Tomlinson v R

[2022] NSWCCA 16

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Tomlinson v R [2022] NSWCCA 16

Hearing dates:

7 June 2021

Date of orders:

11 February 2022

Decision date:

11 February 2022

Before:

Brereton JA at [1];
N Adams J at [119];
Cavanagh J at [312].

Decision:

Conviction appeal

(1) Grant leave to the applicant to appeal against his conviction.

(2) Dismiss the appeal.

Sentence appeal

(1) Grant leave to the applicant to appeal against the sentence imposed on 20 May 2020 in the District Court.

(2) Dismiss the appeal.

Catchwords:

CRIME – Appeals – Appeal against conviction –Unresponsive disclosure by witness that accused in custody – Whether refusal to discharge jury a miscarriage of justice – Requirement of material irregularity for miscarriage to arise – Significance of direction given to jury – No prejudice to applicant – No miscarriage of justice – No error in discretionary decision not to discharge jury

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Whether open to jury to be satisfied beyond reasonable doubt that applicant knew complainants were not of requisite age or did not have honest and reasonable belief that they were of age – Jury entitled to reach this conclusion

CRIME – Appeals – Appeal against sentence – No error in sentencing judge making adverse findings re insight and rehabilitation – Inapplicable standard non-parole period applied by sentencing judge – Error giving rise to need to re-sentence – Crown submitted that the offender be re-sentenced on a more adverse factual basis than at first instance – Knowledge of the victims’ ages – “Exceptional case” – Procedural fairness extended to both parties – No other (lesser) sentence warranted – Appeal dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW), s 54D

Crimes Act 1900 (NSW), ss 66, 91H(2)

Crimes Legislation Amendment (Child Sex Offences) Act2015 (NSW)

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(1), (3)

Cases Cited:

Ambury v R [2018] NSWCCA 275

Atai v R [2014] NSWCCA 210

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

BF v R [2019] NSWCCA 321

Boyson v Chief of Army [2019] ADFDAT 2

Caleo v R [2021] NSWCCA 179

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22

Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78

Daaboul v R [2019] NSWCCA 191

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Ford v R [2020] NSWCA 99

Geagea v R [2020] NSWCCA 350

Glade v R [2020] SASCFC 83

Haines v R [2021] NSWCCA 149

Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219

Hillman v R [2021] NSWCCA 43

House v The King (1936) 55 CLR 499; [1936] HCA 40

Howieson v Chief of Army [2021] ADFDAT 1

Ingham v R [2014] NSWCCA 123

IW v R [2019] NSWCCA 311

JM v R [2014] NSWCCA 297

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Libke v R (2007) 230 CLR 559; [2007] HCA 30

LS v R [2020] NSWCCA 27

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

Maric v The Queen (1978) 20 ALR 513

Martin v R [2013] NSWCCA 253

Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35

Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Mulholland v R [2019] NSWCCA 257

Newman (a pseudonym) v R [2019] NSWCCA 157

Ng v R [2019] NSWCCA 172

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

Orreal v The Queen (2021) 395 ALR 630; [2021] HCA 44

Palmer v R [2018] NSWCCA 205

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

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

R v Ball [1961] SR (NSW) 37; (1960) 77 WN (NSW) 605

R v Sinanovic [2000] NSWCCA 397

RO v R [2019] NSWCCA 183

Ryan v R; Coulter v R [2013] NSWCCA 175

Scott v R [2017] NSWCCA 296

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

Stoeski v R [2014] NSWCCA 161

The Queen v Baden Clay (2016) 254 CLR 308; [2016] HCA 35

The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Trieu v R [2012] NSWCCA 169

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Williams v R [2019] NSWCCA 53

Zhou v R [2021] NSWCCA 278

Category:

Principal judgment

Parties:

Nathan Matthew Tomlinson (Applicant)
The Crown (Respondent)

Representation:

Counsel:
Ms S Kluss (Applicant)
Ms B Baker with Ms A Ilic (Crown)

Solicitors:
Ross Hill & Associate (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2016/307817

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

20 May 2020

Before:

Wass SC DCJ

File Number(s):

2016/307817

HEADNOTE

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

The applicant was convicted after trial in the District Court on 15 counts of sexual intercourse with a child of the age of 14 and under the age of 16, contrary to Crimes Act 1900 (NSW), s 66C(3); one count of aggravated sexual assault of a child above the age of 10 and under the age of 14, contrary to s 66C(2); one count of using a child above the age of 14 for the production of child abuse material, contrary to s 91G(2)(a); and one count of produce child abuse material and four counts of possess child abuse material, contrary to s 91H(2), and sentenced to an aggregate term of imprisonment of thirteen and a half years, with a non-parole period of eight years. The applicant sought leave to appeal, against both the conviction and the sentence.

Held:

1. dismissing the appeal against conviction: [103] (Brereton JA; N Adams J and Cavanagh J agreeing); and

2. dismissing the appeal against sentence: [311] (N Adams J; Brereton JA and Cavanagh J agreeing).

Conviction appeal

Per Brereton JA (N Adams J and Cavanagh J agreeing):

As to not discharging the jury

1. When an appeal is brought to this Court by a person who has been convicted following the refusal by a trial judge of an application to discharge the jury, the appeal is not against the failure to discharge the jury, but against the conviction. Ultimately the question for this Court is whether there has been a miscarriage of justice, of which a miscarriage of the trial judge’s discretion to discharge the jury is an instance (at [51], [61]-[66]).

Maric v The Queen (1978) 52 ALJR 631; (1978) 20 ALR 513; R v Ball [1961] SR (NSW) 37; (1960) 77 WN (NSW) 605; Scott v R [2017] NSWCCA 296.

2. In order for there to be a “miscarriage of justice” in the sense in which that term is first used in s 6 (1) of the Criminal Appeal Act 1912 (NSW), there must be a material irregularity, that is to say one which could have influenced the verdict of the jury. In judging whether there has been a miscarriage of justice, any direction given by the trial judge in respect of the inadmissible evidence, and its likely effectiveness, will be of significance (at [60]).

Crofts v The Queen (1996) 186 CLR 427; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; Hofer v The Queen [2021] HCA 36; 95 ALJR 937; Howieson v Chief of Army [2021] ADFDAT 1; Zhou v R [2021] NSWCCA 278, considered.

3. Having regard to the circumstance that being in custody is an ordinary aspect of the criminal justice process, and the direction given by the trial judge, no miscarriage of justice is established (at [69]-[71]).

As to whether the verdict was unreasonable

4. Subject to a reservation about Count 3, the jury were entitled to accept the evidence from each complainant that before she first had sexual intercourse with the applicant, she disclosed to him her true age. Accordingly, the jury were entitled to be satisfied beyond reasonable doubt that the applicant actually knew that the complainants were not of the age 16. Even if they did not, and considered it reasonably possible that the applicant honestly believed them to be 16, they were entitled to conclude that any such belief on his part was not reasonable (at [99]-[100]).

5. (Regarding Count 3). Even in circumstances where, prior to the event the subject of the offence, the complainant had told the applicant that she was at least 15 and had not yet disclosed to him that she was but 13, reasonable grounds for a belief by a man of 32, who was misrepresenting his own age, wishing to have sex with her, were not provided by mere acceptance of her word (at [101]).

Sentence appeal

Per N Adams J (Brereton JA and Cavanagh J agreeing):

6. The primary judge applied a standard non-parole period in respect of Count 3 which was not applicable to the offence at the time it was committed. This error had the capacity to influence the indicative sentence in respect of that count as well as the aggregate sentence. The Court must therefore intervene to re-sentence Mr Tomlinson afresh: N Adams J at [197]-[201]; Brereton JA at [106].

Kentwell v The Queen (2014) 252 CLR 601, applied. Newman (a pseudonym) v R [2019] NSWCCA 157, referred to.

7. The primary judge was entitled to take into account Mr Tomlinson’s attitude to his partner as relevant to his insight into the offending, in terms of a lack of understanding or remorse.: N Adams J at [218]-[219].

8. It was open to the primary judge to make an adverse finding as to the applicant’s prospects of rehabilitation. Mr Tomlinson was not punished for defending the charges, nor did the primary judge “diagnose” him with a personality disorder: N Adams J at [237]-[238].

9. When exercising the sentencing discretion afresh, this Court is permitted, “in exceptional cases,” to make a different finding to that made by the primary judge so long as procedural fairness is extended to the parties: N Adams J at [251]; Brereton JA at [108].

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579, considered. Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, considered. DL v The Queen (2018) 265 CLR 215; [2018] HCA 32, considered. LS v R [2020] NSWCCA 27, considered.

10. The relevant test is whether this Court is satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 at the time of the offending. In re-visiting this question, this Court should defer to the advantage enjoyed by the trial judge in seeing and hearing the relevant witnesses: N Adams J at [256]; Brereton JA at [108].

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, applied.

11. In relation to all counts except Count 3 the applicant was to be re-sentenced on the basis that he knew the victims were aged under 16 years: N Adams J at [296]-[297]; Brereton JA contra at [113].

12. The appeal against sentence should be dismissed on the basis that no other (lesser) sentence is warranted at law.

Judgment

1. BRERETON JA: The applicant Nathan Tomlinson was tried before Wass SC DCJ and a jury on 15 counts of sexual intercourse with a child of the age of 14 and under the age of 16, contrary to Crimes Act 1900 (NSW), s 66C(3) (Counts 1, 2, 4-16); one count of aggravated sexual assault of a child above the age of 10 and under the age of 14, contrary to Crimes Act, s 66C(2) (Count 3); one count of using a child above the age of 14 for the production of child abuse material, contrary to Crimes Act, s 91G(2)(a) (Count 17); and one count of produce child abuse material and four counts of possess child abuse material, contrary to Crimes Act, s 91H(2) (Counts 18-22). The s 66C offences concerned two unrelated complainants, DA and HS, who were schoolgirls with whom the applicant entered into sexual relationships after first establishing contact on Facebook. The child pornography offences concerned images and videos found on the applicant’s computer that included pornographic images and videos of HS as well as of other females under the age of 16 years.

2. On 20 September 2018, the jury found the applicant, who had entered pleas of not guilty, guilty on all counts. Sentencing proceedings were deferred, while the applicant was tried in respect of two further counts of possession of child pornography, in respect of which he was found guilty by a jury on 2 April 2020. On 20 May 2020, the applicant was sentenced in respect of the present offences to an aggregate term of imprisonment of thirteen and a half years, with a non-parole period of eight years which will expire on 13 October 2024.

3. The applicant seeks leave to appeal to this Court against his convictions, on the grounds that:

1. Ground One: her Honour erred by failing to discharge the jury in relation to [an] unresponsive disclosure [made by one of the witnesses that indicated] that the accused was in custody; and

2. Ground Two: the conviction is “unsafe and unsatisfactory”.

4. Leave to appeal, under Criminal Appeal Act 1912, s 5(1)(b), is required, as neither ground raises a question of law alone.

5. The applicant also seeks leave to appeal against the sentence.

THE CONVICTION APPEAL

6. The offences of which the applicant was convicted occurred between May 2012 and January 2015, when the applicant was aged between 32 and 34. That he had a sexual relationship with both girls was not disputed. Although he disputed some of the alleged acts of intercourse relating to HS, and possession of some of the child pornography images (namely those depicting children other than HS), the applicant’s primary case was one of honest and reasonable mistake as to the age of each of DA and HS: he gave evidence to the effect that both girls had lied to him about their age and had told him that they were 16 years old when they met, and that he believed them.

The case relating to DA

7. The offences relating to DA occurred between 25 May 2012 and 2014, when she was between 14 and 15 years of age.

The Crown case

8. DA said that she first met the applicant in 2012, when she was 14 years old. ^[1] The applicant sent her a “friend request” on her Facebook account, which she accepted. She said that her date of birth was visible on her Facebook account, ^[2] and that she had a lot of pictures on her profile, including photos of herself and her friends at school.

   1. T110.26-29.

   2. T112.37.

9. The applicant and DA then exchanged messages on Facebook. DA said that in the course of those exchanges, she told the applicant that she was 14 years old, and in year 8 at school; ^[3] and the applicant told her that he was 22 years old, which was the same age as her brother. ^[4] In fact, the applicant was then aged 32.

   3. T113.44 – 114.14.

   4. T117.30.

10. After a couple of months, the applicant suggested that they meet in person, and they met in a park in Mount Druitt, after school, at about 2:45 pm to 3:00 pm. ^[5] DA took her friend TG with her, “for security”. ^[6] DA said that she was wearing her school uniform, ^[7] which was the uniform for the junior (Year 7-10) school. ^[8] According to DA, the applicant told her that she looked “cute” in the uniform. ^[9] TG also gave evidence that they met the applicant at the park after school, and were both wearing their school uniforms. ^[10] The applicant arrived at the park in a blue Hummer vehicle. ^[11] They spoke for about 20 minutes, about a range of topics including the applicant’s business, school, and what DA and TG had done that day. ^[12] DA recalled that they spoke outside the car, while it was TG’s recollection that they spoke inside the car. ^[13]

    5. T115.25.

    6. T116.15.

    7. T116.10.

    8. T115.50.

    9. T117.18.

    10. T402.43-50.

    11. T116.38.

    12. T117.12-13.

    13. T403.03.

11. DA said that following this meeting she had further Facebook conversations with the applicant. At this stage, while their relationship was not sexual, DA saw the applicant as a “supportive network”. ^[14] She met the applicant again, in the same park, on about four or five occasions in early 2012, ^[15] when she was 14 years of age. DA said that she wore her school uniform on each occasion, because she was not allowed out on weekends; ^[16] thus, each meeting took place after school.

    14. T118.15-16.

    15. T118.45-46.

    16. T132.42-43.

12. On the occasion of about their fourth meeting, the applicant kissed her with an open mouth and asked her to be his girlfriend. She agreed. The applicant told her that they would have to wait until she was 16 before they could tell anyone that they were together. ^[17] DA said that the applicant gave her a gold bracelet for her 15^th birthday.

    17. T119.25-35.

13. After they had met four or five times, the applicant messaged DA and suggested that they could get a hotel for more privacy. ^[18] DA said that she was initially reluctant, but the applicant said that it would not be long, the hotel was only 20 minutes away, and her mother would not find out. ^[19] DA said that she agreed to go to the hotel because she was afraid that the applicant would not like her as much if she did not. ^[20]

    18. T119.41-50.

    19. T120.13-15.

    20. T120.19-21.

14. On 25 May 2012, the applicant collected DA from the park after school at about 2:40 pm and drove to the Comfort Inn Hotel, arriving at about 3:00 pm. She was wearing her school uniform. ^[21] When they arrived, the applicant parked in the carpark and told her to wait in the car. ^[22] The applicant then went inside to book a room, and then drove to the front of the hotel room. Inside the hotel room, the applicant removed DA’s school uniform and then undressed himself. They laid on the bed and had penile-vaginal intercourse using a condom (Count 1). She was then 14 years old. The sex lasted for five minutes. DA said that it was “awkward” and felt “uncomfortable”. ^[23] The applicant then drove DA back to the park from which he had collected her, arriving about 4:00pm. On the way home the applicant told her that he loved her and was happy they were together. He said that they could “do it more often”. ^[24]

    21. T120.50.

    22. T120.45.

    23. T121.45.

    24. T122.20.

15. About two months later, the applicant again took DA to the hotel. ^[25] He again collected her from the park at about 2:40 pm, after school, and she was wearing her school uniform. ^[26] They drove to the same hotel, and DA again waited in the car while the applicant went inside to book the room. They went into the same hotel room as on the previous occasion. The applicant again undressed her and himself, and they had penile-vaginal sex (Count 2). DA was at this time 15 years of age. ^[27] The applicant then drove her home, arriving at approximately 4:00 pm.

    25. T125.33

    26. T125.50.

    27. T125.35-36.

16. DA said that this occurred on six to ten subsequent occasions. ^[28] On each occasion they had penile-vaginal intercourse. DA said that on another occasion, they had intercourse in the back of the applicant’s Hummer, ^[29] and on another occasion in the secluded area of a park in Mt Druitt. ^[30]

    28. T126.10.

    29. T126.25.

    30. T126.20.

17. DA ended all contact with the applicant in 2015 when she was 17 years old, and asked the applicant to stop contacting her. However, she resumed communications with him later that year, and maintained a friendship with him from that time onwards. ^[31]

    31. T127.17-34.

The defence case

18. The applicant, who gave evidence, agreed that he first met DA in 2012, when he sent her a Facebook message that said “Hi”, ^[32] and a friend request. ^[33] He said that about four to six weeks later, DA contacted him on a Saturday and asked him what he was doing, and they agreed to meet in a park. DA was present with her friend TG. The applicant said that DA told him that she was 16 years old and was studying for her learner’s permit, ^[34] and that she had been studying for it since she turned 16. He denied telling her that he was 22. ^[35]

    32. T505.32.

    33. T506.14-15.

    34. T508.29-34.

    35. T564.30.

19. The applicant said that in the time he knew DA she was never in her school uniform. ^[36] He said that a few weeks after their first meeting he met her in the TAFE carpark, and that they then went to Starbucks together. ^[37] He agreed that he had intercourse with DA substantially as alleged in Counts 1 and 2, but asserted that they did not occur until mid-2013 (after DA had actually turned 16). ^[38] He also agreed that he booked the room, and said that he used cash because the hotel offered a discount for cash. The applicant said that they were in the hotel room just to have sexual intercourse on each occasion, and that he then returned DA to the park. He denied having intercourse with DA anywhere other than at the hotel. He agreed that he had purchased a gold bracelet for her, but said that this was a Christmas present. ^[39] He said that he believed that DA was 16 years old, based on their earlier conversations, and her “willingness to be part of a relationship”. ^[40] He said that DA had told him that she was applying for admission to UTS (the University of Technology, Sydney). ^[41]

    36. T511.25.

    37. T510.11-40.

    38. T571.38.

    39. T518.39.

    40. T516.22-24.

    41. T519.16.

The case relating to HS

20. The offences relating to HS occurred between November 2012 and January 2015, when she was between 13 and 15 years of age.

The Crown case

21. HS said that her first contact with the applicant was when she sent him a friend request on Facebook. ^[42] She explained that one of her school friends had “liked” a “bad photo” of the applicant on Facebook, which made her “curious”. The applicant accepted the friend request. HS could not remember what personal information about herself was visible on her Facebook profile at that time.

    42. T163.01.

22. She first met the applicant a few weeks after he “friended” her on Facebook. ^[43] HS was drinking alcohol at her house with her friend RJ. They were bored and began messaging people on Facebook. HS responded to a Facebook message that the applicant had sent to her (which she had not previously answered), and asked the applicant if he would like to meet. She said that this meeting occurred during the Christmas holidays, when she was about to go into Year 9 at Windsor High School. The applicant met HS and RJ outside the Windsor Hotel, late at night. He picked them up and took them for a drive for a couple of hours, during which they listened to music, ^[44] and HS and RJ were drinking. HS said that while they were driving, she told the applicant that she was 15 years old, and RJ told him that she was 16. ^[45] In fact, they were aged 13 and 15 respectively. ^[46]

    43. T164.39.

    44. T166.26.

    45. T167.01, T224.10-226.39.

    46. T167.01-09.

23. The applicant later dropped them off at HS’s house in South Windsor. ^[47] In cross examination, HS agreed that when first interviewed by the Police she said that she thought she had told the applicant that she was “15 or 16 years old”. ^[48] She explained that at that time she was not sure, but that she now remembered that she told the applicant that she was 15. ^[49]

    47. T166.38.

    48. T225.08.

    49. T225.22-226.01.

24. The applicant and HS continued to have contact, on Facebook ^[50] and by telephone. Although HS did not have a mobile phone, she used friends’ phones and payphones to speak with the applicant. ^[51] Subsequently, the applicant bought a Samsung phone for HS, so that she could keep in contact with him. ^[52] He also purchased clothes, hair extensions and manicures for her, and often gave her money. ^[53]

    50. T167.20.

    51. T248.15.

    52. T167.30.

    53. T177.48-178.05.

25. HS and the applicant met on a number of occasions during the Christmas holidays. Initially, HS would only see him with RJ. Typically, the applicant would pick them up from HS’s house in South Windsor, stop at a bottle shop to purchase alcohol for them, and then “drive around”. ^[54] Subsequently, HS and the applicant began to meet alone. ^[55] According to HS, after a while they “pecked” on the lips; ^[56] this occurred a week or two after she first met the applicant. ^[57]

    54. T170.44 – 171.08.

    55. T171.25.

    56. T171.32.

    57. T233.30.

26. On another occasion during the holidays, HS and the applicant were in his blue Hummer, and pulled over by the river in Windsor. They were listening to music and talking. HS was drinking UDL vodkas, which the applicant had purchased for her. She said that she felt “really drunk” at the time. ^[58] They started kissing in the front seat, and then moved into the back seat. The applicant took a condom from the centre console, placed it on his penis and then inserted his penis into her vagina. She was then aged 13 years (Count 3).

    58. T172.27.

27. HS said that she told the applicant that she was 13 years old a few days before her 14^th birthday, ^[59] after the incident the subject of Count 3; he responded that he was upset that she had lied to him. HS asked the applicant how old he was, and he told her that he was 24; ^[60] in fact, he was 32. HS said that she was really nervous when raising this matter, and that she remembered it “as clear as day”. ^[61]

    59. T172.50 – 173.12.

    60. T173.39.

    61. T229.44.

28. Following this conversation and prior to her 14^th birthday, the applicant and HS had intercourse on a number of further occasions, each time by the river in Windsor. ^[62]

    62. T173.16 - 47.

29. On the night of HS’s 14^th birthday, the applicant and HS were driving in the applicant’s blue Hummer. When it struck midnight, the applicant pulled over and asked HS to be his girlfriend. ^[63] HS said yes. ^[64]

    63. T174.05, T231.03.

    64. T174.12.

30. The applicant then began taking HS to hotels. A few weeks after the incident the subject of Count 3, he took her to the Country Comfort Casula, where they went inside the hotel room, which had been paid for by the applicant, started “making out”, and then the applicant undressed her, performed cunnilingus on her, and they then had penile-vaginal sex, he wearing a condom. ^[65] At this time she was aged 14 (Count 4).

    65. T175.33.

31. The applicant subsequently took HS to the Country Comfort Casula on many occasions. She said that she visited the hotel very frequently with him, almost twice a week for four years. ^[66] They would typically go to the hotel around lunch time to afternoon; she would leave school early, “just to hang out with him”. ^[67] In 2013, when she was in year 9, he would pick her up from the school, in early to mid-afternoon. ^[68] She described her school uniform, ^[69] and although she did not explicitly say that she was wearing it when he collected her from school, it is implicit in her evidence that she was.

    66. T176.09.

    67. T177.18.

    68. T176.31-177.21.

    69. T177.26-35.

32. Sometime later – about six months after they first had intercourse – HS visited the applicant’s apartment in Mascot for the first time. It was night when they arrived. ^[70] They went into the loungeroom and were on the lounge with the TV on. The applicant performed cunnilingus on her (Count 5) and they then had penile-vaginal intercourse (Count 6). They then watched television and after some time he again performed cunnilingus on her on the lounge (Count 7) and they again had penile-vaginal sex (Count 8). They then moved from the lounge into the applicant’s bedroom, where he again performed cunnilingus on her and they had penile-vaginal intercourse (Count 9). They slept in the apartment that night. HS was then aged 14.

    70. T178.50.

33. On an occasion when they were at the Country Comfort Casula, HS learnt that the applicant had a girlfriend. HS said that they were fighting because “I knew he had a girlfriend and things he was saying just didn’t add up”. ^[71] She locked herself in the bathroom and refused to come out until the applicant told the truth about his situation, and he eventually told her that he had a girlfriend. She then left the bathroom and wanted to go home, but the applicant wanted to have sex and convinced her to participate. He then performed cunnilingus on her (Count 10). At this time, she was 14 years of age.

    71. T180.50 – 181.01.

34. From 2013 onwards, the applicant took HS on a number of holidays. The first of these trips, which was to the Gold Coast, was in 2013 when she was 14 years old. ^[72] They stayed at the Hilton Hotel, and the applicant gave her $500 to go shopping while he was at work. They had intercourse during this trip. ^[73] Later in 2013, the applicant arranged a second trip to the Gold Coast. ^[74] They stayed at the Hilton Hotel for one night; he bought her alcohol and they had intercourse twice. ^[75]

    72. T189.42.

    73. T190.19 – 32.

    74. T189.43-45.

    75. T191.44 – 192.02.

35. They also travelled to the Blue Mountains. According to HS the first such trip was in 2014, and she was not sure whether it was before or after the second trip to the Gold Coast. ^[76] They arrived at a hotel in the Blue Mountains late at night, and had penile-vaginal intercourse. They travelled to the Blue Mountains a second time on a weekend, arriving late at night, and had penile-vaginal intercourse in his car in a carpark near the hotel (Count 11). ^[77] They decided to get a hotel and when they arrived had penile-vaginal intercourse a second time (Count 12).

    76. T192.13.

    77. T193.45 – 194.15.

36. The applicant also took HS to a hotel near Wet and Wild at Prospect in 2014. HS’s friend TA accompanied them. During this stay, the applicant and HS had intercourse in the bathroom (Count 13).

37. Also in 2014, the applicant took HS and a friend CK to the Country Comfort Hotel in Liverpool, where the three had sexual intercourse. ^[78] The applicant performed cunnilingus on HS (Count 14), then performed cunnilingus on CK, then had penile-vaginal intercourse with HS (Count 15), then had penile-vaginal intercourse with CK. The applicant left, giving HS $200 “so she could get home the next day”. ^[79]

    78. T207.33-208.50.

    79. T209.01-05.

38. HS said that the applicant would regularly take photographs of her “when we were hotels, doing sexual acts”. ^[80] On one occasion, while staying at the Country Comfort Hotel in Liverpool, he inserted his fingers inside her while she was on a bed (Count 16). At this time she was below the age of 16. ^[81] The applicant took a photograph of himself with his fingers inside her vagina (Count 17). ^[82] On other occasions, the applicant asked HS to take sexual photographs of herself (Count 18). ^[83]

    80. T196.21.

    81. T197.01.

    82. T196.43-48, T202.09.

    83. T197.07-14.

The defence case

39. The applicant gave evidence that he first met HS in February 2013. ^[84] He said that he had been chatting with RJ on Facebook and RJ suggested that he meet up with her and her friend. He denied directly contacting HS before the meeting. He said that they met outside a pub in Windsor, and that HS told him that she had turned 16 four or five months earlier. ^[85] He said that there was no discussion of HS being at school.

    84. T520.11.

    85. T521.23.

40. According to the applicant, after their first meeting, he met with RJ and HS on a number of occasions, and still believed that HS was 16. He said that HS told him that she was learning to drive. ^[86] He denied ever buying her alcohol. ^[87] He denied that HS was ever wearing her school uniform when they met. ^[88]

    86. T524.12

    87. T524.27.

    88. T523.36.

41. The applicant denied having intercourse with HS before November 2013. ^[89] In particular, he denied having intercourse with her in the Hummer (Count 3), ^[90] and he also denied ever having had intercourse with her in his apartment (Counts 5-9). ^[91] He said that HS had only ever walked “about two or three steps” into his apartment. ^[92] He denied ever having had intercourse with her in the Blue Mountains (Counts 11 and 12), ^[93] or at Wet and Wild (Count 13). ^[94] He denied staying at a hotel with her in the Blue Mountains. He said that the booking that he made (for a spa, fireplace room for two people) ^[95] was for an employee who was working in the area at the time. ^[96] He acknowledged booking a hotel room at Wet and Wild, but said that this was for HS and her friend TA. ^[97]

    89. T525.08.

    90. T524.49-525.18.

    91. T529.46.

    92. T529.31.

    93. T534.43-535.01, 548.13.

    94. T542.23.

    95. Exhibit 17.

    96. T608.07-14.

    97. T541.12-20.

42. The applicant said that he first had intercourse with HS in late November 2013 at Hunts Hotel Casula (Count 4). ^[98] He agreed that he engaged in the intercourse referred to in Count 10, ^[99] and that with HS and CK referred to in Counts 14 and 15. ^[100] He accepted that he took photos of HS on his iPhone during intercourse, and also that he had taken her to Queensland, and that it was possible that some of the photos of her were taken on that trip. He maintained that he believed that HS was 16 years old, based on their previous conversations, her appearance, and the topics of their conversations. ^[101] He maintained that she spoke to him about different types of coffee, what he liked and what she liked. He said that he understood from her Facebook account that she was a “young girl”, but denied that she appeared to be a school student. ^[102] He also denied that she had ever told him that she was under the age of 16. ^[103] He denied having told her that he was 24. ^[104]

    98. T524.44.

    99. T530.42-49.

    100. T542.25-543.10.

    101. T526.38-46.

    102. T583.10 – 14.

    103. T526.50.

    104. T591.25-34.

43. The applicant said that he first discovered her real age in mid-2015, when he was teaching her to drive. ^[105] He said that when he took her licence to write down her licence number, he realised that her date of birth was not what he expected. He said that he asked her how old she was, and she replied 16. The applicant said that he responded “are you effing serious?”, “you should be 18 now, you shouldn’t be 16”. ^[106] The applicant said that up to this point, he had believed that HS was 16 when they first met.

    105. T532.18.

    106. T532.47.

Other child abuse material offences

44. When the applicant was arrested on 25 February 2015, police executed a search warrant of his apartment and seized a number of items, including laptop computers, subsequent examination of which found a password protected file containing child abuse material. ^[107] The password for the file was nathanhxx123. ^[108] The child abuse material contained images of HS and other girls under the age of 16 years. ^[109] This material is the subject of Counts 19-22).

    107. Exhibit 1.

    108. Exhibit 1[4]. The word which has been redacted to hxx was HS’s first name.

    109. Exhibit 1.

45. The applicant denied any knowledge of the child abuse material found on his computer, other than the images of HS. ^[110] He said that when he worked in Alexandria, he would often leave his laptop unattended, and that “everybody” in the office knew his password. ^[111]

    110. T548.39 (Count 19), T548.47 – 549.08 (Count 20, concerning three images of children other than HS), T549.32 (Count 22).

    111. T550.25, 550.39.

Ground 1: failure to discharge jury upon unresponsive disclosure that accused in custody.

46. On the second day of the trial, in the course of HS’s evidence, she was asked: ^[112]

“Q. Were you still having some sort of relationship with [the applicant] in February and March 2015?

A. I was still having a relationship with [the applicant] right up until the point he went to gaol. So yes.”

112. T184.10.

47. The morning adjournment was taken immediately after this exchange. In the absence of the jury and the witness, defence counsel applied for the discharge of the jury, on account of the prejudice said to arise from the jury having been informed, in an unresponsive answer, that the applicant was in custody and presumably had been so for some considerable time. ^[113] The judge declined to discharge the jury, indicating that she proposed to direct the jury that the fact that a person goes into gaol at any time is irrelevant, and is an ordinary part of what happens when people are arrested; that the applicant was not currently in gaol, and that in any event it was irrelevant to their deliberations. When the jury returned after the adjournment, her Honour directed them:

“HER HONOUR: Ladies and gentlemen, before [HS] comes back into the witness box I need to give you a legal direction that you must follow in respect of this trial. You might have heard evidence from the complainant that she was in a relationship with the accused up until he went to gaol. In cases such as this, there is absolutely nothing to be taken from the fact that at one point a person is arrested or at one point a person goes into custody. There is no suggestion in the evidence that the offender remained in gaol or that he is currently in gaol. In any event, that fact is entirely irrelevant to your considerations and says nothing at all about the guilt or otherwise of the accused and I direct you as a matter of law to ignore it.” ^[114]

113. T185.27-186.03.

114. T189.05.

48. Her Honour subsequently gave reasons for declining to discharge the jury, noting that not every potentially prejudicial event during a trial requires a discharge of the jury, and that while the appearance to the jury that a person is in custody could in some circumstances be “tantamount to evidence of bad character; that he cannot be trusted to be free in the community”, nonetheless “one cannot assume that the jury or any member of it would infer guilt as a result of speculating, or even believing that [the applicant] is in custody”. ^[115] Her Honour added that many accused persons are in custody at the time of their trial and the fact of such custody will often be obvious to the jury, and added:

“The fact of being in custody at some stage would, in my view, be perceived to be a feature of the modern criminal justice system, and not a reflection of the accused's bad character”.

115. Discharge judgment p 5.

49. Her Honour observed that it was not the case that the jury were aware that the accused was in custody for having committed a prior offence, or because of any specific concern about bad character. Her Honour stated that the direction that she had given to the jury was that there was no evidence to suggest that, even if the applicant went into custody some time ago, he had remained there; that there was no evidence that he was still in custody; and that she had warned the jury not to speculate and to ignore the evidence of HS in respect of the issue of the applicant’s custody. Her Honour concluded that “any perceived prejudice can be cured by the direction in the terms that I have given”. ^[116]

    116. Discharge judgment p 7.

50. Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides as follows:

(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

51. When an appeal is brought to this Court by a person who has been convicted following the refusal by a trial judge of an application to discharge the jury, the appeal is not against the failure to discharge the jury, but against the conviction. ^[117] In Maric v The Queen, Gibbs ACJ said:

“The first submission put on behalf of the Crown was that the learned trial judge had a discretion either to discharge the jury or to continue with the trial, and that the question which the Court of Criminal Appeal had to decide, and which it was submitted was rightly answered in the negative, was whether any error had been shown by the judge in exercising his discretion. In support of this submission counsel cited the decision of the Court of Appeal in R v Weaver [1968] 1 QB 353; [1967] 1 All ER 277. In that case the evidence against the two accused men was overwhelming (see QB at 356) but evidence prejudicial to them was inadvertently elicited by their counsel in the course of cross-examination. The judge refused to discharge the jury, the accused were convicted and an appeal was brought. The appeal failed. Sachs LJ said (QB at 359–60; All ER at 280):-

Cases parallel to the present one have been brought before the Court of Criminal Appeal on a considerable number of occasions in the course of the last few years and the modern practice has become well defined. In each of those cases it has, of course, been natural for counsel for the appellant or applicant to cite a trio of cases which are mentioned in Archbold's Criminal Pleadings, Evidence and Practice, 35th ed (1962) para 936; R v Peckham (1935) 25 Cr App R 125; R v Palmer (1935) 25 Cr App R 97, and R v Firth (1938) 26 App R 148. Those cases cannot, however, be looked at in isolation. As already stated, the modern practice evolved in the light of these cases is that in essence, as has now often been said (see, for instance, a passage which appears in R v Parsons [1962] Crim LR 631 at 632), whether or not to discharge the jury is for the discretion of the trial judge on the particular facts and the court will not lightly interfere with the exercise of that discretion.

It follows, as has been repeated time and again, that every case depends on its own facts. It also, as has been said time and again, it thus depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence, the jury must be discharged.

This decision was followed in R v Palin [1969] 1 WLR 1544; [1969] 3 All ER 689 , and R v Waring (No 2) [1972] Qd R 263 and somewhat similar views had earlier been expressed in R v Ball (1960) 77 WN (NSW) 605. It may now be accepted that the rule stated in the English authorities cited in R v Weaver, supra, which were followed in R v Hally [1962] Qd R 214 at 221, was too absolute: it is not an invariable rule that the jury must be discharged in such cases. However, in my opinion, it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction.”

117. Maric v The Queen (1978) 52 ALJR 631 at 634; (1978) 20 ALR 513 at 519-520.

52. Thus the issue posed for this Court by s 6(1) is not whether the trial judge was wrong in refusing to discharge the jury, but whether there has been a miscarriage of justice. This was explained in Crofts v The Queen: ^[118]

    118. (1996) 186 CLR 427 at 440–441 (Toohey, Gaudron, Gummow and Kirby JJ); [1996] HCA 22 (“Crofts”).

“The Court of Criminal Appeal rejected this submission. It acknowledged that the trial judge had a discretion; that the criterion for its exercise was the maintenance of the fairness of the trial; and that the test for discharge of the jury was one of necessity [R v Crofts (8 May 1995, unreported) at 8-9; R v Boland [1974] VR 849 at 866]:

The question is whether in the circumstances … there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. That is to say, was the discretion wrongly exercised in that the judge was bound to discharge the jury? …

His Honour obviously thought that any prejudice to the applicant which the complainant's answer might have aroused could in the circumstances be overcome by the warnings which he in fact gave to the jury. We cannot say that he was wrong in so concluding.

It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? [Glennon v R (1994) 179 CLR 1 at 8-9; 119 ALR 706; Maric v R (1978) 20 ALR 513 at 521; 52 ALJR 631 at 635].”

53. As has been observed elsewhere, ^[119] the concluding statement in the above passage, that: “In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?”, must now be qualified: in Weiss v The Queen,^[120] with reference to it and other similar pronouncements about the proviso in common form criminal appeal statutes, it was said:

“[32] Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was “inevitable”. Other cases ask whether the accused was deprived of a “chance which was fairly open … of being acquitted” or a “real chance” of acquittal.

[33] These expressions attempt to describe the operation of the statutory language in other words. They must not be taken as substitutes for that language. They are expressions which may mask the nature of the appellate court’s task in considering the application of the proviso.”

119. In Howieson v Chief of Army [2021] ADFDAT 1 at [19] (Logan J, Brereton JA and Perry J) (Footnote references omitted).

120. (2005) 224 CLR 300 at [32]-[33] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

54. Recently, in that context, in Orreal v The Queen, Kiefel CJ and Keane J have said (footnotes omitted): ^[121]

“An appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred. It must consider the whole of the record of the trial and the nature and effect of the error which gives rise to the miscarriage of justice in the particular case. As explained in Kalbasi v Western Australia, this is because some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt. The examples there given include cases which turn on issues of contested credibility or cases where there has been a wrong direction on an element of liability in issue. What they have in common is that the appellate court cannot be satisfied that guilt has been proved.”

121. (2021) 395 ALR 630; [2021] HCA 44 at [20].

55. In the same case, Gordon, Steward and Gleeson JJ said (footnotes omitted): ^[122]

While there is no single universally applicable description of what constitutes "no substantial miscarriage of justice", an appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt. In addressing that question, it is necessary to consider the nature and effect of the error.

122. Orreal v The Queen (2021) 395 ALR 630; [2021] HCA 44 at [41].

56. The observations, with reference to a “substantial miscarriage of justice”, refer to the proviso, and not to the anterior question of whether there has been a miscarriage of justice in the sense in which that term is first used in s 6(1). In Weiss, the distinction between the reference to a “miscarriage of justice” where it first appears in the section, and to a “substantial miscarriage” in the proviso, was explained as follows (footnotes omitted):

[18]  The matters of history that are recorded above readily show that the proviso to s 4(1) of the 1907 English Act was intended to do away with the Exchequer rule. But they also cast light upon what appears to be a conundrum presented by reference in the grounds on which the Court of Appeal shall allow the appeal to a “miscarriage of justice”, and reference in the proviso to dismissing the appeal if the court “considers that no substantial miscarriage of justice has actually occurred”. What the history reveals is that a “miscarriage of justice”, under the old Exchequer rule, was any departure from trial according to law, regardless of the nature or importance of that departure. By using the words “substantial” and “actually occurred” in the proviso, the legislature evidently intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure. On that understanding of the section as a whole, the word “substantial”, in the phrase “substantial miscarriage of justice”, was more than mere ornamentation. If the 1965 Report of the Interdepartmental Committee on the Court of Criminal Appeal (the Donovan committee) was right to conclude, as it did, that the construction which had been placed on the proviso by the English courts rendered the word “‘substantial’… devoid of practical significance”, the construction and application of the proviso had moved a very long way from its historical roots.

57. Further light is cast on this by Patel v The Queen (footnotes omitted): ^[123]

[67]  If there was a miscarriage of justice, it was because the prosecution case changed at a very late point in the trial with the result that much of the evidence that had been admitted on the wide-ranging prosecution case no longer remained relevant to the more confined case that went to the jury. This is the matter which requires further consideration. The question is not, however, whether the trial judge was wrong in refusing to discharge the jury on this basis. As Sachs LJ observed in R v Weaver, there is no rule that, where inadmissible or prejudicial evidence is admitted through inadvertence, a jury must be discharged. This statement was referred to with approval by Gibbs ACJ in Maric v R . His Honour said that when an accused has been convicted, the appeal is not against the failure to discharge the jury, but against the conviction. His Honour’s observation remains relevant to a case such as this, even if the test as to what constitutes a miscarriage of justice sufficient to warrant the quashing of a conviction referred to in Maric is affected by what was later said by this court in Weiss v R.

…

[118]  A careful consideration by the prosecution of the expert evidence to be tendered to prove that the appellant was not competent in the conduct of the surgery and in the provision of post-operative care ought to have revealed that the evidence could not sustain a finding to that effect, let alone a finding of gross negligence to the requisite standard. The result was that very late in the trial the prosecution was forced to acknowledge that if, on the prosecution case, the appellant were criminally liable, he might only be so in respect of his judgments. Much of the prejudicial evidence which had been tendered was not relevant to this topic. Not only had the jury been exposed to this large body of evidence, it had been exposed to it repeatedly over a long period of time and in the context of a much wider prosecution case. There has been a miscarriage of justice.

123. (2012) 247 CLR 531; [2012] HCA 29.

58. The Court then proceeded to consider whether the proviso was engaged.

59. Thus the first question for this Court is whether, in the circumstances of the case, there was a miscarriage of justice, in the wide sense in which that term is first used in s 6(1). ^[124] Only if that question is answered in the affirmative does there then arise for consideration the issue raised by the proviso, whether no substantial miscarriage of justice has actually occurred.

    124. Criminal Appeal Act 1912, s 6(1); Trieu v R [2012] NSWCCA 169 at [26] (Rothman J; McClellan CJ at CL and Johnson J agreeing); Scott v R [2017] NSWCCA 296 at [186] (Hoeben CJ at CL; McCallum J and Bellew J agreeing).

60. As to what amounts to a “miscarriage of justice” in that wider sense, it is well established, as the passage cited above from Crofts v The Queen ^[125] confirms, that not every inadvertent and potentially prejudicial effect that occurs during a trial requires that the jury be discharged. In considering whether there has been a miscarriage, it is relevant to ask whether there is a significant possibility that but for the irregularity, the jury acting reasonably would have acquitted the applicant of the charge, ^[126] or would have entertained a reasonable doubt about the accused’s guilt. ^[127] A miscarriage of justice is, therefore, a material irregularity, that is to say one which could have influenced the verdict of the jury. ^[128] In judging whether there has been a miscarriage of justice, any direction given by the trial judge in respect of the inadmissible evidence, and its likely effectiveness, will be of significance. ^[129]

    125. (1996) 186 CLR 427 at 440-441 (Toohey, Gaudron, Gummow and Kirby JJ).

    126. Cf Mickelberg v The Queen (1989) 167 CLR 259 at 273, 288, 301.

    127. Cf Mickelberg at 275, 301-302.

    128. Since writing this, my attention has been drawn to the judgment of the High Court in Hofer v The Queen [2021] HCA 36; 95 ALJR 937, which is discussed in the judgment of N Adams J below at [120]-[139]. Gageler J’s statement (at [123]) that “Except in the case of an error or irregularity so profound as to be characterised as a ‘failure to observe the requirements of the criminal process in a fundamental respect’, an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had”; and the statement in the joint judgment of Kiefel CJ, Keane and Gleeson JJ (at [41]) that “A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused,” express the same notion as my above statement that a miscarriage of justice is “a material irregularity, that is to say one which could have influenced the verdict of the jury”. See also Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL; Davies and Wilson JJ agreeing).

    129. Crofts at 440 (Toohey, Gaudron, Gummow and Kirby JJ); see also Howieson v Chief of Army [2021] ADFDAT 1 at [20] (Logan, Brereton and Perry JJ)

61. Although the appeal is from the conviction and not from the trial judge’s refusal to discharge the jury, that is not to say that the trial judge’s ruling is without significance in the appeal. First, it is clear enough that if the trial judge’s discretion miscarried, in the House v The King ^[130] sense, there will have been a miscarriage of justice. And secondly, if it does not appear that the trial judge’s discretion has miscarried, while that is not conclusive, considerable deference will be afforded the trial judge’s decision, having regard to the advantages of a trial judge in evaluating the state and atmosphere of the trial, as appears from the passage cited from Crofts above.

    130. (1936) 55 CLR 499; [1936] HCA 40

62. In R v Ball, Evatt CJ and Herron J (as he then was) said (footnotes omitted): ^[131]

The rule is stated in Archhold, op. cit., at p. 207: “It is for the Judge alone to decide whether a necessity exists for discharging the jury, and his decision is not subject to review or appeal.” The authors of Hamilton & Addison, Criminal Law and Procedure, 6th ed., (1956) in a note on p. 542, have adopted these views. See also R. v. Grand a case decided before the Criminal Appeal Act of New South Wales. All the cases cited were instances where the judge had discharged the jury and where the objection was taken to the propriety of the further trial. We are not prepared to decide that in no circumstances could an appeal lie to this Court against the refusal of a trial judge to discharge a jury. Such a refusal might fall within the power of the Court under s. 6 of the Criminal Appeal Act to allow the appeal if it is of opinion “on any other ground whatsoever there was a miscarriage of justice”. This was the course adopted in R. v. Peckham and in R. v. Firth. But the principles laid down in all the decided cases show that this Court will be slow to interfere with the judge’s discretion and will act only in a clear case where a decision is required that there has been a miscarriage of justice

131. [1961] SR (NSW) 37 at 40.

63. Brereton J similarly identified the ultimate question for this Court as whether there had been a miscarriage of justice, making due allowance for the position of the trial judge: ^[132]

“Initially, if allegedly damaging and irrelevant material be volunteered, the matter lies at the discretion of the trial judge. He knows what is being stressed and what is not, he is alive to the temper and the atmosphere of the trial, he can appreciate suggestions and reactions not conveyed by a typed transcript. He is in a much better position than an appellate court to determine what is specious or technical pretext and what is genuine complaint. Therefore, in considering whether or not his discretion was rightly exercised, an appellate court must make due allowance for these factors, and must, as far as it can, place itself precisely in the trial judge’s shoes, before it interferes. Before substituting its own discretion for his, the appellate court must be clearly of the view, not that it would have exercised its discretion differently, but that the trial judge manifestly exercised his wrongly.

In the present case it will be necessary to examine closely:

1. Whether it could be said that the answer complained of—whether unexpected or not—could reasonably be regarded as a fair answer to the question asked, and whether it was irrelevant.

2. Whether it was capable of being prejudicial. As to this, counsel at the trial sought to call evidence, and an affidavit was tendered in this Court.

3. Whether, upon a study of the whole trial, it may in fact have been prejudicial and may thus have resulted in a miscarriage of justice.”

132. [1961] SR (NSW) 37 at 41-42.

64. In Trieu v R, ^[133] in a passage which was cited with approval in Scott v R (“Scott”),^[134] this Court said:

“[27] The issue on appeal is whether there was such a high degree of necessity for the discharge of the jury that the failure to order such a discharge has resulted in a mistrial: Crofts v R [1996] HCA 22; 186 CLR 427 at 440. It is for the appellate court to determine whether a miscarriage of justice has occurred: Crofts v R at 441; Samadi v R [2008] NSWCCA 330; 192 A Crim R 251 at 277–279 [133]–[138].

[28] However, much leeway must be allowed for the trial judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript: Crofts v R at 440–441. The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining whether there has been error in the exercise of discretion: El Hassan v R [2007] NSWCCA 148 at [15].”

133. [2012] NSWCCA 169 at [28] (Rothman J, with whom McClellan CJ at CL and Johnson J agreed).

134. [2017] NSWCCA 296 at [186] (Hoeben CJ at CL, with whom McCallum J and Bellew J agreed).

65. In Scott,^[135] the position was summarised as follows:

[187]  In summary, the Court of Criminal Appeal will not interfere with the exercise of discretion to refuse a discharge unless it can be shown that the judge acted on a wrong principle or that there was a miscarriage of justice: R v Ball (1961) SR NSW 37 applied in R v Owen (unreported, NSWCCA, 7 July 1988); Maric v R (1978) 52 ALJR 631 at [520]–[521]; Mikael v R [2015] NSWCCA 294 at [42]–[43]).

135. [2017] NSWCCA 296.

66. Although in my respectful opinion the true position is that ultimately the only question for this Court is whether there has been a miscarriage of justice, the statement in Scott is correct, as a miscarriage of the trial judge’s discretion will inevitably be a miscarriage of justice. Moreover, the statement in Scott conveniently reconciles the authorities.

66. For the applicant, it was submitted that in the circumstances of his trial, the prejudice created by the disclosure that he had been in custody was significant, the issues in the trial being such that the offences were not marked by such a level of depravity or violence that members of the public would expect an accused to be deprived of his liberty. In addition, it was submitted that the applicant was handcuffed to be taken to and from the courtroom, and that the presence of Corrective Services officers meant that his presentation before the jury was such that the reasonable observer would have concluded that he was a security threat despite the nature of the charges, his lack of criminal history, and the limited issue to be determined in the trial. It was submitted that no direction could have cured the prejudice.

67. The trial judge observed, generically, that “the appearance to the jury that a person is in corrective services’ custody, and in this case may have been so for many months, could in some circumstances be tantamount to evidence of bad character, that he cannot be trusted to be free in the community, which ordinarily would be inadmissible”. However, as the judge also observed, accused persons routinely sit in the dock, surrounded by uniformed Corrections officers, in the presence of the jury which is, of itself, suggestive of custody. Thus in R v Sinanovic, Hulme J (with whom Wood CJ at CL and Greg James J agreed) observed: ^[136]

“Many accused persons are in custody at the time of their trials. While, to reduce or eliminate the possibility or suggestion that a jury may be influenced by extraneous factors, it is preferable that it not occur, often the fact of such custody must be obvious to a jury. Not infrequently this will arise in consequence of the presence or actions, sometimes necessary, of officers of the Corrective Services Department. If the fact such custody becomes known to a jury is to be treated as entitling an accused to a discharge, many of society's worst offenders would never be tried. For my part, I have more confidence in the jury system, than to think that persons will be convicted because they are seen to be in custody prior to a jury's verdict.”

136. [2000] NSWCCA 397 at [33].

69. The mere fact that an accused person is in custody at the time of trial is not exceptional; it is an ordinary aspect of the criminal justice process. Often it will be self-evident to the jury. The fact that from circumstances such as the presence of the accused in the dock accompanied by correctional officers the jury is aware that an accused is in custody is not an irregularity in the trial. Although in this case that circumstance might have been deduced from HS’s non-responsive answer, at least to the extent that he had at some stage been in custody, it is an ordinary aspect of the criminal justice system that an accused person who is arrested is in custody until and unless bail is granted. If knowledge of these matters were regarded as prejudicial, rather than unexceptional, the criminal justice process would be nigh on unmanageable.

70. In any event, the trial judge gave the jury a clear and cogent direction that it was irrelevant that a person may have been arrested or at some point been in custody, and that that was an ordinary incident of the criminal justice system. Proceeding on the footing that the jury acts in conformity with such directions, ^[137] there is even less reason to suppose that such information would have operated prejudicially to the appellant.

    137. The Queen v Glennon (1992) 173 CLR 592 at 603 (Mason CJ and Toohey J; [1992] HCA 16; (1992) Hamide v R (2019) 101 NSWLR 455 at [120]; [2019] NSWCCA 219.

71. No specific error in the trial judge’s discretionary decision to decline to discharge the jury has been identified. No miscarriage of justice is established. This ground of appeal fails.

Ground 2: unreasonable verdict

72. The principles applicable on an appeal which complains that a verdict is unreasonable were restated by this Court in Dickson v The Queen,^[138] by Bathurst CJ, with whom Johnson and Fullerton JJ concurred, as follows:

“[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]–[14], the Court stated the approach to be adopted was that laid down in M v R (1994) 181 CLR 487; [1994] HCA 63 at 492–494, namely that the Court is required to make its own “independent assessment of the evidence”. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” and “[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred”: see also MFA v R (2002) 213 CLR 608; [2002] HCA 53 at [59].

[85] As was pointed out by Hayne J in Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

[86] In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]–[48].”

138. (2017) 94 NSWLR 476; [2017] NSWCCA 78. See also BF v R [2019] NSWCCA 321 at [8]; IW v R [2019] NSWCCA 311 at [223]; Mulholland v R [2019] NSWCCA 257 at [68]; Ng v R [2019] NSWCCA 172; Ambury v R [2018] NSWCCA 275; Boyson v Chief of Army [2019] ADFDAT 2 at [40]-[53] (Brereton JA, Perry J agreeing); Ford v R [2020] NSWCA 99 at [53]-[55].

73. In considering this ground, an appellate court “must not regard or discount either the consideration the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses”. ^[139] The assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury. ^[140] These considerations are reinforced by the following observations of the High Court in The Queen v Baden Clay (footnotes omitted): ^[141]

“65. It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

66. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.””

139. M v R (1994) 181 CLR 487 at 493; [1994] HCA 63; SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [13] French CJ, Gummow and Kiefel JJ).

140. Atai v R [2014] NSWCCA 210 at [134].

141. (2016) 254 CLR 308; [2016] HCA 35.

74. Nonetheless, the concluding words of that passage, and the authority cited for it, ^[142] show that the ultimate question remains whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

    142. M v The Queen (1994) 181 CLR 487 at 494-5; [1994] HCA 63.

75. Although in written submissions the applicant’s counsel referred to the observations made by the trial judge in the sentencing proceedings about the evidence and the basis of the conviction, at the hearing it was accepted that the sentencing judge’s remarks could not be referred to for the purpose of determining whether or not the verdict was unreasonable. ^[143]

    143. Daaboul v R [2019] NSWCCA 191 at [294] – [296] (Bathurst CJ; Bell P and Hammill J agreeing); see also Palmer v R [2018] NSWCCA 205 at [58 – [63] (Basten JA; McCallum JA and Bellew J agreeing); Williams v R [2019] NSWCCA 53 at [35] (Gleeson JA); LS v R [2019] NSWCCA 258 at [92] (Hoeben CJ at CL; Walton and Price JJ agreeing).

76. The case was presented and left to the jury on the alternative bases primarily that the applicant knew that each complainant was not of the relevant age, or alternatively that he did not honestly and reasonably believe that they were. In other words, to convict the applicant, a juror had to be satisfied only that it was not reasonable for him to believe that the complainants were above the age of consent. It is not possible to ascertain on which basis the jury convicted the applicant. Indeed, it is quite possible that some jurors convicted on the primary basis and some on the alternative basis. It is also possible that they proceeded on the basis that if satisfied that any belief that the complainants were of age 16 was not reasonable, it was unnecessary for them to go any further.

77. Thus in the context of this case, the question for this Court is whether it was open (in the sense described in SKA v R ^[144] and Libke v R ^[145] ) on the whole of the evidence for the jury to be satisfied beyond reasonable doubt, either that the applicant knew that DA and HS were respectively not of the relevant age, or that he did not have an honest and reasonable belief that they were. In order to uphold the convictions, it suffices that this Court conclude that it was open to the jury to be satisfied, beyond reasonable doubt, that if the applicant believed that the complainants were of 16 years of age, that belief was not a reasonable one. Thus the real issue for this Court is whether it was open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt that it was not reasonable for the applicant to believe that the complainants were of age.

    144. (2011) 243 CLR 400; [2011] HCA 13.

    145. (2007) 230 CLR 559; [2007] HCA 30.

78. For the applicant it was submitted that the jury ought to have entertained a reasonable doubt, in that it was reasonably possible that the applicant had an honest and reasonable belief that the complainants were 16 years of age, founded on the following matters (I have re-arranged the structure somewhat):

1. as to the applicant: his unshaken evidence as to his belief, and that the complainants lied about the relationships;

2. the absence of direct evidence that the complainants told him their true age;

3. the circumstance that he did not endeavour to conceal meetings or deny the relationships;

4. that the photographs of DA and HS were not such that they appeared demonstrably under 16 years of age;

5. as to DA: she was sufficiently unsupervised to travel to hotels; and

6. as to HS: that she was drinking alcohol and smoking cannabis regularly, independently of the applicant; that she was deliberately passing herself off as older than she truly was; that the applicant met her outside a hotel in Windsor; that she was sufficiently unsupervised to be able to have overnight stays and interstate trips with the applicant.

The jury reasonably disbelieved substantial parts of the applicant’s evidence.

79. In respect of counts 1-13 and 18-22, the applicant advanced defences in addition to honest and reasonable mistake of fact. Relevantly, he said that the events referred to in Counts 1 and 2 took place after DA actually turned 16 in May 2013. He denied ever having purchased alcohol for HS or having sexual intercourse with her in his Hummer or by the river at Windsor as alleged in count 3. He denied having had sexual intercourse with HS in the period referred to in Count 4. He denied that the acts referred to in Counts 5-9 took place, and denied that he ever had sexual intercourse with HS at his Mascot apartment as alleged in those counts. Although he admitted that the act referred to in Count 10 took place, he said that it was at a different (later) time. He denied ever having had sexual intercourse with HS in his vehicle, and staying with her overnight in a hotel in the Blue Mountains, as alleged in Counts 11 and 12. He denied having had sexual intercourse with HS at the hotel in Prospect as alleged in Count 13. He admitted the acts referred to in Counts 14 and 15, at or about the time they were alleged to have occurred; and he admitted the act referred to in Count 16, of which there was photographic evidence, the photograph being referred to in Count 17. He denied that he was aware of the child abuse material on his laptop computer, referred to in Counts 19-22.

80. The convictions on Counts 1-13 thus involved rejection not only of the defence of honest and reasonable mistake, but also of significant other aspects of his evidence. In particular, the jury convicted him in respect of Counts 1 and 2, 3, 5-9, 11-13 and 19-22, notwithstanding his evidence that the acts of intercourse alleged in Counts 1 and 2 occurred at a time when DA was actually aged 16; that the acts of intercourse alleged in Counts 3, 5-9, and 11-13 did not occur; and that he was quite unaware that the child abuse material referred to in Counts 19-22 was on his computer.

81. There were multiple reasons for the jury to be sceptical of his evidence. They include, first, that he claimed to be unaware that the child abuse material other than the images of HS was on his computer, although it was contained in the same file in the same encrypted archive on his laptop protected by the same password as the material relating to HS; he suggested that it might have been saved on his computer by work colleagues. This was utterly implausible. Secondly, the applicant’s claim that the hotel room in the Blue Mountains was booked for an employee was also implausible. Thirdly, and perhaps most tellingly, in significant respects where his evidence conflicted with that of DA or HS, their versions were corroborated. His denial that DA or HS were ever in a school uniform when he met them was contradicted not only by the evidence of DA, but by the corroborating evidence of TG, ^[146] who said that both she and DA were in school uniform on the first occasion when DA met the applicant. Moreover, the applicant was aware that DA’s mother required that she be home by 4pm, and he complied with that requirement by driving her home from the motel, having collected her from the park. In those circumstances it is inherently likely that she was and remained in school uniform. Likewise, given that he sometimes picked up HS from school in early to mid afternoon, and she described her school uniform, it is very likely that she was wearing it when he collected her. While the circumstance that a person is in school uniform and therefore presumably a school student of course does not necessarily mean that they are under 16 years of age, the applicant’s denial that they were, in circumstances where the evidence to the contrary was corroborated, was plainly capable of detracting from his credibility. Further, the applicant’s denial that he ever purchased alcohol for HS or her friends ^[147] was contradicted by HS’s evidence which was corroborated by that of RR, ^[148] SM, ^[149] and TB. ^[150] And the applicant’s evidence that he and HS did not begin to correspond on Facebook until February 2013, ^[151] was contradicted by her evidence that he bought her flowers and a teddy bear for Valentine’s Day in February 2013, ^[152] which was corroborated by the evidence of RR, who said that the applicant messaged her on Valentine’s Day and said that he was going to pick her up to surprise HS, and that they stopped on the way to pick up HS when the applicant bought some flowers and a teddy bear. ^[153]

    146. T402.44-50.

    147. T589.01.

    148. T328.27.

    149. T362.06.

    150. T280.45-281.04.

    151. T580.01.

    152. T306-308.

    153. T326-327.

82. DA admittedly deceived her mother about her relationship with the applicant; it would have been extraordinary had she not. HS admittedly falsely told the applicant that she was 15 years old when they first met; further, when first interviewed by police she said that she thought she had told him that she was 15 or 16 years old. At trial, her evidence was that she now remembered that she said she was 15. The jury might, having heard and seen HS, been satisfied of her explanation that she now remembered that she in fact said that she was 15. But it if they thought it was reasonably possible that she had said that she was 16, they might properly have reasoned that her mere statement that she was 16 did not of itself provide reasonable grounds for a man of 32 years to believe it – especially if the jury accepted that, as both complainants testified, he himself misrepresented that he was only 22 or 24.

83. Thus, contrary to the submission on behalf of the applicant that his evidence was not substantially shaken as to his belief and that he presented as honest as to the fact that the young women were legally capable of entering into a consensual relationship, it is clear that his evidence was not such as to cause the jury to entertain a reasonable doubt as to his guilt of any of the charges.

There was direct evidence that the complainants told him their true age.

84. DA gave evidence that in their initial Facebook conversations she told the applicant that she was 14 years old and in Year 8 at school: ^[154]

    154. T113.50-114.22.

“Q. Was there any discussion about what year you were in at school?

A. Yeah.

Q. And what was that?

A. I was in year 8 at the time.

Q. What was the discussion that you had with Nathan Tomlinson?

A. To me it was a generic - you know, what I did at school. Who I hung out with. What I did in my off time, and, yeah, just that I was in year 8. I took certain classes. Like, home economics. Just what I did in those classes. Just generic stuff.

Q. Was there any discussion about your age?

A. Yes. I told him my age because we discussed that if we had to meet that we couldn't tell anybody because I was underage.

Q. Did you tell him your exact age at that time?

A. Yes.

Q. What was that age?

A. 14.

Q. You talked about this being a discussion about what would happen if you met?

A. Yes.

Q. Did that mean that you told him your age at a time prior to you meeting with him in person?

A. Yeah, I did, yes.”

1. Shortly after count 3 occurred and shortly before she turned 14, the victim told the applicant that her true age was 13. When she told him this he was upset that she had lied to him. She then asked his age and he said that he was 24. This was a lie; he was in fact 32 years old. On her evidence, after she disclosed that she was 13 and not 15 the two of them had sexual intercourse;

2. It was after the victim told the applicant that she was 13 years old that the applicant asked her to be his girlfriend.

261. If the sentencing judge accepted the evidence of the two victims that they each told the applicant how old they were, then it follows that her Honour would have to have been satisfied beyond reasonable doubt that the applicant knew that both victims were under 16 years at the time of the relevant offences. To put this another way, the only way in which the sentencing judge could have had a reasonable doubt on this question would be if she did not accept the evidence of the two victims on this topic. Despite this, at no stage in the remarks on sentence did her Honour make any reference to the demeanour or presentation of the witnesses when making the relevant findings nor explain why she did not accept that aspect of their evidence as to telling the applicant their true age(s).

262. In addition to the evidence of the victims referred to above, there was other evidence as to the applicant’s knowledge including the evidence of TB referred to above that she received a Facebook message about the applicant sleeping with a 15-year-old (this was in fact sent by HS). There was also tendency evidence, including from the child abuse material, indicating an interest in children under 16.

263. Although her Honour set out in some detail why she had a “small but reasonable” doubt about this question, she did not address the credibility of the victims directly. Instead she provided five reasons for having a doubt about whether the applicant knew that each of DA and HS was under 16 years of age.

264. First, her Honour noted that there was no clear evidence that the applicant saw or took note of her age on her Facebook profile. Although that was a finding open to her Honour it does detract from DA’s evidence that she told the applicant she was 14 years old.

265. Secondly, her Honour concluded that the terms of the conversation in which DA and the applicant discussed that she was “underage” were unclear including as what was “underage” meant in that context. But DA had given clear evidence that she told the applicant on Facebook (before meeting in person) that she was 14 years old and in year 8 at school, including in the context of the conversation about her being “underage”. DA’s evidence was as follows:

“Q. Was there any discussion [on Facebook prior to meeting] about what year you were in at school?

A. Yeah.

Q. And what was that?

A. I was in year 8 at the time.

Q. What was the discussion that you had with Nathan Tomlinson?

A. To me it was a generic you know, what I did at school. Who I hung out with. What I did in my off time, and, yeah, just that I was in year 8. I took certain classes. Like, home economics. Just what I did in those classes. Just generic stuff.

Q. Was there any discussion about your age?

A. Yes. I told him my age because we discussed that if we had to meet that we couldn't tell anybody because I was underage.

Q. Did you tell him your exact age at that time?

A. Yes.

Q. What was that age?

A. 14.

Q. You talked about this being a discussion about what would happen if you met?

A. Yes.

Q. Did that mean that you told him your age at a time prior to you meeting with him in person?

A. Yeah, I did, yes.” (emphasis added)

266. In this context, it seems to me that “underage” could only have referred to being under the age of consent. The applicant denied that conversation and said that DA told him she was 16 when they first met in person. But there was no ambiguity in DA’s evidence that the applicant knew her true age and that they had discussed making their relationship public after she turned 16. DA said that they had the following conversation before the first time she went to the hotel and had sexual intercourse with the applicant:

“Q. Was there any discussion about your age at that time?

A. Yep. So, we discussed that because I was only 14, I didn't want to tell anybody that we were together, because I didn't want my mum to find out, and freak out because he was older than what I was.

Q. Did Nathan say anything about that?

A. Yes, so he said that we would just wait until I was 16, and then we could tell whoever we wanted.”

267. Thirdly, her Honour noted that although DA gave evidence to the effect that they would not obviously meet up because she was “underage” they did at times meet up publicly and did not have sexual intercourse until they had met up on about the fifth occasion. But DA’s evidence was that they only met up in a public park and did not go to places such as shopping centres, cafes or restaurants (where they would be more likely to be seen by other people). It is difficult to see how the fact that they would meet in a park, without more, could undermine DA’s evidence that they did not “obviously” meet up because she was underage.

268. Fourthly, her Honour noted that there was evidence that DA deceived her mother about the relationship because she was worried that her mother would not approve given that the offender was older, showing a concern on DA’s part about the age gap between them and a willingness to lie about it. Although so much can be accepted, this fact did not compel a conclusion that DA lied on oath when she gave evidence that she told the applicant her true age.

269. Finally, her Honour noted that DA was free enough to travel to hotels with the applicant but needed to be home quite soon after school. The evidence was that the hotel they went to was a 20 minute drive from DA’s house, which was the furthest distance they could go while returning to her home by 4pm (when DA was required to be home). Further, DA’s evidence was that whenever they went to the hotel, DA stayed in the car while the applicant made the hotel booking. Again, it is difficult to see how this evidence could detract from the reliability of DA’s evidence as to having told the applicant her true age.

270. Although the matters identified by her Honour were relevant to the fact-finding process, I am not satisfied that any of them explain why her Honour did not accept DA’s evidence that she told the applicant her true age.

271. Similarly, in relation to HS, her Honour identified five factors which gave rise to her having a reasonable doubt as to whether the applicant knew that she was under the age of 16.

272. The first factor was that HS was leading a relatively independent life when she met the applicant. She had already been drinking alcohol and smoking cannabis regularly quite independently of the applicant. This was a finding open to her Honour, but it does not explain why HS’ evidence as to what she told the applicant about her age ought to be rejected.

273. Secondly, her Honour found it “quite likely that she did not reveal her true age on her Facebook profile” as at that time HS was attempting to pass herself as older than she actually was and she lied to her mother about that. This was also a finding open to her Honour. HS could not remember whether her age was on her profile. This finding does not involve any rejection of HS’ evidence and does not explain why her evidence about what she told the applicant ought to be rejected.

274. Thirdly, her Honour noted that HS and the applicant first met outside a Windsor hotel during the school holidays and, on her evidence, HS told the applicant that she was 15 years old. She agreed in her evidence that this was a deliberate lie. In her police statement, however, made at an earlier point in time HS said that she told the offender she was 15 or 16. Given that she was motivated to lie about her age in order to have a relationship with the offender her Honour considered it possible that she said to him that she was 16.

275. The offence under s 66C(2) (count 3) involved sexual intercourse with a child under the age of 14 years (and above the age of 10). The jury’s verdict on count 3 indicated that they were satisfied beyond reasonable doubt that the applicant knew or should reasonably have known at the time of count 3 that HS was aged under 14. It was shortly after count 3 (but before counts 4-16) that HS disclosed her true age shortly before her 14^th birthday. Her evidence was that the applicant was “angry” that she had lied to him. No finding was made by her Honour as to whether that conversation occurred or whether that aspect of HS’ evidence should be accepted beyond reasonable doubt. Given that HS did not tell the applicant her true age until after count 3, I am satisfied that the Crown case that he knew she was under 14 is not as strong as for the other counts. I shall return to that question below.

276. Fourthly, her Honour noted that HS said that she told the offender her real age just before her fourteenth birthday in January 2013. Her Honour made no comment as to whether she accepted or rejected this evidence.

277. Finally, her Honour noted that HS travelled for overnight stays and interstate visits with the applicant without parental supervision. Again, this was undisputed evidence but does not explain why HS’ evidence as to what she told the applicant about her age ought to be rejected.

278. In addition to identifying these five factors in relation to each of HS and DA, her Honour also referred to three other parts of the evidence relevant to the allegations made by both HS and DA: that the applicant had a sexual interest in young women at or around the age of 16 or younger; that the photographs of DA and HS depict them looking much younger than the applicant but not “demonstrably under 16 years of age” (although her Honour accepted it was difficult to tell from looks alone); and that the offender from time to time met up with DA and HS whilst they were in school uniform, noting that simply being at school does not itself establish that the victims were more likely to be under the age of 16.

279. None of these factors can take away from the credibility of the victims and their clear evidence that they told the applicant their true ages. Nor do they answer the fact that the jury obviously rejected much of the applicant’s evidence.

280. Given the differing bases upon which the applicant disputed each count, I am satisfied that the jury verdicts reflect a rejection of his evidence in a number of significant respects. The applicant had disputed the acts subject of counts 3, 5-9 and 11-13, and placed counts 1-2, 4 and 10 outside the timeframes specified on the indictment. The verdicts show that the jury clearly rejected his evidence and accepted the victims’ evidence. That this must be so can be seen by examining the applicant’s evidence in relation to each count and comparing it with each verdict.

281. The applicant’s evidence was that he first met DA in the summer “between 2012 and 2013”. It was put to him in cross-examination that they in fact met at the start of 2012 and he denied that. Counts 1 and 2 were charged as occurring between 26 May 2011 and 25 May 2012. The applicant’s convictions on these counts necessarily entailed a rejection of his evidence as to when he met DA.

282. As to the first occasion on which he had sexual intercourse with DA at the Country Comfort Motel, it was put to him that that occurred in early 2012. The Crown showed him bookings made at the motel under his name between April 2012 and October 2016 and suggested that he took DA to the motel in April or June 2012. The applicant denied this and stated that he first had sexual intercourse with DA at the motel in the “[m]iddle of 2013 roughly”. Counts 1 and 2 occurred between 26 May 2011 and 25 May 2012. As DA was born in May 1997, she would have turned 16 in May 2013. Had the jury accepted the applicant’s evidence as to the timing of these counts, that would have led to acquittals on those counts.

283. As for HS, the applicant’s evidence was that he met her in February 2013. While he admitted to sexual intercourse with HS, he said that this occurred for the first time in “late November 2013”. He denied ever having sexual intercourse with HS before that time. All of the acts subject of counts 3 to 13 (in relation to HS) were alleged to have taken place before mid-November 2013. Count 3 occurred between 1 November 2012 and 17 January 2013, count 4 between 18 January and 1 May 2013, counts 5-12 between 18 January and 13 November 2013, and count 13 between 12 and 15 November 2013. The applicant’s convictions on all these counts entailed a complete rejection of his evidence that he never had sexual intercourse with HS before “late November 2013”.

284. The applicant further denied ever having sexual intercourse with HS in his vehicle (the Hummer) or any other vehicle; or having sexual intercourse with HS next to the river at Windsor. As summarised above, the act the subject of count 3 was penile-vaginal intercourse that took place in the back seat of the applicant’s Hummer next to the river at Windsor. The act the subject of count 11 also occurred in a car, in a carpark near a hotel in the Blue Mountains. The applicant also denied specifically having sexual intercourse with HS in his vehicle on a trip to the Blue Mountains.

285. The circumstance of aggravation in count 3 was that the applicant took advantage of HS being under the influence of alcohol: Crimes Act, s 66C(5)(g). HS’ evidence was that she had been drinking UDLs that the applicant purchased for her and that she was “pretty drunk”. The applicant denied ever purchasing alcohol for HS or taking advantage of her intoxication.

286. The verdict of guilty on count 3 required the jury to be satisfied that HS was under the age of 14. HS was born in January 1999 and turned 14 in January 2013. On the applicant’s case, he did not meet her until February 2013. Significantly, the applicant’s conviction on count 3 (sexual intercourse with a person aged between 10 and 14 in circumstances of aggravation) entailed a rejection of his evidence as to: when they met; when they first had sexual intercourse; whether he ever purchased alcohol for HS; and that they did not have sexual intercourse in his Hummer or by the river at Windsor.

287. The applicant was shown a photograph of HS which she alleged was taken by the applicant on a trip to the Gold Coast in February 2013. The time stamp on the photograph indicated that it was taken on 10 February 2013. The applicant admitted taking the photograph but denied ever having sexual intercourse with HS prior to November 2013.

288. The applicant denied that HS disclosed her true age the night before her 14^th birthday. He said that he knew she was over 16 because she talked about driving on her learner’s permit and “looked” over 16 “physically” and dressed like she was over 16.

289. Counts 5-9 were acts that occurred in the applicant’s apartment in Mascot between 18 January and 13 November 2013 while TB was away. While the applicant admitted taking HS to his apartment in Mascot, he said that he took HS to his apartment in 2014 rather than 2013. He denied that they had sexual intercourse on that occasion, or on any other occasion at his apartment in Mascot. He said that she visited his apartment about six months after their sexual relationship commenced (thus in approximately May 2014, on the applicant’s evidence). He denied that HS stayed overnight at his apartment. The jury rejected this evidence and convicted the applicant on all of these counts as well.

290. Counts 11 and 12 occurred on a trip to the Blue Mountains in 2013. Count 11 involved sexual intercourse in a carpark in the applicant’s Hummer and count 12 took place later that night at a hotel that the applicant booked. The applicant admitted to taking HS to the Blue Mountains but denied staying overnight in a hotel and denied having sexual intercourse with her in a carpark in his Hummer. When shown a booking for a hotel made on 15 March 2013 on his personal credit card, he stated that this was for work. The jury clearly rejected this evidence and convicted the applicant.

291. Count 13 involved sexual intercourse with HS in a hotel near Wet’n’Wild in Prospect. The applicant admitted visiting that hotel with HS and her friend but denied having sexual intercourse with HS at all during that trip or at that hotel. Again, he was convicted on this count.

292. To summarise the effect of the applicant’s evidence, his case was as follows:

1. In relation to counts 1 and 2, these acts took place after DA turned 16 in May 2013.

2. As to count 3, he denied ever purchasing alcohol for HS or having sexual intercourse in his Hummer or by the river at Windsor and denied ever having sexual intercourse before the time she turned 14.

3. As to count 4, the applicant denied ever having sexual intercourse with HS in the relevant period.

4. As to counts 5-9, he denied the acts entirely and stated that he never had sexual intercourse with HS at his apartment in Mascot.

5. Count 10 was disputed but only as to timing.

6. In relation to counts 11 and 12, he denied ever having sexual intercourse with HS in his vehicle and denied staying overnight in a hotel in the Blue Mountains with HS.

7. As to count 13, the applicant denied having sexual intercourse with HS at the hotel in Prospect.

8. The applicant admitted the acts subject of counts 14 and 15 and placed them in a timeframe consistent with the charged acts.

9. The applicant admitted the act the subject of count 16, of which there was photographic evidence (the photograph was the subject of count 17).

293. The applicant’s convictions on counts 1-13 all entailed a rejection of his evidence.

294. Further, although not relevant to the defence of honest and reasonable mistake of fact, the applicant also denied knowledge of the child abuse material found on his laptop, subject of counts 19-22. Her Honour found his evidence on this issue to be “ludicrous” and “inherently unbelievable” (ROS at [116]).

295. It is significant that the only counts on which the applicant relied solely on the defence of honest and reasonable mistake of fact were counts 14, 15 and 16 (and, in relation to the child abuse material, count 17).

Conclusion

296. Having regard to all of these matters I am satisfied beyond reasonable doubt in respect of counts 1-2 and 4-16 that both victims told the applicant their respective ages and he thus knew how old they were at the time of the commission of the offences. In arriving at that conclusion, I have deferred to the advantage enjoyed by the trial judge in seeing and hearing the relevant witnesses, in particular the two victims and the applicant. It is to be accepted that the credibility of these three witnesses was a significant factor at trial. It is also to be accepted, as Brereton JA has noted at that it was open to the jury to accept some and reject other parts of the victims’ testimony. Despite this, and for the reasons I have set out above, I am satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 years. He stands to be re-sentenced on that basis.

297. I have come to a different conclusion for count 3. HS’ evidence was that she told the applicant she was 15 years old prior to that count and it was only after count 3 that she told him the truth: she was only 13 years old. The jury’s verdict on that count was consistent with them being satisfied beyond reasonable doubt that the applicant knew or should reasonably have known that HS was aged under 14 at the time of count 3. Unlike counts 1-2 and 4-16, however, there is no clear evidence indicating that the applicant had actual knowledge of HS’ age at the time of count 3. Accordingly, in relation to count 3 only I would give the applicant the benefit of the doubt and re-sentence him on the same basis as the trial judge did.

298. Given my conclusion that in relation to all counts except count 3 the applicant is to be sentenced on the basis that he knew the victims were aged under 16 years, it follows that my assessment of the objective seriousness of the offences is higher than that found by the sentencing judge. The sentencing judge found that the offending in relation to counts 1 to 16 was “below the mid-range” of objective seriousness, although not significantly so. Given that no SNPPs applied at the time of the offending, there is no requirement to make any finding of where the objective seriousness lies on a continuum of offending. Despite this, in order to reflect the fact that I have assessed the objective seriousness to be higher than that of the sentencing judge, I indicate that I would assess the objective seriousness of each offence to be well along the range of offences that could be classed as mid-range for offences of this nature.

296. I note that the Crown did not submit that the applicant should be sentenced on a different factual basis to that found by Judge Wass in relation to counts 17-22. Accordingly, he is to be sentenced on the same finding of objective seriousness as found by her Honour.

Subjective factors

300. No additional evidence was tendered on re-sentence. I have thus made the relevant findings based on the material before the sentencing judge.

301. I have already summarised the applicant’s subjective case. The favourable factors included that he had no prior convictions and a positive employment history. His fall from grace was significant and there can be no doubt that he has suffered emotionally and financially following his apprehension. The fact that the custodial environment has triggered latent trauma symptoms means that the custodial environment is more onerous for him.

302. The applicant submitted that the offences involved consensual relationships, without violence or force and there was no position of authority or trust. Counsel for the applicant relied on the applicant’s “favourable” subjective case and lack of criminal history. It was further contended that this Court would make more favourable findings about the applicant’s subjective case and prospects of rehabilitation than the sentencing judge did.

303. Counsel for the applicant relied on his evidence in the proceedings on sentence (extracted above at [163]-[172]) in which he denied a sexual interest in girls aged 16 or under and stated that he would avoid them “like the plague” in case they “throw charges at [him]”. It was submitted that this was merely an inarticulate way of stating that he would not put himself in a similar situation in future.

304. I have already found under ground 2 that no error is disclosed in her Honour’s finding that the applicant has “almost no prospects” of rehabilitation. Despite this I would make a slightly more favourable finding. It seems to me that his opportunity to offend will be reduced once he is released given that he will not be able to use his successful career to groom potential victims and it will be more difficult for him to lie about his age as he will be significantly older by the time he is released.

305. The applicant’s risk factors for offending remain unclear. They have never been identified or addressed. The applicant has shown no remorse or insight into his offending. I would find special circumstances, as her Honour did, on the basis of the applicant’s PTSD.

306. The applicant is to be re-sentenced for 22 serious offences: 16 offences of sexual intercourse with a child and 6 offences involving the production or possession of child abuse material. The offences were not opportunistic; they involved planning, forethought and grooming behaviour. The criminal behaviour spanned several years and two separate victims over distinct periods of time.

307. In relation to count 3, the legislature intended to provide for harsher penalties where the victim is aged under 14 and where an offender takes advantage of the child’s intoxication. Count 3 took place in the context of a pattern of grooming behaviour, including purchasing alcohol for the victim, driving her around in his vehicle and having sex with her in the vehicle when she was “pretty drunk”. Count 3 would necessarily carry a harsher penalty in the circumstances. Despite this, I would nominate a lower indicative sentence for count 3 than her Honour did. There is no applicable SNPP and the applicant is to be re-sentenced on the basis that he had an honest but unreasonable belief that HS was 14 years of age or older.

308. Despite the fact that I would not re-sentence the applicant on count 3 on the basis that he knew that HS was under the age of 14, the need for general deterrence remains important. The Crown relied upon the following passage in Glade v R [2020] SASCFC 83 in this respect at [31]:

“… because an associated purpose underlying the offence of unlawful sexual intercourse is to protect young people against the consequences of their own immaturity, and not merely to deter older people from taking advantage of, or exploiting, the sexual inclinations of the young, general deterrence remains important even when there is a genuine belief that the victim is older. This is an issue concerned with the protection of the community.” (footnotes omitted)

309. I have considered all of these matters. I have arrived at an indicative sentence for count 3 which is lower than that indicated by her Honour and I have arrived at higher indicative sentences on all of the remaining charges excluding the child abuse material charges. In exercising my sentencing discretion afresh, the applicant stands to be sentenced on all counts except count 3 on the basis that he knew that the victims were under the age of 16 rather than having an honest but unreasonable belief in that regard.

310. By a process of instinctive syntheses, I have arrived at an aggregate sentence slightly higher than that imposed by the sentencing judge. As I observed in RO v R [2019] NSWCCA 183 at [123], I do not consider it appropriate to set out this aggregate sentence (and proposed indicative sentences) in circumstances where I do not propose to impose it.

311. I would dismiss the appeal against sentence on the basis that no other (lesser) sentence is warranted at law.

312. CAVANAGH J: I have had the considerable advantage of reviewing the judgments of Brereton JA and N Adams J. In terms of the conviction appeal, I agree with the orders proposed by Brereton JA. The appeal should be dismissed. In my view, there is no merit in Ground 1. No miscarriage of justice was occasioned by the unresponsive answer referring to the applicant being in gaol.

313. In terms of Ground 2, I have carried my own independent assessment of all of the evidence. In my view it was well open to the jury to be satisfied as to the applicant’s guilt beyond a reasonable doubt. As such, in my view, Ground 2 also fails.

314. In terms of the sentence appeal, I agree with the orders proposed by N Adams J and with her Honour’s reasons and thus would also dismiss the sentence appeal.

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Endnotes

Decision last updated: 11 February 2022