Mortimer v R

1. [1]

   JOHNSON J: By Notice of Appeal filed on 4 February 2020, the Applicant, David Mortimer (a pseudonym), appeals against conviction for a number of child sex offences following a trial before his Honour Judge Ellis and a jury at the Newcastle District Court in February 2018. The Applicant’s real name is not used in this judgment as publication of his name would tend to identify the complainants who are entitled to protection from publication under s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987.

2. [2]

   On 10 August 2018, the Applicant was sentenced to an aggregate term of imprisonment for 12 years and three months comprising a non-parole period of eight years commencing on 20 May 2018 and expiring on 19 May 2026 with a balance of term of four years and three months commencing on 20 May 2026 and expiring on 19 August 2030.

The Charges and Verdicts

1. [3]

   The Applicant was convicted of offences committed against two complainants. Donna (which is not her real name) was born in October 2001 and the offences with respect to her involved events between July 2009 and July 2013 when Donna was aged between seven and 11 years.

2. [4]

   Gail (which is not her real name) was born in February 2003. The charges involving her were alleged to have occurred between January 2011 and August 2015 when she was aged between eight and 12 years.

3. [5]

   The charges and verdicts of the jury are set out in the following table:

Ground of Appeal

1. [6]

   The Applicant relies upon a single ground of appeal with several components: Ground 1 - The learned trial Judge erred in directing the jury as to how the evidence of the child witness complainants was to be assessed by:

2. [7]

   As will be seen, the complaints now made before this Court were not the subject of complaint or any application on the part of Senior Counsel who appeared for the Applicant at trial. In these circumstances, it will be necessary for the Court to consider the application of Rule 4 Criminal Appeal Rules in the course of determining the appeal.

3. [8]

   The issues raised by this appeal concern the limits operating on a trial Judge to volunteer comments to a jury concerning the evidence of child witnesses, with this question to be considered by reference to the decision of the High Court of Australia in McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, a judgment delivered on 13 February 2019, a year after the trial of the Applicant.

4. [9]

   The Applicant does not seek to appeal with respect to sentence.

The Crown Case Against the Applicant

1. [10]

   As is apparent, the ground of appeal in this Court is directed to the trial Judge’s summing up to the jury and matters raised by his Honour which are now the subject of complaint. In the context of this appeal, a relatively brief narrative of the charges against the Applicant which gave rise to the verdicts will suffice.

2. [11]

   The Applicant was born in August 1969. In 2009, Donna’s mother formed a relationship with the Applicant. In April 2010, the Applicant moved in with Donna’s mother, Donna and Donna’s 20-year old sister at an address in the Newcastle area. The Applicant had a son who was about the same age as Donna and the son would stay at the Applicant’s home on weekends and during holidays as part of a parenting plan.

3. [12]

   Donna and Gail are cousins. Their mothers are sisters. The families lived in the same area and were close, with the complainants attending the same high school. On the Crown case, Donna told her mother in mid-2014 that the Applicant had touched her sexually on two different occasions. Donna’s mother confronted the Applicant who provided an explanation for each incident. The Applicant temporarily moved out of the home whilst Donna’s mother considered the situation. A decision was made not to report the matter to police and the Applicant moved back home about a week later.

4. [13]

   On 4 December 2015, Gail complained to her mother and older brother that the Applicant had been touching her sexually. Arrangements were made for Gail to speak to a general practitioner and, on 9 December 2015, Gail was taken to Waratah Police Station. Gail disclosed sexual offending against her and also told police that she had witnessed the Applicant committing an offence against Donna.

5. [14]

   Gail participated in four recorded interviews with police between December 2015 and April 2016. Donna participated in one interview with police on 18 December 2015.

6. [15]

   The Applicant was arrested and charged with offences against Donna and Gail on 21 December 2015.

7. [16]

   The proceedings against the Applicant were conducted under the Child Sexual Offence Evidence Program Scheme at the Newcastle District Court, in accordance with the provisions in Part 29 of Schedule 2 to the Criminal Procedure Act 1986 considered in SC v R [2020] NSWCCA 314 at [16]ff. The evidence of Donna and Gail was pre-recorded and conducted, with the assistance of a child witness intermediary, before her Honour Judge Girdham SC. The evidence of Donna was taken on 30 January 2017 when she was 15 years of age. The evidence of Gail was taken on 31 January 2017 shortly before her 14th birthday.

8. [17]

   As noted earlier, the trial of the Applicant proceeded before his Honour Judge Ellis and a jury commencing on 12 February 2018, with verdicts being returned on 23 February 2018.

9. [18]

   It was the Crown case that, a few months after Donna’s mother commenced dating the Applicant, Donna (then about eight years old) was home alone with the Applicant. Donna’s mother was working. Donna and the Applicant were watching the DVD “Finding Nemo” in the downstairs lounge room. They were on the lounge suite covered by a doona. The Applicant started tickling Donna under the arms and on her feet. He then started blowing raspberries on Donna’s stomach. The Applicant moved further down Donna’s body and pulled her pants down and then touched her vagina with his hands. The Applicant inserted his finger inside Donna’s vagina.

10. [19]

    The offence in Count 2 followed on from Count 1. After the Applicant digitally penetrated Donna, she sat up. He placed his head between her legs and started licking her vagina. His tongue was on the inside of her vagina. Donna got up off the lounge and went upstairs. She stayed there until her mother got home from work. When her mother arrived home, the Applicant returned to his house.

11. [20]

    On a night when Donna was around 10 years of age, she was asleep in her bed. She was sleeping in the top bunk. Donna was wearing pyjama shorts, underpants and a singlet top and was underneath a doona.

12. [21]

    In the middle of the night, Donna woke up to find the Applicant holding his Samsung mobile phone with the flashlight on. She was no longer underneath the doona and her pants and underpants were down around her knees. The Applicant told Donna he was just fixing her doona. He said sorry and quickly ran out of the room. Donna pulled her pants up, got out of bed and went to the bathroom. She returned to her bed and lay there, but could not sleep.

13. [22]

    A few months after the incident in Count 3, Donna was again woken in the middle of the night by the Applicant in her bedroom. Again, he was using a flashlight on his mobile phone. When Donna had gone to bed, she was wearing a singlet top. She awoke to find the straps down by her elbows and the neck area of the singlet top down around her ribs. She was not wearing a bra and her breast area was exposed. The Applicant said sorry and ran out of the bedroom. Donna began hyperventilating. She went to her mother and told her that something had scared her. They went downstairs and Donna spent the rest of the night sleeping on the lounge suite.

14. [23]

    When Gail was about nine years old, she was at Donna’s house. The Applicant was home. Gail and Donna were playing “hide and seek”. Gail was in the lounge room. The Applicant flipped Gail over the armchair and started “humping her” from behind.

15. [24]

    On the same occasion as the events giving rise to Count 5, Gail saw the Applicant place Donna over the arm of the lounge and place his arms on her waist and “hump her” from behind.

16. [25]

    In her evidence, Donna denied that such an event took place in the company of Gail.

17. [26]

    At a time after the incidents described in Counts 5 and 6, Gail was at Donna’s house playing with a video game console together with the Applicant’s son. The Applicant was present in the house, but no one else was there including Donna.

18. [27]

    Gail went upstairs to use the bathroom and the Applicant grabbed her by the waist and picked her up. He took her into his bedroom, closed the door and pulled her pants down before dropping her on the bed. The Applicant then licked Gail’s vagina.

19. [28]

    The Applicant placed a pillow over Gail’s head and was holding it down. She told him to get off, but he did not. Gail kicked him and eventually he stopped. Gail ran from the house and went to a nearby shopping centre. She stayed there for a while before returning to the Applicant’s house. Gail then went to the movies with the Applicant and the Applicant’s son before being collected at a later time by her mother.

20. [29]

    When Gail was about 10 years old, the Applicant sent a text message to Gail’s mother asking if he could take Gail to the place where he worked. The Applicant collected Gail from her house and they went to this location in the Newcastle area. No one else was there. The Applicant let Gail sit in a vehicle used in his employment. At first she sat in the front seat, then she climbed over to the back seat. The Applicant climbed in. He turned Gail over and started “humping” her. Gail kicked him. She told him to get off, but he did not stop. The Applicant then showed her around the office for a while. The Applicant told Gail that if she told anyone, they would not be a family anymore.

21. [30]

    On a day in 2014 prior to Gail’s birthday, the Applicant arrived at Gail’s house unannounced. She was watching television in her bedroom. Her mother, father and sister were home. The Applicant came into her bedroom and started talking to her. He then grabbed her around the waist and flipped her over onto his knees. He started “humping” her. Gail flipped herself back over, kicked and said, “Get out of my room”. The Applicant left.

22. [31]

    In August 2015, Gail was aged 12 years. On this day, she was home from school and her 20-year old sister was also home. Gail was in the back room watching the MTV television program “Catfish” when the Applicant turned up at the house around midday.

23. [32]

    Gail’s sister went outside with the dogs who had started chewing on the Applicant’s shoes. Gail saw the Applicant approach her. She asked “What do you want?”. The Applicant sat down on the lounge next to her, then flipped her over so that she was on her knees. The Applicant started “humping” her, his hands were on his waist. She could feel the Applicant’s penis touching her butt through their clothing. Gail kicked him and said, “Can you get off me” and “Hey, stop that”. The Applicant then grabbed Gail’s hand and tried to force her to touch his penis. Gail clawed him with her nails making his hand bleed.

24. [33]

    Gail’s sister came back inside after about two minutes. As the Applicant was walking back into the kitchen, he said “Don’t tell anyone because this is our little secret and you’ll split the whole family up”.

25. [34]

    The Crown also adduced evidence as context evidence of other acts of sexual misconduct. With respect to Donna, the context evidence comprised frequent sexual touching and “humping” which took place after the counts in the indictments and until Donna complained to her mother. With respect to Gail, the context evidence constituted allegations of sexual touching and/or misconduct which did not give rise to a separate charge.

The Course of the Trial

1. [35]

   The Crown case included the recorded evidence of Donna and Gail which was played to the jury.

2. [36]

   In addition, the Crown tendered a report of Dr Rita Shackel, an Associate Professor at the University of Sydney with post-graduate qualifications in psychology, education and law. The report (Exhibit K) was read to the jury. Dr Shackel did not give oral evidence at the trial. Dr Shackel’s report addressed the issue of disclosure (and delay in disclosure) of child sexual assault by complainants and the reasons for delay. The report was expressed in general terms and was not based upon any examination of Donna or Gail, nor did it refer to the circumstances of the Applicant’s case.

3. [37]

   In the absence of the jury, the Crown informed the trial Judge on 14 February 2018 about the report of Dr Shackel (T48):

4. [38]

   Given the issues raised on appeal, it is appropriate to set out the contents of Dr Shackel’s report which stated that, in summary, relevant research findings generally indicate the following (AB115-116):

5. [39]

   Having identified those points, Dr Shackel’s report continued to make the following general comment by way of expert opinion (AB116-117):

6. [40]

   Given the matters complained of in the ground of appeal, it is appropriate to set out what was said in the trial in the absence of the jury regarding the requests for directions concerning the evidence of children and what the trial Judge said to counsel about what may be said in the summing up.

7. [41]

   At the conclusion of proceedings on 14 February 2018, discussion took place in the absence of the jury between the trial Judge, the Crown and Senior Counsel for the Applicant concerning Dr Shackel’s report.

8. [42]

   Senior Counsel for the Applicant said that he would be seeking some directions concerning Dr Shackel’s report (T49). The discussion continued (T49-52) (emphasis added):

9. [43]

   The record of the trial does not indicate that the Crown or Senior Counsel for the Applicant provided any document to the trial Judge (by way of submission or proposed direction) concerning the report of Dr Shackel and what should be said to the jury in that respect.

10. [44]

    A number of other witnesses were called in the Crown case. For the purpose of considering the ground of appeal in this case, it is not necessary to outline the evidence of other witnesses.

11. [45]

    As the last step in the Crown case, the trial Judge read Dr Shackel’s report to the jury on 20 February 2018 accompanied by some additional comments made to the jury (T173-174):

12. [46]

    The Applicant gave evidence in the defence case at trial on 20 February 2018 in which he denied the commission of the offences and was cross-examined (T175-210).

Discussion Before Closing Addresses

1. [47]

   After the close of the defence case, the jury was excused for the day and discussion took place between his Honour and counsel with respect to issues which may arise in closing addresses and the summing up principally concerning a tendency direction (T218-225). In the course of this discussion, the trial Judge said to counsel (T222-224):

2. [48]

   His Honour concluded the discussion with counsel as follows (T225):

3. [49]

   His Honour foreshadowed further directions which would be given to the jury, but said nothing to counsel concerning any particular comments or observations which he had in mind stating to the jury concerning child evidence and the approach to evidence of children.

The Closing Addresses

1. [50]

   On 21 February 2018, the Crown addressed the jury (T229-238).

2. [51]

   The Crown closing address was relatively short. The Crown invited the jury to use their “everyday experience of people” and their collective “wisdom” in assessing the evidence of witnesses (T229-230). The Crown referred to Dr Shackel’s opinion evidence concerning factors bearing upon the evidence of children (T230). The Crown then reminded the jury of the evidence of Donna and Gail by reference to the counts in the indictment (T230-235) in the course of which brief reference was made to Dr Shackel’s report (T235). The Crown referred to the evidence of other Crown witnesses (T236-237) and the Applicant (T237), before finishing the address with a further reference to the evidence of Donna and Gail (T237-238).

3. [52]

   The Crown did not advance any particular submissions concerning the assessment of evidence of child witnesses.

4. [53]

   Senior Counsel for the Applicant then embarked upon his closing address to the jury (T238-253, T256-265).

5. [54]

   Immediately before the luncheon adjournment and before the defence closing address had concluded, the trial Judge raised some issues with counsel in the absence of the jury (T254) (emphasis added):

6. [55]

   After the luncheon adjournment, the trial Judge raised the following issues (T254-255) (emphasis added):

7. [56]

   The defence closing address challenged the credibility and reliability of the evidence of the child complainants. Reference was made to Dr Shackel’s report (T241, T244-245). Senior Counsel for the Applicant invited the jury to use their “common sense” in assessing the evidence of the complainants whom he pointed out were not “five or six year old children”, but were “young adolescents” (T246). There was no challenge to or criticism of Dr Shackel’s general opinion evidence with the submissions being directed to the evidence of the two complainants. It was submitted that the jury should “try to make sense out of this and try to fit it with what [the jury] know of human nature”, even allowing for their age and immaturity (T248).

8. [57]

   There was no application made at the conclusion of the defence address nor any discussion in the absence of the jury concerning the content of the summing up.

The Summing Up to the Jury

1. [58]

   The trial Judge commenced his summing up to the jury immediately after the defence closing address on the afternoon of 21 February 2018. The summing up continued on the morning of 22 February 2018.

2. [59]

   Having regard to the ground of appeal, it is appropriate to set out extracts from the summing up.

3. [60]

   Early in the summing up, whilst explaining the roles of the Judge and jury, his Honour gave the following routine general direction (SU3-4):

4. [61]

   Whilst giving the jury directions concerning the general topic of witnesses and their evidence, his Honour touched upon the issue of evidence given by children (SU6-7) (emphasis added):

5. [62]

   In the course of directions concerning the memory of witnesses, his Honour referred once again to the evidence of children (SU8) (emphasis added):

6. [63]

   Soon after, his Honour referred to the issue of evidence of children and the report of Dr Shackel (SU10-12) (emphasis added):

7. [64]

   The trial Judge’s reference to Gail’s JIRT interview had not been referred to in the closing addresses, but his Honour had raised this aspect with counsel during the trial (see [42] above).

8. [65]

   Shortly before adjourning for the day on 21 February 2018, his Honour referred again to the report of Dr Shackel, noting the limits on the use of the report (SU34-35):

9. [66]

   His Honour repeated parts of Dr Shackel’s report to the jury (SU35-37).

10. [67]

    His Honour then reminded the jury of the complaint evidence before giving the jury the following further direction on this topic (SU39-40):

11. [68]

    Soon after, the jury was excused for the day and discussion took place in the absence of the jury concerning further directions to be given. At one point, the following was said (SU41-42) (emphasis added):

12. [69]

    His Honour did not, at any point, identify what “things” he had in mind raising with the jury following this broad statement of intention. No complaint was made by Senior Counsel for the Applicant concerning anything said to the jury to that point in the summing up.

13. [70]

    The summing up continued on 22 February 2018. A short way into the resumed summing up, his Honour said to the jury (SU46-47) (emphasis added):

14. [71]

    His Honour gave the jury warnings concerning the use of context evidence and directed the jury not to engage in tendency reasoning. These directions were not challenged by the Applicant.

15. [72]

    His Honour then commenced summarising the Crown case. It is submitted for the Applicant that propositions advanced by the trial Judge in this part of the summing up were either not matters which the Crown had put in argument or were not in evidence. It was submitted that, although his Honour used terms such as “the Crown says” or “the Crown would say”, there were no statements by the Crown which approximated what his Honour attributed to the Crown.

16. [73]

    As noted earlier, the trial Judge had told counsel, in the absence of the jury, that he would refer to some things which had not been specifically said in closing addresses, but which his Honour assessed to be the respective cases of the parties (SU41-42 at [68] above). However, his Honour did not identify what he proposed to say to the jury in this respect.

17. [74]

    In this context, the trial Judge returned to the issue of the nature of the memory of children and the qualities of the evidence of children.

18. [75]

    At the commencement of his Honour’s summary of closing addresses, the following was said to the jury (SU53-54) (emphasis added):

19. [76]

    His Honour said (SU55-56) (emphasis added):

20. [77]

    The last (emphasised) proposition had not been advanced by the Crown.

21. [78]

    His Honour continued (SU56-58) (emphasis added):

22. [79]

    The emphasised parts of the extract from the summing up had not been addressed by the Crown.

23. [80]

    His Honour commenced a summary of the defence closing address (SU58). The Applicant submits that the trial Judge provided the jury with a type of general warning in relation to the ability of a child to recall accurately the time of an event and to cope as a witness, with this occurring in a section of the summing up which, it was argued, was dedicated to explaining the defence case. Counsel for the Applicant submitted that these warnings were used as a counterpoint to defence criticisms of the reliability of the evidence of the complainants. It was submitted that, in this section of the summing up, his Honour advanced arguments which had not been raised previously by the Crown.

24. [81]

    The trial Judge said to the jury (SU59-60) (emphasis added):

25. [82]

    The trial Judge referred to the defence submission that it was illogical that the Applicant had warned Gail (but not Donna) not to tell anybody about the offending. His Honour said (SU60-62) (emphasis added):

26. [83]

    His Honour referred to a defence submission as to the unlikelihood of the conduct alleged occurring in the near vicinity to other people by telling the jury that “humping” without the removal of clothing can be quickly ceased and was therefore less detectable. His Honour said (SU63) (emphasis added):

27. [84]

    His Honour turned to a defence submission that Gail was an evasive witness who chose not to engage in cross-examination (SU64) (emphasis added):

28. [85]

    At the conclusion of the summing up, neither the Crown nor Senior Counsel for the Applicant sought to raise any matter with the trial Judge concerning the summing up either in the presence or the absence of the jury (SU66).

29. [86]

    The jury retired to consider their verdicts at 10.32 am on 22 February 2018 and were excused for the day at 4.16 pm.

30. [87]

    The jury continued their deliberations at 9.30 am on 23 February 2018 and returned to Court at 10.32 am so that his Honour could respond to a jury question concerning Count 7.

31. [88]

    The jury retired to resume their deliberations at 10.34 am and returned at 1.07 pm with the verdicts indicated earlier (at [5]).

32. [89]

    At no point during the trial was complaint made to the trial Judge concerning the parts of the summing up which are now challenged on appeal.

The Applicant’s Ground of Appeal

1. [90]

   The Applicant relies upon what is said to be the cumulative effect during the summing up of the trial Judge raising a number of issues in a manner which infringed the proper function of a summing up and gave rise to unfairness to the Applicant and a miscarriage of justice.

2. [91]

   Rather than addressing each subground separately, it is appropriate to gather the arguments made for the Applicant and the Crown and then respond to the ground of the appeal at a single point later in this judgment.

Submissions for the Applicant

1. [92]

   Mr Carroll, counsel for the Applicant, submitted that the cumulative effect of his Honour’s directions in relation to the assessment of witnesses necessarily impinged upon the jury’s assessment of the credibility of the complainants and denigrated the Applicant’s submissions with respect to credit to the point that a miscarriage of justice occurred.

2. [93]

   It was submitted that the trial Judge had, in a highly persuasive manner, imparted upon the jury a reasoning process which had not been advanced by the Crown nor supported by evidence or legal principle. The inference created was that evasiveness, external and internal inconsistencies and an inability to recall an event with sufficient details were not a marker of potential dishonesty or unreliability, but rather a benign artefact of the evidence of children.

3. [94]

   The Applicant submitted that the trial Judge did not make the traditional statement to the jury that the jury was obliged to ignore any comment on the facts made by a trial Judge if it did not accord with the jury’s own view. It was submitted that his Honour’s directions and suggestions were delivered in terms which the jury would have understood as directions of law. With respect to the reasoning process the jury should follow when assessing the evidence of the complainants, it was submitted that the comments were expressed in mandatory terms.

4. [95]

   It was submitted that, on two occasions, his Honour had identified explicitly that he was making a comment upon a fact in issue (at SU24 and SU60). It was submitted that, on both of those occasions, the statements made related to a factual matter which was not in dispute. It was said that no such qualifier was made when his Honour directed the jury as to how they were to assess the evidence of the complainants. It was submitted for the Applicant that the effect of the summing up was to warn the jury not to engage in a process of reasoning, favourable to the Applicant, in relation to fact finding concerning the honesty and reliability of Donna and Gail.

5. [96]

   Mr Carroll submitted that neither the Crown nor the Applicant, in their respective opening and closing addresses, had made generalised prescriptive statements as to the quality of evidence given by children. The Crown did not call expert evidence in relation to the evidence of children, nor did the Crown lead specific expert evidence upon the cognitive abilities of Donna and Gail. The parties conducted their cases at trial upon the basis that it was for the jury to assess the evidence of the complainants calling upon the collective experiences of the jurors.

6. [97]

   Counsel for the Applicant submitted that the trial Judge was not bound by statute or case law to give the directions or to make suggestions which are now challenged by the Applicant. It was noted that s.165A Evidence Act 1995 precluded any general statement which suggested that the evidence of children may be unreliable.

7. [98]

   In support of Ground 1(a), counsel for the Applicant relied upon the following propositions in the summing up with respect to the evidence of children:

8. [99]

   It was submitted that these propositions have not been accepted at law with respect to the evidence of children and are contrary to s.165A Evidence Act 1995, which appears later in this judgment.

9. [100]

   In criticising these statements in the summing up, counsel for the Applicant referred to CMG v R [2011] VSCA 416 at [13]-[14] where Harper JA (Ashley and Weinberg JJA agreeing) said:

10. [101]

    It was submitted that the trial Judge’s suggestions as to the quality of evidence of children could be recast, with minor amendments, as the basis for a warning to a jury to be cautious to convict based upon the evidence of children, a step that would infringe s.165A Evidence Act 1995. It was submitted that this underscored that the contentions are apt to lead to decision making based on generalisations, prejudices and stereotyping as opposed to actual evidence.

11. [102]

    In the absence of evidence relating to the particular complainants or a settled position in science as to the cognitive ability of all children, the Applicant submitted that the generalisations advanced by the trial Judge are fraught with difficulty.

12. [103]

    It was submitted that, of critical importance to the issues joined in this trial was that the trial Judge, whilst putting the case for the Applicant, warned the jury to give little weight to the literal response by Donna that the abuse ended the previous year (2014) on the basis that it was said by a child (SU60-62 at [82] above).

13. [104]

    With respect to the topic referred to at [98](f) above, concerning the question whether any witness “would fare well when questioned by a senior barrister”, in the context of the defence case which relied predominantly on a submission that the cross-examination demonstrated that both complainants were dishonest or otherwise unreliable, it was submitted that it was devastating to the Applicant’s case for the trial Judge to infer that the parameters of the complaint and the trial process itself would inevitably see a child witness flounder when questioned by Senior Counsel. In the absence of a similar statement from the Crown, it was submitted that this comment would have been interpreted by the jury as coming directly from the trial Judge and encapsulating the notion that it was the view of the Court, or a settled position in law, that the process of cross-examination is an extremely difficult task for a child complainant to navigate.

14. [105]

    With respect to Ground 1(b), it was submitted that the trial Judge developed a powerful theme, enforced through repetition, that an apparent negative impression that the jury may have formed from their observations of the demeanour of the complainants may be no more than a reflection of their personality or maturity levels in the situation.

15. [106]

    Counsel submitted that it was inferred from his Honour’s comments that the difficulties confronted by witnesses when tested in cross-examination are amplified by youth and consequently criticism or doubt grounded in the observations of the child witnesses should be tempered. This direction was supported by statements as to his Honour’s experience of witnesses. The jury were directed that, in their assessment of the demeanour of the witnesses, they must heed what his Honour told them about the varying ways that witnesses react when being cross-examined, such as getting angry and that such a reaction may not provide insight into the truthfulness of the witness.

16. [107]

    In this context, it was submitted that this theme reached denouement when his Honour, summarising the argument for the Applicant that Gail presented as an unimpressive witness, retorted that Gail may have simply been giving Senior Counsel for the Applicant “the bird” by her conduct in the witness box (SU64 at [84] above).

17. [108]

    It was submitted for the Applicant that the directions of the trial Judge in relation to demeanour constituted an impermissible encroachment upon the jury’s role of assessing witnesses in a manner which contravened what was said in R v RTB [2002] NSWCCA 104. It was submitted that the jury was entitled to base its final judgment on its own impressions, but that the trial Judge’s statements required the jury to absorb his Honour’s own experience as to how a witness reacts to cross-examination and to insert that experience into the jury’s assessment of the witness during their deliberations. It was submitted that such a task is impossible and that the directions with respect to demeanour could only have operated to warn the jury to give less weight to any initial negative reactions to the way in which the complainants presented.

18. [109]

    Reliance was placed, as well, upon RGM v R [2012] NSWCCA 89 at [94], [97] and [102] and, in particular, the statement of Fullerton J expressing concern about the trial Judge’s statement to the jury that they were to assess the complainant’s evidence against the background that “if she was being truthful she might find difficulty giving her evidence because she was reliving the assaultive experience in the process”. Counsel for the Applicant submitted that this was, in effect, what the trial Judge was saying to the present jury, “You have to look at the reality of what you are dealing with, a child who is not a lawyer, not a wordsmith, being tested on a subject upon which they might be quite emotional about if they are telling the truth” (SU57 at [78] above).

19. [110]

    It was submitted for the Applicant that the trial Judge, when purporting to summarise the Crown case, used a similar reasoning process as to that criticised by this Court in RGM v R.

20. [111]

    It was submitted for the Applicant that, when the entirety of his Honour’s directions and comments are combined, whether expressed as his own or as “the Crown would say”, there is little to distinguish this case, in terms of the reasoning process, from that contained in the summing up which led to the quashing of convictions in RGM v R.

21. [112]

    With respect to Ground 1(c), Mr Carroll submitted that the trial Judge, in his summing up, made the following arguments which had not been raised by the Crown:

22. [113]

    With respect to [112](f) above, it was submitted that the Crown did not advance an argument that the context evidence was to be used as a reason for explaining deficits in memory and difficulty in recall. Rather, the Crown closing address repeated that the purpose of evidence of uncharged acts with respect to Donna was to demonstrate that the counts were not isolated incidents, but were occurring in a larger context of other acts being committed against Donna. Counsel for the Applicant submitted that the Crown’s approach was consistent with the Criminal Trial Courts Bench Book direction with respect to the use of context evidence.

23. [114]

    It was submitted for the Applicant that the direction with respect to context evidence and difficulties with recollection permitted the jury to use the context evidence of each complainant to bolster the credibility of that complainant. In the context of the trial, it was submitted that this reasoning process was significantly detrimental to the Applicant’s case.

24. [115]

    It was submitted that the denial by Donna of an incident involving “hide and seek” and “humping” which occurred whilst Gail was present, could be used to demonstrate that Gail had made this allegation “out of nothing” and that she was a dishonest witness. It was argued, however, that his Honour’s direction allowed for a reasoning process that Donna was simply confused and that her memory of each occasion of “humping” was blurred. Accordingly, it was submitted that Donna’s denial of the event captured by Counts 4 and 5 could be explained by deficit in memory rather than as evidence that the incident did not occur.

25. [116]

    With respect to [112](j) above, it was contended that the trial Judge had developed a rebuttal to the argument as to the unlikelihood of the Applicant pressuring or threatening one complainant not to tell, and not the other, by suggesting that the difference was explained by a continuation of offending against Gail after Donna had complained to her mother. It was submitted for the Applicant that the Crown had not advanced such an argument to the jury.

26. [117]

    It was submitted that the reasoning process advanced by his Honour was that the complaint by Donna led to a change in the Applicant’s later conduct towards Gail and the incorporation of the threat not to disclose. It was submitted that, to demonstrate this argument, his Honour went to the dates on the indictment for Gail and pointed out to the jury that, using that date range, the offending against Gail post-dated the complaint by Donna to her mother. The evidence of Gail, however, was that the entirety of the offending against her, including the first occasion which occurred simultaneously with Donna (Counts 5 and 6) included the warning not to tell “… he pulled me over and said, ‘this is our little secret’”. It was noted that Counts 5 and 6 were said to have occurred when Gail was eight or nine years old and Donna was nine, 10 or 11 years old.

27. [118]

    Contrary to the abstract argument advanced by the trial Judge developed by extrapolating the date range in the indictment concerning Counts 5 and 6, it was submitted that the evidence in the trial was that the Applicant was warning Gail not to tell prior to any complaint by Donna.

28. [119]

    It was submitted that the Applicant had lost a real chance (or a chance fairly open) of being acquitted so that leave should be granted to him under Rule 4: ARS v R [2011] NSWCCA 266 at [148]. Counsel submitted that the suggested misdirection in this trial involved the fundamental task entrusted to the jury to determine from the jury’s own experience the reliability of the complainants. The trial involved mixed verdicts and the impugned summing up undermined significantly the strength of the argument for the Applicant.

29. [120]

    It was submitted that there could be no forensic advantage for the Applicant in having the trial Judge critique and dismantle the defence case and recast powerfully the case for the Crown. It was submitted that it is difficult to see how the summing up could have been rectified by corrections being made or the withdrawal of directions. Counsel for the Applicant submitted that the only practical remedy was to discharge the jury with such an application enjoying no prospects of success prior to the decision of the High Court of Australia in McKell v The Queen, a decision handed down on 13 February 2019 after the trial of the Applicant.

30. [121]

    It was submitted for the Applicant that the summing up constituted, in effect, a second address for the Crown which answered the matters which had been “telegraphed” by the defence, but not met by the Crown. It was submitted that this approach was consistent with the prevailing view at the time (prior to McKell v The Queen) that a trial Judge had broad scope to make comment and suggestions upon the facts and the fact-finding process provided the jury is told that the ultimate decision remains theirs alone: McKell v R [2017] NSWCCA 291 at [100].

31. [122]

    Counsel for the Applicant noted that Rule 4 had not been applied to refuse leave in RGM v R and that, although complaint had not been made by defence counsel, an appeal was allowed in NJB v R [2010] NTCCA 5 at [17] as “the impermissible directions went to the heart of the case”.

32. [123]

    It was submitted that, in both McKell v The Queen and OKS v State of Western Australia (2019) 265 CLR 268; [2019] HCA 10, the High Court had emphasised that it is fundamental to our system of justice that the trial Judge should not descend into the forensic arena with the equivalent of Rule 4 not being applied in OKS v State of Western Australia. It was submitted that the present Applicant should be granted leave under Rule 4 to rely upon the ground of appeal in this case.

33. [124]

    Counsel for the Applicant submitted that the Court should order a retrial with respect to Counts 1 to 4, but that verdicts of acquittal should be entered with respect to Counts 7 and 8.

34. [125]

    In support of the application that verdicts of acquittal should be entered upon Counts 7 and 8, it was submitted that, in a subsequent retrial upon these counts which concerned Gail, the Applicant would be denied the significant forensic advantage that he acquired by demonstrating:

35. [126]

    It was submitted that it was not possible for the Applicant to receive a fair trial upon Counts 7 and 8 if the evidence in relation to the verdicts resulting in acquittal is parsed from a subsequent trial, so that a new trial should not be ordered on those counts.

Submissions for the Crown

1. [127]

   The Crown submitted that the ground of appeal does not raise a question of law alone so that leave to appeal is required under s.5(1) Criminal Appeal Act 1912. In addition, the Crown submitted that Rule 4 Criminal Appeal Rules applies in this case as none of the matters now complained of were the subject of an application or objection by Senior Counsel who appeared for the Applicant at trial.

2. [128]

   The Crown did not accept that the trial Judge had impermissibly encroached upon the jury’s task of determining the credibility of the complainants in this trial. Reference was made to parts of the summing up where his Honour had given directions to the jury which emphasised that it was a matter for the jury to determine issues of credibility concerning the complainants.

3. [129]

   The Crown referred to parts of the summing up which addressed the following matters:

4. [130]

   The Crown submitted that the trial Judge had discussed directions with the parties and had asked for input during the trial (T52), before the closing addresses (T218-221, T225 and T226-228) and during the summing up (SU41).

5. [131]

   In addition, the Crown noted that his Honour stated during the summing up that he would say things which the parties had not specifically said, but that “It’s my assessment of what your respective case is all about” (SU42 at [68] above). Further, before the jury retired to consider its verdicts, the trial Judge invited counsel to raise any matter and no further issue was raised before the jury commenced its deliberations (SU66).

6. [132]

   The Crown submitted that the relevant question for determining whether there was a miscarriage of justice caused by the trial Judge’s summing up was that stated by Meagher JA (Bellew and Lonergan JJ agreeing) in ABR (a pseudonym) v R [2020] NSWCCA 33 at [61]:

7. [133]

   The Crown submitted that, in order to determine whether the summing up was unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial: R v Sukkar [2005] NSWCCA 54 at [90].

8. [134]

   The Crown submitted that the trial Judge’s directions did not impinge upon the jury’s task to assess the credibility of the complainants. Rather, the summing up made it clear that it was the jury’s task to assess the credibility of the complainants with it being a matter for the jury as to whether they were satisfied beyond reasonable doubt as to the truthfulness and honesty of each of the complainants concerning each count on the indictment.

9. [135]

   The Crown submitted that the trial Judge did not make generalised statements as to the quality of evidence given by children nor did the Judge state cognitive abilities of the complainants.

10. [136]

    With respect to Ground 1(a), the Crown pointed to the trial Judge raising with the parties, in the absence of the jury, that he had often given directions to juries about not applying adult logic to an assessment of a child (T52 at [42] above). It was submitted that this flagged the topic sufficiently so that the parties were on notice that his Honour intended to say something on this issue.

11. [137]

    With respect to the eight matters complained of by the Applicant under Ground 1(a) (see [98] above), the Crown submitted that these were proper matters for the trial Judge to point out and that they did not prevent or discourage the jury from fairly evaluating the evidence of the complainants: ABR (a pseudonym) v R at [66].

12. [138]

    The Crown pointed, as well, to provisions now contained in s.293A Criminal Procedure Act 1986 (which commenced on 1 December 2018) which provide for directions to be given with respect to the evidence of complainants in trials of sexual offences.

13. [139]

    The Crown submitted that the trial Judge told the jury that it was necessary to keep in mind the ages of the complainants and that the jury was not being told to disregard any concerns which they may have about their evidence. The trial Judge’s comments did not express any opinion to the jury as to how they should resolve disputed issues of fact which would have contravened the principles stated in McKell v The Queen.

14. [140]

    With respect to the complaint concerning the trial Judge’s comment (at SU56 at [78] above) concerning cross-examination “by a senior barrister”, the Crown submitted that this was a proper matter for the trial Judge to point out and that it did not prevent the jury from taking inconsistencies or any other matters into account in assessing the evidence of the complainants.

15. [141]

    With respect to Ground 1(b), the Crown disputed submissions made for the Applicant concerning the effect of statements made by the trial Judge during the summing up. Insofar as the Applicant sought to rely upon what was said in RGM v R concerning the assessment of a complainant’s evidence against the background of difficulty “because she was reliving the assaultive experience in the process”, the Crown submitted that the trial Judge had made no such comment in respect of any difficulty of the complainants “reliving the assaultive experience” in the present case.

16. [142]

    With respect to the statement by the trial Judge concerning Gail “giving Mr Rosser the bird” (SU64 at [84] above), the Crown submitted that the incident in question was part of the pre-recorded evidence where Gail, in an answer in cross-examination, said “this shit” and walked out of the room (MFI15, T10). The video depicted Gail putting her hand down on the table where there is a “stop” sign to indicate that she wanted a break and she then left the room. His Honour’s comment was that the witness was, figuratively speaking, giving Mr Rosser “the bird” (that is, figuratively sticking her middle finger up at the cross-examiner) and that this was not surprising because people do get angry when they are cross-examined for all different reasons.

17. [143]

    Contrary to the submissions for the Applicant, the Crown submitted that the trial Judge did not repeat the same reasoning process as was criticised by this Court in RGM v R. This was because his Honour’s comments were not expressed as “his views about child witnesses”: RGM v R at [96]. The Crown submitted that the summing up, read as a whole, did not suggest an approach to the assessment of a child’s evidence such that it has the appearance of a direction of law: RGM v R at [97].

18. [144]

    With respect to Ground 1(c), the Crown noted that this complaint asserted that there had been a miscarriage of justice on account of an unbalanced summing up. With respect to the complaint that the trial Judge had advanced arguments which had not been raised by the Crown, it was submitted that the comments made by the trial Judge were available on the evidence and that there had been no objection by Senior Counsel who appeared for the Applicant at trial.

19. [145]

    The Crown noted that the Crown closing address at trial was brief and did not address two important aspects of the evidence, namely:

20. [146]

    Concerning the 13 matters relied upon by the Applicant (at [112] above), the Crown submitted that these were all proper matters for the trial Judge to point out and that they did not prevent the jury from taking into account any inconsistencies in assessing the reliability of the evidence of the complainants. It was submitted that his Honour’s comments were unexceptionable and did not give rise to a miscarriage of justice.

21. [147]

    In conclusion, the Crown submitted that the summing up, when considered as a whole, did not give rise to an unfair trial and that there was no miscarriage of justice. The summing up emphasised to the jury that the central issue was whether the jury accepted each complainant as a witness of truth and reliability in relation to each count on the indictment.

22. [148]

    The jury was made aware of the fundamental issues in the trial, particularly the reliability and honesty of the complainants, since that issue was stressed by his Honour and made clear in his Honour’s direction in accordance with R v Murray (1987) 11 NSWLR 12 (at SU47-48).

23. [149]

    The Crown submitted that the trial Judge’s summing up was not “apt to create a danger or a substantial risk that the jury might actually be persuaded of the appellant’s guilt by comments in favour of the prosecution case made with the authority of the judge”: McKell v The Queen at [42].

24. [150]

    Relying on The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36, the Crown emphasised that the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration and that, in this case, where the Applicant was represented at trial by a most experienced Senior Counsel, the absence of complaint at trial supported a conclusion that no unfairness was detected at the trial and that a miscarriage of justice has not occurred.

25. [151]

    The Crown submitted that leave under Rule 4 ought be refused in the circumstances of this case and that the appeal should be dismissed.

26. [152]

    If the Court reached a contrary view concerning the appeal, the Crown submitted that the appropriate order would be a retrial on all of the quashed convictions.

27. [153]

    It was submitted that Counts 7 and 8 are serious charges where the public interest in due prosecution and conviction of offenders, as well as the public interest in not usurping the role of the Director of Public Prosecutions in deciding to prosecute and the role of the jury in determining the guilt or innocence of an accused, are powerful factors in favour of a new trial: WX v R [2020] NSWCCA 142 at [95]. Further, the nature of any error in this case did not relate to the nature or quality of the evidence at trial and there was no ground asserting that the verdicts were unreasonable: WX v R at [100].

Determination of Ground of Appeal

1. [154]

   It is appropriate to commence with several important statements of principle before moving to consider the matters complained of in this appeal.

2. [155]

   Some general observations should be made concerning the role of a Judge in a criminal trial and the functions to be fulfilled in a summing up.

3. [156]

   A criminal trial is conducted as adversarial litigation involving an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused person beyond reasonable doubt: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138]. In Robinson v R, the Court said at [140]:

4. [157]

   Soon after, the Court said in Robinson v R at [146], [148]-[149]:

5. [158]

   In Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [36], the Court (Bathurst CJ, Simpson and Adamson JJ) summarised the duty of a trial Judge using propositions drawn from Alford v Magee (1952) 85 CLR 437 at 466; [1952] HCA 3:

6. [159]

   These principles provide an important structure for a summing up by a trial Judge to a jury in a criminal trial with the Judge having the function referred to in Robinson v R (see [156]-[157] above) with an overriding duty to act fairly to the parties at the trial.

7. [160]

   These considerations are of central importance where it is said that a trial Judge has introduced important concepts or arguments during a summing up which did not emanate from the evidence in the trial or the arguments of counsel who appeared for the Crown and the accused person.

8. [161]

   The scope for a trial Judge to express opinions on the facts when summing up to a jury has been a topic of recurring consideration by appellate courts. In R v Heron [2000] NSWCCA 312 (at [77]-[87]), Priestley JA (Foster AJA and Simpson J agreeing) considered a number of decisions which identified a degree of tension in the proposition that a trial Judge can express an opinion to a jury whilst, at the same time, stating that the facts are for the jury and not the Judge.

9. [162]

   In R v Taleb [2006] NSWCCA 119, Simpson J referred to this topic in the context of an appeal based upon a trial Judge advancing arguments to the jury which had not been advanced by counsel. Her Honour said at [68]-[71]:

10. [163]

    In determining to allow the conviction appeal in R v Taleb, Simpson J said at [84]:

11. [164]

    The existence and scope of a trial Judge’s discretion to comment on facts and submissions in a summing up to a jury in a criminal trial were considered in McKell v The Queen, where reference was made to authorities including Taleb v R and R v Pavlukoff (1953) 106 CCC 249. Bell, Keane, Gordon and Edelman JJ (“the plurality”) commenced their judgment in the following way at [1]-[5] (footnotes omitted):

12. [165]

    Later in McKell v The Queen, the plurality said at [35]:

13. [166]

    Their Honours emphasised the need to guard against comments by the trial Judge in the summing up becoming “a second address by the prosecution”. The plurality said at [43]:

14. [167]

    Their Honours said at [45]:

15. [168]

    The plurality made general observations concerning the scope for comment by a trial Judge during a summing up to a jury in a criminal trial. Their Honours said at [47]-[54]:

16. [169]

    The plurality concluded (at [55]) with the following emphasis upon the limits of a trial Judge’s capacity to comment on the facts of the case and the need for “practical fairness”:

17. [170]

    It should be noted that the plurality in McKell v The Queen (at [50]-[52]) endorsed the approach of Simpson J in Taleb v R together with statements made by the British Columbia Court of Appeal in R v Pavlukoff.

18. [171]

    The decision in McKell v The Queen has been understood to restrict or narrow the ability of trial Judges to express opinions or make comments to juries in criminal trials. The law has been tightened in this respect. The fact that McKell v The Queen has served to narrow the law in this way has been noted in several decisions of intermediate appellate courts: Pyliotis v Director of Public Prosecutions [2020] VSCA 134 at [63]; Decision Restricted [2020] NSWCCA 256 at [55]; Spurritt v R [2021] VSCA 7 at [187].

19. [172]

    As noted earlier (at [132]), the Crown referred to the decision of this Court in ABR (a pseudonym) v R. It should be noted that the applicant in that case was unrepresented and that no reference was made to McKell v The Queen in determining the ground which complained about the trial Judge’s comments to the jury, with that ground being determined (at [61]-[70]) by reference to the principles in Galea v Galea (1990) 19 NSWLR 263 at 281. In those circumstances, caution is required in applying ABR (a pseudonym) v R in determining the present appeal.

20. [173]

    The principles to be applied in determining the ground of appeal raised in the present case are those contained in McKell v The Queen.

21. [174]

    It is appropriate to refer next to the task of a trial Judge when summing up to a jury in a trial for child sexual assault offences. This is an area where statutory provisions have been enacted and where courts have been conscious of the need to fairly provide assistance to juries when considering the evidence of children.

22. [175]

    In the present case, the expert evidence concerning child witnesses in general was confined to the report of Dr Shackel which was tendered as an exhibit and read to the jury (see [38] above). Apart from that evidence, the jury observed the recordings of the two complainants giving evidence on an earlier occasion, in accordance with the provisions contained in Part 29 of Schedule 2 of the Criminal Procedure Act 1986. The Crown and Senior Counsel for the Applicant at trial addressed the jury by reference to the evidence adduced at the trial.

23. [176]

    There are certain statutory restrictions upon warnings which may be given in relation to children’s evidence.

24. [177]

    Section 165(6) Evidence Act 1995 made clear that s.165(2) did not permit a Judge to warn or inform a jury, in proceedings where a child had given evidence, that the reliability of the child’s evidence may be affected by the age of the child, with any such warning or information to be given only in accordance with s.165A(2) and (3) of that Act.

25. [178]

    Section 165A Evidence Act 1995 provides as follows:

26. [179]

    At the time of the Applicant’s trial in February 2018, s.293A Criminal Procedure Act 1986 had not come into force. That provision commenced on 1 December 2018.

27. [180]

    Section 293A Criminal Procedure Act 1986 provides as follows:

28. [181]

    It may be seen that s.293A permits a trial Judge to give directions to a jury concerning differences in the account given by a complainant at a trial for a prescribed sexual offence. However, this provision did not apply to the trial of the Applicant. Section 293A is not confined, in any event, to the evidence of child witnesses. The provision applies to all complainants in trials for prescribed sexual offences generally. It may be observed that s.293A would apply to any retrial of the Applicant if this Court allowed the appeal and ordered a retrial.

29. [182]

    It is appropriate to refer to authorities concerning the scope of a trial Judge to comment with respect to children’s evidence in summing up to a jury, all of which were decided before McKell v The Queen.

30. [183]

    In the 2012 decision in RGM v R, this Court (Fullerton J, McClellan CJ at CL and myself agreeing) referred (at [94]) to a lengthy extract from the summing up of the trial Judge in a child sexual assault trial. Fullerton J then said at [95]-[97]:

31. [184]

    Any permissible warning under s.165A can only focus on matters relative to the particular child complainant in the particular circumstances of the case and not upon the mere fact that the witness is a child or an inherent feature of children more generally: AL v R (2017) 266 A Crim R 1; [2017] NSWCCA 34 at [77]. A warning of the latter kind contravenes ss.165A and 294AA Criminal Procedure Act 1986: AL v R at [78].

32. [185]

    It is within the trial Judge’s discretion to decline to give a warning for matters evident to the jury which the jury can assess without assistance: AL v R at [81]. There is a distinction between the need for a warning about matters of which the jury have little understanding or appreciation, but where the Court would have such an understanding, and matters which the jury are able to assess without particular assistance: AL v R at [81].

33. [186]

    In RGM v R Fullerton J (at [102]) said with respect to the trial Judge’s summing up:

34. [187]

    In determining the present appeal, it is necessary to keep in mind the proper limits of a summing up in the adversarial and accusatorial process which constitutes a criminal trial. There are limits upon what a trial Judge can say to a jury in the proper exercise of summing up to the jury.

35. [188]

    It is the task of counsel for the Crown and the accused person, in the adversarial process of a criminal trial, to advance arguments to the jury in their respective closing addresses. It is not the task of a trial Judge to give a “second address” for the Crown or the accused person.

36. [189]

    If the trial Judge has in mind raising matters which were not mentioned in closing addresses, it is necessary for the Judge to raise those topics with counsel in the absence of the jury so that submissions can be made as to the appropriateness or otherwise of that proposed course. It is not sufficient for the trial Judge to say generally that he has in mind referring to some unparticularised matters in the summing up.

37. [190]

    Compliance with this approach will guard against the prospect of counsel and the jury hearing, for the first time, what the trial Judge says on particular topics when the Judge is saying it to the jury.

38. [191]

    With these principles in mind, it is appropriate to consider the impugned parts of the summing up to determine whether what was said may be characterised as permissible comment (or a direction) to the jury emerging for the first time during the summing up by the trial Judge. It will then be necessary to consider, as well, the cumulative effect of the matters in relation to which complaint is made for the Applicant.

39. [192]

    That part of the summing up in which his Honour stated to the jury that “children are not little adults” (SU10-12 at [61], [63]) above is permissible comment. Statements to a similar effect were accepted as being open to a trial Judge in CMG v R at [10]-[11]. These paragraphs in CMG v R were also referred to by this Court in RGM v R at [100]-[101].

40. [193]

    Likewise, statements to the jury concerning children’s logic (or how they think and speak) have been said to be permissible: RGM v R at [102]; ABR (a pseudonym) v R at [75]-[76].

41. [194]

    In the present case, the trial Judge referred to these aspects of children and their evidence (see SU7, SU10, SU57 and SU62). On their own, these statements do not give rise to error.

42. [195]

    As observed in RGM v R at [102] (see [186] above), an area of particular difficulty is where the trial Judge recites his or her personal experiences and views with this being said to be impermissible.

43. [196]

    In this case, the trial Judge made comments which may be so interpreted. There are problems with these aspects of the summing up.

44. [197]

    A particular difficulty arises where the Judge uses imperative language so that comments or remarks may be treated by the jury as directions. This is impermissible: RGM v R at [102]; NJB v R at [12]; McKell v The Queen.

45. [198]

    By way of example, in the present case, the trial Judge used language in the nature of a direction when saying to the jury (SU56 at [78] above):

46. [199]

    In determining the extent of permissible comment by a trial Judge, it is necessary to keep in mind the statements made in February 2019 by the High Court of Australia in McKell v The Queen which serve to confine permissible comment in the context of a jury trial.

47. [200]

    Even before McKell v The Queen, however, and certainly since the decision of this Court in RGM v R in 2012, trial Judges have needed to be especially careful in what is said to a jury in a criminal trial by reference to the evidence of children who have testified at the trial. Apart from the need to comply with statutory provisions such as s.165A Evidence Act 1995, a number of cases, including RGM v R, have identified principles which necessitate caution before a trial Judge volunteers comments to the jury on this topic, in particular where the comments to be made have not been the subject of addresses by counsel and where the trial Judge did not put counsel on notice of precisely what was intended to be said to the jury.

48. [201]

    Ground 1(a) asserts that the trial Judge erred in giving directions to the jury that the credibility of the complainants was to be assessed having regard to generalisations as to the quality of the evidence of children to retain, recall and recount sexual abuse.

49. [202]

    Some of the matters complained of under Ground 1(a) involve a form of permissible comment. However, the accumulation of these matters gives rise to difficulty with respect to the summing up.

50. [203]

    Ground 1(b) asserts that the trial Judge erred in directing the jury that the credibility of the complainants was to be assessed having regard to his Honour’s observations as to how witnesses generally react to cross-examination.

51. [204]

    The matters complained of under this subground are more problematic again. The summing up should relate to the evidence in the trial and the addresses of the parties with any additional statements, comments or directions to be made as authorised by law. The trial Judge is not entitled, in effect, to give evidence or express expert opinion on issues in the trial. An accumulation of the matters complained of under Ground 1(b) with Ground 1(a) fortifies a conclusion that irregularity occurred in the summing up in this trial.

52. [205]

    Ground 1(c) asserts that the trial Judge erred in directions to the jury that the credibility of the complainants is to be assessed having regard to arguments raised in the summing up which were not advanced by the Crown and/or were not supported by the evidence.

53. [206]

    I am satisfied that the trial Judge attributed to the Crown in the summing up, arguments which had not been raised by the Crown. It was not sufficient to inform counsel that this may happen without (at the very least) indicating, in the absence of the jury, what his Honour had in mind saying.

54. [207]

    I am satisfied that a combination of matters referred to in Ground 1(a), (b) and (c) meant that the summing up in this trial did not comply with the proper limits of a summing up as required by law as identified in cases including RGM v R and McKell v The Queen.

55. [208]

    In my view, as in RGM v R, the cumulative effect of what the trial Judge said in this case crossed the line in a number of respects so as to infringe the approach identified in RGM v R and the demanding principles stated more recently by the High Court in McKell v The Queen.

56. [209]

    There is a very real prospect that the jury at this trial would have taken a number of statements volunteered by the trial Judge as directions rather than mere comments. I am satisfied, in the circumstances of the case, that the matters complained of by the Applicant in his ground of appeal have merit. It is necessary to consider next what flows from the absence of any objection by Senior Counsel who appeared for the Applicant at trial.

The Rule 4 Issue

1. [210]

   As in RGM v R, defence counsel at the trial raised no objection to the matters volunteered by the trial Judge nor was any application made for the withdrawal of the comments nor for the discharge of the jury. No evidence has been placed before this Court to explain why counsel did not object to the impugned parts of the summing up.

2. [211]

   In these circumstances, the Applicant is obliged under Rule 4 Criminal Appeal Rules to establish that the particular ground of appeal under consideration is arguable and that a miscarriage of justice has resulted from either the trial Judge’s misdirection or a failure to direct the jury in accordance with law in the sense that a real chance (fairly open) of acquittal has been lost: R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20]-[24]; RGM v R at [19].

3. [212]

   It is difficult to see that there was any forensic advantage to the Applicant by any decision not to object to the volunteered comments made by the trial Judge in the context of this trial. The likely impact of the trial Judge’s comments was to operate adversely to the Applicant concerning the approach which the jury may take to an assessment of the credibility and reliability of the evidence of the child witnesses.

4. [213]

   In my view, the extent of the trial Judge’s commentary and its content, taken with the real risk that the jury might have been inclined to a view adverse to the Applicant because of it, warrants a grant of leave under Rule 4 for the Applicant to advance the ground of appeal. In RGM v R, the Court said at [96]:

5. [214]

   Similar considerations apply here so that the Applicant should have leave under Rule 4 to rely upon the ground of appeal.

6. [215]

   Having considered the evidence adduced at the trial and the summing up as a whole, I am satisfied that a miscarriage of justice has resulted from the trial Judge’s volunteered comments made on several occasions to the jury concerning the evidence of the child witnesses. The approach adopted by the trial Judge was not consistent with what this Court said in RGM v R and did not accord with the more recent and emphatic statements by the High Court of Australia in McKell v The Queen concerning the limits of permissible comment by a trial Judge to a jury in a criminal trial.

7. [216]

   In fairness to Senior Counsel who appeared for the Applicant at trial, it is necessary to keep in mind that the trial of the Applicant predated the decision in McKell v The Queen.

8. [217]

   I would uphold the Applicant’s ground of appeal.

Order for New Trial

1. [218]

   If the Court determined to uphold the ground of appeal and quash the convictions, it was submitted by Mr Carroll that a retrial may be ordered with respect to Donna (Counts 1 to 4), but that the Court should direct an acquittal with respect to Gail (Counts 7 and 8). It was submitted that the Crown should not have an opportunity to proceed further against the Applicant on those counts.

2. [219]

   The Crown submitted that, if the appeal was allowed and the convictions were quashed, a new trial should be ordered with respect to all counts.

3. [220]

   I am satisfied that an order should be made for a new trial on each count with respect to which the Applicant was convicted. Concerning Counts 7 and 8, serious offences are charged against the Applicant and there is a public interest in prosecutions for such matters being determined at trial, together with a public interest in not usurping the role of the Director of Public Prosecutions in deciding to prosecute and the role of the jury in determining the guilt of an accused person, with these being powerful factors in favour of an order for a new trial: WX v R at [95].

4. [221]

   In addition to these considerations, it is relevant that the errors which have been demonstrated in this trial did not relate to the nature or quality of the evidence, but rather to aspects of the summing up by the trial Judge: WX v R at [100].

Orders

1. [222]

   I propose the following orders:

2. [223]

   GARLING J: I agree with Johnson J.

3. [224]

   WRIGHT J: I agree with Johnson J.