IW v R

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgment of Bellew J in draft. I have also considered the whole of the record of the proceedings in respect to which the appeal has been brought.

2. [2]

   I agree with the orders proposed by Bellew J and with his Honour’s reasons.

3. [3]

   FULLERTON J: I am grateful for the detailed consideration Bellew J has given to the evidence adduced at the appellant’s trial in the judgment his Honour circulated in draft.

4. [4]

   I agree with his Honour’s analysis of the arguments advanced by the appellant in support the first, second, third, fourth and seventh grounds of appeal as I do his reasons for concluding that each ground of appeal is made out. Were it not for the view I have reached as to ground 5, as with Bellew J, I would have quashed the convictions and sentence and ordered a new trial. I also agree with his Honour that leave to argue the sixth ground of appeal should be refused.

5. [5]

   Insofar as the fifth ground of appeal is concerned, I have undertaken my own independent assessment of the evidence in accordance with the settled body of principle which governs the determination of whether a verdict of a jury will be set aside by an appeal court as unreasonable. While I am obliged, in accordance with that principled approach, to give consideration to the entirety of the evidence in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt of guilt, not unusually in the case of an historical allegation of sexual assault where the Crown case depends upon the tribunal of fact accepting the complainant as honest and her or his account as credible and reliable, an assessment of the complainant's evidence dominates that assessment.

6. [6]

   After undertaking that exercise in this case, and after giving due consideration to the advantage the jury enjoyed in assessing the credibility and reliability of the complainant, I am left with a reasonable doubt as to the appellant’s guilt. I wish to make it clear, however, that in being left with a doubt as to the appellant’s guilt I should not be taken to have reached a positive finding that the complainant gave a false account of the sexual assaults, either to the investigating police or in her evidence at the appellant’s trial. Neither should I be taken to have made a finding that the words she attributed to the appellant were fabricated. There remain, however, two interrelated aspects of the complainant’s evidence which have compelled me to a finding that the fifth ground of appeal has been made out.

7. [7]

   First, I have a concern about the reliability of that part of the complainant’s evidence where she described the circumstances in which the alleged offending occurred, including the timing of each of the two counts of sexual assault charged on the indictment and the extent of penetration she claimed to have experienced on each occasion. Secondly, I have a level of concern about the credibility of the complainant’s explanation for the Facebook communications with the appellant’s wife many years after the alleged offending. It is not so much the apparent flippancy of the tone and content of her communication with LW, and what appears to be some pleasure she had in goading her into a response by the suggestion that the appellant (her husband) was a paedophile that is of concern. That might be understandable from a young person who had not enjoyed the unqualified support of an immediate family, such that she may not have had either the courage or capacity to make a complaint of sexual abuse to LW or the authorities in a more direct and timely way for that reason. Of greater concern is that the complainant not only failed to disclose the content of those Facebook messages to police, but she told them she had no contact with the appellant or his wife after leaving their care. In addition, her claim in evidence to have had no memory of the Facebook exchange with LW or ER at all lacked cogency.

8. [8]

   Finally, I acknowledge the weight of the appellant’s evidence of good character. Whilst that evidence may not, of itself, have raised a sufficient doubt as to his guilt, when taken in combination with the concerns I have expressed about the credibility and reliability of the complainant, I am satisfied that this ground of appeal has been made out and, that being the case, I agree with Bellew J that a verdict of acquittal should be entered, as I do with the other orders his Honour proposes.

9. [9]

   BELLEW J:

INTRODUCTION

1. [10]

   On 30 July 2018, IW (the appellant) pleaded not guilty in the District Court of NSW to the following offences:

   1. (1)

      Between 25 October 2007 and 16 July 2008, at Watanobbi in the State of NSW, did have sexual intercourse with (the complainant), who was at that time under the age of 10 years, namely 6 or 7 years (Count 1).

   2. (2)

      Between 25 October 2007 and 16 July 2008, at Watanobbi in the State of NSW, did have sexual intercourse with (the complainant), who was at that time under the age of 10 years, namely 6 or 7 years (Count 2).

2. [11]

   Each of the alleged offences was contrary to s 66A of the Crimes Act 1900 (NSW) and carried a maximum penalty of 25 years imprisonment.

3. [12]

   On 7 August 2018 the appellant was found guilty by a jury of both counts. On 24 August 2018 he was sentenced to a non-parole period of 8 years and 8 months imprisonment, with an additional term of 4 years and 4 months. The sentence was ordered to commence on 7 August 2018.

4. [13]

   The appellant now appeals against his conviction on the grounds more fully set out below.

AN OVERVIEW OF THE APPELLANT’S TRIAL

1. [14]

   The appellant and his wife (LW) had been registered foster carers since August 2007. They had a daughter (AW) and a son (B). On 25 October 2007, the complainant and her younger brother (LT) were placed into foster care with the appellant and LW, having been removed from the care of their mother (TT) by the Department of Family and Community Services (FACS). They remained with the appellant and LW until July 2008, at which time they were transferred to the full time care of the complainant’s aunt (CT) and her partner (ER).

2. [15]

   The offending alleged in Count 1 was said to have occurred prior to Christmas 2007 at a time when LW and AW had left the house, and the complainant was left at home. On the Crown case, the complainant was watching television in a back room, and LT was playing outside. The appellant took the complainant into the bedroom that he shared with LW, grabbed her wrists and threatened her. The appellant then removed the complainant’s pants, held her down and had forced penile/vaginal intercourse with her. The appellant threatened the complainant that he would harm LT if she ever told anyone about what had happened.

3. [16]

   The offending alleged in Count 2 was said to have occurred after Christmas 2007. On the Crown case, the appellant came into a bedroom that the complainant shared with AW, when AW was away for the night. He pushed the complainant over, so that she was face down on her stomach on the bed. He then held the complainant down, lifted her nightie, and had forced penile/vaginal intercourse with her, which was again followed by a threat not to tell anyone.

4. [17]

   The complainant alleged that there were other occasions on which she was allegedly sexually assaulted by the appellant. This was relied upon by the Crown as context evidence.

5. [18]

   The appellant participated in a recorded interview with police, and also gave sworn evidence before the jury, in which he denied the allegations. There was also evidence before the jury of the appellant’s prior good character which formed a significant aspect of the defence case.

The assessment and approval of the appellant and LW as foster carers

1. [19]

   Barbara Taylor, who gave evidence in the Crown case, [1] was the Programs Manager of the Wesley Mission Out of Home Care, which cared for children who had been placed in the care of the Minister for Family and Community Services. Ms Taylor confirmed that when the appellant and LW applied to become foster carers, they were required to undergo an assessment process which she described as follows: [2]

2. [20]

   Ms Taylor also explained [3] the training program that the appellant and LW were required to undergo prior to being approved:

3. [21]

   Ms Taylor confirmed [4] that on 10 August 2007 the appellant and LW were approved as foster carers for children between the ages of 2 and 6 years, and that they had assumed the care of the complainant and LT on 25 October 2007. She explained [5] that children in foster care are strictly monitored, and that all events and circumstances relating to their care are extensively recorded. She also explained the process of ongoing review of foster carers: [6]

The alleged offending

1. [22]

   The evidence in chief of the complainant was adduced primarily through her recorded interview with police which took place on 18 July 2016.

2. [23]

   The complainant said [7] that she was aged 6 or 7 during the period in which she was living with the appellant and LW. In respect of the offence alleged in Count 1, she gave the following account: [8]

3. [24]

   When asked to expand on that account, the complainant said that she thought that at the time of this alleged offending LW and AW had gone to the shops, although she was not 100% sure. [9] She said that the appellant and LW were living in the Wyong area at the time. She could not remember the number of the house or the name of the street in which it was located, but she did remember that it was located in a cul-de-sac. [10] She said that this offending had occurred during the afternoon of a weekend when it was still daylight, but she could not remember on which particular day. [11]

4. [25]

   The complainant said [12] that when the appellant took her to his bedroom she felt confused, but that she was not initially scared. [13] She described [14] being pushed by the appellant onto the bed from her shoulders and landing on her knees. She said [15] that she tried to get up, but that the appellant grabbed her wrists and held them. She also described [16] the appellant removing her pants, and said [17] that by this time she was “so scared” and that “there was this pain down there and he just kept going”. She said the pain was caused by the appellant inserting his penis into her vagina, which she said she felt but did not see. [18] She said [19] that immediately after the offending the appellant said to her:

5. [26]

   The complainant said that the appellant then pushed her towards the door, told her that she could go, and said to her as she was walking away: [20]

6. [27]

   The complainant was then asked: [21]

7. [28]

   When asked if anything had happened afterwards, the complainant said: [22]

8. [29]

   The complainant was then asked [23] whether there was anything else she wished to say about the offending in Count 1, or about any other incident:

9. [30]

   The interview with the complainant then moved to the offending alleged in Count 2: [24]

10. [31]

    Apropos her earlier reference to other occasions on which the appellant had sexually assaulted her, the complainant was asked: [25]

11. [32]

    The questioning later returned to other occasions on which the complainant had been sexually assaulted by the appellant: [26]

12. [33]

    The complainant said [27] that she had not seen the appellant or LW since leaving their care, but that both of them had tried contacting her on social media by sending her friend requests and trying to message her. [28] She was asked: [29]

13. [34]

    In response to questions put by the Crown in further evidence in chief, the complainant said [30] that the appellant used to refer to her as “the devil”:

14. [35]

    The complainant was cross-examined about the fact that she had not disclosed these, and other statements allegedly made to her by the appellant, to police: [31]

15. [36]

    Later in cross-examination, the complainant said [32] that she had also had a conversation with LW about the subject of masturbation. She was asked: [33]

16. [37]

    The complainant said [34] that the conversation in ER’s presence had taken place out the front of the appellant’s home, and that she thought that CT was present as well. The complainant said that she had heard LW telling her aunts that she (the complainant) “would touch herself”. She said [35] that the appellant and LW had told her that this was the wrong thing to do.

17. [38]

    The cross-examination then continued: [36]

18. [39]

    The complainant was also cross-examined about her assertion to police that she had seen blood on her underwear following the offending in Count 1: [37]

19. [40]

    The complainant was also cross-examined about what she had said to police about the fact that she had liked living with the appellant and LW. When asked [38] how she liked it when she first went there, she answered:

20. [41]

    The complainant went on to say [39] that she ceased liking to live with the appellant when he committed the offending, before being asked: [40]

21. [42]

    She was then asked: [41]

22. [43]

    It was put to the complainant in cross-examination [42] that there was no truth in any of the allegations, a proposition which she denied.

The timing of the offending

1. [44]

   The complainant said [43] that the offending in Count 1 had occurred “just before Christmas” (i.e. Christmas 2007). She dated that offending by reference to the fact she had an advent calendar, [44] and said that it was “possible” that it happened during school holidays but that she was “not 100% certain”. [45]

2. [45]

   She said [46] that the offending in Count 2 had occurred “a few weeks after” the offending in Count 1, that it was after Christmas, [47] and that it had happened at a time when she was sharing a bedroom with AW. [48] She also said [49] that she was “not very good with time and…never really (had) been”.

3. [46]

   Against this background, the complainant was asked by police [50] to draw a floor plan of the appellant’s home. The plan she drew showed her and AW occupying separate bedrooms. AW’s bedroom was depicted on the plan immediately adjacent to the living room. Next to one of the walls of AW’s room were the words “later addition”. In drawing that plan, the complainant was asked: [51]

4. [47]

   LW gave evidence [52] that the complainant and AW had only shared a room for “a very short period of time … right at the beginning”. She explained [53] that a bedroom was then built for AW at the front of the house so that she could have her own space.

5. [48]

   AW’s recollection was that she had shared a room with the complainant for only one night. [54] She gave no evidence about the building of her bedroom.

6. [49]

   In his interview with police, the appellant was asked the following: [55]

7. [50]

   Following his interview, the appellant sent a letter to the police dated 12 August 2016 [56] in which he said (inter alia):

8. [51]

   What the appellant meant by “at this time” is not entirely clear, although other parts of his letter were prefaced with references to events occurring “during the dates 2007-2008”.

9. [52]

   Having been taken to what he had told police about the layout of the house, the appellant gave the following evidence in cross-examination: [57]

The evidence of complaint

1. [53]

   The Crown relied on evidence of complaint elicited through a number of witnesses, the first of whom was the complainant herself.

2. [54]

   On her account to police, the complainant had initially attempted to tell CT and ER about the alleged offending but had found herself unable to do so: [58]

3. [55]

   In answer to further questions asked by the Crown in evidence in chief, the complainant confirmed [59] that she had attempted to tell CT and ER about the offending. Having explained [60] that she had started by telling them that the appellant used to tell her that she was the devil, and that she had the devil inside her, the complainant was asked by the Crown: [61]

4. [56]

   The complainant was cross-examined about the fact that she had not actually told CT or ER about the alleged offending: [62]

5. [57]

   Later in this judgment I have addressed the evidence of messages which were exchanged between the complainant and ER in 2015. The complainant was cross-examined about her failure to disclose the offending to ER in the course of those messages: [63]

6. [58]

   On the complainant’s account, the first person she actually told of the alleged offending was her grandmother (JT): [64]

7. [59]

   The Crown asked the complainant further questions in evidence in chief about what she had said to JT: [65]

8. [60]

   Trial counsel cross-examined the complainant in respect of this account: [66]

9. [61]

   Trial counsel then referred the complainant to MFI 10 (which I infer was a copy of JT’s statement to police) before asking her: [67]

10. [62]

    Despite the complainant’s reference to having told her “nanna and poppa” about the offending, she in fact gave no evidence of having had any conversation with her grandfather about these matters at any time. Only JT was called as a witness by the Crown. JT said [68] that her conversation with the complainant took place in 2014 (approximately 7 years after the alleged offending). She was asked by the Crown: [69]

11. [63]

    This account was not the subject of cross-examination. JT said nothing about having referred, in her conversation with the complainant, to the fact that the complainant’s mother had been the subject of abuse, yet on the complainant’s account, it was that reference which was the catalyst for her telling JT about the offending. Further, on JT’s account, the complainant had made no allegation of sexual offending at all, much less attributed such offending to the appellant. In these important respects, the complainant’s account of the conversation was inconsistent with the account given by JT.

12. [64]

    The complainant told police [70] that the next person she told about the offending was Leslie Cohen (Cohen), a family friend:

13. [65]

    Although the interviewing police officer indicated [71] that he would return to this issue, it was not canvassed any further. However, it is apparent that on the complainant’s account, her conversation with Cohen took place only days before she was interviewed by police.

14. [66]

    In answer to further questions asked by the Crown in evidence in chief, [72] the complainant said that her conversation with Cohen had taken place about halfway through 2016, at a time when she was living with her stepfather in Coonamble. She said [73] that she had been present (along with TT, Cohen and others) at a conversation, the topic of which had turned to a neighbour of Cohen who had allegedly sexually abused his grandchildren. The complainant said that as a consequence of that conversation she had become scared, nervous and anxious, to the point where she had a bad panic attack and left the room with Cohen following her. She was then asked: [74]

15. [67]

    The complainant was not cross-examined on that account.

16. [68]

    Cohen gave evidence [75] that he recalled an evening when he and his wife were at home, along with the complainant, TT and others. He said [76] that during that evening, the topic of conversation had turned to someone who “lived in town” and who was “not a very nice person”. Cohen was then asked by the Crown: [77]

17. [69]

    Cohen’s account that the complainant did not identify the person who had allegedly assaulted her was not consistent with that of the complainant, who had asserted that she had named the appellant as the person responsible, and had told Cohen that it was her “foster dad”.

18. [70]

    The complainant gave evidence that after speaking with Cohen, she then spoke with TT on the same evening: [78]

19. [71]

    TT gave evidence [79] that she had been at Cohen’s house and had left to go to a bottle shop before returning and speaking to Cohen, who told her of his earlier conversation with the complainant. She was then asked: [80]

20. [72]

    TT was not cross-examined on that account.

The Facebook messages

1. [73]

   Exhibits 1 and C were copies of Facebook messages which had passed between the complainant and LW, and the complainant and ER, in 2015. All of the messages contained in those two exhibits were consolidated in exhibit 5. [81]

2. [74]

   The messages exchanged between the complainant and LW between 17 July 2015 and 2 August 2015 were generally civil in their tone, and were often in the nature of LW reminiscing, and “catching up” with the complainant. For example, on 17 July 2015 at 18:27, LW sent a message to the complainant which was in the following terms:

3. [75]

   On the following day LW sent a message to the complaint at 17:07 asking her if she had found a new school. Following the complainant’s reply at 17:40, LW responded:

4. [76]

   In another message sent on 21 July 2015 at 21:23, LW told the complainant that she was “very proud” of her.

5. [77]

   On 2 August 2015 at 20:47 LW enquired as to the whereabouts of CT. Following an exchange of messages, LW sent a message to the complainant at 20:55 saying (in an apparent reference to the fact that the complainant had been transferred from the care of CT and ER):

6. [78]

   In another message sent on the same day at 21:02, and apparently in reference to the complainant’s transfer to CT and ER, LW said to the complainant:

7. [79]

   At 21:07 on the same day LW sent a message to the complainant telling her that she was “truly a beautiful heart”. At 21:13 she sent a further message saying (inter alia):

8. [80]

   Further exchanges of messages followed, in the course of which LW brought the complainant up to date as to the activities of AW and B. At 21:20 the complainant told LW:

9. [81]

   Between 21:28 and 21:36 on the same day the following exchange of messages took place between LW and the complainant:

10. [82]

    The complainant then sent, to ER, the last of the messages she had received from LW in that exchange, accompanied by the message:

11. [83]

    The following exchange then took place between ER and the complainant:

12. [84]

    At that point, a further exchange of messages took place between LW and the complainant:

13. [85]

    LW’s first message in that exchange of messages was, I infer, a response to the complainant’s earlier message about the freedom to choose one’s religion. The complainant then sent that exchange to ER who responded:

14. [86]

    LW then sent the complainant a further message (obviously in response to the complainant’s reference, in the previous exchange, to LW’s “pedophilic husband”) stating:

15. [87]

    The complainant did not respond to that message.

16. [88]

    There was then a further exchange of messages between the complainant and ER:

17. [89]

    At that point, the exchange of messages between the complainant and LW resumed:

18. [90]

    The complainant did not respond to that message from LW. However, she did send a further message to ER saying:

19. [91]

    That message from the complainant was obviously her confirmation to ER that she had done as ER had told her, i.e. she had told LW to “keep (her) gronk husband away”.

20. [92]

    The complainant then received a message from LW stating:

21. [93]

    Again, the complainant did not respond to LW’s message but resumed her exchange of messages with ER as follows:

22. [94]

    The complainant did not disclose any of these messages to the police when she was interviewed, and confirmed in cross-examination that she had in fact told police that she had not engaged with the appellant and LW at all since leaving their care: [91]

23. [95]

    The complainant maintained on several occasions that she could not recall the messages, [92] and explained [93] that this was because the appellant’s offending was “playing on her mind” at the time. Bearing in mind the references in her messages with ER such as “lol”, and having “fun fucking with (LW)”, and also bearing in mind her concession that she and ER were having a “good old laugh” about the appellant and LW, the complainant was also asked in cross-examination: [94]

24. [96]

    Having been taken to her exchanges of messages with LW, the complainant was asked: [95]

25. [97]

    The complainant was subsequently asked: [96]

26. [98]

    The complainant was also taken to the message she had received from LW in which LW had said that if she ever needed to talk she should just let her (LW) know: [97]

27. [99]

    The complainant was also taken to her messages with ER in which references were made to laughing: [98]

28. [100]

    The cross-examination then returned to the exchange of messages in which ER had described the appellant as a “fucking paedophile”: [99]

29. [101]

    The complainant was also taken to her message to ER in which she had said (in reference to LW) that it was “fun fucking with her”: [100]

30. [102]

    The complainant was further cross-examined about her exchanges with ER: [101]

31. [103]

    ER, who was called by the Crown, was cross-examined about her exchanges with the complainant. She generally denied that she and the complainant were laughing at the appellant and LW, and said that any suggestion that her use of certain emojis had indicated anything to the contrary reflected a misunderstanding. For example, she was cross-examined about the first of the messages that she had received from the complainant: [102]

32. [104]

    LW gave evidence that she was “shocked” when she received the message from the complainant referring to her “paedophilic husband”. [103] She said [104] that shortly after receiving that message she discovered that she had been “blocked” by the complainant.

The evidence of CT

1. [105]

   CT gave evidence [105] and was asked whether she recalled speaking with the complainant, once she was living with her, about what had happened when she had been living with the appellant, and in particular, about things that the appellant had allegedly said to her: [106]

2. [106]

   CT was then asked about whether or not she had reported any of these conversations to the authorities. Having initially said that she did not recall, [107] she was shown a document to refresh her memory, following which she said: [108]

3. [107]

   The document from which CT had refreshed her memory was a file note dated 5 January 2019. [109] That was obviously well after the complainant had left the care of the appellant and LW.

4. [108]

   When cross-examined, CT said [110] that she had informed the authorities about what the complainant had reported that (LW) (not the appellant) had said to her. She was then asked: [111]

5. [109]

   CT said that she had become aware of this in a conversation at which she, the appellant, LW and ER were all present. [112] She was asked: [113]

6. [110]

   CT was then asked: [114]

The complainant’s expressed desire to remain in the care of the appellant

1. [111]

   Cecilia Papadakis was a FACS caseworker who had been involved in the transfer of the complainant and LT to the care of the appellant and LW, and who maintained a supervisory role thereafter. Ms Taylor identified a record of a conversation created by Ms Papadakis [115] which she described as “typical of the sort of recording that (her) organisation made with respect to children under (their) care”. That document, which was dated 7 May 2008 (and thus well after the offending alleged in Counts 1 and 2 had occurred) was in (inter alia) the following terms:

2. [112]

   The complainant was cross-examined about her conversation with Ms Papadakis which was reflected in the note: [116]

3. [113]

   Having given the complainant the opportunity to read the note prepared by Ms Papadakis, trial counsel continued his cross-examination: [117]

4. [114]

   The general tenor of what the complainant was recorded as having told Ms Papadakis, namely that she was happy living with the appellant and LW and wanted to stay with them, was entirely consistent with other evidence in the trial. For example, LW gave the following evidence in answer to questions asked by the Crown in evidence in chief: [118]

5. [115]

   Consistent with this evidence, the complainant had previously agreed in cross-examination [119] that prior to leaving the care of the appellant and LW she had had many conversations with LW about not wanting to leave.

6. [116]

   Similarly, AW (who was called in the appellant’s case) gave the following evidence in chief: [120]

7. [117]

   These aspects of AW’s evidence were not challenged by the Crown in cross-examination.

The evidence of LW

1. [118]

   LW was called by the Crown and confirmed [121] that the complainant and her brother had been transferred to the care of herself and the appellant on 25 October 2007. Generally speaking, LW gave evidence about the complainant’s period of time under the care of herself and the appellant, and the various duties that were undertaken in association with that.

2. [119]

   LW gave evidence about a specific occasion on which she saw the complainant with her hand down her pants: [122]

3. [120]

   LW said [123] she had told the appellant what she had seen. She also said [124] that she told the complainant that if she “wanted to do that” she should “come and tell her”.

4. [121]

   LW said [125] she had told CT and ER about the incident in a conversation at the front of her house, at which the appellant was present. She was unable to recall this response [126] she agreed [127] that she had reported the matter to the authorities on two occasions.

5. [122]

   LW was also asked about aspects of her religion. Her evidence in that regard included the following: [128]

6. [123]

   The Crown later returned to this issue: [129]

7. [124]

   The Crown then referred LW to the fact of CT’s report that the complainant had said that LW had made reference to the complainant having the devil inside her. [130] LW was adamant that she had never spoken to the complainant about the devil at all. [131]

The appellant’s case

1. [125]

   The appellant participated in an interview with police, an edited form of which [132] was before the jury along with a transcript. [133] In the course of that interview, the appellant denied the allegation in Count 1, [134] denied the allegation in Count 2, [135] and denied having had sexual intercourse with the complainant on any occasion. [136] The appellant told police [137] that prior to becoming a foster carer he and LW had undergone extensive training over a period of approximately 9 months, before being asked: [138]

2. [126]

   When asked [139] whether there was anything else that he wished to say in addition to what had been spoken about in the questions which had been asked of him, the appellant said:

3. [127]

   In his sworn evidence before the jury, the appellant said [140] that there was no truth in the complainant’s allegations. He said that towards the end of 2006 he and LW had had a discussion about fostering children, following which he had enquired about the process of assessment. [141] The appellant was asked: [142]

4. [128]

   This evidence was consistent with that given by the officer-in-charge of the investigation, [143] Det. Keller, that the appellant had no criminal history, and that other than in respect of these allegation, he had never been arrested by police.

5. [129]

   In the course of his evidence in chief, the appellant said [144] that he had no particular personal belief in a “devil” and that the devil was not a significant feature in his religion. When asked [145] whether he had ever told the complainant that she had “the devil inside her", the appellant responded:

6. [130]

   The appellant said [146] that as a result of the conversation with LW he became aware of a suggestion that the complainant had been touching herself. He had no recollection of being present at any conversation with ER and CT when that subject was discussed. [147] When asked about his relationship with the complainant, the appellant said: [148]

7. [131]

   The appellant said that he became aware of the complainant's message on Facebook in which she had called him a paedophile as a consequence of a conversation with LW. [149] When asked how that allegation had impacted upon him, the appellant said: [150]

8. [132]

   The appellant was cross-examined by the Crown about his religion and his knowledge of the Bible, [151] in the course of which he said that he did not really read the Bible and that whilst he understood that the devil was “recognised" it was not something that any of the churches to which he belonged applied any focus. Having been questioned at some length about his knowledge of the allegation that the complainant had been touching herself, the appellant was asked: [152]

9. [133]

   Finally, the appellant was asked: [153]

10. [134]

    Larissa Pearce, who was called as a witness in the appellant’s case, said [154] that she had known the appellant’s family since she was three years of age, having been friends with AW since that time. She said that she had remained friends with AW [155] and had been in the habit of staying at the appellant’s home at least once per fortnight, and visiting three to five times per week, over several years. [156] She was asked: [157]

11. [135]

    In cross-examination Ms Pearce said [158] that she had never been alone with the appellant at any time that she had visited his premises. However in re-examination [159] she said that the appellant had taken her on two driving lessons, and that on each occasion they had been the only people in the car. Notwithstanding that evidence, and in the absence of any objection by trial counsel, the Crown put to the jury in her closing address that the evidence of Ms Pearce was that she had never been left alone with the appellant. [160] That was a misrepresentation of what Ms Pearce had said, and entirely overlooked the evidence she gave in re-examination.

12. [136]

    The Crown’s error was repeated by the trial judge in her summing-up to the jury: [161]

13. [137]

    No issue was raised by trial counsel, be it in respect of the Crown’s address or the summing-up of the trial judge.

14. [138]

    Other evidence of the appellant’s good character was elicited from witnesses called by the Crown. LW described being “horrified” at the suggestion that the appellant was a paedophile. [162] She said that she had been married to the appellant for 26 years, had been in a relationship with him for 28 years, and had therefore known him for the best part of three decades. [163] She was asked in cross-examination: [164]

15. [139]

    Ms Taylor gave evidence [165] that no allegation of impropriety, other than that made by the complainant, had ever been made against the appellant whilst he was a foster carer. She explained that if such an allegation had been made, the appellant's accreditation would have been suspended until such time as an investigation had taken place. When asked whether she had formed any personal opinion about the appellant, [166] Ms Taylor identified an email she sent to the appellant and LW on 23 April 2008 [167] (i.e. within the period of the alleged offending), the contents of which she described [168] as “a genuine reflection of (her) views”. The email was in the following terms:

16. [140]

    Ms Taylor confirmed [169] that she had never taken any adverse view of LW or the appellant, and described them as “very caring” people.

GROUND 3 – THE TRIAL MISCARRIED ON ACOUNT OF THE DIRECTIONS GIVEN IN THE TRIAL IN RELATION TO GOOD CHARACTER EVIDENCE AND ITS REBUTTAL AND THE LACK OF ADEQUATE DIRECTIONS AS TO THE ASSESSMENT OF THE CREDIBILITY OF THE APPELLANT

1. [141]

   These grounds can be conveniently dealt with together.

The evidence

1. [142]

   During his interview with police, the appellant was asked about the process of assessment for foster carers: [170]

2. [143]

   The appellant then expanded on his reasons for “wanting a break” [171] and in doing so made reference to the last child who been in his care. He was then asked: [172]

3. [144]

   By agreement between the parties, Q and A 63, 66 and 67 (along with other questions and answers which do not bear on these grounds) were removed from the appellant’s interview, and the edited version was tendered in evidence. Det. Keller confirmed [173] that such editing had been carried out with the consent of both parties for the purposes of removing material which was agreed to be irrelevant to any issue in the trial.

4. [145]

   Against that background, trial counsel asked the appellant the following questions in evidence in chief: [174]

5. [146]

   As I have already noted, the references in the appellant’s interview to the circumstances in which he had decided to have a break from foster care, namely because of an allegation that he had smacked a child, had been removed on the basis that they were irrelevant to any issue in the trial. Why, in those circumstances, trial counsel raised the matter at all is not apparent. It is evident that the appellant immediately appreciated the danger which had arisen as a consequence of trial counsel doing so. So much is clear from the fact that he immediately queried with trial counsel whether he could “talk about that”. These difficulties were then compounded when trial counsel foreshadowed to the appellant that the Crown “may ask” about such matters. That was tantamount to inviting the Crown to cross-examine the appellant about matters which, for the reasons discussed more fully below, were agreed to be irrelevant, which were prejudicial to the appellant, and which could only have been the subject of cross-examination by leave in any event.

6. [147]

   The Crown, without seeking leave, then cross-examined the appellant [175] to the effect that as a foster carer, he wanted to provide an environment for the children who were under his care in which they felt safe, comfortable, and not in fear. The previous incident involving the smacking of a child having been raised in the circumstances I have outlined, the Crown then proceeded to cross-examine the appellant in the following terms: [176]

7. [148]

   The appellant was not re-examined in respect of this (or any other) issue.

The Crown’s closing address to the jury

1. [149]

   In her closing address, the Crown put the following submission to the jury in relation to the appellant’s good character: [177]

2. [150]

   Having referred to other material in the interview, the Crown then said: [178]

The defence closing address to the jury

1. [151]

   In his closing address to the jury, trial counsel responded to the Crown’s submissions as to character by saying: [179]

2. [152]

   Shortly afterwards, whilst trial counsel was still in his closing address, the following exchange took place between the trial judge and the Crown in the absence of the jury: [180]

3. [153]

   No submissions were put by trial counsel in relation to the issue which was debated in this exchange. Upon resuming his closing address, trial counsel made the following submission to the jury: [181]

The directions of the trial judge

1. [154]

   The trial judge directed the jury in respect of the appellant’s prior good character in the following terms: [182]

2. [155]

   In the absence of the jury, trial counsel then reminded her Honour [183] that in addition to the evidence of Det. Keller and Larissa Pearce (to which her Honour had referred), there was evidence of the appellant’s good character elicited from LW and Ms Taylor to which no reference had been made. Trial counsel also reminded her Honour of exhibit 4, the email which had been sent to the appellant and LW by Ms Taylor. The trial judge indicated that she would remind the jury of those matters.

3. [156]

   Upon resumption of her summing-up on the following day, and in the course of summarising the submissions put by trial counsel to the jury, her Honour said: [184]

4. [157]

   In response to what trial counsel had put to her on the previous day, the trial judge then said: [185]

5. [158]

   Trial counsel made no application for any further direction.

Submissions of the appellant

1. [159]

   Senior counsel for the appellant before this Court (who was not trial counsel) submitted that the Crown’s cross-examination of the appellant regarding the allegation that he had previously smacked a child was in breach of a number of provisions of the Evidence Act 1995 (NSW) (the Act) which restrict the cross-examination of an accused as to his or her credibility. Senior counsel submitted that the fact that trial counsel did not object to the Crown’s cross-examination did not (and could not) constitute a waiver of the application of relevant sections of the Act.

2. [160]

   Senior counsel submitted that the evidence which was the subject of the Crown’s cross-examination did not substantially affect the assessment of the appellant’s credibility, and that the threshold imposed by s 103(1) of the Act had therefore not been overcome. Senior counsel also pointed to the fact that there had been no consideration of the mandatory factors set out in s 103(2).

3. [161]

   It was further submitted that even if the threshold imposed by s 103(1) had been overcome, the Crown’s cross-examination was, absent a grant of leave, prohibited by ss 104 and 112 of the Act. Senior counsel pointed out that leave had not been sought by the Crown at any stage.

4. [162]

   It was further submitted that quite apart from these matters, and in circumstances where the references to the appellant smacking a child had been removed from the interview because they were agreed to be irrelevant, the Crown’s cross-examination of the appellant had been unfairly prejudicial. Senior counsel emphasised that the evidence of the appellant’s good character formed an important aspect of his case, and submitted that in all of the circumstances, the evidence elicited by the Crown in cross-examination carried with it the risk of improper use by the jury, particularly in the absence of appropriate directions by the trial judge.

5. [163]

   Senior counsel further submitted that various statements made by the Crown in the exchange with the trial judge which I have previously set out supported a conclusion there had been a miscarriage of justice. Senior counsel pointed specifically to the Crown’s concession in that exchange that there was no basis for using the evidence that the appellant had previously smacked a child to rebut the evidence of his good character. Senior counsel submitted that this was precisely what the Crown had done.

6. [164]

   Finally, senior counsel submitted that the directions of the trial judge had been deficient in a number of respects. It was submitted, in particular, that the trial judge had failed to properly and fairly summarise the evidence of Ms Taylor and Ms Pearce, even after being asked to do so. Senior counsel also emphasised that such directions as her Honour had given in relation to the evidence of Ms Pearce had repeated the Crown’s erroneous submission as to what Ms Pearce had actually said. It was further submitted that the terms in which her Honour had directed the jury effectively invited the jury to completely disregard all aspects of the appellant’s good character.

7. [165]

   It was submitted that in all of these circumstances, the trial had miscarried.

Submissions of the Crown

1. [166]

   Whilst I did not understand the Crown to accept each and every submission advanced on behalf of the appellant in support of these grounds, the Crown expressly conceded error in relation to each of them, [186] and accepted that as a consequence of what had occurred, the appellant had not had a fair trial according to law. The Crown did not seek to rely on the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).

2. [167]

   The Crown correctly pointed out [187] that because none of these grounds of appeal involves a question of law alone, the appellant requires leave to appeal in respect of each of them pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). [188] The Crown also pointed out that the issues giving rise to these grounds were not the subject of any application by trial counsel, and that accordingly, r 4 of the Criminal Appeal Rules (NSW) also applies to this ground (as it does to some of the other grounds relied upon by the appellant).

3. [168]

   It is convenient to note at this point that r 4 is not a mere technicality, and the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial. [189] However if, in a clear case, a necessary element of a fair trial according to law was overlooked, then leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused. [190]

Consideration

1. [169]

   For the reasons that follow, the Crown’s concession was an appropriate one. Leave should be granted to the appellant to argue these grounds, each of which has been made out. In order to explain why I have come to that view, it is firstly necessary to refer to a number of sections of the Act.

2. [170]

   To begin with, the credibility rule is set out in s 102 of the Act in plain terms:

3. [171]

   It follows that credibility evidence, in order to be admissible, must fall within one or other of the stated exceptions contained in the Act. One such exception is contained in s 103:

4. [172]

   In the present case, s 104 of the Act also applied in addition to s 103:

5. [173]

   Section 110 of the Act is in the following terms:

6. [174]

   Further, s 112 of the Act is in the following terms:

7. [175]

   A grant of leave pursuant to s 104 or s 112 is governed by s 192 which is in the following terms:

8. [176]

   Notwithstanding that the appellant has not asserted incompetence on the part of trial counsel, an analysis of these grounds must commence by emphasising that it was trial counsel who asked the appellant the questions which disclosed the allegation that the appellant had previously smacked a child in his care, in circumstances where all references to that issue had been removed from the appellant’s interview because it was agreed that they were irrelevant. There was no forensic advantage to be gained by raising the matter. On the contrary, and apart from being irrelevant, the unfair prejudice which arose as a consequence of it being raised was significant, particularly in a case where the appellant’s prior good character formed a significant part of his case. Trial counsel’s subsequent indication to the appellant that the “Crown might ask about that” simply aggravated the problem that had been created, and was tantamount to issuing an invitation to the Crown to cross-examine the appellant in respect of matters which were agreed to be entirely irrelevant.

9. [177]

   The Crown then took the view, erroneously, that it was open to simply embark upon a cross-examination of the appellant in relation to this irrelevant allegation, without even considering whether it substantially affected his credibility, and without making an application for leave to do so. What followed was a cross-examination of the appellant which was both entirely impermissible and grossly unfair, and which in my view, gave rise to a miscarriage of justice. This is so for a number of reasons.

10. [178]

    To begin with, the Crown’s stated bases for the cross-examination were entirely inconsistent. When the matter was first raised by the trial judge, the Crown took issue with the suggestion that she had addressed the jury on the basis that the evidence of the appellant smacking a child had been led to rebut the evidence of his previous good character. The position taken by the Crown at that point was entirely untenable in circumstances where, in her closing address to the jury, the Crown had referred to the evidence in the specific context of making a submission challenging the appellant’s good character.

11. [179]

    The Crown then submitted to the trial judge that the evidence did not “take it that far” because there was “no evidence as to the circumstances” in which the child was slapped. When her Honour then put to the Crown that the only reason that the evidence had been led was to rebut the evidence of good character, the Crown asserted that there was another purpose which was “more about inconsistency in the record of interview”. However, only moments later the Crown specifically asked the trial judge to direct the jury that the evidence had, in fact, been led to rebut evidence of good character. That was the very proposition that the Crown had expressly disavowed only a short time earlier. Moreover, the Crown took that course in circumstances where she had conceded that the evidence of the appellant smacking a child did not “take it that far”. In other words, the Crown sought a direction that evidence which did not “take it that far” had been led to rebut the evidence of the appellant’s good character. The fundamental inconsistency which is reflected in such a position needs no further comment.

12. [180]

    Further, and leaving aside the fact that the evidence was agreed to be irrelevant, s 102 of the Act states, in plain terms, that credibility evidence about a witness is not admissible. It was therefore necessary for the Crown, if she wished to cross-examine the appellant in relation to the allegation that he had previously smacked a child in his care, to satisfy the various statutory pre-conditions which applied.

13. [181]

    Firstly, it was necessary for the Crown to overcome the threshold imposed by s 103 of the Act and establish that the evidence could substantially affect the assessment of the appellant’s credibility. For the purposes of s 103, the word “substantially” must be given effect. It required the Crown to establish that the line of questioning in cross-examination was capable of having a real bearing, [191] or a real and persuasive significance, [192] on the overall credibility of the appellant.

14. [182]

    As I have already noted, the evidence that the appellant had previously smacked a child in his care had been removed from his record of interview because it was agreed that it was irrelevant. It could hardly be said that evidence which was irrelevant somehow had the capacity to substantially affect the assessment of the appellant’s credibility so as to overcome the threshold set by s 103. Quite apart from that, the Crown conceded to the trial judge that the evidence did not advance the issue of the appellant’s credibility “that far” because of the absence of any other evidence in explaining the circumstances of it. That amounted to a concession that the evidence was incapable of substantially affecting the assessment of the appellant’s credibility, and that the threshold imposed by s 103(1) could not be overcome.

15. [183]

    Further, s 103(2) of the Act mandated that in determining whether the cross-examination substantially affected the assessment of the appellant’s credibility, the trial judge take into account the matters in s 103(2)(a) and (b). Because the matter was never raised, be it by the Crown or by trial counsel for the appellant, the trial judge was not taken to s 103. Accordingly, the mandatory factors in s103(2)(a) and (b) were never considered.

16. [184]

    Further, even if the threshold imposed by s 103 of the Act had been overcome, s 104 imposed a further hurdle to the Crown’s cross-examination. In circumstances where the evidence clearly did not come within any of the categories in s 104(3)(a) to (c), the protective regime created by s 104(2) required the trial judge to grant leave before the Crown could cross-examine as she did. Leave was not sought by the Crown at any stage, and was not otherwise granted by the trial judge.

17. [185]

    Moreover, had an application for leave been made by the Crown as it ought to have been, the trial judge was bound to determine any such application by reference to the factors set out in s 192(2) of the Act. In the circumstances of the present case, a number of those factors weighed strongly against leave being granted. In particular:

18. [186]

    Further, the Crown’s final position was that she had cross-examined the appellant as she did, to rebut the evidence of the appellant’s prior good character. In those circumstances s 112 of the Act also imposed a requirement that leave be granted before that course could be taken. Leave was not sought by the Crown, and her Honour did not otherwise grant it. Had leave been sought there were, as I have already indicated, a number of factors which weighed strongly against it being granted.

19. [187]

    As a result of the Crown’s cross-examination, evidence which was agreed to be irrelevant was allowed to go before the jury in circumstances where the evidence of the appellant’s prior good character formed a significant part of his defence. The fact that trial counsel raised the issue by his questioning of the appellant, and then took no objection to the cross-examination which followed, did not oust the operation of the Act and thus permit the Crown to engage in a cross-examination which was entirely impermissible and unfairly prejudicial.

20. [188]

    For all of these reasons, grounds 1 and 2 are made out.

21. [189]

    The difficulties which arose as a consequence of the Crown's cross-examination of the appellant were, for a number of reasons, compounded by errors in the directions given by the trial judge.

22. [190]

    Firstly, inherent in the directions which were given was the proposition that it was open to the jury to take into account, when assessing the evidence of the appellant's good character, the evidence that he had previously smacked a child in his care. For the reasons I have given, that evidence should never have been admitted.

23. [191]

    Secondly, in the course of her summing-up the trial judge repeated the Crown’s erroneous submission to the jury that Ms Pearce “had never been alone with the accused”. The evidence of Ms Pearce was of considerable importance to the appellant’s case. What had been said by the Crown, which was repeated by her Honour, misrepresented what Ms Pearce had said, and did so in a material way.

24. [192]

    Thirdly, the direction which was given by the trial judge that the jury could take the appellant’s prior good character into account in determining whether it was “likely" that he committed the offences was incorrect. The trial judge should have directed the jury that if they concluded that the appellant was a person of good character, that was a factor that could be taken into account in supporting a conclusion that it was not likely that he committed the offences.

25. [193]

    Fourthly, having directed the jury that the evidence elicited by the Crown could only be used to rebut good character, and that the jury could not conclude that the appellant was a person of bad character and then use that finding against him, the trial judge specifically referred to the evidence of the appellant having smacked a child as “bad character evidence". Such a categorisation was both inappropriate and erroneous. It had the capacity to invite the jury, if they accepted the inadmissible evidence which was before them, to conclude that the appellant was a person of bad character.

26. [194]

    Fifthly, the terms of part her Honour’s directions on the issue of good character were apt to mislead. Having directed the jury that the Crown had led the evidence of the appellant having previously smacked a child to rebut the proposition that the appellant was of good character, her Honour directed the jury that if, in the light of that evidence, they were not satisfied that the appellant was a person of good character, the law required them to put all considerations of character out of their minds. The latter part of that direction was, in my view, inconsistent with her Honour’s direction to the jury that the Crown had led the evidence for a limited purpose. It was tantamount to directing the jury that the evidence could be used to rebut the suggestion the appellant was of good character generally, as opposed to being of good character in a particular respect. That necessarily had the capacity to entirely negate any advantage to which the appellant was otherwise entitled as a consequence of the other evidence of his prior good character. Those matters assumed particular significance in a trial in which good character evidence formed a cornerstone of the defence case.

27. [195]

    Finally, the fundamental responsibility of a trial judge to ensure a fair trial goes beyond instructing a jury about the law. It extends to an obligation to explain why it is that the accused asserts that his or her guilt has not been established beyond reasonable doubt. The discharge of that obligation requires a trial judge to ensure that the defence case is fairly put to the jury. That necessarily requires the trial judge to explain to the jury any matter(s) properly open, upon which they might find for the accused, [196] although the necessity for a trial judge to refer to a particular matter, and if so to what extent, will necessarily depend upon the manner in which the case has been conducted. [197]

28. [196]

    In these circumstances, her Honour’s summary of the evidence of Ms Taylor in my view fell short of what was required. he importance of the good character evidence in the appellant’s trial cannot be understated. Such evidence included that of Ms Taylor. Importantly, Ms Taylor’s evidence went substantially beyond expressing her own personal views of the appellant. It extended to evidence of the assessment process which the appellant was required to undergo before being approved as a foster carer, and the system of supervision and monitoring to which he (and those in his care) were subject thereafter. Ms Taylor also gave evidence that no allegation of impropriety, apart from that made by the complainant, had ever been levelled at the appellant. Her Honour did not refer to any of these matters and in that respect, in my view, her summing-up was lacking. I am conscious of the fact that having raised the issue of Ms Taylor’s evidence, trial counsel sought no directions over and above those which her Honour ultimately gave. Notwithstanding that, the importance of those aspects of Ms Taylor’s evidence to which I have referred warranted far greater significance being given to them in her Honour’s summing-up.

29. [197]

    For all of these reasons, ground 3 is also made out.

The evidence

1. [198]

   I have previously set out the evidence relied upon by the Crown as constituting the evidence of complaint. [198]

The directions of the trial judge

1. [199]

   The trial judge reminded the jury [199] of the complainant’s evidence, before summarising the evidence of JT [200] and Cohen. [201] Her Honour made no reference to the evidence of the conversations between the complainant and TT. Her Honour then directed the jury in the following terms: [202]

2. [200]

   No objection was taken by trial counsel to this direction and accordingly r 4 applies to this ground.

Submissions of the appellant

1. [201]

   Put simply, senior counsel for the appellant submitted that if the evidence of JT was accepted, it was not open to the jury to reason that what the complainant had said to her amounted to evidence of complaint, and that the evidence should not be have been left to the jury on that basis. It was submitted that the jury should have been directed that in the event that the evidence of JT was accepted, it could not be used as evidence of complaint.

2. [202]

   Senior counsel for the appellant acknowledged that no objection was taken by trial counsel to the direction which was given, and that there was no application made for any further direction. However, it was submitted that given the importance of the issue of complaint, the terms of the direction were inadequate and gave rise to a miscarriage of justice.

Submissions of the Crown

1. [203]

   The Crown submitted that the effect of the trial judge’s directions was that it was up to the jury to determine whether complaints had been made and, if satisfied that they were, to determine their content. It was submitted that in circumstances where no issue had been raised by trial counsel when the directions were given, leave to rely on this ground should be refused.

Consideration

1. [204]

   The trial judge’s direction that it was for the jury to determine whether any complaint had been made was entirely correct. However in my view, the balance of the direction overlooked the fact that even if JT’S account was accepted, it did not amount to a complaint of any sexual offending against the appellant at all. This was significant, given the trial judge’s references to “what the complainant alleges against the accused” and “the alleged conduct of the accused”.

2. [205]

   In my view, the jury should have been directed that in the event that JT’s account was accepted, it did not amount to, could not be used as, evidence of complaint. It is no answer to say that the effect of the direction was that it was up to the jury to determine if a complaint had been made. Such a proposition overlooks the fact that the direction incorrectly assumed that JT’S account was, if accepted, capable of constituting evidence of a complaint of sexual offending against the appellant.

3. [206]

   There was certainly no forensic advantage in trial counsel not seeking a further direction. This was a trial of alleged historical sexual offending in which the evidence of complaint was particularly significant. The accused repeatedly denied that any offending had taken place. For those reasons, the appellant should be granted leave to rely on this ground.

4. [207]

   For the reasons expressed, this ground has been made out.

Submissions of the appellant

1. [208]

   Senior counsel for the appellant commenced her submissions in support of this ground by taking the Court to the Facebook messages exchanged between the complainant and ER. Senior counsel submitted that when read as a whole, and in their proper context, those messages supported a conclusion that it was ER who had suggested to the complainant that (inter alia) the appellant was a paedophile, rather than the allegation having come independently from the complainant herself. It was submitted that the sequence of messages established that the complainant had alleged that the appellant was a paedophile only after ER had used that term to describe him.

2. [209]

   Senior counsel also relied on the complainant’s concession in cross-examination that she and ER were having a “good laugh” at the appellant and LW. It was submitted that, along with other aspects of the messages which were exchanged, this was inconsistent with the complainant’s general acceptance of the fact that what was being discussed was a matter of some seriousness.

3. [210]

   Senior counsel also pointed to the fact that the complainant did not disclose any of the Facebook messages to the police, and had in fact told the police that she had had no contact with the appellant and/or LW at all. It was submitted that these were matters which reflected adversely upon the complainant’s credit, and supported a conclusion that she did not want the police to know about the messages, and had deliberately sought to hide them.

4. [211]

   Senior counsel for the appellant further submitted that the complainant’s evidence as to the timing of the offending was inconsistent with other evidence. It was submitted that when interviewed by police, and in her evidence before the jury, the complainant had asserted that the episodes of offending had occurred before and after Christmas 2007 respectively, and at a time when she and AW were sharing a bedroom. It was submitted that the unchallenged evidence of LW was that the complainant and AW shared a bedroom for only a very short period after she had joined the family in October 2007, following which a separate bedroom had been built for AW at the front of the house. Senior counsel also pointed to the unchallenged evidence of AW that she had shared a room with the complainant for one night only, as well as the evidence of the appellant as to the time at which AW’s bedroom had been built.

5. [212]

   Whilst accepting that precise timing was not an essential element of either offence, senior counsel for the appellant submitted that on a proper assessment of the evidence, the offending alleged in Count 2 could not have occurred, as the complainant had asserted, in a bedroom that she shared with AW, for the simple reason that by that time AW had her own bedroom. It was submitted that such matters were critical to an assessment of the reliability of the complainant’s evidence in respect of the offending alleged in Count 2, and that this, in turn, was relevant to her reliability in respect of her account of the offending alleged in Count 1.

6. [213]

   Further, and although it was the basis of ground 4, senior counsel also relied on the evidence of complaint in support of a conclusion that the verdicts were unreasonable. Apart from the various inconsistencies in this evidence which, it was submitted, were indicative of the complainant’s general unreliability, senior counsel emphasised the complainant’s concession that not only did she not tell ER about the offending, she may in fact have told her that nothing in the nature of sexual offending by the appellant had happened to her at all. It was submitted that the significance of this concession became even greater in light of the complainant’s assertion that prior to her exchange of messages with ER, she had told JT that she had been sexually assaulted by her last foster carer.

7. [214]

   Senior counsel further submitted that on the whole of the evidence there was an inherent improbability that the offending had ever occurred. In this regard, senior counsel emphasised the unchallenged evidence that the appellant had been a dedicated foster carer, and had cared for a large number of children, over a long period of time. Senior counsel also pointed to the fact that prior to being approved as a foster carer, the appellant had undergone comprehensive interviews and had passed numerous background checks, and was thereafter reviewed on a regular basis. It was emphasised that but for the allegation of smacking another child, he had not been the subject of any complaint of impropriety, be it in his capacity as foster carer or otherwise. In these respects, senior counsel pointed to the unchallenged evidence of Ms Taylor, the other evidence of the appellant’s good character from LW, Ms Pearce and Det. Keller, and the appellant’s emphatic sworn denials before the jury.

8. [215]

   Senior counsel also pointed to the fact that there was no evidence of the complainant having suffered any injury despite the “brutality” of the offending she had described. It was submitted that the any suggestion that the complainant had seen nothing more than “a little bit of blood” in her underwear following forced sexual intercourse of the kind that she described was highly improbable, and was a further circumstance which tended against being submitted beyond reasonable doubt that the offences had been committed.

9. [216]

   Finally, senior counsel pointed to the evidence that the complainant had given every indication of being happy living with the appellant and LW, and had expressly stated that she did not want to move away from them. It was emphasised, in particular, that the complainant’s accounts to Ms Papadakis had been given after the alleged offending, and were entirely inconsistent with the allegations against the appellant. Senior counsel submitted that these factors further supported the possibility that no offending had occurred.

Submissions of the Crown

1. [217]

   Senior counsel for the Crown submitted that the question to be posed in respect of this ground was not what the jury could, might, or should, have concluded having regard to the evidence, but whether the jury must (as distinct from might) have entertained a reasonable doubt about the appellant’s guilt. The Crown took the Court through the complainant’s evidence in considerable detail, and submitted that when viewed as a whole, her account of the alleged offending was reliable in respect of both counts.

2. [218]

   In terms of the asserted inconsistencies in the evidence as to the timing of the offending, the Crown submitted that time was not of the essence. It was further submitted that the jury had no doubt taken all of that evidence into account, and had considered its effect (if any) on the complainant’s credibility.

3. [219]

   The Crown accepted that there were inconsistencies in the evidence of complaint, but submitted that such matters had been drawn to the jury’s attention by trial counsel in his closing address. It was submitted that in these circumstances it could be safely concluded that the jury had taken those matters into account, but had nevertheless accepted the complainant’s account.

4. [220]

   The Crown further submitted that a number of the assertions underlying the appellant’s submission that the offending was inherently improbable were misconceived. In particular, the Crown postulated that the absence of any other offending on the part of the appellant may have been a consequence of his perception that the complainant was vulnerable. The Crown also raised the possibility that the absence of any other offending may have been because the appellant, having committed the offences, had decided that it was too risky to continue to behave in that way.

5. [221]

   The Crown further submitted that the reasons given by the complainant for wanting to stay with the appellant and LW were simple, and needed to be assessed in light of the fact that the complainant was very young at the time she expressed those sentiments.

6. [222]

   Finally, the Crown submitted that the absence of any injury could be explained by the fact that the alleged acts were not particularly brutal at all. The Crown also pointed out that no submission based on the absence of injury was advanced by trial counsel to the jury, and submitted that this was because there was no medical evidence to support it. The Crown submitted that the appellant’s reliance on such factors amounted to a generalisation to which the Court should have no regard.

The principles governing the determination of this ground

1. [223]

   The principles which govern the determination of this ground of appeal were set out by Bathurst CJ (Fullerton and Johnson JJ agreeing) in Dickson v R: [203]

2. [224]

   In applying these principles, I must be mindful of the fact that the jury obviously had the advantage of seeing and hearing the entirety of the evidence as it was given. However, I must be equally mindful of the fact that there was evidence before the jury which was said to go to the appellant’s credibility but which should not have been admitted, along with the fact that trial judge erred in her directions, not only in respect of that issue, but in respect of another issue as well. [204] In these circumstances, the advantage enjoyed by the jury in seeing and hearing the evidence may be diminished to the point where it is relatively slight [205] or perhaps excluded from consideration altogether. [206]

3. [225]

   Taken in isolation, the account of the complainant as to the alleged offending might be viewed as cogent. However, for the purposes of determining this ground it is necessary to go beyond that account, and undertake an independent assessment of the entirety of the evidence which was before the jury.

The evidence of complaint

1. [226]

   It is appropriate to commence the necessary assessment by considering the evidence of complaint.

2. [227]

   According to the complainant, she had attempted to tell CT and ER about the offending, but found herself unable to do so. This, she explained, was firstly because of a fear of how CT and ER might react, and secondly because of a fear that the appellant would hurt her brother. Those explanations do not sit comfortably with other evidence which was before the jury.

3. [228]

   To begin with, the complainant expressly agreed that ER was a person who she could “count on", who was protective of her, who was understanding, whom she trusted, and whose opinion she respected. In those circumstances, given their obviously close relationship, the complainant’s asserted fear of how ER might react in the event that she told her of the appellant's alleged conduct lacks foundation. This is particularly so in circumstances where she expressly accepted that ER was someone who did not like the appellant, and who would therefore have been sympathetic to any complaint about him.

4. [229]

   The complainant’s assertion that she did not tell CT and ER because she feared that the appellant would harm LT is equally unfounded. The complainant accepted that at the time of speaking with ER, LT had moved away and was living in Sydney. There is no evidence whatsoever that the appellant knew of LT’s whereabouts.

5. [230]

   Further, and beyond these matters, the evidence of complaint was characterised by inconsistencies which necessarily reflect adversely on the complainant's credit. Those inconsistencies become particularly apparent when the evidence of complaint is analysed chronologically.

6. [231]

   On the Crown case, the initial complaint about the alleged offending was made by the complainant to JT. Although the complainant said in her oral evidence in chief that she had complained to her “nanna and poppa”, it was only JT who was called to give evidence. As I have previously discussed when dealing with ground 4, the account of the conversation given by JT disclosed no allegation by the complainant of sexual offending against the appellant at all.

7. [232]

   Further, on the complainant’s evidence, the fact that JT had told her of sexual abuse suffered by her (i.e. the complainant’s) mother led to her complaint against the appellant. JT gave no such account in her evidence.

8. [233]

   There is no reason to reject JT’s evidence. It was a clear and straightforward account of what the complainant had said, bereft of any suggestion of impropriety on the part of the appellant.

9. [234]

   The complainant's account of what she told Cohen suffers from a similar difficulty. On that account, the complainant told Cohen that it was her “foster dad” who had assaulted her. Cohen's account was that this was not so, and that the complainant had not told him who was allegedly responsible.

10. [235]

    There are also difficulties arising from the evidence of TT. According to the complainant, she had never told TT of the offending. She told Cohen that she did not think TT knew about it. TT’s evidence was that in her conversation with the complainant at Cohen’s, the complainant asserted that she had, in fact, told her about the offending.

11. [236]

    Further, and even if the complainant’s evidence of what she told JT is accepted, it would follow that the first complaint was made approximately 7 years after the alleged offending. If her evidence was not accepted in that regard, then it would follow that the first complaint was made approximately 8 years later.

12. [237]

    For all of these reasons, the evidence of the complaint was lacking in both consistency and cogency.

The Facebook messages

1. [238]

   The Facebook messages exchanged between the complainant and ER, and the complainant and LW, are also significant, both in terms of their impact on the evidence of complaint, as well as in a more general sense.

2. [239]

   To begin with, not only did the complainant not disclose the Facebook messages to police, she asserted, in specific terms, that she had had “absolutely no contact” with the appellant and LW since leaving their care. That was obviously untruthful, and is a factor which reflects adversely upon the complainant’s credit.

3. [240]

   If the evidence of JT is accepted, the complainant had made no allegation of sexual offending at all, and certainly no allegation against the appellant, at the time that she exchanged the messages with ER. Yet, in the course of those messages, it was ER, someone who obviously held a great deal of animosity towards the appellant, who labelled the appellant a paedophile, not the complainant. In my view, there is considerable force in the submission advanced by senior counsel for the appellant that it was ER who, in the absence of any allegation of the complainant, was suggesting that the appellant was a paedophile. The complainant simply embraced those suggestions, in the absence of making any complaint or allegation herself. I am fortified in that view by the evidence that having acted in accordance with ER's direction and told LW to “keep (her) gronk husband away", and having told LW that she had a “pedophilic husband", the complainant failed to respond to two separate messages from LW in which had expressly asked her what she had meant.

4. [241]

   If, on the other hand, the complainant’s account of what she told JT were accepted, it would follow that at the time of exchanging messages with ER she had already made a complaint of sexual offending against the appellant. Accepting that to be the case, a number of further matters arise.

5. [242]

   Firstly, if a complaint had been made by that time, it had clearly not been made to ER. Accordingly, ER’s assertion that the appellant was a paedophile lacked any relevant context.

6. [243]

   Secondly, despite the fact that she was exchanging messages with a person to whom she was close and whom she trusted, the complainant said absolutely nothing to ER about the alleged offending at that time, even after ER had described the appellant as a paedophile.

7. [244]

   Thirdly, ER asserted to the complainant that she (ER) “had to do anything to get (the complainant) away from (the appellant) ……before the appellant did anything”, and that the complainant may have been “one of the lucky ones who got out in time”. ER was clearly asserting that she had removed the complainant from the appellant’s care before any improper conduct on the part of the appellant had occurred. That is completely inconsistent with the proposition that the complainant was subject to sexual assaults by the appellant during the time that she was in his care.

8. [245]

   Fourthly, ER’s assertions that she had effectively “rescued” the complainant provided the complainant with a clear opportunity to correct ER, and tell her that she was, in fact, assaulted by the appellant before she left his care. Indeed, in ER’s words, in raising those matters she was “opening the door for (the complainant) to let her know” what had occurred. In other words, she was giving the complainant the opportunity to tell her about the appellant’s conduct. Having been squarely provided with the opportunity to tell someone she trusted about what the appellant had done, the complainant said nothing. The alternative conclusion which is available on the basis of the complainant’s evidence is that far from not making a complaint to ER, she may have positively asserted to ER at one point that no offending had taken place at all. Neither conclusion reflects positively on the complainant’s credit.

9. [246]

   It is also important to bear in mind the general tone of the majority of the messages which passed between the complainant and ER. They were often punctuated with expressions and images of laughter, the complainant at one point telling ER that it was “fun fucking with (LW)”. The use of such expression was hardly consistent with discussing what was, as complainant conceded, hardly a laughing matter. Moreover, the complainant initially denied the suggestion that she was having a laugh at the expense of the appellant and LW, only to later to expressly concede that she was doing just that.

10. [247]

    Finally, a number of the statements made by ER in her exchanges of messages with the complainant were made in the context of assertions that she (ER) had “reported (the appellant and LW) to DOCS” and that she had “rang (the complainant’s) DOCS caseworker and lost (her) shit at her for putting (the complainant) in danger”. The evidence makes it clear that it was CT, not ER, who approached the authorities. Moreover, the evidence was that CT had done so in January 2009, some considerable time after the complainant had left the care of the appellant and LW. It was certainly not the case, as ER had repeatedly suggested to the complainant, that she had complained at all, much less for the purposes of having the complainant removed from the appellant’s care because of a fear that she was at risk of harm.

The complainant’s expressed desire to remain in the appellant’s care

1. [248]

   There is also objective evidence which is capable of supporting a conclusion that the complainant was happy whilst living with the appellant and LW, and had expressed a desire to stay.

2. [249]

   Firstly, there was evidence from both LW and AW that the complainant consistently gave the general impression that she was happy living with them. That was entirely inconsistent with the complainant’s evidence that she ceased liking to live with the appellant once he had committed the offending.

3. [250]

   Secondly, and perhaps even more importantly, there was evidence of specific statements made by the complainant to Cecilia Papadakis that she did not wish to move away from the appellant. On the Crown case, those statements were made, not just after the commission of the two alleged offences, but after the complainant had been living with the appellant for a period of approximately 6 months. On the complainant’s account, the appellant throughout that period, would “come and get (her)” whenever LW and AW were absent from the premises and assault her, to the point where such assaults became “pretty regular”.

4. [251]

   Whilst I accept that the complainant was only 7 years old at the time of her interview with Ms Papadakis, her expressed desire to stay with the appellant, to the point of becoming upset at the suggestion that she might have to move away from him, is consistent with the unchallenged evidence of LW and AW. It is also completely inconsistent with the proposition that she had been subjected to repeated sexual assaults over a lengthy period.

5. [252]

   In my view, such objective evidence casts further doubt on the complainant’s general reliability.

The absence of evidence injury to the complainant

1. [253]

   I do not regard the absence of evidence of injury to the complainant as being of any real probative value in all of the circumstances. The evidence of injury was limited to the complainant’s account of finding blood in her underwear on one occasion. There was no expert evidence before the jury as to what (if any) injury might be expected in light of the complainant’s evidence, and whether the complainant’s account of finding a small amount of blood on one occasion would be regarded as being inconsistent with her evidence of that particular assault. The matter was not the subject of any submission to the jury, an indication that trial counsel saw it as being of little or no significance.

2. [254]

   In my view, the submission advanced on behalf the appellant in this regard invites a significant degree of impermissible speculation.

The timing of the alleged offending

1. [255]

   There is, however, substance in the submission advanced by senior counsel for the appellant as to the unreliability of the complainant’s account of the timing of the relevant events.

2. [256]

   According to the complainant’s account, the offending in Count 2 occurred after Christmas 2007 in a bedroom that she shared with AW at the time. There was no issue that the complainant had joined the appellant’s family in October 2007.

3. [257]

   The unchallenged evidence of LW was that the appellant and AW had shared a room for only a “short period of time" which was “right at the beginning”. The evidence of AW was more specific. She said that she had shared a bedroom with the complainant for only one night. That evidence was similarly unchallenged. Over and above that, the evidence given by the appellant was that he had built a separate bedroom for AW prior to the time at which the offending alleged in count 2 had occurred.

4. [258]

   I accept that the Crown did not have to establish the precise time at which the offending occurred in each case. However, the combined evidence of LW, AW and the appellant tends completely against the offending in Count 2 having occurred in a bedroom that the complainant shared with AW. Although that evidence went specifically to the alleged offending in Count 2, it has a bearing on an assessment of the credibility of the complainant’s evidence in relation to the offending in Count 1. [207] This is a further matter which calls the complainant’s credibility into question.

Statements attributed by the complainant to the appellant

1. [259]

   I have already made reference to the evidence of the complainant that the appellant had variously said to her that she was “the devil", and that “she had the devil inside her." The complainant also asserted that at one point, the appellant had said to her that if she “ever felt like masturbating, she should come and tell him". The appellant denied each of those assertions.

2. [260]

   As to the first of those matters, I have already noted that in the complainant's exchange of messages with ER, it was ER who asserted that the appellant had “said some gross shit" to the complainant when she was living with him. There was no further elucidation at that point. The allegation that the appellant had told the complainant that she was “the devil" and that she “had the devil inside her" emerged for the first time in the course of the complainant's evidence in chief. Quite apart from the fact that the allegation emerged at a late stage, the report made by CT to the authorities was that the complainant had told her that it was LW, and not the appellant, who had said such things to her. That was of obvious significance in light of the appellant's denials.

3. [261]

   The second assertion made by the complainant, namely that the appellant had told her to come and tell him if she felt like masturbating, originated in the exchange of messages between the complainant and ER. I have already noted that in one of those messages, ER asserted to the complainant that the appellant had said some “gross shit to her when (she was) a kid”. In a later message ER told the complainant that it was “lucky" that she had told her and CT “what (the appellant) was saying”. The complainant's immediate response was to ask ER what she had said to her because she was “having a bit of a blank" barely remembered (the appellant) at all”. It was at that point that ER asserted that the appellant had told the complainant that if she “ever fell like masturbating to go and tell him". The complainant then said that she thought she “may vaguely recall that". This prompted ER to assert that she had informed the authorities about the matter and had remonstrated with them because of the fact that the complainant had been put in danger. For the reasons that I have already set out, the objective evidence established that it was not ER who had reported the appellant at all.

4. [262]

   Nothing at all was said by the complainant about these matters when she was interviewed by police. As with the first matter, this assertion emerged in evidence for the first time when the complainant was asked additional questions in chief by the Crown.

5. [263]

   LW's evidence was that she had observed the complainant seemingly engaging in masturbation at one point and that it was she who had said to the complainant that if she wanted to do that she should come and tell her. On LW's evidence, the appellant was it not a party to that conversation.

6. [264]

   This evidence, in my view, supports a conclusion that in making these assertions, the complainant effectively acted upon the suggestions of ER in their exchanges of messages. In each case, the preponderance of the evidence runs contrary to the complainant's assertions.

The evidence of the appellant’s prior good character

1. [265]

   Quite apart from all of these matters there was, as I have outlined, a plethora of evidence to support the fact that the appellant was a person of prior good character. That evidence included the fact that he had been accredited as a foster carer in 2007, an accreditation which was, as might be expected, awarded after an exhaustive assessment process. The evidence also supported a conclusion that, consistent with his prior good character, the appellant had discharged his responsibilities as a foster carer not only without complaint, but in a manner which had earned the unequivocal and unsolicited praise of Ms Taylor, in the context of a regime of continuous monitoring and reporting. Far from that regime disclosing any issues between the complainant and the appellant, it disclosed an unequivocal desire on the part of the complainant to want to stay with him.

2. [266]

   In all of these circumstances the appellant's repeated denials of wrongdoing are rendered particularly forceful. Such denials must be assessed in the context of having come from a person who was of unblemished character, of whom witnesses spoke highly and who, on the evidence, had carried out his duties as a foster carer in an exemplary fashion over a significant period of time. Given that the offending was said to have occurred when the appellant was carrying out those duties, the fact that he had otherwise done so without blemish was a matter of some significance.

3. [267]

   In these respects, I am particularly mindful of the evidence of Ms Taylor, whose evidence is deserving of considerable weight. I am equally mindful of the evidence of Ms Pearce, the vast majority of which was unchallenged. The force of such evidence cannot be ignored. In all of these circumstances, I am unable to accept the submission advanced by the Crown that the absence of any other offending on the part of the appellant may have been due to the fact that he had decided that it was “too risky" to continue to behave in such a way. Such a proposition is entirely speculative.

Conclusion

1. [268]

   As I have already set out, the task of this Court is to determine whether, notwithstanding that there is evidence upon which a jury might have convicted the appellant, it would nonetheless be dangerous in all the circumstances to allow the verdict of guilty to stand. [208] Proof of a matter beyond reasonable doubt involves a rejection of all reasonable hypotheses, or any reasonable possibility inconsistent with the Crown case. [209] As I have said, taken in isolation the complainant's account might be viewed as cogent. But that is not the way in which the question is to be approached. The entirety of the evidence must be assessed.

2. [269]

   Having undertaken that exercise, the complainant's assertions against the appellant, and her general credibility, are eroded. In a number of respects, those assertions do not sit with the objective evidence. Not only did some of them come to light at a late stage, some of them, including the fundamental assertion that the appellant was a paedophile, emanated from suggestions made to her by other persons. The entirety of the evidence also includes the appellant's sworn denials and the evidence of his prior good character which was elicited, not only through Crown witnesses but from witnesses called in his own case.

3. [270]

   In all of the circumstances I accept the submission of senior counsel for the appellant that there were a number of possibilities which were open on the evidence. These included the possibilities that:

4. [271]

   It is important to bear in mind that in order for a doubt to be a reasonable one, such possibilities must be reasonable, as opposed to being fanciful or speculative. [210]

5. [272]

   In my view, the possibilities raised on the evidence did not fall into the category of being fanciful. They were real possibilities which, in my view, the Crown failed to exclude on the whole of the evidence.

6. [273]

   For all of those reasons, this ground has been made out.

The directions of the trial judge

1. [274]

   At an early stage of her summing-up [211] the trial judge directed the jury as to the onus of proof in terms with which senior counsel for the appellant took no issue. The direction included the following: [212]

2. [275]

   Her Honour then referred to aspects of the appellant’s interview with the police, [213] his sworn evidence before the jury, [214] and the evidence of other witnesses who gave evidence in the defence case, [215] before saying: [216]

Submissions of the appellant

1. [276]

   Senior counsel for the appellant submitted that the trial judge should have directed the jury that:

2. [277]

   Senior counsel for the appellant acknowledged that no issue was raised by trial counsel to the direction which was given, and that r 4 therefore applied to this ground.

Submissions of the Crown

1. [278]

   The Crown submitted that the trial judge had discharged her obligation to give a clear and unequivocal direction to the jury as to the onus and standard of proof. It was submitted that the trial judge’s direction left the jury in no doubt that if they considered that the appellant’s version of what happened could possibly be true, they were required to acquit him. In circumstances where no further direction was sought by trial counsel, it was submitted that leave to argue this ground should be refused.

Consideration

1. [279]

   In Liberato v The Queen [217] Brennan J said:

2. [280]

   Deane J said: [218]

3. [281]

   In Roos v R [219] Gleeson JA (with whom Harrison and Davies JJ agreed) concluded that it would be wrong for a trial judge to indicate to a jury that guilt or innocence turned upon a “choice” between two inconsistent versions, but that a Liberato-type direction may be unnecessary where the jury is given clear directions regarding the onus and standard of proof. His Honour went on to say: [220]

4. [282]

   In the present case, over and above the directions as to the onus and standard of proof, the trial judge directed the jury that:

5. [283]

   Although the trial judge did not specifically refer to evidence of good character which had been elicited from Crown witnesses and upon which the appellant relied, I am satisfied that when viewed in their entirety, her Honour’s directions made it clear to the jury that if they considered that the appellant’s version of what had happened could possibly be true, they were bound to return a verdict of not guilty.

6. [284]

   As was the case in Roos, the trial judge did not suggest to the jury that they were required to choose between the Crown witnesses and the appellant as to who was to be believed. In my view, the jury could not have been left with the impression that it was only if they believed that the appellant’s evidence was true that they could have a reasonable doubt as to his guilt. The directions of the trial judge were generally to the contrary.

7. [285]

   In these circumstances, and given that no issue was taken by trial counsel to the directions given, leave to argue this ground should be refused.

The replaying of the complainant’s evidence

1. [286]

   After the jury had retired, the trial judge received a note [221] in the following terms:

2. [287]

   That part of the complainant’s interview which the jury asked to be replayed incorporated (inter alia) her account of the specific allegations in respect of the two Counts in the indictment. After receipt of the note, the trial judge and the Crown identified the relevant section of the recording and the jury returned to court. The jury returned to court and Q and A 53-175 were replayed. The jury then resumed their deliberations and a little over 20 minutes later, verdicts of guilty were returned.

Submissions of the appellant

1. [288]

   Senior counsel for the appellant pointed to the fact that the jury had not been reminded, be it before, during or after the re-playing of the complainant’s evidence in chief, of either her cross-examination or the appellant’s sworn evidence. Senior counsel also pointed to the fact that the transcript of the complainant’s cross-examination was not provided to the jury, and that there was no direction given to the jury:

2. [289]

   Senior counsel emphasised that the trial was one in which there had been considerable evidence adduced in the defence case. It was submitted that in those circumstances, the failure to remind the jury of the complainant’s cross-examination, and to direct them in the terms set out above, gave rise to a fundamental lack of fairness in the trial process, as a consequence of which there had been a substantial miscarriage of justice. It was again accepted that r 4 applies to this ground.

Submissions of the Crown

1. [290]

   The Crown submitted that in circumstances where the jury had available to them both the recording of the appellant’s interview and a transcript, the suggested directions were not necessary.

2. [291]

   The Crown pointed out that the terms of the jury’s note made it apparent that they only wished to listen to the recorded evidence of the complainant relating to the offending alleged in each Count. It was submitted that in these circumstances, and in the absence of any application being made by trial counsel, it was not for the trial judge to remind the jury of the complainant’s cross-examination, and/or the appellant’s sworn evidence.

3. [292]

   The Crown appeared to accept that had a direction been sought, it would have been open to the trial judge to give what the Crown described as a “misuse warning”. However, the Crown submitted that the failure to do so did not give rise to a miscarriage of justice.

Consideration

1. [293]

   In R v NZ [222] Howie and Johnson JJ said the following:

2. [294]

   Their Honours further said: [223]

3. [295]

   In Jarrett v R [224] this Court confirmed that no rule of practice or procedure should be laid down as to the circumstances in which a judge might permit evidence of the kind given by the complainant, in the present case to be replayed without any warning, or without reminding the jury of any relevant cross-examination. The determination of whether the failure of a trial judge to direct the jury in such terms will result in a miscarriage of justice will depend on a number of factors, including the nature and extent of the other evidence in the case.

4. [296]

   In the present case, there was considerable cross-examination of the complainant. The appellant repeatedly denied, both in his interview and in his sworn evidence, that the alleged offending had ever occurred. There was also a significant case put before the jury as to the appellant’s prior good character, not only on the basis of evidence called in the appellant’s case, but also on the basis of evidence elicited through the conversation of witnesses called by the Crown. In these circumstances, the failure of the trial judge to warn the jury as to the caution with which they should approach the re-playing of the complainant’s evidence gave rise to a miscarriage of justice.

5. [297]

   No application for such a direction was made by trial counsel at the time and accordingly, r 4 applies to this ground. In NZ, the decision to refuse leave under r 4 was based partly on the fact that there had been no defence case, and thus there was no risk of imbalance arising from the failure of the trial judge to give any direction at the time that the evidence was replayed. That may be usefully contrasted with the appellant’s trial where the position was very much to the contrary.

6. [298]

   In all of these circumstances leave to rely on this ground should be granted. For the reasons stated, the ground has been made out.

CONCLUSION

1. [299]

   My conclusion that grounds 1, 2, 3, 4 and 7 have been made out would otherwise result in orders being made upholding the appellant’s appeal, quashing his convictions and sentence, and ordering a new trial. However, in view of the conclusion that I have reached in respect of ground 5, I propose the following orders:

   1. (1)

      The appeal against conviction is allowed.

   2. (2)

      The convictions recorded against the appellant are quashed.

   3. (3)

      The sentences imposed upon the appellant are quashed.

   4. (4)

      Verdicts of acquittal are entered in respect of each of counts 1 and 2.