Radburn (a pseudonym) v R

1. [1]

   LEEMING JA: The applicant stood trial in the District Court constituted by judge and jury in 2023, aged 62, charged on an indictment with one count of having sexual intercourse with a child under the age of 10, namely his granddaughter when she was between 3 and 6 years old, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The Crown case was that the sexual intercourse within the meaning of s 61HA occurred through digital penetration of her vagina. There was an alternative count of intentionally touching her, contrary to s 66DA(a) of the Crimes Act. After a trial of some six days, the jury found him guilty on the principal charge, which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. He was sentenced in April 2024 to a term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 4 months back-dated to reflect time in custody. He seeks leave to appeal against his conviction and his sentence. His notice of appeal was filed on 16 April 2025, after two years of the sentence had been served; the appeal was allocated a hearing date less than three months later.

2. [2]

   Section 578A of the Crimes Act prohibits the publication of anything which might identify the granddaughter. Radburn is a pseudonym.

3. [3]

   None of the grounds of appeal involves a question of law alone, so that leave is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The fourth is that the guilty verdict is unreasonable and cannot be supported having regard to the evidence. The first, second and third reflect points not raised at trial, and therefore also require leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). They are:

   1. (1)

      “Her Honour erred in not giving a full good character direction”;

   2. (2)

      “Her Honour erred in directing the jury that they could not conclude that the complainant did not suffer any injury, because there was no evidence that she was seen by a doctor and suffered an injury”, and

   3. (3)

      “Her Honour erred in directing the jury that there was no real allegation put to any of the witnesses that there was deliberate lying”.

4. [4]

   The applicant also appeals against the sentence, on the single ground that it was manifestly excessive.

Factual background

1. [5]

   The applicant was the complainant’s maternal grandfather, who with his wife assisted their daughter to care for her two young children after she separated from the complainant’s father (the applicant’s son-in-law).

2. [6]

   The complainant’s parents married in 2010 and had two children, the complainant’s brother who was born in 2012, and the complainant who was born in 2016. The couple separated in 2018. The parents thereafter shared custody of the children, with the father having them on Monday and Tuesday nights, the mother on Wednesday and Thursday nights, and the parents alternating for Friday, Saturday and Sunday nights. In January 2020, the complainant’s mother moved to an address in Jordan Springs where she resided until at least July 2022. The charged offending was said to have occurred at this address, hence the 2½ year period in the indictment.

3. [7]

   It was uncontroversial that the applicant and his wife would regularly pick up the children from school, take them home, take the complainant to dance class, and stay over in their daughter’s home in Jordan Springs until the children went to bed. The applicant and his wife would regularly sleep over when the complainant was in day-care, but less often after she commenced kindergarten in 2021. They also assisted with home-schooling during the COVID-19 lockdown period in 2021.

4. [8]

   The complainant’s brother’s bedroom was double sized, and was used as a play room. It contained a single bed for the complainant’s brother. It also contained a larger bed where the applicant and his wife would sleep over.

5. [9]

   The Crown case was that one time when the complainant’s brother was on his bed watching YouTube and listening through headphones, and while the complainant was on the middle of the double bed, the applicant placed his finger inside her vagina. She said that it hurt. The applicant’s wife was watching television in the lounge room. The complainant said, in the first of two recorded interviews conducted by a police officer, that this was the “last time” it happened.

6. [10]

   The Crown case relied on the evidence of the complainant who participated in two recorded interviews on 27 July 2022 and 30 January 2023, when she was 6 years old, and who gave evidence at the trial, aged 7.

7. [11]

   The allegations had come to light when the complainant and her brother were at their father’s home. The father said that he heard his son yell out “stop” repeatedly when his children were having a shower. He said his son complained that the complainant “keeps slapping my bum”. That led to the father telling the complainant that “private parts are private, and only you touch them”, to which the complainant said words to the effect of “[s]ometimes Grampy gets my finger and places it on myself” and “[s]ometimes he does and sometimes he touches me too and says it’s our little secret. And sometimes he likes to lick too”. The father said that the complainant told him that it happened “[a]ll the time”.

8. [12]

   The complainant’s father (the applicant’s son-in-law) was called in the Crown case. He gave evidence of what he was told by his daughter on Monday 25 July 2022, that he immediately called the mother, and that the pair and both children attended Penrith Police Station shortly thereafter.

9. [13]

   He was cross-examined as to whether anything he had told her might influence her account, and said:

10. [14]

    He denied that he had influenced his daughter’s account.

11. [15]

    The complainant’s mother was called in the Crown case. She gave evidence that she thought there was a “normal relationship between a grandfather and a granddaughter”. She also gave evidence of receiving a call from the complainant’s father, who was “angry on the phone” and who told her that her daughter had made a complaint to him about the applicant. She confirmed that she had attended the police station when the complainant participated in interviews, that she had travelled there separately from the father, and that she could not remember whether she or he had taken the complainant.

12. [16]

    There were some inconsistencies in the complainant’s evidence which were central to the fourth ground and which are best addressed when dealing with that ground. In her second but not in her first police interview, the complainant said that similar conduct had occurred when she was at the applicant’s house. That evidence was the subject of a ruling that it was admissible as tendency evidence. No challenge is made to that ruling.

13. [17]

    I shall address the complainant’s evidence at trial, where substantial portions of both police interviews were played to the jury, and where she was also cross-examined (using an audio-visual link so that she was remote from the courtroom) when addressing the grounds of appeal to which it relates.

14. [18]

    The applicant gave evidence at trial. He admitted being present with the complainant on many occasions, but denied all of the offending. He said that his wife “frequently” entered the room when he was minding his grandchildren. He confirmed what had been elicited from an officer involved in the investigation, namely, that he had no criminal record. He was cross-examined, concisely and indeed fairly perfunctorily, although since this case in substance turned on the recollection of a very young child and the applicant, that is not a criticism.

15. [19]

    The defence case was that the complainant’s evidence was unreliable, and arose from leading questions from her father and from investigating police.

Ground 4

1. [20]

   It is sensible to address ground 4 first. That ground is the only ground which leads to an acquittal, as opposed to a retrial, as well as being the only ground which does not require leave under r 4.15.

2. [21]

   This ground was developed very concisely. The written submissions, aside from quotations from Guo v The Queen [2020] NSWCCA 40 at [3], M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63 and Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]-[39], occupied less than two pages, and highlighted six deficiencies in the Crown case which, so it was said, would lead to this Court being satisfied that the verdict could not stand. Oral submissions elaborated those six deficiencies, but once again were concise, occupying less than two pages of transcript.

3. [22]

   The six points were as follows:

   1. (1)

      In the first police interview, the complainant said that she liked it when the applicant slept over, and there was nothing she didn’t like about him or that he did which made her uncomfortable, until she was asked “a very leading question”, which was “[s]omeone told me that your dad had a conversation with you about private parts”.

   2. (2)

      The complainant said only that the applicant had touched her with his finger, and made no mention of being asked to touch herself, and denied that he had used his mouth, contrary to what her father said she had told him.

   3. (3)

      The complainant gave some evidence suggesting that she was unsure whether his finger was outside or underneath her underwear. This was a reference to a question in the first interview, but principally her evidence at trial:

   4. (4)

      In the first interview, the complainant said the applicant “puts his finger right up” while in the second interview, when asked what “right up there” meant, she said “I don’t really know”.

   5. (5)

      Although the complainant’s father gave evidence that the disclosure to him occurred when the complainant was touching her brother in a shower, she said she was sure she did not slap her brother on the bum in the shower, and did not remember a conversation with her father after such an incident.

   6. (6)

      There was a contradiction in the complainant’s evidence in that, in her first interview, she said nothing had happened at the applicant’s house, while in the second interview, she said that it did happen in the applicant’s house.

4. [23]

   Audiovisual recordings of both police interviews with the complainant were provided by the Solicitor for Public Prosecutions to each member of the Court shortly before the appeal was heard. Nothing was said in the initial written submissions of either party as to the use to be made of those recordings (notwithstanding that R v ZT [2025] HCA 9; 99 ALJR 676 predated both parties’ submissions).

5. [24]

   At the hearing of the appeal one member of the Court indicated he had viewed parts of the recordings; the others said they had not. In response to questions raised by the Court in relation to this issue and R v ZT, both sides sought and were granted leave to supply written submissions on the use the Court could and should make of the recordings of both police interviews. They were supplied on 8 and 13 July 2025.

6. [25]

   It was common ground that the Court could view the recordings if there was a “real forensic purpose” in doing so. Otherwise, the parties’ submissions were diametrically opposed.

7. [26]

   Ms Curtis for the Crown maintained that in Pell v The Queen “the High Court held that, generally speaking, an appellate court should not view recorded evidence”, save in “exceptional” cases where there was a forensic purpose in doing so. She acknowledged that such a purpose might include assessing “the extent, nature and scope” of the jury’s advantage, in cases where those matters are not discernible from the transcript. She reiterated that the purpose did not extend to the appellate court’s making its own assessment of the credibility of statements made in the recordings, and added that the appellate court could expect the parties to identify if there is a real forensic purpose in listening to or watching recordings. Ultimately, she identified two portions of the first police interview which there would be a real forensic purpose in the Court watching: at 14:15 (where the complainant gestures downwards) and 19:52 (where the transcript recorded the complainant saying “phone” but the Crown contended she had said “headphones”), and added that the Court must watch at least some of the material before concluding that the jury enjoyed no relevant advantage.

8. [27]

   In responding to the Crown’s submissions, Mr Stratton said that it was “preferable if the members of the Court watch the entirety of the recorded interview[s], and the recording of the complainant in court”, noting that the first took 46 minutes and the second an hour. The submission did not identify any forensic purpose for doing so, save that one member had seen part of it and that some responses are unclear in the transcript.

9. [28]

   The resulting position is less than ideal. The applicant advanced a ground that the verdict was unreasonable, having regard to the reliability of the complainant. It was developed very succinctly in written and oral submissions. When the Court raised with the parties how it should use the recordings in an appeal where the reliability of the complainant’s evidence loomed large, the applicant said that the Court should spend hours watching the entirety of the complainant’s evidence without identifying any particular portion. As it happens, the overwhelming majority of the recordings do not directly relate to any submissions made by either side (this is clear from the transcript).

10. [29]

    The Crown’s position is less than ideal, too. It supplied the recordings to the Court, in accordance with a usual administrative practice in appeals against convictions, but without making any submissions as to the use the Court should make of them, and after it was raised by the Court, identified two short passages which the Court should see, and cautioned against viewing any of the rest.

11. [30]

    It is possible that there is some misapprehension about the role of the appellate court in a conviction appeal where there is audiovisual evidence available separately from the written appeal books. The position as a matter of principle and practice is as follows.

12. [31]

    First, the appellate court is not a jury. The appellate court will regularly see material which was not before the jury. That is inevitable in the case of an appeal containing a ground that evidence was wrongly admitted. It is also inevitable when (as here) there is a combined appeal against conviction and sentence. And it is very common for a statement made to police on which a witness has been cross-examined to appear in the appeal books, despite the statement not having been tendered. So long as the appellate court is careful of the use being made of such evidence, and conscious of the limitations of its role, there is no difficulty with that course.

13. [32]

    In the present case, the trial transcript includes what occurred in the absence of a jury, including (in the present case) the agreement between the parties concerning character evidence which goes to ground 1, and certain evidence adduced on a voir dire which the trial judge excluded.

14. [33]

    It cannot be said in those circumstances that the appellate court is precluded from reviewing material which was not before the jury. It also follows that the fact that different members of the Court prepared for the hearing of the appeal in different ways is entirely irrelevant to the approach that should be taken to the recordings.

15. [34]

    Secondly, the first question in every criminal appeal where there is audio or audiovisual recording is whether there is some aspect of that evidence which is insufficiently captured by the transcript having regard to the issues in the appeal. That applies irrespective of whether the recording is or is not an exhibit.

16. [35]

    Most transcripts are replete with minor inaccuracies and omissions. Without seeking to be exhaustive, they include the following:

    1. (1)

       It is not uncommon for words to be mis-transcribed.

    2. (2)

       Audible but non-verbal utterances like “um” and “ugh” are often omitted.

    3. (3)

       Then there are visual aspects of an interview. Transcripts will not normally show gesture or pauses or hesitation or facial expressions which bear upon the quality of an answer – including when the unrecorded information may demonstrate that the witness is confused, or has misunderstood the question.

    4. (4)

       Sometimes the transcript will contain glosses which make it clear that the transcriber was of the view that the witness made a mistake (often this is done by inserting “(as said)”) but sometimes the transcript will contain no such indication. Sometimes the transcript will contain passages added by the transcriber to indicate that the transcript has not recorded a non-verbal answer to a question; for example “(The witness gestured)” or “(The witness paused)”, but sometimes the transcript will not.

    5. (5)

       Next, a perfectly accurate transcript will not normally show the intensity or forcefulness or emphasis of a question or an answer. That has many consequences. Questions that read as though they are open-ended may as asked in substance be leading. Answers may, by a rising inflection, indicate that the witness is unsure of the meaning of the question or the correctness of the answer, or both.

    6. (6)

       A transcript recording what is said in English when an interpreter is used is a quite different record of the trial from a transcript where no interpreter is used, because only the English language will be transcribed.

17. [36]

    In short, sometimes there are patent imperfections in a transcript which are obvious to the reader, and (probably more commonly) sometimes there are latent imperfections in a transcript, which will only become apparent if a recording is viewed or listened to.

18. [37]

    The foregoing is obvious and unremarkable and familiar to anyone who has relied on transcripts in civil or criminal litigation. To be clear, none of the above should be taken as a criticism of the various services which transcribe courtroom proceedings and other records of evidence.

19. [38]

    Thirdly, the “real review” of the trial which is to be conducted by a criminal appellate court is directed to the issues presented by the grounds of appeal and, especially, the parties’ submissions. (I shall put to one side cases where an applicant is unrepresented, to which different considerations may in some circumstances apply.) The overwhelming majority of imperfections in a transcript are immaterial having regard to the issues in play. Even if it is obvious, or probable, that the transcript is imperfect or defective in one of more of the ways summarised above, and an audiovisual record is available to clarify what was said, most of the time there is no forensic purpose in doing so, because in light of the issues raised by the parties, nothing turns on the particular imperfection or defect.

20. [39]

    Fourthly, most commonly there is no audio or audiovisual record of the transcript available to an appellate court, and not uncommonly even parties who have the benefit of a same-day transcript omit to correct the transcript on the following day. In such cases, it may be necessary where it matters to proceed inferentially. But where there is an audiovisual recording, inference may not be necessary.

21. [40]

    Fifthly, where there is an audiovisual recording, it is ordinarily not for the Court to view it as the best record of the trial, even though in some respects it is the best evidence of the course of the trial. It has never been suggested that a “real review” requires seeing and listening to such of the evidence as was recorded. To the contrary, it has repeatedly been said that it is for the parties to identify the portions of the transcript where there is an advantage in seeing and listening to the recording.

22. [41]

    The majority judgment in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 observed at [31]:

23. [42]

    Likewise, the dissentients agreed that in the absence of any forensic purpose to be served by reviewing the recording being identified to the Court of Criminal Appeal, it was not necessary to address the consequences of the Court failing to do so: at [116] (Crennan J, with whom Heydon J agreed).

24. [43]

    The majority judgment also endorsed the correctness of an observation by Simpson J of the imbalance which is the consequence of viewing and listening to the evidence of some but not all of the witnesses at [29]:

25. [44]

    The need for the parties to identify why parts of a recording of the oral evidence should be viewed was reiterated in Pell v The Queen at [36] and R v ZT at [14].

26. [45]

    Finally, when resolving a ground of appeal that a verdict is unreasonable, it is necessary for this Court to give full weight to the advantage enjoyed by the jury. There may be occasions where in order to determine the extent of that advantage, it will be necessary to see parts of the recordings of the evidence. However, that may not be necessary. The extent of that advantage will depend upon the circumstances of the particular appeal. A circumstantial case turning upon documentary evidence (such as Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25) may result in the advantage being relatively slight; a “word-on-word” case such as is common in cases of sexual assault where the accused gives evidence will often place the tribunal of fact in a markedly advantageous position over an appellate court.

27. [46]

    I record the following as a matter of transparency. I saw none of the recordings until I had received the parties’ submissions and read the entirety of the complainant’s interviews and evidence at trial.

28. [47]

    I saw the two portions identified by the Crown. One was the gesture downwards made by the complainant; the other was a portion where the transcript was said to be incorrect. It should not have been necessary to see the latter – it is clear that the transcript, “He was on his phone” is wrong and it should say, “He was on his headphones”. This should have been agreed between the parties.

29. [48]

    In addition, having read the transcript of the interviews and evidence, I saw the following evidence:

    1. (1)

       I saw and heard question 93 of the first interview, which was described as a “very leading question”, “[s]omeone told me that your dad had a conversation with you about, um, private parts”, because it is impossible to determine the extent to which the question, which was formally a leading question, was leading, without hearing how it was put.

    2. (2)

       I saw and heard her answers to question 252 of the first interview concerning when the touching occurred, when the transcript records “(NO AUDIBLE REPLY) [Nods]” because I thought there was a possibility that the complainant might be showing some distress unrecorded in the transcript in light of her non-verbal response.

    3. (3)

       I saw and heard her answer to question 268 of the first interview, which was an important inconsistency in the complainant’s evidence, when she answered “[n]o” to the question “[h]as this ever happened at Grampy’s house?”; once again, I thought it was possible that there might have been a delay, or something in the tone of the answer, which bore upon the submissions made concerning this and her later evidence that it happened at her grandparents’ house as well.

    4. (4)

       For the same reason, I saw and heard her answer to question 121 in the second interview, where she answered “[i]n his bed” to the question “[w]here in his house did it happen?”

    5. (5)

       In order to see and listen to those portions of the evidence, it was unavoidable that I saw and heard a short portion of the recording preceding those answers.

30. [49]

    All of those portions related to particular grounds of appeal, where something was or might be discerned from the recording which could not be discerned from the transcript.

31. [50]

    I did not review the recording of the complainant giving evidence at trial. Although the Crown offered to make it available, neither side suggested any forensic purpose for doing so.

32. [51]

    The matters of which the applicant complains do not in my opinion make the verdict one which is unreasonable.

33. [52]

    I do not regard the question asked by the police officer as relevantly leading. The reference to “private parts” was a reference to a conversation between father and daughter concerning the son’s complaint that the daughter had slapped the son on his bum. The question was asked because the father had given a statement in which he told his daughter that “private parts are private and only you touch them”. That was the occasion, according to the father, for his daughter thereafter telling him about being touched by her grandfather. What is more, the question was directed in terms to a conversation between father and daughter. It did lead the complainant to the occasion at which (according to her father’s evidence) she made a complaint to him. But it did not lead her as to the allegations of the applicant’s conduct themselves.

34. [53]

    The complainant gave equivocal evidence about whether the applicant’s finger was outside or underneath her underwear. I have not reviewed the recording of that question and answer, but it is easy to see how the question would have been complicated to a seven year old. The question was asked immediately after the judge said (as her Honour said on a number of occasions during this trial, with her criticism being directed both to those representing the Crown and the applicant) “Ask the question. Was it over or under. Keep it simple”. Counsel then appearing for the applicant was criticised only a few questions earlier for asking a complicated question, leading to an intervention by her Honour saying that it was too difficult and suggesting counsel ask a simple question “Do you remember now”. In any event, despite the earlier warning and the warning immediately beforehand, the very next question counsel asked was unduly complicated:

35. [54]

    The question was unduly complex. The words “are you unsure about whether it” were unnecessary, introducing an unnecessary negative concept at the beginning of the question. It was plainly contrary to the judge’s direction to keep it simple. Indeed, it is quite possible that in substance it was a leading question, although in form it was open-ended. Whether out of habit or by design, the complexity of the second half of the question may have led to an agreement with the proposition that the witness was unsure, which is what happened. The words “out of the underwear or under the underwear” also introduced undesirable complexity, in circumstances where the simple point of the question was to ask whether the finger of the accused was inside or outside the complainant’s underwear. Perhaps it was obvious to everyone in the court room that the complainant was confused. In re-examination, the complainant was taken without objection to that answer, and asked “[c]an you remember now whether the touching … was over or under the clothing?”, to which she replied “[u]nder”.

36. [55]

    The jury saw the cross-examination and the re-examination. The jury also heard the applicant’s closing submission that “she simply does not know about whether his fingers went inside her, and whether it went inside the underwear, or whether it didn’t”. The applicant did not suggest that there was any particular aspect of the audiovisual recording of those questions and answers which the Court should see having regard to the limitations of the transcript. In those circumstances, I do not see anything in the questions giving rise to a concern about the verdict.

37. [56]

    The fact that the complainant was not able to explain what she meant by “right up” is not material. The fact that a seven year old in October 2023 did not remember a conversation in July 2022 with her father about slapping her brother in the shower is utterly unremarkable.

38. [57]

    The inconsistencies which are conceivably material are that her father gave evidence that she had said that the applicant asked her to touch herself, and licked her, of which she gave no evidence (and indeed she denied any licking), and the fact that in the first interview with police she said nothing happened at the applicant’s house, while in the second she said it did.

39. [58]

    In the first interview, on 27 July 2022, the complainant was asked whether she had been touched when staying at her grandfather’s house:

40. [59]

    There was a second interview, on 30 January 2023. After the complainant was shown her account from 6 months earlier of being touched by the applicant, which she said was “the last time”, she was asked these questions:

41. [60]

    Counsel cross-examined the complainant on this inconsistency. Once again, and regrettably, this occurred in a way which was needlessly complicated. He asked, “If you had said that Grampy doesn’t touch you at Grampy’s house, would that be a lie?” which the judge did not permit, and then to the question “did you lie to police about Grampy touching you at Grampy’s house?” she said no.

42. [61]

    Counsel did not cross-examine on the complainant’s statement that the applicant had licked her, and that she had been asked to touch herself.

43. [62]

    Both of these inconsistencies relate to uncharged conduct.

44. [63]

    The jury saw both police interviews, and the complainant giving evidence before them. These inconsistencies were the subject of address by counsel and summing up by the trial judge. Counsel for the applicant referred (perfectly fairly) to the evidence in cross-examination and re-examination reproduced above, adding “it would seem, and I think it’s fair, that [the complainant] gave a more certain answer in re-examination. But that does not mean that her answers in re-examination were accurate”. Counsel for the applicant emphasised that “she never told police that Grampy licks her private parts” and referred to her extensive evidence about the mouth and what her tongue is for.

45. [64]

    In her summing up, the trial judge identified the inconsistencies between the evidence that the applicant made her touch herself, and licked her, and the absence of evidence of those matters, in the context of directing on inconsistencies, as to which no complaint is made, as well as in summarising the defence case.

46. [65]

    The function to be performed by this Court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty as found by the jury: Dansie v The Queen at [7]. I have reviewed the entirety of the trial, but with a focus upon the points actually advanced by the parties in light of what was said in Dansie at [16]:

47. [66]

    Bearing in mind the advantages enjoyed by the jury, I am unpersuaded that the verdict on the only charge before them, whether the applicant had digitally penetrated the complainant at her home, was unreasonable. The jury saw and heard the evidence, and had the relevant inconsistencies emphasised to them. Put differently but equivalently, upon a review of the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: see the consideration of M v The Queen at 493 in Dansie at [8], [12] and [15], and Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [250] (Jagot J, with whose reasons Kiefel CJ and Gageler J agreed).

48. [67]

    Although there should be a grant of leave, this ground is not made out.

Ground 1

1. [68]

   Ground 1 complained that the applicant had not received the benefit of a “full character direction”.

2. [69]

   There was a debate during the trial as to the applicant’s character. On 11 October (the third day of the trial) the Crown said, in the absence of the jury, that “there is a potential issue in relation to character”. There was the following exchange:

3. [70]

   The exchange then turned to what would be sufficient to confront the complainant with the defence case.

4. [71]

   On the following day, 12 October 2023, in the absence of the jury, the trial judge and counsel returned to the topic of character:

5. [72]

   The fact that the applicant had no criminal convictions was elicited from one of the detectives involved in the investigation. It was also led from the applicant.

6. [73]

   On Friday 13 October 2023 (a day when the Court did not sit), counsel for both the Crown and the applicant supplied emails to the trial judge’s Associate identifying the directions each sought. The Crown’s email was as follows:

7. [74]

   Counsel for the applicant responded a little more than an hour later, saying:

8. [75]

   There was nothing in his email complaining about the “limited” character direction, confined to the lack of prior convictions, sought by the Crown.

9. [76]

   The Crown addressed the jury on character:

10. [77]

    Similarly, the defence addressed on the basis that he was a 62 year old man with no criminal convictions. There was no other reference to his good character, consistently with what had been agreed.

11. [78]

    The trial judge gave the following direction as to character:

12. [79]

    The trial judge also gave a Liberato direction, at some length, earlier in her summing up:

13. [80]

    Subsequently, a draft direction in written form was provided to the parties, including three paragraphs on character. The relevant section was as follows:

14. [81]

    No objection was taken to the form of that document, which was subsequently provided to the jury.

15. [82]

    The applicant complained in this Court (but made no complaint at the time), that while the jury had been invited to bear in mind the applicant’s lack of criminal convictions in considering whether it was likely he had committed the charged offence, the trial judge had not given the “full” or “second limb” of the direction, for example (to use the words from the bench book):

16. [83]

    The applicant submitted that in Barwick v R [2023] NSWCCA 139 it had been said at [66]-[71] that:

    1. (1)

       good character may be relevant to whether an accused was likely to have committed the crime charged, or whether the accused was credible, or both or neither of those points;

    2. (2)

       a judge retained a discretion as to whether to give a direction on evidence of good character depending on the evaluation of the probative significance of that evidence in relation to the two issues of likelihood of committing the offence and credibility generally;

    3. (3)

       “Nonetheless, it has been held that if such a direction is asked for it would be wise for it to be given: Simic v The Queen (1980) 144 CLR 319 at 333; [1980] HCA 25 (Gibbs, Stephen, Mason, Murphy and Wilson JJ); Melbourne at [75]-[76] (Gummow J)”;

    4. (4)

       evidence of good character in a sexual assault trial may well play a significant role, and where an accused gave evidence and good character was established, it would be relevant to both credibility and propensity, citing JV v R [2017] NSWCCA 49 at [122];

    5. (5)

       in Kanbut v R [2022] NSWCCA 259 at [32] Beech-Jones CJ at CL referred to the passage from an unreported judgment, R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep) in which Wood CJ at CL, Sully and Ireland JJ said:

    6. (6)

       this formulation was reflected in the New South Wales Criminal Trial Courts Bench Book suggested good character direction at [2-370].

17. [84]

    The applicant also emphasised that the jury took a week to return its verdict (a time which was longer than the trial itself).

18. [85]

    The applicant said that it would have been a significant thing for the trial judge to direct the jury to take into account the applicant’s good character in reviewing his reliability and credibility, particularly in light of the Crown’s submission that “the fact that [the complainant] complained, the way in which she complained and the circumstances in which the complaint came out are all matters which make it more likely that she was telling you the truth about being assaulted”.

19. [86]

    In written submissions, the applicant said that counsel at trial had not sought such a direction only through oversight. In oral address, this was reiterated: “In my submission it just appears to me that it was missed by everyone”.

20. [87]

    The Crown disagreed that this had been an oversight. Counsel said that:

21. [88]

    The Crown emphasised two features of this trial. The first was that the applicant’s character had been in issue during the trial, but had been resolved by agreement. The second was that after the jury retired, they requested a written copy of the judge’s directions. That was provided in draft to counsel before being sent to the jury.

22. [89]

    No objection was taken by counsel then appearing for the accused to the limited direction concerning character either immediately after it was given (when the trial judge invited both sides to raise any concerns) or in the following days, when a written version was supplied to the jury.

23. [90]

    The Crown observed that Barwick was an appeal from a judge-alone trial, where the trial judge’s reasons indicated the extent to which a full character direction was relevant to her finding, and where the accused had advanced “extensive” evidence as to his good character and truthfulness, which the judge described as “impressive and powerful”.

24. [91]

    It was said that the character evidence, limited to the bare fact of absence of criminal conviction, was of limited probative value generally and in particular as to the issue of his credibility.

25. [92]

    The Crown also said that the applicant’s evidence did not go much beyond a denial of the allegations.

26. [93]

    It seemed possible that the exchange of emails on 13 October 2023 reproduced above had been overlooked. With that in mind, my Associate wrote to the parties on 5 August 2025 relevantly in the following terms:

27. [94]

    Both sides responded to that invitation. Mr Stratton submitted that it was difficult to know precisely what was meant by the phrase “Limited character – no prior criminal directions”. He submitted that given that there was no evidence led by the Crown rebutting good character, the relevant good character direction was the direction referred to in the Bench Book, which referred to the jury being entitled to use the evidence of good character both as to the likelihood of the accused committing the offence, and as to the credibility of the accused. In that model direction, the reference to the use of good character in relation to credibility is said to be necessary if the accused gives evidence, which was the present case. He also noted that there was no reference in the Crown’s email to the direction being limited by not including a reference to credibility.

28. [95]

    The Crown referred to the evidence adduced on the afternoon of 12 October 2023 from one of the officers involved in the investigation that the applicant had no prior convictions, and the discussion concerning directions before the Court adjourned on that day, which was followed by the emails of 13 October 2023. The Crown submitted that it was not entirely clear what the Crown Prosecutor intended by “limited character” direction. She submitted that “the Crown Prosecutor may have been referring to the fact that the evidence of good character had been limited, by agreement between the parties, to the absence of prior convictions”, or alternatively, that “the Crown Prosecutor may have intended that only the first limb of the character direction should be given”. However, she added:

29. [96]

    The Crown also submitted that the character evidence was limited, that defence counsel did not address on the evidence led as to character, and suggested that the decision not to seek a re-direction was explicable by the fact that the evidence did not bear on the applicant’s credibility, that counsel was conscious of this, and thus supports the inference that trial counsel saw no injustice in the direction that was given and that there was no miscarriage of justice.

30. [97]

    The threshold question is whether there should be a grant of leave. The applicant wishes to advance a point not made at trial, despite character being an issue at trial and despite there being ample opportunity to be heard as to the form of the direction, for the purpose of seeking a retrial which will not take place within two years of the trial. The question of leave is quite significant in the present case, where the trial in October 2023 was based on the complainant’s evidence of the most recent occurrence by the applicant prior to July 2023. There may be a real question about fading recollections.

31. [98]

    There is a dispute in this Court whether as the applicant says the failure to seek a stronger direction was inadvertent, or as the Crown says deliberate. It was open to both sides to adduce direct evidence of what in fact was “resolved” at trial, but neither did so. The matter was left to inference.

32. [99]

    The transcript reproduced above demonstrates that there was an agreement between the Crown and the accused that evidence as to his good character would be confined to an absence of criminal convictions. There is no reason to doubt the accuracy of what was said by the prosecutor that if he sought to go further, there would be a case in rebuttal.

33. [100]

    What is arguably unclear is whether the terms of the agreement announced to the Court on 12 October 2023 extended to an agreement that a more elaborate direction as to character was inappropriate. But the emails exchanged on 13 October 2023 lead me to the conclusion that either it was agreed on 12 October 2023, or alternatively if that had been left open the previous day that it was agreed on 13 October 2023, that a “limited character direction” be given. Those emails were exchanged less than 24 hours after agreement was announced to the Court, after evidence of the absence of convictions was adduced and after limited discussion concerning the directions that would be sought. The subject matter of the agreement was character evidence, and it is difficult to contemplate that the counsel charged with conducting the prosecution and the defence who had reached agreement on the character evidence to be adduced would not either have simultaneously reached agreement on the directions which should be given in relation to that character evidence, or else have done so shortly thereafter. I also bear in mind the timing – the agreement was announced to the Court towards the end of the trial, at a time when the formulation of jury directions must have been in everyone’s minds.

34. [101]

    While it is true as both the applicant and the Crown acknowledge that there is some ambiguity in the meaning of the email, the word “Limited” should be construed so as to give it some meaning. It appears in a list following “Inferences”, “Context” and “Tendency”, and if the standard character direction were sought, then there would be no reason to include “Limited”.

35. [102]

    The concluding words “no prior criminal convictions” should also be understood as doing work. It seems tolerably plain that the reason that a “limited” character direction was sought was that the evidence as to character was limited, namely, merely that the applicant had no prior convictions.

36. [103]

    The words “limited character direction” in the prosecuting counsel’s email bear an obvious prima facie meaning in this context. It is clear that a “full” character direction was not sought. Instead, what was sought was a direction confined to the fact that he had no relevant convictions, which could be used to reason that it was unlikely that he committed the acts, but fell short of a “full” character direction to the effect that his good character could be relied on to assess his credibility. Hence the words “no prior convictions” in the email.

37. [104]

    I am unable to accept Mr Stratton’s submission that what was conveyed was that the full direction in the Bench Book was sought. That submission puts to one side the “limited” nature of what was sought. It is also difficult to reconcile with the acquiescence of trial counsel for the applicant in response both to the email from the Crown and the limited direction as to character which was in fact given.

38. [105]

    Thus this ground complains of the absence of a “full character direction” at a trial in which in an informed way the parties proceeded on the basis that a “limited character direction” would be given, that agreement itself being the result of a forensic choice to obtain a limited benefit from the absence of convictions but not to go further so as to avoid a Crown case in rebuttal.

39. [106]

    It is possible that I am wrong in reading the transcript and the exchange of emails in the way set out above. But it was always the case that the applicant needed leave under r 4.15 to run this point which had not been run at trial, and in the written submissions supplied in advance of the hearing, the Crown contended that the limited direction represented a “deliberate forensic decision”. It was open to the applicant to adduce evidence from counsel who appeared at trial, or the solicitor who was then retained, or to tender notes or a report of the trial, or to seek to reach agreement with the Crown in this Court as to what had been agreed if the applicant disputed this. But the applicant took none of those courses, instead merely asserting but without providing any basis for doing so that the omission to seek a “full direction” was inadvertent.

40. [107]

    A powerful reason not to grant leave under r 4.15 is that there was a forensic purpose for not raising the point at trial: see the authorities reviewed in R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159 at [32]-[35]. At least in cases where that forensic purpose was rational, to my mind the deliberate choice by an accused person not to seek a direction so as to obtain a benefit at trial will ordinarily prove fatal to the grant of leave. (I can contemplate cases of gross negligence where the decision might be deliberate but misguided and where applicants seeking leave to challenge their convictions ought not to be precluded by the incompetence of their former lawyers, but that is far removed from the present case.)

41. [108]

    Nonetheless, I shall go further and address whether the applicant has lost a real chance of being acquitted by the failure to give a direction which was not sought at trial: see Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72] and FX v R; GX v R [2020] NSWCCA 189; 290 A Crim R 31 at [290]-[298], bearing in mind that a fair trial does not mean a perfect trial. I am unpersuaded that the applicant has lost a real chance of being acquitted. The applicant had the benefit of a direction that the jury could reason from the absence of any criminal record that he was unlikely to have offended. The applicant also had the benefit of a direction that not only must the jury acquit if they believed the applicant’s evidence, but also that they must acquit if they considered that it might be true. This ground complains that because the judge did not go further, and say that a person of good character was less likely to lie and that too was a matter to which they could have regard, there was a miscarriage of justice. But if the trial judge had gone further, that would likely have been met by a protest from the prosecutor that she had sought a “limited character direction” as opposed to a full character direction, and that course had either been agreed to or at the very least had not been opposed by the defence. Moreover, I am unpersuaded that in circumstances where on any view it was agreed that the character evidence was confined to an absence of convictions that the applicant was materially disadvantaged by the absence of a full direction in a case where his positive case was minimal.

42. [109]

    The onus rests on the applicant to explain why leave under r 4.15 should be granted, and in the facts of this case that extends to explaining why the express agreement at trial was required to be departed from in order to achieve a fair trial. The applicant has failed to discharge that onus. Leave to appeal should be refused.

Ground 2

1. [110]

   This ground was that the primary judge “erred in directing the jury that they could not conclude that the complainant did not suffer any injury, because there was no evidence that she was seen by a doctor and suffered an injury”.

2. [111]

   There was no evidence at trial of the complainant suffering an injury. Nor was there any evidence, one way or another, as to whether any medical assistance had been sought. This issue arose because during closing address by the defence, in the course of criticising the complainant’s evidence about the absence of any contemporaneous complaint, counsel then appearing said “there is no evidence of any injury in this case which might be consistent with an inference that penetration of [the complainant] took place, no evidence at all in that respect”.

3. [112]

   Fairly shortly thereafter, in the absence of the jury, the primary judge invited counsel to make submissions about what direction should be made concerning inferences. Counsel for the applicant responded:

4. [113]

   The Crown said that there was no evidence of lack of injury, and that she hadn’t been examined. There was some confusion about what precisely had been said and this point was stood over to the following day, when the transcript was available.

5. [114]

   The following day, the primary judge referred to what had been said in the course of argument and there ensued the following exchange:

6. [115]

   Later that day, in the presence of the jury, the trial judge said the following:

7. [116]

   The applicant said that there was no need for the submission by counsel appearing at trial to be corrected, and that the direction given by the trial judge “had the capacity to limit the jury’s deliberation process to the disbenefit of the applicant leading to a miscarriage of justice”.

8. [117]

   In oral submissions, Mr Stratton said that her Honour’s repeatedly saying words to the effect that “there is no evidence that [the complainant] was examined by a doctor, or of any injury, or of absence of injury, or of medical evidence concerning whether the penetration would result in injury”, would have the effect of inviting the jury to consider there had been medical evidence not placed before them.

9. [118]

   It was said:

10. [119]

    I do not accept any of this. The direction to the jury must be read as a whole. The words of which complaint is made were preceded by the trial judge instructing the jury that they “must act in accordance with my direction not to speculate”. The words of which complaint is made were also immediately followed by the words “there is an absence of evidence in respect of any of those examples that I have just given you. Therefore my direction is that you cannot speculate…”. I am unable to accept that the form of the direction could give rise to any risk that the jury would do exactly what they were, repeatedly, instructed not to do.

11. [120]

    What is more, the direction was foreshadowed by the trial judge shortly beforehand and the unequivocal acceptance by counsel then appearing for the applicant was given.

12. [121]

    There is no basis for a grant of the requisite leave under r 4.15 to advance this ground of appeal, because if leave were granted, the ground is destined to fail.

Ground 3

1. [122]

   Ground 3 is that the primary judge “erred in directing the jury that there was no real allegation put to any of the witnesses that there was deliberate lying”.

2. [123]

   In the course of developing this ground in oral addresses in this Court, attention was primarily focused not on the form of the cross-examination of the complainant or any of the other witnesses, but instead upon whether or not closing addresses to the jury extended to whether the complainant was lying.

3. [124]

   Those submissions departed from the focus of the ground, which stands or falls on whether it was put that any of the witnesses was deliberately lying, as opposed to their testimony being unreliable or insufficiently probative to discharge the onus borne by the Crown.

4. [125]

   It is true that it was never squarely put to any witness that he or she was deliberately lying. Indeed, the only question to the complainant that referred to lying was the last question in her cross-examination, which was an open question:

5. [126]

   That cross-examination was consistent with the defence case which was that somehow the complainant had been manipulated into giving evidence that she had been inappropriately touched by her grandfather.

6. [127]

   It is true that, repeatedly throughout the defence opening and closing, the jury was asked to examine not merely the reliability but also the veracity of the evidence of the complainant, including submissions to the effect by reference to inconsistencies in her evidence that “it highlights [the complainant’s] propensity for either lying intentionally, or being careless with the truth”. The defence also contended by reference to inconsistent evidence that “she definitely told a lie” or “[o]ne of those statements, I contend, is a lie”.

7. [128]

   The primary judge instructed the jury that first they must consider whether the evidence given to them was honest, and then whether it was reliable.

8. [129]

   Ultimately the applicant’s submission was that the words “in this case there was no real allegation put to any of the witnesses that there was deliberate lying” had “the real capacity to undermine the defence case and counsel’s submissions given the force with which they were delivered during the defence closing leading to a miscarriage of justice”.

9. [130]

   This ground is not made out. There is nothing inaccurate or misleading about what the trial judge said. It was true that no allegation of deliberate lying was put to any witness. There was nothing misleading because the trial judge explicitly instructed the jury that they had to assess the honesty of each witness before addressing reliability. There is no basis made out for a grant of leave because the proposed ground lacks merit.

Ground 5

1. [131]

   Against the possibility that his appeal against conviction might fail, the applicant also sought leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against sentence. The applicant said that the sentence of imprisonment for 5 years and 6 months, with a non-parole period of 3 years and 4 months, backdated to reflect time in custody, was manifestly excessive.

2. [132]

   The trial judge sentenced the applicant on the basis that he placed his finger inside the complainant’s vagina, occasioning some pain, for an unspecific duration. Her Honour was unprepared to find (to the criminal standard) that the offending was not isolated, but was likewise unpersuaded (on the balance of probabilities) that it was a “one-off aberration”.

3. [133]

   The trial judge found that the offending fell “just below the mid-range” of objective seriousness, having regard to the complainant’s age (no older than 6), her vulnerability, the position of trust and responsibility, the pain occasioned, the fact that the offence took place in her own home, and because the offending was found to be opportunistic rather than planned. There is no challenge to this finding (nor could there be having regard to the formulation of this ground whose premise is latent error) although the applicant’s submissions tended to refer to the offending as being “towards the lower end of the range”.

4. [134]

   The trial judge also found good prospects of rehabilitation, and unlikelihood of re-offending, and relied on character evidence from his wife, son, brother and long-time friend to conclude that the offending was out of character. On the other hand, he maintained his denial, blaming his son-in-law. Sentence was imposed on the basis that the applicant had a strong subjective case, with no criminal history, no history of alcohol or drug problems or mental health problems.

5. [135]

   The short point is that a sentence of 5½ years with a non-parole period of 3 years and 4 months for offending which is just below the mid-range of objective seriousness following a trial leading to a guilty verdict is not manifestly excessive, even with favourable subjective findings, bearing in mind that the maximum sentence is life imprisonment and the standard non-parole period is 15 years imprisonment. The very large majority of offenders for this offence receive sentences of full-time imprisonment (in excess of 85% according to the JIRS statistics provided to the trial judge, based on 95 offenders over the period from September 2018 until June 2023), and a sentence of 5 years and 6 months is slightly less than the median. What is more, the statistics provided to the trial judge included all sentences, whether imposed after a plea (and therefore incorporating a discount) or after a trial. If regard is had just to sentences imposed after a trial, the database maintained by JIRS shows that for the period from 24 September 2018 until 30 September 2024, there were 44 cases where offenders were found guilty after a trial, all of whom received sentences of full time imprisonment, and only 27.3% received a sentence less than 5½ years.

6. [136]

   Given the applicant’s subjective case, the sentence is not one which is lenient, but it is also a sentence which is less than the substantial majority of sentences imposed after trial, as well as having the benefit of a finding of special circumstances with the ratio between non-parole period and total sentence being some 60.6%. It is not a sentence which is manifestly excessive.

Conclusion and orders

1. [137]

   For those reasons, I would refuse leave under r 4.15 to appeal on proposed grounds 1, 2 and 3, grant leave to appeal on grounds 4 and 5, but dismiss the appeal against conviction and sentence.

2. [138]

   FREE JA: I agree with the orders proposed by Leeming JA and with his Honour's reasons. I also agree with the additional reasons given by N Adams J.

3. [139]

   N ADAMS J: I have had the considerable advantage of reading the reasons of Leeming JA in draft. I agree with the orders proposed by his Honour for the reasons provided. I wish to provide some additional reasons for my conclusions in relation to grounds 1 and 4.

4. [140]

   As for ground 4, in considering whether the jury ought to have had a doubt about the applicant’s guilt, I have undertaken an independent assessment of the whole of the evidence adduced at the trial and considered whether there is any reasonable hypothesis inconsistent with the applicant’s guilt. In doing so, I have considered the submissions filed after the hearing of this appeal regarding the use to be made of the recordings of the complainant’s Joint Investigation Response Teams (“JIRT”) interviews on 27 July 2022 (MFI 5) and 30 January 2023 (MFI 8). Copies of both of these recordings were provided with each of the appeal books on a USB drive.

5. [141]

   The relevant principles were stated recently in R v ZT [2025] HCA 9; 99 ALJR 676 (“ZT”) by the plurality (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) who observed the following at [18]-[19]:

6. [142]

   For my part, I limited my viewing to the two discrete portions identified by the Crown in its supplementary submissions described by Leeming JA at [26] above. I was not satisfied that there was a “real forensic purpose” for viewing all of the recordings. I agree with his Honour that in the second of these two portions the transcript is clearly wrong and what the complainant said was actually “he was on his headphones”. I viewed those portions solely to clarify what it was the complainant was pointing to or saying.

7. [143]

   Having made my own independent assessment of the whole of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In other words, I am satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to the accused’s guilt. Having arrived at that conclusion, it is not necessary for me to consider whether, consistent with what the plurality in ZT identified at [18] as another potential forensic basis to look at electronic exhibits, the jury did in fact have an advantage in seeing and hearing the complainant in this matter: M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63. In any event, it is difficult to envisage an appeal in which, where the Crown case rested on the credibility of a complainant, the jury would not have had such an advantage.

8. [144]

   As for ground 1, I accept the joint position of the parties (provided in the supplementary submissions) that it is not entirely clear what the Crown prosecutor intended in MFI 14 (the email setting out the proposed jury directions) when she sought a direction of “Limited character – no prior criminal convictions”. But the lack of clarity falls away to a significant extent when that request is considered in the context of what occurred after it was emailed to the trial judge. First, defence counsel took no issue with the terms of the Crown’s proposed character direction in his email in reply. Secondly, defence counsel at trial did not seek any re-direction after the trial judge gave the limited character direction. Thirdly, defence counsel was content for an edited version of the summing up, including the limited character direction, to be provided to the jury.

9. [145]

   For my part, I am satisfied that the conduct by the applicant’s trial counsel is consistent with a forensic agreement that in exchange for the Crown not adducing evidence to rebut the applicant’s limited character evidence (the absence of convictions), a limited character direction would be given.

10. [146]

    Further, even if I am wrong in that regard, the failure by counsel to seek a re-direction is a strong indication that there was no miscarriage of justice: BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [56]. To put that another way, it may be explicable by the fact that, in the atmosphere of the trial, counsel saw no unfairness: Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373; at [10]-[13]; Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472 at [58]-[61]; Aravena v R [2015] NSWCCA 288 at [121], and Greenhalgh v R [2017] NSWCCA 94 at [42].

11. [147]

    Either way, I am satisfied that leave to argue this ground ought to be refused for the reasons provided by Leeming JA.