Warton v The King

[2025] NSWCCA 5

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Warton v R [2025] NSWCCA 5

Hearing dates:

7 February 2025

Decision date:

14 February 2025

Before:

Adamson JA at [1]
Ball JA at [75]
Fagan J at [76]

Decision:

(1)   Grant leave to appeal on ground 1.

(2)   Dismiss the appeal against conviction.

(3)   Refuse leave to appeal on sentence.

Catchwords:

CRIME — appeals — appeal against conviction — application for leave to appeal — where applicant convicted of 3 sexual offences under authority — where application for complainant to give further evidence by way of cross-examination pursuant to s 306J of the Criminal Procedure Act 1986 (NSW) refused by trial judge — where further evidence only relevant to credibility of complainant — whether further cross-examination of complainant “could substantially affect the assessment of the witness” (s 103(1) Evidence Act 1995 (NSW))

CRIME — meaning of “good character” — positive (good works) and negative aspects (absence of prior convictions or lack of history of criminal or blameworthy conduct) — depends on context

SENTENCING — appeals — appeal against sentence — application for leave to appeal — mitigating factors — good character — where applicant had prior criminal history but no convictions — where trial judge ruled applicant not entitled to leniency on sentence otherwise available to person of good character because of criminal history

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61KD

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A

Criminal Procedure Act 1986 (NSW), ss 306I, 306J

Evidence Act 1995 (NSW), Pt 3.7, s 103

Cases Cited:

Bauer v The Queen (2018) 266 CLR 56; [2018] HCA 40

Hayne v R [2024] NSWCCA 97

R v El-Azzi [2004] NSWCCA 455

R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29

R v I R Hall (No 2) [2005] NSWSC 890

R v Levi (Court of Criminal Appeal (NSW), 15 May 1997, unrep)

R v Price [2005] NSWCCA 285

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Saunders v R [2022] NSWCCA 174

WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Principal judgment

Parties:

Jared Warton (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Moutasallem (Applicant)
C Young (Respondent)

Solicitors:
Lyons Law Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/273871

Publication restriction:

Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 June 2023; 13 October 2023

Before:

Bright DCJ

File Number(s):

2019/273871

HEADNOTE

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

Jared Warton (the applicant) sought leave to appeal against his convictions for three sexual offences under authority against LN (the complainant) committed on 7 March 2019 on the following grounds:

1. that the trial judge erred in refusing the application for the complainant to give further evidence by way of cross-examination pursuant to s 306J of the Criminal Procedure Act 1986 (NSW) (ground 1); and

2. that the sentencing judge erred in her consideration of the applicant’s criminal history (ground 2).

The applicant, a Community Corrections Officer, supervised the complainant on parole. When he visited her home on 7 March 2019, she admitted smoking marijuana in previous days. He administered an oral drug test, which returned a negative result. She became upset. The applicant kissed her and said, “you want it all to go away, don’t you?”. He withdrew his erect penis and gave the complainant the option to perform fellatio or engage in penile/vaginal sexual intercourse. When the complainant said, “you’re not allowed to do this”, the applicant pulled her head towards his penis, following which he engaged in penile/vaginal sexual intercourse with her. Before leaving the unit, he told her that he would be returning to do it again fortnightly.

The complainant gave evidence at the first trial, which was recorded. The first and second trials were aborted. Prior to the commencement of the third trial, the applicant applied under s 306J of the Criminal Procedure Act for an order that the complainant be recalled for further cross-examination concerning (1) her Facebook use in 2014, and (2) an interaction between the complainant and police on 25 January 2018, both of which were accepted to be relevant solely to credibility.

As to (1), the complainant said in evidence, “I don’t get on Facebook. I don’t own Facebook.” The applicant proposed to cross-examine her on a series of Facebook images and posts from 18 October 2014 to 25 December 2014.

As to (2), on 25 January 2018, police followed the vehicle which the complainant was driving and which she then parked on the road. When questioned about its location, she said, “It’s not on the road I’ve parked it as close to the edge as I can.” When told that she had been stopped for breath and drug tests, she said, “I wasn’t even driving.”

In refusing the application, the trial judge found that the evidence was not capable of substantially affecting the assessment of the complainant’s credibility and was inadmissible under s 103(1) of the Evidence Act 1995 (NSW) (ground 1). The applicant was convicted of all three counts at the conclusion of the third trial.

The applicant had a criminal history but no prior recorded convictions. In the reasons on sentence, the trial judge said, “[w]hilst his criminal history is limited, I am satisfied it disentitles him to the leniency on sentence that would otherwise be available to a person of good character” (ground 2).

The Court held (Adamson JA, Ball JA and Fagan J agreeing), granting leave to appeal on ground 1, but dismissing the appeal, and refusing leave to appeal on ground 2:

Ground 1: refusal of the application for the complainant to give further evidence by way of cross-examination, pursuant to s 306J of the Criminal Procedure Act

1. The correctness standard applies to this Court’s consideration of whether the trial judge erred in refusing the application: at [39] (Adamson JA), [75] (Ball JA), [76] (Fagan J).

Hayne v R [2024] NSWCCA 97; WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142l, applied.

1. The trial judge was correct to find the evidence inadmissible under s 103(1) of the Evidence Act. It was therefore unnecessary for the trial judge, or this Court, to address s 306J of the Criminal Procedure Act: at [51] (Adamson JA), [75] (Ball JA), [76] (Fagan J).

Ground 2: consideration of the applicant’s criminal history in assessing “good character”

1. The expression “good character” has positive and negative aspects. In its positive sense, it means a history of previous good works and contribution to the community. In its negative sense, it can mean either an absence of prior convictions or that the offender has not previously engaged in criminal or blameworthy conduct: at [66]-[67] (Adamson JA), [75] (Ball JA), [76] (Fagan J).

Saunders v R [2022] NSWCCA 174; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14; R v Levi (Court of Criminal Appeal (NSW), Gleeson CJ, 15 May 1997, unrep); R v Price [2005] NSWCCA 285; R v I R Hall (No 2) [2005] NSWSC 890, applied.

R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, cited.

1. The only sense in which the “good character” was used in the trial and sentence hearing was in the narrow negative sense of absence of prior convictions. The trial judge was not required to disregard the applicant’s antecedents which showed that he had engaged in criminal conduct. No error has been established: at [66]-[73] (Adamson JA), [75] (Ball JA), [76] (Fagan J).

2. The sentencing judge plainly took into account in the applicant’s favour his limited criminal history when assessing his prospects of rehabilitation and the likelihood of re-offending: [64] (Adamson JA), [75] (Ball JA), [76] (Fagan J).

JUDGMENT

1. ADAMSON JA: Jared Warton (the applicant) seeks leave to appeal against his convictions for three offences alleged to have been committed against LN (the complainant) on 7 March 2019. He was convicted following a trial by jury over which Bright DCJ (the trial judge) presided. He also seeks leave to appeal against the aggregate sentence imposed by the trial judge on 13 October 2023 of 6 years and 6 months’ imprisonment commencing on 13 June 2023 and expiring on 12 December 2029, with a non-parole period of 3 years and 3 months expiring on 12 September 2026 (reflecting a finding of special circumstances which resulted in the statutory ratio being adjusted to a ratio of 50% between the non-parole period and the total term).

2. The three offences, the sentences indicated, the maximum penalty and the standard non-parole period (SNPP) for each are as follows:

Count	Offence	Alleged conduct	Indicative sentence	Max penalty/SNPP
1	Aggravated (under authority) sexual touching (s 61KD(1)(a) of Crimes Act 1900 (NSW))	Kissing the complainant without her consent.	6 months’ imprisonment.	7 years’ imprisonment/5 years SNPP
2	Aggravated (under authority) sexual touching (s 61KD(1)(a) of Crimes Act 1900 (NSW))	Pulling the complainant’s head to his exposed penis.	12 months’ imprisonment.	7 years’ imprisonment/5 years SNPP
3	Aggravated (under authority) sexual intercourse (s 61J(1) of Crimes Act 1900 (NSW))	Penile/vaginal sexual intercourse without consent.	6 years’ imprisonment.	20 years’ imprisonment/10 years SNPP

3. The first trial commenced on 4 May 2021. On 5 and 6 May 2021, the complainant gave evidence, which was recorded, and was excused following its conclusion. The first jury was discharged prior to closing addresses.

4. A second trial commenced on 26 April 2022. The complainant’s recorded evidence from the first trial was played to the jury pursuant to s 306I of the Criminal Procedure Act 1986 (NSW). As the jury was unable to return a unanimous verdict, it was discharged on 17 May 2022.

5. Prior to the commencement of the third trial, the applicant applied for an order that the complainant give further evidence by way of cross-examination pursuant to s 306J of the Criminal Procedure Act, which was refused (the refusal is the subject of ground 1). The third trial commenced on 31 May 2023. Once again, the complainant’s recorded evidence from the first trial was played to the jury pursuant to s 306I of the Criminal Procedure Act. On 13 June 2023, the jury returned verdicts of guilty in respect of all three counts.

The grounds of appeal

6. The applicant seeks leave to appeal on the following two grounds (the first against his convictions and the second against the aggregate sentence):

1 That the trial judge erred in refusing the application for the complainant to give further evidence by way of cross-examination pursuant to section 306J of the Criminal Procedure Act 1986.

2   That the sentencing judge erred in her consideration of the applicant’s criminal history.

The evidence at the trial

7. In order to address the ground of appeal against conviction, it is necessary to appreciate the forensic context in which the application was made, in light of the evidence given by the complainant and other witnesses. The following is a summary of the evidence which bears on the application made on behalf of the applicant for leave to recall the complainant for further cross-examination.

The background

8. On 29 November 2018, the complainant, who then lived in Bateau Bay, was allocated to the applicant, a Community Corrections Officer (CCO). The complainant agreed in cross-examination that she was under the supervision of a parole officer because of her previous drug use. On 14 December 2018, when the complainant and the applicant met at the Gosford office of Community Corrections, they discussed a possible change of her residence. They met there again on 17 December 2018, 24 December 2018, 11 January 2019 and 15 January 2019. On none of these occasions did the complainant appear to the applicant to be under the influence of alcohol or drugs.

9. On about 25 January 2019, the complainant learned from Community Corrections that accommodation at East Gosford was available. On 31 January 2019, the applicant made his first home visit to the complainant (at her then home at Bateau Bay). The applicant noted that she did not seem to be under the influence of drugs or alcohol. On 8 February 2019, the complainant moved to East Gosford. She visited the applicant at the Gosford office on 12 February 2019. On 28 February 2019, the applicant made an unscheduled home visit to the complainant but she did not answer the door.

The alleged offences on 7 March 2019

10. On 7 March 2019, the applicant made a pre-arranged visit to the complainant’s home from 2.30pm-3pm.

11. According to the complainant, she admitted to the applicant she had smoked marijuana in the previous days. The applicant left and returned with an oral drug test which returned a negative result. The complainant became upset and the applicant asked her to stand up. He then kissed her “with a closed mouth, and then tried to kiss me with an open mouth” (count 1).

12. According to the complainant, the applicant said, “you want it all to go away, don’t you?” and withdrew his erect penis from his pants and gave her the option to “suck his penis first – off – or he can put it inside me”. The complainant responded, “you’re not allowed to do this”, at which point the applicant pulled her head towards his penis (count 2).

13. The applicant then got the complainant to lie down and engaged in penile/vaginal sexual intercourse with her (count 3). The complainant described herself as being “numb”. Before leaving the unit, the applicant told the complainant that it would be “ongoing” and that he would be coming to do it again fortnightly.

14. After the applicant left the unit, the complainant cried. She saw some hairs “where he’[d] sexually assaulted me”, put them in an envelope and subsequently provided them to police. A DNA profile matching the applicant’s was identified in relation to one of the hairs. The complainant also rubbed her genitals with a flannel and put it in a bag. The complainant made a contemporaneous note which she said in evidence read “I, [complainant’s name], 45 years old, not having the greatest experiences … I can’t keep safe and … I’ve tried and I get sexual assault.”.

Complaint evidence

Complaints to the complainant’s daughter

On 7 March 2019

15. Later that day, at about 7pm, the complainant phoned her adult daughter. She was upset and could not tell her daughter what had occurred. The complainant’s daughter gave evidence that the complainant was “crying and upset and a mess”. However, because she received the call when she was serving dinner to her young children, she could not make out what her mother was saying because of the ambient noise. Later that evening, the complainant’s daughter received a text message from the complainant:

“Please promise don’t say I don’t y there getting me sexiul he No’s 4 the other please bub”

16. The following day, 8 March 2019, the applicant made a file note of the visit which included the following:

“Offender stated she is comfortable not using but returning to Bateau Bay may increase her chances of using. Community Corrections Officer advised not to go back and stay in Gosford.”

17. His file note made no references to his having administered a drug test or of any admission by the complainant that she had used drugs.

About a week after 7 March 2019

18. About a week later, when she was “calm … and able to speak”, the complainant phoned her daughter, who gave the following evidence:

“She told me that she had … a home visit and that the parole officer had done something. He said that her, all her problems would go away and he would sign her off if she [sic] was to do something with her. I said, ‘Yeah, what do you mean?’ She said, ‘Yeah I didn't want to be - I didn't want to do anything with anybody. I moved to this house to be safe.’”

19. According to the complainant’s daughter, the complainant also told her in this conversation that she had seen hair on the floor after the applicant had left which she had picked up and that he had taken a condom off and put it in his pocket before he left.

About a fortnight after 7 March 2019

20. The complainant’s daughter also gave evidence of a phone call she received from her mother about a fortnight after 7 March 2019, as follows:

“She called me about another week later and she's, she's said that she wasn't home but the parole officer was buzzing at her unit and she was in the car with a friend. She's scared, she's panicked, she's ran off and she – she was on the phone, she said she didn't want to be there anymore. She wanted to come to Dubbo but I couldn't afford, I couldn't, I didn't have the money to get her here. She said he was wearing singlet, shorts and thongs and she just didn't want to be there. That was the end of that conversation.”

21. The complainant’s daughter described her mother during this call as “crying, she was not in a good way”.

Complaint to Ricardo Saez and report to the police

22. On 28 March 2019, according to the complainant, she told Ricardo Saez, a disability support worker who was also her friend, that her “parole officer had sexually assaulted [her]”. Mr Saez rang Triple-0 and said, “she’s just told me that her Parole Officer has raped her … he’s done a house visit and taken advantage of her”. Mr Saez told the operator he did not know the applicant and did not know what he looked like.

23. According to Mr Saez, the complainant made the disclosure when he was driving the complainant to Tuggerah so that she could do something with respect to her driver’s licence. He described the complainant as being “very distressed and very frightened … at that stage … [v]ery difficult to understand”. After informing the complainant that he was going to do so, Mr Saez rang Triple-0 to report the matter to the police.

24. Later on 28 March 2019, Mr Saez took the complainant to the Gosford Police Station where she provided a statement. The applicant’s trial counsel cross-examined the complainant about how she referred to the applicant in her notes and her police statement as follows:

“Q. In those written notes, and in your police statement, you refer to Jared, the accused - instead of Mr Warton, you refer to him as Lambton. Do you agree with that?

A. Yes, I do.

Q. So you didn't know his surname at that point in time?

A. No .

Q. But this person--

A. I knew his name was Jared , I didn't know for his last name , but it - was it Lambton to me. Jared Lambton, not what I had the knowledge for his name today.

Q. For you to make that notation, both in your notes and in your police statement, of Lambton, where did that come from?

A. That come from the knowledge of what I thought my parole officer's name was.”

25. After the complainant had given her statement to police, Mr Saez drove her home. Upon their arrival, the complainant saw the applicant, whom she identified to Mr Saez, walking towards the unit. Out of fear and in order to avoid contact with the applicant, she got out of the car and ran away. She did not return to her residence for some time because she was scared of the applicant.

26. Mr Saez took photographs of the man whom the complainant had identified as being the applicant. On 8 June 2019, Mr Saez participated in an identification procedure in which he identified the applicant from a line-up of twenty bearded men. He denied that he had ever looked up the applicant’s face on Facebook and said that he did not know his name.

Pretext call

27. The police arranged for the complainant to call the applicant on 10 May 2019 and recorded the call. The sound quality is not such as to make the applicant’s responses discernible. According to the complainant, the applicant acknowledged that he had sexually assaulted her and arranged for her to meet him the following day. Towards the end of the call, the recording recorded the complainant saying, “I wanted to know, Jared, please, I wanted to know why you come round and had sex with me.” The applicant is recorded saying “I don’t know what you’re talking about”.

The applicant’s evidence

28. The applicant gave evidence that during the home visit on 7 March 2019 the complainant admitted to having smoked marijuana. He accepted that he had not recorded this in the case note. The applicant denied that he had performed a drug test on the applicant or that he had engaged in any sexual contact with her during the home visit. The applicant said his beard would shed hair. The applicant could not recall where he was when he tried to phone the complainant on the evening of 28 March 2019, but denied he was in the vicinity of her unit. He denied that he was the person depicted in the photographs taken by Mr Saez on 28 March 2019 on the basis that he was not there on that occasion, although he admitted that he was physically similar to the figure depicted in the photographs. The applicant also denied that he acknowledged having sexual intercourse with the complainant in the pretext call.

The application for leave to recall the complainant for further cross-examination

29. As referred to above, prior to the third trial, the applicant unsuccessfully sought an order pursuant to s 306J of the Criminal Procedure Act that the complainant be recalled for further cross-examination. The application relevantly concerned two topics: the complainant’s Facebook account in 2014; and her interaction with police on 25 January 2018 (other topics were also included but the applicant only presses these two in this Court).

Relevant statutory provisions

30. Section 306J of the Criminal Procedure Act relevantly provides:

“Whether complainant … compellable to give further evidence

(1)     If a record of the original evidence of the complainant … (or any part of the record) is admitted in proceedings under this Division, the complainant … is not compellable to give further evidence in the proceedings unless the court is satisfied that it is necessary for the complainant … to give further evidence—

(a)     to clarify any matters relating to the original evidence of the complainant …, or

(b)     to canvas information or material that has become available since the original proceedings, or

(c)     in the interests of justice.

(2)     Subsection (1) applies despite anything to the contrary in this Act or the Evidence Act 1995.

(3)     The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the matters mentioned in subsection (1).

…”

31. The applicant’s trial counsel accepted that the two matters identified were relevant solely to the complainant’s credibility, thereby attracting the operation of Part 3.7 of the Evidence Act 1995 (NSW), which relevantly provides that a witness may be cross-examined about matters concerning credibility “if the evidence could substantially affect the assessment of the credibility of the witness” (s 103(1)). In deciding this question, the court may have regard to “whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth” (s 103(2)(a)), and “the period that has elapsed since the acts or events to which the evidence relates were done or occurred” (s 103(2)(b)).

The application in relation to the Facebook material

32. In the first trial, the complainant gave the following evidence (which formed part of the record played at subsequent trials):

“Q.    Ma'am, just in regards to Mr Saez, was it the case that he - it was someone that used to live next door to you in Bateau Bay; is that correct?

A.    He lived two doors up. Yes, that's correct.

Q.    How long have you known him for?

A.    For a good, at least, seven years maybe or a little longer.

Q.    You’re friends with him on Facebook; is that correct?

A.    I don’t know how to use phones and - no, I - I - I don’t believe I am friends with him on Facebook. I-I don't know Facebook. I'm friends with him in general.

Q.    One second. I'll come back to that. So are you on Facebook, or you're not on Facebook?

A.    My kids have made accounts and have - they may access that. I don't get on Facebook. I don't own Facebook.

Q.    Have you ever been camping with Mr Saez?

A.    Yes, I have.

Q.    You've never looked up Mr Warton's profile picture on Facebook?

A.    Who - on - on what? My phone?

Q.    Well, on any device on Facebook?

A.    No, I don't know how.”

33. In support of the application, the applicant’s trial counsel tendered a series of Facebook images and posts dated from 18 October 2014 to 25 December 2014, which came from an account with the complainant’s name or comprised posts on Mr Saez’s Facebook page which concerned the complainant (the Facebook material). He accepted that the proposed cross-examination was not relevant to a fact in issue and its relevance was limited to the complainant’s credibility given that she had denied “operating a Facebook”. He also accepted that the applicant’s trial counsel at the first trial had the Facebook material but did not cross-examine the complainant about them.

34. The primary judge gave the following reasons for rejecting the application in respect of the Facebook material:

“In relation to the Facebook material, whilst I am satisfied that it does tend to prove that the complainant at the very least recklessly made a false representation when she was under an obligation to tell the truth (namely on oath) having regard to the nature of the untruths (about a matter that I regard as of little significance) and given the period that had elapsed since the events to which the evidence related (2014) I am not satisfied that an untruth told about being on Facebook could, that is, is capable of, substantially affecting the assessment of the credibility of the complainant in relation to her evidence concerning the alleged sexual assault by the accused.”

The application in relation to the interaction between the complainant and police

35. The applicant’s trial counsel relied on five events related to the complainant’s criminal history and sought to adduce tendency evidence relating to those events (to establish that the complainant was assertive when dealing with persons in authority). However, in this Court, Mr Moutasallem, who appeared on behalf of the applicant in this Court, challenged only the refusal of the application in relation to a single event, on 25 January 2018, which his trial counsel accepted was relevant only to the complainant’s credibility. Accordingly, it is necessary only to address this event.

36. The relevant event was recorded in a police report. In summary, the report recorded that the police followed a vehicle which the complainant was driving. They found the vehicle parked on the road in Bateau Bay about 10m from the complainant. When the police asked her why she had parked the car on the road, she said, “It’s not on the road I’ve parked it as close to the edge as I can. Why are you doing this?”. Police told the complainant she had been stopped for a breath test and drug test. She became agitated and emotional and said, “Please, please don’t do this. I just want to go. I wasn’t even driving, I wasn’t near my car” (emphasis added). When she was asked whether she had consumed alcohol or drugs, she initially denied that she had but when police asked her again after cautioning her, she said, “yes, I have had one Bourbon”. She did not say whether she had consumed any drugs. The roadside breath test was negative for alcohol. According to the police report, the complainant became erratic and refused to comply with requests that she undertake a drug test. She was informed that failure to comply with the test would constitute an offence and was directed to undergo the test, which indicated a positive result for methylamphetamine and cannabis. The complainant resisted arrest and told police, “I haven’t done anything” (emphasis added).

37. The applicant’s trial counsel indicated that he wished to cross-examine the complainant about the highlighted passages in the extract above.

38. In her Honour’s reasons for rejecting the application in respect of the complainant’s statement that she was not driving (being the only matter pressed in this Court), the trial judge said: “it is important in my view to look at all the circumstances in which such representations were made”. Of the representation, “I wasn’t even driving”, the trial judge observed that the complainant had already admitted to police that she was the driver (by admitting that she was the one who had parked the car). In those circumstances, the trial judge found that her subsequent representation was not capable of substantially affecting the assessment of her evidence in relation to an alleged sexual assault.

Ground 1

39. It was common ground that the correctness standard applies to this Court’s consideration of whether the trial judge erred in refusing the applicant’s application for the complainant to be recalled because it is an evaluative judgment as to “which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ”: Hayne v R [2024] NSWCCA 97 at [89] (Meagher JA); WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 at [39] and [73] (Beech-Jones J, Payne JA and N Adams J agreeing); see also (in respect of whether tendency evidence is of significant probative value) Bauer v The Queen (2018) 266 CLR 56; [2018] HCA 40 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

The Facebook material

40. Mr Moutasallem submitted that the Facebook material “could also have been relevant to a possible explanation as to how Mr Saez may have become familiar with what the appellant looked like”. This matter was not raised before the trial judge. Nor was any evidentiary foundation laid for it. Indeed, such evidence as there was tended to indicate that this hypothesis was, at best, highly speculative. The complainant said, as extracted above, that she thought that the applicant’s surname was “Lambton” and Mr Saez denied that he knew the applicant’s name and that he looked him up on Facebook. In these circumstances, I am not persuaded that the submission that the Facebook material was, or could have been, relevant to a fact in issue is open.

41. The Facebook material was, relevantly, confined to the period October – December 2014, more than four years prior to the date of the alleged offending (7 March 2019) and more than six years prior to her giving evidence in the first trial (5 and 6 May 2021).

42. The Facebook material tends to prove that, contrary to the complainant’s evidence, she did have a Facebook account, at least from October – December 2014, and that she was capable of posting messages and images. The purpose of the questions asked by the applicant’s trial counsel (set out above) was to establish that the complainant and Mr Saez were friends because they were Facebook friends. Although the complainant indicated that she did not know how to use Facebook herself, she admitted that she and Mr Saez were friends and agreed that they had been camping together.

43. Further, the complainant’s evidence was not categorical in that she admitted that her children created accounts and said that she did not “believe” that she was friends with Mr Saez on Facebook.

44. It was reasonable for the applicant’s trial counsel to decide that there was no additional forensic benefit in cross-examining the complainant about the fact that she did appear to have had a Facebook account some years previously, notwithstanding her professed ignorance of it. This is not determinative: WX v R at [43] (Beech-Jones J, Payne JA and N Adams J agreeing). However, as Mr Moutasallem conceded, it bears on whether the questions sought to be asked in further cross-examination of the complainant “could substantially affect the assessment of the credibility of the [complainant]” within the meaning of s 103(1) of the Evidence Act.

45. Mr Moutasallem also submitted, in effect, that because the applicant’s trial counsel had little material with which to cross-examine the complainant for the purposes of impugning her credibility, the proposed cross-examination attained a significance which it might not otherwise have had. He argued that because the proposed cross-examination would explore the fact that the complainant had, at least recklessly, made a false representation when she was under an obligation to tell the truth (having sworn to tell the truth as a witness in the trial), it could substantially affect an assessment of her credibility. He emphasised that the effect need only be potential, as indicated by the word “could” and relied on what this Court said in R v El-Azzi [2004] NSWCCA 455 at [183] (Simpson J, Santow JA and Sperling J agreeing). He submitted that “there was an obvious credit point that could have been pursued”.

46. The effect of Mr Moutasallem’s submission is that whether or not proposed cross-examination has the potential to have a substantial effect on the assessment of the witness depends on whether the cross-examiner has anything else of substance to challenge the witness. Thus, so his argument went, a weak point might become a strong point if it were one of few weak points but would remain a weak point if there were better points. I reject this submission. That a cross-examiner has few feathers with which to fly does not make any single feather any more capable of flying. In any event, the cross-examiner had probative material with which to cross-examine the complainant, including inconsistencies between her sworn evidence and what she had told police in her police statement.

47. I do not consider that cross-examination of the complainant about the Facebook material “could substantially affect the assessment of [her] credibility” within the meaning of s 103(1) of the Evidence Act. It was not only highly peripheral but was also remote in time both to the offending conduct and the time at which the complainant gave evidence. It is, therefore, inadmissible under s 103(1) and, accordingly, the application under s 306J was correctly refused.

The police report concerning 25 January 2018

48. On appeal, Mr Moutasallem challenged only the trial judge’s refusal to require the complainant to be cross-examined on the statement that she was recorded as having made to police on 25 January 2018 that she was not the person driving the vehicle.

49. There is an ambiguity in the complainant’s statements to police. When the complainant said that she “wasn’t driving”, she had already admitted to police that she had driven the vehicle and parked it as close to the kerb as possible. Thus, it would appear that the complainant might have been telling police that, when they apprehended her, she was not driving (because she had turned off the motor and left the vehicle). However, even if she ought be understood as having told the police that she was not driving the vehicle, the circumstances of her statement to police (the timing, location and her role) were entirely different from the circumstances of the alleged offending conduct, thereby making any cross-examination on her denial that she was driving highly peripheral.

50. In these circumstances, I am not persuaded that cross-examination of the complainant about her statement that she was not driving “could substantially affect the assessment of [her] credibility” within the meaning of s 103(1) of the Evidence Act. Such evidence would, therefore, be inadmissible under s 103(1) and, accordingly, the application under s 306J was correctly refused.

The relevance of s 306J of the Criminal Procedure Act to ground 1

51. Mr Moutasallem correctly accepted that if the primary judge’s ruling that the Facebook material and the police report concerning 25 January 2018 was correct, it was unnecessary for either the trial judge or this Court to address s 306J of the Criminal Procedure Act.

Conclusion on ground 1

52. I would be disposed to grant leave to appeal on ground 1 because of the detailed submissions on the ground. However, I would dismiss the appeal against conviction as ground 1 has not been made out.

Ground 2: alleged error regarding the applicant’s criminal history

The sentence hearing

53. The material tendered by the Crown on sentence included documents which established the applicant’s criminal history in New South Wales (NSW) and South Australia (SA), which included the following.

Location	Date of offence	Date sentence imposed	Sentence	Offence
NSW	9 July 2003	25 August 2003	Section 10 bond for 9 months	Assault occasioning actual bodily harm.
SA	19 July 2012	17 August 2012	6-month good behaviour bond without conviction	Damage building or motor vehicle, commit assault and resist police.
NSW	24 July 2022	11 May 2023	Conditional release order without conviction for 12 months	Common assault.
NSW	24 July 2022	11 May 2023	$330 fine	Fail to leave premises when required.

Note: the matters in italics post-dated the subject offences.

54. In its written submissions on sentence, the Crown did not refer to the applicant’s criminal history. It identified as a mitigating factor that the applicant was a person of good character (s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). This submission was consistent with the prosecutor’s position at trial that the applicant was entitled to a good character direction on the basis that he had no criminal history for sexual offending or dishonesty offences, which was included in the summing up. At the sentence hearing on 8 September 2023, the Crown did not make oral submissions regarding the applicant’s criminal history.

55. The applicant’s written submissions on sentence before the trial judge said, regarding his criminal history:

“17.    The offender has no record of previous sexual assault and sexual misconduct offences. This is a mitigating factor.

18.    It was proved that the offender had committed two violence offences in his past, but both were dealt with by way of non-conviction orders due to the trivial nature of the violence and the circumstances of the offending conduct.

19.    The offender was previously a person of good character, and this is a mitigating factor (s 21A(3)(f)).”

56. The applicant’s trial counsel said, on the topic of prospects of rehabilitation:

“Given the offender’s prior good character and in particular the lack of offences of sexual misconduct or violence against women, would indicate that this seems to be an aberration in what has been his good character.”

The sentence judgment

57. The trial judge reserved her decision and delivered reasons on 13 October 2023.

58. Of present relevance, the trial judge said on the topic of the applicant’s criminal history, under the heading, “[t]he offender’s subjective circumstances”:

“He has a criminal history commencing in 2003 when he was 20 years old, when he was dealt with for an offence of assault occasioning actual bodily harm. He received a s 10 bond. In 2023 for a further offence of common assault he received a conditional release order without conviction. Whilst his criminal history is limited, I am satisfied it disentitles him to the leniency on sentence that would otherwise be available to a person of good character.”

(Emphasis added.)

59. Her Honour also said:

“Prospects of rehabilitation

I am satisfied the offender has very good prospects of rehabilitation, notwithstanding that he continues to maintain his innocence in relation to the offending. He has a very limited criminal history. He has a long history of employment. He has the support of his sister and close friends. I am satisfied he is unlikely to reoffend.”

(Emphasis added.)

Consideration of ground 2

60. Mr Moutasallem submitted that the passage highlighted in [58] above indicated an error by the trial judge in that her Honour failed to take into consideration in mitigation the factor in s 21A(3)(e) of the Crimes (Sentencing Procedure) Act, which provides:

“(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(e)     the offender does not have any record (or any significant record) of previous convictions

…”

61. He submitted that because non-convictions are not convictions, the trial judge ought to have found that the lack of previous convictions entitled the applicant to the benefit of this mitigating factor. He submitted that the trial judge should have made a positive finding pursuant to s 21A(3)(e) that the applicant did not have any record, or any significant record of previous conviction.

62. In Saunders v R [2022] NSWCCA 174, the offender argued that the sentencing judge denied him procedural fairness in finding that his criminal history disentitled him to leniency. The passage from the sentence judgment which was challenged on appeal was (set out Saunders v R at [38]):

“… having regard to the offender’s criminal history, I am satisfied that it disentitles him to the leniency that would otherwise be available to a person of good character.”

63. The appeal ground was rejected. Price J (Beech-Jones CJ at CL and Lonergan J agreeing) said at [66] that “the judicial discretion to allow leniency is not all or nothing and may be a matter of degree”. His Honour said further, at [67]:

“Although the Judge did not refer to s 21A(3)(e), it is plain that her Honour extended leniency to the applicant on account of his limited prior criminal history. Her Honour accepted that the applicant was otherwise of good character. Her Honour’s favourable findings to the applicant included his good prospects of rehabilitation and unlikelihood of reoffending.”

64. It is plain from the trial judge’s reasons in the present case that her Honour appreciated that the previous offences of common assault and assault occasioning actual bodily harm did not result in convictions. Her Honour expressly found that the applicant’s criminal history was “limited” but nonetheless found that he was disentitled to the leniency which would otherwise be available to a person of good character. The primary judge expressly took into account, in the passage extracted at [59] above, the applicant’s limited criminal history in his favour in assessing his prospects of rehabilitation and the likelihood of reoffending.

65. Further, Mr Moutasallem submitted that the trial judge ought not to have denied the applicant the leniency to which he would otherwise have been entitled as a person of good character, given that it was common ground that he was a person of good character.

66. The expression “good character” cannot be treated as a “single undifferentiated whole”: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [25] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Its meaning depends on its context since the words can bear significantly different meanings. The expression has positive and negative aspects: R v Levi (Court of Criminal Appeal (NSW), Gleeson CJ, 15 May 1997 at 5, unrep), cited with approval in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [27] (McHugh J)

67. When good character is used in its positive aspect, it refers to “a history of previous good works and contribution to the community”: R v Levi at 5. In its negative aspect it can mean either absence of previous convictions or whether the offender has previously engaged in other criminal conduct: Weininger v The Queen at [25].

68. As referred to above, the parties agreed, for the purposes of the trial and the sentence hearing, that, because the applicant had not previously committed either sexual offences or offences of dishonesty (the two categories to which the subject offences belonged because they were sexual offences by a person in authority), he was to be treated as being a person of good character and her Honour directed the jury accordingly. Thus, good character in the sense of absence of prior convictions is the only sense in which the expression was used in the trial and in the sentence hearing.

69. This distinction is significant when one has regard to what Simpson J said in R v Price [2005] NSWCCA 285 at [36] (relied on by Mr Moutasallem) that a s 10 order is expressly intended to permit an offender to retain the benefit of good character. Her Honour can be taken to have used “good character” in this context as meaning the absence of criminal convictions, since this is the only matter that is relevantly expressed in s 10 of the Act.

70. The acceptance by the Crown that the applicant was of good character (in the sense outlined above) did not require the trial judge to disregard the applicant’s antecedents entirely and grant him the leniency which her Honour might otherwise have granted (as the applicant’s trial counsel accepted when referring to the antecedents in the submissions before the trial judge). The antecedents showed that, although the applicant had no prior convictions (the only conviction – for failing to leave premises when required – post-dated the subject offences), he had nonetheless engaged in criminal conduct.

71. This approach is orthodox. In R v I R Hall (No 2) [2005] NSWSC 890 at [101], Kirby J took into account declarations made in civil penalty proceedings brought against the offender by the Australian Securities and Investment Commission, pursuant to s 16A(2)(m) of the Crimes Act 1914 (Cth), which requires the court to take into account matters including “the character [and] antecedents” of the offender. Although the declarations were not criminal convictions and therefore could not be taken into account as such, they were nonetheless relevant to his character and antecedents. This decision was cited with approval by this Court in R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at [59] (Johnson J, McClellan CJ at CL and Adams J agreeing).

72. The wording of the trial judge’s reasons was responsive to, and influenced by, the submissions made by the applicant in the sentence hearing, both orally and in writing. In taking the applicant’s antecedents into account, the trial judge expressly acknowledged that the previous offending did not result in convictions being recorded.

73. For these reasons, no error has been established. Ground 2 has not been made out. I do not consider ground 2 to be of sufficient merit to warrant a grant of leave to appeal against sentence.

Proposed orders

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

1. Grant leave to appeal on ground 1.

2. Dismiss the appeal against conviction.

3. Refuse leave to appeal on sentence.

75. BALL JA: I agree with Adamson JA.

76. FAGAN J: I agree with Adamson JA.

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Decision last updated: 14 February 2025