W v R - [2014] NSWCCA 110

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: W v R [2014] NSWCCA 110
Hearing dates: 18 March 2014
Decision date: 18 July 2014
Before: Bathurst CJ at [1]; Hoeben CJ at CL at [196]; Bellew J at [197]
Decision:
(1)Leave to appeal against conviction and sentence granted.
(2)Appeal dismissed.

Catchwords:
CRIMINAL - Subramaniam direction -whether obligation to give direction - Mental Health (Forensic Provisions) Act, s 21

CRIMINAL - Longman warning - judge alone trial - whether obligation to give warning - Evidence Act, s 165B

CRIMINAL - Murray direction - whether direction given was followed - judge alone trial - judgment must adequately expose reasoning process - justice to be seen to be done - mere incantation of warning and directions insufficient

CRIMINAL - conviction - whether verdict unsafe and unsatisfactory - whether open to judge to be satisfied beyond reasonable doubt as to the appellant's guilt on the evidence - advantage of hearing and seeing evidence at trial

CRIMINAL - sentencing - failure to take into account mental state at time of offences -expressly eschewed by counsel at trial - lack of evidence as to mental state
CRIMINAL - sentencing - whether manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 61J, 61P, 66C and 66D
Criminal Procedure Act 1986 (NSW), ss 33 and 133
Evidence Act 1995 (NSW), ss 9, 165A and 165B
Mental Health (Forensic Provisions) Act 1900 (NSW), ss 21, 21A, 21B, 22 and 23
Cases Cited: Alchin v Daley [2009] NSWCA 418
Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372
Beldon v R [2012] NSWCCA 194
CJ v Regina [2012] NSWCCA 258
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
EK v The Queen [2010] NSWCCA 199; (2010) 79 NSWLR 740
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Pettitt v Dunkley (1971) 1 NSWLR 376
R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241
R v Keyte [2000] SASC 382; (2000) 78 SASR 68
R v Murray (1987) 11 NSWLR 12
R v Power [2003] SASC 77; (2003) 141 A Crim R 203
R v TJ [2009] NSWCCA 257; (2009) 76 NSWLR 167
R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1
Reeves v R; R v Reeves [2013] NSWCCA 34
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: W (Appellant)
The Crown (Respondent)
Representation: Counsel:
P Wass SC / S J Carr (Appellant)
S Herbert (Crown)
Solicitors:
Legal Aid NSW (Appellant)
Director of Public Prosecutions (Crown)

File Number(s): 2009/332253
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-10-17 00:00:00

Before:

Solomon J

File Number(s):

2009/332253

Judgment

BATHURST CJ: W (the appellant), was indicted on 10 charges of sexual offences arising out of events said to have taken place on or about 30 September 1992 (Counts 1-5) and between 1 October 1992 and 31 October 1992 (Counts 6-10).

Count 1 on the indictment charged that on or about 30 September 1992 the appellant indecently assaulted AH (the complainant), a person under the age of 16 years, contrary to s 61M(1) of the Crimes Act 1990 (NSW) (the Crimes Act).

Count 2 on the indictment charged that on or about 30 September 1992 the appellant had sexual intercourse with the complainant without her consent and knowing she was not consenting in circumstances of aggravation (namely, that the complainant was under the age of 16 years), contrary to s 61J of the Crimes Act.

Count 3 was an alternate count to Count 2. It charged that on or about 30 September 1992 the appellant had sexual intercourse with the complainant, a person under the age of 16 years, in circumstances of aggravation (namely, that at the time of the offence the complainant was under his authority) contrary to s 66C(2) of the Crimes Act.

Count 4 charged that on 30 September 1992 the appellant attempted to have sexual intercourse with the complainant without her consent and knowing she was not consenting in circumstances of aggravation (namely, that at the time of the offence the complainant was under the age of 16 years) contrary to ss 61J and 61P of the Crimes Act.

Count 5 was an alternative to Count 4. It charged that the appellant attempted sexual intercourse with the complainant, a person under the age of 16 years, in circumstances of aggravation (namely, that at the time of the offence the complainant was under his authority) contrary to ss 66C(2) and 66D of the Crimes Act.

Count 6 charged that between 1 October 1992 and 31 October 1992 the appellant indecently assaulted the complainant, a person under the age of 16 years, contrary to s 61M(1) of the Crimes Act.

Count 7 charged that between 1 October 1992 and 31 October 1992 the appellant had sexual intercourse with the complainant without her consent and knowing she was not consenting in circumstances of aggravation (namely, that at the time of the offence the complainant was under the age of 16 years) contrary to s 61J of the Crimes Act.

Count 8 was an alternative to Count 7. It charged that the appellant had sexual intercourse with the complainant, a person under the age of 16 years, in circumstances of aggravation (namely, that at the time of the offence the complainant was under his authority) contrary to s 66C(2) of the Crimes Act.

Count 9 charged that between 1 October 1992 and 31 October 1992 the appellant attempted to have sexual intercourse with the complainant without her consent and knowing she was not consenting in circumstances of aggravation (namely, at the time of the offence the complainant was under 16 years of age) contrary to ss 61J and 61P of the Crimes Act.

Count 10 was an alternative to Count 9. It charged that the appellant attempted to have sexual intercourse with the complainant, a person under the age of 16 years in circumstances of aggravation (namely, that the complainant was under his authority) contrary to ss 66C(2) and 66D of the Crimes Act.

The appellant was found unfit to plead. As a consequence a special hearing under s 21 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Forensic Provisions Act) was required. The hearing was by a judge alone.

The judge who conducted the hearing (the trial judge) found the appellant not guilty of Counts 2, 4, 7 and 9. He found on the limited evidence available the appellant committed the offences described in Counts 1, 3, 5, 6, 8 and 10 (Forensic Provisions Act, s 22(1)(a)). The judge imposed a limiting term of imprisonment on each of those counts, partly accumulated, but in total commencing on 8 March 2013 and expiring on 7 June 2016. It will be necessary to deal with the structure of the sentence later in the judgment.

Section 22(3)(c) of the Forensic Provisions Act provides that a verdict in a special hearing is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings. Similar provision is made for an appeal from the imposition of a limiting term under s 23(3) of the Forensic Provisions Act.

The appellant has appealed against the verdict in respect of Counts 1, 3, 5, 6, 8 and 10 and against the severity of the limiting term. Leave to appeal was not sought in relation to the sentence appeal or in respect of Ground 4 of the conviction appeal which raises factual issues. Such leave in my opinion was necessary. However, no point was taken on this issue in the written submissions or at the hearing of the appeal. In these circumstances, it is appropriate that leave be granted.

The grounds of appeal are as follows:

"Conviction Appeal:

Conviction Ground 1 - Failure to Properly Take Into Account Subramaniam.

Conviction Ground 2 - Failure to Give and Take Account of a Proper Longman Direction.

Conviction Ground 3 - Failure to Give or Give Effect to a Murray Direction.

Conviction Ground 4 - The Verdict is Unsafe and Unsatisfactory.

Sentence Appeal:

Severity Ground 1 - Failure to Take into Account the Applicant's Likely Mental State at the Time of the Offences.

Severity Ground 2 - The Sentence is Manifestly Excessive."

Having regard to the nature of the grounds of appeal and the submissions of the parties, it is necessary to set out the course of the trial in some detail.

The hearing

(a) The evidence of the complainant

The complainant gave evidence that she was born on 15 June 1978.

She said that her mother, SLW, and the appellant formed a relationship when she was very young. She remembered living with the appellant and her mother at farms, first around the Canowindra area and then the Casino area.

The complainant said that her mother and the appellant got married when she was about 10 or 11 and her sister Jacqueline was born when she was about 12.

The complainant said that the first sexual interaction she had with the appellant was around the time she was aged 11. She said she remembered her mother being pregnant and the relationship between the appellant and her changed. It started off with small interactions. She said she noticed that the appellant was spending more time talking to her and would start touching her inappropriately. She said that the appellant would touch her breasts and if she were sitting on his lap he would push his penis against her.

The complainant said that when she was about 13 or 14 the appellant tried to have sexual intercourse with her. She said that it happened more than once, saying that apart from two occasions she could not put a time frame on it.

The complainant gave evidence that in 1991 she was given a diary by a person she described as her best friend, CW, in which she wrote "everything that was current in my life at the time, anything that was important, day to day things, the way I felt, things that happened to me, things I did". She said that she could recall the date of one of the occasions on which the appellant attempted to have sex with her because she had a reference to it in her diary and also because it correlated with other things that were happening in her life at the time.

In that context the complainant referred to an entry in her diary of 30 September 1992 at which time she said she was 14 years of age, living at a house in Cable Street at Canowindra. 30 September 1992 was the date on which the events, the subject of Counts 1- 5, were alleged to have taken place.

The complainant said that on 30 September 1992 she thought that she was at home with the appellant and her sister was somewhere in the house, perhaps asleep. She said that the appellant had been talking about his plans for the future and was touching her and fondling her. She said that the appellant touched her on her breasts and her genitals whilst they were in the lounge room. She said that at the time she was sitting on the appellant's lap whilst he was on a chair. That alleged incident was the subject of Count 1.

The complainant said thereafter they went into the bathroom and the appellant tried to have sex with her but was not able to have complete sexual intercourse at the time. She said that she and the appellant were in the bathtub, both of them standing up.

The complainant said that the appellant could not get his penis completely into her vagina but it went in to some extent and it hurt a lot. She said he did not achieve complete penetration of her vagina but that his penis did penetrate her genitalia.

This incident was the subject of Count 2 and the alternate Count 3.

The complainant said that this went on for possibly up to half an hour. She said the appellant then tried to put his penis into her anus. She said that she was not entirely sure that he was able to do so although subsequently she said his penis did enter her anus, but not far. She said thereafter they finished in the bathroom, she went off to her bedroom and he went off frustrated and angry.

The complainant said she referred to these incidents in her diary. It is convenient at this stage to set out the extract from her diary which became Exhibit C:

"Wed 30/9/92

Today was a shit. I honestly think [W] is going to leave us. And its mostly my fault. The brightest parts of my day has been when Christine and Glenn rang up and coming here - to Belinda's.

[W] said that I was to make sure Jaki knew that he tried to be a good father for her. Then he went on to say what was Jaki's, like what she was entitled to and after that he implyed [sic] that you loved him, that he was leaving. Its my fault, not entirely but partly, because I wouldn't take part in P.C.

P.C. is something very involved, personal and threatening, scary. It's so personal it could totally ruin [W]'s life, so I daren't say much about it, for fear of causing more pain and fear of him.

It is also partly HIS fault too because he is being so frigging pig-headed and obnoxious. If he does leave, part of me will leave too. Part of me will disapear [sic] because the way I can stand to live life in my house is to lean on [W] for support.

I cant stand to see Mum upset either, as much as she pisses me off, it still hurts. Then to have Jaki grow up without a father - like me, all these things are a part of me, that make up my sense of family. Without my family it would just be, Jaki, Mum and I. No details, no light, no joy, happiness, a dull incomplete homelife.

Glenn really cheered me up - Thank you Glenn. I really needed it. I pray I can go to Wyangalla and camp with them this week and I also pray Mr Watson wasn't listening. Oh time to go to bed."

The complainant said that she made the entry in her diary shortly after the incidents of 30 September 1992. She explained that she wrote that she thought the appellant was going to leave her family because she knew he was disappointed with what occurred in the bathroom and that there was a lot hinging on the occasion.

The complainant said that the reference in her diary to "P.C." was a reference to the sexual contact which had occurred. She said she used those letters to throw the appellant off the trail of what she was writing. She stated that she was certain that the appellant had been reading her diary and had been removing some entries. She said she could see where pages had been torn out.

The complainant said that by 30 September 1992 the appellant and her mother were estranged and were in separate bedrooms. Her evidence was to the effect that the incidents the subject of Counts 6-10 occurred in the morning in the lounge room and in her mother's bedroom whilst her mother was at work.

She said on that day in question the appellant was pushing himself against her, his penis against her, sucking her nipples and touching her vagina. She said she was still in her pyjamas. That alleged incident is the subject of Count 6.

The complainant said that thereafter she and the appellant went to her mother's room and got into her bed. She said the appellant had her sitting over the top of his body and he was pushing her body down onto his penis and at some stage he tried to remove her pyjama pants and penetrate her as well. She said they were later in another position were the appellant was behind her and she was on her knees. She said he did not obtain complete penetration but his penis did go into her genitalia. This incident was the subject of Counts 7 and 8.

The complainant said that for a short time thereafter the appellant was lying on top of her. She said that it was only for a short time. He tried to penetrate her vagina but she was not willing to be part of it so she made it difficult and did not let him penetrate her entirely. She said it was not for a very long time, about a minute, and he did not achieve complete penetration. Immediately after that she was asked whether he penetrated her genitalia at all and she said yes. This alleged incident was the subject of Counts 9 and 10.

The complainant said that she told her friends, CW, ST and MM about the incidents. She said she also told a teacher, JS, who was now dead.

In cross-examination the complainant stated that she went to Belinda's house after the events of 30 September 1992, taking her diary with her. She admitted she did not tell Belinda anything about what occurred on that day.

The complainant was asked questions in cross-examination about the words in her diary "PC". She said the words "wouldn't take part in PC" referred to the fact that she made it difficult for him to have full intercourse with her. She was referred to her evidence that she used the letters "PC" as a code so the appellant would not know what she was talking about and was asked to explain how, if he was involved in attempted sexual assault, he could not understand what "PC" was. She gave the following answer:

"A. When he was involved in sexually abusing me and he would read these entries, the idea was that he wouldn't have any direct reason for ripping it out and, therefore, it would - it would prove to him that he couldn't go and pull pages out of my diary because that would - that would contradict everything he stood for."

She was also asked the following questions about the entry and gave the following answers:

"Q. Now, are you able to tell us how you came upon the letters PC to stand for what you say were sexual assaults by [W]?

A. I chose that because I had no - it was by chance.

Q. It was by chance. Something very involved, personal and threatening, scary, so personal it could totally ruin [W]'s life, yes?A. Yes.

Q. Could it have been referring to the marijuana that you tell us he was growing on the property?A. No.

Q. You tell us in your statement that he was growing marijuana on the property and smoking a lot of marijuana at the time, don't you?A. He was."

The complainant was also asked questions about the entry in the diary "It's my fault, not entirely but partly, because I wouldn't take part in P.C.". She said "the long and short of that part of the entry" was that she thought the appellant was going to leave because she wouldn't take part in allowing him to have sex with her. She said she wrote, "It is also partly HIS fault too" because she was a child when she wrote it. She said from her perspective as a child with somebody who was taking care of her, she felt very guilty that she could not make him happy and that what she was referring to by "his fault" was that she could see quite clearly it was his fault that he was molesting her.

The complainant acknowledged she wrote the words, "If he does leave, part of me will leave too. Part of me will disapear [sic] because the way I can stand to live life in my house is to lean on [W] for support" a few hours after she was sexually assaulted.

The complainant was also questioned about what she had said in her statement to the prosecuting authorities that she told the teacher, JS about the sexual abuse. She was referred to her statement to the police to the following effect:

"In my diary I have made a note that I told a school teacher.... He was my physical development teacher at the Canowindra High School. I was in year 7 at the time. [He] is dead now. I'm not sure if he made notes or told anyone what I told him. In my diary I made notes that I told him on 18 August 1991."

The complainant was unsure why she referred to 18 August 1991 in her statement. She was then referred to her diary entry of 18 August 1991:

"Hi. Last week mum and [W] were at each other's throats. Mum was seriously thinking of getting a divorce. That really worried me. On Thur afternoon English was last period. I started bawling. [JS] and I talked for about 20 minutes. The next day I talked to [JS] for a whole period. He was in a way counselling me but he was being a friend too. Luke was the first I told about it."

The complainant said that at the time of the entry in her diary she had told JS that her stepfather was assaulting her. She was unable to explain why JS did not do anything about it except to say that it was a small town.

The complainant was also asked about a diary entry of 2 November 1991 which was to the following effect:

"I've totally ballsed up. I've stuffed [W]'s life up completely. About six months ago [W] started teaching me about what he has worked for most of his life. It's how you use your brain to think properly. I've ruined everything. He is in the lounge room screwing all his notes up. Yesterday he gave me a trial to see I would go on teaching my kids what he is teaching me to preach to other people. I chose all the wrong choice [sic]. On the third and final go he said to me, after I chose, 'You're free to go.' It sounded so final, so definite, I feel guilty, like a murderer. I am a murderer in a way because I murdered all he has believed in, but what I can't work out is why I should be guilty. I mean it was his choice to throw everything away. Despite that I still feel grief. I don't think [W] loves me, but I wish he did. I love him. [W] won't ever forgive me. I wouldn't. I feel really horrid."

It was put to the complainant that this had nothing to do with the appellant sexually abusing her and she gave the following answer:

"A. It does. It does. What you don't see in this is my emotional account of the conversation we would have had. The conversation was around pursuing his life's work, which was for us to have a relationship which would continue on and in his - in his words, to procreate. So that's what this is with regard to, was that I was upset because I had kept turning him away. I couldn't fulfil what he wanted emotionally and physically I wasn't willing to do it and that's why I've recorded that, 'I feel so guilty. I feel like a murderer. Everything he has worked toward I've ruined and I feel - I feel bad', and that states - that goes towards showing you the type of life I was living."

It was put to the complainant and she agreed that there was no reference to the October 1992 incidents in her diary.

The complainant was recalled subsequently to give evidence and said that she wrote to her friend, CW, about everything that was going on in her life and anything that was going on at the time.

(b) The evidence of SLW

SLW, the complainant's mother, gave evidence that whilst she was working the children were left in the care of the appellant. She said that before the complainant did the Higher School Certificate she and the appellant were experiencing relationship difficulties and he had moved into a separate bedroom. SLW said that the appellant left the house in 1994. She said that she and the appellant slept in separate rooms for about nine months before that. She denied in cross-examination that he moved into a separate room because he had a bad back.

SLW confirmed that the appellant had problems with his back, particularly in the colder months.

(c) The evidence of CW

CW said she was very good friends with the complainant and that they spent a great deal of time together from Years 7 to 10.

She stated that she recalled the complainant staying at her house in about September 1991. CW said at the time the complainant was crying and told her that the appellant had been touching her and fingering her. She said the complainant told her she could not tell her mother because she was worried that her mother would not love her anymore and she would get taken away from her mum and her younger sister.

CW said she remembered receiving a letter from the complainant towards the end of 1992. She said that the letter said that the appellant "had tried to do it again". She said she did not keep the letter.

CW recalled that in 1994 the appellant told her she would like to tell somebody about what was going on and she wanted to talk to JS. She said she went to JS's office with the complainant and the complainant was upset and crying but she did not tell JS what was actually wrong.

The reasoning of the trial judge

The trial judge early in his judgment referred to the decision of the High Court in Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116, in which the High Court had indicated the appropriate directions to be given to a jury at a special hearing. His Honour said that he gave himself such directions. His Honour also set out the verdicts which were available to him under s 22 of the Forensic Provisions Act.

His Honour also gave himself the following directions which he subsequently described as warnings:

"Insofar as the offences are concerned I give myself the following directions:

That the Crown bears the onus of proof at all times;

That the standard of proof in each of the counts is proof beyond a reasonable doubt;

That the case depends on my accepting the evidence of [AH] ('the complainant'). There is no independent objective evidence and the complainant is the only Crown witness capable of giving direct evidence about the central events in the case. That being the case I must scrutinise the complainant's evidence on each charge very carefully before determining whether I accept her evidence on the critical maters to which she gave evidence;

That I should consider the complainant's evidence in the context of all the other evidence including the accused evidence;

That the balance of the Crown case is peripheral and was given to assist me to resolve the fundamental question, in relation to the central aspects of each of the allegations, of whether I was prepared to accept the complainant's evidence beyond reasonable doubt;

That these alleged events occurred in 1992 and I direct myself that there has been a significant delay in reporting the allegations and that this has resulted in a significant forensic disadvantage to the accused. In relation to that I am satisfied that the accused, leaving aside the fact that he has been determined as being unfit to be tried, did not have the capacity as a consequence of the delay in time of calling evidence to refute the allegations made;

That the delay in time leads to the possibility of distortion in recollection by the complainant and other witnesses;

That the delay in bringing these proceedings, has prevented the accused from being able to point to circumstances which may have contradicted the complainant;

That had the accused learnt of the allegations earlier in time he may have been able to recall events and relevant details that could have been used by his counsel in cross-examination of the complainant:

That the accused, if he learnt of the allegations earlier, may have been able to find witnesses or other evidence that may have contradicted the complainant's evidence or supported his case;

That the accused as a consequence of the delay has been placed in a position of significant disadvantage which may have prejudiced the conduct of the defence and that being the case I warn myself that before I find the offences proved I must carefully scrutinise the prosecution case."

The trial judge summarised the evidence in chief of the complainant, which I have referred to above. He also noted a number of matters arising in cross-examination. First, that the complainant immediately after the incident on 30 September 1992 went to her friend Belinda's house but did not say anything to her. Second, that there was no reference in her diary to speaking to JS about sexual abuse notwithstanding she told the police she spoke to him in August 1991.

His Honour also summarised the evidence of CW to which I have referred in pars [52] - [55] above.

His Honour referred to the evidence of SLW that the appellant moved into a spare room in the house about nine months before he left, which was in 1994. He referred to the submission by counsel for the appellant that the complainant was clearly in error in stating that the appellant and her mother were living in separate rooms when the incidents in 1992 occurred. He also referred to the submission that the complainant's evidence that she told JS about the incidents could not be accepted. He also noted the submission that the contents of the diary were ambiguous and did not refer directly to sexual intercourse and to the fact that there was no reference to the October incidents in the diary.

His Honour repeated the direction to himself that the complainant's evidence must be scrutinised with great care. He said that having scrutinised her evidence very carefully he accepted her evidence and was satisfied as to her reliability.

The trial judge indicated he was satisfied that the complainant had made complaint in respect of incidents which preceded the 1992 events and had recorded the September 1992 events in her diary. He said that did not corroborate the complainant but made it more believable than it would have been had she not recorded it.

The conviction appeal

The submissions of the parties

The appellant at the outset of his written submissions put a number of matters relating to the evidence which both he and senior counsel who appeared for him at the hearing submitted were relevant to each of the grounds of appeal.

The appellant referred in particular to the fact that there was nothing in the diary kept by the appellant prior to 30 September 1992 regarding any sexual interaction with the appellant notwithstanding the complainant's statement that such interaction occurred prior to that time. He also pointed to the fact that the alleged offences in October 1992 were not referred to in the diary.

The appellant referred to the fact that although the complainant said she made the diary entry at the home of Belinda on 30 September 1992, the day the events the subject of the first five counts were said to have occurred, she did not tell Belinda of the incident.

The appellant referred to what was put to the complainant in cross-examination, namely that the words in the diary "I would not take part", suggest that the complainant had nothing to do with the incident in question. He submitted that her explanation that she was an unwilling participant in "PC" warranted considerable scrutiny. It should be noted in this context that the trial judge acquitted the appellant of Counts 2, 4, 7 and 9, an element of each of which was absence of consent.

The appellant also submitted that the complainant's evidence that she used the code "PC" because she was concerned the appellant would read her diary as he had previously torn out pages did not bear close scrutiny. He submitted that the complainant's account that the entry in her diary, "There was one entry that had to be pulled out because somebody's lifestyle was at stake", reflected a threat of someone finding out the appellant was molesting her also did not bear close scrutiny.

The appellant submitted that it was inherently unbelievable that the use of the code "PC" occurred by chance, submitting that the complainant in her evidence was about to give a reason for the use of the code and then changed her mind.

Further, the appellant contended that the account by the complainant of the appellant's actions after the events of 30 September 1992, namely, that he was in the lounge room surrounded by papers, making noises, getting rid of papers and talking about how everything he had worked toward was all for nothing, could not be accepted in light of her diary entry of 2 November 1991 which she initially conceded had nothing to do with sexual activity but subsequently changed her evidence to say it was for "us to have a relationship which would continue".

The appellant emphasised there was no entry in the complainant's diary concerning the October 1992 events. Further, he pointed to the fact that her evidence that the appellant and her mother were occupying separate rooms at the time was inconsistent with her mother's evidence.

The appellant pointed to the absence of complaint. He pointed to the fact that the complainant said she had told her friends, SW and MM, about the incidents and they did not give evidence. He pointed to the fact that the only evidence of CW was that the complainant had told her in September 1991 that "[W] had been fingering her" and at the end of 1992 she wrote a letter saying, "[W] had tried to do it again".

The appellant pointed to the inconsistency between the complainant's evidence that she told JS about the abuse when she was in Year 10 and her statement to the police that she spoke to him in August 1991. He submitted that the diary entry of 18 August 1991 was inconsistent with her telling JS of any sexual abuse at that time as distinct from her concern that the appellant and her mother were thinking about a divorce. He also pointed to the fact that if JS was told, he did nothing about it and the evidence of CW was that she went with the complainant to see JS in 1994 and the complainant did not tell JS what actually was wrong.

The appellant also made some further general submissions which were said to be relevant to the first three grounds of appeal. He referred to the fact that s 21B(2) of the Forensic Provisions Act required that the determination of a judge at a special hearing must indicate the principles of law applied by the judge and the findings of fact on which he or she relied. Consistent with what was said by the High Court in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [28], he submitted there must be a reasoning process linking the principles of law and findings of fact and justifying these findings and the verdict reached.

The appellant also pointed to the fact that in a judge alone trial, justice must not only be done but be seen to be done and that that was not achieved by reciting some of the evidence and finding that notwithstanding some inconsistencies, the complainant was honest and compelling and thus the offences were proved.

The appellant stated the effect of s 133(3) of the Criminal Procedure Act 1986 (NSW) was that it was necessary to state why notwithstanding any required warnings, a particular verdict was reached. He submitted this could not be done in a perfunctory manner and must be seen to have been done.

The appellant submitted that where the judgment of the trial judge suggested he had not taken account of each of the warnings in reaching his verdict and did not invoke reasoning in line with the evidence relevant to each issue, he would not have satisfied the requirements of s 21B of the Forensic Provisions Act.

With that background, it is appropriate to turn to the specific submissions on each ground of appeal.

Ground 1

The appellant submitted that the effect of the decision of the High Court in Subramaniam v The Queen supra, was that the trial judge was required to take into account the following four matters:

The Appellant may not have been able to participate or contribute to his defence.

The Appellant may not have been capable of making a reasoned decision about that, or indeed other matters concerning the hearing, or even as to whether or not to plead guilty.

The special hearing is to be conducted so as to not prejudice the accused any more than his unfitness already may do.

There are various ways in which evidence at a hearing of this nature may be limited. The Appellant, for example, may have been unable to give evidence, or unable, by reason of his mental unfitness to give adequate instructions concerning the calling of witnesses who might assist his case, or, as to matters on which cross-examination could be based.

The appellant submitted that notwithstanding the trial judge's reference to Subramaniam v The Queen supra in his judgment, the direction required played no part in his reasoning.

The Crown submitted there was no basis for finding that the trial judge having referred to the applicable direction in Subramaniam v The Queen supra did not apply it.

Grounds 2 and 3

The appellant submitted that notwithstanding the provisions of s 165B of the Evidence Act 1995 (NSW), the trial judge was required to give himself a Longman warning (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79).

Senior counsel for the appellant submitted at the hearing that s 165B of the Evidence Act had no application in a non-jury hearing. She submitted in those circumstances the judge was bound by the common law. She submitted that the rationale for s 165B, that juries would take serious warnings as a direction to acquit, had no application to a judge and that there was, therefore, no reason why such a warning was not required in a judge alone trial.

In submissions filed following the conclusion of the hearing, the appellant submitted that the effect of s 165B(2) of the Evidence Act was that no direction was required under that section until an application for such a direction was made. He submitted that as no such application was made the section was not engaged.

The appellant submitted that by contrast an application was made for a Longman warning. He submitted that the effect of s 9 of the Evidence Act was that such a direction was not prohibited by s 165B if it was otherwise available under the common law.

The appellant pointed to the fact that in Reeves v R; R v Reeves [2013] NSWCCA 34 at [418] the Crown accepted that the common law principles applied in a trial without a jury.

The appellant submitted that although a request for a Longman warning was made, the trial judge did not direct himself properly in that regard and it was not properly applied in his reasons. He submitted the obligation was not discharged and not seen to be discharged.

The appellant noted that the trial judge indicated that because the case depended on him being able to accept the complainant's evidence, he must scrutinise her evidence very carefully before accepting her on the critical matters. The appellant also acknowledged that the trial judge had given himself the warnings to which I have referred to at par [57] above.

However, the appellant submitted that a proper Longman warning further required that the judge proceed with extreme caution, directing himself that recollection and particularly recollection of childhood events, is frequently erroneous and liable to distortion. It was submitted that the trial judge took no account of the danger that the complainant's recollection, although genuinely held, may have been inaccurate. He submitted that the real issue was that the complainant was unreliable rather than untruthful.

The appellant also submitted that the trial judge failed to direct himself in accordance with R v Murray (1987) 11 NSWLR 12 to the effect that it was necessary to scrutinise the uncorroborated evidence of a witness with great care before proceeding to a conviction (Murray direction).

The appellant submitted that the evidence of CW fell well short of corroborating what was alleged. He also submitted that as the diary was written by the complainant herself, it did not corroborate her evidence in the true sense and that the entries in the diary were, in any event, equivocal.

The appellant submitted that factors such as the complainant's age, the relationship between the appellant and the complainant's mother possibly giving rise to animosity and jealousy, the complainant's anger with the appellant, the feeling of guilt exhibited in her evidence and in the diary entries, the delay in complaint, the inconsistencies between her statements to the police and cross-examination and the inconsistency between her evidence and that of CW, all should have been referred to and considered. In these circumstances it was submitted that the trial judge erred in not giving effect to an adequate Murray direction.

The appellant submitted that a fair reading of the evidence of CW did not support the complainant and only went so far as to say she was told touching had occurred at the end of 1992. The appellant submitted that in light of the appellant's significant disadvantage, it was not open to the trial judge to regard the inconsistencies as not being material. He submitted that significant disadvantage arose to himself from his state of mind, the unexplained delay in making the complaint, the complainant's age, the sexual nature of the offences and the inconsistencies in the complainant's evidence.

The appellant submitted that the trial judge summarised the complainant's evidence but noted only two of the matters arising out of cross-examination, namely, the lack of contemporaneous complaint to the complainant's friend Belinda and the absence of any reference to her speaking to JS on 18 August 1991.

The appellant submitted that the trial judge did not consider the absence of a reference to the October incidents in the complainant's diary. He submitted that although the trial judge referred to the evidence of the complainant's mother that the appellant did not move into a separate bedroom until 1993, he did not pay regard to the fact that that was inconsistent with the complainant's evidence of what occurred in her mother's room in 1992.

The appellant submitted it was not enough for the trial judge merely to say the complainant was highly intelligent and her evidence had a ring of truth to it.

The Crown submitted that having regard to s 165B(4) of the Evidence Act, the trial judge would have been in error if he had given himself a Longman warning. It was submitted that the warnings the trial judge gave himself were appropriate and no miscarriage of justice had been demonstrated.

In supplementary submissions filed after the hearing, the Crown submitted that the effect of s 21(1) of the Forensic Provisions Act was to make applicable to the special hearing the same provisions and requirements as would apply to a trial. In these circumstances, it was submitted, s 133 of the Criminal Procedure Act applied.

The Crown pointed to the fact that s 133(3) of the Criminal Procedure Act provided that if any Act or law required a warning to be given to a jury, the judge is to take the warning into account. It submitted the effect of s 165B(4) of the Evidence Act was that a Longman warning was not required.

The Crown submitted that in any event the warning the judge gave himself was consistent with the Longman requirements.

In relation to Ground 3 the Crown submitted that in fact the trial judge had given himself a Murray direction and had followed it.

Ground 4

The appellant submitted that having regard to the evidence the trial judge ought to have entertained a reasonable doubt as to the guilt of the appellant.

The Crown pointed to the fact that the complainant's evidence was that the appellant started to touch her when she was 12 years old. It was pointed out that her first complaint was to her best friend, CW, after the start of Year 7 which was in 1991. It was submitted that CW confirmed that in September 1991 the complainant was upset and crying and a complaint of sexual interference was made. CW also said that she received a second complaint in the 1992/1993 school holidays and that in 1994 the complainant said that she wanted to tell someone and CW accompanied her to see JS.

The Crown submitted that the diary entry and the evidence of CW were highly probative of the sexual abuse. The Crown submitted that the complaint need not relate to a specific offence.

The Crown referred to s 165A(1) of the Evidence Act which stated that a jury should not be warned that children belong to a class of witnesses to be regarded as unreliable. It was also submitted there was no evidentiary basis for finding the complainant felt animosity and jealousy to the appellant.

The Crown submitted that given the time passed, the inconsistencies in the evidence of the witnesses were not significant. It submitted that any residual doubt the Court may have would be resolved by the advantage of the trial judge seeing the witnesses and hearing the whole of the evidence.

Consideration

It was not in contest that a special hearing under the Forensic Provisions Act conducted by a judge alone was a trial to which the provisions of s 133 of the Criminal Procedure Act applies (s 21(1) Forensic Provisions Act, R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1 at [5]-[10] and [46] and EK v The Queen [2010] NSWCCA 199; (2010) 79 NSWLR 740 at [37]-[38]).

Section 133 of the Criminal Procedure Act provides as follows:

"133 Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."

The requirements of the section were summarised by the High Court in Fleming v The Queen supra, in which the High Court considered its predecessor, s 33(2) and s 33(3) of the Criminal Procedure Act, which was in identical terms. Relevantly, the Court indicated (at [27]-[28]) that the requirements, now expressed in s 133(2), were not satisfied merely by a bare statement of the principles of law applied and the findings of fact made. The reasoning process linking these matters and justifying the findings of fact must be demonstrated. Not to do so amounts to an error of law. The Court summarised a failure to expose the relevant principles of law that were applied in the following terms:

"[30] Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded."

In relation to the requirement to give warnings, the Court made the following remarks:

"[32] The obligation imposed by s 33(3) 'to take the warning into account' is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law.

[33] The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account."

(Citations omitted).

There are three matters which can be noted about the section. First, as the High Court pointed out in the extract at par [108] above, the requirement in s 133(2) of the Criminal Procedure Act is satisfied if the judgment shows by implication the relevant law which was applied. Second, although the judge must not only take the warnings required to be given by a jury into account and be seen to take them into account, it is sufficient if, as a matter of implication, it can be seen from the judgment that he or she did take them into account. At [32] of the judgment in Fleming v The Queen supra, which I have cited above, the Court stated that the obligation to be seen to take a warning into account can be satisfied in the same manner as an exposition of the principles of law referred to in s 133(2). Thus, it can be done either expressly or by implication.

Third, s 133(3) of the Criminal Procedure Act only relates to warnings. It does not require that every direction that a judge gives to a jury in a criminal trial needs be referred to by a judge in giving judgment in a judge alone trial.

With that background it is convenient to deal with the grounds of appeal.

Ground 1

Section 21A of the Forensic Provisions Act provides that at a special hearing the question of whether the person has committed an offence is to be determined by a judge unless an election is made in accordance with that section for the question to be determined by a jury. When a case is to be tried by a jury s 21(4) requires the following:

"21(4) At the commencement of a special hearing for which a jury has been constituted, the Court must explain to the jury the fact that the accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts."

In Subramaniam v The Queen supra, the High Court set out an appropriate form of explanation for a trial judge to say. It is lengthy and it is only necessary to set out the concluding paragraph:

"I should emphasise that although I am telling you about the legal and practical consequences of any verdict that you may reach in order for you to understand the nature of the special proceeding in which we are engaged, your duty is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that the accused committed the offence(s) charged. The consequences of the verdict and what is to happen to the accused thereafter are matters for the Mental Health Review Tribunal, the prosecuting authorities and the Court, not for you."

Immediately thereafter, the Court made the following comment at [41]:

"It is not immediately clear why the jury should be burdened with the sort of detail that the Act requires with respect to the legal and practical consequences of their verdict. Perhaps the requirement is intended to give the jury an assurance that a guilty person will not escape the consequences of his or her crime by reason of a temporary mental infirmity, or that a mentally unfit person will be humanely treated, even if convicted. Whatever the reasons, the language of s 21(4) is mandatory and must be given effect."

Contrary to the submissions of the appellant, which proceeded on the assumption that the jury direction required by s 21(4) of the Forensic Provisions Act is a warning, the above passages make it clear that the direction required by s 21(4) is not a warning to the jury but rather an explanation of what is required in a hearing under s 21. It thus does not fall within s 133(3) of the Criminal Procedure Act, notwithstanding that the special hearing can be described as a trial for the purpose of that subsection.

It follows for this reason alone that the ground of appeal is not made out.

Further, the trial judge stated that he had given himself a direction in accordance with Subramaniam v The Queen supra. There is no reason not to accept that statement. He complied with the duty imposed on him in concluding that on the limited evidence available the accused committed some of the offences. This was consistent with what the final paragraph of the suggested direction in Subramaniam v The Queen required.

It follows that this ground of appeal is not made out.

Grounds 2 and 3

Section 165B of the Evidence Act provides as follows:

"165B Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section:

(a) delay includes delay between the alleged offence and its being reported, and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:

(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable."

This section was inserted into the Evidence Act in 2007 to commence from 1 January 2009. The proceedings commenced on the charging of the appellant on 31 December 2009. As such the provisions in the Evidence Act applied: R v TJ [2009] NSWCCA 257; (2009) 76 NSWLR 167 at [14].

In Longman v The Queen supra, Brennan, Dawson and Toohey JJ stated (at 91) that it was necessary to give the following warning in the case of delay:

"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."

In R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 Sully J, after reviewing Longman v The Queen supra and the cases which followed it, particularly Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343, summarised the requirement of a Longman warning in the following terms (at [95]):

"The approach of the majority Justices in both Crampton and Doggett seems to me to entail that a trial judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: first, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly, that it would be, therefore, dangerous to convict on that evidence alone; thirdly, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and sixthly, that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction."

(Emphasis in original).

The other members of the Court agreed with this formulation (at [4] and [119]).

Section 165B(4) of the Evidence Act prohibits the giving of such a warning. The reason for the insertion of the section was said to have been that such a direction was considered an encroachment on the fact-finding task of the jury and open to the risk of it being interpreted as a direction to acquit: Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth) at [226].

The appellant argued that s 165B(4) of the Evidence Act did not apply to a judge alone trial and only prevented the Longman warning from being given to a jury. However, the question was whether s 133(3) of the Criminal Procedure Act as explained in Fleming v The Queen supra required the judge to give himself such a direction and be seen to have done so.

In my opinion this question must be answered in the negative. Section 133(3) of the Criminal Procedure Act requires the judge to give to him or herself a warning if one is required to be given to a jury by an Act or law. In the present case rather than requiring such a warning, the Act in fact prohibited it.

The appellant also submitted that s 165B(4) of the Evidence Act was only engaged in the event an application for a direction was made under s 165B(2). He submitted that in the present case an application for a Longman warning was not made under s 165B(2) and the effect of s 9(1) of the Evidence Act was to require the common law direction to be given.

I do not agree. Section 9(1) applies when the Evidence Act does not provide, either expressly or by necessary implication, to the contrary. In the present case s 165B(4) has expressly prohibited a Longman warning.

However, as an application for such a direction was made, it would seem to me the effect of s 165B(2) of the Evidence Act was to oblige the judge, if he was satisfied the appellant suffered a significant forensic disadvantage because of the consequences of delay, to inform himself of the nature of the disadvantage and the need to take it into account when considering the evidence.

The trial judge, in my opinion, did this. I have set out the warnings above (par [57]). The trial judge recognised that the delay had resulted in a significant forensic disadvantage to the appellant in relation to the calling of evidence, his own recollection and his inability to find witnesses.

His Honour in those circumstances did not err in failing to give a Longman warning.

Nor do I think that the trial judge erred in failing to give himself a Murray direction.

The judge gave himself such a direction (see par [57] above). He pointed to the fact that there was no independent objective evidence and that the complainant was the only Crown witness capable of giving direct evidence about the events which occurred. He directed himself that he must scrutinise the complainant's evidence on each charge very carefully before determining whether he should accept it. He repeated that direction towards the conclusion of his judgment.

In these circumstances it does not seem to me that the ground of appeal that the judge failed to give himself a Murray direction has been made out.

The next question is whether the judge's reasoning disclosed that he gave effect to the direction. In that regard it must be remembered that consistent with Fleming v The Queen supra it was necessary for his judgment to expose his process of reasoning. A mere incantation of the warnings and directions without them being taken into account is insufficient: Fleming v The Queen at [33] (see also Pettitt v Dunkley (1971) 1 NSWLR 376 at 381-382, 385 and 388 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis v Dudley) at 257-258).

The trial judge delivered judgment the same day the complainant finished giving her evidence. His task involved consideration of whether, after scrutinising the evidence of the complainant very carefully and having regard to the other evidence and the inconsistencies in the complainant's evidence, he could accept the complainant as reliable on the critical issues, beyond reasonable doubt, taking into account the forensic disadvantage in which the appellant was placed.

The trial judge accurately summarised the complainant's evidence in chief. He considered the 30 September 1992 diary entry, whilst not corroborative of the 30 September 1992 events, supportive of the complainant's evidence having previously noted the submission that the diary entry was ambiguous and did not refer to sexual intercourse.

The trial judge referred to CW's evidence of the complaints made to her in 1992 that "[W] tried to do it again" or "[W] had done it again" in the context of a complaint to her in 1991 that [W] had been "fingering her". He noted the evidence of CW that at the meeting with JS in 1994 the complainant made no reference to the sexual assault.

The trial judge also noted the evidence of the complainant's mother that the appellant did not move out of her bedroom until 1994.

The trial judge also referred to a number of matters of note that emerged from cross-examination. He referred to the fact the complainant did not tell her friend Belinda of the incident of 30 September 1992 when she went to her home. He noted there was no reference in the diary to speaking to JS in August 1991 about the sexual assault in the context of the fact that she told the police in the statement made by her to them that there was such an entry. He also referred to the fact that there was no reference to the October incident in the diary.

After referring to these matters and stating that he had considered what the appellant's counsel had to say about her reliability, the trial judge expressed satisfaction on this question.

The appellant stated that the evidence of CW fell well short of corroboration. The trial judge did not suggest it was corroborative. He accurately summarised the complaints made to CW, to which I have referred above. So much was conceded by senior counsel for the appellant.

Contrary to the appellant's submissions, I do not believe it was necessary to refer to the appellant's age or the fact there were some entries in the diary demonstrating feelings of guilt and anger towards the appellant. The obligation on the judge was to adequately expose his reasons in a case where, as he recognised, the evidence of the complainant needed to be scrutinised with great care. The relevant standard was set out in Pettitt v Dunkley supra in the following terms:

" ... where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law."

This passage was approved by the High Court in Fleming v The Queen supra at [22]. However, the need to provide reasons is not only to enable a party to exercise appeal rights but as stated in Fleming v The Queen in the same paragraph, to enable justice to be seen to be done.

The importance of the giving of reasons for a judicial decision was summarised by McHugh JA in Soulemezis v Dudley in the following terms:

"The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment 'is not only to do but to seem to do justice': The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability."

(The third reason given by his Honour as to the precedential value for future cases, is not relevant in this case.)

However, as McHugh JA pointed out in Soulemezis v Dudley (at 280-281), the obligation does not require lengthy or elaborate reasons, although it is necessary that the essential ground or grounds on which the decision was based should be articulated and in many cases the reasons for preferring one conclusion over another should be given. However, where the resolution depends entirely on credibility, he stated it was probably enough that the judge simply finds one way over another: see also CJ v Regina [2012] NSWCCA 258 at [91], Alchin v Daley [2009] NSWCA 418 at [35], R v Keyte [2000] SASC 382; (2000) 78 SASR 68 at [56] and R v Power [2003] SASC 77; (2003) 141 A Crim R 203 at [52]-[57].

In the present case the trial judge gave himself the requisite warnings, dealt with the evidence of the complainant, the evidence of the other witnesses, some of the inconsistencies in the complainant's evidence and stated that after taking the appellant's submissions into account, he accepted the complainant as reliable as to the occurrence of the events the subject of the charges on which the appellant was convicted. In these circumstances, in my opinion, he fulfilled his obligations under s 133(2) of the Criminal Procedure Act to expose his reasoning principles.

In these circumstances Grounds 2 and 3 of the grounds of appeal have not been made out.

Ground 4

The principles on which this ground is to be determined were reaffirmed by the majority of the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 in the following terms:

"[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".'

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter."

(Citations omitted).

It is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or in this case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559. In a passage with which Gleeson CJ and Heydon J agreed, his Honour made the following remarks:

"[113] It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt."

(Emphasis in the original, citations omitted).

However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen [1994] HCA 63; (1994) 181 CLR 487, cited in SKA v The Queen supra at [13]. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubts as to the verdicts, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [26] and [55]-[56]).

I have reviewed the evidence above. There is no doubt there were difficulties with the evidence of the complainant. There was no evidence of the October abuse in her diary. Further, although she said she wrote to CW about everything that was going on in her life, she did not tell her of the nature of the sexual abuse alleged.

The complainant's diary entry of 30 September 1992 did not directly refer to the sexual abuse and she did not tell Belinda of the occurrence when she went to her home on that day. Further, none of the other diary entries after 30 September 1992 made reference to sexual abuse, nor did they refer to her disclosing the abuse to JS. In particular the diary entry of 18 August 1991, which she told the police contained a reference to telling JS about the abuse, contained no such reference, although it appears from the evidence of CW that she did speak to JS at some time.

Further, the diary entries of 18 August 1991 and 2 November 1991 indicate affection for the appellant and concern that he was leaving the home. Indeed, part of the diary entry of 30 September 1992 reflects the same concern.

Having regard to the lapse of time I do not regard it as significant that the complainant was mistaken as to when the appellant and her mother ceased to share the same bedroom.

The discrepancies in the complainant's evidence are of importance and tend to cast doubt on its reliability. Equally, the trial judge was entitled to accept that the diary notes of 30 September 1992 referred to sexual abuse and that she at least told CW that the appellant had engaged in some form of sexual activity with her. Further, the complainant evidently, from CW's evidence, had consulted JS about difficulties with her life in 1991 or 1994. Significantly the evidence of CW was that the appellant wanted to tell JS what was going on and she went to his office with her although she did not ultimately make a complaint.

This was a case where the trial judge's assessment of the complainant was vital: see MFA v The Queen supra at [23]. It was open, in my opinion, for the trial judge to be satisfied of the reliability of the complainant on the critical issues having seen her give evidence, notwithstanding the matters to which I have referred to above. In particular, he was entitled to take into account the age of the complainant at the time of the events in assessing the diary entries, the possibility of confusion in speaking to JS and accept her evidence as to the meaning of the 30 September 1992 diary entry. It seems to me that any doubt which may exist as to the reasonableness of the verdict is resolved in this case by the advantage the trial judge had in seeing the complainant give her evidence.

In these circumstances Ground 4 of the grounds of appeal has not been made out.

Conclusion

In the result, leave to appeal against conviction should be granted but the appeal dismissed.

The sentence appeal

Ground 1

The appellant was sentenced to the following limiting terms of imprisonment:

(a) Count 1 - A limiting term of 12 months to date from 8 March 2013 to expire on 7 March 2014.

(b) Counts 3 and 5 - On each count a limiting term of two years and 9 nine months to date from 3 March 2013 and to expire on 17 December 2015.

(d) Counts 8 and 10 - On each count a limiting term of 2 years and 9 months to date from 8 September 2013 and to expire on 7 June 2016.

The total limiting term was thus 3 years and 3 months.

The remarks on sentence

The trial judge said the offences were objectively serious. He pointed out they were committed on a 14 year old girl who was under the authority of the accused and that his actions amounted to a breach of the trust which was reposed in him.

The trial judge accepted the submission that there was no evidence that the offences were planned or that the appellant either induced or threatened the complainant to engage in the sexual acts. He accepted that there was no request by the appellant of the complainant to not tell anyone about the incidents, nor apart from the acts themselves was there any conduct of a degrading nature. In the circumstances he accepted that the offences were at the lower end of the scale of objective seriousness.

The trial judge dealt with the accused's subjective circumstances. He found he had no relevant criminal record. He referred to the reports of Dr Bruce Westmore, Professor Susan Hayes and Dr Stephen Allnut which were tendered in evidence in the sentencing proceedings.

His Honour noted that the appellant was one of seven children and had a good relationship with one of his brothers, TW, but not with his other siblings. He noted that the appellant left school aged 15 and did not complete a plumbing apprenticeship. He further noted the appellant was engaged in farm work until 1998 when he ceased to work fulltime and undertook commercial woodworking.

The trial judge noted the appellant met the complainant's mother in the late 1980s and their marriage ended after 15 years. He stated that the accused had no relationship with the daughter of the marriage and that the accused had led a solitary life on a property at Kempsey.

The trial judge referred to the opinion of Dr Westmore that the appellant was suffering from a significant anxiety disorder and a social phobia, together with paranoia and persecutory thought content relating to the trial process. He referred to the opinion of Dr Westmore that further psychiatric assessment was required.

The trial judge also referred to the report of Professor Hayes that the accused also suffered panic attacks and had features of autism spectrum disorder, possibly Asberger's Syndrome. He also referred to the evidence of Dr Allnut that the appellant manifested an anxiety disorder in the form of social phobia with possibly underlying chronic psychotic beliefs derived from an undiagnosed low-grade psychotic disorder.

In those circumstances the trial judge said in sentencing he had regard to the fact that the appellant suffered from significant psychiatric conditions and as a consequence the limiting term he imposed would not have a general deterrent effect. He also stated he had regard to the fact that due to his psychiatric conditions the appellant would have more difficulty serving time in custody. The trial judge also stated that on the appellant's release from custody he would have family support from his brother.

Finally his Honour stated that he had regard to the maximum penalty for the offences at the time of their commission.

The parties' submissions

The appellant submitted that whilst the trial judge focused on the appellant's mental state at the time of determining the limiting term, he failed to take into account his likely mental state at the time of the offences.

The appellant asserted that the possibility of Asberger's Syndrome referred to by Dr Westmore and Professor Hayes was a childhood brain disorder likely to have been present in 1992. He referred to the fact that Dr Westmore's report stated that he had been bullied at school and experienced auditory hallucinations. He also referred to the statement by Professor Hayes and Dr Allnut that as a result of school bullying he suffered anxiety and panic attacks as an adolescent which persisted and which, according to Dr Allnut's report, included blackouts. He also referred to the report of Dr Allnut to the effect that after the bullying and a head injury he developed learning difficulties.

The appellant also referred to the statement contained in the report of Dr Allnut that he had seen a mental health worker at the age of 12 and that prior to 1987 he experienced auditory hallucinations and (according to the report of Dr Westmore) visual hallucinations.

The appellant also referred to the statements in the reports that from 1997 he had delusional and paranoid thoughts regarding his conviction for cultivating and self-administering cannabis and had engaged in delusional and paranoid correspondence regarding his drug convictions.

The appellant also submitted that the evidence of the complainant showed he was suffering from a mental incapacity at or about the time of the offences.

Senior counsel for the appellant acknowledged this submission was not put at the sentencing hearing and that none of the doctors who examined the appellant stated he was under an incapacity at the time of the offences. She said that having regard to the difficulty in obtaining instructions, the failure to take the point at the sentencing hearing should not prevent it being taken in the appeal. She submitted that at the hearing the appellant's counsel did not deny its relevance.

The Crown submitted that it was for the appellant to establish on the balance of probabilities that he was suffering from a mental disorder at the time and that it should be taken into account in a particular way.

The Crown submitted, referring to Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[81], that this Court is a court of error and that there is a practical expectation that an offender's legal counsel will draw to the sentencing judge's attention factors which should be taken into account in mitigation. The Crown also referred to Beldon v R [2012] NSWCCA 194 at [36] which pointed out that the approach in Zreika v The Queen had been applied in circumstances where reliance was sought to be placed on appeal upon aspects of an offender's mental disorder which had been expressly eschewed by counsel at first instance.

Consideration

In my opinion this ground is without merit. First, there can be no error of law in the judge failing to draw an inference that the offences were in some way related to the appellant's mental disorders when not only was he not asked to do so but as the Crown pointed out, reliance on that matter was expressly eschewed. Counsel for the appellant in the Court below accepted that there was no evidence that at the time of the offences the appellant was suffering from any of the above diagnosed mental disorders. At the trial the submission that was made with respect to the appellant's mental condition was that because his mental condition was diagnosed subsequently to the offences, the need for general deterrence was reduced. The trial judge in fact accepted the sentence would not have a general deterrent effect.

More fundamentally, none of the doctors who presented reports suggested that the appellant's psychiatric disorder caused or contributed to the commission of the offences. In the absence of any such evidence it would have been inappropriate for the trial judge, much less for this Court, to speculate that this was the cause or contributed to the offending.

It follows that this ground of appeal has not been made out.

Ground 2

The parties' submissions

The appellant did not contest the findings made by the trial judge but submitted on those findings a limiting term in each of the two sets of offences of 2 years and 9 months was excessive, and an overall term of 3 years and 3 months was manifestly excessive.

The appellant accepted it was necessary to establish the sentence was unreasonable or plainly unjust. He submitted that the reasons identified by his Honour together with his likely state of mental health at the time of the offences, led to the conclusion that the limiting term was manifestly excessive. He submitted that having regard to the lack of offending since 1992, the circumstances of the appellant and the age of the offences there was negligible risk of further offence.

The appellant submitted that compared to the facts of EK v The Queen supra the length of the term was demonstrably excessive.

The Crown emphasised it was not enough for the Court to simply substitute its own opinion for that of the sentencing judge. The Crown pointed to the fact that the maximum penalty for the offence under s 66C(2) of the Crimes Act was 10 years and for the offence under s 61M(1) of the Crimes Act was 7 years. It supplied statistics from the Judicial Commission of NSW which showed in respect of the s 66C(2) offences where there was a plea of not guilty, the custodial sentence was in the lower 12% of the range. In relation to the s 61M(1) offences, it pointed out that the sentences were in the bottom 6% of custodial sentences for all offenders of this offence. It also pointed out that the degree of accumulation was only 6 months. The Crown submitted it was inappropriate to determine this ground by comparison with just one other decision.

The Crown also submitted that as the offences involved penile penetration, stating that the objective seriousness of the offences was at the lower end of the scale was generous.

The Crown submitted the judge took all relevant matters into account and it submitted the sentences were not manifestly disproportionate.

Consideration

Intervention on the ground of manifest inadequacy is justified only where the appellate court considers there must have been some misapplication of principle even though when or how is not apparent from the statement of reasons: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6], Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58], Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] and Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 at [26]. As was said in the joint judgment in Barbaro v The Queen this kind of error can also be described as the sentence imposed falling outside the range of sentences which could reasonably be imposed.

To the extent that the appellant relied on the failure of the trial judge to take into account the appellant's mental condition at the time of the offences, I have already indicated that that ground should be rejected. The only other specific matter referred to by the appellant was the difference between the sentence imposed and the sentences imposed on the offender in EK v The Queen supra. It is inappropriate to determine this ground by comparison to a sentence imposed in one other case involving different facts and circumstances. This is particularly the case where the individual terms for the offences under s 66C(2) of the Crimes Act were not referred to in the judgment of this Court on which reliance is placed. The most that can be noted is that the limiting term for the offence under s 61M(1) of the Crimes Act was double than that imposed by the sentencing judge in the present case. That is also of no assistance as the judge was misled as to the maximum penalty in that case.

However, guidance can be obtained from past sentencing patterns subject to the caution expressed by the High Court in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53]-[54] and by this Court in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [304].

I have set out above the statistical information supplied by the Crown which shows that the sentences were well within the lower range of sentences imposed for offences of this nature.

The offences in the present case involved sexual assault including penile penetration on an adolescent who, having regard to her diary entries, was plainly vulnerable. The classification of the offences in these circumstances in the lower range of objective seriousness was not ungenerous. There is nothing to suggest that after taking the matters which the sentencing judge referred to into account, the sentence was manifestly excessive.

This ground of appeal should also be dismissed.

Orders

In the result I would make the following orders:

(1) Leave to appeal against conviction and sentence granted.

(2) Appeal dismissed.

HOEBEN CJ at CL: I agree with the Chief Justice.

BELLEW J: I agree with the Chief Justice.

**********

Decision last updated: 18 July 2014

Medium Neutral Citation:	W v R [2014] NSWCCA 110
Hearing dates:	18 March 2014
Decision date:	18 July 2014
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [196]; Bellew J at [197]
Decision:	(1)Leave to appeal against conviction and sentence granted. (2)Appeal dismissed.
Catchwords:	CRIMINAL - Subramaniam direction -whether obligation to give direction - Mental Health (Forensic Provisions) Act, s 21 CRIMINAL - Longman warning - judge alone trial - whether obligation to give warning - Evidence Act, s 165B CRIMINAL - Murray direction - whether direction given was followed - judge alone trial - judgment must adequately expose reasoning process - justice to be seen to be done - mere incantation of warning and directions insufficient CRIMINAL - conviction - whether verdict unsafe and unsatisfactory - whether open to judge to be satisfied beyond reasonable doubt as to the appellant's guilt on the evidence - advantage of hearing and seeing evidence at trial CRIMINAL - sentencing - failure to take into account mental state at time of offences -expressly eschewed by counsel at trial - lack of evidence as to mental state CRIMINAL - sentencing - whether manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M, 61J, 61P, 66C and 66D Criminal Procedure Act 1986 (NSW), ss 33 and 133 Evidence Act 1995 (NSW), ss 9, 165A and 165B Mental Health (Forensic Provisions) Act 1900 (NSW), ss 21, 21A, 21B, 22 and 23
Cases Cited:	Alchin v Daley [2009] NSWCA 418 Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 Beldon v R [2012] NSWCCA 194 CJ v Regina [2012] NSWCCA 258 Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 EK v The Queen [2010] NSWCCA 199; (2010) 79 NSWLR 740 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King [1936] HCA 40; (1936) 55 CLR 499 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Pettitt v Dunkley (1971) 1 NSWLR 376 R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 R v Keyte [2000] SASC 382; (2000) 78 SASR 68 R v Murray (1987) 11 NSWLR 12 R v Power [2003] SASC 77; (2003) 141 A Crim R 203 R v TJ [2009] NSWCCA 257; (2009) 76 NSWLR 167 R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1 Reeves v R; R v Reeves [2013] NSWCCA 34 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category:	Principal judgment
Parties:	W (Appellant) The Crown (Respondent)
Representation:	Counsel: P Wass SC / S J Carr (Appellant) S Herbert (Crown) Solicitors: Legal Aid NSW (Appellant) Director of Public Prosecutions (Crown)
File Number(s):	2009/332253
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-10-17 00:00:00 Before: Solomon J File Number(s): 2009/332253