Ss v The King

[2024] NSWCCA 128

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SS v R [2024] NSWCCA 128

Hearing dates:

28 June 2024

Decision date:

19 July 2024

Before:

Adamson JA at [1];
Stern JA at [203];
Faulkner J at [207]

Decision:

(1)   Extend the time for filing of the notice of appeal with respect to grounds 1 and 2 (against conviction) to 3 April 2024.

(2)   Grant leave to appeal against the conviction (grounds 1 and 2).

(3)   Dismiss the appeal against conviction.

(4)   Refuse to extend time for filing the notice of appeal with respect to ground 3 (against sentence).

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge’s failure to recuse herself and abort trial resulted in a miscarriage of justice — where new evidence raised mid-trial — where defence would have conducted their case differently had the evidence been raised before trial — whether failure to vacate had a prejudicial effect — whether appellant was denied a fair trial

CRIME — appeals — appeal against conviction — unreasonable verdict — whether conviction of child sexual assault offences could not be supported having regard to the evidence — whether inconsistencies in the complainant’s evidence raised reasonable doubt about the applicant’s guilt — where complainant signed a retraction statement — where applicant subsequently admitted offending conduct to members of his own family

CRIME — appeals — appeal against sentence – extension of time in which to appeal — whether extension of time for leave to appeal against sentence ought be granted — where applicant suffers from terminal illness — whether fresh evidence of terminal illness ought be received — whether applicant was suffering from terminal illness at time of sentencing — where applicant has been released on parole

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61M, 61O, 66A

Criminal Appeal Act 1912 (NSW), s 5

Criminal Procedure Act 1986 (NSW), ss 132, 293A, 294

Evidence Act 1995 (NSW), ss 38, 128

Cases Cited:

BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101

Conway v R [2023] NSWCCA 265

Crickitt v R [2018] NSWCCA 240

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

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Iglesias v R [2006] NSWCCA 261

Ilievski v R(No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248

Khamis v R [2018] NSWCCA 131

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

Maughan v R [2020] NSWCCA 51

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

Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29

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

R v Bailey (1988) 35 A Crim R 458

R v Munday [1981] 2 NSWLR 177

Rao v R [2019] NSWCCA 290

Reed v R [2006] NSWCCA 314

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

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Xu v R [2019] NSWCCA 178

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

Category:

Principal judgment

Parties:

SS (Applicant)
Rex (Respondent)

Representation:

Counsel:
B Walker (Applicant)
A Bonnor (Respondent)

Solicitors:
Not applicable (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/366498

Publication restriction:

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

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 November 2019 (Conviction)
11 June 2020 (Sentence)

Before:

English DCJ

File Number(s):

2017/366498

HEADNOTE

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

On 22 November 2019, SS (the applicant) was convicted of seven child sexual offences against a single complainant (the complainant) following a trial by judge alone which was conducted by English DCJ (the trial judge). He was sentenced to 8 years and 6 months’ imprisonment, commencing on 21 May 2028, with a non-parole period of 4 years and 6 months’ imprisonment. At the time of the hearing of the appeal, the applicant was on parole.

The applicant was the complainant’s mother’s de facto partner. The offences, which involved the applicant putting his penis in the complainant’s mouth, putting his finger in the complainant’s vagina and touching the complainant’s breasts, were alleged to have been committed between 1989 and 1993 when the complainant was aged between 7 and 11 years old and living in Wagga Wagga with her mother, the applicant and her three half-brothers. The offences were committed against a background of the applicant’s repeated sexual and physical abuse of the complainant.

In August 1993, the complainant told her friend, ES, and her maternal grandmother, what the applicant had been doing to her. She then gave a formal statement to police, was examined by a gynaecologist and the applicant was charged. However, on 4 November 1993, as a result of threats made by the complainant’s mother, the complainant signed a retraction statement in which she said none of the conduct comprising the offences had occurred.

Shortly after the charges were dropped, in December 1993, the applicant admitted to sexually and indecently assaulting the complainant to members of his family, including his mother, his brother, his sister and his sister’s fiancé.

In 2013, the complainant contacted police in Wagga Wagga to restore her original complaint against the applicant. However it was not until 2016, when police became aware of the admissions made by the applicant, that he was charged and brought to trial.

The applicant sought leave to appeal against his conviction and sentence. He required an extension of time to do so, having filed a notice of intention to appeal on 24 June 2020 and a notice of appeal on 3 April 2024. The applicant’s proposed grounds of appeal were that:

1. there was a miscarriage of justice arising from the trial judge’s refusal of an application for the trial to be aborted and for her Honour to recuse herself;

2. the conviction was unreasonable and could not be supported having regard to the evidence; and

3. the court re-sentence the offender based on fresh evidence which was not available at the time of sentence, namely the applicant suffering from a terminal illness at the time of sentencing.

Ground 1 was based on the fact that the complainant’s mother, who was called as a prosecution witness after almost all other witnesses had been called, gave evidence against the applicant which was inconsistent with earlier supportive statements which had been served on the defence. The applicant’s trial counsel applied for the trial judge to recuse herself and vacate the trial, arguing that, had they been aware of the evidence before trial, the defence would have conducted their case differently. The trial judge refused the application but adjourned the trial for four weeks to allow the defence further time.

In support of ground 2, the applicant submitted that notwithstanding the trial judge’s acceptance of the complainant’s evidence, the Court ought find that the tribunal of fact ought to have entertained a reasonable doubt as to the applicant’s guilt because of inconsistencies in the complainant’s evidence.

The Court held (Adamson JA, Stern JA and Faulkner J agreeing), granting an extension of time and leave to appeal on grounds 1 and 2 (the conviction appeal), but dismissing the conviction appeal, and refusing an extension of time for leave to appeal on ground 3 (the sentence appeal):

Ground 1: miscarriage of justice arising from the trial judge’s refusal to recuse herself and vacate the trial

1. The test is whether, as a result of the refusal of the recusal application, there was a miscarriage of justice: at [146] (Adamson JA).

Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29; Ilievski v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248; Conway v R [2023] NSWCCA 265, cited.

1. There was no miscarriage of justice. The applicant could not point to any particular prejudice he suffered as a result of the trial not being vacated or to any forensic decision which he may have made differently had he been aware of the complainant’s mother’s evidence in advance, and the complainant’s mother’s evidence did not materially affect the Crown case: at [145], [147]-[149] (Adamson JA); [204] (Stern JA).

Ground 2: unreasonable verdicts

1. Assumptions about how a sexual assault complainant might behave are inappropriate. Minor discrepancies as to timing or acts are not such as ought to have caused the tribunal of fact to doubt the complainant’s credibility: at [160]-[162], [167] (Adamson JA); [210]-[212] (Faulkner J).

   Khamis v R [2018] NSWCCA 131; Rao v R [2019] NSWCCA 290; Xu v R [2019] NSWCCA 178; Maughan v R [2020] NSWCCA 51; Reed v R [2006] NSWCCA 314, cited.

2. Having regard to the evidence as a whole (that the applicant admitted his offending to members of his family, the circumstances of the retraction statement, reliable complaint evidence supported by contemporaneous documents and medical evidence), it was open to the tribunal of fact to return a guilty verdict in respect of all counts: at [165], [185] (Adamson JA); [205] (Stern JA); [213]-[214] (Faulkner J).

Ground 3: extension of time for leave to appeal against sentence

1. The challenge to the sentence is so devoid of merit as not to warrant an extension of time. The medical evidence falls short of establishing that the applicant had a brain tumour at the time the sentence was imposed and even if the medical evidence was properly admitted as “fresh evidence”, there is no reason for this Court to intervene, given that the applicant is no longer in custody: at [197], [200]-[201] (Adamson JA).

JUDGMENT

1. ADAMSON JA: SS (the applicant) seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction on 22 November 2019 of seven child sexual offences against a single complainant (the complainant) following a trial by judge alone which was conducted by English DCJ (the trial judge).

2. The applicant also seeks leave to appeal against the sentence imposed by the trial judge of 8 years and 6 months’ imprisonment commencing on 22 November 2019 and expiring on 21 May 2028 with a non-parole period of 4 years and 6 months’ imprisonment which expired on 21 May 2024. At the time of the hearing of the appeal the applicant was on parole, having been released on 21 May 2024.

3. It was common ground that the applicant requires an extension of time for leave to appeal. The applicant filed a notice of intention to appeal on 24 June 2020. An extension of time to appeal was granted to 9 April 2021. On 28 April 2023, the applicant provided a letter explaining that he had been diagnosed with a brain tumour. The notice of appeal was not filed until 3 April 2024.

4. The applicant’s proposed grounds of appeal are as follows:

“Conviction Appeal

1.    There was a miscarriage of justice arising from an application for the trial to be aborted and for Her Honour to recuse herself being refused.

2.    The conviction is unreasonable and cannot be supported having regard to the evidence.

Sentence Appeal

3.    The court re-sentence the offender based upon the fresh evidence which was not available at the time of sentence, namely, the appellant suffering from a terminal illness at the time of sentencing.”

5. For the reasons which follow, I would extend time for the filing of the notice of appeal in so far as it relates to the convictions (grounds 1 and 2), grant leave to appeal against the convictions (grounds 1 and 2) but dismiss that appeal and refuse an extension of time for leave to appeal against sentence (ground 3).

6. In order to address ground 2, it is necessary to review all of the evidence in the trial. In order to address ground 1, which involves an appeal against the convictions (and not an appeal against the trial judge’s refusal of the applicant’s application for the trial to be aborted and the trial judge to recuse herself), it is necessary for the applicant to establish that the refusal of the application resulted in a miscarriage of justice. This, in turn, requires some consideration of the context in which the application was made.

The trial

7. The trial began before the trial judge in the District Court at Wagga Wagga on 15 October 2019. The indictment charged seven offences (set out in the table below) which were alleged to have been committed in the course of three incidents against a background of the applicant’s repeated sexual and physical abuse of the complainant, when she was aged between 7 and 11 years old.

Count	Crimes Act 1900 (NSW) section	Time period	Offending Conduct
1	66A	24 May 1989 – 24 May 1990	Sexual intercourse with the complainant then aged under 10 years, namely 7 years.
2	66A		Sexual intercourse with the complainant then aged under 10 years, namely 7 years.
3	61J(1)	31 July 1993 – 22 August 1993	Sexual intercourse with the complainant without her consent, and knowing that she was not consenting, in circumstances of aggravation, namely, that at the time of the offence she was under the age of 16 years, namely 11 years.
4	61M(1)		Assaulted the complainant and at the time, committed an act of indecency on her, namely touched her on the breasts in circumstances of aggravation, namely that at the time she was under the age of 16 years, namely 11 years.
5	61O(1)		Incited the complainant, being a person under the age of 16 years, namely 11 years, who was under the applicant’s authority, to commit an act of indecency with the applicant.
6	61J(1)	22 August 1993	Sexual intercourse with the complainant without her consent, knowing that she was not consenting, in circumstances of aggravation, namely that at the time she was under the age of 16 years, namely 11 years.
7	61M(1)		Assaulted the complainant and at the time committed an act of indecency on her, namely touched her on her breasts in circumstances of aggravation, namely that at the time she was under the age of 16 years, namely 11 years.

The Crown case

8. The Crown case was that, in 1993, the complainant complained to her friend, ES, and her maternal grandmother, PW, about being sexually and indecently assaulted by the applicant (who was her mother’s de facto partner). She subsequently reported the offending to police in a formal interview on 24 August 1993, who referred her for an internal examination by Dr Geraldine Duncan, an obstetrician and gynaecologist. This led to the applicant being charged on 27 August 1993. However, on 4 November 1993 the complainant signed a retraction statement in which she said none of the conduct comprising the offences had occurred (the retraction statement). The Crown case was that the retraction statement, which led to the charges being dropped, was signed unwillingly by the complainant (who was, at this time, 11 years old) as a result of threats made by her mother.

9. Shortly after the charges were dropped, the complainant went to Queensland to visit her biological father. Later the applicant arrived and took the complainant to his mother’s house and his sister’s business premises where, in his family’s presence at each location, he admitted that he had done what the complainant had alleged. Until his admissions were made, his sister, brother-in-law to be and brother had supported him and disbelieved the complainant. After the admissions they appreciated that the complainant had told the truth about his conduct. Ultimately, in 2013, the complainant contacted the police in Wagga Wagga to restore her original complaint against the applicant, which led to his being charged and, ultimately, convicted by the trial judge.

10. The Crown case comprised the following evidence:

1. evidence of the complainant including as to each of the offences, her background of abuse, her familial relations, her diary entries, the letter from ES, the circumstances in which she had reported the offending to police on 24 August 1993, the circumstances of her making the retraction statement and the admissions made by the applicant to his family;

2. evidence of ES and PW about the contemporaneous complaints which the complainant had made to each of them in 1993;

3. the expert evidence of Dr Duncan regarding her internal examination of the complainant on 26 August 1993 (within 4 days of the occurrence of the last offence); and

4. evidence given by some of the applicant’s family members of admissions which the applicant made to them following the retraction statement.

The defence case

11. The defence case was that the complainant was lying and that the applicant did not commit any of the offences charged.

The complainant’s background

12. The complainant was born in 1982 when her mother was 15 years old. Her biological father, TA, who was also a teenager, lived in Queensland. In her early years, the complainant lived in Redcliffe, Queensland with PW, the complainant’s mother and PW’s five other children. The complainant’s mother was the eldest of the six children, followed by PaW (a boy), SeW (a boy), SuW (a girl), RW (a girl) and SiW (a girl). According to PW, TA’s father “jammed [TA] into the army”, which led to TA and the complainant’s mother going their separate ways.

13. In the 1980’s, when the complainant’s mother was still living with PW and the complainant was about three and a half years old, the complainant’s mother met and formed a relationship with the applicant. The applicant was one of five children. His siblings were AS (a girl), GS (a girl), MS (a boy) and DoS (a boy)

14. When she lived with PW in Queensland, the complainant had weekly contact with her biological father, TA, at TA’s parents’ home in Margate in Redcliffe. However, she called the applicant “dad” from an early age until some time after the offending conduct ceased.

15. At around this time, the complainant’s mother and the applicant went to Cairns for work, leaving the complainant with PW. While they were up there, the complainant’s mother became pregnant again and they returned to Redcliffe where their first son, DS, was born in July 1987. The applicant, the complainant’s mother, the complainant and DS then moved into their own place in Ashmore Road in Redcliffe. According to PW, following that move, the complainant, who was by then 5 or 6, started to have problems with “toilet training” (which she had not had as a toddler). PW said that “that’s when [she] noticed that something was terribly wrong”.

16. Shortly afterwards, the complainant’s mother, the applicant, DS and the complainant moved to Wagga Wagga in New South Wales, where the applicant’s brother, MS, was then living. BS, their second son, was born in 1988. A third son, RS, was born in September 1990. After RS’s birth, MS moved back to Queensland to live with his mother in Morayfield, near Caboolture.

17. SeW (one of the complainant’s mother’s brothers) came from Queensland to live with his sister and the applicant in Wagga Wagga. In October 1990, after he had been living with them for about a year, SeW was killed in a car accident. In late 1990 (after SeW’s funeral), PW went to visit the complainant’s mother and the rest of her family who were then living in a two-bedroomed house on a property near Wagga Wagga (having moved from their first residence, which was a flat in the town). PW came with her two youngest daughters, RW and SiW (who were not much older than the complainant), and stayed until about Christmas. The complainant said that the sexual abuse which the applicant inflicted on her did not occur when PW was there but resumed when PW went to Sydney, leaving RW and SiW with the complainant’s family.

18. Between about 1988 when the complainant and her family left Brisbane until the end of 1993 when she returned to Queensland, the complainant only saw her biological father, TA, when he was stationed for training for a period of about six weeks at the nearby Kapooka Army Barracks.

Counts 1 and 2

The complainant’s evidence

19. The complainant gave evidence that when she was 7 years old (between May 1989 and May 1990), she was living in a house outside Wagga Wagga with her mother, the applicant and DS and BS, who slept in a cot in the corner of the main bedroom (RS was not yet born). She recalled that it was summer when the applicant called her into his bedroom that he shared with her mother and told her to take her clothes off because she was in trouble. The applicant told her he wanted her to be on her knees. She obeyed. He told her that she needed to be taught how to be a good girl. He took his clothes off, stood above her and put his penis in her mouth (count 1). The complainant said that her tooth must have caught his penis because it hurt him and he took it out.

19. The applicant then told her to lick his penis. He told her that she had to be taught to be a good girl and if she did not do what he wanted her to do, she would be in trouble. He ejaculated “in [her] face” and then reached over to the cot and got a cloth nappy which he used to wipe her face.

20. The applicant told the complainant to lie on the bed with her legs apart. She did what she was told because he “was abusive and if [she] didn’t do as told… he would flog [her]”. The applicant then lay down beside the complainant on the bed and put his finger in her vagina and moved it in and out (count 2), which hurt the complainant. She told him that it hurt her and to stop but he responded, “[a]ll girls have to be taught”.

21. At about this time, the complainant heard a car coming down the track to the house where the complainant’s family lived. She told the applicant that she had heard a car. He got up, dressed and told her not to say anything. The person in the car was the property manager. This was one of the first times on which there was sexual contact between the complainant and the applicant.

22. The complainant gave evidence that while she was in the applicant’s bedroom he would video tape what he did to her on a video camera which was positioned on a chair near the cot. He would also show her what he had filmed. In cross-examination, the complainant said:

“I knew that it was being recorded because the light on the video camera would flash red when it was recording.”

The complaint to the complainant’s mother

The complainant’s evidence

24. A few days after the incident comprising counts 1 and 2, RW and SiW, who were aged about 10 and 14 at the time, were at the house. The complainant gave evidence that she told her mother that the applicant had touched her and made her suck his penis. Her mother told her that she was a liar and “bashed” her and “flogged” her with a piece of hose.

An uncharged act

25. On another occasion, the complainant was in her bedroom when her mother called her to the main bedroom. Her mother was lying in the bed and the applicant was “lying beside her but across her”. When the complainant entered the room, she walked to her mother’s side of the bed and “the doona came down off her breasts”, which were naked. The complainant observed that, under the bedcovers, the applicant was touching her mother “where mum’s vagina would’ve been”. The complainant’s mother asked her to suck her breasts. The complainant said, “no” to which her mother said, “[w]ell you used to while you were a baby so what’s the difference now?” Because the complainant was scared, she sucked her mother’s breast for “[a] couple of seconds” before leaving the room. Her mother yelled out to her to come back and said that the complainant had “ruined it for [the applicant]”.

26. The complainant left the house and went to “the pine tree up in the paddock”, where she stayed until it got dark. When she returned to the house, her mother “bashed” her and “belted [her] with her fists, her hand” and the complainant went to bed without dinner.

27. The complainant agreed in re-examination that she had not told police about this incident when she made her statement on 24 August 1993 and explained that she did not include it “[b]ecause she was my mum”.

The move from the country cottage to the town

28. The complainant’s family eventually moved from the house on the property to a residence in the town of Wagga Wagga. The complainant’s youngest half-brother, RS, was born after this move.

Counts 3, 4 and 5

29. About two weeks before the incident described below as counts 6 and 7 and while they were living in town (in August 1993), the applicant “pulled [the complainant] into his room and … made [her] suck his penis” (count 5) and “would touch [her] breasts” (count 4) and “then he put his fingers inside [her] vagina” (count 3).

30. This incident was similar to others that had occurred on a daily basis when the applicant would make the complainant undress and he would also undress before sexually assaulting her.

Counts 6 and 7

31. Around 22 August 1993, the complainant’s friend, ES, was visiting her house. ES had to go out to check with her father whether she had to go home. While ES was on the balcony out the front of the house, the applicant called the complainant into his bedroom. He had just had a bath and was naked. He wanted her to rub his penis. She said no and told him that ES would be “back in a minute” because she did not want to do it. He said that he did not care and that he wanted her to lie on the bed. He put his fingers inside her vagina (count 6) and touched both of her breasts (count 7).

Other sexual assaults

32. The complainant also gave evidence in cross-examination of a sexual assault which occurred when she was ten years old (and therefore occurred between May 1992 and May 1993) which was video recorded by the applicant. The tape depicted the complainant naked on the bed, straddling the applicant while he masturbated her. His penis was not inside her. Some time after this event, SiW and RW arrived with PW in Wagga Wagga.

33. After PW had left to go to Sydney, the complainant put the tape in the video recorder in the lounge room and played it to the two girls. By that stage SiW was about 13 years old and RW was about 15 years old. SiW and RW were “horrified” and “very upset” by what they saw and told the complainant that they would tell her mother. They told the complainant’s mother in the complainant’s absence. On her return, “[the complainant’s mother] came outside and bashed [her] with a baseball bat for lying to them and showing them things that weren't true”. The complainant was kept home from school because of the injuries her mother had inflicted on her.

34. The complainant’s evidence that she had played the video tape to RW and SiW was not corroborated. RW recalled the complainant telling her about the sexual assaults but denied that she had been shown a video recording of any such assaults (see below).

The complaint to ES

The complainant’s evidence

35. After the conduct which constituted counts 6 and 7, the complainant went outside and told ES what had happened as follows:

“I said to [her] that he touched my private parts and that even if we had a fight that she couldn’t tell anyone, but I did ask her to tell her mum.”

36. After this disclosure, the complainant and ES went to the “shed” (a garage, which had a roller door) where the complainant showed ES the diary which she had kept hidden “in one of the beams behind all the drums” and which she had “prayed” her mother would not find. The complainant told ES that she could not do it anymore and that she “couldn’t handle it”. While ES was with her in the garage, the complainant wrote about the occasion which had just happened (counts 6 and 7). Photocopies of the pages from the complainant’s diary were tendered and marked Exhibit B. The notes read:

“[The complainant] has been saying no but he still continues to do it. Happen while mum[’]s not home.

4 years touching, happen every day. Got peeredes [periods] while being touched body, legs breast voulo [vagina] – kiss me.

I tell him no but even so after he makes me [promise] that I will not tell mum or an[y]one so he will not get into deep trouble

…”

37. Although the complainant could not, at first, explain the reference to “periods” (spelled “peeredes”), she said that she remembered a time when the applicant scratched the inside of her vagina and she bled. However, she did not begin menstruating until after the applicant left, when she was taken by the police and the Department of Community Services (DOCS) on 23 August 1993.

ES’s evidence

38. ES met and became friends with the complainant in grade 3 or 4 when they were attending the same school in Wagga Wagga. During this period, ES lived with her mother but would stay at her father’s place every second weekend. As ES’s father lived near the complainant’s home, ES would visit the complainant when she was staying with her father. By the time of trial (October 2019), ES had little recollection of the details of what occurred. For this reason, her evidence largely comprised portions of the statement she had made to police on 28 August 1993, shortly after the complainant had disclosed the sexual abuse to her.

39. ES gave evidence of the day on which the complainant told her about what the applicant had done to her. The complainant’s mother and the applicant had gone to a funeral that day, leaving the children in the care of a babysitter. Her evidence included the following from her statement to police dated 28 August 1993:

“When - we then walked back to the house and [the applicant], [the complainant’s] stepdad, got home from about 3pm from the funeral without [the complainant’s] mum. [The complainant’s] mum had gone to work from the funeral. After [the applicant] got home [the complainant] and I went back up, up the back of the house to the garage shed and [the complainant] said to me `[The applicant] has been touching me on the upper body and the lower body. He’s been kissing me and I feel scared, uncomfortable and I don’t know what to do’. She also said ‘Dad has made me promise not to tell anybody’. She said ‘This has been going on for four years, it’s been happening for about seven days a week’. [The complainant] also said that [the applicant] had been coming into her room early in the mornings after her mum had gone to work and touching her while her brothers were still asleep. [The complainant] sometimes called [the applicant] her dad. While she had been telling me that bit, a bit, that it had been going on for four years [the applicant] wrote some notes on an address book. She did most of the writing but I helped her with some words like vuolo. I learnt that in my child assault lessons - sexual assault lessons. [The complainant] has also told me that when [the applicant] touched her once she got her periods. We also wrote that down on the notes. Earlier she showed me a note that she had written when she was about five to her mum telling her that she wanted to run away. She showed me that and then screwed it up and threw it away”.

40. After this disclosure, ES contacted her mother and asked if the complainant could stay over. ES’s evidence (read from her police statement dated 28 August 1993) was:

“When we went back into the house from the shed [the complainant] said to [the applicant], ‘Can I stay at [ES’s] house the night?’ He said, ‘Run me a bath first’. [The complainant] ran him a bath and then he went and got in it. While [the applicant] was in the bath I heard [the applicant] call out to [the complainant] to come to the bathroom. He did this while we were playing outside - while we were outside playing French cricket. She then kept coming and out of the bathroom asking me questions but he kept asking her like, ‘Where does [ES] live?’ and, ‘Where is the house near?’ and, ‘Does her mum know that you want to stay at [ES’s] house the night?’ She would have gone in and out of the bathroom three or four times.”

41. ES’s evidence continued as follows:

“After a while we rang my mum and dad and we tried to ring [the complainant’s] mum at work to see if she could stay at my house the night because she wanted to. When it was dark I decided I should go home to dad’s. [The complainant] went into [the applicant’s room to see if she could walk with me to my dad’s flat. He said no. I then went out to the balcony at the front of the house and put my roller blades on to go home. I don’t know what time it was but it was dark. While I was on the balcony I heard [the applicant] say, ‘[the complainant], come in here’. I didn’t see her after that as we didn’t really say goodbye. I just went home and - I just went home and was only at dad’s flat for 5 to 10 minutes. I then went back to [the complainant’s] house on foot and when I got near her house she walked up the road and met me. She said, ‘He’s done it to me again’. I knew what she meant when she said that. She seemed worried like she didn’t know what to do. We then went inside her house and waited for a while for her mum to ring as she couldn’t be found when we rang her at work the first time. After about 20 minutes my mum and dad came to pick me up. [The complainant] couldn’t stay the night because we couldn’t contact her mum.”

42. ES also gave the following evidence from her police statement:

“When we were in the shed we ripped out the pages that [the complainant] had written in the address book and I put them in my back pocket. I showed them to my mum on Sunday night and then gave them to Mark Scott from Community Services when he came around on Sunday night.”

43. ES did not see the complainant again but she wrote her a letter which was tendered in the trial. She wrote:

“Dear [the complainant],

I wanted to ring you last night to tell you that I have told my mum what is happening to you. We would like to see what is happening to you stop so we have talk[ed] to our friend Mark. His job is to stop kids being hurt.

I really like you, [the complainant] and this is why I told my mum, so [the applicant] can’t do this to you anymore.

Your friend [ES].”

The complainant’s complaint to her maternal grandmother, PW

The complainant’s evidence of the complaint

44. When the complainant’s family was living in the town of Wagga Wagga, PW was living in Caloundra, Queensland. On one occasion, when the complainant was the only one at home, she rang PW. The complainant’s evidence was as follows:

“Q. What did you say to your nan?

A. I told her that he’d been flogging me and that he’d been touching me and that I wanted it to stop.

Q. What did your nan say?

A. She was shocked, but she told me - but I made her promise that she wouldn’t tell mum because mum kept bashing me ..(not transcribable).. – for saying - for saying it and so she said that she’d get me help, but I had to hold on.”

PW’s evidence of the complaint

45. PW gave the following evidence of complaint:

“[The complainant] rang me one night when I was at home and she was upset on the phone … and I asked her what was wrong. She said that she was getting into trouble from [the applicant] and then I asked her what, what was she getting into trouble for and she told me that [the applicant]’s been touching her and I said, ‘Right, you call me back’. I told her over the phone how to make a reverse charge phone call to ring her nan in Queensland and the operator will connect her, which she did, and … she rang me back and I said to her, ‘Right, if it happens again run out of the house, go to a phone box and tell the operator you want to talk to the police and they’ll put you through’, and it was after that that [the applicant] was first charged, I believe, I’m not certain on that.”

The report to police

The complainant’s evidence

46. On 24 August 1993, a couple of days after the complainant had told ES what had been happening, the police spoke to her and took a formal statement from her, following which she was sent to live in a foster home with foster parents. She stayed there for “several weeks” until the applicant left home. Her foster parents allowed the complainant to use a computer. She created a document on the computer, which read:

“once there was a girl she had a big problem with her dad she not lick [like] him doing things to her so she told the police. they put her in anther [another] home. She really [liked] them … they tried [treated] her [like] their own children and she was going back to her mum when it was all over and the [girl] and her mum and brothers went to Brisbane and live with nanna in her house so her dad did not see them [again].

By [the complainant].”

The police evidence

47. Detective Senior Constable Judith Jorgensen gave evidence on 16 October 2019 by reading her statement made on 27 August 1993 as follows:

“On Sunday evening 22 August 1993 I received a telephone call at my home from Mark Scott of the Department of Community Services in relation to an allegation of sexual assault made in relation to [the complainant]. On 24 August 1993 I spoke with Constable Byrne and Mark Scott in relation to the same allegation. That day I arranged for [the complainant] to attend the police station with Mark Scott where I spoke to her and Constable Graham obtained a statement from her. On 26 August 1993 I accompanied [the complainant] and Mrs Kay Brown to the Fernleigh Road Medical Centre where I spoke to Dr Geraldine Duncan. Dr Duncan then made an examination of [the complainant]. I then spoke to Dr Duncan and she told me certain things about the examination. I then returned [the complainant] and Mrs Brown home.

That afternoon I also spoke to [the complainant’s mother] and obtained a statement from her. About 5pm on Friday 27 August 1993 the [applicant] attended the police station and I spoke to him in the presence of Constable Byrne. I said, ‘I’m Detective Tyson and this is Constable Byrne. We are investigating a complaint made by [the complainant] in that she has told us that you interfered with her last Sunday and on another occasion two weeks ago. I want you to understand that you are not obliged to say anything unless you wish to do so but anything you say may later be used in evidence, do you understand that?’ He said, ‘Yes, that’s what I’m here for’. I said, ‘What do you care to say about those allegations?’ He said, ‘I’ve had advice from my solicitor not to answer any questions’. I said, ‘Do you not wish to take part in an interview?’ He said, ‘That’s right but I’d like to say that I am innocent’. I said, ‘You are under arrest for aggravated sexual assault and indecent assault with a person under 16, do you understand that?’ He said, ‘Yes’. I said, ‘Will you now come with us to the charge room where you’ll be charged?’ He said, ‘Yes’. The [applicant] was then charged.”

48. Detective Jorgensen was not cross-examined.

49. Detective Sergeant Genevieve Graham (who in 1993 was a uniformed police constable) identified the typed transcript of the interview of the complainant which she conducted at the Wagga Wagga Police Station, which commenced at 2.20pm on 24 August 1993 at which Mr Scott from DOCS was present.

50. The complainant acknowledged in her cross-examination that, in August 1993, she told Detective Graham that she did not like the applicant, that she “liked living at home but only with him out of the house” and that she was “glad to see the back of him”.

The internal examination of the complainant by Dr Duncan

51. Dr Duncan conducted an internal examination of the complainant on 26 August 1993, following which she prepared a report dated 30 August 1993 which was tendered in the prosecution case.

52. Dr Duncan recorded the history which the complainant gave her when she attended for the examination on 26 August 1993 (in the company of her foster mother and a female police detective), which included that the complainant had tried several times to run away from home and had been beaten by the applicant on her return. Dr Duncan also recorded:

“Some time ago, her step-father also began sexual harassment. He used to say ‘This is our little secret. I’ll kill you and everyone else if you tell.’ She eventually told a girlfriend at school, who told her mother, who told the Department of Youth and Community Services that this was occurring. The sexual advances took the form of touching the bottom half of her body and the top half of her body feeling her breasts. He would feel inside her vagina with his fingers. He also made [the complainant] touch his penis and from [the complainant’s] description it seems that he would ejaculate when this was occurring. [The complainant] said that she was told that it was good for his back. It was not completely clear to me whether this man penetrated [the complainant’s] vagina with his penis but my understanding from the conversation was that he didn’t, that it was always digital penetration. Attempts at rectal penetration, I gather, did not occur.”

53. Dr Duncan noted that at the time of the examination the complainant had not started menstruating. On examination she noted damage to the hymen which was evidence of injury and “relevant when you are dealing with a sexual assault case”. She also confirmed that genital areas may bleed if scratched with a fingernail. She also noted a scratch to the left fourchette.

The complainant’s return to her mother’s household

54. After the applicant had left the complainant’s family home, the complainant was removed from her foster parents and sent back home to live with her mother. The complainant said that after her return to her mother’s place, she and her mother went to visit a friend of her mother’s, Amanda. The complainant gave the following evidence:

“They told me that it was physically impossible for [the applicant] to do what I said he did and that if I didn’t go down and tell the police that I lied that he would go to gaol and catch diseases and mum said that he’d come back and kill us all.”

The retraction statement

55. Following this conversation, the complainant’s mother took her to the police station so that she could speak to police. As the complainant put it, “[m]um made me retract my statement.”

56. The complainant made a further statement, of which she said:

“I told them that I lied and that I was sorry. … I’d lied about everything that [the applicant] - that I said [the applicant] had done.”

57. In cross-examination, the complainant agreed that she had said the following in her retraction statement but maintained that it was not true:

“4   In August 93 I came down to the Wagga Police Station and made a statement to a police lady named Genevieve about my stepdad [the complainant]. I told her that he had touched me on the body and that he hit me and mum. I also said he hit the boys, the boys my three brothers, [DS], [BS] and [RS]. I also told her the last time it happened, where it happened and how long it had been going on for.

5    Today I want to tell you the truth about what happened. He didn't do any of what I told Genevieve. He did hit me one time but only because I went to [H’s] place after 5 o'clock without telling him and I deserved to get that hit because I was away for a long, long time and he was worried about me. I made the story up because I want my mum, my real dad, [TA], and me to be together and live in Brisbane as a family and I know that this is not going to happen. I got the idea from Megan, a friend at school. Something like that really happened to her and now she's living with foster parents.”

58. The retraction statement also included the following:

“On Sunday, 31 October I was at home in my bedroom and I was thinking about what happened to my mum and dad and what I said. I felt bad about what I was putting them through so I decided to tell mum the truth and the truth is it didn't happen at all.

I PROMISE THAT WHAT I HAVE TOLD YOU TODAY IN THIS STATEMENT IS THE TRUTH.”

59. In cross-examination, the complainant said that she was “coerced to change [her] statement”. She described herself as “an 11 year old girl trying to make sense of shit” and said that her retraction statement was “worth nothing than the paper it’s written on”.

60. The complainant accepted that the words about deserving to be hit (in paragraph 5 of the retraction statement) came from the applicant who had “drummed that into [her] head”. She recalled that he said, “I only hit you when I need to, when you deserve it, when you’re naughty”. The complainant said, “I copped that all my life”.

61. The complainant explained in cross-examination that she did not want her natural parents to be together (as referred to in paragraph 5 of the retraction statement) because TA was married and she knew that it was not going to happen because her “parents were never together”. When asked about the provenance of that portion of the statement, the complainant said:

“My mother and her friend Amanda had - had me at Amanda’s place in [location of the unit] in the unit and I was told that what I have said that [the applicant] had done was physically impossible and they gave me a scenario that I had to say that I was just basically a spoilt child and that I wanted my parents back together again.”

62. The complainant said in cross-examination of her statement that she “got the idea from Megan”, “[w]ell, I never had a friend called Megan and none of my friends or people that I knew at that time had been taken and put into foster care”.

63. When asked if she could recall where her mother was when the police officer was taking the statement from her, the complainant said:

“Honestly no, but I do believe she wouldn’t have left me alone with the police. I know that - I know I was intimidated, I know that I was scared.”

64. The complainant explained why she signed the statement as follows:

“Because my mother was abusive all of my life and I was scared of her and if I didn’t do what she told me to do then there was no way out for me.”

65. The complainant also gave evidence that the prospect that the applicant would come and kill them all was on her mind when she made the retraction statement.

The complainant’s visit to Queensland over the summer of 1993/1994

66. At the beginning of the Christmas holidays in December 1993, the complainant was sent to Brisbane to spend Christmas with her biological father, TA, who worked on a fishing trawler, and his parents (with whom he then lived). At some point, her father had to leave to work on the trawler so he left the complainant with a female friend of his who lived in Caboolture while he was out to sea.

The applicant’s admission to his family in December 1993 at his mother’s place

The complainant’s evidence

67. While the complainant was at Caboolture, the applicant (whom the complainant had not seen since she was in Wagga Wagga) came to collect her in his mother’s car. The applicant took her to his mother’s house, which was nearby. The complainant referred to the applicant’s mother as “gran”. The complainant’s three half-brothers were there with their grandmother and the applicant’s brother, MS.

68. For a while, the complainant was outside, playing with her half-brothers and a dog but at some point she went inside the house to the kitchen where the applicant, MS, and their mother were. The complainant’s evidence was:

“[The applicant] said that there was something that he wanted to tell them and got their both - got both their attention. … [The applicant] said ‘What [the complainant] said I did I did’.”

69. According to the complainant, MS walked into his room without saying anything and their mother told the applicant to “stop being so stupid, then turned around and started making - finished making the coffee or tea, whatever she was making at the time”.

70. In cross-examination, it was put to the complainant that she was happy to see the applicant on 22 December 1993, to which she responded, “I was more happy to see my brothers”.

The applicant’s mother’s evidence

71. The applicant’s mother (who was 79 at the time of trial) recalled an occasion shortly before the wedding of the applicant’s sister, GS, and her fiancé, AE, (on 24 December 1993) when the complainant and the applicant were at her home in Morayfield, near Caboolture. She was not on speaking terms with the complainant because of the allegations which the complainant had made against the applicant and “still felt a bit unforgiving of her at the time”. She agreed that it was “all still pretty raw” and that she “didn’t want to get into anything and probably say something [she would] regret”. Her evidence was that she did not recall the applicant saying that he did what the complainant had said he had done or that she had responded by telling him not to be stupid.

The evidence of the applicant’s youngest brother, MS

72. MS gave evidence that he had no recollection of the applicant saying anything in the presence of his mother and the complainant. He said that he was “nowhere near them” when the applicant was speaking to their mother. MS said that in September 1993 to December 1993, the applicant and his three sons had been living with the applicant’s mother.

73. MS identified a photograph of the applicant and the complainant which was taken at his mother’s house in Avondale Street, Morayfield on 22 December 1993, which was marked Exhibit 1. The photograph depicts the applicant with his arm around the complainant, who was smiling.

74. The complainant was asked about the photograph as follows:

“Q. And you seem to be very happy to be in each other's company?

A. I can't imagine why but yes; judging from that photo, yes. Can you take that away please? I don't want to look at it.

HER HONOUR

Q. Just turn the photo over facedown. Do you want to take a break to compose yourself, [the complainant]?

A. No ..(not transcribable)..

KING

Q. That photo depicts a scene which is contrary to the scene that you have portrayed; do you agree with me about that?

A. Yeah, if you're saying at that time, well, then, yeah, very much so; very much so.”

The applicant’s admission to his family at Caboolture Window Tinting in December 1992

75. The applicant then took the complainant to a solar tinting shop (for tinting car and house windows) in Caboolture to see GS, who worked there with AE, and DS, another of the applicant’s brothers.

The complainant’s evidence of the admission

76. The complainant’s evidence was:

“[The applicant] was talking to [DS] and [GS] and he said the same thing that he said for his mother ‘What [the complainant] said I did I did and I’m sorry but, you know, I did it’. [DS] lost his head, he ..(not transcribable).. swearing and, you know, cursing [the applicant] out and he walked off, and [GS] just was kind of dumbfounded I think, she sat in the chair and she didn’t know what to say. She couldn’t say anything.”

77. She also adopted the contents of her statement to Senior Constable Powell on Monday 14 October 2019 (made during the course of the trial) as follows:

“[DS] lost the plot and started yelling abuse and swearing at [the applicant]. I can't remember the exact words he said. [GS] sat down in a chair, I think she was blown away, I didn't know what to say. [The applicant] and I left. He had no reaction to [DS]. [The applicant] walked away as though nothing had happened.”

GS’s evidence of the admission

78. GS’s evidence of this incident was that the applicant and the complainant arrived at the shop unexpectedly. GS thought it was strange that they were together because she knew of the allegations which the complainant had made against the applicant, that he had been charged and that the charges had been withdrawn. Her thinking at that time was as follows:

“[The complainant] was a little girl, she was still a very little girl, she was nine years old I think then and it confused me why she would be with my brother, she is not my brother’s biological daughter and I didn’t understand why [the applicant] had her in his custody, what she was even doing in Queensland when her family is in New South Wales.”

79. GS gave evidence of the following:

“[The applicant] came in and said, ‘I wish to let you know that I did do the things to [the complainant] that she said I did’. … I understood that was reference to him actually sexually abusing her.”

80. GS’s reaction to this information was:

“I just felt sick, sick, upset. I think I left the room and went to the toilet [and vomited].”

81. When asked when she became aware of the allegations which the complainant had made against the applicant, GS said:

“I am not sure of the exact date but earlier in the year, my mother contacted me and said that [the complainant] had accused [the applicant] of interfering with her and would I write an affidavit saying that I did not believe that this was true and that I believed that [the complainant] had lied.”

82. GS confirmed that she had provided the affidavit as requested and had either posted it or provided it to her mother prior to the occasion referred to above in the tint shop.

83. GS was cross-examined about why she had sworn the affidavit saying she believed that the complainant had lied in the following exchange:

“Q. You yourself were able to observe occasions where [the complainant] lied to you about various things?

A. Yes, but no more than what children of that age do lie about.

Q. But what I’m asking you questions about here, [GS], is the basis of your opinion that you gave in an affidavit form that [the complainant] was lying?

A. The basis of my opinion that [the complainant] was lying was based on the fact that her mother used to always say that how much of a liar [the complainant] was but I found that other than normal children, childhood lying, as in, you know, did you eat that chocolate cake, no I didn’t, and she’s standing there with a big ring of chocolate around her mouth, to me is just a normal childhood lie so it wasn’t excessive lying.

Q. So it was partially formed by your own experience and also by things that [the complainant’s mother] had told you over the years?

A. It was based on believing the trust that my brother wouldn’t do something like that to a little girl and the fact that her mother constantly said that she was a liar is why I wrote that statement.”

84. GS agreed in cross-examination that she was very relieved to learn in 1993 that the charges against the applicant had been dropped.

85. GS provided a statement to police in July 2016 about the matter. In her evidence at trial she confirmed that she held firmly in her memory the occasion on which the applicant had made the admission. She was cross-examined about her recollection, having regard to the time between December 1993 and July 2016 in the following exchange:

“Q. That’s a long time between the event and the recording?

A. It’s not a nice thing to discuss and it’s not a nice thing to admit that that’s what your brother admitted to.”

86. The applicant’s trial counsel sought to challenge GS’s recollection of the applicant’s admission. GS was adamant that she recalled it, as evident from the following passages:

“Asking me over and over and over again is not going to change the fact of what he did admit to doing to [the complainant].

…

Q. All you can remember is one sentence spoken by your brother, that’s it, that’s it?

A. Yes because it is actually - it’s etched, etched in my brain.”

AE’s evidence of the admission

87. AE, GS’s husband (then her fiancé), gave the following evidence about what occurred:

“It was in 1993, about a week before our wedding I was then in the office area with GS and her brother, DS, and her brother, [the applicant], walked in with [the complainant] and said, ‘I did do what [the complainant] said I did’. I left the room, I thought this is a conversation best left for family. I just left the room and I went out - just stood in the work area and then [GS] came out a short time later really upset and went to the bathroom and was physically sick. I don’t remember too much more about it.”

88. AE also gave evidence about the effect of the admission on GS, as follows:

“Well, I was basically - I - I - I hadn’t - I didn’t know what [the applicant’s] character was. I - I do believe that he was - there was trouble regarding something regarding [the complainant] previous to the time I met him and at that stage I think [GS] - I only know going from her side, she believed he was innocent, it was her brother and what have you, she’d never seen anything untoward and I think that’s what shocked her so much when [the applicant] came in, because the case had been dropped apparently. Then when [the complainant] came in with [the applicant] I found this more - you know, at the time, that’s what really shook [GS] up because she honestly initially had thought that [-] [the applicant] was her brother [-] and she’d never seen anything like that but she hadn’t seen him in years previous to when he came up and, yeah, so - and that’s what really knocked her socks off her really because she - she’d believed him innocent and he came in and confessed that he’d done what he did and that traumatised [GS].”

89. AE was repeatedly cross-examined about what had occurred and GS’s reaction. He said, in part:

“All I know is [GS] was traumatised, she was traumatised, all I can do is put my arm around her, I can’t add to the conversation. She was telling me that she believed him innocent and then this landed on her lap just before her wedding and she just - she felt sorry for [the complainant], she really felt sorry for [the complainant].”

90. AE confirmed in cross-examination that his police statement was given on 27 July 2016 and that he had been telephoned by Detective Anna Smith prior to that and questioned about what occurred. The relevant part of his statement was:

“[The applicant] walks in with [the complainant] and then he says, ‘I did do the things that [the complainant] said I did.’”

DS’s evidence of the admission

91. DS (one of the applicant’s younger brothers) was in the office area of the tinting business with GS and AE when the applicant walked in with the complainant. DS described his reaction to the complainant’s presence as follows:

“… at that time I idolised my brother [the applicant], looked up to him, so to have a person make allegations against him obviously was an attack on me as a family member as well so naturally my back got up so if I came across [the complainant] I was prepared to be hostile and not engaged so when I did I was already in that frame of mind.”

92. DS’s evidence as to what then occurred was:

“[GS] and [AE] were also present and [the applicant] said he had to tell us something and then said words to the effect that what [the complainant] is accusing him of he has done and for us to stop making life hard for her.”

93. As far as DS knew, the arrival of the applicant and the complainant was “unexpected”. DS confirmed that he knew that the complainant had alleged that she had been indecently and sexually assaulted by the applicant and explained, “that’s why myself was not talking or engaging with [the complainant] because I believed her to be a liar”. DS understood that the reference to giving the complainant a hard time arose “because we weren’t talking to [the complainant when] she’d came up and as I said me personally and other family members were not interacting or engaging with her because of the allegations”. DS’s evidence was that he was “shocked but also confused and hurt you know even at the time I was still trying to be in denial of it”, in part because the applicant was older than he was and DS, who was then 23 years old, “looked up to him to an extent”.

94. DS never spoke to the applicant about this admission again. He agreed that he had made a statement to police on 29 July 2016.

Hearsay evidence of SB (GS’s son) as to the admission

95. Hearsay evidence was also elicited in cross-examinations of the complainant and of Detective Smith that GS’s son from a previous relationship had overheard the applicant admitting to having sexually assaulted the complainant as he was in the back room of the solar tint premises when the complainant, the applicant and other members of his family were at the front of the premises when the applicant made his admission. Detective Smith said that the complainant told her that she had spoken to SB in 2013 and SB had told her he overheard the admission. Detective Smith said she obtained this same version directly from SB.

The complainant’s residence in Queensland

96. After their visit to the solar tinting shop, the applicant took the complainant back to his mother’s place and then back to TA’s friend’s place where she had been staying. Afterwards, the complainant returned to TA’s parents’ place “because dad was home” before her paternal grandparents drove her to PW’s place where she “lived from then on” without her mother, the applicant or her half-brothers.

97. During the Christmas holidays, there was an occasion on which the complainant saw her mother, the applicant and her half-brothers again. The complainant was at PW’s place with aunts and uncles and their spouses (PW’s evidence was that she was not there as she was at work when they came). The complainant’s mother arrived unexpectedly with the applicant and their three sons. At that point:

“[The complainant’s maternal uncle, PaW] come flying down the stairs and abused mum for having [the applicant] there.”

98. The complainant’s mother said to the complainant, “Give your father a cuddle”, referring to the applicant. The complainant “didn’t go near him” and the group then left.

The complainant’s return to Sydney

99. The complainant lived with PW for about a year in Queensland before returning to live with her mother in Wagga Wagga. PW’s evidence about the reason for the move was as follows:

“[The complainant] came up to - she came up to live with me, this was after [the complainant’s mother] and [the applicant] had separated, and she come to live with me but things were not working out there because I was a chef for 30-odd years, okay, so I worked shift work and it just was not working out with her and my youngest daughter, well just two girls and there’s not too many years between them and they were just like a pair of cats, so it was safer for me to send her back to her mother, which I did.”

100. By the time the complainant was 17, she was living with her mother in Newtown in Sydney. For a period around that time, PW lived with them before moving into her own place nearby.

The further trip to Queensland

101. The complainant had had no contact with her half-brothers since she saw them last in Queensland (in the incident referred to above) but was “keen to maintain contact” with them. AS, another of the applicant’s sisters, gave her a phone number for her half-brothers so that she could do so and she maintained phone contact with them for some time.

102. In September 1995, the complainant wrote to her youngest half-brother, RS, to wish him a happy fifth birthday (she was, at that time, in year 7, and was 13 years old). She wrote:

“Dear [RS], hi there, mate. What have you been doing lat[e]ly? So your [sic] tunring [turning] the Big 5. Ya getting old baby. So how is [DS], [BS] and Daddy. Tell Them I said Hi!! I miss you heaps baby I'll try to get up and see you at Christmas time. Okay. I miss you all and love you all and don't forget it. Try to be a big boy for me. So how is school. Guess what, I'm in year 7 now and I've got a boyfriend and his name is [B]. He is really nice and very good looking. Well, I've got to go ok but I'll write more now I know where u’s live, okay. See ya, baby’s.

[The complainant]

PS write to me at [address] - get daddy to post it, okay.”

103. When it was suggested to the complainant in cross-examination that she still called the applicant, “Daddy”, she responded that she used that term because the applicant was RS’s father. The complainant rejected the applicant’s trial counsel’s suggestion that the reference to missing them “all” included the applicant and said she was referring to DS, BS and RS, who were “my baby brothers who I looked after from the day they were born”.

104. When the complainant was about 17 years old, the applicant offered to pay for her to fly from Sydney to Brisbane to see her half-brothers. By this time, she was calling the applicant by name rather than “dad”. She spent about eight weeks in Queensland during which she stayed at times with the applicant, who lived with her three half-brothers, and also with her maternal uncle, PaW. During that period, the applicant was at work five days a week and her half-brothers were at school so she saw them after school. Her evidence was that the applicant was “hardly ever at home even at night”. There were no incidents between her and the applicant while she was staying there.

105. When it was put to the complainant in cross-examination, that (if her allegations were true) she would not want to sleep in a house where the applicant was, she answered:

“I was 17. I wasn't scared of him anymore. He couldn't hurt me anymore and my love for them boys to know that they're okay was stronger than any fear that I ever had.”

106. The applicant’s trial counsel put to the complainant in cross-examination that she had never talked to the applicant about the sexual offending. She rejected that proposition and said that while she was staying there, she and the applicant talked about “this past history” when the boys were in bed. She asked the applicant, “Why? Why me? Why did you do it to me?” and he responded, “Because I thought you enjoyed it”.

107. The applicant’s mother saw the complainant at the applicant’s house during this period. When asked about the relationship between the applicant and the complainant at that time, the applicant’s mother gave evidence that “[the complainant] always called him dad. It was always friendly”. This was contradicted by the complainant’s evidence that she had stopped calling the applicant “dad” by this time). The applicant’s mother also recalled a conversation with the complainant, in which the complainant had said to her, “I’d like to live here with dad and the boys because I don’t like living with mum and her new boyfriend” and “I had to tell mum’s new boyfriend that I was coming to visit me three cousins.” The applicant’s mother agreed that while the complainant was in Queensland for this period, she spent a lot of time with “the boys” (her half-brothers) and also spent time at PaW’s residence.

The subsequent police investigation from 2013

108. On 8 July 2013, the complainant phoned the Wagga Wagga Police Station. In cross-examination, she explained why she had made the call as follows:

“… I have nightmares and flashbacks of my childhood and [her then partner] had spoken to me repeatedly about it and that he wanted me to get help. So I went to the doctors, I got onto some antidepressants. … I was taking Valium at the time … for my anxiety and … we had a conversation that maybe I needed to have some kind of closure about this and that prompted me to go to the police and take the avenue I did.”

109. At the time of making the call, the complainant was 31 years old and homeless. She had a number of children, each of whom had been taken away by DOCS. She spoke to Sergeant Byrnes and told him that she “wanted to come in and see somebody about reopening a case that happened many years beforehand”.

110. At that time, the matter was allocated to Detective Smith. On 10 July 2013, the complainant made a statement to Detective Smith. The complainant agreed that when she made this statement, Detective Smith did not have the old file with her. This statement had the effect of restarting the investigation, which had stopped as a consequence of the retraction statement in 1993, about 20 years previously. When Detective Smith became aware that the complainant had made a statement as a child, she obtained the original file from State Archives because she wanted to read the witness statements at the time of the original complaint.

111. The complainant accepted in cross-examination that in her statement in 2013 she did not mention the admissions which the applicant had made to members of his own family in her presence in December 1993. The following exchange occurred:

“Q. You didn't say it all in 2013 did you?

A. I was worried about what I could prove. I didn’t think his family would even [ever] turn around and say yeah, he did admit it to us.

Q. Didn't you regard an admission as pretty good proof?

A. That's if they agreed to it. If they would back me up on it. Being that family they back each other up on everything, they're just them.”

112. The investigation stalled until 2016. Detective Smith explained that “we couldn’t further the case beyond the original”.

The 2016 police investigation

113. Detective Smith gave evidence that when “further evidence … came to light over time”, the case was re-opened.

114. The police case narrative recorded what had prompted the complainant to contact police again (which constituted the “further evidence”) as follows:

“[The complainant] contacted police having had a conversation with [SB, GS and AE’s son]. [SB] told her that he was a witness to a conversation where [the applicant] admitted to having sexually assaulted [the complainant]. [SB] said that his mother, [GS], and his uncle [DS], were there when the confession was made.”

115. The police also noted the following:

“[SB] tells police that he was at his mother's place of work, Caboolture Window Tinting, when [the applicant] attended with [the complainant]. [The applicant] started to cry and told [GS] and [DS] that he had been charged with sexually assaulting [the complainant] in Wagga Wagga and that it was all true. [DS] threw a carton of milk at [the applicant] and said, ‘This family is fucked.’”

116. The complainant agreed in cross-examination that, in 2016, SB had contacted her and told her that he had overheard the applicant’s admission at the solar tinting shop as he was sitting in the back room of the premises. The complainant was unaware of his presence at the time.

117. On 13 April 2016, the complainant made a further police statement which dealt with her reasons for making the retraction statement. She made subsequent statements to police dealing with discrete issues. The complainant was extensively cross-examined by the applicant’s trial counsel about discrepancies between her evidence in chief and what she had said in her police statements, including as to timing, season and clothing.

118. As a result of speaking to the complainant and SB, Detective Smith appreciated that there were potential witnesses in Queensland who needed to be located and interviewed as part of the investigation.

119. In about July 2016, Detective Smith telephoned GS and questioned her about what the applicant had said in December 1993 in the tint shop. When the statement had been prepared, Detective Smith emailed it to GS, who signed it and emailed it back. A similar process was adopted with other witnesses who lived in Queensland.

120. Detective Smith also gave evidence that the police notes recorded that RW had told police that she recalled that the complainant had told her about the sexual assaults and that RW had witnessed physical abuse. According to the notes, RW recalled that the complainant’s mother and the applicant had a video camera but denied ever having seen or been told of a video recording of the sexual assaults.

The complainant’s mother’s evidence

121. The complainant’s cross-examination was ultimately completed on Friday 18 October 2019, the fifth day of the trial, after having been deferred to permit other witnesses to be interposed. All of the evidence summarised above apart from that of Detective Smith was called in the prosecution case before the complainant’s mother was called. Detective Smith was the only prosecution witness called in the prosecution case after the complainant’s mother was called.

122. Before calling the complainant’s mother, the prosecutor said:

“I would indicate from the outset, your Honour, I anticipate I will ultimately need to make an application pursuant to s 38 [of the Evidence Act 1995 (NSW) regarding unfavourable witnesses] with this witness, potentially, and as I understand it she has received advice in respect of her rights under s 128 [of the Evidence Act regarding the privilege against self-incrimination], but your Honour may wish to clarify that with her. I wouldn’t expect I would be getting to [s] 128 matters until some way further. There’s some non-controversial matters I'll be leading initially, but ultimately there will be some controversial matters, I understand.”

123. The complainant’s mother gave evidence that the complainant was born in May 1982 and that TA was her biological father. She and TA started seeing each other at the age of 13 and split up when she was 14 before she realised that she was pregnant with the complainant, who was born when she was 15. They got back together when they were 17 and became engaged but the relationship lasted about a year. Throughout, the complainant’s mother was living with her parents.

124. In 1985, when the complainant was three years old, her mother met the applicant on a Friday night at a hotel in Deception Bay when they were introduced by a security guard who was one of the applicant’s brothers-in-law. The complainant’s mother and the applicant went to Cairns for about five months, leaving the complainant with PW. She gave evidence of the birth of her three sons and the move to Wagga Wagga. After living in a flat in town, they moved to a small two-bedroom house on a country property out of Wagga Wagga. She and the applicant shared a bedroom, where there was also a cot for the youngest boy, and the complainant shared a bedroom with the older of her two half-brothers. At times other family members stayed with them. They moved into town in about 1993.

125. The complainant’s mother gave evidence about finding out in August 1993 that the complainant had made allegations against the applicant and being told by detectives that the complainant was in temporary foster care. She recalled that the complainant was in foster care for less than two weeks before the applicant left Wagga Wagga for Brisbane, taking their three sons with him.

126. The complainant’s mother was asked about the retraction statement and accepted that she must have taken the complainant to the police station. She said that she had not read the complainant’s first statement to police made on 24 August 1993 because she “didn’t want to believe that it had happened and … didn’t believe her, so [she] didn’t read it”.

127. The following exchange then ensued in her evidence in chief:

“Q. If DOCS had not required [the applicant] to leave the premises, would he have remained living there?

A. Not for too much longer. I'd already made a few attempts to get myself and the children away. I had no family that I could rely on. I asked [the complainant’s] father to help me back when we were at [the country house]. He said he would. I waited for him for many, many months. I had bags packed and up underneath the house ready to go. I watched that road, I watched that track and I waited. When it became clear that he wasn't coming was when I took the job at the Tolland Hotel and knew that it was up to me and that I didn't have anyone that I could rely on, that it was me and that was it.

Q. That was before [the complainant] had made her allegations in 1993?

A. That's right.”

128. At that point, the court adjourned until the following Monday 21 October 2019. When the court resumed on 21 October 2019, the prosecutor asked the complainant’s mother why she packed her bags, to which she responded:

“Because I wanted to leave. I was frightened … of [the applicant], he said that he would shoot and he would shoot the children if I - if I attempted to leave him and—”

129. The applicant’s trial counsel objected to the evidence on the basis that it was “new material” which was “completely unexpected and completely against the tenor of the witness’ statements to police … [and] completely contrary to things that she has told the police about their relationship during the course of this investigation.” He said further:

“We've been given no notice of it at all, there's nothing in her statements about it. It is extremely significant material potentially if accepted by the tribunal of fact. But it is entirely inappropriate that it arise in the course of a trial.”

130. The trial judge stood the matter down in order that a statement could be obtained from the complainant’s mother and served on the defence. After the luncheon adjournment, a six-page statement was served on the defence by the prosecution. The final paragraph of the statement indicated that it had been induced, as follows:

“I was informed prior to making this statement that nothing I said or any information I gave in this statement will be used in any criminal proceedings against me in any Court of New South Wales except in certain circumstances. I was informed that the inducement operated for the purpose of this statement, and that on that basis the inducement has now ended.” (Exhibit EE on the voir dire, which was provided to this Court and marked MFI#2)

131. The applicant’s trial counsel identified the following matters which the statement dealt with and sought that the matter be adjourned overnight:

1. abuse, threats and coercion by the applicant;

2. the applicant’s access to firearms;

3. the circumstances of the retraction statement; and

4. the incident which implicated the complainant’s mother.

132. On the following morning, the applicant’s trial counsel applied for the trial judge to recuse herself and vacate the trial. He submitted that, if the complainant’s mother’s latest statement had been disclosed before the beginning of the trial, a different approach would have been taken in respect of “two significant witnesses” and that there would need to be a “considerable recalibration of the defence case” which would not be a “contradictory case” but “one with very much a different emphasis”. He submitted that the applicant needed an opportunity to “present his case as he chooses to do so not a case that is forced upon him by circumstances mid-stride”.

133. In response the prosecutor submitted that each of the matters in the new statement had been canvassed already and that it was not an unusual circumstance that the evidence changes throughout a trial. He submitted that it was difficult to see how the new statement would change the way in which the complainant was cross-examined, given that the defence case was that none of the acts charged occurred. The prosecutor submitted that an adjournment would be sufficient and that the Crown was prepared to have any of the prosecution witnesses made available for further cross-examination, if required. He emphasised the benefit of a trial by judge alone in such a circumstance.

134. In reply, the applicant’s trial counsel said, in part:

“We don't have to tell anyone what our defence is. And we shouldn't be made to do that mid-trial. I have put our case as it exists, I would have put different emphasis on matters with the complainant and other witnesses because of some of the material here. Can I say, this statement is contrary to almost everything else that [the complainant’s mother] has said to police in the past.”

135. The trial judge stood the matter down until noon and delivered an ex tempore judgment refusing the application. In her reasons, the trial judge noted that the applicant had applied for a trial by judge alone and that the Crown had consented to the application (thereby mandating that the trial would be by judge alone: s 132(2) of the Criminal Procedure Act 1986 (NSW)) “due to the potential contentious nature of evidence of certain witnesses and in particular the complainant's mother”.

136. The trial judge’s reasons included the following:

“It is agreed that were this a trial by jury there would have been an immediate discharge and of that there can be no doubt. This is, however, a trial by judge alone. I am both arbiter of the law and the facts. I accept it is not for the defence to disclose how it intends to conduct its case but thus far it is clear from the cross-examination of the witnesses that the accused denies these incidents ever occurred, denies that he had an opportunity to commit the offences alleged, asserts that the complainant was a child with behavioural problems and was a known liar, and as I have already said, disputes that he ever made admissions of committing the offences alleged to his family.

Whilst I accept the evidence of this witness did take everyone by surprise it is not such that it cannot be met by way of further investigation if the defence is given an opportunity to conduct further inquiries before cross-examining the witnesses. Witnesses in trials can often change their evidence significantly, taking both the Crown and counsel by surprise. That is not unheard of. Any prejudice to the accused arising from the fresh evidence which might be put to other witnesses can be overcome by the recalling of those witnesses by the Crown including the complainant. There is little by way of inconvenience to many of the other witnesses as they have already given their evidence by way of AVL. The trial can recommence on very short notice before me in Campbelltown subject to the availability of counsel and therefore any delay occasioned by an adjournment would be minimal.

This is a matter which has had a tortuous history. These are allegations said to have occurred 30 years ago. Justice delayed is justice denied. Any prejudice to the accused can be ameliorated by the adjournment of the proceedings. The defence case has not yet commenced. There will be ample time for defence to recalibrate its case in those circumstances.

164. I turn now to address the specific matters raised by Mr Walker (set out above).

Alleged discrepancies in the complainant’s versions to police

167. As to (1), having considered all of the evidence, I am not persuaded that minor discrepancies as to timing or acts are such as ought to have caused the tribunal of fact to doubt the complainant’s credibility or reliability as to the offences charged. It was open to the tribunal of fact, including by reason of the directions in s 293A and s 294 of the Criminal Procedure Act and the matters referred to in Reed v R and BCM v The Queen, to consider that the complainant’s memory of the events was affected by time and that she was able to remember further details as time passed but that these variations did not impugn her reliability.

The import of the retraction statement

168. As to (2), the evidence of the circumstances of the retraction statement is set out above. By its very nature, a retraction by a complainant is forensically significant: it may indicate either that the complainant has actually lied and wants to set the record straight; or that the complainant has been subject to pressure, often from an assailant or those associated with the assailant, to withdraw the original statement. If the former, it is a powerful piece of evidence which weakens, and usually destroys, the prosecution case; if the latter, it tends to strengthen the prosecution case. It is evident from the verdict (and confirmed by the trial judge’s reasons) that the tribunal of fact accepted that the retraction statement was false.

169. Having regard to the whole of the evidence, I do not regard the making of the retraction statement as impugning the credibility of the complainant. Indeed, it tended to support her evidence of the physical abuse which she had suffered at the hands of her mother during her childhood and the extent to which her mother was prepared to act to the complainant’s detriment in order to protect her relationship with the applicant.

170. Further, it was open to the tribunal of fact to regard the applicant’s admissions which were made shortly after the making of the retraction statement as establishing its falsity. After the applicant’s family became aware, in about late August 1993, of the complainant’s allegations against the applicant, they turned their back on the complainant and sided with the applicant. This circumstance caused tension in the family as well as between the complainant’s mother and the applicant because none of the applicant’s family members wanted to engage with the complainant because they each thought that she was a liar (and GS had gone so far as to swear an affidavit to that effect).

171. In this context, it was open to the tribunal of fact to consider that the applicant was motivated to come clean with his own family members so that they would not remain hostile to the complainant (by “giv[ing] her a hard time”, as he put it). Further, it was open to the tribunal of fact to consider that the applicant believed that, once he had admitted the truth of the complainant’s allegations, his own family would, once again, accept the complainant as his step-daughter and that there would be no adverse ramifications for him because, first, his immediate family would not disclose his admissions out of loyalty to him and, second, he could rely on the complainant’s retraction statement. Indeed, it would appear that the complainant expected that all of the applicant’s family members would deny his admissions to them and that no one outside the family would believe her that the admissions had been made. It was open to the tribunal of fact to reason that, in light of the applicant’s admissions, the retraction statement must be false and that the complainant’s original allegations were true.

The evidence of the complainant playing the video recording to RW and SiW

172. As to (3), the complainant gave evidence that she played the video recording of the applicant committing sexual acts on her to her aunts, RW and SiW. Detective Smith made a note to the effect that although RW remembered that the applicant had a video recorder, she denied that the complainant had played the video recording to her. Neither RW nor SiW gave evidence. Detective Smith contacted RW some time after 2013 when the matter was allocated to her, a period of at least 20 years after the alleged offences. Whether or not the complainant played the video recording to RW and SiW was a matter of little moment in the context of the whole of the evidence in the trial and it was open to the tribunal of fact to regard this detail as peripheral to its assessment of the complainant’s credibility. This is particularly so as RW recalled that the complainant had told them about the sexual assaults.

The complainant’s failure to mention the applicant’s admissions when she contacted police again in 2013

173. As to (4), the applicant’s admission to his family members at the solar tint shop was amply established by the evidence of GS, AE, DS and the hearsay evidence of SB, all of which corroborated the complainant’s own evidence of the admission. The complainant was cross-examined at length about her failure to tell Detective Smith about the applicant’s admissions when she first spoke to her in 2013. The narrative of the evidence demonstrates the complainant’s reasons for not telling Detective Smith about the admissions immediately: first, her answers indicated that she had no idea of their forensic significance; and, secondly, she was convinced that no one would believe her as she thought that none of the members of the applicant’s family would tell the truth about the admissions because she thought that they would side with the applicant. As she put it, “I didn’t think his family would even turn around and say yeah, he did admit it to us.” It was open to the tribunal of fact to consider that the complainant had every reason to think that the adults present would deny what had happened: first, they were related to the applicant; and, secondly, the complainant’s experience of life had been that adults (such as her mother and the applicant) lie to support each other against children.

174. Furthermore, there was no reason for the complainant to withhold information about the admissions from the police. It was open to the jury to infer that she had no appreciation of how supportive of her own evidence the applicant’s admissions were.

The letter which the complainant wrote to RS in 1995 for his fifth birthday

175. As to (5), Mr Walker submitted that this letter indicated that the complainant still called the applicant “daddy” and that she missed him and that these matters demonstrated that she must have been lying about the sexual assaults.

176. This submission rests on dubious assumptions about the nature of love and abuse (reflected similarly in the fact that the complainant did not tell the police about the incident in which her mother asked her to suck her breasts because she was her mother). However, in any event, the complainant gave an explanation for the letter which it was open to the tribunal of fact to accept.

177. The context in which the letter was written was as follows. The complainant was only a few years older than her half-brothers. She had known each since birth and had looked after them and loved them. When the applicant and her mother separated, she no longer saw her half-brothers (who lived in Queensland with their father) and she missed them. Whatever (understandable) hostility she bore towards the applicant, she bore none towards them. As she explained in her evidence, she stopped calling the applicant “dad” prior to writing this letter to RS but her reference to “daddy” was because the applicant was RS’s father and her reference to missing them “all” was a reference to her three half-brothers, whom she did indeed miss. It was open to the tribunal of fact to find that the writing of this letter was an expression of the complainant’s familial love for her half-brothers and did not in any way impugn the credibility of her evidence.

The complainant’s trip to Queensland at the age of 17

178. As to (6) above, Mr Walker submitted (as the applicant’s trial counsel had done at the conclusion of his closing address) that it was, in effect, inconceivable that the complainant would stay under the same roof as the applicant in Queensland if her allegations that he had sexually assaulted her were true.

179. It was open to the tribunal of fact to regard the following factors as explaining the complainant’s willingness to go to Queensland, notwithstanding the offending conduct. First, the complainant’s evidence was that the applicant had sexually assaulted her repeatedly up until August 1993 (when she was 11 years old) but not since then. Secondly, in December 1993, the applicant had, in order to get his own family to accept the complainant again and not give her a “hard time”, admitted that he had sexually assaulted her. Thirdly, the complainant loved and missed her three half-brothers, who were still of school-age and lived with the applicant in Queensland. Fourthly, other members of the complainant’s family, including her uncle, PaW, lived in the vicinity. Fifthly, the complainant had been living with her mother in Sydney but her mother had a new boyfriend, with whom she did not get on.

180. In these circumstances, it was open to the tribunal of fact to accept the complainant’s evidence, “I was 17. I wasn't scared of [the applicant] anymore. He couldn’t hurt me anymore and my love for them boys to know that they're okay was stronger than any fear that I ever had”.

The complainant’s failure to mention her conversation with the applicant in which she asked him, “Why me?”

181. As to (7) above, Mr Walker submitted that the complainant’s credibility was adversely affected by the circumstance that she had not disclosed to police that she had spoken to the applicant about the sexual offending when she was staying with him in Queensland when she was 17 years old. The complainant’s evidence to this effect was elicited by the applicant’s trial counsel in cross-examination in the following exchange:

“Q. You spoke with [the applicant]?

A. I spoke with [the applicant], yes.

Q. You never, never talked about any of this past history?

A. Yes, we did.

Q. When was that?

A. We spoke about it when the boys were in bed. I said, ‘Why? Why me? Why did you do it to me?’

Q. What did he say?

A. ‘Because I thought you enjoyed it.’

Q. This is another admission?

A. Not – it’s not an admission, it’s what was said.

Q. This is what you say he said?

A. Well, yeah, it's what I say he said, and it is in fact what he said.

Q. Well, correct me if I'm wrong, but not a word of that is in your statement of 14 October, is it?

A. I wasn’t questioned over what happened through the time that I was in Queensland. I wasn’t questioned about that. I was questioned when was the last time I saw [the applicant], and I told them when the last time I saw [the applicant]. I wasn't questioned until this week on Monday about my time in Queensland and never was there any discussion - I was never questioned for any discussions between [the applicant] and I other than the argument that happened at the end.”

(Emphasis added.)

182. It was open to the tribunal of fact to accept that the reason the complainant did not disclose this conversation with the applicant was that she was not asked, until the applicant’s trial counsel raised it in cross-examination, about the trip to Queensland or whether she had ever discussed the sexual offending with the applicant after his admissions in December 1993. In these circumstances, it was open to the tribunal of fact to regard the complainant’s evidence as reliable and credible and not undermined by any alleged failure to mention it earlier.

The complainant’s mother’s evidence that the complainant never complained to her about the applicant’s sexual conduct

183. As to (8) above, Mr Walker submitted that the complainant’s evidence of the sexual assaults ought not be accepted because her mother gave evidence that the complainant was a troubled child and a liar and that she had never complained to her about having been sexually assaulted by the applicant.

184. The complainant gave evidence that she complained to her mother, which was denied by her mother. It was open to the tribunal of fact to accept the complainant’s evidence that she complained to her mother and to reject her mother’s evidence (which was self-serving) to the contrary. However, even if the tribunal of fact did not accept that the complainant had complained to her mother, there was ample complaint evidence which the tribunal of fact was entitled to regard as supportive of the complainant’s evidence: for example, the evidence of the complaint to ES (which was supported by contemporaneous notes) and to PW. It was also open to the tribunal of fact to have regard to the evidence of PW that, from the time the complainant moved away from PW’s home, she became troubled and had toileting issues which she had not had as a toddler. This timing coincided, in substance, with the commencement of the sexual offending by the applicant. Further, the defence counsel accepted in final address that the complainant’s mother’s evidence was problematic and, implicitly, that it would be open to the tribunal of fact to reject it.

Conclusion on ground 2

185. I have addressed the specific matters raised by Mr Walker on behalf of the applicant, each of which was raised before the tribunal of fact during the trial, either in cross-examination or closing address, or both. In addition, I have reviewed all of the evidence in the trial as required in consideration of an unreasonable verdict ground. Although I have read the trial judge’s reasons for verdict, I have not allowed myself to be diverted by them and have independently assessed the evidence adduced at the trial. The Crown case was very strong and comprised credible evidence of the complainant, reliable complaint evidence (which was supported by contemporaneous documents), medical evidence of a timely medical examination and evidence of unequivocal admissions by the applicant established by witnesses whose credibility was fortified by the fact of their being members of his own family (and not related to the complainant). I consider that it was open to the tribunal of fact to return a guilty verdict in respect of each count. I have no doubt about the applicant’s guilt on any of the counts.

Extension of time for leave to appeal against conviction

186. As set out above, the applicant filed a notice of intention to appeal on 24 June 2020. He filed applications for extension of time on 19 January 2021 and 22 March 2021, each of which was granted. The last of these was granted on 9 April 2021 and extended the time for filing the notice of appeal to 23 May 2021. On 28 April 2023, the applicant provided a letter explaining that he had been diagnosed with a brain tumour. He filed a notice of appeal on 3 April 2024.

187. The respondent submitted that neither an extension of time to file the notice of appeal, nor leave to appeal, ought be granted because the appeal against conviction was without merit. I consider that, as all matters raised have been addressed at length, it is appropriate to grant an extension of time for leave to appeal against the convictions.

Conclusion on conviction appeal

188. For the reasons given above, I would grant leave to appeal against the convictions but dismiss the appeal.

Application for an extension of time for leave to appeal against sentence

189. As with the application for leave to appeal against conviction, the applicant requires an extension of time for leave to appeal against his sentence.

190. The applicant does not challenge the correctness of the sentence at the time at which it was imposed. Rather, he submitted that this Court ought intervene to reduce his sentence on the ground that, at the time the sentence was imposed, he was suffering from a brain tumour, which was, at that time, undiagnosed.

191. The applicant relied on a letter dated 28 April 2023 by A/Professor Elizabeth Hovey, Senior Staff Specialist at the Department of Medical Oncology at the University of New South Wales in support of a submission that, at the date of the letter, the applicant was suffering from a terminal illness, which may have been present but latent for a number of years. The letter appears to have been written to support an application for early release to parole and does not address the relevant question for present purposes, which is whether the applicant was suffering from an undiagnosed brain tumour as at 11 June 2020, being the date on which the sentence was imposed.

192. Dr Hovey said in part:

“I am writing this letter on behalf of [the applicant] who I met a few weeks ago at Prince of Wales Hospital.

He is an unfortunate man with a very aggressive uniformly rapidly fatal brain tumour.

It is a right-sided parieto-temporal GLIOBLATOMA.

Not only is this a diagnosis usually associated with a short median prognosis of ~ 12 to 14 months, but in addition to this, the genetics associated with his specific tumour (IDH wild-type, MGMT unmethylated, TERT mutation and EGFR amplification) mean that his tumour is more aggressive and will likely be associated with an even shorter prognosis.

His symptoms started in late 2022 but for a variety of reasons he only proceeded to surgery in March.

A complete resection of tumour wasn’t possible and he was only able to undergo partial debulking with visible residual tumour.

This combination of these factors predict he likely has prognosis measured in months; with a high possibility he might die this calendar year.

In addition to this- his tumour includes some low grade components which implies to me that this tumour may have started as a lower grade tumour which subsequently transformed into a higher grade tumour. This could mean that the tumour has likely been around for some years which may well have contributed to him losing executive judgement and insight and may in fact have in part been the catalyst for his criminal act, which led to his incarceration in the first place.”

(Emphasis in original.)

193. Generally, the appropriateness of a sentence is to be determined by reference to the evidence adduced and submissions made in the sentencing proceedings: Iglesias v R [2006] NSWCCA 261 (Iglesias) at [8] (McClellan CJ at CL, Hulme and Hall JJ agreeing).

194. In R v Munday [1981] 2 NSWLR 177 at 178, Street CJ said (Moffitt P and Lee J agreeing):

“It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court.”

195. However, there is a limited exception to this principle. In exceptional circumstances, this Court may receive fresh evidence which may, if appropriate, cause this Court to intervene and resentence: R v Bailey (1988) 35 A Crim R 458 (Bailey). Such exceptional circumstances have been found to have been established where an applicant can show that a medical condition which existed at the time the sentence was imposed has later been found to be extremely serious and well beyond that which was known when the sentence was imposed.

196. In Bailey, the applicant, while on remand awaiting sentence, had shared needles with other persons in custody. He subsequently tested positive for HIV, although the disease had not been diagnosed at the time he was sentenced. Lee J (Maxwell and Yeldham JJ agreeing) said (at 462):

“In my opinion in a case such as the present where it is clear that the disease with which the appellant is now suffering, was in fact, in existence at the time he was sentenced, it is proper for this Court to allow evidence to that effect to be given on the appeal and to reopen the matter of the proper sentence to be imposed. It has, for a long period of time, been the practice in this Court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate. Considerations of health are in this category.”

197. The letter of Dr Hovey falls short of establishing that the applicant had a brain tumour at the time the sentence was imposed. Dr Hovey’s opinion rises no higher than that it was possible that the tumour “may” have started at a lower grade and that it was possible (implied by the words, “could mean that the tumour has likely been around for some years”) that the tumour has been present for some time. There is no reference to the date of imposition of sentence and no opinion expressed as to that date. Further, Dr Hovey’s opinion that the tumour may have been causally connected with the offending is offered without any identification of what the offending was or when the offences were alleged to have been committed. The opinion, in so far as it warrants that description, is inadmissible in that form.

198. Further, evidence adduced by the respondent is to the effect that, as at 26 September 2023 and 31 October 2023, Dr Hovey noted that the applicant appeared to be “clinically stable”. This situation continued up until the latest note of 27 February 2024. Thus, it would appear that Dr Hovey’s opinion has not been borne out by what has occurred since she wrote her letter of 28 April 2023.

199. However, even if the Court considered that the fresh evidence ought be received, it does not follow that the Court would intervene: Iglesias at [12]-[13]. It is “critical” to that question whether, by reason of the diagnosed medical condition, the applicant’s time in custody would be more onerous than was appreciated by the sentencing judge at the time the sentence was imposed and the availability of medical facilities which would enable an applicant to be treated while in custody: Iglesias at [13].

200. I am not persuaded that, even if the evidence of Dr Hovey (and the respondent’s evidence in response) were properly admitted as “fresh evidence”, this Court ought intervene. First, the applicant is no longer in custody as he was released to parole on 24 April 2024 and was in court in person at the hearing of this matter. Second, even if the principles were applicable to conditions on parole (a matter which is not necessary to decide but would appear doubtful), Mr Walker could not identify any parole conditions with which the applicant’s medical condition made it difficult to comply. Thirdly, the medical interventions of surgery, chemotherapy and radiotherapy were all performed in custody and appear to have had a salutary effect. Fourthly, the non-parole period stipulated by the sentencing judge and the total term were, in my view, at or near the bottom of the available range: Iglesias at [19]. The offending was very serious and has, as is not uncommon, had a lifelong effect on the complainant.

201. For these reasons, I regard the challenge to the sentence as so devoid of merit as not to warrant an extension of time. Accordingly, I would refuse an extension of time to seek leave to appeal against sentence.

Orders

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

1. Extend the time for filing of the notice of appeal with respect to grounds 1 and 2 (against conviction) to 3 April 2024.

2. Grant leave to appeal against the conviction (grounds 1 and 2).

3. Dismiss the appeal against conviction.

4. Refuse to extend time for filing the notice of appeal with respect to ground 3 (against sentence).

203. STERN JA: I agree with the orders proposed by Adamson JA and with her Honour’s reasons for proposing those orders. The following matters are not intended to indicate any disagreement with her Honour’s reasons.

204. As to ground one, I am well satisfied that no miscarriage was occasioned by the decision of the trial judge not to abort the trial and recuse herself. As Adamson JA has identified, this was a judge-alone trial, the trial judge allowed a period of four weeks to allow the defence to conduct further inquiries and the Crown indicated that witnesses could be made available for further cross-examination. Further, and of some significance, counsel for the applicant did not identify any particular prejudice having been occasioned by the failure of the trial judge to abort the trial and it does not appear that there was any material recalibration of the defence case at trial when the hearing resumed.

205. As to ground two, I also have conducted my own independent assessment of the evidence and am not left in any doubt as to the reasonableness of the verdict. The Crown case was strong. There was evidence of contemporaneous complaint, the letter from ES and a diary entry that supported the complainant’s account, medical evidence supportive of her account and evidence of admissions made by the applicant to those who would naturally have an allegiance to him. For the reasons given by Adamson JA, none of the matters relied upon by the applicant do not cause me to doubt the applicant’s guilt on any of the counts.

206. As to the application for leave to appeal against sentence, I have nothing to add to the reasons given by Adamson JA for refusing leave to appeal.

207. FAULKNER J: I agree with the conclusions of Adamson JA and the reasons for those conclusions. I have conducted a review of the evidence. I have no doubt of the reasonableness of the verdict.

208. There is one matter I wish to address.

209. In Maughan v R [2020] NSWCCA 51 at [2], R A Hulme J referred to:

“… the futility of assessing the behaviour of sexual assault complainants by reference to stereotypical expectations. The criminal law has moved past the era in which this was often prominent in a defence to a sexual assault allegation.”

210. This case demonstrates the futility referred to in the first sentence but not the movement referred to in the second. In support of the applicant’s submission that the conviction is unreasonable and cannot be supported having regard to the evidence, the applicant relied on the eight matters set out in the judgment of Adamson JA at [159] above.

211. Matters (5) and (6) relate to specific behaviour by the complainant after the offences were alleged to have been committed, namely referring to the applicant in a birthday letter written to her younger brother and voluntarily staying in the applicant’s home when she was 17. The two instances of behaviour were relied upon before the trial judge, together with the complainant posing with the applicant for a photograph in December 1993. It was submitted that the complainant’s behaviour was inconsistent with the complainant being a victim of earlier sexual abuse at the hands of the applicant. Had the complainant really been a victim, it was submitted to the trial judge that “there’s no way” she would have behaved as she did. On appeal, it was submitted that “one would think” that she would have behaved otherwise.

212. Having regard to the particular behaviour in question, the applicant’s reasoning depends on an unspoken assumption about the way victims of sexual abuse behave. The assumption necessarily extends to all victims of sexual abuse in all cases and makes no allowance for the unique circumstances of the individual person in the particular case. As such, the applicant’s submission rose no higher than an assertion.

213. The persuasive value of the evidence about the complainant’s subsequent behaviour, if any, pales in comparison to the highly persuasive value of the credible and reliable evidence which the complainant gave in the District Court in October 2019, together with the complaint’s contemporaneous diary entries and letter, the contemporaneous complaints which she made to ES and PW, the expert evidence of Dr Duncan and the evidence from four witnesses (including two of the applicant’s siblings) about the applicant’s admissions in the summer of 1993/1994.

214. In my view, the matters relied upon by the applicant fell well short of that required for a finding by the Court that, notwithstanding the trial judge’s assessment of the complainant as a credible and reliable witness, her Honour ought nonetheless to have entertained a reasonable doubt as to proof of the applicant’s guilt.

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

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Amendments

19 July 2024 - Representation updated - coversheet

02 August 2024 - “of counts 1 and 3” replaced by “of all counts” – headnote, para (4)

Decision last updated: 02 August 2024