether ‘on any other ground ... there was a miscarriage of justice’. The words ‘on any other ground’ do not postulate the demonstration of error. Rather, they simply require that ‘something occurred or did not occur’ in the trial.

31. As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of ‘flagrant incompetence’, ‘egregious error’ or the like.

32. An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.”

65. See also McHugh J at [80]-[83], Hayne J at [108]-[109] and see Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [16] (Gleeson CJ) and [24] (Gummow and Hayne JJ).

66. In Nudd v The Queen, Gummow and Hayne JJ said at [24]:

“As four members of this Court explained in TKWJ v The Queen, describing trial counsel's conduct of a trial as ‘incompetent’ (with or without some emphatic term like ‘flagrantly’) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code. ‘Miscarriage of justice’, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.”

67. The question is whether the failure of counsel to call the applicant, to lead evidence about the calendar, and to call witnesses and other evidence that could provide support for the entries that limited the number of Friday nights when sleepovers might have occurred, may have led to a miscarriage of justice. In other words, as Gummow and Hayne JJ put it, whether there was a “material irregularity” and whether there was a “significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial”.

Grounds 2, 3 and 4 must be rejected

68. I am unable to accept that a miscarriage of justice was occasioned by the decisions made by trial counsel and by his failure to conduct the case on the basis of the “alibi” said to be established by the calendar and supporting testimony and documents. There are several reasons for this, some of which are interrelated.

69. Contrary to the thrust of the appellant’s submissions, the evidence presented on the appeal was not capable of establishing an alibi in relation to any of the counts on the indictment. Taken at its highest, the evidence may have reduced the number of Friday nights when the children stayed over at Mr Scott’s home in the two months leading up to the final incident. That may have impacted on the complainant’s credibility. However, the prosecution did not assert, and was not required to prove, that any of the offences were committed on a Friday night, let alone on any particular Friday night. The allegations on their face particularised a range of dates in each of the first three counts. Sarah’s evidence (at QQ 401-402) included the possibility that she and her brother stayed over on a Saturday night as well as on “every second Friday night”. Her mother was asked in evidence if the sleepovers were on “any particular night” and she replied that it “varied”. She was asked if the sleepovers were always on weekends or weekdays and she repeated that it “varied”. The applicant’s wife’s evidence was that “mostly it was on the Fridays” but she also said “or Saturday and one could have been”. Mr Scott told police the children stayed over “six or seven times” under an arrangement that was in place for “a couple of months”.

70. The prosecution was not bound by the eight year old child’s memory that the indecent assaults occurred on every second Friday leading up to the 20 December 2016. Time was not “of the essence” in this trial: cf R v Severo Dossi (1919) 13 Cr App R 158, R v Westerman (1991) 55 A Crim R 353 and Director of Public Prosecutions (NSW) v Knight [2006] NSWSC 646; 162 A Crim R 555. Even assuming the prosecution was required to establish beyond reasonable doubt that the offence occurred within the dates nominated in each count, the evidence tendered on this appeal is not capable of raising a doubt about Mr Scott’s opportunity to commit the offences. Both his account in the interview with police and his wife’s account in evidence proved that the opportunity existed.

71. Count 1 was alleged to have occurred between 20 October 2016 and 6 December 2016. On Friday, 21 October 2016, the evidence establishes that the Scott’s had dinner at a friend’s place but it says nothing as to where they stayed on the Friday night and where they may have been on the Saturday night. The respondent asserted there may have been a sleepover on Saturday, 22 October 2016 although Mr Scott denied this in cross-examination on the appeal. How he could know this, three years down the track, is questionable.

72. Count 2 was alleged to have occurred between 3 November 2016 and 6 December 2016. The calendar has an entry suggesting there was a sleepover on Friday, 4 November 2016.

73. In respect of both counts 1 and 2, the evidence concerning Friday 11 November 2016, which related to the procedure concerning Mr Scott’s eye, did not rule out the possibility of a sleepover. The hospital notes suggest he left the hospital in the middle of the afternoon and the evidence was silent as to what he did afterwards.

74. Count 3 was alleged to have occurred between 17 November 2016 and 6 December 2016. The calendar has no entry on Friday, 2 December 2016. The spreadsheet regarding this date includes the assertion “NO KIDS” but the source of this information is not known and the author of the document did not give evidence on the appeal. The information available to counsel at the trial was that the calendar did not rule out the possibility that there was a sleepover on Friday, 2 December 2016. There was no evidence of “alibi” for this date, let alone for the range of dates nominated in the indictment.

75. The foregoing analysis merely demonstrates that there were dates within the range nominated for each count where Mr Scott may have had the opportunity to commit the offences. As trial counsel said under cross-examination as to why he did not advise the filing of an alibi notice:

“Because, as I’ve said, there were sleep overs, that’s not in issue, and the real issue was whether or not the assaults occurred, and we had the last incident which is shortly before he was charged with the matters. So that’s obviously not the subject of this of course, but I didn’t form that view.

…

Well, as I’ve said, she couldn’t pinpoint the days. I mean what else – she says that they’re Fridays, I don’t know. … Just because she’s firm about a Friday sleepover doesn’t mean it’s a Friday”.

76. Counsel’s opinion that there was no issue that there were sleepovers was based on the contents of Mr Scott’s ERISP and the evidence of his wife. The ERISP was clear:

“Q 141   So how long has that arrangement been in place?

A   Maybe a couple of months.

Q 142   Yeah. So how many times do you think that they’ve stayed at your house overnight.

A.   Six or seven times.”

77. He provided a similar account in answer to questions 120-126.

78. Putting aside the shortcomings of the evidence tendered on the appeal, the fact that there were holes in the calendar evidence, and the fact that Mr Scott acknowledged there were six or seven sleepovers in the relevant period, the decision to conduct the trial in the manner that was adopted constituted a tactical decision in which both the solicitor and the client were involved. The written instructions establish that Mr Scott was aware of the decision and the reasons it was made. While I have no doubt Mr Scott was nervous and reliant on the advice he was receiving, there is nothing to support the proposition that he did not understand the decisions that were taken or that he was under duress.

79. Further, there was a completely rational explanation for counsel’s tactical decision. To have called the applicant, and relied on the calendar to suggest that there were insufficient Friday night sleepovers for the offences to have been committed, would have invited cross-examination about the answers given in the ERISP. Those answers cannot stand with any suggestion that the applicant did not have the opportunity to commit the offences, let alone that there was an alibi.

80. I am not satisfied that there is a significant possibility that the advice and decisions of counsel complained of under these three grounds of appeal, affected the outcome of the trial. Grounds 2, 3 and 4 must be rejected.

Ground 1: The verdicts are unreasonable.

81. Under this ground, the applicant makes a number of specific complaints about the trial proceedings and criticisms of the evidence adduced by the proseution. This led to the general proposition that the verdict is unreasonable and unable to be supported having regard to the evidence.

Legal approach

82. The approach the Court must take to this ground of appeal is well established: see for example, M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The position was summarised in Guo v The Queen [2020] NSWCCA 40 at [3]:

“The question we must ask ourselves is whether we think ‘that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’: M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. This is more than a question of the sufficiency of the evidence. The Court is required to ‘make its own independent assessment of the evidence’: M v The Queen at 492 and SKA v The Queen (2011) 243 CLR 400 at 408; [2011] HCA 13. In doing so, the Court must bear in mind ‘that the jury is the body entrusted with the primary responsibility of determining guilt or innocence’: M v The Queen at 493. A reasonable doubt experienced by this Court will, in most cases, be a doubt that the jury ought also to have experienced, unless the jury’s advantage in seeing and hearing the evidence is capable of resolving that doubt: M v The Queen at 494.”

83. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said at 494-495 (authorities omitted):

“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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.”

84. Most recently, in Pell v The Queen, a unanimous High Court explained the correct approach and the limits on the jurisdiction in the following passage:

“37.   Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

38.   It should be understood that when the joint reasons in M v The Queen spoke of the jury's ‘advantage in seeing and hearing the witnesses’ as being ‘capable of resolving a doubt experienced by a court of criminal appeal’ as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.

39.   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

The applicant’s submissions

85. Senior Counsel for the applicant identified a number of areas where it was submitted the evidence was deficient. These were largely, and appropriately, addressed to the credibility and reliability of Sarah’s evidence. Any reasonable doubt attaching to Sarah’s evidence is likely to be fatal to the prosecution case. Senior Counsel also identified a number of aspects of the trial, including questions of admissibility and directions given in the course of the summing up, that were said to be relevant under this ground of appeal. It is doubtful that such matters can properly inform the Court’s consideration of a ground asserting that the verdicts were unreasonable (although Brennan CJ took an “absence of adequate direction” into account in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 at 446). Generally, if such matters are to be relied upon to impeach a conviction, they will be subject to a discrete ground of appeal. I will deal with those matters first.

Lack of balance in the summing up

86. In spite of the absence of any ground of appeal relating to the summing up, the applicant submitted that the summing up was unbalanced. It was suggested that the trial Judge failed to remind the jury of the criticisms of Sarah’s evidence made in counsel’s address or the suggestion that her mother asked her leading questions. It was also submitted that the trial Judge failed to place sufficient emphasis on the lack of support for Sarah’s account in the DNA and medical evidence.

87. The contention that the summing up lacked balance and failed to emphasise matters favourable to the defence is without merit. The trial Judge, briefly and succinctly, reminded the jury of the submissions made by counsel for the prosecution and defence. In neither case were all of the arguments summarised. Her Honour reminded the jury of a number of inconsistencies in Sarah’s evidence relied on by counsel for the applicant and specifically raised the fact that it was the mother who introduced the expression “front bottom” (which, significantly, Sarah did not adopt). Her Honour told the jury “the Crown case is based exclusively on [Sarah’s] evidence. Mr Bruce and Dr Hotton’s evidence does not take the Crown case any further…” She went on to remind the jury that defence counsel submitted that the DNA results were “consistent with the accused’s account.”

88. A fair reading of the summing up shows that it was balanced and fair. No complaint was made at the trial and, as I have already emphasised, no ground of appeal was raised suggesting that the lack of balance resulted in a miscarriage of justice.

The admission of the recording of Sarah’s conversation with her mother

89. The applicant’s written submissions analysed the admissibility of “complaint evidence” at common law and under the Evidence Act 1995 (NSW). Criticism was levelled at the complainant’s mother for asking leading questions and reference was made to evidence that there were some problems in the relationship between Mr and Mrs Scott and their daughter-in-law. This part of the written submissions concluded with the bold proposition:

“In this case, questions had been raised about previous friction between [Sarah’s mother], and the Appellant and his wife, [redacted], and about the extraordinary taping of [the] discussion with [Sarah]. In those circumstances, where the complaint was made in response to leading questions then the evidence should have been excluded or its use should have been limited by her Honour.”

90. Again, there was no ground of appeal asserting that the wrongful admission of evidence, or failure to limit its use, constituted an error of law or otherwise resulted in a miscarriage of justice. If such a ground had been raised it would have been devoid of merit. The conversation with the mother was clearly admissible. Nobody at the trial suggested otherwise. It included a number of asserted facts made when the 20 December 2016 incident was fresh in the complainant’s memory: Evidence Act, s 66. The fact, if it was accepted, that there was friction in the family did not make the evidence inadmissible. Nor did the fact that there were some, very limited, leading questions. As can be seen, when the mother asked directly whether the kiss was on the “front bottom” Sarah responded in the negative and indicated that it was on her “middle” bottom.

136. Ground 7 asserts that the aggregate sentence was manifestly excessive. No submissions were directed specifically to this ground either in writing or on the hearing of the appeal. Even so, the ground is pressed and should be evaluated in accordance with well-established principles.

137. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), Judge Flannery SC indicated that, had she not imposed an aggregate sentence, she would have imposed a sentence of 3 years with a non-parole periods of 21 months for each of the indecent assault offences. For the sexual intercourse offence, her Honour indicated a putative sentence of 5 years with a non-parole period of 3 years. Mr Scott was sentenced to an aggregate sentence of 6 years with a non-parole period of 3 years and 6 months.

138. To succeed on an argument that the sentence is manifestly excessive the applicant must show that the sentence is plainly wrong or unjust. There is no single correct sentence and it is not sufficient that individual judges of this Court may have imposed a less severe sentence. Sentencing judges are entrusted with a broad discretion to impose a sentence that falls within a wide range that may be appropriate given all the circumstances of the case. To evaluate this ground, it is necessary to consider the objective criminality of the offending and to take into account the particular and individual circumstances of the offender.

139. The maximum penalties and standard non-parole periods that apply to the offences must be kept firmly in mind throughout this Court’s consideration of this ground of appeal. Counts 1, 2 and 3 carried a maximum penalty of 10 years with a standard non-parole period of 8 years. The sexual intercourse offence attracted a maximum penalty of life imprisonment and a standard non-parole period of 15 years. As Judge Flannery SC explicitly found, there was no alternative to the imposition of a sentence of full time imprisonment. However, as her Honour implicitly concluded, the sentence appropriate to the individual circumstances of this case did not need to come close to the severity of the maximum penalties and standard non-parole periods that applied.

140. Judge Flannery SC made a number of observations about the facts of the case which demonstrated that, objectively, each of the offences fell below, and I would say substantially below, the mid-range of objective seriousness for offences of their kind. In particular, her Honour noted the following factual circumstances which reduced the objective criminality of these offences relative to other offences of their kind:

1. Each offence was of short duration. The most serious offence took place for about 10 seconds on the victim’s estimate.

2. No force or coercion was used: see R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [25]-[26] (Simpson J, as her Honour then was).

3. On 20 December 2016, when the victim asked the applicant to stop because she was feeling uncomfortable, he stopped.

4. In relation to count 4, the victim was “not well below the statutory age of 10”.

141. To these matters, it might be added that there were no threats or pressure applied to the complainant to force her to involve herself in the activity and there were no immediate signs of distress demonstrated by her: AJP at [25]. Further, while Sarah thought the applicant may have used words like “beautiful” or “beautiful skin” at the time of one or more of the offences, there was no evidence of sexual gratification. The motive for the offences was mysterious and the conduct inexplicable and out of character. As Wilson J said recently in RC v R; R v RC [2020] NSWCCA 76 at [241]:

“The absence of any evidence to establish a sexual motivation in the commission of the offence is a relevant feature to the determination of the objective gravity of the crime, and lessens it …”

142. On the other hand, and as Judge Flannery SC found, the offence was aggravated by the egregious breach of trust involved in a series of indecent and sexual assaults committed by a grandfather charged with the care of his eight year old granddaughter. In the case of counts 1-3, the victim was “well below the statutory age of 16”.

143. The applicant presented a formidable and compelling subjective case on sentence. At the time of the offence he was 68 years old and was 70 at the time of sentence. He had no previous criminal history of any kind and he presented with a very impressive array of testimonials.

144. He was described by his other son – that is, not the father of the victim – as a “loving, protective and generous parent”. This son expressed concern as to the separation of his own children from the applicant during the period of incarceration.

145. A senior academic from Sydney University described his involvement in the Sri Lankan community and said Mr Scott “played a key role in the reconciliation of different ethnic groups who migrated to Australia following three decades of ethnic unrest in our motherland”. The professor described the applicant’s “special qualities of kindness unfailing politeness and willingness to help others without expecting anything in return”. A former Crown Prosecutor knew the applicant from Sri Lanka as a Rugby International. He said they maintained contact in Australia and the applicant always “behaved in a sober and responsible manner, and showed no behavioural impropriety in company with adults and children”. Another referee spoke of the applicant’s “philanthropy” and success as a metallurgist and businessman. He “has helped countless people over the years to find employment and settle into life in Australia”. He arranged a container load of supplies to be shipped to Sri Lanka after the tsunami in 2004 and also organised events from which donations were sent to aid the reconstruction of Colombo. There were other testimonials to a similar effect.

146. While the sentencing Judge referred to the Prosecutor’s submission that “less weight is given to an offender’s good character where there has been sexual offending against young children”, that principle has greater resonance in a case where the offender has used their position or good character to commit the offence: Crimes (Sentencing Procedure) Act, s 21A(5A), AH v R [2015] NSWCCA 51 at [22]-[25] and, see generally as to the position at common law, R v PGM [2008] NSWCCA 172; 187 A Crim R 152. The applicant did not use his good character or his position in the community to commit the offences. It was his position of trust as a grandfather that was abused and this was taken into account as an aggravating feature in assessing the objective seriousness of his offending. Mr Scott’s good character, and more importantly his history of charitable works and substantial contributions to the community, were matters entitled to substantial weight in a determination of the appropriate sentence: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.

147. A psychologist’s report was tendered. It noted a number of health concerns “including cataracts, high cholesterol, reflux, enlarged prostate and arterial fibrillation”. There was no relevant psychological condition although Mr Scott suffered “mild claustrophobia”, a matter that Judge Flannery SC took into account. The psychologist expressed the opinion that Mr Scott “has little in common with men who reoffend sexually”. He considered he was a “very low risk of sexual recidivism” and said Mr Scott’s “experience of custody … would be subjectively more onerous than the ‘average’ inmate.” This was based on the applicant’s age, the fact that he was charged with child sex offences and had never been to prison before, and his claustrophobia.

148. There was evidence concerning the medical conditions of both the applicant and his wife. The applicant has a cataract in his left eye which required surgery. It was considered unwise to postpone the surgery due to the risk of “angle closure glaucoma”. A general practitioner listed his medical conditions as “anxiety with depression, benign prostatic hypertrophy and hypercholesterolemia”. As has been observed, Mrs Scott had low blood pressure, high cholesterol and a history of heart disease. She was born in 1950 and is now 70 years old. She was extremely distressed following the verdict, “very dependent” on the applicant and felt, at times, suicidal.

149. A pre-sentence report tendered by the prosecution assessed Mr Scott as a “low risk of re-offending”. It noted deterioration in Mr Scott’s mental health since he went into custody. The report confirmed a number of medical issues namely “high cholesterol, reflux, an enlarged prostate with an additional requirement for surgical intervention and impaired vision as a result of cataract damage”. It also referred to “a history of fibrillation”.

150. Ordinarily, an aggregate sentence of 6 years with a non-parole period of 3 years and 6 months would fall well within the range of an appropriate sentencing discretion for four offences involving kissing an 8 year old child on or near the genitalia when the perpetrator stood in a position of trust. The maximum penalties and standard non-parole period applicable would suggest the sentence was a modest one. However, this is an exceptional case both in terms of the objective features and the personal case of the offender.

151. In terms of objective seriousness, each of the offences occurred over a very short period of time, appeared to be opportunistic and was not accompanied by any overt act or suggestion of sexual gratification. In terms of the most serious offence, the applicant stopped as soon as the child said she felt uncomfortable.

152. Subjectively, the offender presented a most compelling case. His charitable works and contributions to the community over many years are remarkable. He was 70 years old with no previous criminal offences of any kind. He is most unlikely ever to come before a criminal court again. He had a number of medical conditions reflective of his age and his wife was dependent on him for care and support.

153. In the exceptional circumstances, I am satisfied that the aggregate sentence is manifestly excessive. Accordingly, ground 7 is made out. I would grant leave to appeal against the sentence and allow the appeal.

COVID 19 Pandemic and re-opening of the case

154. Since the case was heard, Australia, along with the rest of the world, has fallen into the grip of the COVID-19 pandemic. The applicant filed written submissions urging the Court to take this into account if it was necessary to consider the application for leave to appeal against sentence. The submissions referred to the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) and amendments made to the Crimes (Administration of Sentences) Act 1999 (NSW) allowing for the Commissioner to order early parole for some low risk prisoners. However, the legislation specifically excludes prisoners charged with a serious sex offence, which includes the offences of which the applicant was convicted. [4] It was submitted:

“[Mr Scott] is 72 years of age and is currently suffering a number of ailments including breathing difficulties caused by Asthma. He has been prescribed Ventolin and Symbicort by Justice Health. He is also on medication for high cholesterol. He has [an] enlarged prostate and is due for surgery on his knee and cataract. In the current COVID-19 pandemic he falls into the most vulnerable category and his prolonged incarceration together with a large number of inmates places him in a high-risk category to contract the virus. If he does, on the current statistics, his life is in danger.”

4. See the definition in the Crimes (High Risk Offenders) Act 2006 (NSW).

155. Contrary to well established authority, these submissions were filed without the leave of the Court: see, for example, Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258; [1981] HCA 20, Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 143 [28]-[31]; [2003] HCA 28, Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230 at 267. No evidence was filed to substantiate the facts asserted in the submissions.

156. In accordance with the Court’s directions, the Registrar wrote to the parties seeking further information, submissions and the evidentiary foundation of the submissions filed without leave.

157. The applicant then filed “submissions seeking leave”. Attached to those submissions was a facsimile transmission from Justice Health listing the medical conditions of the applicant as at 8 April 2020. Most relevantly, the applicant suffers from asthma, “Pre-Type 2 diabetes” and atherosclerotic disease.

158. The submissions included a number of links to websites on which articles, reports and papers about the pandemic have been published on the internet. Some of these publications were from reputable sources. Others were not. It was not clear whether these articles were meant to become evidence on the appeal or cited as some kind of authority. One of the articles hyperlinked to the applicant’s submissions seeking leave to file further submissions suggests that diabetes is a condition that makes a patient more vulnerable to COVID-19. However, I am not sure what is meant by “Pre-Type 2 diabetes” (as described in the facsimile from Justice Health) and the credentials and reliability of the website known as “WebMD” is a mystery to me.

159. The respondent filed submissions and relied on an affidavit of the solicitor with carriage of the matter. The respondent did not raise any objection to leave being granted to the applicant to rely on the additional submissions. Accordingly, leave was granted in chambers allowing the applicant to ventilate these issues.

160. The respondent objected to reliance being placed on the various media articles. The basis of the objection was that the material was second hand hearsay or evidence of expert opinions offered by people whose qualifications were not established. I accept the respondent’s submissions and have disregarded the material contained in the media articles, opinion pieces and the web-pages extracted from “WebMD”. The respondent raised no objection to the material from Justice Health or from the websites of government departments such as NSW Justice Health and the Commonwealth Health Department.

161. The respondent’s solicitor annexed to her affidavit further material from the Commonwealth and State Health Departments and a report by the Director of Corrections Strategy, Department of Health relating to the Department’s response to COVID-19. There was also an email from the Nursing Unit Manager at Kirkconnell & Oberon Correctional Centres (Ms Allen) dealing with the applicant’s particular circumstances.

162. The evidence supports the submission that Mr Scott’s age and some of his medical conditions make him more susceptible to complications if he contracts the virus. Ms Allen stated “the patient is a 71 year old man who has a few chronic health conditions” and “he does fall into the category that is most at risk for contracting Covid 19”. On the other hand, the evidence establishes that there have been no confirmed cases of COVID-19 in the NSW prison population. There have been three cases in staff members, one at the Long Bay Prison Hospital and two at the Forensic Hospital. The staff members affected and those who had contact with them are (or were) in self-isolation and will undergo testing and monitoring. The evidence suggests that Corrective Services NSW have implemented a range of strategies calculated to minimise the risk that the virus will enter the NSW prison system. Some of those strategies, such as the suspension of all personal visits, make the conditions of incarceration of current inmates more onerous. It must also be accepted that the applicant, due to his age and medical conditions, will “experience a level of stress, anxiety, and even fear at the potentially fatal consequences to him were he to be infected with the COVID-19 virus in prison” that is far greater than a younger, healthier, inmate: see RC v R; R v RC at [254].

163. The respondent objected to the evidence and submissions being relied on as “fresh evidence” because it arose after sentence was imposed and was properly within the province of the executive government: cf R v Munday [1981] 2 NSWLR 177 at 178; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11]. However, there are exceptions to the general propositions established by the cases relied on by the respondent: see, for example, R v Abbott (1985) 17 A Crim R 355, R v Smith (1987) 27 A Crim R 315, R v Goodwin (1990) 51 A Crim R 328 and R v Ehrenburg (Court of Criminal Appeal (NSW), 14 December 1990, unrep). In Betts v The Queen, the High Court, in affirming the general propositions concerning the admissibility of fresh or new evidence in sentencing appeals, observed at [10]:

“None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.”

164. Having concluded that the sentence is manifestly excessive, it is unnecessary to decide whether the evidence is admissible as an exception to the general rule as to the admission of additional evidence on a sentence appeal. Nor is it necessary to consider the possibility that the applicant seeks to raise an additional ground of appeal relying on the concerns arising from the COVID-19 pandemic. No such ground was raised and no application to amend the grounds of appeal was foreshadowed. I will take the additional evidence and submissions into account on the “usual basis”, that is, on the question of re-sentence.

Re-sentencing

165. In considering the appropriate sentence now to be imposed, I have taken into account the relevant objective and subjective features detailed in the course of this judgment including at [134], [139]-[152]. I have kept in mind the maximum penalties and standard non-parole periods applicable to each offence. In the course of this judgment I have analysed the matters relevant to an assessment of the objective seriousness of the offences and described the personal circumstances of the applicant. The sentence must reflect the objectives of punishment at common law and under s 3A of the Crimes (Sentencing Procedure) Act. In sentencing for offences against young children deterrence must play a significant role.

166. As to the new material arising out of the COVID-19 pandemic, of particular relevance is the applicant’s advanced age (he is now 71) and the fact that he has asthma and other medical conditions that make him more vulnerable to potentially grave complications should he contract the virus. Custodial institutions have particular problems in controlling the spread of a virus such as COVID-19. However, to this point no inmate has tested positive in any Corrective Services facility in New South Wales and, it seems, any cases amongst staff at the hospitals have been contained. There is no evidence that the virus has spread further or made its way into the general prison population. The Department says it has taken steps to minimise the risk of the virus entering the prisons. One of those steps has been to suspend all social and family visits, a matter that makes the conditions of incarceration of most inmates more onerous. I have taken these matters into account in re-sentencing.

167. An offender’s advanced age and ill-health are always relevant to the length of a custodial sentence, particularly where those matters make a gaol term “significantly harder” for the particular individual: see, for example, R v Simon [2003] NSWCCA 147; 142 A Crim R 166 at [33]. Further, for an elderly person “[e]ach year spent in prison represents a substantial portion of the remaining years of life which [he or she] may expect": R v DB [2001] NSWCCA 320 citing R v Hunter (1984) 36 SASR 101.

168. Like the sentencing Judge I would find special circumstances and adjust the length of the parole period to take into account the applicant’s advanced age, the putative partial accumulation of sentences, the applicant’s medical conditions and his wife’s circumstances. I will give effect to the finding of special circumstances in the aggregate sentence and the indicative sentence for count 4.

165. For the purpose of s 53A(2)(b), I indicate the following sentences that I would have imposed if an aggregate sentence were not imposed:

1. Count 1, 2 and 3 – in each case a sentence of 2 years with a non-parole period of 18 months.

2. Count 4 – a total sentence of 4 years with a non-parole period of 2 years.

170. I would impose an aggregate sentence of 5 years with a non-parole period of 2 years and 6 months.

Orders

171. For those reasons, I propose the following orders:

1. Leave to appeal against conviction granted.

2. Appeal against conviction dismissed.

3. Leave to appeal against sentence granted.

4. Appeal against sentence allowed.

5. Quash the sentence imposed in the District Court and in lieu thereof:

6. The applicant is sentenced to an aggregate sentence of 5 years commencing 5 June 2018 and expiring 4 June 2023, with a non-parole period of 2 years and 6 months expiring on 4 December 2020.

7. The applicant will be eligible for release to parole at the expiration of the non-parole period.

172. FAGAN J: I agree with all that Hamill J has written and with the orders his Honour proposes.

173. My agreement that the sentence imposed was manifestly excessive derives both from the objective features of the offending and from the applicant’s compelling subjective claims to lenience. The two aspects provided grounds for mitigation of penalty that were unusually strong for crimes of this type.

174. Relative to much more serious instances of sexual offending against young children that are frequently seen in this Court, the applicant’s conduct as found by the learned sentencing judge was at the lower end of the range both for the offences charged under s 61M(2) and for the single count under s 66A(1) of the Crimes Act (as in force in late 2016). The acts in the present case were almost fleeting. The small number of instances occurred over a closed period of weeks. The applicant’s conduct overall was indecent but not heavily sexual. As described by the complainant in her recorded interview and as found by the judge, it appears that the applicant came to his senses and retreated in the face of the complainant’s protest on the last of the occasions in question.

175. The interview showed the complainant to be a remarkably intelligent, perceptive and level-headed child. The learned sentencing judge had regard to a victim impact statement prepared by the complainant’s mother on her behalf. This describes lasting deleterious effects upon her state of happiness and adjustment. From the victim impact statement it is extremely difficult to distinguish between adverse emotional and psychological effects caused by (a) the applicant’s criminal conduct; (b) the complainant’s engagement with the prosecution process and (c) the fracturing of family relationships that has resulted from these events, especially given the previous close involvement between the complainant’s immediate family and her paternal grandparents, the applicant and his wife. It may be inferred that the complainant’s disturbance has been contributed to by tension and division amongst members of her wider family resulting from the applicant’s denial of her allegations. Whatever has resulted from that contributory cause cannot be regarded as harm done by the offending. Segregation of causes was not the subject of evidence in the sentence proceedings.

176. On the basis of the testimonial evidence it can be said that the applicant’s conduct was an extraordinary and inexplicable aberration, late in the life of a man of unblemished good character. At the time of the offences he was living with his wife of 42 years. The sentencing judge accepted the opinion of Mr Sheehan, psychologist, that there was nothing in the applicant’s report of his own history that could offer any insight into the commission of the offences. There is nothing from any other source to explain the behaviour. The judge concluded that the applicant is unlikely to reoffend.

177. Of the purposes for which a court may sentence an offender, as prescribed in s 3A of the Crimes (Sentencing Procedure) Act, I consider that this case attracted only the objectives of (a) ensuring adequate punishment; (e) making the offender accountable for his actions; (f) denouncing his conduct and (g) recognising the harm done to the complainant and the community.

178. The applicant’s offending was so anomalous in his otherwise blameless life that I cannot regard him as a suitable vehicle for fixing a penalty with any significant component for general deterrence of other prospective offenders (par (b) of s 3A). The level of sentence should not be materially influenced by the consideration of protecting the community, given the improbability of further offending (par (c)). In these two respects I respectfully differ from the learned sentencing judge.

179. Her Honour was satisfied that the applicant’s advanced age and ill-health would make time in prison harder for him than for others. That aspect of the matter warrants emphasis. For such a man to be imprisoned, even for a relatively short term, on such charges, at his stage of life, with all his concerns about his own failing health and that of his wife, is severe punishment indeed. Six years of it, with a non-parole period of 3 years and 6 months, was excessive in all the circumstances of this case. I agree with the lesser sentence that Hamill J proposes.

**********

Endnotes

Amendments

29 April 2020 - [83] Amendment to quote

Decision last updated: 29 April 2020