Redding v R

WARD P: The applicant was convicted on 14 October 2022, following a jury trial before Flannery SC DCJ in the District Court of New South Wales, on a number of counts relating to historical sexual offences committed against the complainant, a childhood friend of one of the applicant’s daughters (to whom I will refer as “A”).

The indictment contained eleven counts. The applicant pleaded not guilty to all counts. The applicant was acquitted by the jury of counts 7, 8, 10 and 11 (and, by directed verdict during the course of the trial, of count 3). The applicant was convicted on the balance of the counts (i.e., counts 1, 2, 4, 6 and 9).

On 9 December 2022, the applicant was sentenced by the trial judge to an aggregate sentence of 7 years imprisonment, with a non-parole period of 4 years to commence from 21 November 2022 and expire on 20 November 2026. The overall sentence will expire on 20 November 2029.

The complainant was aged between 11 and 15 in the period covered by the indictment (which related to offences between December 2002 and June 2006). Accordingly, there is a statutory prohibition on the publication of the name of the complainant and anything that tends to identify the complainant (pursuant to s 578A of the Crimes Act 1900 (NSW) (Crimes Act)); and there is also a statutory prohibition on the publication or broadcast of the complainant’s name pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). For that reason, names of various of the witnesses who gave evidence in the trial and place names will be anonymised.

The applicant seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against his convictions on the following two grounds:

Insofar as the first ground of appeal does not involve a question of law alone, leave is required pursuant to s 5(1)(b) of the Criminal Appeal Act (see Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 at [2] (Basten JA, with whom Latham J agreed); Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] (Basten JA, with whom Latham J agreed) and at [68]-[71] (Rothman J)). As to the second ground of appeal (confusingly enumerated in the grounds of appeal as ground 3), as there was no complaint at the trial in respect of the direction given to the jury of which complaint is now made, leave is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). Such leave would be granted if failure to give the direction amounted to an error of law; or, alternatively, if failure to give the direction amounted to a miscarriage of justice (see Greenhalgh v R [2017] NSWCCA 94 at [7] per Basten JA; citing Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72] per McHugh J).

Given the unreasonable verdict ground of appeal, it is necessary to consider the evidence at trial in some detail. The following sets out the background to, and circumstances of, the offending conduct with which the applicant was charged and the evidence leading to the conviction of the applicant on some but not all of the charges.

The complainant is the eldest of three children, with a sister two years younger than her (to whom I will refer as “F”) and a brother seven years younger than her (see 5/10/22; T 28.20ff). The complainant’s evidence (corroborated by the complainant’s mother) was that her father was a violent alcoholic who abused his children and their mother physically, mentally, and emotionally (5/10/22; T 28.46-29.14; 10/10/22; T 172.35-45, 181.10-31). Similarly, “F” gave evidence that she was exposed to domestic violence and that the relationship between the complainant and their father was “not a very good one” (10/10/22; T 197.50-198.2). Corroborative evidence as to the complainant’s difficult home environment was also given by two of her school friends, “D” (10/10/22; T 192.28-30) and “E” (10/10/22; T 203.24-26).

The applicant’s daughter (“A”), another of the complainant’s school friends, was more qualified in her acceptance of the proposition that the complainant had a difficult home life. In her evidence-in-chief “A” said that she “came to know” that the complainant’s home life was “rough” (11/10/22; T 243.28-30). In cross-examination, “A” said that between 2001 and 2006 she was unaware of the circumstances of the complainant’s tough homelife; that she had met the complainant’s father but was not close to him; that she was aware that he was a drinker and aggressive at times, but that she had never seen him verbally abuse the complainant (11/10/22; T 250.37-251.9). Later in cross-examination, “A” said that her parents never told her that the complainant had a difficult family life “because we all knew” once she started being friends with the complainant (11/10/22; T 267.42-47).

The applicant in his Electronic Record of Interview with Suspected Person (ERISP) said that the complainant’s home life was “pretty rough” (Q/A 52) and accepted that the complainant’s father was “pretty abusive” (Q/A 134).

The applicant (who was aged between 49 and 55 at the time of the alleged offending and was 70 at the time of the trial) and his wife had five children but at the time of the alleged offending only the youngest (“A”) was still living at home with them.

From 2001 (see transmission application dated 5 March 2001), the applicant and his wife were the registered proprietors of a house in the town (to which I will refer as the coastal location) where the complainant and her family lived. The house was previously owned by a relative and was left to the applicant and his wife under her will.

The complainant met the applicant’s daughter (“A”) at a local primary school in the coastal location and became friends with her.

The complainant’s evidence was that she could not recall how old she was when she first met the applicant and his wife; she thought that the applicant’s daughter came to the primary school in Year 1 or Year 2 (5/10/22; T 31.11-17). “E”, who was also at the same school, was confident that she met “A” in Year 3 but, in any event, she said it was not the same time that she met the complainant (which was in Year 2) (10/10/22; T 201.27-32).

“A”’s evidence was that she met the complainant in 2001 when she (“A”) commenced school (at the local primary school at the coastal location) in Year 5 (i.e., 2001) (11/10/22; T 243.15-22); (11/10/22; T 254.50ff). “A” said that she and her mother moved to the coastal location in 2001 when she was in Year 5 and that the applicant moved there in 2003 (11/10/22; T 242.37-38). Her evidence was that between 2001 and 2003 her father was travelling once a month from their previous home (in country NSW) to the coast, staying on the weekends for probably two or three days and then travelling back home (11/10/22; T 242.47-50).

In cross-examination, “A”’s evidence was that between 1997 and 2001 she lived with one of her sisters (“J”) at a different location because her parents had to look after her aunt who was dying (11/10/22; T 256.39-257.2); that between 1997 and 2001 she also lived with her parents at the coastal location; and that she did not start (school) there at the coastal location until 2001 (11/10/22; T 257.22-30). Later in cross-examination, “A” said that her parents moved from their previous country home directly to the coastal location; and she thought this was around 1997 or 1998 but “A” could not recall when her parents sold their previous country home (11/10/22; T 257.32-37). “A” said that she accompanied her parents for a couple of weeks but then moved in with her sister (“J”).

“A” said that she did not live at the coastal location while her great-aunt was living there and her parents were looking after her, but that she did go down there for holidays (11/10/22; T 281.49-282.1). “A” confirmed that she was not there until 2001 (11/10/22; T 282.4). “A” said that her great-aunt did not die while living in the home in 2000, but died in hospital (11/10/22; T 282.14). Her great-aunt had not lived anywhere else besides the home in the years before she died (11/10/22; T 282.16-18). The transmission application places the date of death of the aunt or great-aunt as 30 November 2000. In cross-examination, “A” confirmed that the woman named on the transmission application in Ex 5 was her great-aunt from whom her parents inherited the house; and that her great-aunt died in November 2000, when she was in Year 4 (11/10/22; T 263.27-31). “A” said that her parents lived in the house for over 12 months before her great-aunt died because they were looking after her; and “A” was not living there at that time (11/10/22; T 263.34-264.5).

Therefore, on “A”’s evidence, the applicant and his wife must have been living (and caring for the great-aunt) at the coastal location at least in 2000 (and probably from the time that “A” moved in with her sister “J”), but nothing turns on this because the complainant agreed in cross-examination that she did not go to the applicant’s house before she met “A”. On any version of events “A” was attending the local primary school in 2001 in Year 5 (and the offending conduct was not alleged to commence until 2002).

The complainant’s evidence (corroborated by her mother) was that she would often visit the applicant’s family home. The complainant said that she started staying overnight at the house between Years 5 and 6 (when she “would have been between the ages of 9 and 11”) (5/10/22; T 31.47-49); and that she would stay most weekends and would also be there a lot “throughout the week on weekdays” (5/10/22; T 32.1-2). The complainant said that her mother gave her permission to stay at “A”’s place on the weekends (5/10/22; T 32.11-13). In cross-examination, the complainant agreed that no-one was forcing her to go to the applicant’s house; that she had other friends besides the applicant whom she visited from time to time; and that she was not at the applicant’s house every day (6/10/22; T 93.37-39).

The complainant’s mother recalled that the complainant would stay at the applicant’s household but was not able to say how regularly the complainant would go there (she thought a few times in the complainant’s last year of primary school in 2002 but could not remember how many) (10/10/22; T 173.25-27).

The complainant’s sister (“F”) recalled that the complainant was friends with “A” and said that her mother had become friends with the applicant and his wife (10/10/22; T 198.19-20). “F” could recall the complainant staying the night at the applicant’s house “a lot” (and said that the complainant was always there or somewhere else, which in context would appear to be a reference to other friends’ houses) (10/10/22; T 198.40-45).

“A” said during examination-in-chief that she and the complainant were friends but “weren’t that close” (11/10/22; T 243.26); “A” said that between 2001 and 2006, she saw the complainant every day for school but that she did not really spend much other time with her (11/10/22; T 243.40); and that once or twice a week after school they would “hang out” at the applicant’s house (11/10/22; T 243.43-50). In cross-examination “A” agreed that between 2003 and 2006 her closest friend was the complainant and “A” said that between 2001 and 2006 it was mostly the complainant who came and visited her (11/10/22; T 283.31-38, T 266.31-33). Elsewhere in cross-examination, “A” said that between 2003 and 2006 she would see the complainant both before and after school; they would meet at a bus stop and go to school on the bus (11/10/22; T 266.44-267.1).

“A” said that she never fell asleep in the lounge room between 2003 and 2006 (11/10/22; T 286.33-34). “A” said that the complainant may have also come to her house after school “[m]aybe once or twice a week” (11/10/22; T 286.43) but did not stay the night (11/10/22; T 286.36-39). “A” agreed that between 2003 and 2006 the complainant was at her house three times a week (11/10/22; T 286.45-46).

“A” also said that between 2001 and 2006 she had no friends other than the complainant stay over (11/10/22; T 266.31-33) (which is contrary to “E”’s evidence that she slept over at “A”’s family house on at least one occasion) (10/10/22; T 203.4). “A” said that “E” never slept over because “E”’s grandmother was “really strict” (11/10/22; T 266.39); and that “E” never slept in her (“A”’s) bedroom or the lounge room (11/10/22; T 266.41-42). In cross-examination “A” said that her friend “E” “never once” stayed over at her house (11/10/22; T 276.42-44).

“E”, whose grandmother cared for her and who knew the applicant’s wife, said that she (“E”) would often go around to the applicant’s house (10/10/22; T 201.50). Relevantly, “E” gave evidence that during Years 7 to 9 (2003 to 2006), she would visit the applicant’s household and she recalled that the lounge room had a futon pull-out lounge, one armchair and a TV (10/10/22; T 202). “E” said that she slept on that futon and in “A”’s room a couple of times (10/10/22; T 203.4). In cross-examination, “E” maintained that she had been allowed to have a sleep-over at “A”’s house (saying that her grandmother and “A”’s mother were friends) (10/10/22; T 207.34-35).

“A” could not recall the complainant’s mother staying over, being in the lounge room or in the house at any time between 2003 and 2006 (11/10/22; T 274.13-24) (cf the evidence of the complainant’s mother).

The complainant’s evidence was that, from 2002 to 2006, it appeared to her that the applicant had a job with City Rail and that there were periods of time he was away at work (6/10/22; T 84.36-48). Nevertheless, the complainant said that she saw the applicant most weekends (6/10/22; T 84.44). The complainant said that the applicant’s wife volunteered at different times at the local St Vincent’s branch (6/10/22; T 84.50); and that it was mostly during the afternoons or during the day when the complainant and “A” were at school that the applicant’s wife did volunteer work (6/10/22; T 85.1-5).

The complainant’s mother gave evidence that she knew that the applicant worked on the train lines (and that his wife volunteered at the St Vinnie’s shop) (10/10/22; T 173.45-48). Similarly, the complainant’s school friend “E” recalled that the applicant worked at the railway and that his wife was a “stay-at-home mum” most of the time; and she was always home and volunteered at the local St Vincent’s or a “Salvos” (10/10/22; T 211.20-30). “E” agreed that the applicant’s wife was always at the applicant’s house when “E” was there (10/10/22; T 211.33-46).

“A”’s evidence was that from 2000 to 2003 her father was working elsewhere than Hornsby and said that he would return once a month between 2000 and 2003. “A” said that, during that time, he was living at the family’s then country home by himself; and that when he stayed with them at the coastal location once a month he would stay on the weekend.

In cross-examination “A” agreed that, from 2003, her father was working in Hornsby and that he would finish work around 4pm and be home by 5.30pm (11/10/22; T 251.11-15). “A” said that when her father returned from work at 5.30pm in 2003 and onwards, there were no occasions where he saw the complainant. “A” agreed that after 2003 there were occasions when her father would do a night shift and return home between 4 and 5am then get up at midday. “A” said that between 2003 and 2006, when he was working 13 days a fortnight, her father did as many as 11 or 12 nightshifts. “A” said that it was very rare for her father to pick her up from school; and that the day that he did not work would vary. “A” said that her father continued to commute backwards and forwards for his work, working 13 days a fortnight, and in between he was also doing nightshifts as well; and that when he was not working, he slept with her mother in their bedroom.

“A” said that her father never took time off from work (11/10/22; T 251.50-252.2-2); that for roughly two years (2001, 2002) her mother did one or two days’ volunteer work at the Salvation Army from 8.30am to 12pm; and that from 2003 to 2006 her mother was not doing any volunteer work (11/10/22; T 252.27-30). As to her mother’s volunteer work, “A” said that it was at St Vincent de Paul, “it wasn’t called the Salvation Army” (seemingly there contradicting her earlier response), and it was only during school hours; and that her mother did those four hour shifts once or twice a week (11/10/22; T 259.24-41).

“A” accepted that on her evidence between 2003 and 2006 there were approximately 36 occasions where the applicant stayed with them at the coastal location; but her evidence was that 90 per cent of the time he was living somewhere else (11/10/22; T 286.15-23).

The complainant could not recall the applicant working away from home in a country town or working away for long periods of time (cf the applicant’s statements in his ERISP, corroborated by “A”) (6/10/22; T 94.38). The complainant agreed that most of the time the applicant’s wife was present when the applicant was home (6/10/22; T 94.46-49).

The complainant said that in Year 6 (2002) her relationship with the applicant “wasn’t a bad relationship…he was kind and he took me in as being – like, I was there a lot. I got to know them [the applicant and his wife] quite well” (5/10/22; T 32.20); and the complainant said that her mother became quite good friends with the applicant and his wife (5/10/22; T 32.23-24). During Year 6, the complainant’s family moved to a house less than a five minute walk away from the applicant’s place in adjacent streets (5/10/22; T 32.45).

“A” remembered the complainant’s mother speaking to her mother but did not regard the complainant’s mother as being friends with her parents (11/10/22; T 267.27). “A” said that the mothers spoke because she and the complainant were friends (11/10/22; T 267.30).

The complainant said that in her final year of primary school, in 2002, there was physical contact by the applicant that made her feel uncomfortable; that the applicant would often put his hand on her shoulder or around her arm or waist and that in some instances the applicant would kiss her cheek (5/10/22; T 33.17-18).

The complainant also gave evidence that, prior to her Year 6 end of school formal, she and her mother went to the applicant’s house to get ready; and that the applicant asked to see what was underneath her dress (5/10/22; T 33.26-34.5 34.10-23; 6/10/22; T 102.24-48). The complainant could not recall if anyone else was around at that time or where at the applicant’s property this was said (5/10/22; T 34.19-23). The complainant identified herself in a photograph taken for her school formal but was not certain who took the photograph (Ex B) (5/10/22; T 33.41-34.1). The complainant’s mother gave evidence at the trial that she had taken the photograph (10/10/22; T 174.5-6).

In cross-examination, the complainant could not recall what part of the house she was in; she said that she was indoors and that “[w]e were in there while my mum was doing [“A”]’s hair” in a different room (6/11/22; T 102.31). The complainant could not recall which room that was and could not recall if another person was in the same room as her and the applicant (6/11/22; T 102.48). The complainant agreed that it was not a large house but said that the sound did not travel all the time; that it did when someone was being loud but that the applicant spoke quietly when he asked to see what was underneath her dress (6/11/22; T 103.11-16, 104.25).

“A” recognised the complainant in the Ex B photograph but could not recall the circumstances in which the photograph was taken (11/10/22; T 246.19-38). “A” recalled getting ready for her Year 6 formal but could not remember anything else; and she did not think the complainant and her mother were there preparing for the formal.

The evidence as to the conduct the subject of the respective counts (and, to put it in context, uncharged conduct at around the time of the various offences) was as follows.

Counts 1 and 2, on which there were guilty verdicts, related to acts committed by the applicant during the complainant’s summer holidays, between the end of Year 6 (2002) and the start of Year 7 (2003). The complainant said that she went with “A” and another friend to collect some supplies for school; and that she went back to “A”’s house (5/10/22; T 34.31). The complainant recalled that later that night the applicant asked her if she was going to shower that night; and that she asked him “why would I need, like, why was he asking” (5/10/22; T 34.45-35.2). The complainant said that, after she had a shower, she was sitting with “A”, the applicant and his wife in the lounge room on a futon watching TV; that she was sitting next to the applicant and “A”; and there was a blanket over them (5/10/22; T 35.5ff, 38.33). The complainant said that she could feel the applicant’s hand moving gradually towards her and touching her leg, which did not occur for long (5/10/22; T 38.35-39).

The applicant’s wife went to bed first and then “A” was asked to go to bed (5/10/22; T 35.27-31). The complainant’s evidence was that she would sleep on the futon when she stayed over at “A”’s place; and that on that night she was wearing long pyjamas when she went to sleep on the futon (5/10/22; T 35.34; 6/10/22; T 106.41). The complainant said that she woke up; it was dark and the TV was switched off; and the applicant was on top of her (5/10/22; T 38.45). The complainant said that the applicant did not have any pants on, but she could not see his penis (“it was dark”) (5/10/22; T 38.48, 39.25); that the applicant had moved her underwear to one side; and that she no longer had pyjama pants on (5/10/22; T 39.1-14).

The complainant said that the applicant “put his penis into my – I can’t even say it, into my vagina” (count 2) (5/10/22; T 39.18-19). The complainant could not recall any conversation between herself and the applicant before the penile-vaginal sex occurred and could not recall him holding the back of her head (5/10/22; T 39.32-34, 39.42-44). The complainant said that she was laying on the futon on her back and that the applicant was positioned over the top of her, between her legs (5/10/22; T 40.15-22). The complainant could not recall how long the penile-vaginal intercourse lasted (5/10/22; T 40.3-4). The complainant said that she told the applicant that it was hurting and said that the applicant said, “that it would be okay and that it wouldn’t hurt for long” (5/10/22; T 40.10). The complainant said that one of her hands was being held and the applicant had one arm on her chest (5/10/22; T 39.22-23, 40.25).

The complainant remembered being in a lot of pain afterwards and wanting to go to the bathroom (5/10/22; T 40.29-30). The complainant said that the applicant “patted [her] on the head and said that it was going to be okay, like he laid next to [her] for a moment and [she] was crying and [she] was trying to muffle [her] cry, so [she] didn’t wake anybody up and he - he then went out and went to the bathroom. He asked [her] to wait a second while he went” (5/10/22; T 40.33-36).

The complainant could not remember how long the applicant was in the bathroom but it was not that long because she went afterwards (5/10/22; T 40.38-40). The complainant remained on the futon until the applicant left the bathroom (5/10/22; T 40.42-43). She could not recall where he went (5/10/22; T 41.1-4). When the complainant went to the bathroom she was in pain and noticed that there was blood in her underwear (5/10/22; T 40.49-50). The complainant said that she could not have a shower because it would wake people up, so she went to the futon (5/10/22; T 41.10-12); that “[t]here was a cut or graze or something … I thought I had my period” (5/10/22; T 41.18-22); and that she also had a bruise on her arm or her wrist (5/10/22; T 41.25).

After the complainant’s memory was refreshed, the complainant gave evidence that, in the period between waking up and penile-vaginal intercourse, she remembered the applicant touching his penis, and said that the applicant whispered “in my ear and asked me if I would kiss his penis”; and that she sat up and did that (not for long) (count 1) (5/10/22; T 44.24-48).

The complainant said that, after going to the bathroom, she was scared and said, “I remember being scared and panicked and I went back to the futon”, where she remained for the night (5/10/22; T 45.2-6).

Whether there was in fact a futon and whether the applicant’s daughter’s bedroom had space for a mattress on the floor were matters in dispute at the trial (as to which, see further below).

The complainant was cross-examined as to the fact that there was no reference to the incident the subject of counts 1 and 2 in the first statement she made to the police in December 2020 (see below); nor was there any reference to the applicant whispering in her ear and asking her to kiss his penis (see 6/10/22; T 110.1-10).

“A” said that between 2003 and 2006 the complainant probably had a shower at her place on the weekend, but not all the time; and that on the nights the complainant stayed she would wear pyjamas to bed.

“A” confirmed in cross-examination that from 2003 her father’s routine when he would return from work at Hornsby at 5.30pm was that “[h]e’d shower, he’d have dinner [in the kitchen], he’d go to bed” (11/10/22; T 285.10-16). “A” said that on occasion the applicant would watch the news and cricket but said he would not watch anything else (11/10/22; T 285.18-25).

The complainant gave evidence that in 2003, when the complainant was in Year 7, there was an occasion when she was at the applicant’s house and reached up for a glass of water (5/10/22; T 45.39-44). The complainant said that the applicant grabbed a glass and pushed himself up against her while she was still facing the cupboard, with his groin area and penis, just above her hips; and that she turned around and he held her hips and pulled himself closer to her (5/10/22; T 45.50-46.17). This was not the subject of a charge.

“A” accepted that the kitchen had cupboards in which you had to reach to get glasses (5/10/22; T 258.33-38).

Count 3 (on which the jury was directed to return a not guilty verdict) related to another occasion in 2003, when the complainant was in Year 7. The complainant’s evidence was that she slept over at the applicant’s house most weekends during 2003 (5/10/22; T 31.49-42.2).

The complainant gave evidence that, on one occasion, she fell asleep on the futon with the TV on; that she woke up and the TV was switched off; and that everyone had gone to bed (5/10/22; T 47.13). The complainant thought that the applicant had turned the TV off after she fell asleep (5/10/22; T 47.15-19). The complainant said that when she went to sleep, depending on the weather, she would wear either short or long pyjamas (5/10/22; T 47.25-26). On this occasion the complainant remembered feeling quite scared and in pain (5/10/22; T 47.33).

The complainant said that when she went to bed that night on the futon, she did not have a sore vagina but once she woke up her vagina was sore (5/10/22; T 47.49-48.2). The complainant could not remember why that part of her was hurting (5/10/22; T 47.47). The complainant first recalled having a sore vagina when she woke up; and said that the applicant was over the top of her (5/10/22; T 48.1-5).

The complainant remembered wetting her pants because she was scared (5/10/22; T 48.6-7). The complainant went to the bathroom and, when she came back out, there was a towel on the futon (5/10/22; T 48.23). The complainant did not know who had put it there or where it had come from (5/10/22; T 48.24). The complainant could not recall what physical contact she had with the applicant on this occasion; she recalled her vagina “hurting for quite some time. I can’t recall how long” (5/10/22; T 48.26-35); and that she was wearing pyjamas and underwear on this occasion and was still wearing those items when she went to the bathroom (5/10/22; T 48.28-44).

As adverted to above, the trial judge directed the jury on 11 October 2022 that there be a not guilty verdict on this count.

Count 4 (on which the jury returned a verdict of guilty) related to another occasion in 2003, when the complainant, the applicant and “A” had been watching movies in the lounge room of the applicant’s house. The complainant’s evidence was that they were lying on the futon and “A” went to get a drink (5/10/22; T 49.20; confirmed in cross-examination 6/10/22; T 123.21-22). The complainant said that when “A” left the room, the applicant looked at the complainant and rolled on top of her (5/10/22; T 49.21). The complainant said that it was hurting her and she could not breathe, and that she communicated that to the applicant (5/10/22; T 49.26-31).

The complainant said that the applicant moved his lower body (just below his stomach) between her vagina and stomach up and down; that it did not last long; and that when the applicant heard his daughter coming back the applicant rolled off the complainant (5/10/22; T 49.36-50.9). The complainant’s evidence was that when “A” returned the applicant left the room and both the complainant and “A” continued watching TV (5/10/22; T 50.13-19).

Cross-examined as to why someone in the kitchen would not have heard her telling the applicant that she could not breathe, the complainant said that she said it quietly and that the applicant was on top of her (6/10/22; T 124.10-13); asked why she said it quietly, the complainant said that it was “[b]ecause I protected him all the time. I didn’t want-” (6/10/22; T 124.17).

“A” said that there was a wall between the lounge room and the dining room and other internal walls. As far as she was aware, she thought they were double-brick, as was the house (11/10/22; T 281.43-47).

“A” could not recall watching movies in the lounge room with the complainant or with her father. “A” said that from 2001 to 2006 she did not watch TV with the complainant; that the TV was never on because they “were out and about doing things”; and that, on occasion, she saw her parents watching TV at night but the complainant did not come into that room while they were watching TV (11/10/22; T 258.40-259.18). “A” said that between 2003 and 2006 when she was in the lounge room she was not watching TV; she would be reading a book or playing board games (11/10/22; T 276.1-7).

Count 5 (another guilty verdict) related to an incident in 2004, when the complainant was in Year 8. The complainant said that she was in the applicant’s house; that “A” was in the lounge room; that she (the complainant) came out of the bathroom wearing her school uniform, which included a skirt; and that the applicant stopped her against a wall with his hand next to her (5/10/22; T 51.5-10). The complainant said that the applicant then placed his hand under her skirt and briefly inserted a finger into her vagina (5/10/22; T 51.10). The complainant said that she tried to move away whilst he was doing that; and that she used the wall to move herself away from him (5/10/22; T 51.23). After the incident, the complainant returned to the lounge room (5/10/22; T 51.25-29). On the complainant’s account this incident occurred at a time when the applicant’s wife was working at the Salvos (6/10/22; T 124.46-48).

In cross-examination, the complainant disagreed with the suggestion that the applicant’s wife only worked at the charity store when the applicant was home; and disagreed with the suggestion that any time the applicant was home, his wife was also there (6/10/22; T 124.50-125.7). The complainant said that there was no door between the lounge room and the hall area but that it was not possible to see the area outside the bathroom from the lounge room unless one was sitting in the corner on another chair (6/10/22; T 125.38-126.17). The complainant agreed that, if she had said something, someone in the lounge room may have heard but the complainant could not recall saying anything (6/10/22; T 126.35-43). Asked to look at Ex 3 (a floor plan of the applicant’s house), the complainant identified the area just outside the toilet (6/10/22; T 126.6-7) as the area where the incident occurred. The complainant denied that this area would have been visible from the lounge room because she said that the futon was positioned “up against the back wall” of the lounge room (6/10/22; T 128.35-36).

The second uncharged act occurred after the complainant went shopping with the applicant, his wife and “A” at a shopping centre, and she and “A” bought matching shoes (5/10/22; T 51.46). The complainant could not recall what school year she was in. The complainant said that they went back to the applicant’s house and that, when she was sitting next to “A” at the computer talking to friends on MSN (an instant-messaging platform), the applicant came up behind them and put his hand down the back of her (the complainant’s) pants (5/10/22; T 52.35-37). The complainant said that she jumped out of the chair and looked at the applicant; and that “A” asked what happened and she said “[n]othing” (5/10/22; T 52.40-48).

“A” could not remember any occasion when she went shopping with her parents and the complainant or her parents buying matching shoes for herself and the complainant (11/10/22; T 251.25-26) (cf the applicant’s acceptance in his ERISP Q/A 81, 261 that his wife “bought her a pair of somethin’” as far as he knew).

“A” said that her family had a desktop computer in the house between 2001 and 2006 (11/10/22; T 246.42-44); it was in the small dining room just off from the kitchen; and she could not recall using that computer with the complainant or with the complainant in the room (11/10/22; T 246.46-247.10).

In cross-examination, “A” disagreed with the suggestion that she and the complainant used the computer in the dining room at her house (11/10/22; T 284.27-30). “A” said that she used the computer between 2003 and 2006 to communicate on occasions with friends on MSN, but there was no occasion when the complainant joined her whilst “A” was talking to friends (11/10/22; T 284.35-40). “A” did not accept that the incident described above (at [66]) had occurred (11/10/22; T 284.47-50).

The third uncharged act occurred outside the back door. “A” had gone inside, and the applicant came over and licked the complainant’s ear and said that she could not tell anybody or they or he would get into trouble (5/10/22; T 53.39-42). In cross-examination, the complainant agreed that the applicant’s wife was at the house (6/10/22; T 134.30-31). The complainant agreed that someone standing in the kitchen would be able to see into the backyard but said that they were on the back porch and there was no window onto the porch (6/10/22; T 132.44-50).

Count 6 (another guilty verdict) related to an incident when the complainant was in Year 9 in 2005. The complainant said that she was at the applicant’s house when he asked for help in the garage; and that, in the garage, the applicant pulled her towards him while standing against a wall and kissed her (open-mouthed) on the mouth, then put her hand onto his penis on the outside of his shorts and moved her hand up and down (5/10/22; T 54.25-21). The complainant could not recall how long it lasted. The complainant said that the applicant asked her not to tell anybody (5/10/22; T 54.48). The complainant said that as soon as it stopped, she left the garage and went back inside (5/10/22; T 55.31). In cross-examination, the complainant could not remember what she was doing immediately before the applicant asked her to go out to the garage (6/10/22; T 134.36-38).

Counts 7 and 8 (not guilty verdicts on these counts) related to an incident that the complainant said had occurred in a house in the central west of New South Wales (to which I will refer as CW) when the complainant was 14 years old (in 2005). The complainant said that this was the house of one of the older siblings of “A” (to whom I will refer as “B”). The complainant said that she arrived there by car with the applicant, his wife and “A”. The complainant did not know how long she stayed, but thought it was a minimum of one night and two days. The complainant remembered meeting “B”’s husband (“C”) and children (5/10/22; T 56.5-39).

The complainant described the house as a big piece of land but could not be certain how big, saying that she felt she could remember because they were able to ride “like, a motorbike” around (5/10/22; T 56.45-50). The complainant said “from memory” she was “quite certain [“B”] had a son maybe and her son was riding” also (5/10/22; T 57.14-15).

The complainant remembered riding a (mini) motorcycle around there during the day and hitting some chicken wire that was a few metres from the house. The complainant remembered being assisted by the applicant and “B”’s husband. The complainant said that, after cleaning her leg inside the house, she left the house and the applicant asked her whether she wanted to have sex. The complainant said that she said “[n]o”, and she looked around to see if anyone was listening (5/10/22; T 58.49-59.4). In cross-examination, the complainant did not know to whom the mini motorcycle on which she had injured herself belonged but she “guessed” it was one of the sister “B”’s children.

In her evidence of the sexual incidents that evening, the complainant described an outhouse or small structure at the property (5/10/22; T 59.50-60.5).

The complainant said that that night, when everyone was going inside to sleep, she got a drink and went outside and had a cigarette (5/10/22; T 59.17). The complainant said she had been sleeping in the lounge room with “A” (5/10/22; T 59.30-35); and she remembered there was an outside structure, possibly an outside toilet. The complainant said that, while she was outside having a cigarette, the applicant came outside and asked whether she wanted to have sex (5/10/22; T 60.2-23). The complainant said that she said “[n]o” at first and that the applicant then laid down on the ground between a car and the outhouse and asked her to come over (5/10/22; T 60.33-41). The complainant said that the applicant pulled his pants down and asked her to touch him; and that she then touched his penis with a hand (count 7) (5/10/22; T 61.3-22).

The complainant said that, after that, she removed her underwear and positioned herself on the applicant’s penis, after he asked her to sit on him (5/10/22; T 61.49-62.14). The complainant said that she was facing the applicant while having penile-vaginal sex (count 8); and that the applicant said something during the act of penile-vaginal intercourse, but during the course of giving evidence, she was unable to say what was said (5/10/22; T 62.25-38). After the applicant went back inside the house, the complainant said she remained outside for a period of time before going inside the house (5/10/22; T 62.47-63.1).

In cross-examination, the complainant agreed that she had said she went to stay at “B”’s house with “B”’s husband (6/10/22, T 135.10-21). The complainant did not recall much of what the house looked like (6/10/22, T 135.24). The complainant did not remember “B”’s address (6/10/22, T 136.43). When it was put to her that the applicant did not sexually assault her at any point but certainly never in CW, the complainant disagreed and maintained that the applicant sexually assaulted her that evening (6/10/22, T 136.49). The complainant confirmed that she believed the incident occurred in “B”’s home (7/10/22, T 142.7-18; and see T 142.38, T 143).

The complainant did not know the exact timeframe between the motorcycle incident and the allegations in counts 7 and 8, just that the motorcycle incident was in the day and the allegations were at night (6/10/22; 136.18-31).

In his ERISP, the applicant said that when “A” was in primary school, one child lived in a different town in the central west (CW2) and one in CW (Q/A 184).

“A” said that her older sister “H” had lived in CW since around 2002 (11/10/22, T 252.40-44; 253); that “H” had a husband and three children, who at the time of trial were aged between 13-24 (11/10/22, T 271.42-49); and “A” gave an address in CW, where her sister “H” lived until at least 2006 (11/10/22, T 253.44-45). “A” said that she visited them between 2003 and 2006 on occasion, for Christmas, with her parents (11/10/22, T 272.1-10).

“A” said that between 2001 and 2006, “B” lived at CW2 (11/10/22, T 248.7-32). “A” denied ever going on a trip with the complainant anywhere, or to “B”’s home with the complainant (11/10/22, T 248.38-44). “A” said that she never went on an overnight trip with her parents and the complainant (11/10/22; T 283.40-44).

In re-examination, “A” confirmed that her sister [“H”] lived in CW from 2001 to 2006. “A” said that “H” was living in a house based in town as opposed to a house with a bigger block of land; that “H”’s block of land was “probably one and a half, maybe around three times” bigger than the house that she had lived in at the coastal location (11/10/22; T 287.10-40). “A” did not recall ever visiting “H”’s house with the complainant or riding motorcycles at “H”’s house in CW with the complainant (11/10/22; T 287.41-45).

“B” gave evidence that she moved to CW2 in 2000 (11/10/22, T 289.35). “B” and her husband, “C”, had four children aged between 19 and 29 at the time of the trial (11/10/22, T 289.47; 290). “B” said she had met the complainant once, in the coastal location, and to her knowledge the complainant had never been to her home in CW2 and “B” had never seen her in CW (11/10/22; T 290.20-36). “B”’s evidence was that “B” and her family had never owned or ridden mini motorcycles.

In cross-examination, “B” said “H”’s place at CW was a normal house block with a fibro house, no separate garage, and no outhouse (11/10/22; T 294.35-45).

“A”’s grandparents lived at a different address in CW. “A”’s evidence was that she had visited there between 2000 and 2006 (11/10/22; T 253.25-38). They purchased the house in 2001, and the applicant would visit (11/10/22; T 297.19).

“C” said that he had never lived at CW, and he and his wife had not lived there together (11/10/22; T 301.9-14). “C” had met the complainant in 2005 at the applicant’s house in the coastal location (11/10/22; T 301.23-25). “C” could not recall ever seeing her away from there. “C” said that his family had never owned mini motorcycles; that his children may have ridden motorcycles of friends in town whose families on farms might have motorcycles; but he could not recall his children riding motorcycles in his presence (11/10/22; T 301.36-41). In cross-examination “C” said he had probably seen the complainant in CW between 2003 and 2006 but could not say how often (11/10/22, T 302.27-50). CW2 was half an hour away (11/10/22, T 303.8). “C” did not recall staying overnight in CW (11/10/22, T 303.31-35). “C” could not recall ever helping a young girl around 13 years old, who came off a bike. “C” said that he would remember doing something like that if he was there, but he did not recall doing that (11/10/22; T 303.43-47).

Detective Senior Constable (DSC) Jessica Wilkinson, the officer in charge of the investigation from 2020, gave evidence of not having found any records to contradict the suggestion that “B” did not live in CW (10/10/22; T 228.1-14).

Count 9 relates to an incident when the complainant was 15 years old and in Year 10 (in 2006). The complainant gave evidence that she rang the applicant’s home phone and the applicant answered (5/10/22; T 63.35-37); that she asked if “A” was there; that the applicant said that “A” and her mother were out; and that she asked for “A” to call her when she got home (5/10/22; T 63.40-46). The complainant said that the applicant then said she could come to the house and wait for “A”; and that she went to the house (5/10/22; T 63.49-64.2). The complainant said that the front door was locked; and the applicant said “come around the back”; that she went to the rear of the property and sat with the dog; and that the applicant then came and said she could wait inside (5/10/22; T 64.5-26). The complainant said that the applicant was wearing shorts and a singlet (5/10/22; T 64.32).

The complainant said that she went inside to the lounge room and that when she was in that room a button on her jeans popped and she tried to tie her jeans with her belt (5/10/22; T 64.41-44). The complainant said that the applicant then used his hand to stop her tying her jeans and asked her to go into the bedroom with him (5/10/22; T 65.3-4). The complainant said that she said “[n]o” because “A” and the applicant’s wife would be back soon but that the applicant said they would be a while and she could not say no (5/10/22; T 65.10-14). The complainant said that both then entered the bedroom; that she sat on the bed; and that the applicant asked her to put on a condom which he had and she said “[n]o” (5/10/22; T 65.20-24). The complainant said that the applicant then put on the condom while facing the wall and that when he turned around his penis was sticking out of his shorts with a condom on it; and he asked her to lay on the bed, which she did (5/10/22; T 65.25-40).

The complainant said that the applicant then removed her jeans and underwear and positioned himself on top of her; that he then asked her to touch herself and she then touched her vagina; and that he then had penile-vaginal intercourse with her (5/10/22; T 65.43-66.20). The complainant said that, while doing so, the condom came off and the applicant retrieved it and put it back on his penis (5/10/22; T 66.25-38). The complainant remembered that his face was red and he was holding her arms and saying “dirty things” (5/10/22; T 65.43-46). The complainant said that the applicant ejaculated into the condom and that he then took it off and some semen got on her leg (5/10/22; T 67.3-4). The complainant said that the applicant went to the bedside table and there were some condoms in the drawer; and that the applicant said he would leave those for next time (5/10/22; T 67.13-14). The complainant said that she then got dressed and went to the bathroom; that she then wiped her leg and washed her face; and left (5/10/22; T 67.23-24). The complainant could not recall details of what happened after that (5/10/22; T 67.31-32).

In cross-examination, the complainant said that this happened when she was around 15 years old and that this was before she made the complaint to the police in 2006 (see below).

“A” said that in the period between 2003 and 2006, the family had a dog which had to be put down at some point. “A” said that they did not get another dog and never owned more than one dog; that her father did not have a dog, nor did her mother; that there was only ever one dog between 2003 and 2006; and that she did not often take the dog for a walk because he was old. As to the phone, “A” said that the house had a landline and she recalled the complainant calling the landline from time to time (11/10/22; T 260.32-261.20). “A” was not aware of the complainant having a mobile phone between 2003 and 2006 (11/10/22; T 261.19-20).

“A” did not remember the complainant owning a pair of jeans between 2003 and 2006.

The complainant gave evidence that during 2006, when she was in Year 10, she and two of her friends (one of whom was “E”) were babysitting for her mother’s best friend and she asked her friends if the applicant had ever done anything to make them feel uncomfortable (6/10/22; T 72.27-73.11); that one of them said no and asked why she had asked that; and that she told them that the applicant had kissed her (6/10/22; T 73.21-29). “E” could not recall ever having a conversation about the applicant with the complainant while babysitting for the complainant’s mother’s friend although she agreed that she had done some babysitting for the complainant’s mother’s friend (10/10/22; T 204.15-26).

The complainant also gave evidence that she told her mother that the applicant had kissed her; that she and her mother went to the applicant’s house (6/10/22; T 73.50-74.19). The complainant said that they met with one of the complainant’s friends (“E”) and “E”’s grandmother, the applicant and “A”; and they went to the back of the house; and that everybody was discussing what the complainant had said (6/10/22; T 74.23-75.9). The complainant said that the applicant and his wife said that “whatever happened was out of love”; and that the applicant’s wife said “[w]e love you” (6/10/22; T 75.21-33). The complainant could not recall saying anything (6/10/22; T 74.24). The complainant thought that her mother was confused and did not say much (6/10/22; T 74.27). The complainant could not recall any conversation with her friend (“E”) and thought they had left by a certain time (6/10/22; T 75.42). The complainant’s mother left. The applicant’s wife asked the complainant if she wanted to stay for dinner and the complainant stayed there for dinner (6/10/22; T 75.45-49). In cross-examination, the complainant maintained that the applicant was present on this occasion and that the confrontation happened (7/10/22; T 148).

The complainant’s mother broadly corroborated the complainant’s evidence as to the confrontation in 2006. The complainant’s mother’s account was that when the complainant was in Year 10 she had a conversation with her out the front of their house where they lived in which the complainant told her “that she was feeling uncomfortable around [the applicant]” (10/10/22; T 175.11-12). The complainant’s mother said that she took the complainant and her two siblings to the applicant’s house; they went into the kitchen dining room; and when they arrived, the applicant, his wife, “A” and another friend “E” were there (10/10/22; T 175.35-176.17). (In cross-examination, the complainant’s mother was not sure why “E” was there and could not remember if there was someone else there at the confrontation (10/10/22; T 184.31).)

The complainant’s mother said that she told the applicant and his wife that the three of them needed to talk; and that she told them what the complainant had told her about “feeling uncomfortable around [the applicant]” and that the applicant told her “he would never – it wasn’t his intention to make [the complainant] feel uncomfortable. He was just treating her like his own daughter” (10/10/22; T 176.48-177.4). The complainant’s mother could not recall anything being said between the three of them (10/10/22; T 177.6-7). The complainant’s mother said that the applicant went outside; and that, after talking to the applicant’s wife, she then went outside to the backyard to talk to the applicant who was upset and by himself (10/10/22; T 177.11-19). The complainant’s mother said that she told him “that I just had to do what I had to do and ask, that’s all it was” (10/10/22; T 177.25). The complainant’s mother said that she went back inside and then left the house not long afterwards; and that, about a week later, she saw the applicant’s wife in the park crying (10/10/22; T 177.37-39). In cross-examination, the complainant’s mother could remember that there was an argument (perhaps between the complainant and her friend “E”) but could not remember exactly what was said (10/10/22; T 185.2). She was adamant that the applicant was there (10/10/22; T 185.21).

“E” said that she could not recall an argument at the applicant’s household when she was in Year 10 involving the complainant’s mother. “E” said that she was “quite young, also…in a very sheltered environment by my grandmother… she did shelter me from all arguments and everything like that. So, no, I didn’t see anything” (10/10/22; T 205.5-10).

“A” said that her mother only told her about the confrontation with the complainant’s mother after the applicant was charged in February 2021 (11/10/22; T 274.46-48).

Counts 10 and 11 relate to the last incident about which the complainant gave evidence. This was when she was in Year 10. The complainant said that she skipped school, met some friends and smoked some cannabis and that later that afternoon, she went to the applicant’s house (6/10/22; T 76.20-34). The complainant said that she saw “A” and was meant to stay that night (6/10/22; T 76.37). The complainant said that that evening, she went outside after everybody had gone to bed; the applicant came out and they both went to the garage; and she agreed to have sex with him (6/10/22; T 76.47-77.9). The complainant remembered the dogs barking and the applicant telling them to be quiet (6/10/22; T 78.40-42). The complainant said that she removed her clothing and his; that she went onto her hands and knees, and he penetrated her anus with his penis from behind (count 11) (6/10/22; T 77.18-19).

Having refreshed her memory, the complainant said that before that the applicant asked her to touch his penis which she did with her hand (count 10); and that while she was touching his penis, he touched her with his hand (6/10/22; T 78.35-79.6).

The complainant said that after sexual intercourse, the applicant used her clothes to wipe himself; that she grabbed her “stuff” and left the house (6/10/22; T 79.19-20). The complainant said that she met up with friends to get some drugs and ended up sleeping outside a community centre (6/10/22; T 79.29). The complainant said that the next morning she waited at a community centre for a morning after pill (6/10/22; T 79.38-39).

In cross-examination, the complainant agreed that she was at least 15 years old at the time. The complainant did not accept that “A” had left the coastal location before she turned 15, saying that “A” was still living there during Year 10 (7/10/22; T 146.20-33).

In re-examination, the complainant said that she went to one campus for Years 7 to 9 and another campus from Years 10 to 12; so that, after Year 9 finished, she went to the same high school but it was at a different campus (7/10/22; T 167.38-168.4). The complainant remembered “A” being at the second campus, and leaving towards the end of the year to move with her sister (7/10/22; T 168.6-11). The complainant could not remember which month it was, just that it was towards the end of the year (7/10/22; T 168.16).

The complainant’s friend (“E”) was “pretty sure” that “A” was at the second campus school at least half of the year before she went to CW to live with her family (10/10/22; T 202.26); but accepted in cross-examination that “A” had left in March (10/10/22; T 206.12-14). In re-examination, “E” said that her best memory was that “A” left “halfway through the year” but she said that she did not know the month and did not want to answer a specific month (10/10/22; T 212.10).

“A”’s evidence was that she left the coastal location where they lived on 20 March 2006 and went to CW; that she did not attend school at the coastal location again and did not return to the coastal location until 2008 (11/10/22; T 248.50-249.6). When “A” left school in March 2006 she moved to CW to live with her sister (“H”) and she attended school at CW and then moved back in 2008 (11/10/22; T 268.11-25). “A” said that she completed Year 10 at CW (11/10/22; T 268.31-32). “A” disagreed with the suggestion that she did not leave school in 2006 until the middle of the year (11/10/22; T 268.34-36). “A” said that she did not like the school (i.e., the high school at the coastal location) and that it was a personal choice for her to leave school in March 2006 (11/10/22; T 267.14). Later in cross-examination “A” confirmed that it was her personal choice to leave the school; she said that she did not like the school and was living somewhere else without her parents and that she liked her other school better than the one she had been attending (11/10/22; T 284.6-25).

“A” said that when she left to go to CW in 2006, her relationship with the complainant was “stable”, “just like a normal friend at the time” (11/10/22; T 275.15-19).

Shortly after the incident in counts 10 and 11, the complainant spoke to a school counsellor, after which she was picked up at school by her mother. The complainant’s mother was with a friend (7/10/22; T 153.10-21). They took the complainant to the police station where the complainant spoke to detectives and disclosed that she had been sexually assaulted (7/10/22; T 153.20-154.45). The complainant’s mother corroborated this (10/10/22; T 177.50-178.19).

In evidence at the trial, DSC Wilkinson, the officer in charge of the investigation from October 2020, was that, as part of her investigation into this matter, she obtained the notebook interview made by Senior Constable Wagland in relation to the 2006 investigation into the matter.

On 31 May 2006, the complainant participated in an electronically recorded (JIRT) interview. The complainant accepts that in 2006 she gave the police false information as to how the assault occurred (namely, that the owner of a blue Subaru had picked her up outside of work in a car and taken her somewhere and sexually assaulted her) (6/10/22; T 87.5-88.12). The complainant gave the police a partial registration number for the car (which was a car she had seen parked in the applicant’s street; she said that she did not know who owned the car) and a false name (Andrew) of the man she said had assaulted her (6/10/22; T 79.41-80.2; 86-87; 7/10/22; T 155.28-32).

At the trial, questioned as to why she had told lies in the JIRT interview, the complainant gave evidence that she told lies in that interview because she was scared of her father and she wanted to protect the applicant and his family, the complainant saying that (at 6/10/22; T 80.20-33):

In cross-examination, the complainant maintained that her evidence about the applicant was true (6/10/22; T 88.29-41). The complainant said that she gave the police a false name so that nobody innocent would be charged (7/10/22; T 87.31-32); and said that she did not give the name until the police said it themselves after she gave police the partial registration number of a blue Subaru (6/10/22; T 87.42-47). The complainant said that she did not appreciate at that time that the person she named could have been arrested and charged (6/10/22; T 88.14-17).

The complainant in cross-examination said that the registration number she gave police was from a car she had seen in the applicant’s street; that she did not know who owned the car; that it was a stupid thing to do and that she was really scared (7/10/22; T 155.34-42). The complainant said that she gave police the name “Andrew” which was one of the fake names that her ex-boyfriend’s cousin used as he was a drug dealer (7/10/22; T 159.50-160.3). The complainant said that her ex-boyfriend and “Andrew” were stalking, intimidating, and threatening her at the time, but that “Andrew” did not sexually assault her (7/10/22; T 160.10-15; 160-161.45). The complainant said that she was not aware of Andrew’s last name until the police pulled up the registration details (7/10/22; T 160.24).

The complainant was taken to the police notebook statement which recorded that the complainant was asked (p 20) “Q. Do you know this man? A. Andrew Spiron. Q. Who’s Andrew? A. He’s my ex-boyfriend’s cousin”. The complainant denied that she gave the police the name “Spiron” or “Spira” and said that when the police looked up the registration they had said “Andrew Spiron” and said that it was a coincidence that the car owner was also named Andrew (6/10/22; T 187.39-88.1; 7/10/22; T 161.12-48). The complainant maintained that she did not know the owner of the car was named Andrew until police told her (7/10/22; T 160-17-20). The complainant said (7/10/22; T 155.36-50) that:

The complainant requested a break at this point in her cross-examination (7/10/22; T 155.50-156.1).

When the cross-examination resumed, the complainant said that she expanded the complaint in the JIRT interview because she was asked more in-depth questions. The complainant agreed that she had to keep making up more (7/10/22; T 159.1-16). The complainant said (7/10/22; T 162.24):

When it was put to her that the complaint to the police was nothing to do with the applicant at all, the complainant said that her complaint to the police included a reference to a condom and him saying it was for next time, which the complainant said was in the hope that police would get evidence or DNA “or something” (7/10/22; T 162.24).

In re-examination, the complainant agreed that, prior to having the conversation with the police officer in which she was noted in the notebook statement as answering “Andrew Spiron”, the police had provided her with that surname, saying (7/10/22; T 168.32-35):

DSC Wilkinson in her evidence agreed that it was not proper practice, when the complainant gave the registration number to police, for police to give the name to the complainant as police had identified someone of whom the complainant had no knowledge. DSC Wilkinson also confirmed that she was not reinvestigating the 2006 complaint as part of her role in this matter. DSC Wilkinson said that the notebook entry made by Senior Constable Wagland in relation to the 2006 investigation into the matter (relating to the registered owner of a blue Subaru (Andrew Spira) (Exhibit D)) was not a statement but a form of demand on the owner of vehicle and these were the questions being asked by the officer in charge and the answers provided by Mr Spira.

DSC Wilkinson confirmed that no charges were ever laid against anyone following the 2006 complaint; and that, in reading the closing report in the case files, it stated that there were too many inconsistencies.

The complainant agreed that the police notebook statement was dated 8 May 2006 (7/10/22; T 168.44-45). The complainant’s evidence was that the last assault in the garage happened before she spoke to police on 8 May 2006 but the complainant could not say how much time had passed between what occurred in the garage and speaking to police on 8 May 2006 (7/10/22; T 168.47-169.6).

The complainant’s mother could not recall the date or timing of when she took the complainant to the police station but said that it was near to and after the confrontation with the applicant and his wife (see 10/10/22; T 185.37-42); not weeks later but close to it. The complainant’s mother confirmed that she was not in the room when the complainant gave police her statement (10/10/22; T 186.1). The complainant’s mother said that she was made aware that the complaint was that she had been sexually assaulted (10/10/22; T 186.5-6). The complainant’s mother said that it did “not [go] very well” when she tried to speak to the complainant about it; that the complainant told her what had happened but not in as much detail as the complainant’s mother thought she should have told her; and that the complainant told her who had committed the act against her but it was no one who the complainant’s mother knew (10/10/22; T 186.8-33). The complainant’s mother said that the complainant did not give a name; that she told her that it happened in an alleyway and that the guy owned a blue Subaru (10/10/22; T 186.39).

The complainant’s school friend “D” gave evidence that she knew about the complainant attending a police station in 2006 and making a complaint, along the lines of the complainant being attacked behind Woolworths (10/10/22; T 191.22-29). “D” said that at first the complainant said that “it was like three people, and then kind of changed down to one person” (10/10/22; T 191.28-29). In cross-examination as to the complaint about being attacked behind Woolworths, “D” could not recall how long after it was between when the complainant first told her that it was three people and then when she later told her it was one person (10/10/22; T 194.5-15). “D” said that she herself was confused and that the story changed within a few months (10/10/22; T 194.16-22). “D” said that she was only aware that the complainant “was taken to the police post, I guess, the school counsellor” (10/10/22; T 194.26). Asked if she became aware that it was not true, “D” said that (10/10/22; T 195.22-25):

Similarly, the complainant’s school friend “E” gave evidence that in Year 10 (2006) the complainant told her that she had complained to police and that she was sexually abused by someone but that the complainant did not say who it was and that the school knew about it (10/10/22; T 203.49-204.1). “E” said that the complainant “didn’t tell me a man who it was, but she did say it was somebody that abused her and she did try to relate [sic] that to her family and she went to police” (10/10/22; T 203.49-204.1).

The complainant’s mother gave evidence that sometime between the complainant making her first complaint to the police (8 May 2006) and her JIRT (video recorded) interview (31 May 2006), she took the complainant to hospital for a DNA sample to be taken (10/10/22; T 187.17-24). The complainant’s mother said that they waited a little bit until a male nurse came to conduct the test but that the complainant said that she did not want to do the test and indicated that she was not comfortable with the male nurse administering the test (10/10/22; T 187.43-188.1). The complainant’s mother said that they asked if there was a female to administer the test and the answer was “[n]o”; and that the test was not done (10/10/22; T 187.45-188.5).

The complainant did not recall refusing to have DNA collected. The complainant “clearly remembered them doing a kit” (7/10/22; T 162.29-34).

During the course of the trial, when the hearing had been briefly adjourned following the complainant’s reaction to the suggestion that she look at the redacted photographs of the applicant’s groin area, the jury sent a note asking for some clarity on “when the last rape allegation occurred and when the rape test kit was attempted to be used. When was the initial report – police report? How long after the last allegation?” (see 7/10/22; T 166.29-31). The jury was advised that those questions would be answered in the balance of the evidence in the Crown case, not through the complainant’s evidence.

As noted above, the complainant’s evidence was that the last rape occurred before she spoke to the police on 8 May 2006 but she could not say how long before. The complainant’s mother placed the timing of the attempted DNA test as between the making of the first complaint to the police and the electronically recorded interview.

The complainant gave evidence at the trial that she had had a conversation with her schoolfriend (“D”) at some time in 2006 (when she was in Year 10 at school), while they were behind the school, sitting by a tree that was out of sight of the school where they would smoke cigarettes (6/10/22; T 85.30-44). (It is not clear whether this was before or after the May 2006 complaint to the police.) The complainant’s evidence was that she only told “D” that the applicant had “kissed [her] and that he had been inappropriate on occasions with [her]” because she was scared to tell her everything (6/10/22; T 85.39-86.6). The complainant said that (6/10/22; T 86.6-8):

Asked when the applicant said that, the complainant said that (6/10/22; T 86.11-16):

“D” gave evidence corroborating the complainant’s account of the 2006 conversation. “D”’s evidence was that she had a conversation with the complainant when they were in Year 10 in 2006; that they were alone; she and the complainant were around the corner from the high school, in front of a block of units under a tree, smoking cigarettes (10/10/22; T 190.35-47):

The complainant’s evidence was that during the years 2003 to 2006 she was self-harming almost every day by cutting her arm; that she started doing that when she was eight years old and wore jumpers to hide this (6/10/22; T 84.1-26); that she started smoking cigarettes when she was in Year 8, and that she starting using cannabis between the ages of 12 and 13 and was using cannabis almost every day (6/10/22; T 83.38-45).

The complainant’s mother was aware that the complainant was smoking cigarettes when she was in Years 9 and 10 but did not know that she was using cannabis until after that time; she did not see marks on the complainant’s arms during that time but said that the complainant had the habit of wearing jumpers in Years 9 and 10 (10/10/22; T 174.34-44).

The complainant’s school friend “D” corroborated the complainant’s evidence as to these issues. “D” said that the complainant often skipped school during Year 10; that the complainant was smoking cannabis and had a habit of wearing jumpers every season of the year from Year 8; and that if the complainant was not wearing jumpers, sometimes she (“D”) would see bandages “popping out from underneath” (10/10/22; T 191.3-20). Similarly, the complainant’s school friend “E” gave evidence that in Year 10, at the second high school campus, the complainant was smoking cannabis, was skipping school and was cutting herself (10/10/22; T 203.34-42).

“A” said that she was not aware from 2003 to 2006 of the complainant smoking cigarettes or smelling of cigarettes or using cannabis but said that “she very well could have been” under the influence of some type of drug (this was based on the complainant “maybe slurring …words or her behaviour may have changed”) (11/10/22; T 272.50-23). In cross-examination, “A” said that between 2003 and 2006 the complainant’s behaviour may have changed (11/10/22; T 276.29). “A” said that she was not aware that the complainant was self-harming by cutting her arms (11/10/22; T 276.38-40).

In 2006, after the complaint made to the police, the complainant went to a mental health facility for a week (6/10/22; T 81.1-6).

At the beginning of 2007, the complainant went to stay with her maternal grandmother in Sydney. The complainant recalled that her grandmother picked her up at the beginning of 2007 from the hospital and took her home to her place (6/10/22; T 81.12-14). The complainant’s mother gave evidence that she sent the complainant to live with her grandmother because the complainant was misbehaving and running away; and was “a little bit uncontrollable” (10/10/22; T 178.28). The complainant’s sister (“F”) recalled that the complainant moved to Sydney but at the time she did not know why it happened; she said that she was told that the complainant was misbehaving at school or home but said “I was quite young. I don’t remember much of it” (10/10/22; T 199.5-7).

In evidence at the trial was a handwritten diary entry dated 18 February 2007 (Exhibit C) (6/10/22; T 81.31-82.20), in which the complainant had written:

As to this diary entry, the complainant’s evidence was that in 2007 she had kept a diary in which she used to write everything down; that it was sometimes written on loose paper that she would put within another book; and that she had kept this diary entry (which was written on a notepad) (6/10/22; T 81.15-19).

The complainant said that she provided the 18 February 2007 diary entry to DSC Wilkinson (the police officer to whom the ultimate complaint was made in 2020); that she could not remember when she did so (6/10/22; T 82.8-15) but it was after DSC Wilkinson had asked her if she had kept any journals or anything that was written (6/10/22; T 95.30).

The complainant said that she kept a few diaries as a child but no longer had those diaries and that she had destroyed them to help herself heal from certain things (6/10/22; T 95.44). The complainant said that the Exhibit C diary entry was the only diary entry that she kept (which she kept with herself in her room, in other things that she had as a child); and that she kept that entry because it had mention of what was happening, her home life and what the applicant had done to her (6/10/22; T 96.4-16). The complainant did not know why she kept that particular entry; and that there had been many other diary entries that shared the same characteristics but this was the only entry that she kept (6/10/22; T 96.18-23).

The complainant agreed that the diary entry was mentioned in her (third) police statement dated June 2021. The complainant was certain that she wrote this diary entry in 2007 (6/10/22; T 97.16-17).

In 2020, the complainant made a series of disclosures about the abuse.

While the complainant was in hospital, she wrote a letter to her sister (“F”), in which the complainant said that she told her “that what had happened in 2006, wasn’t entirely the truth and I told her the truth in that letter about [the applicant] and what he did and why I - I did what - said what - like, I did what I did in 2006” (6/10/22; T 82.28-41).

The complainant also wrote a letter to “D”, telling her that what she had said happened in 2006 was not entirely the truth, and disclosing what the applicant did (6/10/22; T 83.5-9).

The complainant also wrote to “A”. The complainant said that on or about 9 May 2020 she met “A” at a beach and handed her a letter; and that she saw “A” read the letter (6/10/22; T 83.14-22). In cross-examination, “A” confirmed that in May 2020 she met the complainant on a beach and the complainant handed her a letter (11/10/22; T 261.22-26). “A” said that she did not tell her father what had happened straight away; but a couple of days later she told her father about what happened on the beach and gave her father the letter (11/10/22; T 261.39-48). “A” said that when she met the complainant on the beach in May 2020, the complainant said that “she wasn’t going to go to the police” and that “A” told her father about the letter and in the letter the complainant had said that she “wasn’t going to go to the police” (11/10/22; T 276.19-26).

“E”’s evidence was that in 2020 she had some contact with the complainant during which the complainant spoke again about what happened in 2006 (10/10/22; T 204.30-33). The complainant asked her if she (“E”) remembered what the complainant had said back in high school to the police. “E” said that she said yes and that the complainant “actually told me who it was at that time, at [xxx] Hospital… She told me that the allegation that she made at the time when we were in high school, when she said it was just that random person, it wasn’t true. That the person who actually done it was [the applicant]. And then I pieced it all together” (10/10/22; T 204.41-205.2).

In 2020, the complainant went to the police station to report the abuse. DSC Wilkinson gave evidence that she was the officer-in-charge of the investigation of this matter from 26 October 2020 (10/10/22; T 213.16-17). On 4 November 2020, DSC Wilkinson spoke to the complainant for the first time for a number of hours (10/10/22; T 213.19-20). DSC Wilkinson gave evidence that, when she first spoke with the complainant, the complainant raised the false complaint she had made to police in 2006 and that “she was scared to come forward to police because of that” (10/10/22; T 213.29-30).

On 10 November 2020, DSC Wilkinson commenced taking a witness statement from the complainant (10/10/22; T 213.32-34). That first police statement was completed on 22 December 2020 (10/10/22; T 213.36-37). (In all, the complainant provided six statements to the police.)

The first statement did not include an account of the incident the subject of counts 1 and 2 (the first time that the applicant sexually assaulted the complainant). The complainant in cross-examination said that she did not intentionally leave this out; “[i]t was just that I was scared to speak about it” but then accepted that she “chose not to share it in the first [statement]” (6/10/22; T 107.6-16). The complainant said that “[t]here are some things that I have remembered after speaking about a certain incident and memories would come up” (6/10/22; T 107.18-20). The complainant denied the suggestion that she did not have the incident in her memory when she gave her first statement (6/10/22; T 109.26-29).

Further, there was no description of the last incident (the anal penetration in the garage) in the complainant’s first police statement. The complainant said that it was not an intentional thing to do. The complainant said that re-living and speaking about these events was traumatising; that she could not “get it out in one go”; and that she was scared (7/10/22; T 149.20-22). The complainant said that her mental health was not good and it took her time; that she needed time to gain trust for herself to be able to speak about it and that she had “all intentions of telling the detective, which is why I went back and told her” (7/10/22; T 149.32-150.1). The complainant agreed that she did not tell the detective that she was leaving out incidents (7/10/22; T 150.2-5).

The second statement was made in February 2021. The complainant said in cross-examination that she believed that she gave police the full story when she gave her second statement but she agreed that her evidence that the applicant had whispered in her ear asking her to kiss his penis (count 1) was not in her second statement (6/10/22; T 110.9-34). The complainant agreed that this was left out of her statement but said that it was not on purpose. The complainant said she “remembered it as I was talking about certain things that had happened” to her counsellor; and that as she was talking about that occurrence more she remembered other things about different occurrences and a lot of memories would pop up in her head (6/10/22; T 110-19-29). The complainant said that for similar reasons she did not include this last incident in her second statement (but maintained it was true (7/10/22; T 150.42-152)).

The third statement was made in June 2021. In cross-examination the complainant said that she “couldn’t go back for quite some time” (7/10/22; T 150.48).

The fourth statement was made on 9 August 2021. At this time the police had asked the complainant if the applicant had any identifying marks on his body. The complainant agreed in cross-examination that it was explained to her that if there was an identifying mark that she knew about (without an innocent reason) that might be important in the police investigation and important evidence (7/10/22; T 163.8-16). In cross-examination, the complainant agreed she had told police that (7/10/22; T 163.25-33):

The complainant said that she told police this because she believed it was true (7/10/22; T 163.38-39). The complainant said that she was later made aware that there was “nothing there that represented what I had described” but maintained she would not have said it if she did not believe it to be true (7/10/22; T 163.42-45).

Redacted photographs of the applicant’s groin area were tendered as Exhibit 4. The complainant was not shown the photographs, the transcript indicating that the complainant exhibited some distress at the suggestion that she might be required to look at the photographs (see 7/10/22; T 164.4-49), saying that she could not look; that “That’s not okay. It’s not okay” and that she could not breathe, which culminated in the trial judge adjourning the hearing for a short break (obviously to permit the complainant to compose herself). No identifying mark is visible on the redacted photographs. When the hearing resumed, the complainant maintained that she had seen the mark and had a memory of that particular spot on the applicant’s body (7/10/22; T 167.25-26); and the complainant was adamant that she had “interacted” with that part of the applicant’s body (7/10/22; T 167.30).

As noted, the complainant made six separate statements to the police. At the trial, the complainant maintained that she had told police the truth. The complainant agreed that the officer-in-charge (DSC Wilkinson) had emphasised to her the importance of trying to make sure that she covered everything she wanted to say in her first statement (6/10/22; T 92.15-17). DSC Wilkinson agreed that she had emphasised to the complainant the importance of getting her statement right the first time and that she gave her as many meetings and as long as she needed at those meetings to do the best she could to get it right the first time; and that she had never told the applicant to leave anything out or not to worry about something; rather, she wrote down everything the complainant told her (10/10/22; T 225.47-226.33).

The applicant was arrested on 2 February 2021. The applicant voluntarily participated in an ERISP on 2 February 2021, which was played to the jury and tendered in the Crown case (Exhibit G, with an aide memoire transcript marked as MFI 5). In the ERISP, the applicant denied all of the specific allegations of misconduct that were put to him (Exhibit C; Q/A 139-140; 227-231; 247-248; 257-260; 264; 278-280; 289-291; 298-313).

During the interview, the applicant stated that: he had lived at his home at the coastal location for 21 years (Q/A 11-12); the complainant had been friends with his daughter “A” at school (Q/A 43-45); he knew that the complainant had a “pretty rough” home life as her father was “goin[g] off his brain” (Q/A 52-54); the complainant would come to his house probably once or twice a week, but sometimes not for a month (Q/A 55-56); his wife was not employed and was in the house “all the time while [the complainant] was there” (Q/A 68-71); although he had five children, only his wife, “A” and he were living in the house throughout the period from 2001 to 2006 (Q/A 23-25, 89); he did not see the complainant very often, because he left for work early in the morning and mostly saw her in the afternoons and, although the complainant sometimes stayed over on weekends, it was not very often – he used to work on the weekends, as he worked a 13-day fortnight (Q/A 57-62, 109-120); he worked night shifts sometimes (Q/A 403); in one fortnight he might do it once, the next fortnight no night shifts, but the fortnight after he might do it once again; usually it was a Thursday night and he would usually have the Friday off (Q/A 420-426). When it was put to the applicant that the complainant came to his house virtually every weekend, he said he did not know because he was not there (Q/A 135).

The applicant said that they did not have a pull-out lounge; they had a cream coloured three-seater lounge, two singles and a recliner (Q/A 196-201). The applicant said that no one would sleep on the lounges (Q/A 203-208). The applicant identified the complainant in a photo shown to him of her standing in front of his house before her Year 6 formal (Q/A 232-239).

The applicant denied watching movies with the complainant and “A”; and said that he only watched the cricket and the news (Q/A 265-269).

The applicant said that his wife used to volunteer at the Salvation Army around once a week; she did not do it for long, perhaps a couple of months only, because she could not put up with the smell because of her asthma (Q/A 271-277).

The applicant denied ever being alone with the complainant; and said that his wife and daughter were always there (Q/A 141-142, 310, 451-452). The applicant denied any memory of the occasion when the complainant and her mother came over to the house and approached him about why he had kissed the complainant (Q/A 330-332, 335-337).

The applicant referred to the accusations as “all this rubbish” (Q/A 340-342); and said that if the complainant stayed the night he would give her a kiss on the forehead the same as his daughter but he would not kiss her on the lips or neck (Q/A 477-482) (contradicting his earlier answer that he would never kiss the complainant – see Q/A 303-306).

After the interview, DSC Wilkinson spoke with the applicant’s wife and daughter “A” in the foyer of the police station, telling them that she would be in contact with them to see if they would provide a statement (10/10/22; T 216.15). On 19 February 2021, DSC Wilkinson received an email from the applicant’s wife that neither she nor her daughter “A” would be providing a statement (10/10/22; T 216.20-23).

DSC Wilkinson agreed that she had asked the complainant whether the applicant had any identifying marks but could not recall when she asked that question. DSC Wilkinson said that the complainant answered straight away when she asked that question the complainant gave her the answer straight away. DSC Wilkinson then arranged to contact the applicant’s legal representatives and, through another officer, the applicant was asked if he would be willing to have a photograph taken. DSC Wilkinson was aware that the applicant voluntarily came to the police station on legal advice for those photographs to be taken.

At the trial, the Crown called evidence from the complainant and a number of other witnesses (including the complainant’s mother, the complainant’s sister “F”, the complainant’s school friends (“D” and “E”)), and DSC Wilkinson. DSC Wilkinson confirmed that she had investigated the applicant and found that he had no convictions. She also indicated that there were no complaints on the COPS system about the applicant.

As would be expected, there was extensive cross-examination of the complainant covering a variety of topics, relevantly including as to: the false complaint she made to the police in 2006; the various statements she had given to the police; the 18 February 2007 diary entry; the layout and furniture of the applicant’s house; and her account of the respective incidents. The complainant denied that the things she had said to the police about the applicant were false; and maintained her allegations that the applicant had sexually assaulted her and improperly touched her. The complainant said that she reviewed her statements in preparation for giving evidence at the trial but denied that this was because she had trouble remembering the different things that she had said to police; the complainant maintained that she did not have trouble remembering (6/10/22; T 92.48-50). As already adverted to, there was at least one occasion when the complainant appeared to be distressed in the course of her evidence and other occasions where the complainant requested a break (6/10/22.107.31).

As to the complainant’s mother, she agreed in cross-examination that as the matter had progressed (from when the complainant first complained to police until the trial) this was a matter that she had discussed a great deal with the complainant but then said that the complainant “sort of doesn’t say very much to me” and had not told her what she had said to the police (10/10/22; T 178.49). (The Crown accepts that this evidence was to the effect that the complainant had discussed with her mother the allegations she had made and the confrontation at the applicant’s house.)

Of the witnesses in the defence case, the most extensive cross-examination was of “A”, in respect of whom the Crown maintains there were credibility issues (see below).

Much of the evidence at trial has been referred to already. However, it is convenient here to set out the relevant evidence as to the furniture in the applicant’s house at the time of the offending conduct because whether the complainant slept on a futon or fold-out lounge became a central aspect of the submissions made by the applicant as to her credibility and reliability. Counts 1 and 2 (specified on the indictment as occurring between 1 December 2002 and 28 February 2003) and count 4 (between 1 January 2003 and 30 June 2005) were alleged to have occurred on a futon or fold-out lounge.

The complainant gave evidence that in the lounge room there was an armchair and a “futon” (5/10/22; T 30.31); and that when she stayed over at the applicant’s house, she slept on the futon because there was no room in the applicant’s daughter’s bed for both her and “A” (5/10/22; T 35.11-15; 105.11-16). In cross-examination, the complainant made clear that by “futon” she meant a lounge that could be folded down as a bed (6/10/22; T 98.33-47).

The complainant thought that when folded out the futon was the size of a double bed. The complainant could not recall the colour or the type of material of the futon but said that it had a cover and was a soft mattress-type lounge (6/10/22; T 99.1-8). The complainant said that it was positioned against the back wall (6/10/22; T 128.35-129.3) of the lounge room.

The complainant had no recollection of the applicant’s family ever having new furniture (6/10/22; T 99.46-48). She said that there was a TV in a cabinet and a fabric armchair or lounge in the corner of the room; that it was not a matching set.

When shown photographs of furniture in the applicant’s house which were date stamped 1 December 2001 (Exhibit 2), the complainant said that it was “nowhere near the same as what I remember it being” and “that furniture was completely different” in the lounge room (6/10/22; T 120.45; 122.27-29). The complainant said that, from some of her earliest memories, there was a futon, and the lounge room was not as shown in the second photograph (6/10/22; T 122-38-40). Shown the third photograph (in which “E” is sitting on the lounge), the complainant recognised “E” (6/10/22; T 121.5) but she did not recognise the room as the lounge room (6/10/22; T 121.14-25). The complainant did not accept that the couch in the first photograph was the only couch in the house during the time she would visit, and maintained that in 2002 there was a futon (6/10/22; T 122.7-9).

As noted above, the complainant said that, when she slept over at the applicant’s house, she slept on the futon; she did not sleep in “A”’s bedroom (6/10/22; T 105.11-22). The complainant said that “A” slept in her own bedroom; that it was a small bedroom; and that there was not enough room for her also to sleep in that bedroom (6/10/22; T 105.18-30). The complainant said that “A” had a large chest of drawers with ornaments on it and her single bed was positioned next to the door; and that there was not a lot of room to put a mattress on the floor (6/10/22; T 105.31-35). The complainant was shown a photograph of a room with two single bed mattresses, although I note they were described to the complainant as two king single beds (Exhibit 1). The complainant said that “A”’s bed was not facing that way; that “A”’s bedhead was against the wall, not the window (6/10/22; T 119.26-40).

The complainant’s mother also recalled that there had been a “futon lounge” in the lounge room at the applicant’s house. In cross-examination, the complainant’s mother said that she had slept at the applicant’s house a few times because she had to get out of her house (10/10/22; T 174.21); and that she slept in the lounge room, on the lounge, which she was “pretty sure” was a futon lounge (10/10/22; T 174.17-32; 184.1-11). The complainant’s mother could not recall when this had occurred. The complainant’s mother was shown Exhibit 2. She did not recognise any of the furniture in the first photograph, not could she remember the couch on the right-hand side of the second photograph (10/10/22; T 183.19). In the third photograph, the complainant’s mother recognised “E”, but not the couch (10/10/22; T 183.21-33). The complainant’s mother did not recognise the photographs as being of the applicant’s lounge room. The complainant’s mother said that all she remembered was the futon and disagreed with the proposition that there was no futon (10/10/22; T 183.46-50).

“E” said that from 2003 to 2006 the applicant’s lounge room had a “futon pull-out lounge” (10/10/22; T 202.49-203.1). “E”’s evidence was that she slept on the futon, and in “A”’s room a couple of times (10/10/22; T 203.4). “E” did not recall the furniture in the house changing (10/10/22; T 208.25). “E” recalled a “beige lounge” that was “like a futon and you pull it out”; that it was the same colour as the armchair; and said that “I feel like all their furniture was beige when I think about it” (10/10/22; T 208.37-46).

“E” did not recognise the lounge in the first photograph in Ex 2 (10/10/22; T 209.11). “E” said that she did not know if the second photograph was the lounge room but said the lounge did not look like the same lounge (10/10/22; T 209.24). “E” identified herself in the third photograph, and agreed it was the lounge in the applicant’s house but, when it was suggested that the lounge did not fold out, she said (10/10/22; T 210.40-42):

“E” did not believe the lounge in the third photograph was the same as the one that folded out (10/10/22; T 211.3-4). In re-examination, “E” said that the fold-out lounge was pulled from the bottom and became flattened like a bed (10/10/22; T 212.16-20).

“E”’s recollection was that there was space in “A”’s very small bedroom for a mattress on the floor. “E” could not recall where that mattress was kept when it was not being used to sleep on. “E” could not remember there being a change of furniture in the lounge room.

In cross-examination, “D” said that the complainant quite often slept over at her (“D”’s place) and that when the complainant slept over at “D”’s place, the complainant slept on a mattress in “D”’s room (10/10/22; T 193.7-8, 195.41-45). “D” said that the complainant’s mother never came to her place; and that there was no fold-out couch in the living room or anywhere else in her house (this evidence would appear to exclude the possibility that the complainant was mistaken as to where it was that she had slept on a futon) (10/10/22; T 193.25-26, 195.50-196.4).

“A” said that when the complainant would sleep over on the weekends (which she said was not often) the complainant would sleep on the floor on a mattress in “A”’s room (11/10/22; T 244.20-21). “A” said that she had a king single bed in her bedroom and no other furniture. In cross-examination, asked to mark on a copy of Ex 1 (the photograph of the two single beds in a room) the layout of the king single bed in her bedroom (which then became Ex H), “A” said that her bed was not kept against the wall with the window; that she did not have a chest of drawers in her room between 2003 and 2006; and that she had built-in wardrobes and did not “need anything else” (11/10/22; T 269.17-270.11).

As to the furniture in the lounge room, “A” said that the floor plan of the applicant’s house (Ex 3) accorded with her memory of the house; that the living room had a TV cabinet, a small china display cabinet, a small coffee table and a “white-y beige colour” lounge and a single chair as well, in leather material; and that the lounge did not fold out into a bed (11/10/22; T 245.5-10, 245.34-246.5) .

In cross-examination, “A” said that between 2001 and 2020 the floor plan for their house remained the same. “A” disagreed that the computer was in the lounge room in 2001 and said that it was always in the dining room. Shown Ex 2, “A” recognised her friend “E” sitting in the lounge room and accepted that the computer was behind her (11/10/22; T 258.5-26).

“A” said that at some point, the computer moved to the dining room. “A” said that from 2001 to 2006 there was no camera in the house (11/10/22; T 262.9-10). “A” did not know who had taken the photographs depicting her friend “E” (Ex 2) and was not aware of any other photographs of the lounge room after December 2001 (11/10/22; T 262.11-18).

“A” disagreed that, sometime after December 2001, a new piece of furniture was placed in the lounge room that was able to be folded out (11/10/22; T 280.7-10). “A” could not recall an exact date as to when she last saw the lounge, (saying “Sorry, 2003, 2004, 5. I can’t recall an exact date, or year for that matter”) (11/10/22; T 281.5). “A”said that “it may well have been” replaced at some stage, but not with a piece of fold-out furniture; that it was replaced by a cream, leather three-seater lounge that was not able to be folded out into a bed (11/10/22; T 281.9-26).

“A” said that the lounge in the first photograph in Ex 2 was kept in front of the window which looked on to the carport and that in 2001 the TV was kept under the air conditioner (11/10/22; T 265.29-35). In the photograph a table was underneath the air conditioner (11/10/22; T 265.37-38). “A” said that her mother always used to rearrange everything (11/10/22; T 265.41). “A” said that the TV might have been in the far corner, near the lounge on the other wall (11/10/22; T 265.43-47). “A” said that, from 2003 to 2006, the TV was under the air conditioner (11/10/22; T 266.11-13).

“A” gave evidence that the lounge was a “white-y beige colour” and was leather (11/10/22; T 245-34-39). “A” denied that the lounge folded into a bed (11/10/22; T 246.1-5; 280.10). In cross-examination, “A” denied that sometime after December 2001, a new piece of furniture was placed in the lounge room which was able to fold out (11/10/22; T 280.10-281.13). “A” accepted that the lounge in the first photograph could have been replaced at some stage, but denied it was replaced with a piece of furniture that could fold out and said it was replaced with a cream leather three-seater lounge that did not fold into a bed (11/10/22; T 280.30). “A” denied that the complainant ever slept on the cream lounge (11/10/22; T 281.31).

The applicant did not himself give evidence at the trial but his ERISP was Ex G. The applicant called evidence on his behalf from a character witness (which it is not necessary here to recount) and from “A”, “B” and “B”’s husband “C”.

Apart from “A”’s evidence to which I have already referred, I note the following.

“A” said that, as best as she was able to say, she was not aware of the complainant being at her house when she was not there. “A” said that her mother was in the house all the time when the complainant was there with her; that the applicant would be home “when he wasn’t at work, but he was always at work”; and that she could not recall a time when she and the complainant were home, the applicant was home and her mother was not home (11/10/22; T 244.40-44). “A” said that her mother did not have a licence to drive and that if her mother left the house, walking to get groceries, they went with her; that between 2003 and 2006 the family only had one car (11/10/22; T 260.20-30). “A” said that there were never occasions when the applicant was in the lounge room with her and the complainant (11/10/22; T 247.27).

“A” said that between 2003 and 2006 she was not aware of her father being alone at home; she said that she and her mother never went and did something; and that she was not involved in any extracurricular activities in which her mother might be involved (11/10/22; T 273.37-274.11). “A” said that the complainant was never at the house unless she (“A”) and her mother were there (11/10/22; T 279.33-35).

“A” said that she never saw her father interacting with the complainant in any way (11/10/22; T 247.31-32). “A”’s evidence was that her father would kiss her on the forehead, but she never saw her father kiss the complainant goodnight by kissing her on the forehead (11/10/22; T 263.13-25). Later in cross-examination, “A” said that she never saw her father hug the complainant or place a hand on the complainant’s waist or shoulder, kiss her on the forehead to say goodnight or any physical contact whatsoever (11/10/22; T 282.23-36).

In her evidence in chief “A” described her relationship with her father since moving out from home as “quite close. Quite strong…there is like no other…the relationship is like no other. He is my dad” and said that “[t]here is really no words to describe a beautiful selfless soul…. He is a loving, and loyal family man. He has always been a hard worker and a provider” (11/10/22; T 249.21-34).

“A” said that she first became aware of the allegations against her father in 2020; and that she regarded the allegations in the Crown case statement as inconsistent with her father’s character, saying that “It’s just not my dad. It’s not him. He would never ever, ever do anything like that” (11/10/22; T 250.5-10). In cross-examination, “A” agreed that she knew her father had been interviewed by police in February 2021 (11/10/22; T 250.15-17). “A” said that since that time no one had told her what her father had told police and that she had no idea what her father had said to police about these allegations (11/10/22; T 250.20-25). “A” said that in the 12 months leading up to February 2021 she had daily contact with her father (11/10/22; T 250.30-35).

“A” said in cross-examination that she was not aware of the complainant’s complaint to police in 2006, until she read it in the Crown case statement. “A” had not read her father’s interview or the complainant’s statements; and she could not read the brief, only a few pages, “because it is just disgusting” (11/10/22; T 275.47-276.10). “A” was sure that she had not received a copy of her father’s interview with police. She denied tailoring her evidence to support the version her father gave to police in 2021 (11/10/22; T 285.27-33).

As indicated above, “B” gave evidence that she lived in CW2 with her husband (“C”), and had lived there for 21 years, having moved there in 2020; and that before living in CW2, she and her husband had lived in in country town where the applicant had lived before the applicant moved to the coastal location (11/10/22; T 289.29-44). At the time of giving evidence, “B” had four adult or late teenage children (11/10/22; T 290.8-9). “B” had met the complainant once in the coastal location but was not quite sure when (suggesting that it might have been 2001 or 2002) (11/10/22; T 290.14-18, 298.1-5). “B” did not accept that she had seen the complainant in CW in 2005; she said that the complainant had never been there (11/10/22; T 298.7-15).

“B” described the applicant as “loyal, kind, hardworking, just an honest person” and her relationship with the applicant as close (11/10/22; T 290.48-291.18). “B” had read the Crown case statement which outlined the allegations against the applicant and found those allegations to be inconsistent with the applicant’s character, saying that “he’s not that sort of person, never has been…” (11/10/22; T 291.20-43).

In cross-examination, as averted to above, “B” agreed that she had a sister (“H”) that spent some time in CW between 2001 and 2006. “B” said that “H” lived in a “normal house block on – it’s fibro” with no outhouse or separate garage (11/10/22; T 294.35-45). “H”’s three children were aged from 14-24 (11/10/22; T 294.47-48). “B” had last visited “H” at CW “probably a month ago”; it was the same place she had for the last 20 years (11/10/22; T 294.30-34). “B” said that she had never seen “H”’s children or her own children ever ride a motorcycle (11/10/22; T 295.3-8). “B” had sometimes stayed at “H”’s place but had never visited the property when “H” was not there or stayed overnight while “H” was not there (11/10/22; T 295.23-27).

“B” said that “A” moved to CW to live with “H” when “A” was in Year 10 at school (11/10/22; T 295.42-296.2). “B” said that after the applicant and his wife moved to the coastal location, they sold the former country house within 12 months but that (until it was sold) the applicant would return to the house and stay at the house; and that she could not remember what year the house was sold (11/10/22; T 296.6-38).

“B” said that her nephew owned another property at CW; that he had bought it in 2019 from the applicant’s parents who had purchased it in 2001 (11/10/22; T 296.40-29713). “B” said that the applicant would go to that property at CW to visit his parents while he was living at the coastal location (11/10/22; T 297.15-19). “B”’s paternal grandmother died in 2011 and her paternal grandfather in 2017 (11/10/22; T 297.27-28).

“B” had never known her mother to tell the applicant, at any point, when they were home together, that she was going out somewhere (11/10/22; T 297.35-49). “B” said that when her father came home his routine was to have a shower, then have dinner and go to bed; that he would not often watch TV but he did watch rugby league on the TV in winter (11/10/22; T 299.15-30).

“C” gave evidence corroborating that of “B” that they had lived together in CW2 for 32 years; and had not lived in CW (11/10/22; T 300.35-36).

“C” has known the applicant for 32 years and worked with him in the past (11/10/22; T 301.47). “C” described the applicant as an “uncomplicated straight forward man. A bit of an Aussie larrikin” (11/10/22; T 301.50-302.1). “C” was aware of the allegations against the applicant and found them to be inconsistent with the man he knows, saying that “it doesn’t gel with the man I know…that’s the work of someone who is devious…sneaky…conniving, and that’s not the man I know” (11/10/22; T 302.14-21).

In cross-examination, “C” said that he had been in the company of “A” at CW at family get togethers; that sometimes they were at “H”’s place, other times at clubs and sporting events; and that it was possible he had been to the property previously owned by his wife’s grandparents also at CW, but he did not know the address off by heart (11/10/22; T 302.27-38). “C” said that from 2003 to 2006, “C” would see “A” in CW on occasion, when he passed through there to go to work (11/10/22; T 302.43-49). Sometimes he would stop in. He could not recall staying overnight there with his wife (11/10/22; T 303.4-8). “C” said that they only lived half an hour away and usually went home after family functions. He was sure that he had seen “A” in the company of a friend in CW when she went to school there for a while (11/10/22; T 303.10-15). “C” could not remember how old “A” was when she was at school there (11/10/22; T 303.28-30).

“C” could not recall staying overnight with the applicant in the same house as him. “C” said that it was probably unlikely “but I may have”. “C” did not know how regularly the applicant went to CW (11/10/22; T 303.31-40).

The defence advocate at trial raised with the trial judge that the evidence indicated that the complainant was never in CW with the applicant, and his concern, in light of the cross-examination of “B” and “C”, that the jury might think that counts 7 and 8 had happened at “H”’s house or at some other time or some other place, and might reason that if they had been to “B”’s place in CW2 and the offences had happened there, that would be good enough (11/10/22; T 306.14-37). The defence advocate emphasised that the indictment stated that counts 7 and 8 happened at CW but did not specify that it was “B”’s house at CW.

The Crown emphasised that the complainant had stated only that she believed it was “B”’s house and had not taken it further than that (11/10/22; T 306.41-45). The Crown accepted that the trial judge ought to direct the jury that it was an essential element that the offence happened in CW (11/10/22; T 307.5-25) as the indictment alleged.

In closing submissions to the jury, the Crown submitted that the complainant had given evidence that she went to a house in CW, which she believed “B” lived in (12/10/22; T 314.49-315.1). The Crown later addressed the issue as to the trip to CW, saying that (12/10/22; T 322.6):

The defence advocate in closing address reminded the jury that the complainant said she was visiting “B”’s family, stayed in “B”’s home, and that “B”’s husband helped to clean her up, which was contradicted by other witnesses (12/10/22; T 343.38-43); and submitted that, even if it was “H”’s house, “A” had said that “H” lived in a suburban house and denied mini-motorcycles had been ridden there, and there was no evidence that the complainant had been to “H”’s house or the grandparents’ house in CW (12/10/22; T 342-343).

Written directions provided to the jury stated, inter alia, that before the jury could return a guilty verdict for counts 7 and 8 the Crown had to prove beyond reasonable doubt that the alleged acts occurred between 20 March 2005 and 22 March 2006 at CW (see MFI 11, the drafts directions) (SU 12-13). Further, the trial judge stated (12/10/22; T 13) that:

The trial judge directed the jury that count 8 was alleged to have occurred on the same occasion as count 7 and at CW (12/10/22; T 13).

As to counts 9,10 and 11, in closing submissions, the defence advocate stated that the complainant was very clear that these counts occurred once she turned 15 years old, and asserted that there was an inconsistency between this and evidence by “A” that she left the coastal location before the complainant’s birthday (12/10/22; T 343.20-26). The defence advocate noted that the indictment averred that count 9 occurred after 20 March 2006, and counts 10 and 11 after 1 April 2006 (12/10/22; T 343.28-30). The defence advocate submitted that the jury would accept “A”’s evidence as to when she left the coastal location (12/10/22; T 343.30-42; 344.1-2) and said (at 12/10/22; T 344.18-25):

In summing up, the trial judge referred to the Crown relying on the complainant’s evidence that count 10 occurred in 2006, when she was 15, and reminded the jury both of the Crown’s submissions on the date that “A” left the coastal location (i.e., that “A” may have been giving a narrative in order to support the applicant) and of the defence case on this issue (12/10/22; T 10).

The defence advocate had sought a Markuleski direction (in the R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (Markuleski) sense) (i.e., a direction to the effect that if the jury had doubts about the reliability of the complainant’s evidence on one count they should consider whether that affected her credibility on the remaining counts) and a Liberato direction (i.e., a direction as to the onus and standard of proof required of the prosecution, which should be given where there is a risk that the jury may be left with the impression the evidence the accused relies will only give rise to a reasonable doubt if they believe it is truthful, or that a preference for a complainant’s evidence is sufficient to establish guilt – see Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 at [73] per Bellew J, Bell CJ and Ierace J agreeing) (see 11/10/22; T 308.19).

As to the false complaint that the complainant had acknowledged she told as to the rape by “Andrew Spira”, the Crown submitted to the jury that, ultimately, it had to consider whether the lies that the complainant told as a 15 year old were fatal to her credibility, and whether a “terrible mistake made at that age means her credibility is irredeemable, that she cannot now be believed” (12/10/22; T 317.3-27). The Crown submitted that, on balance, a bad mistake of that nature made by a vulnerable 15 year old did not mean that she was forever stained as someone who could not be believed; and asked the jury to consider those lies in the wider context of the complainant’s then life. The Crown said (12/10/22; T 317.11):

The Crown referred to the complainant’s evidence that the applicant’s household was a refuge from her own misfortunes at home and submitted that the complainant’s explanation of her lies in 2006 was understandable and plausible, and came with a degree of credibility when considered in the wider context (12/10/22; T 317.29-35).

In summing up, the trial judge noted that the Crown had suggested that the jury would accept that the complainant had a genuine sense of loyalty to “A” and to the applicant’s wife who had been kind to her, and a misplaced sense of loyalty to the accused, despite his alleged behaviour (see 12/10/22; T 27). The trial judge also referred to the Crown’s suggestion that the applicant’s house was a refuge from her own misfortunes and that this spoke to the extent of her father’s mistreatment and the dysfunctional environment in which she had grown up. The applicant’s complaint (second ground of appeal) (dealt with in due course) is that the suggestion by the Crown that the 2006 false complaint was a “cry for help given [the complainant’s] continuing loyalty to the [applicant’s] family” was not supported by the evidence at trial.

In summing up, the trial judge gave a Markuleski direction (at 12/10/22; T 21), to the effect that if the jury were to find the accused not guilty of any count, particularly if that was because the jury had doubts about the reliability of the complainant’s evidence, then the jury would have to consider how that conclusion affected the consideration of the remaining counts. What the trial judge said was (12/10/22; T 21):

The trial judge also gave a Jovanovic direction to the effect that it would be wrong to conclude that the complainant was telling the truth merely because there was no apparent reason to have made up the allegations (12/10/22; T 21) (see R v Jovanovic (1997) 42 NSWLR 520 at 521-522 per Priestley JA, 535 per Sperling J). (The applicant says that such a direction applies with equal force to the situation where there is a materially false recollection and no explanation for it.)

The trial judge in summing up reminded the jury of the twelve points that the defence advocate had made as to why there was reasonable doubt as to the applicant’s guilt (see 12/10/22; T 331.44ff); (12/10/22; T 31-32). Those twelve points (some of which are overlapping) were: first, the complainant’s lack of honesty and her unreliability; second, the changing versions given by the complainant; third that he Crown case rested on the complainant’s evidence; fourth, the conflicting evidence as to whether there was a futon; fifth, the evidence that the applicant’s wife was always home when the complainant was there; sixth, the implausibility of the applicant asking the complainant to help him in the garage; seventh, the contradictory evidence as to the incident at CW; eighth, the evidence as to when “A” left the coastal location to go to CW; ninth, the false complaint made to police in May 2006; tenth, the applicant’s good character; eleventh, that the applicant had voluntarily participated in the ERISP; and, twelfth, the evidence as to the birthmark.

The jury retired to consider its verdict at 3.21pm on 13 October 2022 and returned with verdicts on the respective counts (as indicated above) at 1.16pm on 14 October 2022.

The applicant submits that the evidence and the verdicts in the present case represent the kind of affront to logic and commonsense to which reference was made in MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 (MacKenzie) at 368 per Gaudron, Gummow and Kirby JJ (see below).

In particular, the applicant submits that the not guilty verdicts in respect of the CW allegations (counts 7 and 8) and the allegations underpinning counts 10 and 11 damaged the credibility of the complainant with respect to all counts in the indictment. The applicant argues that, implicit in the acquittals on those counts, was a rejection of the complainant’s account of events.

While accepting that the jury may have rejected the CW allegations because of the unshaken evidence of family members as to the absence of opportunity, the applicant postulates that the rejection may have been because the jury was of the view that the complainant had fabricated the circumstances giving rise to those allegations. The applicant argues that, whatever the explanation for the acquittals on those counts, the rejection of the complainant’s account diminished her overall credibility. It is submitted that the only reasonable conclusion is that the jury was not satisfied beyond reasonable doubt of the truth of the complainant’s evidence.

The applicant argues that it was only in relation to counts where the applicant was able to adduce positive evidence of absence of opportunity (to set against the complainant’s account) that he was acquitted; and hence that the acquittal verdicts give rise to a real risk that the jury reasoned that, where the applicant could not adduce such evidence, he was guilty (and hence that the jury misapprehended its task). The applicant submits that a possible explanation for the different verdicts (in the MacKenzie sense) is thus that the jury misapprehended the judicial instruction as to the onus of proof. The applicant relies in this regard on the analysis in Collins v R [2020] NSWCCA 198 at [85]-[87] per Meagher JA, with whom Wilson and N Adams JJ agreed, which he submits is here applicable. The applicant points out that this was not a case where the complainant’s account of the allegations on which he was convicted was supported or corroborated so as to provide a rational basis for differentiation from the allegations on which he was acquitted.

The applicant emphasises that no instruction was given to the jury by the trial judge as to forensic prejudice by delay (for example, that while the applicant was able to adduce evidence of his case that the events did not happen in respect of some counts and not others this was no basis to conclude that those others were more reliable). The applicant concedes that no such direction was sought at trial (and that no specific forensic prejudice was identified – see AT 11.29; 25/9/23) but argues that where the issue of potential forensic prejudice by delay was not brought to the jury’s attention any advantage enjoyed by the jury in seeing and hearing the evidence is diminished (to the point that it is slight or to be excluded altogether) (the applicant referring in this context, inter alia, to Popovic v R [2016] NSWCCA 202 (Popovic) at [278]-[279] per Adamson J (as her Honour then was), with whom Beazley P (as Her Excellency then was) and R A Hulme J agreed, and Hodgson v R [2022] NSWCCA 72 (Hodgson) at [90] per Leeming JA, with whom Rothman and Hamill JJ agreed).

As noted, the applicant does not here point to specific prejudice in this regard but nevertheless says that, by virtue of the delay in complaint and the lack of specificity as to time in respect of counts for which he was convicted, he was unable to adduce any evidence of his whereabouts at the time and hence could not advance a positive case as to lack of opportunity on those counts. The applicant argues that this Court should give itself such a direction when exercising its appellate functions on the unreasonable verdict grounds (see at 25/9/23; T 33).

Complaint is also made that the Markuleski direction was brief in its terms (though this is not raised as a ground of appeal as such). Again, the applicant accepts that there was no request for a re-direction but nevertheless now complains that the jury was not told that, if it had a doubt as to the complainant’s truthfulness in respect of any count on the indictment, then the jury must have regard to it and might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts (adopting the language of Spigelman CJ in Markuleski at [189]). The applicant raises this in the context of the matters to which this Court should have regard in the exercise of its appellate functions on the unreasonable verdicts ground (25/9/23; T 11.44).

The applicant submits that this was not a case where the evidence was susceptible of the conclusion that the complainant may merely have been mistaken as to having been sexually assaulted at CW or as to the circumstances alleged by counts 10 and 11. The applicant submits that the complainant’s credibility suffered an “irremediable blow” by the acquittals; and argues that the questions raised as to her honesty were necessarily so significant as to require translation to each of the counts in respect of which he was convicted.

It is submitted that the differing verdicts are not explicable on the basis of rationally probative evidence in respect of the counts on which the applicant was convicted. The applicant says that there is nothing in the complainant’s evidence or the surrounding circumstances which makes her evidence in relation to those counts (where the evidence could not be so critically tested) than it was in relation to the other counts where it could be, and was, tested and where the applicant was acquitted.

The applicant maintains that the differential verdicts are irreconcilable; and that the inconsistency in verdicts is such as to require intervention to prevent a possible injustice.

As to the unreasonable verdict ground more generally, the applicant maintains that (in the sense considered in Pell v The Queen (2020) 268 CLR 128; [2020] HCA 12 (Pell) at [119]) there are compounding improbabilities attaching to evidence that is either unchallenged or materially not contradicted by the Crown, such as to have required the jury (acting rationally) to have entertained a doubt. The matters emphasised in oral submissions for the applicant in this context are: the complainant’s evidence as to the birthmark; the false account of sexual assault given to police in May 2006; the CW allegations being located by the complainant at “B”’s house with reference to the account of the motorcycle incident; the timing issues in relation to the 2007 diary entry (placing the first rape “some years” after the complainant had said there was not a bad relationship with the applicant in 2002); and the dispute as to whether there was a futon in the applicant’s lounge room (see 25/09/23; T 2.26ff).

The applicant says that he had no capacity (by reason of the lack of specificity as to time, the delay in complaint and forensic disadvantage) to answer the allegations of which he was convicted other than by his denials.

The applicant maintains that there remained at trial a pervasive doubt about the complainant’s honesty and veracity (even allowing for the jury’s advantage in seeing and hearing the evidence) by reference to: the “shift” in the complainant’s allegations between her police statements (noting that she had not referred to the events alleged in counts 1 and 2 in her first statement to police and did not refer to the events alleged in counts 10 and 11 in either her first or second statement to the police); the complainant’s failure to complain of the first act of intercourse to police at that time (the applicant again pointing to the inconsistencies in the diary entry as to timing and the evidence at trial as to the birthmark); the positive evidence that the applicant says supports the conclusion that the complainant had reconstructed matters without an explanation that rehabilitated her credibility (here, seemingly, a reference to the false police complaint in 2006); the photographic evidence of furniture in the lounge room which did not disclose a fold-out futon or the like; the complainant’s very serious lies to police and to JIRT about a false complaint and inadequate explanation for having done so; and the significant forensic prejudice about which the applicant complains.

The Crown submits that, on an independent assessment of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 1, 2, 4, 5, 6 and 9. The Crown submits that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of those counts; and says that (to the extent the applicant contends that the circumstance said to create unreasonableness is inconsistency) on a test of logic and reasonableness, the verdicts can be reconciled without necessarily reflecting a view that the complainant was untruthful or unreliable or that she was a person of damaged credibility.

Addressing the counts on which the applicant was acquitted, the Crown makes the following submissions.

The Crown submits that it is not necessarily implicit in the verdicts for counts 7 and 8 that the jury rejected the complainant’s evidence that the incident occurred; and says that the verdicts in respect of the CW allegations can properly be reconciled with the guilty verdicts on other counts on the basis that the assaults may have occurred as described by the complainant but she was mistaken about the location where it occurred (for example, that the incident may have occurred at CW2 not CW) and about who was present.

Reference is made to the observation of Kirk JA in Barney v R [2023] NSWCCA 85 (Barney) at [20], that it is commonplace for a witness to be reliable in relation to some matters but less reliable in respect of others, reflecting the variability and inherent fallibility of memory. The Crown says that the fact that the complainant’s evidence of having been to “B”’s house in CW was contradicted by other evidence did not establish that she was necessarily unreliable on all matters (referring to Barney at [21] per Kirk JA, citing MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA) at [34] per Gleeson CJ, Hayne and Callinan JJ). Thus, it is submitted that it is not the case that “whatever the explanation” for the acquittals, the jury rejected the whole of the complainant’s account nor that the complainant’s overall credibility was diminished, nor that the only reasonable conclusion was that the jury was not satisfied of the truth of the complainant’s evidence.

Insofar as “A” denied that the complainant ever went on a trip with the applicant’s family, contradicting the complainant’s evidence, the Crown submits that the jury may well have considered that “A” generally lacked credibility (see below).

Addressing the verdicts on counts 10 and 11, the Crown points to the complainant’s evidence that the incident in those counts (the last rape allegation) occurred before she spoke to the police (on 8 May 2006); and that the jury was aware that, to be satisfied the offences were established, the jury had to be satisfied that the offences occurred between the dates particularised on the indictment (namely, between 1 April 2006 and 30 June 2006). The Crown notes that the defence submissions at trial centred upon the asserted impossibility of the incident having occurred during that period, in light of the evidence that “A” left the coastal location on 20 March 2006. (By contrast, the date range specified on the indictment for count 9 was in the date range from 20 March 2006 to 30 June 2006.)

The Crown submits that it was well open to the jury to accept that the incident in counts 10 and 11 occurred, but to reason that the complainant was mistaken about when it occurred (and that it may have occurred some time earlier than 1 April 2006 – outside the period specified in the indictment).

The Crown argues that such a conclusion is not necessarily logically inconsistent with a finding of guilt in relation to count 9, for the following reasons.

First, that the particularised period for count 9 (as noted above) was 20 March 2006 until 30 June 2006. The Crown argues that, even if “A”’s evidence that she left the coastal location on 20 March 2006 was accepted, it still allowed for opportunity to commit the count 9 offence on that day. Further, as adverted to above, the Crown says that there are doubts as to the credibility generally of “A”’s evidence and that it is open to reject her evidence of the specific date when she left the coastal location.

Second, that (unlike for counts 10 and 11) the complainant did not see the applicant’s daughter, “A”, on the occasion of count 9. The Crown says that it is open to reason, and the jury may have reasoned, that the complainant called looking for “A” but that “A” either returned home before moving to CW later that day or did not return home and had already left for CW. It is noted that the complainant said the applicant told her that his daughter and wife would be a while (5/10/22; T 65.10-11). The Crown argues that it is rational to consider that the applicant knew well he had ample opportunity for sexual conduct with the complainant if his wife and “A” were away at CW.

The Crown says that it is not inconceivable that the complainant did not appreciate that “A” had left the coastal location on 20 March 2006, noting that on the evidence of “A” they were not best friends at the time and they had “off days” (11/10/22; T 275.15-24). The Crown says that, in any event, the complainant may have known that “A” was leaving for CW but not known the precise date.

Thus, the Crown argues that the not guilty verdicts on counts 10 and 11 did not necessarily imply a rejection of the complainant’s credibility. The Crown submits that, when considered with the verdict of guilty for count 9, the verdicts may well indicate that the jury scrupulously considered whether the Crown had proved that the offences occurred within the times particularised in the indictment.

In response to matters raised in the applicant’s submissions, the Crown makes the following submissions.

First, as to the role of exculpatory evidence, the Crown says that it should not be accepted that it was only where the applicant could demonstrate absence of opportunity (or where the complainant’s evidence could be set against other independent evidence) that the jury acquitted. As to the latter, the Crown points to the fact that the jury found the applicant guilty of the offences in counts 1 and 2, notwithstanding evidence adduced in the defence case that there was no futon or pull-out lounge of the kind described by the complainant on which the offences took place.

The Crown emphasises the clear and comprehensive directions given to the jury on the onus and burden of proof in a criminal trial and submits that it should not be concluded that the jury failed to follow those directions where that is not indicated on the record of the trial (and is inconsistent with the trust placed in juries to follow judicial directions – citing Bell P, as his Honour then was, in Hamide v R [2019] NSWCCA 219 at [119]). Further, the Crown argues that the applicant’s approach focuses upon a particular interpretation of select pieces of evidence and speculation about how the jury may or may not have analysed that evidence; whereas the task for this Court is to assess the whole of the record to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant and, in that context, whether as a matter of logic and reasonableness the verdicts can be reconciled.

The Crown argues that even if it were to be considered that, in respect of some counts, the complainant’s account did not reach the criminal standard of proof because other evidence raised a doubt, this is not to be equated with unreasonableness of guilty verdicts; referring again to the observations of Kirk JA in Barney, to the effect that here are many possible explanations other than rejection of a complainant’s credibility (referring to Barney at [10]-[14], [17]-[29], [47]-[48], [55], [66] per Kirk JA).

The Crown further says that the applicant’s submissions overlook the role of the jury in assessing the demeanour and impression given by witnesses, which the Crown says was a substantial aspect of the jury’s task in this trial (the Crown here referring to the observation by Kirk JA in Lee v R [2023] NSWCCA 203 at [29] and [33] remarking on the advantages that a jury has in seeing and hearing the witnesses give evidence in criminal trials).

The Crown suggests that issues of credibility would have weighed particularly heavily in the present case. The Crown notes that the credibility of the complainant’s evidence was called into question by the admitted false aspects of the complaint she made to police in 2006 and points to: the directions given to the jury as to credibility (12/10/22; T 3); the reminder to the jury that the only evidence in relation to the actual assaults came from the complainant, and that the jury had to assess her reliability and demeanour (12/10/22; T 316.25-27); and that the jury was told that it had to ask itself whether the complainant was being deliberately deceptive or dishonest (including in light of the false complaint in 2006) (12/10/22; T 316.29-317.35).

Second, as to the applicant’s submissions as to delay, the Crown says that the applicant has not established that there was an irregularity in his trial by the absence of a s 165B(2) of the Evidence Act 1995 (NSW) warning nor that the absence of a warning contributed to any miscarriage of justice. (The oral submissions for the applicant in effect accept that there was no such irregularity, in that it is accepted that no s 165B(2) direction was sought and no specific prejudice identified.) The Crown refers to Groundstroem v R [2013] NSWCCA 237 at [56] per Adams J (with whom Macfarlan JA and Button J agreed) in this regard.

Further, the Crown says that it is also not apparent that the applicant was significantly forensically disadvantaged, contrasting this case with that considered in Hodgson where the disadvantage was manifested in particular difficulties obtaining documentary records of the accused person’s employment and address. The Crown notes that significant forensic disadvantage is not to be established by the mere existence of a delay and it must be, and be shown to be, real or actual and not speculative (citing Brown v R [2022] NSWCCA 116 at [43] per Bell CJ, with whom Kirk JA and Price J agreed; Shanmugam v R [2021] NSWCCA 125 at [45] per Harrison J (as his Honour then was), with whom Beech-Jones (his Honour then sitting in the Supreme Court) and Cavanagh JJ agreed).

Insofar as the applicant submits that the failure to give a s 165B(2) warning means that the advantage enjoyed by the jury of seeing the witnesses give evidence is diminished to the point that it is slight or excluded altogether, the Crown says that Hodgson is not authority for such a proposition and that where the sole ground of appeal is an unreasonable verdict ground of appeal (as the Crown says is essentially the case here), then the weight to be given to the jury’s verdict may be considerable (citing The Queen v Baden Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ), contrasting this with the situation where a jury has been misdirected, or a relevant miscarriage of justice has arisen (referring to Popovic at [278] per Adamson J).

The Crown says that the lack of specificity as to time for some counts is a common feature in trials of this kind; and notes that there was no issue raised that the particularisation of the time periods in the indictment gave rise to uncertainty of pleading. The Crown further argues that difficulty in pinpointing when the incidents in counts 7, 8, 10 and 11 occurred may explain the verdicts of not guilty, favourably to the applicant on those counts.

Third, insofar as the applicant refers to an absence from the Markuleski direction given by the trial judge of terms of the kind discussed by Spigelman CJ in Markuleski at [189]-[191], the Crown points out the content of such a direction is not fixed (see Markuleski at [184]-[186]) but is to be balanced between competing considerations. It is noted that Spigelman CJ there observed that “[s]ome reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count”, and that “[s]ome form of direction assisting the jury in this respect should be given … ‘as a general rule’” (Markuleski at [186]-[187]). The Crown says that the “general rule” does not apply where the facts and the conduct of the trial do not suggest the need for a warning to restore the balance of fairness (referring to Markuleski at [187]). Further, the Crown points out that although in the applicant’s trial the defence advocate sought a Markuleski direction he did not specify the requested scope or precise terms (see 11/10/22; T 237.41; 308.19).

Insofar as the applicant contends the trial judge should have gone further to say that the jury might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts, the Crown emphasises that, in Markuleski, Spigelman CJ observed that it is not necessary to specify any precise words, which would depend on the circumstances of the case; and said that it will “often be appropriate” to direct a jury that any reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally (see Markuleski at [188]). The Crown says that this suggested direction is close in substance to the direction that was given by the trial judge in the applicant’s trial. The Crown also refers to what was said by Spigelman CJ at [198]-[191] in Markuleski; and points out that the wording discussed at [190] is an alternative to the direction in Markuleski [188], as an illustration of ways in which the trial judge in any particular case might adapt the terminology of a direction to best suit the case.

Fourth, as to the various matters raised by the applicant as to the complainant’s honesty and veracity (which the applicant submits gave rise to problems even allowing for the advantage enjoyed by the jury), the Crown’s response in essence is that none of those matters must necessarily have given rise to a reasonable doubt as to the applicant’s guilt.

As to the fact that the complainant’s first police statement did not refer to the conduct in counts 1 and 2, the Crown submits that the jury was entitled to accept the complainant’s evidence that she did not intentionally leave out this material from her first statement but was scared (6/10/22; T 107.6-16); and that she believed that she had told the police the full story when she gave her second statement (6/10/22; T 109.44) but that she remembered things later as she spoke about the incident (6/10/22; T 110.5-29) and recalled things as she discussed them with her counsellor (6/10/22; T 110.34). The Crown submits that the jury was not obliged to conclude that this evidence indicated unreliability or lack of credibility.

As to the applicant’s assertion of timing inconsistencies in the diary entry of 17 February 2007, the Crown submits that the timeframes implied by the terms of the diary entry did not give rise to inconsistencies which necessitated a reasonable doubt by the jury in respect of counts 1 and 2 (or of any of the counts on the indictment). The Crown argues that the applicant’s submission overstates the precision which may reasonably be expected in such a diary; and says that it should not be analysed as though it was evidence recorded in a police statement or given on oath.

The Crown refers to expressions in the diary entry which indicate generality in reference to timeframes (such as “[a]fter a while”) and points out that the diary entry also indicates many minor incidents which were relevant as context evidence and explain a gradual escalation of the applicant’s behaviour towards the complainant. The Crown argues that it is understandable that, in February 2007, recalling that multitude of incidents, the complainant may have thought the build-up to the more serious incidents was longer in time than in fact it was. Further, the Crown emphasises that the complainant was 15 years old in February 2007 and submits that allowance should be made for her age (and her then personal circumstances – a childhood characterised by extreme domestic violence) when assessing her ability accurately to recall times. The Crown says that the focus of the diary entry was on the complainant’s experiences, much less than the timing of those experiences. The Crown also argues that the recording of five occasions of sexual assault in the diary accorded with counts on the indictment; and says that those occasions may reasonably be expected to have been more memorable to the complainant in 2007 than the duration of a preceding period of grooming or similar conduct. It is noted that in W v R [2014] NSWCCA 110 account was taken of the young age (11-14) at which the complainant had kept a diary in which she had omitted reference to certain instances of sexual abuse (see at [153]-[155] per Bathurst CJ) when assessing the relevant entries.

The Crown also says that it was not put to the complainant at trial that the timeframes indicated by her diary entry were inconsistent with her evidence. The Crown also points to the diary entry as recording the change in the applicant’s behaviour over time as not inconsistent with the complainant’s evidence that the applicant was kind to her in 2002.

The Crown maintains that it is open to this Court (and was open to the jury) to consider that the references now impugned by the applicant were not significant in all the circumstances.

As to the evidence in relation to the “mark” on the applicant’s groin area, the Crown accepts that the photographs of the applicant’s groin area demonstrated the absence of a mark (Ex 4) (though pointing out that this is not a case where the complainant mistook an image of her assailant).

The Crown notes that the complainant did not give evidence about those photographs and that the jury witnessed the complainant’s distress when it was sought to show her the photographs (7/10/22; T 164-165). In closing submissions to the jury, the Crown submitted that the complainant’s belief was honestly held but mistaken, and it would be of little utility to put forward evidence that could be so easily disproved (12/10/22; T 320.29-38). It is noted that the defence advocate acknowledged logic in the Crown’s submission (12/10/22; T 349.10-18).

The Crown submits that the more compelling conclusion is that the complainant was mistaken, noting that a large number of the offences occurred at night and the evidence did not establish when or where she was, or the surrounding circumstances, when she thought she saw a birthmark. The Crown also points out that the complainant had said that she did not remember whether it was to the side or in the middle, indicating a degree of uncertainty. The Crown submits that such a mistake does not, and the jury was entitled to consider it did not, have a material effect on an assessment of her reliability.

As to the omission from the complainant’s first and second statements of the incident the subject of counts 10 and 11, the Crown points to the explanation given by the complainant that it was not intentional and as to the circumstances in which it took her time to tell police about it.

As to the “futon” and photographic evidence to which the applicant points as not showing a fold-out futon, or similar item, the Crown points out that the photographs in Exhibit 2 preceded the first period of offending (noting the December 2001 time stamps on them); and argues that the difference in the blinds behind the lounge in Exhibit 2 compared with the curtain behind the lounge on 27 December 2001 suggests some rearrangement of furniture in that period. It is noted that “A” said that her mother often changed furniture around (as referred to above).

The Crown argues that it is, and was, well open otherwise to accept the complainant’s and other witnesses’ evidence that the applicant’s lounge room contained a futon or fold-out type lounge at relevant times, and to reject evidence given by “A”, and ERISP answers by the applicant, to the contrary.

To the extent that “A” denied the existence of a fold-out lounge, the Crown says that there are and were sound reasons to reject her evidence as generally lacking credibility. It is submitted that “A” gave implausible evidence, denying propositions which might not be thought to be contentious and at times contradicting answers given by the applicant in his ERISP interview.

By way of example, the Crown points to the following evidence: that “A” did not think that the complainant and the complainant’s mother came to her house to prepare for the Year 6 formal (contradicted by the photograph tendered as Ex B) (11/10/22; T 247.29-38, 267.34); “A” denied that after December 2001, a piece of furniture was placed in the lounge room which could fold out (11/10/22; T 280.10) (whereas the applicant said at some point a recliner was in the room) (ERISP Q/A 196-202); “A” denied there ever being occasions when the applicant was in the same room as her and the complainant and said “no, never” when asked if she ever recalled seeing the applicant interact with the complainant in any way (11/10/22; T 247.27-32) (whereas the applicant did say he would kiss the complainant goodnight if she slept over) (ERISP Q/A 304); “A” said the TV was never on, on any occasion when she and the complainant were in the lounge room, because they were out and about doing things (11/10/22; T 259.3-5) (whereas the applicant said the complainant and his daughter would be in the lounge room or the kitchen at his house (ERISP Q/A 144), or “havin’ a yarn” like normal girls, and he would also be in the house (ERISP Q/A 83-84)); “A” said she was wholly unaware that the complainant had a tough family life, although said that her father was “off his face on alcohol” at times, and aggressive at times (11/10/22; T 250-37-251.6); “A” denied recalling any occasion when she, her mother and the applicant went shopping with the complainant, and denied recalling any occasion when she went shopping with the applicant (11/10/22; T 251.17-23) (whereas the applicant said he had taken the complainant shopping probably once and he recalled an occasion when his wife bought the complainant a “pair of somethin’” (see ERISP Q/A 81; 261); “A” initially denied the lounge in Ex 2 was in front of the window facing the carport, then shown the first photo, agreed it was (11/10/22; T 265.3-31).

As to the false complaint made to police in 2006, the Crown cavils with the submission by the applicant that the complainant’s explanation for this was inadequate. The Crown argues that there are strong reasons to conclude that the false complaint did not irreparably damage the credibility of the complainant. In particular, the Crown points to the psychological burdens under which the complainant was operating at the time and the effect of those burdens on her decision making (noting that the complainant acknowledged in her evidence that her decision making was poor). The Crown says that the complainant’s home life was dominated by extreme physical, emotional and, at least as a witness, sexual violence, and that, by 2006, the complainant was engaging in substantial drug use, self-harming, missing school, and approaching a mental crisis leading to admission to a mental health facility. The Crown submits that it is entirely plausible that, however unhappy the situation at the applicant’s home, the complainant’s home life was markedly worse, giving rise to a most difficult situation for a 15-year-old; and that to dismiss her explanation as “inadequate” understates the severity of her situation at the time.

The Crown notes that evidence of the content and circumstances of the “false complaint” were adduced in detail at trial. The Crown submits that neither this Court is, nor was the jury, obliged to conclude from the bare fact of the untrue aspects of the complaint that the complainant was not a credible witness. The Crown says that it is apparent that the jury did not consider it to have rendered her evidence to be unacceptable or lacking credibility.

As to the reference by the applicant to the lack of eyewitness corroboration, the Crown notes that the fact that a complainant’s evidence was uncorroborated does not mean that the jury must have entertained a reasonable doubt (citing Pell at [53]). The Crown points to the recognition by McCallum JA, as her Honour then was, in SM v R [2022] NSWCCA 13 at [47] that lack of independent corroboration is not an unusual feature of cases of this kind. The Crown submits that the only relevance of a lack of eyewitness support to the consideration by this Court, in the present case, is that it identifies the context in which the central issue of reliability of the evidence of the complainant is to be assessed.

The applicant complains that the last sentence of the submission by the Crown in closing address that “[w]hen you look at the 2006 false complaint, one has to consider whether it was a cry for help given her continuing loyalty to the [applicant’s] family” was not supported by the evidence at trial. The applicant says that the complainant did not testify that her false incrimination of another in respect of a sexual assault was “a cry for help out of a continuing loyalty to the [applicant’s] family”.

Insofar as the complainant said that the false complaint was because she was scared of her father and wanted to protect the applicant and his family, the applicant says that it was not resolved how the false complaint had anything to do with the complainant’s father and it is not clear how a false police complaint protected the applicant and his family. The applicant points out that the complainant’s account as to why she lied was the subject of extensive cross-examination (see 6/10/22; T 155-162) in which the complainant, among other things, suggested that because she provided details of the car that may have been parked outside the applicant’s house at the time the police might have gone inside; that she had been stalked and threatened by “Andrew” and that she did not know why she did not tell the police about the applicant. The applicant notes that there was no re-examination as to this evidence.

The applicant complains that the Crown’s “unwarranted extrapolation” from the evidence to the effect that the lies tended to incriminate the applicant for the counts on the indictment invited the jury to reason towards the applicant’s guilt from something which, properly understood, damaged the Crown case. The applicant says that the opinion proffered by the Crown required, at the very least, directions to dispel the inappropriate sting in the address (citing R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1); noting that the trial judge repeated the Crown submissions without censure. The applicant complains that this was a wholly prejudicial submission for the prosecutor to make (citing Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [24]) and that it eclipsed a major weakness in the Crown case (referring in this context to Anderson v R (1991) 53 A Crim R 421 at 449 per Gleeson CJ as to the mischief in that case where the Crown was “permitted, in an unfair manner, to obscure a major difficulty concerning the reliability of the evidence of its principal witness”).

The Crown says that the impugned submission permissibly invited the jury to draw an inference which was open on the evidence at trial, pointing in this regard to the complainant’s evidence in chief (6/10/22; T 80.25-33) where the complainant said that she was scared of her father and wanted to protect the applicant and his family and that:

The Crown submits that, considered as a whole and in context, the complainant was here being asked (not why she lied about “Andrew” sexually assaulting her but rather) first, what were the lies she told in the JIRT interview and then why she decided to tell police lies within the interview. The Crown says that the focus of the second question was why the complainant decided to tell lies to the police; and that this invited a response, which the complainant gave, explaining why she decided to tell police something that was not the truth.

The Crown says that the complainant’s answer explained the connection between her father, her lies to police, and the applicant’s offending: that she was scared of her father and wanted to be able still to go to the relatively safe applicant family house to be away from her father, the point being that it felt safer than her own home; but, on the complainant’s evidence, at the same time, she was experiencing escalating instances of sexual assault by the applicant. The Crown says that, as the complainant said, she just wanted someone to know what has happening to her, and she was also scared.

Reference is also made to the complainant’s evidence in cross-examination, after being shown the police officer’s notebook statement from 2006 (7/10/22; T 160.33-161.10), in which the complainant said “no” to the question whether she was hoping “Andrew” was going to be charged as a result of her complaint (of having been sexually assaulted). The Crown emphasises that in response to that question the complainant said “no” because (7/10/22; T 162.5-12):

Therefore, the Crown says that the complainant explained that she “just wanted somebody to know that those things were happening”. Reference is also made to the exchange (7/10/22; T 162.18-24):

The Crown says that, relevant to considering this ground, is the evidence that was given by the complainant in cross-examination in relation to count 4, where the complainant said that she protected the applicant all the time (6/10/22; T 124.15-19).

Further, the Crown says that the diary entry augments in some respects the evidence on this topic, noting that the complainant recorded that as incidents became more frequent, “[h]owever, I wasn’t at home and I wasn’t being hurt”; and that even when things escalated and she recorded he raped her, she stated, “[a]gain this was better than being at home”.

The Crown submits that in light of all of this evidence the submission made by the Crown to the jury as to the inference the jury might draw in relation to the false complaint was one that properly reflected the complainant’s evidence. It is submitted that it was not necessary for the Crown to re-examine the complainant, because she had given the relevant explanation in evidence already in examination-in-chief. Further, the Crown contends that the complainant’s explanation was not undermined by her cross-examination, in which the complainant stated that she just wanted somebody to know what was happening (which the Crown submits may properly be discerned as encapsulating a cry for help).

The principles applicable when an appellant invokes an unreasonable verdict ground (the first limb of s 6(1) of the Criminal Appeal Act) are well-known (see MFA at [34]; [36]; [44]-[51]). The relevant question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact on which the appellate court must make its own independent assessment of the evidence (see Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 (Dansie) at [7]-[15]; M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63 (M) per Mason CJ, Deane, Dawson and Toohey JJ). They have been the subject of recent analysis in this Court (see Hanna v R [2023] NSWCCA 182 at [18]-[26] per Leeming JA (with whom Yehia and Weinstein JJ agreed); which analysis was adopted in Russell v R [2023] NSWCCA 196 at [82]-[90] by Button J (with whom Wilson and Sweeney JJ agreed)).

In the present case, the contention that the verdicts of guilty are unreasonable is based not only on their asserted inconsistency with the verdicts of not guilty (i.e., an “inconsistency of verdicts” ground of appeal) but also on the asserted compounding improbabilities of the complainant’s evidence in the sense discussed in Pell at [119].

On an inconsistency of verdicts ground of appeal, the question (focussing on a consideration of the acquittals) is ultimately whether the different verdicts can be reconciled (see Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56) (Jones); the test being one of logic and reasonableness. That said, the not guilty verdicts must be considered in the context of the whole of the evidence and circumstances of the trial, which necessarily includes the guilty verdicts.

In MacKenzie it was said that what must be shown is that the verdicts cannot stand together; namely, that “no reasonable jury who applied their mind properly to the facts in the case could have arrived at the conclusion” (see at 366 per Gaudron, Gummow and Kirby JJ). The plurality there said that if there is a proper way by which the appellate court may reconcile the verdicts, allowing the court to conclude that the jury properly performed their functions, then that conclusion will generally be accepted (MacKenzie at 367 per Gaudron, Gummow and Kirby JJ). The burden of persuasion in establishing inconsistency rests upon the applicant (Barney at [14] per Kirk JA).

The verdicts of not guilty must also be considered in the light of relevant directions given to the jury (for example, as to the need to give separate consideration to each count, directions on accepting and/or rejecting the evidence of witnesses in part or in whole, and any such direction in accordance with Markuleski (see MFA at [34] per Gleeson CJ, Hayne and Callinan JJ)).

A verdict of not guilty does not necessarily imply that the complainant has been disbelieved and there may be legitimate reasons as to why the jury returned a verdict of not guilty on some counts and not others (see MFA at [34] per Gleeson CJ, Hayne and Callinan JJ). It has been recognised, for example, that where there is no objective evidence of sexual offences the jury may require some supporting evidence before they are satisfied of the complainant’s evidence beyond reasonable doubt; and the jury may perceive that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters or has been shown otherwise to be more reliable about some parts of his or her evidence than about others (MFA at [34]). In Barney, Kirk JA identified a range of possible explanations for a jury to reach different verdicts on different counts against the one accused, even where the main or sole evidence against the accused is that of one complainant (at [11]).

It is relevant to consider whether (as the applicant here contends is the case), the jury’s findings of not guilty on particular counts damaged the complainant’s credibility with respect to all counts on the indictment. So, for example, in Jones, the Court considered that it was implicit in the acquittal on the second count that the jury had rejected the complainant’s account in respect of that count and that it was “difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts” given that “[t]here [was] nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count” (Jones at 453 per Gaudron, McHugh and Gummow JJ).

In TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128] Simpson J (as her Honour then was) (with whom McClellan CJ at CL and Latham J agreed) emphasised that “[i]n determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis”. Her Honour also emphasised the need for focus on the acquittals, saying that if there is “any rational explanation for the acquittals other than doubts about the complainant’s credibility, then Jones has no application” (see at [130]); framing the central question as being “whether the acquittals are attributable only, or principally, to doubt about a complainant’s credibility”. In Barney, Kirk JA noted that an appeal may succeed on an inconsistency of verdicts ground notwithstanding that no such shortcomings or inadequacies as required in M type cases can be demonstrated (Barney at [7], citing TK at [126]).

As noted above, the applicant argues that the different verdicts in the present case are an affront to logic and commonsense, invoking what was said in MacKenzie (at 368 per Gaudron, Gummow and Kirby JJ), namely that:

Since much emphasis was placed in the present case on the different verdicts, it is convenient to deal first with the inconsistency of verdicts ground. Relevantly, the acquittal verdicts to be focussed on in the present case are those in respect of counts 7 and 8 (the CW allegations), on the one hand, and counts 10 and 11 (the anal penetration incident) on the other hand. That is because the acquittal in respect of count 3 was a directed verdict, the trial judge having concluded that as a matter of law the evidence could not establish the essential elements of that offence. The Crown did not oppose the application for a directed verdict.

In my opinion there is a readily explicable and rational explanation for the acquittal in respect of counts 7 and 8 other than a doubt as to the overall credibility of the complainant; and that explanation lies in the fact that it was an essential element of the offending as charged on the indictment that it occurred at CW and the evidence gave rise to a reasonable doubt as to any offence having occurred at that location. The evidence of “B” and “C” was that they had never lived in a house in CW. However, the evidence of the complainant was that she believed the house where the offending took place was in CW and was the house in which “B” and her family lived. The house in which “A”’s other sister “J” lived in CW did not match the description given by the complainant of the property at which the offending occurred; and there seems to have been no suggestion that the offending occurred at the grandparents’ property which was the only other residence in CW with which the applicant had any connection. A reasonable doubt as to where the alleged offending had taken place could arise without irreparably undermining the complainant’s overall credibility. (So much appears to be inherent in the concern raised by the defence advocate as to the prospect that the jury might consider that the offending conduct had taken place at CW2 , where “B” and her family in fact lived; that being the concern that led to the request that the trial judge direct the jury that it was an essential element of the offending charged in counts 7 and 8 that it occurred at CW.)

There is also in my opinion a rational explanation for the acquittals in respect of counts 10 and 11 that does not depend on a doubt as to the overall credibility of the complainant – that being the doubt as to the time at which “A” left the coastal location to move to CW. On “A”’s evidence, she left the coastal location on 20 March 2006 whereas the offending conduct for counts 10 and 11 (on an occasion when the complainant placed “A” as being at the applicant’s home) was in the period from 1 April 2006. That there was doubt about the departure of “A” from the coastal location can be seen from the fact that “E” had expressed confidence that it was in the second half or towards the end of Year 10 at school. It may well have been that the jury considered “A”’s evidence on this issue to be the more plausible or at least to have raised a reasonable doubt on these counts, without this irreparably undermining the credibility of the complainant.

In other words, I do not consider that the verdicts of not guilty necessarily imply that the complainant was disbelieved on her account that offending of the kind alleged had taken place, as opposed to the jury having a reasonable doubt as to whether the offending conduct took place at the location specified in the indictment for counts 7 and 8 or within the time range specified in the indictment for counts 10 and 11. I do not accept that the not guilty verdicts make it difficult to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the other counts on which guilty verdicts were returned. This is not a case where it can be said that there was nothing in the complainant’s evidence or the surrounding circumstances which would give any ground for supposing that her evidence was more reliable in relation to those counts on which a guilty verdict was pronounced than it was in relation to the counts on which the applicant was acquitted (to use the language of the cases referred to above).

Rather, it seems to me that the different verdicts in the present case demonstrate that the jury was properly considering each count separately, as the jury was instructed to do.

There is no general rule that where multiple offences are alleged involving one complainant, verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable and that the complainant is a person of damaged credibility (Barney at [13], citing MFA at [35], [89]). The significance of verdicts of not guilty must necessarily be considered in the light of the facts and circumstances of the particular case (Barney at [13], citing MFA at [34] and Markuleski at [65]). Having assessed afresh the evidence (and accepting that there was a difference in the specificity of the evidence for some of the counts – as summarised earlier); as well as the inherent difficulty for the defence in light of the delay in the making of the allegations, I am satisfied that there is a rational explanation for the different verdicts and one which does not undermine the complainant’s credibility on the counts of which the applicant was convicted.

Turning then to the broader basis on which the unreasonable verdict ground is raised (i.e., leaving aside the perceived inconsistency in the verdicts), in M the High Court made clear (and it has reiterated this in Dansie) that an appellate court must determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offences for which he has been convicted (Dansie at [7]). With that in mind, I have reviewed all of the evidence (although of course I do not have the benefit of having observed and heard the witnesses, an advantage enjoyed by the jury).

As to the issues emphasised by the applicant as to the credibility and reliability of the complainant’s evidence, these must be seen in the context that there are also issues as to the credibility and reliability of “A”’s evidence (as highlighted by the Crown); and must be considered in the light of the particular circumstances of the complainant (a young girl when the offending conduct commenced and one who had a troubled domestic life and was herself troubled at the time (self-harming and using cannabis at a young age)).

In particular, I do not consider that the omission from the complainant’s first statements of an account of the earliest counts (or the last count) or the changing versions of the complainant’s accounts gives rise to a reasonable doubt as to her overall credibility. The explanation that the complainant was scared at the time; and that she remembered things while she was being counselled or as she was later talking to the police is not uncommon with victims of sexual abuse. As to the making of the false complaint to police in May 2006, the complainant did proffer an explanation for this (namely, her concern to protect the applicant and his family). While that explanation on one view is not logical (since the account that she was giving would not have implicated the applicant), it is explicable insofar as the complainant’s relatively contemporaneous account of events (as per the 2007 diary entry) indicates a clear comparison between the domestic troubles in the complainant’s own home and her relationship within the applicant’s family.

As to the diary entry itself, the vagueness of the timing of events described in the diary, coupled with the fact that on the complainant’s account it was written some after the offending first commenced, to my mind diminish the significance placed by the applicant on the reference to the escalation and rape being “some years” after the complainant had described the relationship as being not bad.

The most troubling aspect of the complainant’s evidence is as to the non-existent birth mark. However, while I accept that the photograph in evidence does not show the birthmark, it is not insignificant that the complainant displayed such distress at the idea of viewing the photograph that she was not pressed to do so. While the applicant regards this as a neutral factor (see 25/09/23; T 3.23-29), the jury was in the best position to observe this and to draw conclusions from this as to the complainant’s credibility. It is possible that the complainant was simply mistaken as to the mark. It seems hardly likely that the complainant would fabricate evidence that could so readily be disproved.

Finally, as to the furniture in the house (and, in particular, whether there was a futon or fold-out lounge), it is significant that the complainant’s evidence as to sleeping on a futon or fold-out lounge was consistent with “E”’s recollection that she also slept on a futon at the applicant’s house. The photographs relied on by the defence as showing that the lounge was not a fold-out lounge were time-stamped December 2001, about a year before the offending commenced. The suggestion that the furniture did not ever change is inconsistent with the evidence that the applicant’s wife was always changing around the furniture; and “A”’s denial that there was a fold-out lounge suffers from the fact that other evidence (as to the lounge room) was inconsistent with the photographs. The complainant’s mother also referred to sleeping on a futon, but I place less weight on that evidence than I do on the evidence from “E”, given the generality of the evidence that the complainant’s mother gave as to having slept at the applicant’s house and my impression from the transcript that “E” was a more impartial witness.

There is no doubt that there were aspects of the complainant’s account that were contradicted by other witnesses and that there were issues of credibility and reliability in relation to her evidence. The High Court in M (and later in Dansie) observed that doubts experienced by an appellate court are often doubts which the jury ought to have experienced. Nevertheless, the advantage that the jury would have had in seeing and hearing the complainant and other witnesses give evidence (see Dansie at [14]-[17], for example) must also be considered, as such an advantage is capable of resolving such doubts.

In the present case, where credibility and reliability of the complainant was a central issue, the jury had the distinct advantage in seeing and hearing firsthand both her evidence and that of other witnesses, and in particular “A”, whose credibility and reliability was also in issue. In my assessment of the evidence, the discrepancies or inconsistencies to which the applicant has pointed are ones that in general are capable of resolution by reference to the assessment formed by the jury as to the complainant’s credibility and reliability (and, in some instances by contrast with that of “A”). So, for example, the complainant’s explanation for the false complaint made to the police in 2006 and as to the successive iterations of the complaints made in her police statements. So, also, her belief that the applicant did indeed have a mark in his groin area. The jury, for example, was best placed to observe the distress of the complainant at the suggestion that she might have to look at the photographs of the applicant’s groin area, which may be expected to have formed part of the jury’s assessment of her overall credibility (particularly in face of the compelling evidence that there was no such mark visible in the redacted photographs).

This is not a case (contrary to the applicant’s submissions) where there are compounding improbabilities of the kind considered in Pell such as to cause me to have a reasonable doubt as to the applicant’s guilt and which cannot be resolved by giving weight to the jury’s advantage of seeing and hearing the witnesses. I have referred above to the logical explanation for the different verdicts on counts 7-8 and 10-11. The matters to which the applicant has pointed in relation to the various counts do not cause me to have a reasonable doubt as to his guilt that cannot be resolved by reference to the jury’s acceptance of the complainant’s credibility in relation to the counts on which he was convicted.

It was open on the evidence before the jury to be satisfied beyond a reasonable doubt that the applicant was guilty of the relevant counts. Having considered the evidence carefully, and giving appropriate weight to the jury’s distinct advantage in the present case in seeing and hearing the evidence, I am not left with a reasonable doubt as to the applicant’s guilt.

Ground 1 should be dismissed.

As to the second ground of appeal (misnumbered in the notice of appeal as ground 3), I do not accept that there was not a basis in the evidence for the Crown’s submission that is here impugned (i.e., the submission that the 2006 false complaint may have been a cry for help). Read in context, what the complainant was being asked was why she had lied in the JIRT interview and her response was that she wanted to protect the applicant. The only way that this could protect the applicant was by concealing him as the offender. The complainant by the time of the JIRT interview had made a disclosure of sexual abuse and was then faced with questions as to the alleged assault. It is not implausible that the complainant was not wishing to be deprived of her then refuge from her own home and was therefore in an invidious position. It is clear from DSC Wilkinson’s evidence that when the complainant ultimately made the complaint in 2020 that the complainant was conscious of the fact that she had made the earlier false complaint and that this had been a factor delaying the making of the 2020 complaints.

Thus, I consider that there was a legitimate basis for the submission to be put and I do not consider that the making of the submission improperly carried a “sting” that it was incumbent on the trial judge to cure. I consider that the trial judge fairly summarised to the jury the various aspects of the evidence to which the defence advocate had pointed as matters that the defence advocate submitted should raise a reasonable doubt in their minds; and in that context the reference to the Crown’s submission as to the 2006 false complaint was not apt to occasion a miscarriage of justice (as here suggested).

Further, the failure of the defence advocate to raise this issue at the trial (neither requesting the Crown to withdraw the remark nor asking the trial judge to give a direction about it) suggests that, in the atmosphere of the trial, this was not thought to be of any importance (see Latu v R [2023] NSWCCA 19 at [54]-[56] per Fagan J, with whom Bell CJ and Davies J agreed).

Accordingly, the second ground of appeal is not made good.

Therefore, I consider that the following orders should be made:

DAVIES J: I have had the considerable advantage of reading in draft the judgment of Ward P.

From my own examination of the evidence, I am satisfied that the verdicts of not guilty in relation to counts 7 and 8 are entirely explicable by the fact that the indictment charged that the offending took place at CW. The evidence about that property which the complainant described was such that the jury ought to have had a doubt that the offending took place at that property. Similarly, the verdicts of not guilty in relation to counts 10 and 11 are explicable by reason of the date range specified in the charges and the evidence of “A” about when she moved from the coastal location. It does not follow from those acquittals that the jury ought to have disbelieved the complainant’s evidence in relation to the other counts. My examination of the evidence generally is such that I do not have any doubt about the guilt of the applicant in respect of those counts where he was found guilty.

I otherwise agree with Ward P’s reasons and the orders her Honour proposes.

N ADAMS J: I too have had the considerable advantage of reading the judgment of Ward P in draft. I agree with the orders proposed for the reasons provided by her Honour. As for ground 1, I am satisfied, for the reasons provided by her Honour, that the acquittals on counts 7 and 8 and on counts 10 and 11 are explicable for reasons other than a rejection of the complainant’s credibility. I am also satisfied that the convictions are otherwise not unreasonable. I have considered for myself whether the evidence is sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt. In doing so, I have considered the twelve points put to the jury by the defence advocate at trial as to why it was contended that there is a reasonable doubt as to the applicant’s guilt (see above at [223]). I agree with Ward P that the most troubling of these arguments concerns the complainant’s evidence of the non-existent birth mark. It seems to me that this aspect of the complainant’s evidence is capable of giving rise to a doubt about the guilt of the applicant, but I am satisfied that the “jury's advantage in seeing and hearing the evidence is capable of resolving [that] doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494.

As for the second ground of appeal, I am satisfied that there was a proper basis to suggest in the Crown closing address that the 2006 complaint (falsely attributing blame to a person other than the applicant) could be seen as a “cry for help”. In any event, no complaint was made about this aspect of the Crown closing address at trial. As this court (Giles JA; Hulme and Hislop JJ) observed in Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [12], there are three possible explanations for why counsel might fail to complain of an issue which is raised on appeal for the first time: either it was overlooked or counsel was not aware of the law on the subject (there was no suggestion of that in this case) or, secondly, counsel deliberately said nothing hoping to gain a tactical advantage at a later stage; or, thirdly, no objection was made because in the atmosphere of the trial, counsel saw no injustice or error in what was done. I am satisfied that in this case the failure to complain is consistent with the third of these possible explanations.