SJB v The King

[2024] NSWCCA 244

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

SJB v R [2024] NSWCCA 244

Hearing dates:

21 October 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Before:

Ward P at [1]; McHugh JA at [333]; Rothman J at [339]

Decision:

1.   Leave to appeal is granted.

2.   Appeal allowed.

3.   The guilty verdicts on Counts 6, 9, 11, 13 and 14 are quashed, and verdicts of acquittal are to be entered on each of those counts.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Where offending occurred over a period of four months – Whether complainant’s lack of credibility and inconsistencies in evidence were such that jury should have had reasonable doubt as to applicant’s guilt – Appeal allowed

CRIME – Appeals – Appeal against conviction – Inconsistent verdicts – Where logical basis to find applicant not guilty on counts where date essential element – Where no logical basis to distinguish other verdicts – Appeal allowed

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Criminal Procedure Act 1986 (NSW), s 293A

Evidence Act 1995 (NSW), s 191

Mental Health Act 2007 (NSW)

Cases Cited:

AH v R [2019] NSWCCA 152

AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136

AS v R [2022] NSWCCA 291

Bayliss v R [2023] NSWCCA 84

Collins v R [2020] NSWCCA 198

Dadley v R [2021] NSWCCA 267

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Davis v The King [2024] NSWCA 120

Ganiji v R [2019] NSWCCA 208

Hawi v R [2014] NSWCCA 83

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

Kim v R [2020] NSWCCA 288

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

LS v R [2024] NSWCCA 110

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

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

Martin v R [2020] NSWCCA 192

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

Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37

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

Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95

R v ACK [2000] NSWCCA 180

R v Kirkman (1987) 44 SASR 591

R v KRL [2007] NSWCCA 354

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151

RM v R [2024] NSWCCA 148

Rossi v R [2024] NSWCCA 17

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Category:

Principal judgment

Parties:

SJB (Appellant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
T Quilter (Appellant)
E Nicholson (Respondent)

Solicitors:
Marsdens Law Group (Appellant)
Solicitor for Public Prosecutions (NSW)

File Number(s):

2021/00194771

Publication restriction:

Restriction on publication of anything that might identify the complainant (s 578A of the Criminal Appeal Act 1900 (NSW))

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 November 2023

Before:

T Smith SC DCJ

File Number(s):

2021/00194771

HEADNOTE

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

On 30 November 2023, the applicant was convicted of five sexual offences against her partner’s then 13 year old son, having been charged and tried before a jury in respect of 15 counts. On 2 May 2024, T Smith SC DCJ sentenced the applicant to an aggregate term of 7 years and 9 months imprisonment, with a non-parole period of 5 years. The applicant was granted bail at the time of her arrest, and remained on bail during the sentence and appeal proceedings.

Counts 1 to 4 were alleged to have occurred on a single occasion on 17 or 18 December 2019. Counts 5 to 15 were alleged to have occurred when the complainant lived in the applicant’s house during the period of December 2019 to March 2020 (in various rooms of the house). The jury, unanimously, returned guilty verdicts on Counts 6, 9, 11, 13 and 14, and not guilty verdicts on the balance of the counts.

The applicant sought leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against her conviction on two grounds. First, that the guilty verdicts are unreasonable, or cannot be supported, having regard to the evidence at trial. Second, that the guilty verdicts are factually inconsistent with the verdicts of not guilty such that the verdicts cannot stand together.

The Court held (Ward P, McHugh JA and Rothman J agreeing), allowing the appeal, quashing the guilty verdicts and entering verdicts of acquittal on each of those counts:

As to the unreasonableness of the verdicts:

1. As to Count 6, the inconsistency in the chronology of events proffered by the complainant gives rise to a reasonable doubt as to the veracity of the complainant’s allegation. In particular, the suggestion that the applicant gave him alcohol and drugs is inherently implausible given that the Catholic Care workers, who attended the applicant’s house, gave no evidence of observing the complainant in an inebriated state. So too is it implausible that the acts alleged could have occurred in circumstances where various people attended the house during the day: [276]-[279] (Ward P); [333]-[338] (McHugh JA); [339]-[341] (Rothman J).

2. As to Counts 9 and 11, though the first is also undermined by the apparent lack of reference to that incident in the police interview, both counts are seriously impacted by the credibility issues relating to the complainant generally: [280] (Ward P); [333]-[338] (McHugh JA); [339]-[341] (Rothman J).

3. As to Counts 13 and 14, there is an inconsistency in finding that the complainant’s account on these counts credible, yet not on the immediately preceding count, where all formed part of the overall circumstances in which it was said these counts occurred: [281] (Ward P); [276] (Ward P); [333]-[338] (McHugh JA); [339]-[341] (Rothman J).

4. The complainant’s credibility generally is significantly diminished by the various notes recorded by Catholic Care workers of their interactions with him. They reflect the willingness of the complainant to make statements which are histrionic or fantastical, or exhibit a vindictiveness on the part of the complainant: [282]-[284] (Ward P); [336] (McHugh J); [339]-[340] (Rothman J).

As to the inconsistency of verdicts:

1. Other than those counts where date was an essential element of the offence (Counts 7 and 15), there was not a logical basis for distinguishing between the acquittal counts and the conviction: [330] (Ward P); [338] (McHugh JA); [339]-[340] (Rothman J).

JUDGMENT

1. WARD P: Following a trial by jury before T Smith SC DCJ in the District Court at Campbelltown, the applicant (who is not identified by name pursuant to the restrictions on identification of the complainant) was convicted on 30November 2023 of five sexual offences against her partner’s son (the complainant). The complainant was aged 13 at the time of the offences and 17 at the time of the trial.

2. The applicant had been charged, and was tried, in respect of 15 counts (14 primary counts and one in the alternative). The jury returned unanimous verdicts: guilty verdicts as to five of those counts (6, 9, 11, 13 and 14) and not guilty verdicts on the balance of the counts. In respect of two of the counts (counts 7 and 15 – see below), on which not guilty verdicts were returned, the trial judge had directed that the date of the offence was an essential element of the offence (28/11/23; T 30-T 31).

3. For each count, the issue at trial was whether the alleged sexual act occurred. That issue turned on whether the complainant’s evidence was to be accepted beyond reasonable doubt.

4. On 2 May 2024, the trial judge sentenced the applicant to an aggregate sentence of 7 years 9 months imprisonment, with a non-parole period of 5 years. The applicant was granted bail at the time of her arrest and remained on bail during the trial and sentence proceedings. The applicant has remained on conditional bail following sentence, pending the hearing of this appeal.

5. The applicant now seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against her conviction. There is no complaint in respect of the sentence imposed.

6. The applicant raises two grounds of appeal:

Ground 1: The guilty verdicts are unreasonable, or cannot be supported, having regard to the evidence at trial.

Ground 2: The guilty verdicts are factually inconsistent with the verdicts of not guilty such that the verdicts cannot stand together.

Background

7. The 15 counts with which the applicant was charged related to conduct that had allegedly occurred during the period between 16 December 2019 and 5 March 2020, over which time the applicant was aged 42 and, as noted above, the complainant was aged 13.

8. At the time of the offences (and continuing as at the time of the trial (17/11/23; T 190.33)), the complainant’s father was in a relationship with the applicant, although the two lived separately (17/11/23; T 190.44; Electronically Recorded Interview of a Suspected Person (ERISP), A.43-49). That relationship had started in around 2012 or 2014 (see 17/11/23; T 190.13; ERISP, A.33). Each had children from previous relationships (17/11/23; T 189, ERISP, A.36-43). In 2016, the couple had a child together (17/11/23; T 190.27, ERISP, A.36-43). The applicant lived in Campbelltown, about 21.4 km or a 20 minute drive from the complainant’s father (ERISP, A.74; Ex C (map), 17/11/23; T 201.38).

9. The complainant was made a ward of the state and was in foster care from the age of 18 months (17/11/23; T 191.3). His care arrangements were managed by Catholic Care (16/11/23; T 116.16; ERISP, A.330).

10. In 2010, the complainant began living with foster parents (Mr and Mrs B) (20/11/23; T 327.29). About a year later, the complainant’s younger sister (“A”), also began living with the B family. The complainant’s sister (A) was aged 11 at the time of the alleged offences (and the B family was then living in Thirroul (20/11/23; T 328.9)).

11. In 2018, the complainant made allegations that he was verbally and physically abused by Mr and Mrs B (16/11/23; T 115). There was a private investigation of those claims arranged by Catholic Care (16/11/23; T 116), none of which was found to be sustained (as concluded in the investigation report dated 30 November 2019) (Ex 8;16/11/23; T 116.36). The complainant also said that he (the complainant) used to bash Mrs B (16/11/23; T 138).

12. After the complainant made allegations against Mr and Mrs B, he was removed from their care and he never returned to live with them (16/11/23; T 116.41). However, the complainant’s sister (A) continued to live with Mr and Mrs B; and was still living with them at the time of the trial (16/11/23; T 115.13, 17/11/23; T 246.31).

13. In October 2019, the complainant began living with his father in Cartwright (17/11/23; T 191.21). This was referred to as a ‘self-placement’. No one else lived in the house. While the complainant lived at his father’s address, the applicant visited about five times (17/11/23; T 192.34).

14. On 29 December 2019, the complainant ran away from his father’s house and began living at the applicant’s house (17/11/23; T 191.30). There was some inconsistency in the evidence as to the timing of events on this day (which is considered in more detail in due course). The complainant remained living at the applicant’s house from 29 December 2019 until 5 March 2020, when he was removed by the police following reported threats of self-harm (see below).

15. The applicant’s house contained four bedrooms (ERISP, A.92; Ex 4 (photographs of the house)). During most of the relevant period, there were five occupants: the applicant, a boarder (Craig), the applicant’s daughter (J) and her partner, and the complainant.

16. The applicant lived in a bedroom at the front of the house, which faced the street (on the right-hand side looking at the front of the house) (Ex 4, photograph 2; 16/11/23; T 164.30).

17. The boarder, Craig, a 42 year old who was unemployed and “at home a lot”, occupied a bedroom at the back of the house (ERISP A.101, 106; 17/11/23; T 261) which faced the backyard. Craig’s room was on the right-hand side looking at the back of the house (see Ex 4, photographs 21-22; 16/11/23; T 166.20) and was diagonally opposite the complainant’s bedroom (Ex 4, photograph 1; 16/11/23; T 167.4). Craig’s room had its own entry and exit from the house but the complainant said that the boarder usually used the front door (16/11/23; T 166.23).

18. The applicant’s 19-year-old daughter (J) and her partner lived at the house until 10 January 2020 (ERISP A.114; 17/11/23; T 259-T 261). J was working four to five days per week in Narellan (17/11/23; T 262). After J and her partner moved out, the complainant occupied J’s bedroom (17/11/23; T 269.43).

19. As adverted to above, on 5 March 2020, two police officers attended the applicant’s home following reports that the complainant was threatening self-harm. The complainant was detained under the Mental Health Act2007 (NSW) (Mental Health Act) and taken to Campbelltown Hospital for assessment (22/11/23; T 486). The complainant did not live with applicant after that date.

The offences

20. As set out below, Counts 1 to 4 were alleged to have occurred on a single occasion on 17 or 18 December 2019, shortly before the complainant ran away from his father’s house; Counts 5 to 15 were alleged to have occurred when the complainant lived with the applicant.

21. The alleged offences occurred at various locations: Counts 1 to 4 on the same day inside the applicant’s Ford Territory motor vehicle (Counts 1 and 2 occurred when it was parked outside the complainant’s father’s house; Counts 3 and (the alternative count) 4 after the applicant drove them from outside the complainant’s father’s house to a forest area); Count 7 inside the applicant’s Ford Territory when it was parked at Sandon Point, a beach near Thirroul (on an occasion after the complainant visited his sister at the B family’s residence in Thirroul); the remaining counts in various parts of the applicant’s house (Counts 6, 9, 10, 11, 13 and 14 in the applicant’s bedroom; Count 5 in the lounge room; Counts 8 and 12 in the bathroom; and Count 15 in J’s room).

Disclosure of the offences

22. The complainant said that he first disclosed the offences to his father. It would seem from the chronology of events considered below that this complaint was allegedly made after the conduct that was the subject of Counts 1 to 4. The complainant said that, after telling his father what occurred, the complainant’s father said “who really gives a fuck” and “I don’t really care” (Joint Investigation and Response Teams (JIRT) A.133). The complainant’s father denied any such complaint was made to him (17/11/23; T 216-T 217).

23. The complainant said that he otherwise made no complaint to anyone during the period of the alleged offences (16/11/23; T 99-T 100). In particular, the complainant did not say that he complained to “G”, the teenage daughter of the applicant’s friend (“D”).

24. G, on the other hand, said that she had received a message from the complainant saying that the applicant had raped him (17/11/23; T 277.33). G initially gave evidence that it was received after the complainant had moved out of the applicant’s house (17/11/23; T 277.50) but G later agreed that she had told the police in a statement dated 8 September 2022 (more than two and a half years after the complainant left the applicant’s house) that the message was sent at a time when (by inference) the complainant was still living with the applicant (17/11/23; T 280). G remained uncertain as to the timing of the message (17/11/23; T 282.16). G said that she did not do anything after receiving the message because “people say it all the time in care” (17/11/23; T 282.49).

25. The evidence of G was the only complaint evidence emphasised by the Crown in its closing address (24/11/23; T 631) and was the only evidence the subject of a complaint direction (28/11/23; SU 57). (See discussion in the jury’s absence at 23/11/23; T 593-T 594).

26. On 15 May 2020, at a mental health appointment with counsellors, the complainant disclosed that the applicant had sexually abused him (16/11/23; T 98-T 99). The complainant said that he was then driven home by a man called Mustafa. The complainant said that he told Mustafa, in some detail, what happened between him and the applicant (16/11/23; T 99.25-35). There was no evidence at trial about the details of the complainant’s conversations with either the counsellors or Mustafa. Detective Kelly, the officer-in-charge of the investigation, said he did not make any enquiries with the counsellors because “there’s very strict regulations about speaking to people in that role” (22/11/23; T 493) and that he did not “follow up” with Mustafa or establish his surname and that he “must have missed” the potential importance of that evidence (22/11/23; T 494).

27. The trial judge told the jury that the absence of evidence from Mustafa was a matter they could consider in determining if the Crown had proved the charges (28/11/23; SU 60-61). No such direction was sought or given in relation to the absence of evidence from the counsellors (23/11/23; T 596). The trial judge told the jury that the only relevance of the evidence about the counsellors was to provide context in relation to other events from 15 May 2020 (see below) (28/11/23; SU 61).

28. Later, on 15 May 2020, the complainant attended the Penrith Police Station where he disclosed some of the alleged offences to a detective, who made notes that were put on the Computerised Operating Police System (COPS) (the 15 May COPS entry) (22/1/23; 475.48). Those notes were not tendered at trial, but some of the contents of those notes was adduced through the oral evidence of various witnesses. From this, it can be deduced that the notes recorded at least the following things.

29. First, that the complainant told the detective that he recalled “the first incident occurring towards the end of January 2020” (16/11/23; T 112.11; 22/11/23; 491). This incident involved the applicant entering the bathroom where the complainant had been showering, when the applicant then masturbated the complainant and performed oral sex on him; and then, later in the evening, the applicant came into the bedroom, pulled the complainant’s pants down and had sex with him (16/11/23; T 101.40). In cross-examination, the complainant agreed that he described that incident to the detective first but he did not recall describing it as the first incident (16/11/23; T112.19).

30. Second, that the complainant “recall[ed] the last incident of sexual abuse occurring four days prior to him being scheduled by police” (22/11/23; T 492.14-19). In cross-examination, the complainant said that he did not recall saying that about the timing of the last event, but he accepted he could have (16/11/23; T 102.19-46).

31. In cross-examination, the complainant agreed that he never said anything to the detective about: anything happening in a car; things happening at Sandon Point; a dildo (Count 8); or anal sex (Count 10) (16/11/23; T 102-T 103). It is unclear whether the complainant said anything to the police at that stage about cunnilingus (Count 9). There was no re-examination to confirm any matters that were contained in the notes that may have been said to have been consistent with the complainant’s allegations.

32. On 28 May 2020, the complainant was interviewed by Detective Kelly. This interview was recorded and became the complainant’s evidence-in-chief at trial (MFI 4 (JIRT)). Some additional portions of the interview that had originally been edited out were tendered later in the trial (MFI 51).

Arrest of the applicant

33. On 7 July 2021, the applicant was arrested. The applicant was interviewed by Detectives Kelly and Cole at Campbelltown Police Station. A recording of the interview was played at trial (Ex N1, disc and N2, transcript (ERISP)). The applicant denied committing any offences (ERISP, A.518-527). The applicant suggested that a possible motive for the complainant to lie was that he was looking for a way to end her relationship with the complainant’s father (ERISP, A.409).

Evidence at the trial

34. At the trial, 16 witnesses were called to give oral evidence in the prosecution case: the complainant, various family members of the complainant (his father, his mother, his younger sister (A), his cousin (M) and his older sister (MB)); people living or spending time in the applicant’s home while the complainant lived there (the applicant’s daughter (J), Craig (the boarder), the applicant’s friend (D) and her daughter (G)); various persons who had had some involvement with the complainant as a result of his care placements (Louise Hampton and Sarah Egbers, who were employed by Catholic Care; Vanessa Turner, who was employed by the Department of Communities and Justice (DCJ)); the complainant’s former foster parents (Mr and Mrs B); and Detective Kelly, the officer in charge of the investigation. “M”, the complainant’s cousin, had initially declined to make a statement but made one during the trial on 21 November 2023 (22/11/23; T 490).

35. Each of the complainant’s father and the complainant’s cousin (M) was subject to cross-examination by the Crown (with the leave of the court on the basis that their evidence was unfavourable to the Crown). As already noted, at the time of the trial, the complainant’s father continued to be in a relationship with the applicant. The Crown case was that he was tailoring his evidence to protect the applicant (17/11/23; T 239.1-9).

36. The Crown also relied upon documentary evidence and exhibits, including maps of various relevant locations, photographs, an aerial image of AB’s house, employment records of the applicant, the ERISP of the applicant and a drawing done during that interview, a recording of a conversation between the complainant’s cousin, M, and records from the Twin Towers Hotel where the applicant and complainant spent two nights. A Statement of Agreed Facts was tendered pursuant to s 191 of the Evidence Act 1995 (NSW).

37. The applicant did not give or call any evidence in her case. The applicant relied on her ERISP with police (which is summarised in due course).

The respective counts on the indictment

38. The jury was provided with a document (MFI 12) summarising the alleged conduct relied upon by the Crown for each count.

Counts 1-4 (verdicts of not guilty)

39. Counts 1 to 4 were alleged to have occurred in the applicant’s Ford Territory at a time when the complainant was living with his father. The complainant said it occurred on 17 or 18 December because it was four months before his birthday (JIRT, A.63-64).

40. The complainant said the applicant arrived in her Ford Territory (17/11/23; T 152.11) at an area at the back of his father’s house (JIRT, A.48, 93; 16/11/23; T 94-T 97; Exs F and G); that it was “exactly 6:30” at night because he ate dinner at 6:00pm for about five minutes, watched a show on Netflix for ten minutes, and had a shower for about 15 minutes (JIRT, A.81-83; 16/11/23; T 149-T 150).

41. The complainant said that the applicant was sitting in the driver’s seat, wearing her work uniform (JIRT, A.79-80; 16/11/23; T 152.48) and that his father was present but, at some point, the complainant’s father went inside (JIRT, A.34, 38).

42. The complainant said that at some point he joined the applicant inside the car; that he had cut his foot on a piece of colorbond (JIRT, A.69) and had then stepped on rocks, and the rocks had ended up inside his cuts (JIRT, A.65, 67) and that the applicant assisted him by removing the rocks from his foot with a pair of tweezers (JIRT, A.67).

43. The complainant said that the applicant leaned in and tried to kiss him (JIRT, A.36, 75, 88-90) but he pushed her away (JIRT, A.36); and that the applicant then grabbed his hand and put it on her breast (Count 1) (JIRT, A.39, 51, 112-116). The complainant said that he told the applicant that he had a scratch from a dog on his leg (JIRT, A.90) and that she asked to see it (JIRT, A.91). The complainant said that the applicant then started touching it and then grabbed his penis and started “wanking” him (Count 2) (JIRT, A.91-100).

44. The complainant said that he jumped out of the car and told the complainant to “fuck off” and that she then drove off (JIRT, A.106, 16/11/23; T 151); and that his father asked him what happened, and he told his father “don’t worry about it, it’s all good” (JIRT, A.106).

45. The complainant then said that he went for a ride with the applicant as his father permitted him to leave with her (JIRT, A.121; 16/11/23; T 151.1-17) and that he did this because he was “scared” (16/11/23; T 151.11). He said that they went to the Miller Shops where the complainant bought alcohol (JIRT, A.121-123, 152-153); that the complainant “spiked” his drink, which caused him to become drunk (JIRT, A.121); that the applicant drove them to an isolated forest area (JIRT, A.124, 154-155); and that he fell asleep in the car, and when he woke up the applicant was on top of him having penile-vaginal intercourse with him, which continued until he ejaculated (Counts 3 and 4) (JIRT, A.125-133, 159-161, 166-167). The complainant said that the applicant had tied up his hands with a seatbelt so that he could not move (JIRT, A.129, 168-170) and that there was “stuff on the windows so no-one could see in” (JIRT, A.133). The complainant said that after intercourse he went back to sleep and then he went back to his father’s house (JIRT, A.133). The complainant said (JIRT, A.133):

…when I went back to Dad’s, I, um, pretty much said nothing to her. And then he saw something, oh, and then, when I told him, he’s like, I don’t really care. Who really gives a fuck? And I’m like, what do you mean? Didn’t you just understand what I said. He’s like, yeah, I understand. And then she’s, I, he’s like, But I don’t really give a fuck. Er, sh, and then, um, after I, j, after I ended up havin’ a go at him…I ended up hitting him. And then I ended up calling [the applicant], and then I ended up abusing her.

46. At 16/11/23; T 99-T 100, the complainant gave evidence as to the complaint to his father and the complainant was cross-examined on this at 16/11/23; T 149-T 153. Detective Kelly put this account to the complainant in the JIRT, A.568-580.

47. The complainant said that the applicant tried to do the same thing a week later but the complainant “knew what she was up to” and he jumped out of the car and ran back inside (JIRT, A.106, 173, 583).

48. The complainant agreed that when he spoke to the detective at Penrith Police Station on 15 May 2020 to report the applicant’s sexual abuse, he never mentioned that anything happened in a car (16/11/23; T 102.50). The detective recorded that the complainant recalled the first incident as occurring towards the end of January 2020 (16/11/23; T 100-T 102, T 112.11, 22/11/23; T 491).

49. The complainant’s father said that the applicant visited him on about five occasions while the complainant was living with him (17/11/23; T 192.34). The only specific date he recalled was 17 December 2019 (17/11/23; T 192.38) and he was certain about the date because it coincided with a school event where the complainant was photographed receiving a merit award (17/11/23; T 218.30).

50. The complainant’s father said that on that occasion, the applicant visited, arriving in her charcoal Mazda 3 at about 8:30pm (17/11/23; T 192-T193) and that she was not wearing a work uniform (17/11/24; T 244.43). He said that he spoke to her outside the house for about half an hour (17/11/23; T 195.14) and that at some point, the complainant, who was inside, messaged his father to say he was hungry (17/11/23; T 195.33). The complainant’s father said that he and the applicant then walked to McDonald’s (without the complainant) before returning to his house; and the complainant’s father went inside to deliver the food from McDonald’s to the complainant. He said that he then went back outside to speak to the applicant and a short time later she left (17/11/23; T 196.34). The complainant’s father then went back inside for the remainder of the evening (17/11/23; T 196.46). In evidence (Ex 6) was an electronic receipt which showed that the applicant spent $10.65 at McDonald’s Cartwright at 8:46pm on 17 December 2019 (17/11/23; T 243).

51. The complainant’s father said that on the following evening (18 December 2019) he was at home and that the applicant did not visit (17/11/23; T 197.37); and that on the next day (19 December 2019) he took the complainant with him to a work site at Caringbah (17/11/23; T 198.4-17). The complainant’s father said that the complainant’s mother then took the complainant shopping for a couple of hours before returning him to the work site (17/11/23; T 198.16). The complainant’s mother gave evidence confirming this event occurred but she was unable to identify the date on which it occurred (20/11/23; T 299-T 302). The complainant’s father said that after leaving the work site, he and the complainant went home and spent the evening together at home and at a soccer game in Narellan; and that the applicant did not visit them (17/11/23; T 198-T 199).

52. The complainant’s father denied ever telling his son he could go for a ride in the car with the applicant in that period (17/11/23; T 245.4) and denied that the complainant complained to him about these offences (17/11/23 T 216-T 217).

53. The applicant, during her interview with police, denied: that she had sexual intercourse with the complainant; that she sexually touched him; or that she asked him to touch her in a sexual manner (ERISP, A.518-520). Detective Kelly did not ask the applicant any questions specifically about 17 and 18 December. He said that he “must have just forgotten” to do so (22/11/23; T 490.16).

54. The applicant owned two cars in the relevant period (a beige or gold Ford Territory and a dark grey Mazda 3) (Ex 7 (photographs of the cars), 17/11/23; T 242.26). The Ford Territory was registered to the applicant as at 1 December 2019 according to RMS records (22/11/23; T 480.14). The complainant’s father said that, as at 29 December 2019, the Ford was his car and he “drove it all the time” even though it was “technically” in the applicant’s name. The complainant’s father said that the applicant drove it before 2019 and that she “hated” it because “it was like driving a truck” (17/11/23; T 202) and that he subsequently bought the Ford from the applicant (17/11/23; T 241.38). The applicant’s daughter (J) said her mother only drove the Mazda and never drove the Ford (17/11/23; T 261.41-T 262.14). However, D, a friend of the applicant, said that on 4 March 2020 the applicant drove her to the applicant’s house from where they met in Parramatta in a car that “would have been the gold one…a Ford Territory” (22/11/23; T 468.45).

55. When asked in her police interview what car she was driving around the time of the offences, the applicant said she was driving a “Mazda 3” (ERISP, A.269). The applicant agreed that she had owned a “Territory” and said that the complainant’s father “has that Territory”. Asked whether, since the complainant’s father had it, she drove it, the applicant said “Nuh. I didn’t like the car. It’s too big for me, sorry…” (ERISP, A.276-278).

Counts 5 (not guilty) and 6 (guilty) – First day at the applicant’s house

Count 7 (not guilty) – Sandon Point incident

56. Count 5 was an allegation of fellatio that occurred in the applicant’s loungeroom. Count 6 occurred on the same occasion as Count 5 and involved an allegation of penile vaginal intercourse in the complainant’s bedroom. Both of those offences were alleged to have occurred on the first day that the complainant was living at the applicant’s house (see Crown opening (at 15/11/23; T 70.6); Crown closing (at 24/11/23; T 628.37); MFI 46 Crown Timeline of Alleged Events (provided to the jury during closing (24/11/23; T 625.10))). It was not disputed that the first day that the complainant stayed at the applicant’s house was 29 December 2019. (The indictment had stated that the conduct the subject of these counts occurred “between 27 and 31 December 2019”.)

57. Count 7 was an allegation of penile-vaginal intercourse in the applicant’s car while it was parked at the beach at Sandon Point. This, too, was alleged to have occurred on 29 December 2019 (and this was the date specified in the indictment). The trial judge (without opposition from the Crown – see 23/11/23; T 589-T 591; 24/11/23; T 605.25) determined that it was an essential element of the offence for Count 7 that it occurred on that date (MFI 48 pp 1 and 9 (revised elements document), 28/11/23; SU 30-31).

58. There was some conflicting evidence as to the chronology of the alleged events on 29 December 2019.

59. The complainant’s father gave evidence as to his son running away from home (17/11/23; T 200-T 201); relevantly, that he did not hear his son leave; that at around 6:30am on 29 December 2019, he received a phone call which prompted him to check on his son and he then discovered his son had left home. The complainant’s father said that at around 9:00am he spoke to Sarah Egbers from Catholic Care about the fact that his son had left (see also ERISP, A.112).

60. Ms Egbers’ evidence was that on the morning of 29 December 2019 she received a phone call the complainant’s father, who told her that he had awoken and realised that his son was gone, and that at 8:51am that morning, Ms Egbers contacted Mrs B, who said that she had woken that morning to the complainant knocking on her door (21/11/23; T 433).

61. Mrs B gave evidence that, between 6 and 7am on 29 December 2019, the complainant banged on her door and entered; that he was agitated and wanted to see his sister; and that he was only there for ten minutes. Her evidence was that the complainant ran out the front and up the hill and his sister (“A”) chased him (20/11/23; T 328.35-T 329). Mrs B said that she asked the complainant how he got there and he said “oh, you don’t need to know… somebody drove me” (20/11/23; T 329.32-35). Mrs B had told the police on 24 August 2022 that the complainant had arrived before 5am (21/11/23; T 349.50) but her evidence at the trial was that the notes she had made in her diary indicated 7am (21/11/23; T 350.12).

62. The complainant’s sister (A) said that the complainant came to the house, unexpectedly, at 5 or 6am and was knocking on the door; that he stayed for ten minutes during which he “rushed around” (MFI 13, A.29) and that he said “I can’t stay, [the applicant]’s up the road”. The complainant’s sister said that when the complainant left, she chased after him but could not keep up (20/11/23; T 322-T 323) and that she saw a lady in a car. She described the car as looking “exactly like [the applicant’s] car”, being a silver, seven-seater car, “a bit like a captiva” (MFI 13, A.29, 34-35, 77). The complainant’s sister later told the DPP that she made an error; and that this event that she described actually happened in October; not around Christmas 2019 (20/11/23; T 322).

63. Mr B said that the complainant arrived between 5-6am (21/11/23; T 359.12); that the complainant left and the complainant’s sister chased him halfway up the road; and that he saw a car up the road but he could not see the person driving it (21/11/23; T 360.25). Mr B said the car was a grey, charcoal SUV, like a Territory (21/11/23; T 362.41). He said that the car was stationary and then it drove off (21/11/23; T 363.9). Mr B had given evidence on an earlier occasion on 27 March 2023 that this occurred at 6-7am (21/11/23; T 364) and he did not say that he saw the car on that earlier occasion when he gave evidence (21/11/23; T 366).

64. Several visits were made to the applicant’s house on 29 December 2019. The evidence as to those visits was as follows.

65. Ms Hampson and Ms Egbers from Catholic Care attended the applicant’s house in the afternoon of 29 December 2019 (20/11/23; T 303-305, 21/11/23; T 435). Their evidence was that they took the complainant to the shops to buy some items for him, before returning him to the applicant’s home (20/11/23; T 306, 21/11/23; T 437.12). Ms Hampson observed that the complainant was “very anxious, nervous, agitated” (20/11/23; T 306.11) but she agreed he was “happy” and that he wanted to stay with the applicant (20/11/23; T 307.20). Ms Hampson said that the complainant was not drunk (20/11/23; T 307.25). Ms Hampson spoke to the complainant about his medication, and the complainant said “I can kill myself if I take all these” (20/11/23 T 308.9). Ms Egbers also said that the complainant was agitated but that he was very adamant that he wanted to stay with the applicant (21/11/23; T 435). Ms Egbers was taken to a Catholic Care case note that read “we believe [the applicant] is someone who is able to keep [the complainant] emotionally safe” (21/11/23; T 438.5). It appears that there were two visits from Catholic Care that day (see Remarks on Sentence at p 4): one to drop off some medication that the complainant needed and the other to take him to the shops to buy some essential items.

66. Ms Egbers agreed that she requested that police do a welfare check in relation to the applicant and the complainant at the applicant’s house (21/22/23; T 437.20). At some stage, the police attended to do a welfare check and they reported that the complainant was safe and well and they had no concerns (21/11/23; T 373, T 437-T 438). The Catholic Care case note shown to Ms Egbers read that “we sent the police out the day after [the complainant] arrived at [the applicant’s house] …”, which suggests that this welfare check may have been on 30 December 2019 (21/11/23; T 438.40), although given the early hour of the morning when the complainant arrived at the house it is not clear.

67. The complainant’s father also gave evidence that around 8:30pm (in context he appears to have been talking about some time in the morning, see 23/11/23; T 568-T 569 and 24/11/23; T 625.43) he drove to the applicant’s house but when he arrived nobody was home (17/11/23; T 201.41). The complainant’s father said that he then went for a drive before returning to the applicant’s house; that he knocked on the door, but no-one answered (17/11/23; T 202-T 203); and that he then went back to his car and saw the complainant running up the street towards the applicant’s house (which he described by indicating on a map, Ex I, 17/11/23; T 204). The complainant’s father said that the complainant entered the house followed by him and that the two then had a verbal argument (17/11/23; T 205, ERISP, A 119).

68. From that evidence it appears that: in the early hours of 29 December 2019 the complainant left his father’s house in Cartwright; before 8:51am, the complainant visited his sister for a short time at the Bs’ residence in Thirroul; in the afternoon, Catholic Care employees visited the applicant’s home and both the complainant and applicant were present; and, at some point (likely 30 December 2019), the police visited the applicant’s home; and the complainant and applicant were present. The trial judge in her remarks on sentence noted that it was unnecessary for present purposes (i.e., sentencing) to determine definitely how the complainant got to Thirroul to visit his sister but that the Crown case was that the applicant had taken him there.

69. Also at some stage (perhaps in the morning), on the evidence of the complainant’s father, he saw the complainant running to the applicant’s house and he entered it with the complainant. The complainant’s sister’s evidence that she chased the complainant up the hill from the Bs’ residence is corroborated by the evidence of Mr and Mrs B but her recollection of seeing a car like the applicant’s car (the Territory) is not corroborated nor is her evidence that the complainant said the applicant was there.

70. The complainant said that he ran away from his father’s place on 29 December (JIRT, A.181-182); that he made a “plan” with the applicant (JIRT, A 187-199); that he went to McDonald’s near Cartwright and the applicant picked him up from there at 2am before driving them to her place (JIRT, A.181-202); and that he arrived at the applicant’s house at “3 o’clock” (JIRT, A.368).

56. When it was put to the applicant in the ERISP (see ERISP, Q.203) that she and the complainant had been talking together at the complainant’s father’s house and that she arranged to pick the complainant up later that night or early in the morning and that she was going to meet him close to his father’s place, the applicant said that was “very much incorrect” (ERISP, A.203) because the complainant’s father did not allow her to speak to the complainant while he was at the complainant’s father’s house. The applicant denied the allegation that she took the complainant to Wollongong to meet his sister at a location and denied that after that she met him a little bit up the street in her car and parked near the beach and they had sex in the car (ERISP, Q/A.205-206). The applicant also denied that they returned back to her place and had sexual intercourse in her room (ERISP, A.208).

57. The applicant said that it was early morning when the complainant turned up at her doorstep, “I’d say about 1.30, 2 o’clock in the morning” (ERISP, A.382); that he said “I can’t handle it at Dad’s anymore, I had to get out” (ERISP, A.385) and that she said that the complainant could sleep on the couch and they would call the complainant’s father first thing in the morning (ERISP, A.386). The applicant said that she tried to call the complainant’s father in the morning but he was already on the way over; and that the complainant’s father arrived about 8am or 8.30 (ERISP, A.383) and bashed on the door and demanded that the complainant get in the car (ERISP, A.393).

58. As to Counts 5 and 6, the complainant’s account was as follows.

59. The complainant said that after he arrived at the applicant’s house, he slept in the applicant’s bed (JIRT, A.203). The complainant said that he woke up at “4 o’clock” (though he did not specify if this was in the morning or afternoon, it appears from other answers that it was not 4 o’clock in the afternoon – see JIRT, A.354, A.363, A.368-369). The complainant said that the applicant was careful to hide him from her daughter (J), who was living in the house at the time (JIRT, A.203, A.221-223, A.264).

60. The complainant said that he and the applicant had sex three times “that day” and 12 times that week (JIRT, A.203, 224; 16/11/23; T 127.16). There is some confusion (see JIRT, A.225) as to whether “that day” was a reference to 29 December or 30 December 2019. In the Remarks on Sentence at pp 4-5, the trial judge noted that despite the complainant saying in his interview at one point that he was pretty sure that it was 30 December when the first occasion of penile/vaginal intercourse occurred, the description he gave elsewhere was consistent with this being the first day that he was at the applicant’s house.

61. The complainant said the applicant gave him alcohol and “weed” and got him “drunk” and “high” (JIRT, A.224, A.235-239). The complainant said that the applicant walked in on him while he was having a shower and said “you look pretty cute”; that he then went into the bedroom; and that the applicant then came in with her daughter’s iPad and “she ended up chucking on, I think it was porn or something” (JIRT, A.235). The complainant said that the applicant made him pick her up and he did so, but he dropped her (JIRT, A.239).

62. The complainant said that the applicant performed fellatio on him against his will (Count 5) (JIRT, A.239, A.244) in the loungeroom (JIRT, A.256); and that the applicant had penile-vaginal intercourse with him by jumping on him while he was lying on the bed (Count 6) (JIRT, A.244-T 256). The complainant said that the penile-vaginal intercourse occurred in the applicant’s bedroom as well as in the applicant’s daughter’s bedroom (JIRT, A.256).

63. In cross-examination, the complainant said that on the day he arrived at the applicant’s house, the applicant insisted that he contact the “helpline” to inform “DoCS” as to his location (16/11/23; T 127.11; JIRT, A.354-356; see, also, ERISP, A.117-118); and that his father arrived that morning and there was a “screaming match” between them (16/11/23; T 127.46; ERISP A.119, A.393). The complainant said that the police and Catholic Care visited (16/11/23; T 128-T 129) and that he believed that the applicant’s daughter was home on the two occasions that Catholic Care visited (16/11/23; T 161.4).

64. In his interview with Penrith Police, the complainant said that first incident occurred towards the end of January 2020; and the first incident he described was one involving fellatio in the bathroom followed by penile-vaginal intercourse in the bedroom.

65. The complainant was cross-examined about his claim that the applicant walked in on him while having a shower (16/11/23; T 161). It was put to the complainant (and D confirmed) that there was a functioning lock on the bathroom door (16/11/23; T 161, Ex 10 (photograph of lock)). The complainant’s cousin (M), who stayed with the applicant at various times, confirmed that there was a functioning lock on the bathroom door whenever he was there (23/11/23; T 540.1-18).

66. As to Count 7, the complainant said that he was “pretty sure” it occurred the night before New Year’s Eve (i.e., 30 December) (JIRT, A.317) but he also said that it occurred on a Saturday night (in 2019, 28 December was the Saturday, not 30 December). The complainant said that it happened at 11:00pm in the applicant’s Ford Territory while it was parked at the beach (JIRT, A.292-306).

67. The complainant said that between 6:30 and 7:30, he visited his sister in Thirroul having been driven there by the applicant (JIRT, A.310, 317, 321). Read in context, the applicant says that this was a reference to 6:30-7:30pm as the complainant appeared to count back five hours from 11:00pm (JIRT, A.304-310).

68. The complainant said that the applicant “hid up the street…up the top of the hill” while he was visiting his sister (JIRT, A.322-326); that he then ran back up the hill and jumped in her car (JIRT, A.326); that they then went to McDonald’s and “had a feast”; that the complainant then had a surf and that they then went and visited the complainant’s aunt (of whose name he was unsure; “[X] or something” (JIRT, A.326-328)). In cross-examination the complainant said he was at his aunt’s for ten minutes and that the applicant did not join him on the visit (16/11/23; T 162.43-50).

69. Detective Kelly gave evidence that he attempted to speak to the aunt but could not locate her; and he agreed that he did not disclose these investigative attempts (22/11/23; T 496-T 498). The trial judge told the jury that the absence of evidence from the aunt was a matter they could consider in determining if the Crown had proved the charges (28/11/23; SU 60-61).

70. As to Count 7, the complainant said that they then drove back to Sandon Point; that they watched the sun set; and that the applicant then put “stuff up on the windows” of the car. The complainant said that he “started getting high” and drank “a bit”. The complainant said that the applicant then forcibly had penile-vaginal intercourse with him by ripping off his pants and jumping up and down on him until he ejaculated inside her (JIRT, A.329-343); and that they then drove home and went to sleep (JIRT, A.344-348).

71. The complainant said that the applicant was wearing a black and pink dress during this incident (JIRT, A.335-336). When it was suggested to him in cross-examination that the applicant did not own any dresses (let alone wear them), the complainant said that the applicant owned “heaps of dresses” and that she had a cupboard that was “pretty much full of dresses” (16/11/23; T 167).

72. Contrary to the complainant’s evidence about dresses, the following witnesses gave evidence that the applicant never, or almost never, wore dresses: the complainant’s father agreed that that the applicant “doesn’t wear dresses” (17/11/23; T 246.42); the applicant’s daughter, J, said that her mother has “never worn dresses” (17/11/23; T 269.2); the applicant’s friend, D, said that she had only seen the applicant wear a dress on two occasions (her son’s funeral in 2012; and when she was a bridesmaid at D’s wedding in 2011, when D said that she had to beg the applicant to wear one) (22/11/23; T 471.47).

73. As noted above, in her interview with police, the applicant denied that she ever travelled with the complainant to Wollongong; and denied ever having sex in the car with the complainant near a beach (ERISP, A.205-207, 266-268).

74. As noted, of the counts alleged to have occurred on 29 December 2019 (5-7), the first day that the complainant was at the applicant’s house after running away from his father’s house, the applicant was found guilty only of Count 6 (penile/vaginal intercourse in the applicant’s bedroom).

Count 8 – The dildo incident in the bathroom (not guilty)

90. Count 8 alleged an incident that occurred the day after the Sandon Point incident (JIRT, A.370), in which the complainant said that the applicant put his hand on her vagina and then made him put a dildo inside her.

91. The complainant said that when they woke up nobody else was home. The complainant said that the applicant went for a shower but did not have towel; that the applicant asked the complainant to give her towel; that he “just hung it out and put it inside the door”; and that the applicant “pretty much dragged” him into the bathroom. The complainant said that the applicant grabbed his hand and put it on her vagina and then made him put a purple dildo inside her (Count 8) (JIRT, A.370-373). The complainant said that he then ran down to Campbelltown Mall or Macarthur Square (JIRT, A.374).

92. In cross-examination, the complainant disagreed with the propositions that: there was never an occasion when he and the applicant were together in the bathroom and that the applicant did not have a purple dildo (16/11/23; T.167-T 168, T 170). The complainant accepted that he never mentioned a dildo when he spoke to the detective at Penrith on 15 May 2020 (16/11/23; T 103.6).

Counts 9 (guilty), 10 (not guilty) and 11 (guilty) – Anal sex incident

93. Counts 9-11 relate to an incident in which the complainant said that, after he returned to the complainant’s house from the mall (i.e., seemingly following the incident in Count 8) the applicant said that she “wanted to try anal” and “then it happened” (JIRT, A.374-379).

94. The complainant said that they were in the bedroom and that “we were making out, I was sucking her out, lickin’ her out and everything like that” (Count 9) (JIRT, A.380). The complainant said that the applicant “brought up” a pornographic video “how to do it” which they watched in the applicant’s bedroom and “then I did it” (JIRT, A.395-396). The complainant said “she told me to lift her legs up and do it that way. So I just did it” (Count 10) (JIRT, A.405). The complainant said the complainant brought up a “normal video, a porn, and then I, we just did it normally” (Count 11) (JIRT, A.395).

95. The applicant notes that these counts (9 to 11) were the first occasions on which the complainant says he agreed to intercourse (JIRT, A.374,384; 24/11/23; T 629.6).

96. The complainant in cross-examination agreed that he did not mention anal sex when he spoke to the detective on 15 May 2020 (16/11/23; T 103.10). The applicant notes that there was no evidence one way or the other as to whether cunnilingus had been mentioned to the detective in Penrith.

97. However, the complainant was adamant that both anal sex and cunnilingus occurred (16/11/23; T 170).

98. The only counts on which guilty verdicts were returned in relation to this alleged incident were the counts other than the anal sex count.

Counts 12 (not guilty), 13 (guilty) and 14 (guilty) - The bath incident

99. Counts 12-14 related to an alleged incident in which the complainant said he and the applicant had sex in the bathtub (JIRT, A.455, 458-459). The complainant said that he was having a bath; that the applicant came into the bathroom, got undressed, and sat on top of him; that the applicant put his penis into her vagina and started going up and down, “putting water everywhere” (JIRT, A.459) (Count 12).

100. The complainant said that he then said “this ain’t gonna work” (JIRT A.461); that they then got out of the bathtub and went into the bedroom; and that the applicant then performed fellatio on him until he ejaculated into her mouth (Count 13) (JIRT, A.462). The applicant said that an “hour or two” later, they had penile-vaginal intercourse in the bedroom (Count 14) (JIRT, A.462-465).

101. In cross-examination, the complainant was shown a photograph of the bath (Ex 4, number 15; 16/11/23; T 165.7). When it was suggested to the complainant that two people could not fit in the bath, the complainant said “I disagree. Actually, I honestly agree. I don’t know how she did it but we were both in the bathtub” (16/11/23; T 165.27).

102. The applicant’s friend, D, agreed that the bathtub was very small (22/11/23; T 472.30).

103. Other than the bath incident, the jury returned guilty verdicts on these counts.

Count 15 – The last time (5 March 2020) (not guilty)

104. Count 15 was alleged to have occurred “on or about 5 March 2020”, that being the day that the complainant was taken from the applicant’s house by police (24/11/23; T 629.34) (Crown closing address). The trial judge directed the jury, again without opposition from the Crown (24/11/23; T 605), that the date of the offence was an essential element (MFI 48; 28/11/23; SU 30-31).

105. The complainant said this was the last time he and the applicant had sex; and that it occurred in J’s bedroom, which had become his bedroom after J moved out (JIRT, A.544; ERISP, A.159). The complainant said that it occurred about four hours before he was removed and taken to hospital in a “paddy wagon” (JIRT, A.541, A.681-682) and that it happened an hour before the applicant left for work (JIRT, A.541).

106. The complainant described this incident as follows (JIRT, A.543):

She released all of her emotions and everything on me, and I felt slack. And then she said, I, f, know it’ll make her feel better with sex. So I gave it to her. She pretty much said if I really loved her, if I really cared about her and, um, cared about her, s, kids and, er, all that, that I would give her another sibling, I would do anything for her. And the only thing for it would be giving her mum the best possible life ever. And then she pretty much, black, er, blackmailed me into it. And then I did it.

107. The complainant said that he threatened to kill himself that day because he was angry with his sister (JIRT, A.689-690).

108. In cross-examination, the complainant agreed that: he went to Campbelltown Mall in the morning; that he was there with his father; that he walked home from the mall; that he met his father and the applicant at home; that there was an incident where he pushed his father into a bedroom wardrobe; and that the applicant went to work at about 2 o’clock (21/11/23; T 427-T 428). The complainant said that the sex occurred about half an hour after his father left (21/11/23; T 429.10).

109. The applicant points out that police records showed that at 8:34pm on 5 March 2020 a message was received over the police radio system in relation to threats of self-harm. At 9:09pm two police officers attended the applicant’s address. The complainant was detained under the Mental Health Act and taken to Campbelltown Hospital for assessment (16/11/23; T 134.38, 22/11/23; T 486.29). (See, also, 21/11/23; T 379.37-43 (DCJ records for this day).)

110. Records from the applicant’s employment agency showed that she worked from 3pm until 10pm on 5 March 2020 (Ex M; 22/11/23; T 482.35, 23/11/23; 531.43).

111. The boarder, Craig, gave evidence that he was present on the day the police took the complainant away from the house (21/11/23; T 400.5); and said that the applicant was at work when that happened, although he did not see her leave for work (21/11/23; T 400.21). Craig described the complainant as “agitated” earlier in the day before police arrival (21/11/23; T 400.18).

112. The 15 May COPS entry recorded that the complainant reported the final occasion as having occurred “four days before being scheduled by police” (16/11/23; T 102.20). In cross-examination, the complainant initially denied saying that to the police but then accepted it was possible he said that (16/11/23; T 102.42).

Context evidence

113. The Crown adduced, as context evidence, uncharged acts described by the complainant as well as evidence from the boarder, Craig.

• Uncharged acts described by the complainant

114. The complainant said that, after the applicant’s daughter (J) moved out of the applicant’s home, sex with the applicant happened nearly every night or “almost every day” (JIRT, A.61, 621-623) and that it happened “nearly 50 times, 40 times” (JIRT, A.495).

115. The complainant also described an occasion where he said that the applicant took him on a holiday for a weekend to the Twin Towers Inn and had sex with him (JIRT, A.549-556, 590-602; 16/11/23; T 169-T 170 (cross-examination)). Records from the Twin Towers Inn in Greenwich showed a booking in the applicant’s name, arriving on 28 February 2020 and departing 1 March 2020 (Ex A showed that 2020 was a leap year) (see Ex O, 22/11/23; T 477-T 478, T 488-T 489, T 497).

116. The Crown submitted to the jury (at 24/11/23; T 629.42-T 630.3) that the evidence of other uncharged sexual activity provided some context as to sexual activity that was occurring between the accused and the complainant at this time, and that it placed those charges on the indictment in context, saying that “it is that other uncharged sexual activity that gives you an insight into the context of the accused’s conduct with the complainant”.

• The boarder, Craig

117. Craig’s evidence was that he lived at the applicant’s house for “roughly a year” and he was unemployed (21/11/23; T 382.49, T 385.20). As to his observations of the applicant and the complainant during the complainant’s time at the applicant’s house, Craig said the following: that on “one occasion” (21/11/23; T 399.29) and “more than one occasion” (21/11/23; T 399.40) there was “hand holding” (21/11/23; T 385.45); that the complainant “might have been the instigator” of it (21/11/23; T 398.50); and that it was “like when you’re in a relationship” (21/11/23; T 399.32) being a relationship between “husband and wife, or boyfriend and girlfriend” (21/11/23; T 425.35).

118. Craig said there were “hugs, like it’s kind of positive things, you know, so like what I’d show my child, I guess, is – so yeah, so hugs” (21/11/23; T 393.20); that there was snuggling, which he regarded as unusual (21/11/23; T 397-T 398); and that on one occasion (21/11/23; T 393.32, T 405-T 406) when he was in the lounge room, he saw both the applicant and complainant (21/11/23; T 394.29) enter the applicant’s bedroom (21/11/23; T 397.11) and that he then heard what he described as “sex sounds”, which lasted for about eight minutes (21/11/23; T 394-T 395, T 406.33). Craig said that the sounds came from a male voice (21/11/23; T 395.34). (The complainant said in his JIRT interview at A.509 that the applicant would “keep, like, a ball or some shit in her mouth to stop her from moaning and stuff”.) Craig said that “it could have been meant as a joke” (21/11/23; T 393.26, T 394.50) and he said that he did not know if he saw them come out (21/11/23; T 396.40).

119. In cross-examination, Craig maintained that evidence (21/11/23; T 422). Craig also said in cross-examination that: the hugs and the snuggling, but not the hand holding, could be described as “motherly” (21/11/23; T 405.40). (It will be recalled that he had described the hugs as like what he would show his child, by which he must have been referring to paternal hugs.) Craig said that he was a “little concerned” about the sounds and that he “might have” told a friend or his then partner about it but he was “not so concerned to report it” (21/11/23; T 406). Craig agreed that he did not attempt to record the sounds on his laptop (21/11/23; T 414.11). Craig also agreed that the police attended the applicant’s house on “maybe three or four” occasions in November and December 2020 (21/11/23; T 410.50). Craig appeared to accept that he did not raise with the police concerns about the applicant and complainant (21/11/23; T 410-T 411).

117. Craig said that he never saw the complainant drunk or intoxicated from drugs during his time at the applicant’s house (21/11/23; T 412.31).

118. In relation to Craig, Detective Kelly gave evidence of various COPS event recordings to the effect that: on 12 November 2020 police attended the applicant’s house because of a rental dispute between the applicant and Craig (23/11/23; T 528.27); on 14 November 2020 the applicant made an allegation against Craig for recording her on his laptop (23/11/23; T 527.38) and that Craig had been recording their interactions as he believed the applicant had made false allegations about him at the Rental Tribunal to have him evicted (23/11/23; T 528.7); Craig was charged with an assault against the complainant’s father, alleged to have occurred on 23 November 2020 (23/11/23; T 524.31); there was an incident on 25 November 2020 where Craig had been served with an eviction notice and there was an argument with M (the complainant’s cousin) (23/11/23; T 525.42). Detective Kelly gave evidence that Craig made his statement to police about the applicant’s case on 1 September 2022 at a time when Craig’s assault charge had not been finalised and it would appear the applicant was going to be called as a witness in that case (23/11/23; T 527). Detective Kelly said that “work” caused a delay in him taking a statement from Craig (23/11/23; T 525.24). The assault charge was dismissed on 31 January 2023 (23/11/23; T 526.50).

119. Craig agreed that his assault case was pending when made his statement to the police (21/11/23; T 414.33) but he denied that he made his statement to police as “payback” for what the complainant’s father and the applicant were saying in relation to the assault allegation (21/11/23; T 410.10, T 422.41).

120. Craig agreed that he met with the DPP on 24 August 2023 and that he said during that conference “you scratch my back, and I’ll scratch yours” (21/11/23; T 419.48). Craig said that he was “trying to pull out” of giving evidence (21/11/23; T 420.19). Craig said he asked the DPP to look into his case (which, he explained in re-examination, was a reference to a case involving his child, 21/11/23; T 425.17) (21/11/23; T 420.20).

121. The Crown submitted to the jury (at 24/11/23; T 632.24-32), that if Craig’s evidence of the snuggling, hand-holding and the sex sounds was found to be evidence of activity of a sexual nature occurring between the accused and the complainant, the jury could use that as evidence of other sexual acts “that places the charges on the indictment and those alleged incidents reflected in the counts on the indictment into the context that was actually occurring at the time”. Again, it was said that the jury would then have “the context of the accused’s conduct with the complainant and get a real insight into the nature of their interactions which makes the charged incidents easier to comprehend”. (There was discussion as to the use of context evidence in the absence of the jury at 22/11/23; T 515-T 516, 23/11/23; T 591-T 592.)

The applicant’s interview with police on 7 July 2021

125. In summary, in her ERISP, the applicant said the following.

126. As to the circumstances of the complainant coming to her home, that: “he rocked up on my doorstep” and she was not aware as to how he arrived (ERISP, A.117-127); and she did not know why he did that (ERISP, A.405); the complainant arrived at about 1:30 or 2am (ERISP, A.382); the complainant said “I can’t handle it at dad’s anymore, I had to get out” (ERISP, A.385) and she told him that he could sleep on the couch and that she would be calling his father “first thing in the morning” (ERISP, A.386).

127. The applicant said that her house was a 20-minute drive from the complainant’s father’s house (ERISP, A.381). The applicant said that in the morning she contacted the complainant’s father, but that he was already on his way to her house (ERISP, A.387); and that he arrived at her house at about 8 or 8:30 in the morning (ERISP, A.383). The applicant said that the complainant’s father demanded that the complainant get in his car, and she said they were “screaming at each other” (ERISP, A.393). She said that AB was “there for a while” but he left once Catholic Care got involved. She said that Catholic Care took the complainant out but brought him back about an hour later (ERISP, A.397-400).

128. The applicant agreed that the complainant lived with her from late December until early March (ERISP, A.130-131). The applicant said that she “treated him like any of my other children” (ERISP, A.133). The applicant said that “I wouldn’t say it was one of the best relationships at all” as she “reported to Catholic Care on multiple occasions and to FACS worker[s] that [the complainant] was belting me while in my, in my care” (ERISP, A.133).

129. As to the living arrangements at her house, the applicant said that: the complainant slept in multiple rooms while he was living there (ERISP, A.135); Craig (the boarder) was living there (ERISP, A.106-107) and that he was unemployed and was “home a lot” (ERISP, A.191-193); and D (her friend) was there a lot and D’s daughter, G, “would come over as well” (ERISP, A.101-104).

130. Asked if the complainant ever slept in her room, the applicant said that he used to watch TV in her room and would sometimes fall asleep; that she would leave him there and close the door (ERISP, A.160-164). She said there was also a TV in the lounge room (ERISP, A.164).

131. The applicant said that her relationship with the complainant’s father was “hostile” during the period in which the complainant lived with her; and that this was because the complainant’s father wanted the complainant back at his house and the complainant was refusing to go (ERISP, A.194-196).

132. The applicant described her employment situation (ERISP, A.210-236). The applicant said she was driving a Mazda 3 around the time that the complainant lived with her (ERISP, A.269) but confirmed that she previously had a “Territory” (which the complainant’s father now had) (ERISP, A.276-278).

133. The applicant denied committing any sexual offences against the complainant (ERISP, A.518-520). The applicant denied ever supplying the complainant with alcohol or drugs (ERISP, A.286-288, 507-510); said that she had never seen the complainant drink alcohol or use drugs of any kind (ERISP, A 286-288) although he was on antidepressant tablets that assisted him to sleep (ERISP, A.404). The applicant said that she was “very anti-drugs” and had “never touched drugs” in her life (ERISP, A.289). The applicant confirmed that she did drink alcohol (ERISP, A.279) limited to “a glass of wine with dinner…usually on weekends” (ERISP, A.508-509). The applicant said that if she was working, she did not drink as her employment contract prohibited her from drinking alcohol within 12 hours of starting a shift (ERISP, A.509). The applicant said that she “wouldn’t even buy [her] own daughter alcohol” (ERISP, A.510).

134. As to the alleged Sandon Point incident, the applicant: denied ever travelling with the complainant to Wollongong so that he could meet his sister (ERISP, A.205); denied having sex in the car with the complainant near a beach (ERISP, A.206); and denied that there ever was sexual intercourse in her bedroom with the complainant upon returning from Wollongong (ERISP, A.207-208). The applicant said that she never drove the complainant to Wollongong during the time that he lived with her (ERISP, A.266-268).

135. As to the complainant’s final day of living with her, the applicant said that: she and the complainant met the complainant’s father at Campbelltown Mall (ERISP, A.242); while they were sitting opposite the fish shop, the complainant “lost his shit right in the middle of Campbelltown mall…he went absolutely crazy” (ERISP, A.246-248); the complainant walked home and the complainant’s father followed him; and she drove home. The applicant said that the complainant “smashed … up” her house (when he got home); that the complainant “belted” his father and pushed him through the bedroom wardrobe (ERISP, A 248) and that he also “belted” her (ERISP, A.248).

136. The applicant said that “we called his caseworker” who instructed the complainant’s father to leave (ERISP, A.248). The applicant went on to say that the complainant’s father was “like, I’m not leaving, like [the applicant’s] in danger” and that she had to go to work (she started work at 2 o’clock) so the complainant’s father left the house but he waited and probably 10-15 minutes later the complainant’s father “escorted” or drove her to work because he was concerned as to her welfare; and the complainant was left in the company of Craig. The applicant said that later she received a message from Craig saying that the police and the ambulance had arrived for the complainant and that he was being scheduled under the Mental Health Act (ERISP, A.249).

137. Asked if she ever stayed in a hotel room with the complainant (ERISP, Q.434), the applicant said that: she stayed in a hotel room (the Twin Towers Inn) with the complainant for two nights, being the Friday and Saturday nights (ERISP, A.434-450, 465-470); that the complainant slept on the bed and that she slept on the lounge (ERISP, A.434); that the reason she did that was because her aunt, who was “like [her] mum”, died at Royal North Shore Hospital and she was too distraught to drive home (ERISP, A.434-480) and that the hotel room was within walking distance of the hospital (ERISP, A.442). The applicant said that she received a call on the Friday informing her that her aunt was “on her last legs” and her aunt died on the Saturday (ERISP, A.465-470). The applicant gave her aunt’s name and that of her widower and said that he lived in Chatswood (ERISP, A.498-501). The applicant denied that it was for a romantic weekend (ERISP, A.497-506).

138. Asked why the complainant would make these allegations against her, the applicant said “because the kid hates my guts. And there’s no other way to say it. He is looking for a way to break [the complainant’s father] and I up” (ERISP, A.409). The applicant also said that the complainant made a comment to the complainant’s father that “everyone was gunna pay for ah, for him being in foster care, and this is his way of doing it” (ERISP, A.413).

139. The applicant said that she had been aware of the police investigation since April 2021 (ERISP, A.433), when the complainant’s father came to her house and told her what was going on; and she said that the complainant’s father had phoned the complainant and the complainant said to him “Well, I’m causing you a lot of drama now”.

Police investigation

140. Detective Kelly gave evidence that he was unable to verify the death of the applicant’s aunt (this being the reason that the applicant gave for staying at the Twin Towers Inn). Detective Kelly said that: he did not find any confirmation in police records for the aunt’s death over about a 12-month period despite using a variety of spellings for the aunt’s name (22/11/23; T 480.47); Royal North Shore Hospital, including the hospital’s morgue, did not have records of a person with that name (or a similar name) passing away at that time (22/11/23; T 480-T 481); the Ryerson Index, a list that records all deaths in Australia, also did not list that name (or a similar name) during the 18-month timeframe that he searched (22/11/23; T 481.16). Detective Kelly also could not locate the person said to be the aunt’s widower in the Chatswood area but acknowledged that he did not do a driver’s licence search and did not request from the applicant that person’s phone number or email address (23/11/23; T 523-T 524).

141. Detective Kelly applied for a warrant to obtain the complainant’s school records but said that “the local registrar knocked it back saying that the school wasn’t involved in the incident” (22/11/23; T 482.45).

142. Detective Kelly did not ask for the applicant’s phone when he arrested her (22/11/23; T 502.22). Detective Kelly made enquiries into obtaining the complainant’s phone but was told by the complainant that the phone was broken (22/11/23; T 502.29). Detective Kelly did not obtain any Snapchat messages (22/11/23; T 487-T 488); he obtained a few telephone records (22/11/23; T 487, T 498-T 499) but no cell tower records (22/11/23; T 501).

143. Detective Kelly obtained work records from one organisation which showed the applicant did not work for that organisation from 16 December 2019 to 5 March 2020 (22/11/23; T 488.11) but he acknowledged that that applicant’s work records from two other organisations “may not have been requested” (23/11/23; T 523.16).

144. Detective Kelly did not seek any CCTV footage that might have assisted in verifying the alleged trip to the forest area on 17 or 18 December 2019 (22/11/23; T  495.3); he thought enquiries were made into obtaining CCTV of 29 December 2019 at Cartwright McDonald’s, but such footage was only kept for a period of time and it was not available at the time of complaint (22/11/23; T 495.27).

145. Detective Kelly did not seek to carry out a Forensic Procedure on the applicant to photograph any scars on her body (22/11/23; T 506.28).

146. Detective Kelly obtained medical records that showed the applicant was admitted to hospital overnight on 18 May 2020 following an incomplete miscarriage on 15 May 2020 (Ex 11, 23/11/23; T 530-T 531). Those records contained a note that indicated “LMP 16/3/20” (which, if this was a reference to last menstrual period, suggested that the applicant had menstruated after the time that the complainant was removed from her house, which presumably may have been relevant to any suggestion that the miscarriage was of a pregnancy involving the complainant but this is speculation because Detective Kelly did not know, nor apparently did he seek to find out, the meaning of the initials “LMP”).

147. There were in evidence certain Agreed Facts dated 23 November 2023, recording that it was agreed that the applicant exchanged messages between 4 and 15 May 2020 with a representative of the DCJ about her pregnancy, including: informing the Department on 4 May 2020 that she was pregnant; that the complainant’s father was the father; and, on 15 May 2020, informing them of the baby’s lack of heartbeat (Ex R, 23/11/23; T 559). The complainant’s father gave evidence as to this (17/11/23; T 246.17).

Other evidence

• Complaint against foster parents

148. As noted above, in 2018, the complainant made allegations that he was verbally and physically abused by Mr and Mrs B (the complainant’s then-foster parents) (VD Ex 6). Catholic Care engaged a private investigator to look into these claims. In a report dated 30 November 2019, the investigators found that none of the allegations was sustained. The fact of this investigation, and the result of the investigation, were matters before the jury (see 16/11/23; T 114-T 116.36; 20/11/23; T 311-T 313; 21/11/13; T 440).

• Record of complainant’s interaction with female youth worker

149. At some stage Catholic Care placed the complainant with a disability and youth services organisation. On 19 July 2020, the complainant met with a youth worker, Ms Josephine Kannan from that organisation. Ms Kannan’s note of this meeting was in evidence before the jury (VD Ex 5) (see 21/11/23; T 380). The note records that:

[The complainant] said, ‘You know I’m taking [the applicant] to court’. I replied, ‘Who is [the applicant]?,’ thinking it was a previous support worker. [The complainant] replied, ‘She’s my stepmother. I’m taking her to court over rape. She raped me.’ I replied, ‘I am sorry that happened to you’. [The complainant] said, ‘You know I can fuck up any woman that work with me.’ His facial expression was deadly serious. I turned around in surprise and said, ‘What?’. [The complainant] repeated the exact sentence. I asked ‘How?’. He said ‘I can just say I fucked you’. I told [the complainant] I was calling Tony to cancel the shift immediately. Tony arrived within 5 minutes, and I left.

150. Significantly, in cross-examination, the complainant admitted that most of the record was accurate, though he denied saying the works “I can just say I fucked you” (16/11/23; T 117). The complainant agreed that for the month that followed this incident, only males worked with him (16/11/23; T 118.17).

• Messages to G (D’s daughter)

151. At [18] of her 8 September 2022 statement (VD Ex 8), G referred to a conversation (by phone call or text message) with the complainant, during which she said the complainant said that “he was doing everything to get [the complainant’s father] and [the applicant] to break up” and at [19] of this statement G stated that “it was during this time when [the complainant] was with [the applicant] that he sent me a message that [the applicant] had raped him”. G noted in her statement (at [19]) that “[she] wasn’t sure if [the complainant] was kidding or not as you hear this comment in care all the time”. This was reiterated by G during cross-examination (17/11/23; T 282.49).

152. The complainant disagreed that he said this to G but did agree that he told G that he did not want his father to be with the applicant (16/11/23; T 121).

Summing up

153. There is no complaint as to the directions given by the trial judge to the jury. Those directions included directions to the effect that trauma may affect people differently in how they present (28/11/23; SU 7), and in how they recall and describe events (28/11/23; SU 12-13) and that there may be good reasons for a delay in a complaint (28/11/23; SU 60); that it is not necessary to accept or reject everything that a witness says (28/11/23; SU 8-9, 13) but that if the jury rejected parts of a witness’ evidence, the jury would need to look at the reasons for doing so and consider whether that impacted upon the jury’s ability to accept the witness’ evidence in other respects (28/11/23; SU 13); and as to the need to consider separately each count on the indictment as well as a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (Markuleski) (28/11/23; SU 23-25).

154. Directions were also given as to the onus and standard of proof (28/11/23; SU 20); and that it is not altered because a motive to lie was raised (28/11/23; SU 35). It was noted that the Crown “essentially” relied on the complainant’s evidence to prove each charge (28/11/23; SU 37).

155. The trial judge gave the jury directions about context evidence (28/11/23; SU 49-57), as follows.

156. As to the complainant’s evidence about other sexual misconduct by the applicant, the trial judge noted (28/11/23; SU 49-50) that: the evidence was admitted solely for the purposes of placing the complainant’s evidence into “what the Crown says is a realistic and intelligible context”; that is, it avoided “any artificiality or unreality” in the presentation of the evidence and allowed the complainant more naturally and intelligibly to explain his account about what allegedly took place during the charged acts; the evidence could not be used as establishing a tendency and tendency reasoning was not permissible; and the evidence must not substitute the evidence of the specific charges on the indictment.

157. As to Craig’s evidence (28/11/23; SU 51), the trial judge said (28/11/23; SU 53) that “[t]he limited relevance of this evidence is that it, again, is admitted solely for the purposes of placing the complainant’s evidence towards proof of the particular charges on the indictment into what the Crown says is a realistic context”. Her Honour made clear that the evidence could not be used as supporting proof of any of the particular charges on the indictment, saying that the conduct described by Craig did not relate to any of the specific charges on the indictment and so must not be used in proof of any of the charges (28/11/23; SU 54). Again, her Honour said that the evidence could not be used for tendency purposes and could not be used as a substitute for the evidence of the specific charges on the indictment (28/11/23; SU 54).

271. As to Counts 9 and 11, which involved cunnilingus and then penile/vaginal intercourse in the applicant’s bedroom, the first is undermined by the apparent lack of reference to the cunnilingus in the police interview (although there is some uncertainty as to this because the complainant was not cross-examined on any entry about this in the COPS entry) but in any event both these counts (as with all of the conviction counts) are seriously impacted by the credibility issues relating to the complainant generally (see below).

272. As to Counts 13 and 14, these guilty verdicts relate to counts following the alleged bathtub incident, which was the subject of a not guilty verdict. There is an inconsistency in a finding that the complainant’s account was credible on those counts but not the earlier one, given that the happening of the bathtub incident is part of the overall circumstances in which the complainant says the bedroom incidents occurred (i.e., that they went to the bedroom at the applicant’s suggestion because of the awkwardness of the sex in the bathtub). These verdicts were again seriously impacted by doubts as to the complainant’s credibility.

273. Relevant, in my opinion, in relation to the complainant’s credibility is the evidence of the complainant which is quite simply unbelievable (such as his account that he had held his half-sister “Shelby” in his arms when she died and his account that he had himself fathered a child who was two years old and on life support and he had had to make the decision to turn off the life support). Although one must read records contained in case notes of this kind with caution (in the absence of evidence from the person who recorded the statements or histories given by the complainant), the content of those statements is such that it would be extraordinary for the person recording the history to have misheard or misrecorded such statements; and there would be no reason for the maker of the notes simply to have made up such statements.

274. The Crown’s submission to the effect that if such statements (as to the applicant having had twins) were correctly recorded the complainant may simply have been saying what he had been told (or may have been misled by the applicant) does not grapple with his recorded account being that he jointly named the babies and of holding one in his arms as she died.

275. Even leaving aside those case notes, which point to the making by the complainant of histrionic or fantastical statements, more significant in my opinion, in assessing the complainant’s credibility, is the attribution to him in the case worker’s notes of the statement that he could “fuck up any woman that work with me” by just saying “I fucked you”. As already noted, the complainant accepted that most of the DCJ note was accurate (just not the statement that he could just say “I fucked you”) and that, after that incident, he accepted that for a time he only had male case workers. If the account is accurate this can only be seen as exhibiting vindictiveness on the part of the complainant (and an appreciation of the damage he could cause by making false allegations). I accept that caution must be used in placing weight on what is recorded by someone in the position of the case worker but, again, the complainant accepted that most of the note was accurate (which must have included “I can fuck up any woman that work with me”). There is also doubt as to the weight that can be attached to the complaint evidence of G, whose memory as to when the message was sent was unreliable and who clearly did not take it seriously.

276. I attach no significance to other of the matters emphasised by the applicant, such as the complainant’s further contact with the applicant (which could be explicable for other reasons) and the evidence of the complainant’s father and M as to the complainant making up the allegations. In the case of the complainant’s father, there is in any event a vagueness about what the complainant was said to have been apologising for; and the Snapchat messages related to false comments about his father not the applicant.

277. As to the context evidence relied upon by the Crown, the evidence of Craig was not only unrelated to any particular count but it was itself vague (“sex sounds” from a male voice, which could for example have emanated from pornographic videos – bearing in mind that the complainant himself says that the applicant showed him such videos). I place little weight on Craig’s perception of the hugs (which he seems to have considered consistent with a parental hug), “snuggling” and “handholding”, which could well have had an innocent explanation, noting that Craig does not appear to have been concerned enough to have reported this to the police at the time (and noting his apparent animosity to the applicant in relation to the rental dispute to which reference is made in the COPS entries to which Detective Kelly referred).

278. I also place no weight on the making by the complainant of the allegations against Mr and Mrs B (since the fact that an investigator found them not to be sustained does not mean they were proven to be untrue).

279. While I quite accept that mere inconsistencies in detail of the complainant’s recollection would not alone necessarily render the verdicts unreasonable, nor would the fact that the complainant may have only remembered (or recounted) some incidents after the initial police interview (as recorded in the 15 May COPS entry); taking all the evidence into account I am left with real doubts as to the applicant’s conviction in respect of counts 6, 9, 11, 13 and 14.

280. Accordingly, Ground 1 is made good. The convictions on these counts should be quashed and verdicts of acquittal entered in their place.

Ground 2 – inconsistency of verdicts

290. Ground 2 contends that the guilty verdicts are factually inconsistent with the not guilty verdicts such that they cannot stand. As the applicant accepts, it is necessary carefully to examine the acquittal verdicts, having regard to the whole circumstances of the case, to determine whether an explanation can be found for them other than doubts as to the complainant’s credibility.

Applicant’s submissions

291. The applicant has identified a number of patterns in the verdicts: the first, being the location of the offences in respect of which guilty verdicts were returned (all but one – the anal sex incident, where there was a not guilty verdict – being in the applicant’s bedroom); and, second, the 15 May COPS entry, noting that each event that was not recorded in the document resulted in a not guilty verdict (Counts 1-4, 7, 8 and 10) and that other verdicts of not guilty were returned where there was an inconsistency in the location of the offence as recorded in the COPS entry (Count 5) or in respect of some of the not guilty verdicts there was an inconsistency in the timing of the event (Counts 1-4, 5, 7, 8 and 10) (although in some of the offences where there was such an inconsistency (Counts 6, 9 and 11) a guilty verdict was returned).

292. From this, the applicant observes that: the not guilty verdict on Count 10 (anal sex in the bedroom) suggests that the location was not wholly decisive; the guilty verdicts in respect of Counts 6, 9 and 11 suggest that any criticism deriving from the 15 May COPS entry was not fatal to the Crown case; and the not guilty verdict on Count 12 (penile vaginal intercourse in the bath) shows that an absence of criticism from the 15 May COPS entry did not automatically result in a guilty verdict.

293. The applicant says that a guilty verdict was not returned unless the event occurred in the bedroom and the occurrence of the event (as distinct from the date of the event) was not undermined by the 15 May COPS entry.

294. As to the location of the offences, the applicant says that if the jury considered there was something inherently improbable about unlawful sexual activity taking place in locations other than the bedroom (because, for example, there was a greater chance of detection), then such reasoning should have had implications for the complainant’s credibility, citing Markuleski at [234](c). The applicant submits that this implies that the jury doubted the truthfulness of his claims that sexual activity occurred in those locations and says that, in the circumstances of this case, that was a significant matter when considering the counts that occurred in the bedroom.

295. Further, noting that the context evidence included an incident where Craig said he heard “sex sounds” coming from the applicant’s bedroom (see above), the applicant submits that the pattern of verdicts gives rise to a concern that the jury misused his evidence (by reasoning from that evidence that there was some kind of tendency on behalf of the applicant to engage in sexual activity with the complainant in her bedroom). The applicant submits that the likelihood of the context evidence being misused was increased by the fact that the Crown did not articulate exactly how the context evidence made the “charged incidents easier to comprehend” (24/11/23; T 632.24-32).

296. As to the 15 May COPS entry, the applicant argues that it would be unrealistic, in the circumstances of this case, to use the omissions of details in the 15 May COPS entry as casting doubt on the corresponding counts only (if that is what occurred) rather than as a factor that detracted from the complainant’s overall reliability (citing Markuleski at [234](d)). The applicant notes that the Crown did not suggest that the statements made to the police on 15 May amounted to probative complaint evidence.

297. The applicant points out that (apart from Counts 7 and 15 where the date of the offence was an essential element) the central issue in the trial was whether the alleged sexual acts occurred. The applicant says that (despite the fact that the complainant was a child at the time) questions of mistake and faulty memory do not explain the acquittals, nor does the absence of supporting evidence in relation to those counts (given that there was a similar absence for those counts resulting in verdicts of guilty). As noted above, the applicant raises here the possibility that the jury misused the context evidence as tendency evidence as one possible explanation for the inconsistent verdicts.

298. The applicant submits that each of the guilty verdicts was inconsistent with the 10 not guilty verdicts for the following reasons.

299. First, the preponderance of the counts resulted in verdicts of not guilty, which the applicant submits supports an argument that “the jury looked with real disfavour upon the credibility of the complainant” (citing Markuleski at [234](a)).

300. Second, the applicant says that there was not “something additional” in the evidence that supported the complainant’s version for one or some of the counts so as to explain the mixture of verdicts (referring to MFA at [34], [36]). In that regard, the applicant emphasises that the complaint evidence of G and the context evidence of Craig was not pertinent to any particular count. The applicant accepts that there was evidence from the foster parents in support of Count 7 but says that the not guilty verdict on that charge means it is not a factor that explains the mixture of verdicts.

301. Third, the applicant says that the complainant did not show “some uncertainty as to matters of detail” in relation to some counts (referring to MFA at [34]). The applicant says that the complainant was adamant that each sexual event occurred (referring by way of example to JIRT, A.709; 16/11/23; T 94.9, T 170); and that the complainant’s descriptions of what occurred (though not with precision as to the physical movements necessary to establish the elements of every offence – such as the description of cunnilingus for Count 9 at JIRT, A.380 and the descriptions of penile-anal intercourse and penile-vaginal intercourse for Counts 10 and 11 at JIRT, A.378-406) were, in context, sufficiently clear to establish the relevant elements of each count. The applicant notes that this was not a case where, for example, the offences occurred in dim light or at a time when the complainant’s eyes were closed such that there was room for error about some aspects of the offences (cf R v KRL [2007] NSWCCA 354 at [55]).

302. Fourth, the applicant says that this is not a case where the complainant’s memory could be considered faulty on certain details (referring to MFA at [34]). The applicant points out that the offences were not historical and the complainant did not claim that he had difficulties remembering the events. Hence the applicant argues that this was not a case where the complainant’s memory of some offences was clearer than others due to the relative recency of those offences or for other reasons.

303. Fifth, the applicant says that the complainant was not shown to be more reliable about some parts of his evidence than about others (referring to MFA at [34]). In that regard, the applicant accepts that some counts had special problems (such as the fact that the complainant’s father contradicted aspects of Counts 1 to 4, the problematic chronology of Counts 5 to 7 (on which there were mixed verdicts), the small size of the bath which undermined Count 12, and the limited opportunity on 5 March 2020 for Count 15) and the applicant accepts that some counts were undermined more directly by the 15 May COPS entry than others. However, the applicant maintains that these are all matters that detracted from the reliability of the complainant’s account. The applicant says that on the facts of this case, it is not fair to assume that the acquittals reflected a finding that the complainant exaggerated in certain respects to “reinforce” his account (referring to Markuleski at [235](e); Collins v R [2020] NSWCCA 198 (Collins) at [75]-[76]).

304. The applicant submits that the whole circumstances of this case suggest that the jury should, and did, have doubts about the majority of the complainant’s allegations; and that this was a case where the acquittals on 10 of the counts, in combination, implied “a want of confidence in the complainant” (MFA [34]). The applicant submits that this want of confidence ought to have led to acquittals on the remaining counts. The applicant says that no jury, acting reasonably, ought to have concluded otherwise; and that, even allowing for the advantages enjoyed by the jury over an appeal court (MFA [23]; Kim v R [2020] NSWCCA 288 at [37]), this Court should intervene and enter verdicts of acquittal.

305. Finally, the applicant submits that nothing would justify a conclusion that the jury reasoned that justice was met by convicting the applicant of 5 out of 15 counts in the way described in R v Kirkman (1987) 44 SASR 591 at 593 and referred to in MFA at [34]. The applicant argues that there is no warrant to conclude that these were “permissible unreasonable verdicts” (in the words of Collins at [88]-[90]).

306. In particular, as to the guilty verdict for Count 6 (penile-vaginal intercourse in the bedroom), the applicant says that this is inconsistent with the not guilty verdict for Count 5 (fellatio in the loungeroom) for the further reason that those counts were intertwined both “temporally and contextually”, such that it is a “logical affront to accept the inconsistency between the acquittal and [conviction]” (referring to Dadley at [89]). The applicant makes a similar submission in relation to Counts 9 and 11 (given the acquittal on Count 10) and Counts 13 and 14 (given the acquittal on Count 12).

Crown submissions

307. The Crown notes that the test to be applied where an allegation is made that verdicts are inconsistent is one of logic and reasonableness; that the applicant “must satisfy the court that the verdicts cannot stand together”, that is, that “no reasonable jury who applied their minds properly to the facts in the case could arrive at that conclusion”. The focus of the enquiry is on the acquittals (rather than the convictions) and it is noted that there is a relatively high bar to be overcome.

308. The Crown emphasises that different verdicts in trials of multiple count indictments which depend upon the evidence of a single complainant do not necessarily signify disbelief of the complainant; and that the significance of verdicts of not guilty on some counts on an indictment must be considered in light of the particular circumstances of the case (referring to the observation by Gleeson CJ, Hayne and Callinan JJ in MFA at [34] that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count, and that the jury will ordinarily be directed that the evidence of each witness may be accepted in whole or in part; and that a finding of not guilty in respect of a particular count in proceedings relating to allegations of sexual assault does not necessarily involve a rejection of the complainant’s evidence. Reference is also made to what was said in Markuleski at [8], [34], [219]-[221]). The Crown also refers to the distinction between credibility and reliability (referring to what was said by Basten JA in Ganiji v R [2019] NSWCCA 208 at [8]-[9]).

309. The Crown also (again) emphasises the need to take proper account of the advantage of a jury over an appellate court.

310. The Crown says that a logical consequence of the need to focus (in an inconsistency of verdicts appeal) on whether there is any explanation for the acquittals, rather than the convictions, is that outlined by Beech-Jones J in Martin v R [2020] NSWCCA 192 at [79], namely that:

…once the verdicts are reconciled then the balance of the consideration of unreasonableness proceeds in accordance with that reconciliation including what it might reveal about the jury’s assessment of a complainant’s evidence (see AH v R [2019] NSWCCA 152 at [64]-[65] per Simpson AJA).

311. Thus, the Crown says that if there is a logical and reasonable basis for the differentiation in the verdict, then Ground 1 proceeds in accordance with the fact that the acquittals are logical and rationally explicable and are not inconsistent with the jury accepting the complainant as a witness of truth.

312. Turning then to the submissions on Ground 2, the Crown submits that the directions made by the trial judge (see at 28/11/23; SU 8-13, 23-24) provide important context for the consideration of this ground of appeal.

313. The Crown argues that the elements of each of the offences reveal a logical and reasonable basis for the jury to return a verdict of not guilty on the acquittal counts, while being satisfied to the necessary standard with respect to the conviction counts. The Crown emphasises that any assumption that acquittals on some counts and convictions on others necessarily denotes rejection by a jury of a complainant’s credibility or reliability was rejected in MFA at [34]; and points out that it has been recognised that differential verdicts may provide the basis for confidence that the jury has done precisely what it has been instructed to do, namely, consider each count separately and reach a verdict on that count, on the evidence relevant to that count (citing AH v R [2019] NSWCCA 152 at [62] per Simpson AJA).

Counts 1- 4, 5, 7, 8, 10, 15

314. As to the bulk of the acquittal counts (Counts 1-4, 5, 7, 8, 10 and 15), the Crown argues that the verdicts are reconcilable with the conviction verdicts on the basis that the complainant acknowledged that his first complaint to police on 15 May 2020 did not contain any complaint about the acts that comprised Counts 1-4, 7, 8 and 10; and that, as documented in the 15 May COPS entry, his first complaint to police contained inaccuracies in respect of Count 5 (as to location) and Count 15 (as to date).

315. In that regard, the Crown points to the following concessions by the complainant as to what he had or had not told the police in his interview on 15 May 2020: as to Counts 1-4, that he had not told police about this incident at his father’s house or any incident which occurred in the applicant’s car (16/11/23; T 102; T 103-T 104); as to Count 5, that he had told police that the fellatio occurred in the bathroom, whereas in his evidence in chief (the 28 May 2020 interview with police) he had said that the fellatio occurred in the lounge (16/11/23; T 101); as to Count 7, that he had not mentioned the Sandon Point incident (16/11/23; T 103); as to Count 8, that he had not made any complaint about the dildo incident (16/11/23; T 103); as to Count 10, that he had not mentioned anal intercourse (16/11/23; T 103); and as to Count 15, that, while he did not remember saying that the final incident occurred “four days” before he left, it “could be” possible he had done so. As to the last, the Crown says that was a significant concession about reliability as to the date (rather than general truthfulness) in the context of a count where the date was an essential element.

314. The Crown points out that the 15 May 2020 COPS Entry was used in cross-examination of the complainant to undermine the reliability of his account in respect of particular counts omitted from, or inconsistent with, his initial complaint on 15 May 2020; and says that the logical basis for differentiation of the acquittal verdicts on these counts is the fact of the concessions made by the complainant in respect of particular counts.

315. The Crown argues that the applicant’s observation that there was “no evidence one way or the other” as to whether Count 9 had been disclosed on 15 May 2020 does not detract from this logical basis for differentiating the verdicts. The Crown says that the distinguishing factor is the complainant’s concession in evidence (as to whether those matters had formed part of his initial account or where he had given an inconsistent account) rather than what was or was not contained within MFI 5 (which was not itself in evidence). The Crown notes that there was no such concession by the complainant in respect of Count 9 (noting that no proposition of that kind was put to the complainant).

316. The Crown points to the recognition by Courts that where a complaint had been made of the conduct (or type of conduct) the subject of the conviction counts, but not the conduct the subject of the acquittals, that may be sufficient to differentiate the verdicts and to make the different verdicts logical and reasonable (referring to Markuleski at [83]-[88]; R v ACK [2000] NSWCCA 180 at [51]; Bayliss v R [2023] NSWCCA 84 at [71]-[72]; Davis at [127]-[135]).

317. The Crown says that, given the high standard of proof beyond reasonable doubt, it is consistent with a proper discharge of the responsibility of the jury that the jury would have had regard to the complainant’s concession that he had omitted a particular count from his first complaint to police, when determining whether they had reached satisfaction about his reliability on that count beyond reasonable doubt.

Count 12

320. As to Count 12, the Crown notes that there was a concession by the complainant in his evidence not as to the initial complaint to police but related to the size of the bathtub (16/11/23; T 165), the complainant accepting in cross-examination that he could not explain how both he and the applicant had fit into the bathtub (a concession that the Crown says was a relevant matter for the jury to consider). The Crown says that this was a count where the complainant had shown uncertainty as to a matter of detail (referring to what was said in MFA by Gleeson CJ, Hayne and Callinan JJ at [34] to the effect that faulty recollection, or uncertainty on matters of detail, was a circumstance where a verdict of not guilty on a particular count may not necessarily imply a want of confidence in the complainant).

Counts 7 and 15

321. Further, in respect of both Count 7 and Count 15, the Crown notes that the date was an essential element of the offence. The Crown notes that there was a live issue in the trial about the date of the alleged offences in respect of both of these counts (noting that in respect of Count 15 this was largely in relation to the COPS entry reflecting “four days” rather than four hours but that it also involved the applicant’s work records. In respect of each of these matters), the Crown says that a verdict of acquittal on those counts may be explained by a jury accepting the complainant’s account as truthful, but reasoning that he was unreliable as to the date (which required satisfaction beyond reasonable doubt).

322. The Crown says that the fact that more of the counts resulted in acquittals does not mean that the jury looked with disfavour on the complainant’s credibility; and that the applicant’s submission to this effect overlooks the distinction between the separate concepts of truthfulness and reliability (and overlooks the directions given to the jury that they were entitled to return separate verdicts, so long as they did so in accordance with the directions given to them, which included the Markuleski direction). The Crown argues that a jury’s conclusion about matters of credibility and reliability cannot be discerned by simply considering whether there is a numerical majority of acquittals or convictions, especially in circumstances where two of the acquittal counts involved time as an essential ingredient of the count on the indictment.

323. The Crown maintains that the verdicts of not guilty in relation to the acquittal counts are not indicative of a want of confidence in the complainant or a rejection of his evidence; rather, the Crown says that they are consistent with the jury having accepted the complainant’s evidence as truthful but having recognised that there was a qualitative difference in the reliability of his evidence in relation to the incidents the subject of the acquittal counts (referring to the concessions made by the complainant in his evidence, as noted above).

324. Thus the Crown contends that the not guilty verdicts on the acquittal counts are logically and reasonably explicable on the basis of the jury applying the directions given to them about separate consideration and allowing the applicant the benefit of any doubt in respect of particular individual counts (even if they otherwise accepted the complainant was credible and honest); and those verdicts do not signify a want of confidence in the complainant more broadly as to his account of the ongoing sexual relationship with the applicant.

Determination as to Ground 2

325. Again, there is no doubt as to the applicable principles on an inconsistency of verdicts ground of appeal. They were considered by the High Court in MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35; Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56; and also MFA; and were summarised in Dadley by Bell P (as his Honour then was) (at [76]-[78]). Reference should also be made to Markuleski (and R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 (TK)) in this context. It is necessary carefully to examine the acquittals to determine whether an explanation can be found for them other than doubts about the complainant’s credibility (TK at [128]-[130]).

326. I accept that there is superficially a basis for the jury to have returned a not guilty verdict for counts relating to offences that were not the subject of complaint to the police in the first instance (though to my mind that would not be a rational or reasonable basis for distinguishing between those of the acquittal counts which were temporally linked to other counts on which guilty verdicts were returned).

327. In this regard, I do not consider that the absence of mention in the COPS entry is a logical basis to distinguish between the acquittal on Count 5 and the conviction on Count 6, nor between the acquittal on Count 10 and the conviction on Counts 9 and 11.

328. Nor is there a logical basis for distinguishing between counts where the conduct was alleged to have occurred in the applicant’s bedroom and other counts where the location was, say, in the applicant’s car; or for distinguishing between the counts on the basis of the type of sexual activity said to have occurred.

329. I do accept that where date was an essential element of the count there would be a logical basis to explain the acquittals on Counts 7 and 15.

330. Thus, I have concluded that there was not a logical and reasonable basis for distinguishing between most of the acquittal counts and the conviction counts but that for the acquittal counts where date was an essential element of the offence (being Counts 7 and 15), a logical and reasonable basis can be found to distinguish them from the conviction counts. However, that does not address the inconsistency (and lack of a logical basis for distinction) between the acquittals on Counts 1-4, 5, 10 and 12 and the convictions on counts 6, 9, 11, 13 and 14. The verdicts of not guilty on the acquittal accounts to which I have referred cannot be explained other than as a reflection of the jury’s non-acceptance of the credibility and reliability of the complainant’s account of those events and should have led the jury to experience a reasonable doubt on all of the counts.

331. This Ground 2 is also made good.

Conclusion

332. For the above reasons leave to appeal should be granted and the appeal allowed. The following orders should be made:

1. Leave to appeal is granted.

2. Appeal allowed.

3. The guilty verdicts on Counts 6, 9, 11, 13 and 14 are quashed, and verdicts of acquittal are to be entered on each of those counts.

333. McHUGH JA: For the purposes of the first ground of appeal, I have reviewed the written record of the trial in order to determine whether “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. I have done so conscious that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and bearing in mind the jury’s advantages of seeing and hearing the witnesses and of collective deliberation. The Court’s function when determining an appeal on the unreasonable verdict ground is nevertheless “to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty”: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [7]. I have concluded that the guilty verdicts were unreasonable and that the appeal must be allowed.

334. As my reasons are largely the same as those given by the President, whose judgment I have had the considerable advantage of reading in draft, I can state the basis on which I reach that conclusion relatively shortly.

335. The Crown case depended almost exclusively on the evidence of the complainant. As Ward P explains, there were significant limitations on (a) the evidence of the complainant’s sister and former foster parents about the complainant’s visit to their home at Thirroul, (b) the complaint evidence of the witness known as G, and (c) the “context” evidence of the witness Craig. That being so, as the trial judge said, “the Crown case essentially relies on the evidence of the complainant in order to establish the essential elements of each of the offences” (28/11/23; SU 37). It followed that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty if it had a reasonable doubt about the complainant’s credibility or reliability. As the trial judge put it, the jury had to be satisfied that the complainant’s evidence was “both honest and accurate beyond reasonable doubt in the essential respects that are relied upon to prove the charge” (28/11/23; SU 38).

336. Whether the guilty verdicts can stand thus depends on whether, in the face of the applicant’s attack on the complainant’s credibility and reliability, it was open to the jury to accept his evidence as establishing beyond reasonable doubt that the sexual acts on which the charges were founded occurred. The matters to which the applicant points on appeal were the subject of arguments put to the jury, who may be taken to have considered those arguments in assessing all the evidence. Even so, and making full allowance for the advantages enjoyed by the jury, the matters to which Ward P refers did significant damage to the complainant’s credibility and reliability. Among the most damaging were the following.

1. The complainant had told the police (JIRT, Q.532-A.538), and was adamant under cross-examination, that the applicant had had twins, one of whom died in the complainant’s own arms in January or February while he was living with the applicant (16/11/23, T 121.50-122.40). In truth, no such twins existed; the applicant had not been pregnant or given birth at that time; and no such baby had died (17/11/23, T 268.19-30: applicant’s daughter; 22/11/23, T 505.28-506.7: investigating officer in charge). This issue was connected to the complainant’s evidence about the alleged offences by the complainant’s suggestion that the applicant wanted him to father a child to “replace” the dead twin. (JIRT, Q.532-A.536; A.543).

2. The evidence was that in November 2019 (which was a month before the alleged offending commenced), when he was 13, the complainant had told a worker that he was the father of a two year old child who had been in a car accident the day before, and that he had told the doctors he agreed to the child’s life support being turned off (21/11/23, T378.39-379.15). There was no reason to think the worker might be mistaken, or would fabricate, that the complainant had said those things. But in cross-examination the complainant denied saying those things to the worker, then said he could not remember, then denied them again (16/11/23, T123.5-36). He did, however, agree that he had not had such a child (16/11/23, T122.49-123.2).

3. The complainant claimed, and maintained under cross-examination, that the witness G had told him she wanted him to “give her a child”, and that he had had sex with G (16/11/24, T124.25-125.34). G denied that she had said that, or that she had ever had sex with the complainant (17/11/23 T283.30-284.5). Her evidence was not challenged. This issue was connected to the complainant’s evidence about the alleged offences because the complainant said, “The day I moved into [the applicant’s] house was the day me and [G] slept together” (23/11/23, T573.30). That was the same day the complainant emphatically said he had sex three times with the applicant (JIRT, A.203, A.224, A.239, A.242, A.255, Q.281; 16/11/23, T127.16)

4. Under cross-examination, the complainant admitted that in his interaction with the worker Ms Kannan on 19 July 2020, he had said “You know I can fuck up any woman that works with me”, and he agreed with the proposition that “you were telling [Ms Kannan] that you knew how to ruin a worker’s life, a woman’s life” (16/11/23 T116.5-118.22). Despite the complainant’s denial (16/11/23, T117.23-35), there is no reason to doubt that the complainant also said to Ms Kannan, “I can just say I fucked you” (21/11/23, T380.26-35). There was also no reason to doubt the seriousness with which Catholic Care had taken the incident. It was connected to the complainant’s evidence about the alleged offences because the evidence was that the complainant had said these things to Ms Kannan immediately after saying that he was “taking [the applicant] to court” (21/11/23, T380.26).

337. Each of those matters involved elaborate untruths which the complainant had told (or in the case of Ms Kannan, threatened to tell) about sex, having children, the applicant, or some combination of the three. Under cross-examination, the complainant then denied either that the things he had said were untrue (the dying twin and having sex with G) or that he had said them (turning off life support for his own child, and the most damaging part of what he had said to Ms Kannan). The way in which those matters affected the complainant’s credibility and reliability had nothing to do with the manner in which his evidence was given, such that the jury’s advantage in seeing and hearing the evidence is not capable of resolving a doubt experienced in this Court. Those matters, taken together with the other matters to which Ward P refers, should have caused the jury to experience a reasonable doubt about the credibility and reliability of the complainant’s evidence, and therefore to experience a reasonable doubt that the sexual acts occurred as charged.

338. I also agree with Ward P’s reasons for concluding that the second ground was established, and with the orders her Honour proposes.

339. ROTHMAN J: In accordance with the task required of the Court in dealing with Ground 1 of the appeal, I have examined the evidence in the trial and concluded that the verdict is unreasonable in that, making full allowance for that which the jury has observed and we have not, the jury should have had a reasonable doubt as to the guilt of the appellant.  It was not open for the jury to find guilt beyond reasonable doubt.

340. I have had the benefit of reading, in draft, the reasons for judgment of the President.  Those reasons express the basis for the conclusion I have reached and it is unnecessary to add to them or repeat any aspect of them.  As to Ground 2 of the appeal, while I agree with the President’s conclusion, it is, given the conclusion as to unreasonableness, strictly unnecessary to deal with the ground.

341. I agree with the orders proposed by her Honour.

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Decision last updated: 19 December 2024