Krojs v R

1. [1]

   ADAMSON J: Dylan Krojs (the applicant) seeks leave to appeal against his conviction ordered following a trial by jury before Woodburne SC DCJ in the District Court at Sydney of sexual intercourse with a child between the ages of 10 and 14 years contrary to s 66C of the Crimes Act 1900 (NSW) which occurred between 16 and 19 June 2015. The applicant was charged with the following offences:

2. [2]

   As referred to above, he was convicted of count 2. He was acquitted of count 1.

3. [3]

   The applicant also seeks leave to appeal against the sentence imposed of 4 years’ imprisonment commencing on 30 August 2021 and expiring on 29 August 2025 with a non-parole period of 2 years’ imprisonment commencing on 30 August 2021 and expiring on 29 August 2023. Section 66C carries a maximum penalty of 16 years’ imprisonment. At the time of the offending, no standard non-parole period had been specified.

4. [4]

   The applicant’s grounds of appeal, if leave is granted, are as follows:

5. [5]

   Because of the breadth of the grounds of appeal, it is necessary to address, in some detail, the way in which the trial was conducted, as well as to summarise the evidence in the Crown case. The grounds of appeal against conviction will be addressed before the ground relating to sentence is addressed, although grounds 3 and 4 are related.

6. [6]

   All references to legislation in these reasons are, unless otherwise indicated, references to the Evidence Act 1995 (NSW) (the Act).

The trial

1. [7]

   Because the applicant, in support of ground 2, has submitted that the prosecutor took advantage of the applicant’s mental issues to provoke a reaction and cause him to lose his self-control before the jury, it is necessary to go into greater detail than would otherwise be required about the events preceding the trial which resulted in the guilty verdict on count 2.

2. [8]

   The alleged offence was committed in June 2015. The complainant participated in a recorded interview with police on 12 July 2017. She participated in a further interview on 31 October 2018.

3. [9]

   On 4 September 2018, the applicant was committed for trial in the District Court. He represented himself at the committal hearing and made admissions about conduct, which the prosecutor argued on the voir dire (but not at the trial) were admissible as tendency evidence (see below). On 17 September 2018, orders were made that the complainant’s evidence be given by way of pre-recorded hearing pursuant to s 84(2) of the Criminal Procedure Act 1986 (NSW). The applicant continued to represent himself until 26 November 2018, despite several mentions of the matter in the District Court.

4. [10]

   At a pre-trial hearing on 11 June 2019, Mr Williams (the applicant’s trial counsel) appeared before Girdham SC DCJ. The defence objected to tendency evidence sought to be led by the Crown. In the course of the morning, concerns arose about the applicant’s mental health because of his outbursts during the hearing. He saw a medical practitioner during the luncheon adjournment and was certified unfit on 11-12 June 2019. Her Honour stood the pre-trial proceedings over to 13 June 2019.

5. [11]

   On 13 June 2019, her Honour delivered a judgment in which she ruled that the tendency evidence was admissible. Ground 1 challenges the correctness of this ruling although the evidence adduced at trial as tendency evidence was confined to a statement of agreed facts (marked Exhibit C). On that day, the applicant was very distressed and made several outbursts. His trial counsel expressed concern that he was not fit to be tried. Subsequently, on 17 June 2019, defence counsel informed Girdham SC DCJ that the applicant was to be examined by a psychiatrist.

6. [12]

   As referred to below, on 4 September 2019, the complainant’s evidence was pre-recorded. A trial commenced before Traill SC DCJ and a jury on 4 February 2020. The complainant’s pre-recorded evidence was played to the jury. On 11 February 2020, the jury was discharged prior to verdict, in part because of the applicant’s outbursts but also because of concern regarding his fitness to be tried. Also on that date, the Court ordered that the applicant undergo a psychiatric examination, which was conducted by Dr Richard Furst. Relevant portions of transcript were provided to Dr Furst for the purposes of the examination.

7. [13]

   In a report dated 10 March 2020, Dr Furst reported that the applicant met the criteria for Attention Deficit Hyperactivity Disorder and Substance Use Disorder. He found the applicant fit to be tried but noted the stresses of litigation, particularly for someone with the applicant’s mental illnesses and “underlying temperamental/personality deficits.” Dr Furst noted that the applicant was not taking any stimulant medication and recommended that he take Ativan (Lorazepam), a sedative benzodiazepine medication which, with sufficient dosage, tends to alleviate acute anxiety and stress.

8. [14]

   On 4 February 2021, the applicant was arraigned on an indictment before Woodburne SC DCJ and a jury, which charged two offences set out above.

9. [15]

   The Crown case on count 1 was that, on the night of 17 June 2015, the applicant engaged in a single act of penile-vaginal intercourse with the complainant without her consent and knowing that she did not consent. At that time, she was 12 years old, having been born in January 2003. She had sought refuge at the applicant’s house because she had argued with her father and ran away from home. Count 2 was an alternative charge, which did not require the Crown to prove that the complainant did not consent or that the applicant knew that she did not consent.

10. [16]

    The Crown served a tendency notice dated 17 May 2019 pursuant to s 97(1). It stated in the notice that the applicant’s tendency sought to be proved was:

11. [17]

    The Crown notified the applicant that it proposed to rely on the following evidence:

    1. (1)

       the evidence of S in a statement dated 22 May 2018; and

    2. (2)

       the admissions made by the applicant at the committal hearing in the Burwood Local Court on 9 September 2018, when he said:

12. [18]

    The evidence in S’s statement referred to above was as follows. In February 2014, when S was 14 years old, she and the applicant met through Facebook. He identified himself as being 18 years old although he had just turned 19. He wanted to have sexual intercourse with her and she reluctantly agreed because she was worried that he would be violent. She subsequently broke off the relationship. Ultimately, when he refused to leave her alone she told him that she would tell others that they had had sex when she was underage.

13. [19]

    The applicant objected to the tender of the tendency evidence. He accepted that the evidence was relevant but contended, in reliance on Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [37]-[39] and [41]-[64] (Kiefel CJ, Bell, Keane and Edelman JJ), that it was not “significantly probative”.

14. [20]

    On the voir dire, the applicant argued that there was a fundamental difference between the evidence said to ground the tendency and the charged conduct, in that the intercourse between him and S was consensual, whereas the charged conduct was alleged to have taken place without the complainant’s consent (and was denied by the applicant).

15. [21]

    Girdham SC DCJ assessed the evidence as having high probative value. Her Honour said:

16. [22]

    Her Honour identified the following potential prejudice to the applicant of the tendency evidence:

17. [23]

    Her Honour applied s 101 and determined that the probative value of the tendency evidence substantially outweighed its prejudicial effect. As referred to above, the facts relied on by the Crown as tendency evidence were the subject of a statement of agreed facts (summarised below).

18. [24]

    As referred to above the complainant was born in January 2003. The complainant’s evidence comprised the following, which were played to the jury:

    1. (1)

       a pre-recorded interview on 12 July 2017 (when the complainant was 14 years and 6 months);

    2. (2)

       a pre-recorded interview on 31 October 2018 (when the complainant was 15 years and 9 months); and

    3. (3)

       pre-recorded evidence (examination in chief and cross-examination) taken on 4 September 2019 (when the complainant was 16 years and 8 months).

19. [25]

    In early 2015, the complainant, who was then aged 12, met the applicant, whom she knew as “Dylan”, through a mutual female friend, H, with whom the complainant was at school, and a male friend, KS (who was born in October 2001). At that time, the complainant and KS were girlfriend and boyfriend.

20. [26]

    The applicant was tall, about a foot taller than the complainant (who was 153cm in height), with blue eyes and short, brown hair. The complainant described him as “very skinny”. Her head would “go to his chin”. The complainant, at that time, weighed about 60kgs and was bullied at school for being “fat”. The complainant regarded the applicant as a good friend because he was a “really good listener” and she used to call him “a couple of times a week” if she was bored and she would “talk to him about a lot of stuff, like all [her] problems and everything.”

21. [27]

    When they met, the applicant told the complainant that KS was cheating on her with another girl and that she deserved better. This precipitated a romantic relationship between the complainant and the applicant. Her view was that her relationship with the applicant was a “romantic relationship” “from the beginning.”

22. [28]

    At one point in about early 2015, when the complainant was talking to the applicant on the phone, he asked her how old she was. She responded that she had just turned 12. He responded, “Oh, wow. I’m like, so much older than you.” When she asked him how old he was, he said that he was 17 (at the time he was actually 19).

23. [29]

    In mid-2015, the complainant, who was then 12, was living at Mount Druitt with her father, who was a “very big drug user”. She had lived with him since she was 11 years old. No other sibling lived at that residence at that time. The complainant’s father had a daughter, Sally (a pseudonym), who was older than the complainant, who lived with her mother in Taree.

24. [30]

    The complainant’s mother lived at Katoomba with the complainant’s four younger siblings. At that time, the complainant and her mother were not speaking because the complainant did not like her mother’s new partner. During this time there was a period of approximately 10 months when the complainant and her mother did not speak.

25. [31]

    In June or July 2015, at the time of the second State of Origin match (the significance of which is outlined later in these reasons), the complainant had woken up in the morning and told her father that she did not want to go to school. He became angry and said that if she did not want to go to school, she should get out of the house. She went to her room and started to get ready for school. Before she left the house, her father fell asleep. She decided that she no longer wanted to live with her father and did not want to go to school.

26. [32]

    The complainant phoned the applicant and asked him if she could stay at his place. She told him that she did not know where else to go and did not want to go to school. He agreed. She asked him if it would be a problem and asked where she would sleep. He told her that it would not be a problem because she could sleep in his room and he would sleep in the lounge room. The complainant did not tell her father where she was going because she knew that he would become angry with her if she did.

27. [33]

    The complainant grabbed her father’s phone and some money (about $3.50 or $4, because the cost of a train ticket from Mount Druitt to Revesby was about $3) and “jumped on the next train.” She got on the train at about 9am or 9.30am. At that time, she was attending Dunheved Chifley College in St Mary’s. The school day started at 8.35am. She turned the phone off to prevent her father from being able to contact her. She travelled to Central and changed trains to go to Revesby.

28. [34]

    At around the time she arrived at Revesby railway station, the complainant messaged the applicant and asked him to come and meet her because she was upset and did not want to walk by herself. He declined. According to the complainant, the applicant would “always make up excuses to not be out in public with [her] or come and see [her] or anything like that.”

29. [35]

    She went to the three bedroom house where the applicant was living with his father and his brother. The complainant and KS had visited the house previously, which was the occasion on which the complainant had first met the applicant. On 12 July 2017, the complainant drew a plan of the house and a diagram of the applicant’s bedroom, which became Exhibit B.

30. [36]

    The complainant and the applicant played on an Xbox console until the evening. The applicant’s brother may have come to the house that afternoon. The applicant and his father made spaghetti bolognese for dinner. The complainant helped them with the cooking. That night, the applicant’s father, his uncle and possibly also his brother, were watching the State of Origin rugby league match. The complainant and the applicant joined them. The three males were drinking alcohol. The applicant poured a drink of “double-strength”, “really strong alcohol” for her. It was Johnny Walker Red Label mixed with a little Coca-Cola. As far as she could recall she had two or three of these drinks and, as a consequence, “could hardly walk.” She regarded herself as “a lot more drunk than he was.”

31. [37]

    At some stage of the evening, the applicant’s uncle asked the applicant how old the complainant was and the applicant responded that she was 16. The uncle said, “She doesn’t look 16, where’s some ID?” The applicant responded, “She’s 16, she doesn’t have any ID.” The complainant said nothing to correct him. The complainant first mentioned this conversation to the police or the authorities in her pre-recorded evidence on 4 September 2019. She explained that the applicant’s whole family thought that she was 16. Previously, the applicant had told her that she had to pretend to be 16 because his father would be angry if he found out her true age.

32. [38]

    At about half-time in the match, the complainant went to the applicant’s bedroom to sleep as she was “really tired”.

33. [39]

    As soon as the complainant lay on the bed under the doona cover, the applicant came in. She saw him slide a lock on his door to “lock the door fully”. This had the result that no one from the outside could get into the room.

34. [40]

    The applicant came and laid beside her, also under the doona cover. She was wearing tights and a jumper. He was wearing a blue collared T-shirt and grey track suit pants. It was dark but light was coming from the computer monitor. The applicant put “really loud” music on his computer monitor on the bedside table. He kissed the complainant before getting “on top of” the complainant and pinning her arms against the bed. She froze. She had not kissed anyone before and did not know what to do. She tried to close her legs.

35. [41]

    He started to pull her tights and her pants down. Her tights were two sizes too big because they had been her cousins’. She said, “No, stop” and started to push him away from her. At some stage he had removed his track suit pants. He put his penis inside her vagina. He did not use a condom. When he was inside her she said, “Stop. Like, it really hurts.” He kept saying that it would feel better afterwards and that it was “all right”. She said, “No, it really, it really hurts. Like you need to get off me.” The complainant tried to get the applicant off her by pushing his shoulders and pushing his hips but to no effect. In the course of this, she ripped his T-shirt. She lay there crying. He rolled over and pulled her pants back up. The complainant cried herself to sleep. It was a big bed and she was up against the wall. She explained why she was crying, as follows:

36. [42]

    She stayed in the bed and did not leave the house because she “didn’t know what to do.”

37. [43]

    The complainant woke up at about 10am the following morning. The applicant said to the complainant: “Every single time I’d roll over and try to cuddle you, you’d scream at me in your sleep and tell me to get off you”. Her reaction to this was as follows:

38. [44]

    When the complainant got up that morning, the applicant’s father and brother had already left the house. She went to the toilet. She told the applicant that she was hungry. He was playing the Xbox and she went to the kitchen to make something to eat. She was “just thinking like, for ages while [she] was eating, like, [she] need[s] to leave.” Later, the applicant got up to make coffee.

39. [45]

    While the applicant was either out of his bedroom making coffee or in the shower, the complainant found a charger to charge her phone (she had not brought a charger with her). When the complainant turned on the phone, she discovered that her father had left a voicemail message telling her that he had called the police, who were looking for her, and that he just wanted her to come home. When she listened to the message, the complainant’s “jaw dropped” because she could tell that her father was crying on the phone and she had only ever heard her father cry once before. The complainant realised that she had to get home and tell her father that she was all right.

40. [46]

    The complainant wanted to communicate with her father or her half-sister, Sally, who was 16 years old. She realised that the way to get in contact with Sally was to use the applicant’s Facebook account (which could be accessed using his computer on the bedside table) to message her sister’s (Sally’s) best friend, Dina, (with whom Sally lived when she was not in Taree) and ask if she could go to her place. Dina lived in Doonside. The complainant knew that Sally was staying with Dina because she had seen Sally a few days earlier and Sally had told her.

41. [47]

    The complainant messaged Dina, “I’m safe and I’m fine. I’ll be coming home soon.” Dina told her to get the next train and meet her at the Seven Hills railway station. The complainant responded that she would be there in an hour.

42. [48]

    The complainant’s recollection was that she left the applicant’s place at about 3.40pm or 4pm. In re-examination, she explained why she had remained in the applicant’s house for so much of the day:

43. [49]

    As she was walking to the railway station, it was spitting and she was crying. She had to wait at least half an hour for the train to Central where she changed trains and boarded a train to Seven Hills. When she arrived at Seven Hills, it was “just dark”. Dina was waiting for her with her aunt, and Sally. The complainant said, at that time or later, that she told Dina and Sally what had happened. The complainant inferred from Dina’s face that Dina did not believe her.

44. [50]

    They took her to the Mount Druitt Police Station. Dina’s aunt informed police that the complainant was all right and was returning to her father’s house at Mount Druitt. The police indicated that they would resolve the missing person’s report. The complainant explained in her pre-recorded evidence on 12 July 2017 that she did not tell the police what had happened because her impression had been that Dina did not believe her and she reasoned that if Dina did not believe her then the police would also not believe her.

45. [51]

    In her evidence on 4 September 2019, the complainant said that she told her sister, Sally, sometime later about what happened with the applicant, which led Sally to suggest that she go to the doctor (see below). In her evidence on 4 September 2019, the complainant explained that she did not tell police what had happened because one of them was “very aggressive” and she expected them to say that she was “just another teenager that ran away from home”. She also “did not feel comfortable telling him [the police] something like that.”

46. [52]

    When she got back to her father’s place, the complainant did not tell her father what happened because she did not think that he would do anything about it because of his drug use. The complainant learned that, in her absence, her father and KS had been looking for her. Her father was “worried and angry”. The complainant and her father “got into a big argument and a big fight”. Her father hit her a few times with his hand. They argued about her running away, taking his phone and not contacting him at all to tell him that she was safe. Her father phoned KS to tell him that she had come back.

47. [53]

    As a result of the incident with the applicant and the fight with her father, the complainant felt “very distraught and depressed about the whole situation” which gave her “a lot of trauma”. As far as she was concerned her “relationship” with the applicant finished on the night he raped her. She did not tell her father about what happened with the applicant until at least a year later, although she continued to live with him.

48. [54]

    Either on the night of her return home or in the following days, the complainant rang KS and told him what had happened. His response was to tell her to go to the police because it was “rape”. She responded by saying that the applicant was 17 years old. KS told her that the applicant was 19. Until that time, she had understood, from what the applicant had told her, that he was 17. She explained, in her pre-recorded evidence on 4 September 2019:

49. [55]

    When the complainant told Sally what had happened, Sally suggested that she go to the doctor “to make sure that everything was okay”. She went to a medical centre in Blacktown with Sally, Dina and Dina’s aunt where she was seen by a male doctor. Sally told the doctor that the complainant had been to a sleep-over, which was a lie. Sally told the doctor that the complainant needed a pregnancy test and a Sexually Transmitted Infection (STI) test. The complainant did not tell the doctor that she was raped. Indeed, the conversation with the doctor was between Sally and the doctor. The complainant did not say anything.

50. [56]

    After the incident, the complainant did not return to school for more than a month because her “Nan” died and she travelled to Melbourne for the funeral. When she returned to the school, she did not tell anyone what had happened. She explained that she was not liked at that school because she was the “new girl” and that other girls would make up “horrible rumours” about her. She said:

51. [57]

    At some time after the incident, the complainant tried to message and call the applicant because she learned that he was angry with her for using his Facebook account to communicate with her sister, which led her sister to send the police to his address. On one occasion when the complainant was in class at school and she rang him, he answered and started yelling at the complainant. He told her that the police had come to his house after she left “that day” and that it was all her fault. She tried to explain how sorry she was and that her sister had been the one to tell police. He told her never to call him again and hung up on her. She tried to call him several times after this but, subsequently, she heard a recorded message saying that his phone had been disconnected. She has not had any further contact with him after that.

52. [58]

    Ultimately, when the complainant told her father about the incident, she also told him that she did not know what to do and that she needed his help. He said, “that wouldn’t have happened”; “you probably asked for it”; and “well, if you didn’t run away.” His response made the complainant feel “for a long time” that it was her fault because if she had not run away and had not drunk the alcohol that the applicant had given her, it would not have happened.

53. [59]

    In about July 2015, the complainant went to stay with her mother for about a month. While she was there, her father telephoned her mother and told her that he had found “quite explicit messages” and photographs which had been sent between the applicant and the complainant. When the complainant’s mother got off the phone, the complainant denied that explicit images and photographs had been sent and said that she did not want to talk to her mother about it. When her mother said that she was going to call the police, the complainant threatened to kill herself and told her mother that she loved the applicant. At that time, the complainant described her feelings as follows:

54. [60]

    Either that day or that evening, the police came to the complainant’s house to speak to her. When they asked if she and the applicant were in a relationship and if anything had happened, she responded that they were just friends. She did not tell the police what had happened for two reasons: first, she wanted to protect the applicant and, second, she was worried about the applicant’s reaction because the applicant was “really full of surprises and you’d never know how he was going to react with any situation.” Subsequently, the complainant was taken to hospital because she had threatened self-harm. She returned to her mother’s place and, after a few days, moved back with her father.

55. [61]

    In about late 2015, the complainant moved back to live with her mother. Their relationship was “a lot better” than it had been. When the applicant was either 13 or 14, she told her mother that the applicant had sexually assaulted her and that she wanted to do something about it. When the complainant told her mother what had happened, her mother contacted her father and told him that he should do something about it because the complainant was in his care when it happened. Her father told her mother that he would go to the police to report it but he did not do so. Her mother said that she would be with her every step of the way if she wanted to do something about it but the complainant did not know what to do. In her words, “nothing really happened after that.”

56. [62]

    In about May 2017, the applicant’s then girlfriend sent the complainant a friend request on the joint Facebook account she shared with the applicant. The complainant’s response was to think that it was “so wrong” that the applicant would think that he had not done anything wrong. She wanted him to know that he had done something wrong. As a consequence of this message, the complainant, who had issues with anxiety from a young age and had suffered “really bad depression” when her parents separated, experienced anxiety which “went through the roof”. She was too scared to sleep because she was worried that the applicant would find her and “come and do it to [her] again in [her] sleep”. She also had nightmares for a couple of months. She was scared to talk about it because when she spoke about it, she had nightmares.

57. [63]

    This was what made her decide to report the matter to Ms Boyall, the principal of her school, Katoomba High School, who referred her to the school counsellor, who then referred the matter to the police.

58. [64]

    A couple of months before 12 July 2017 (the pre-recorded interview), the complainant’s mother apologised to her for not doing something about it earlier and for leaving it to her father to go to the police (which he had not done).

59. [65]

    Sally gave evidence that she received a Facebook message from the complainant. She rang her father (who was also the complainant’s father) and found out that the complainant was missing. The complainant told Sally that she was at Revesby railway station. Sally, who was in Taree at the time, arranged for Dina, her then partner (ex-partner by the time of the hearing), to collect her. Sally travelled to Sydney from Taree, a journey of approximately eight hours. The three met at Blacktown station. By that time it was quite late. They went to Dina’s place to stay the night. Finally, the complainant told Sally that someone (whom she did not identify) had sexually touched her. The complainant also said that a male had got her drunk and put drugs in her drink. Sally told the complainant that she had to go to see a doctor to have some tests done, including a pregnancy test.

60. [66]

    Soon afterwards, Sally returned to Taree.

61. [67]

    KS had known the applicant when they were both teenagers. The applicant is older than KS. KS met the complainant in 2012 when he was 12 years old and introduced her to the applicant when KS took her to his place. At that time, KS told the applicant that the complainant was 16. KS believed that to be the truth. KS explained in cross-examination:

62. [68]

    KS recalled the complainant ringing KS to tell him that she had a fight with her father and that she was going to stay at the applicant’s house. KS became annoyed because he regarded her as his partner. He accepted that he and the complainant were not actually in a relationship at that point because they were “in an argument because [he] cheated on her at one point.” Prior to the argument, KS and the complainant had been in a relationship for about a year. KS did not accept that it was “a romantic relationship” because “we were just kids”. In cross-examination, KS accepted that, in his police statement dated 25 November 2017, he had said that he was at the applicant’s place when the complainant came and said that she was going to stay over as she had had a fight with her father and did not want to go home.

63. [69]

    Subsequently, possibly a night or two after it happened, the complainant, who was “frantic” at the time, told KS that the applicant had got her drunk and had “unconsensual sex” which she “didn’t want”. KS became annoyed and did not ask her about it because he did not want to know any more.

64. [70]

    As the complainant’s father died in 2021 (before the trial before Woodburne SC DCJ) his statement dated 6 December 2017, was read to the jury. He deposed that he was married to the complainant’s mother in 2006, had four children with her, including the complainant, and separated from her in 2013. In about 2013 or 2014, the complainant came to live with him in Mount Druitt. The complainant attended Mount Druitt Public School in year 6 and Chifley College Dunheved in Year 7.

65. [71]

    On 17 June 2015, the complainant asked her father if she could have the day off school as she did not feel like going to school. The complainant took her father’s phone and they started arguing. He told her that she could not have the day off school to go and meet up with “him”. He also told her that she could go and live with her mother if she was not going to listen to him. He demanded that she give him her phone but she refused. He grabbed her phone and threw it as hard as he could. It smashed. He told the complainant to go to school. He went back to bed.

66. [72]

    Later that morning, when he got up, he rang Chifley College to ask whether the complainant was at school. He was told that she had not attended any of her classes. Her father waited until school had finished to see if she would come home. He discovered that the complainant had taken his phone. He continually rang it but she did not answer it. He rang Mount Druitt Police. They came to his house so that he could fill in a missing persons form. He stayed at home, waiting and hoping that the complainant would turn up. He was frantic with worry for her safety. He continued to call his phone but it would go to voice message and was eventually switched off.

67. [73]

    At some time in the morning of 18 June 2015, the complainant’s father checked Facebook and could see that the complainant was on Facebook. He cancelled his SIM for the phone to prevent her from running up a large bill. He contacted Sally and his sister to ask them to contact the complainant via Facebook and tell her to come home. Sally reported that she had located the complainant and would pick her up and bring her home. Later that day, Sally, Dina, Dina’s aunt (whom the complainant’s father thought was Dina’s mother) and the complainant arrived at her father’s place. Sally told him that they had taken the complainant to the doctor to have her “checked out”. The complainant told her father that the boy she went to stay with would not let her charge her phone, which was why she did not call him.

68. [74]

    At first, the complainant’s father could not talk about it with the complainant because he kept getting upset. However, after a few days, the complainant told him that the boy had slept with her and that she told him to stop but he wouldn’t. The complainant told her father that that was why she needed to go to the doctor.

69. [75]

    On 20 June 2015, the complainant and a person noted to be her aunt, presented to Dr Hussaini, a doctor at the Pacific Medical Centre at Blacktown. Dr Hussaini recorded that the complainant, whose date of birth was noted to be in January 2003, had been to a sleep-over at a friend’s house and wanted to be checked for chlamydia and gonorrhoea. Dr Hussaini also noted that the complainant had reported that her father had hit her when she returned home from the sleep-over. The complainant’s urine was tested and she also had an x-ray to ascertain whether she had sustained a fracture of the right hand, which was tender on examination, where she said that she had been hit. The complainant made no other complaint of pain. The x-ray was found to reveal no fracture and the urine tests produced a negative result. The notes of the practice recorded that the complainant came in for review the following day but was seen by a medical practitioner other than Dr Hussaini.

70. [76]

    Dr Hussaini had a duty to disclose to the authorities any circumstance where someone under the age of 16 comes to him with any complaint of a sexual nature. Dr Hussaini did not disclose the matter to the authorities.

71. [77]

    The complainant’s mother confirmed that she met the complainant’s father in 2001 and they married in 2006. They had five children together, of whom the complainant was the eldest. They separated in October 2013, when the complainant was almost 11. Initially, the complainant’s mother had custody of all five children but, in about 2014, she started a new relationship. The complainant was not “happy with that” and went to live with her father, who lived at Mount Druitt. There was a period, which the complainant’s mother estimated to be about a year when the complainant and her mother did not speak to each other.

72. [78]

    On Sunday 12 July 2015 (a date ascertained from hospital records), the complainant was staying with her mother. Her mother received a phone call from her father who was “quite upset and angry”. He told the complainant’s mother that he had found messages and photos between the complainant and the applicant on his phone which were “quite explicit”. At that time, the complainant used her father’s phone.

73. [79]

    The complainant’s mother first spoke to the complainant, who told her mother, “We’re just friends”. Her mother then said that she would speak to the applicant to “see what he’s got to say about it.”

74. [80]

    The complainant’s mother called the applicant, of whom she knew nothing and with whom she had not previously spoken, and asked him “what was going on” concerning the images and messages. She also asked the applicant whether he knew that the complainant was only 12 years old. The applicant told the complainant’s mother that they were “just friends” and that there was nothing in it. He offered to put his girlfriend on the phone. The complainant’s mother, who was angry, spoke to the applicant for about 10 minutes, at the end of which she told him that “the police are going to have to deal with it then”.

75. [81]

    The complainant overheard her mother saying that she would call the police. The complainant started “yelling and screaming and … actually threatened to kill herself.” The complainant admitted that she loved the applicant.

76. [82]

    At that point, her mother called the police who, when they appreciated that the complainant was going to hurt herself, called an ambulance. As a consequence, the complainant spent the night in hospital. On that occasion, the complainant did not tell her mother that the applicant had had sexual intercourse with her. The complainant’s mother told the complainant’s father that he would be the best person to follow this up with the police.

77. [83]

    The complainant’s mother first made a statement to police on 4 September 2017. She did not learn that the applicant had had sexual intercourse with the complainant until she was contacted by police after a complaint had been reported through the complainant’s school.

78. [84]

    As of June 2017, Ms Boyall was the principal of Katoomba High School. She is a qualified teacher and psychologist. The complainant approached Ms Boyall on 7 June 2017. At that time, Ms Boyall had known the applicant for about two and a half years since she enrolled in Year 7 from a primary school at Mount Druitt.

79. [85]

    On 7 June 2017, the complainant came to the doorway of Ms Boyall’s office. She was very distressed, teary and jittery and asked if she could come in and talk. The complainant told Ms Boyall that a year and a half earlier, when she was living with her father, she had been raped. She told Ms Boyall that she had told her father of the incident but she did not know what had happened to that information. She said that she had decided to report it to the school because the school “obviously follow[s] process[es].”

80. [86]

    Ms Boyall considered that the school counsellor was the best person to support the complainant through such a disclosure. The complainant agreed to see the school counsellor, Julia Macken, immediately. After Ms Macken had conferred with the complainant, which took about an hour, Ms Macken told Ms Boyall that she was obliged to report the matter. Ms Boyall was present while Ms Macken made the mandatory report through the Helpline and heard her use the name “Dylan”. This report was communicated to the police as well as to the Department of Communities and Justice.

81. [87]

    Senior Constable Cooper gave evidence that, at 7pm on 17 June 2015, the complainant’s father came to Mt Druitt Police Station to report that the complainant had gone missing. He told police that he had not given the complainant his phone that morning and that she had become angry with him. He had fallen back to sleep and when he woke, he discovered that his phone was missing. He believed that she had taken it.

82. [88]

    At 6pm on 18 June 2015, when Senior Constable Cooper returned to duty, she learned that the complainant’s father had tried to contact her again. She called him back and he gave her Sally’s details. Senior Constable Cooper contacted Sally who informed her that the applicant was connected with her inquiry about the complainant. She identified the applicant’s premises in Revesby and arranged for police to attend the premises to ascertain whether the complainant was there. Police from the Bankstown Local Area Command went to the applicant’s house at 7.44pm but the complainant was not there.

83. [89]

    Police records noted that the complainant attended the Mount Druitt Police Station on 18 June 2015 and spoke to Constable Emma Roberts, who stated that the complainant was looking “well and healthy”.

84. [90]

    On 7 June 2017 this matter came to the attention of police as a result of Ms Macken’s report, which was received via the Joint Investigation Response Team Referral Unit.

85. [91]

    The complainant was first interviewed on 12 July 2017 by Detective Amanda Dench. Detective Dench ascertained that the State of Origin match was televised on 17 June 2015. She went to the applicant’s house on 20 September 2017 to arrest him but found that he was looking after his one-year old daughter who was ill. He consented to Detective Dench taking photos of the house (which were tendered and marked as Exhibit H), saying, “I have nothing to hide”. Detective Dench observed the applicant’s bedroom and the door, which she said was “just as [the complainant] had described it” and corresponded with the drawing the complainant had done when she was first interviewed by police on 12 July 2017.

86. [92]

    The applicant agreed to present himself at the Bankstown Police Station the following day, 21 September 2017, which he did. He was arrested. As was his right, he declined to be interviewed.

87. [93]

    The material which was the subject of argument in the voir dire was not tendered. Instead, the facts concerning the relationship between S, a female, and the applicant were the subject of the following agreed facts (set out in Exhibit C).

88. [94]

    S was born in May 1999 and was, in mid-February 2014, 14 years old. S met the applicant through a Facebook friend. S and the applicant messaged each other. In late February 2014, they met for the first time. They formed a romantic relationship. At all times during their relationship, the applicant knew S’s actual age. On 29 May 2014, during the course of their relationship, the applicant visited S at her home. While on S’s bed, they had consensual penile-vaginal sexual intercourse. At that time, S was 15 years old and the applicant was 18 years old.

89. [95]

    After the agreed facts had been read to the jury, her Honour gave a tendency direction (which is not challenged) as follows:

90. [96]

    The defence case was that there was no physical contact of a sexual nature between the applicant and the complainant on the night of the State of Origin match, or, indeed, at any other time. The defence case was that the applicant had allowed the complainant to stay in his bedroom on that night because she had called him in distress and told him that she did not have anywhere else to go.

91. [97]

    The applicant gave evidence as follows. The applicant first met the complainant when KS brought her with him to the house where the applicant lived with his father. KS himself lived only about a street away from the applicant. The applicant’s understanding was that they were in a relationship. KS told the applicant, in the complainant’s presence, that the complainant was 16. The applicant did not ask the complainant to disclose her age.

92. [98]

    The applicant subsequently became aware that KS and the complainant were arguing. After that first meeting, the applicant and the complainant were in “friendly” contact mainly over the phone by text message.

93. [99]

    On the morning of 17 June 2015, the applicant was woken by a telephone call from the complainant, who was in tears, asking if she could stay at his place because her father had kicked her out and she had nowhere else to go. The applicant agreed because he felt sorry for her. The applicant regarded her as “pretty much” “a total stranger” to him at the time and considered her to be KS’s girlfriend.

94. [100]

    The complainant arrived that morning and came to his bedroom where he was playing a video game called Grand Theft Auto (GTA). At that time, the applicant’s brother was at school and his father was at work.

95. [101]

    He was cross-examined about the complainant’s age in the following exchange:

96. [102]

    That evening was the State of Origin, which the applicant and his father and brother watched “religiously” every year. They ordered three meatlovers’ Domino’s pizzas and two 1.25l bottles of coke, which was a Domino’s deal at the time. The applicant and his father drank alcohol. The applicant’s brother, who was underage at the time, did not. The applicant did not offer the complainant any alcohol because, although he believed that she was 16, that was still underage. The applicant had three glasses of Black Label whisky. He did not have more because he was on a good behaviour bond at the time. (This revelation led to an unsuccessful application, which is not the subject of challenge, for the jury to be discharged.) As far as the applicant could recall, the complainant had a few glasses of Coca-Cola.

97. [103]

    After the match had finished, the applicant went to his bedroom and the complainant followed him in. He said that there was no prior arrangement about where she would sleep and she “pretty much told [him] she would sleep on my lounge in my room or whatever”. He asked her to take off her shoes (because he does not like people to wear shoes in his room) and sat down on the bed and started his playlist. He picked up the controller to play GTA. At this time, the complainant was sitting on his bed, playing with the computer.

98. [104]

    The applicant said that there was “no possible way of … locking that door” because his brother had earlier damaged the door. While he was playing GTA, he started to doze off. The complainant was still “playing the computer”. He slept through the night and woke at 7am. The complainant was between the bathroom and the lounge room speaking to his brother, who was getting ready for school and left shortly afterwards. By that time his father had already left for work. He denied that he had “sex of any kind” with the complainant.

99. [105]

    The applicant said that his bed did not have fitted sheets but that it did have a doona.

100. [106]

     As the applicant was walking through the house, he heard the complainant pick up the phone, which she had on loudspeaker, to listen to a voicemail message. The applicant heard a voice, which he presumed to be the complainant’s father, who was crying and begging her to come home. When he heard the message, the applicant told the complainant to get out of his house. He said, “what the hell, like you told me you got kicked out, why would your dad be ringing and now crying, I mean.”

101. [107]

     The applicant handed the complainant his computer so that she could message her sister.

102. [108]

     According to the applicant, the complainant left the house at some time between 11am and 3.30pm. She told him, as she was leaving, that she was going to her sister’s place at Seven Hills. She also told him that she was the subject of a missing person’s report. The applicant gave her $4.80 to get the train to her sister’s place.

103. [109]

     The police came to the applicant’s house to see if the complainant was there. She had already left. His response to the visit was as follows:

104. [110]

     The complainant phoned the applicant the following morning. She said:

105. [111]

     The complainant was crying during this call and told the applicant that her dad had hit her. The applicant did not know how the complainant found out that the police had come to his place to see if she was there.

106. [112]

     In the days following the State of Origin match, the applicant and the complainant had contact with each other “several times” by messages and phone calls. The complainant told him that she loved him. Subsequently, they lost contact with each other.

107. [113]

     The applicant denied ever having sent the complainant a friend request through Facebook. The applicant was shown a friend request from the complainant to him. He said that when he received the friend request, he declined and pressed the block button.

108. [114]

     In cross-examination, the applicant was questioned about having sexual intercourse with S at a time when he was 18 and she had just turned 15, in the following exchange:

109. [115]

     The applicant said that he admitted to the police that he had had sex with a girl who was underage. He was cautioned as a consequence. In re-examination, he said that it was “[his] lesson.”

110. [116]

     The applicant’s brother gave evidence. He said that the door of the bedroom which was the applicant’s at the time of the incident could be closed but would not remain shut and could not be locked.

111. [117]

     The applicant’s brother said that, on the evening of the State of Origin match, the complainant asked him how old he was and he asked her, in return, how old she was. She told him that she was 16 and he believed her. The applicant’s brother said:

112. [118]

     The applicant’s brother said that while they were watching the State of Origin match, only his father drank alcohol. He and the applicant drank Coca-Cola and the complainant had a glass of Coca-Cola and a glass of milk.

113. [119]

     After the match, the applicant’s brother went to bed. He did not hear anything coming from his brother’s bedroom that night. He said that if anyone was calling out, he would “most definitely” have heard it. He explained that this was:

114. [120]

     The morning after the match, the applicant’s father left for work at 6.40am, as he always did. The applicant’s brother got up and got dressed for school. He went to the kitchen to make coffee. At about that time, the complainant came out of the applicant’s room and sat down on the lounge in the sitting room. The applicant’s brother turned on the television news and drank his coffee while he was talking to the complainant, who “seemed completely fine”. They discussed a television show called Pretty Little Liars. He left for school at 7am.

115. [121]

     The jury retired to consider its verdicts at 2.59pm on 15 February 2021. At 2.46pm on 18 February 2021, the jury returned a not guilty verdict in respect of count 1 and a guilty verdict in respect of count 2.

116. [122]

     On 24 March 2021, Dr Furst re-examined the applicant for the purposes of the sentence hearing. He reported, of present relevance (to ground 2):

117. [123]

     Mr Nash, who appeared on behalf of the applicant, contended that leave was not required for any of the grounds of appeal against conviction. He submitted, in particular, that the question whether the tendency evidence was admissible was a question of law alone within the meaning of s 5 of the Criminal Appeal Act 1912 (NSW) and therefore did not require leave.

118. [124]

     Mr Nash referred to AJ v R [2022] NSWCCA 136 at [88] where Beech-Jones CJ at CL held that a ruling that evidence is admissible, when it is inadmissible is a “wrong decision [on a] question of law” within the meaning of s 6(1) of the Criminal Appeal Act.

119. [125]

     It is important to appreciate the difference between a “question of law” and a “question of law alone”.

120. [126]

     This Court considered the distinction between a ground that involves a mixed question of fact and law on the one hand and a ground that involves a question of law alone in R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199. The Court’s consideration illustrates what distinguishes a question of law alone from other questions.

121. [127]

     Relevantly, the grounds of appeal in R v PL were:

122. [128]

     Ground 2 was held to involve a mixed question of fact and law. Spigelman CJ (McClellan CJ at CL and R A Hulme J agreeing) said at [26]:

123. [129]

     By contrast, ground 3 was held to involve a question of law alone. Spigelman CJ said at [27]:

124. [130]

     R v PL was followed and applied by Beech-Jones CJ at CL (Walton and Price JJ agreeing) in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [14]. While, as has been held in Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 at [82] (Hamill J, Brereton and McCallum JJA agreeing), whether evidence is admissible is a question of law, it is not, on the basis of the reasoning in R v PL, a question of law alone.

125. [131]

     A ruling on admissibility of evidence over objection involves, where a legal principle is involved, a question of law, but the question is not one of law alone. The other two grounds are in a similar category in that they involve questions of law for the purposes of s 6 of the Criminal Appeal Act but not questions of law alone for the purposes of s 5.

126. [132]

     I regard each of the grounds raised as depending on the facts of the case. None is logically anterior to them. Thus, I consider leave to be required in respect of each of these. As I am satisfied that, for the reasons which follow, leave ought be granted in respect of each of the grounds, I do not consider it to be necessary to address in any further detail whether each of the grounds requires leave or amounts to a question of law alone.

127. [133]

     Mr Nash contended that Exhibit C was inadmissible on the following grounds:

     1. (1)

        it did not prove a relevant tendency; and

     2. (2)

        it lacked substantial probative value.

128. [134]

     Thus, Mr Nash submitted that the evidence did not fall within s 97(1) because the evidence was not capable of proving that the applicant has or had a tendency to act in a particular way, or to have a particular state of mind. Further, he submitted that the evidence by itself or with other evidence adduced by the Crown, did not have “significant probative value”.

129. [135]

     Mr Nash contended that Exhibit C did not support the relevant tendency because it lacked any material to support the tendency in (b)(i) of the notice (tendency to act on his sexual interest in female children under the age of 16 years who he knows to be under the age of 16 years) and, further, that it was not actually a tendency. He submitted that a single prior example of conduct could not constitute a tendency.

130. [136]

     Before evidence is admissible under s 97(1) to prove that the applicant has or had a tendency to act in a particular way, or to have a particular state of mind, the court is required to be satisfied that the evidence will, by itself or taken with other evidence adduced by the party seeking to adduce it, have “significant probative value”. Section 101(2) provides that, in a criminal proceeding, tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the defendant. The present appeal turns on s 97(1) rather than s 101(2).

131. [137]

     In Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288, this Court (Beazley P, Hall and Wilson JJ) held, at [86], that it was not necessary for evidence to be admissible as tendency evidence, that the conduct be repeated so as to constitute a pattern. Rather, a single incident could have significant probative value if it was capable of providing foundation for the inference to be drawn that the accused has acted in a particular way on an occasion prior to that on which the offence charged occurred. I understood Mr Nash to accept that the evidence in Exhibit C was probative on the question whether the applicant had had sexual intercourse with the complainant (being the element common to the offence in count 1 and the offence in count 2). I did not understand it to be suggested by the Crown that the tendency evidence was relevant to the other two elements of count 1 (whether the complainant consented and the applicant’s state of mind as to whether the complainant consented).

132. [138]

     The meaning of the word “significant” in the context of the expression “significant probative value” for the purposes of s 97 is to be answered by reference to what this Court (Simpson J) said in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [180]:

133. [139]

     I consider that the agreed facts in Exhibit C are sufficient to support the tendency alleged, including (b)(i), as the applicant did befriend S and they did develop a relationship and did have sexual intercourse when S had, to the applicant’s knowledge, just turned 15. I consider there to be a relevant tendency in that not every 18 (in the case of the intercourse with S) or 19 year old male has a sexual interest in under-age (younger than 16) females. The tendency is not based on the age difference alone but also on the youth, immaturity and incapacity to consent, of the females.

134. [140]

     Without such evidence, it might be difficult for the jury to believe that the applicant, aged 19, could have had a sexual interest in the complainant, aged 12 and act on it, that being improbable as a matter of human experience. However, the fact that he did have a sexual interest in S when she was 14 and acted on it by having sexual intercourse with her shortly after she turned 15 makes it more likely that the applicant had a sexual interest in the complainant and acted on it by having sexual intercourse with her when she was 12 and he was 19. The force of evidence such as this as tendency evidence was explained in Hughes v The Queen at [60] (Kiefel CJ, Bell, Keane and Edelman JJ) in the following terms:

135. [141]

     I regard the probative value of Exhibit C as significant. I am not satisfied that ground 1 has been made out.

136. [142]

     There are three aspects to the applicant’s complaint about the prosecutor: his questioning of Crown witnesses; his cross-examination of the applicant; and the content of his final address.

137. [143]

     Mr Nash submitted that the prosecutor’s use of “we” and “us” in questioning Crown witnesses and cross-examining the applicant amounted to an improper attempt to “align himself with the jury”. The examples relied on included the following:

138. [144]

     In substance, Mr Nash submitted that the prosecutor, knowing of the applicant’s mental difficulties, having regard to the procedural history of the matter (summarised above), deliberately provoked the applicant to get him to become emotive, if not lose control, in front of the jury, with a view to using that conduct in his final address as a demonstration of how the applicant acted in the course of committing the alleged offence. Mr Nash relied on the following two examples in the cross-examination of the applicant.

139. [145]

     The first example related to the circumstance that the applicant did not contact KS when the complainant asked if he could stay the night at the applicant’s home. Mr Nash relied on the following passage from the transcript:

140. [146]

     Mr Nash submitted that it was unfair of the prosecutor to question the applicant in circumstances where the Crown had led evidence from KS that the complainant had called him on 17 June 2015 and told him that she was going to the applicant’s place.

141. [147]

     The second example relied on occurred during the cross-examination of the applicant as to why he “kicked out” the complainant on 18 June 2015. Mr Nash relied on the following:

142. [148]

     This exchange occurred in the context of the complainant having told the applicant that she could not live with her father and the applicant hearing the voice mail message which was left by the complainant’s father when he was obviously distressed, worried about her and wanted her to come home. The applicant indicated in his evidence that he regarded her as having lied to him and gave this as the reason for making her leave his house on 18 June 2015.

143. [149]

     The prosecutor cross-examined the applicant to the effect that he was seeking to emphasise that he believed that the complainant was 16 years old. Mr Nash submitted that the following question was unfair:

144. [150]

     He submitted that it drew the jury’s attention to the applicant’s belief as to the complainant’s age. Further, he contended that the words, “you say” implied that the truth of the applicant’s account was in issue. Mr Nash submitted that it was inappropriate for the prosecutor to insinuate that the account was in issue in circumstances where KS had given evidence (in the Crown case) to the same effect (namely, that he had, when he visited the applicant with the complainant, told the applicant that the complainant was 16).

145. [151]

     Secondly, Mr Nash complained about the following passage of the prosecutor’s cross-examination of the applicant (after he had said that KS had told him that the complainant was 16):

146. [152]

     Mr Nash submitted that the questioning was unfair for two reasons: first, because it sought insight into what was in KS’s head (“why did he feel the necessity …?”); and, secondly, because it misrepresented KS’s evidence that he had volunteered his knowledge of the age of the complainant to the applicant when he arrived at his house on a prior occasion.

147. [153]

     Mr Nash also relied on the following portion of the cross-examination of the applicant:

148. [154]

     Mr Nash submitted that the prosecutor made inappropriate reference of the applicant’s demeanour in the witness box and used it with a view to demonstrating that the applicant was guilty of count 1. He relied on the following passages:

149. [155]

     There is a preliminary question whether leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) was required to raise this ground as no objection was taken by the applicant’s trial counsel to these matters. Rule 4.15 provides:

150. [156]

     In the present case, no objection was taken to any of the questions asked by, or conduct of, the prosecutor, which Mr Nash contended in this Court were inappropriate or unfair. Thus, no direction or omission to direct, or decision as to the admission or rejection of evidence was called for. In these circumstances, r 4.15 does not apply in terms. However, accepting that to be the case, the considerations which lie behind r 4.15 are nonetheless relevant: Edwards v R [2022] NSWCCA 22 at [69] (Dhanji J, Bathurst CJ and Rothman J agreeing).

151. [157]

     Although the transcript comprises an accurate record of the words uttered, it cannot reveal the tone used (except to the extent that the judge or the legal representatives note such matters for the record). Thus, it does not reveal whether cross-examination was conducted in a snide, derogatory manner, designed to inflame a witness, or courteously in a balanced but firm voice. Nor does the transcript reveal whether a witness is becoming riled by questioning or able to deal with it in a robust way: see the discussion in Skelton v R [2015] NSWCCA 320 at [63]-[66] (Beazley P and Davies J). These are matters to which those present at a trial are privy but this Court is not.

152. [158]

     It can be assumed, in the absence of incompetence (and there is no suggestion that the applicant’s counsel was incompetent in the present case), that the applicant’s trial counsel was alert to protect the applicant’s interests. Had the applicant’s trial counsel considered the prosecutor’s questioning or closing submissions to be unfair, he could have objected, sought a direction from the trial judge or sought a discharge of the jury. He did none of those things. Yet, the record showed that the applicant’s trial counsel was alert to the applicant’s fitness and to the potential damage that, for example, the applicant’s disclosure that he was on a good behaviour bond, could do to the applicant’s case. These general observations constitute, in the circumstances of the present case, powerful matters which militate against the complaint in ground 2.

153. [159]

     This Court summarised the principles governing the conduct of prosecutors in a criminal trial in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [265]-[275] (Beazley P, Schmidt and Button JJ).

154. [160]

     There are significant obligations on prosecutors to be fair. But the concept of fairness must be seen in the context that the prosecutor’s duty is to put the Crown case as forcefully as appropriate: Zurshig v R [2021] NSWCCA 309 at [115] (myself, Basten JA and Wright J agreeing). This Court (Basten AJA, Price and N Adams JJ) in Crockford v R [2022] NSWCCA 115 distilled the propositions identified in Glenn (a pseudonym) v R [2020] NSWCCA 308 at [189]-[219] (N Adams J, Hoeben CJ at CL and Button J agreeing) as follows:

155. [161]

     In the present case, proof of the prosecution case required the Crown to persuade the jury that the applicant’s version could not possibly be true. This was not a case where a witness might have been mistaken about a matter: the complainant’s evidence was that the applicant had had sexual intercourse with her without her consent and the applicant’s case was that there had been no sexual touching whatsoever. Thus, it was necessary for the prosecutor, in order to put the Crown case, to seek to discredit the applicant with a view to the jury rejecting his evidence. However, the prosecutor was bound to do so in a temperate way and ensure that the substance or form of his delivery was not unfair and did not inflame the jury’s emotions. The following principle from Hughes v R at [269] is apposite to this task:

156. [162]

     The “topics” which were available to the prosecutor to attempt to discredit the applicant included the following:

     1. (1)

        despite the fact that the applicant was a friend of KS and knew the complainant to be KS’s girlfriend, the applicant did not suggest that KS look after her when she ran away from home;

     2. (2)

        the applicant was concerned to emphasise that he believed the complainant to be 16 years old, although the jury had evidence in the form of a contemporaneous photograph (Exhibit A) which made it inherently implausible that she was actually 16 (because she looked younger); and

     3. (3)

        the applicant had already had sexual intercourse with a girl, S, whom he knew to be underage and, thus, the jury could reject the applicant’s evidence that, had he known the complainant was 12, he would not have let her into the house.

157. [163]

     In these circumstances, it was, in my view, open to the prosecutor to question the applicant on these topics. While certain objectionable questions were asked (including the one which required the applicant to speculate about what was going on in KS’s head), there is no indication from the transcript that the applicant was not capable of answering them. Indeed, although the applicant’s counsel did not object to the question which required the applicant to speculate about KS’s thought processes, the applicant’s answer made the point sufficiently.

158. [164]

     Further, although KS said that he had told the applicant that the complainant was 16, the complainant herself had given evidence that she had told the applicant, some time earlier in 2015, that she was 12. The Crown was entitled, in these circumstances, to put to the applicant that he knew that the complainant was 12. It was also open to the Crown to put to the applicant, in effect, that he was using what KS had said to him about the complainant’s age to justify his allowing her to stay at his place and sleep in his bed. The prosecutor was entitled to challenge his evidence that he would not have allowed a 12-year old to stay. These matters all fell within the prosecutor’s obligation to put the Crown case and to challenge the applicant’s evidence, to the extent to which it was inconsistent with the Crown case.

159. [165]

     The applicant’s trial counsel was well aware of the procedural history to the matter and, as the narrative above sets out, raised the issue of the applicant’s fitness for trial. He knew that the applicant’s condition was being controlled with medication and asked that he give his evidence in the morning because that was a better time for him. This application was acceded to. Had he considered that the applicant was at a disadvantage in this respect, it would have been open to him to apply for an adjournment in the absence of the jury.

160. [166]

     By raising the issue of the applicant’s demeanour in the Crown closing address, the prosecutor was appropriately affording natural justice to the applicant. The jury were given directions about assessing credibility and told to observe the way witnesses gave their evidence. Further, the Crown had to raise demeanour so that the jury would know what the Crown said about the applicant’s demeanour. It was reasonable for the Crown to anticipate that it would be raised by the defence and appropriate for the Crown to raise it in order that the defence could respond to it.

161. [167]

     I do not consider the prosecutor’s use of the words, “we” and “us” as improper. There are various ways in which an advocate (whether for the Crown or for the defence) can communicate with the jury about answers given by a witness. Instead of saying, “you’re saying X”, the advocate could say, “you’re telling the Court X” or “you’re telling the jury X”, or, as in the present case, “you’re telling us X”. The personal pronoun, “me”, is rarely used because the jury is the relevant tribunal and, thus, although the answer is given to the advocate’s question, the trier of fact is the jury. Thus, the answer becomes evidence which the jury can take into account in its deliberations. I do not consider that, by using the words “we” and “us”, the prosecutor was trying to align, or ingratiate, himself with the jury. It was simply a turn of phrase which was designed to indicate that, although the prosecutor was asking the question, the answer was to be taken into account by the jury as a whole as well as the judge, for the purposes of the conduct of the trial generally and the summing up.

162. [168]

     As the transcript extracts set out above indicate, there is a degree of looseness and repetition in some of the prosecutor’s questions which may have been a product of fatigue or lack of confidence that the point had already been made. Trials are dynamic and make substantial demands on counsel, particularly during cross-examination and final address. I do not regard these matters as affecting the fairness of this trial in any material way. This is particularly so as the applicant was acquitted of count 1, which was the count to which consent, and the applicant’s mental state as to the complainant’s consent were germane.

163. [169]

     For these reasons, I am not persuaded that ground 2 has been made out.

164. [170]

     The applicant submits that the verdicts were unreasonable on the following bases:

     1. (1)

        the prosecutor:

     2. (2)

        there was no basis in the evidence to find the applicant guilty of count 2 because if the jury doubted the complainant’s evidence about consent, they must have entertained a doubt about the sexual intercourse having occurred; and

     3. (3)

        there were significant inconsistencies within the complainant’s account and between the complainant’s account and the complaint witnesses’ evidence such as to make the verdict unreasonable on the basis considered in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

165. [171]

     The principles which apply in determining whether a verdict of guilty is unreasonable were summarised by Johnson J (Cavanagh J agreeing) in Khorami v R; R v Khorami [2021] NSWCCA 228 at [140]-[146]. It is not necessary to repeat them. In essence, the question for this Court is whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of the offence of which the jury found him guilty.

166. [172]

     Because ground 3 was put on different bases, it is necessary to address them in turn.

167. [173]

     It was open to the Crown to address the jury on the basis of the more demanding standard of knowledge rather than recklessness in terms of the mental element of count 1. This was to the advantage of the applicant since, had the jury been satisfied that the applicant was reckless as to the complainant’s consent, the jury would have returned a not guilty verdict. By contrast, had the prosecutor addressed on knowledge and recklessness, the jury would have been obliged to convict if they were satisfied of recklessness but not knowledge.

168. [174]

     This approach had potential advantages for the Crown on sentence since, had the applicant been convicted on count 1, he would have been sentenced on the basis that he knew that the complainant was not consenting, this being the only basis on which count 1 was put to the jury: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung).

169. [175]

     The Crown has a right to allege alternative counts on an indictment: s 23(3) of the Criminal Procedure Act 1986 (NSW). There is no basis in the present case for any suggestion that the Crown did not press count 2 on the indictment (of which each juror was given a copy). It was plainly in issue in the course of the trial. The complainant was 12 years old at the time the applicant is alleged to have had sexual intercourse with her. If the jury was not satisfied of the elements of count 1, but satisfied that the intercourse occurred and of the applicant’s state of mind about the complainant’s age, the jury was obliged to return a guilty verdict in respect of count 2. In the circumstances of the present case, it was not necessary for the Crown to separately address count 2, which was, in substance, subsumed within count 1 but did not require the same mental element as count 1.

170. [176]

     The trial judge gave directions to the jury about each of the two counts and identified the elements of each count. Her Honour told the jury that if they were not satisfied that the applicant was guilty of count 1, they should proceed to consider count 2. Her Honour’s directions, which were not the subject of objection at the time or challenge before this Court, included the following:

171. [177]

     I am not persuaded that the verdict of guilty of count 2 can be impugned by reason of the circumstance, which was understandable in the present case, that the Crown did not specifically address on count 2. One might ask rhetorically what the Crown would have said about count 2 other than to paraphrase what the prosecutor could reasonably have expected the trial judge to say, in the form of directions, about the jury’s consideration of count 2, if they were not satisfied of the applicant’s guilt of count 1.

172. [178]

     Mr Nash submitted that the verdict of not guilty of count 1 was explicable on the basis that the jury did not accept the complainant’s evidence that she did not consent to the act of sexual intercourse. He submitted that if the jury entertained a doubt about this aspect of the complainant’s evidence, the jury ought to have entertained a doubt as to whether the sexual intercourse occurred at all and, thus, the verdict in respect of count 2 was unreasonable.

173. [179]

     I do not accept this analysis. Although Mr Nash ultimately accepted that the verdict of not guilty on count 1 was not inconsistent with the verdict of guilty on count 2 (an inevitable concession given that count 2 was an alternative charge), it does not follow from the not guilty verdict on count 1 that the jury had any doubt about the complainant’s evidence.

174. [180]

     The verdict of not guilty on count 1 was consistent with the jury accepting the complainant’s evidence that:

     1. (1)

        the sexual intercourse had occurred; and

     2. (2)

        that the complainant did not consent to the sexual intercourse

     3. (3)

        the applicant knew that the complainant did not consent.

175. [181]

     Element (3) required the jury to consider the applicant’s state of mind, which could not be determined by their acceptance of the complainant’s evidence. Thus, a verdict of not guilty on count 1 does not lead to an inference that the jury had any doubt about the complainant’s evidence. Indeed, the guilty verdict on count 2 indicates that the jury accepted the complainant’s evidence that there had been sexual intercourse. It also tended to suggest that the jury accepted her evidence that she had told the applicant that she was 12 and thus, it was not reasonable of the applicant to rely on KS’s statement to him that she was 16.

176. [182]

     Mr Nash also submitted that there were several unsatisfactory aspects to the complainant’s evidence which meant that she could not reasonably be accepted as a credible witness. He relied on the following:

     1. (1)

        the substantial period of time the complainant spent at the applicant’s home the day after the alleged offence;

     2. (2)

        inconsistencies in the evidence about the persons to whom she disclosed the sexual contact and when such disclosures occurred:

     3. (3)

        Other evidence which made the complainant’s evidence objectively unlikely, such as the applicant’s brother’s evidence that he had not heard any cries of “Stop” (or similar) coming from the applicant’s room that night and that the complainant had not appeared distressed the following morning.

177. [183]

     I do not regard the matters raised by Mr Nash as materially bearing on the complainant’s credit to the point that it can be inferred that a reasonable jury must have had a doubt about her evidence.

178. [184]

     The jury was, appropriately, directed that they could accept part of a witness’ evidence and reject, or not accept, other parts. The details of whom the complainant told and when, were, in the context of the charged offence itself, relatively peripheral. It was open to the jury to accept Sally’s evidence that the complainant had difficulty revealing what had happened but eventually disclosed enough to Sally to lead Sally to realise that the complainant should have a STI test and a pregnancy test. Although the precise timing of that disclosure is not known, it occurred within a day of the alleged offence and not long after Sally arrived from Taree to see the complainant, having made the trip because of her concern for her sister.

179. [185]

     Further, KS’s evidence that the complainant told him, not long after the event, that the applicant had got the complainant drunk and had sexual intercourse with her may also have influenced the jury to be satisfied that it had actually happened, as the complainant had described it.

180. [186]

     In her evidence about trying to get in contact with the applicant, the complainant explained that she felt that she had to apologise for the police coming to his place and tell him that she was not the one who had caused that to happen. Further, the jury might have regarded the following pre-recorded evidence on 4 September 2019 as bearing on the question of her judgment about the applicant:

181. [187]

     The jury might have been impressed by the complainant’s naiveté, as illustrated by her evidence that she had never been kissed before and therefore did not know what to do when the applicant started to kiss her. Her evidence, including the passage set out above, indicated that she had no real idea about what the physical aspect of a “relationship” entailed.

182. [188]

     The jury may have regarded the applicant’s brother’s evidence as being affected by their relationship and may have regarded the applicant’s brother’s evidence about not hearing the complainant saying “Stop” as unreliable on that basis, or on the basis that the complainant said it but that he did not hear it from his bedroom.

183. [189]

     As to the question of who initiated the Facebook friend request, the complainant or the applicant’s girlfriend, it was open to the jury to accept the complainant’s evidence that she had several Facebook accounts and had been locked out of several because they had been hacked. In these circumstances, the jury might have regarded the Facebook friend request which had apparently come from the complainant to the applicant (which was tendered in the applicant’s case) as unlikely to be genuine.

184. [190]

     For the reasons given above, ground 3 has not been made out. I consider that it was open to the jury on the whole of the evidence, including the evidence relied on by Mr Nash as being inconsistent, to be satisfied of the applicant’s guilt of count 2 beyond reasonable doubt.

185. [191]

     As ground 4 is so confined, it is not necessary to summarise the proceedings on sentence or the reasons for the sentence. It is necessary to address only the submissions on the relevant factual finding and her Honour’s reasons for making that finding. Ground 4 is closely related to ground 2.

186. [192]

     Judge Woodburne SC was the trial judge and the sentencing judge. There was no additional evidence on the proceedings on sentence which was germane to the finding of the circumstances of the offence under count 2, for which the applicant was to be sentenced.

187. [193]

     The Crown relevantly submitted, in writing that the following ought form the basis for the sentence to be imposed on the applicant for count 2, as it was the complainant’s evidence, which the jury accepted:

188. [194]

     The Crown submitted further:

189. [195]

     The applicant’s counsel responded to these submissions in the proceedings on sentence as follows. He submitted that it was significant that the prosecutor had not closed on count 2. He said that the Crown case for count 1 was based on the complainant’s accuracy and reliability and noted that the jury did not find him guilty of count 1. Thus, he submitted on sentence that the sentencing judge was left with the jury finding the applicant guilty of intercourse with a 12-year old, “but not against her will”. He submitted that the two verdicts were irreconcilable.

190. [196]

     Her Honour addressed the issue referred to above as follows in the sentencing judgment:

191. [197]

     In R v Isaacs (1997) 41 NSWLR 374 (Isaacs), this Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ), at 379-380, overturned authorities which had sanctioned the questioning of juries as to the basis of their verdict. Their Honours, at 378, identified the following principles, which were said to apply not only to manslaughter (the relevant offence in Isaacs) but also to other offences:

     1. (1)

        it was for the judge to find the facts which are material to the exercise of the sentencing discretion, so long as the facts were consistent with the jury’s verdict (following Savvas v The Queen (1995) 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1995] HCA 29).

     2. (2)

        the sentencing judge is not required to sentence the offender on the basis of the view of the facts which is most favourable to the offender but must be satisfied of those matters which were to be taken into account adversely to the offender, beyond reasonable doubt: see also The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [25] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

192. [198]

     The Court in Isaacs held that the sentencing judge’s task was not to determine the basis on which the jury had found the appellant guilty of manslaughter, but rather to find the facts which were material to sentencing, consistent with the jury’s verdict of manslaughter.

193. [199]

     These principles were confirmed and applied by the High Court in Cheung. The appellant in Cheung was charged with being knowingly concerned in the importation of almost 50kg of heroin. An accomplice gave evidence that the appellant had been involved in the planning, implementation and importation over a period of about nine months. The appellant was sentenced on the basis of the accomplice’s evidence of his greater involvement. The appellant appealed on the basis that the judge was obliged to sentence on the basis of a view of the evidence which was most favourable to him.

194. [200]

     When addressing the duties of the sentencing judge, the plurality (Gleeson CJ, Gummow and Hayne JJ) said at [5]:

195. [201]

     The principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) is also significant. It is that an offender is to be punished only for the offence of which he or she has been convicted and not for other acts which are not the subject of the verdict which could have constituted a more serious offence: at 389 and 392 (Gibbs CJ, Mason and Murphy JJ agreeing).

196. [202]

     In the present case, the sentencing judge, for reasons given in her sentencing judgment, sentenced on the basis that the sexual intercourse was the result of physical coercion and pressure. Her Honour was entitled to do so as long as:

     1. (1)

        the finding was consistent, and not inconsistent, with the jury’s verdicts;

     2. (2)

        the finding did not breach the De Simoni principle; and

     3. (3)

        it was open to her Honour to make that finding beyond reasonable doubt (it being a finding adverse to the applicant).

197. [203]

     The finding that the sexual intercourse was forceful in circumstances where the complainant did not consent to sexual intercourse was not inconsistent with the verdict of not guilty of count 1. All that can be said with confidence about the verdict of not guilty of count 1 is that, although the jury was satisfied that the applicant and the complainant had sexual intercourse (that being an element of count 2), the jury was not satisfied that the applicant knew that the complainant did not consent. Thus, a finding that the complainant did not consent to sexual intercourse and that the intercourse was forceful is consistent, and not inconsistent, with the verdict of not guilty on count 1. As consent and knowledge of consent are not elements of count 2, these findings are consistent with, and not inconsistent with, the verdict of guilty in respect of count 2.

198. [204]

     The finding that the sexual intercourse occurred without the complainant’s consent and was forceful does not breach the De Simoni principle since those facts, without more, do not bring the offence into the more serious category of an offence of aggravated sexual assault under s 61J of the Crimes Act (which carries a maximum penalty of 20 years’ imprisonment). The reason for this is that it does not import any finding about the applicant’s state of knowledge about whether the complainant consented.

199. [205]

     The finding made by her Honour was open as the complainant gave evidence to that effect, which her Honour accepted to the requisite standard. As the plurality said in Cheung in the passage extracted above, this is a matter of potential importance to an assessment of the offender’s culpability which can be the subject of judicial determination as part of the sentencing role.

200. [206]

     For these reasons, ground 4 has not been made out.

201. [207]

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

     1. (1)

        Leave to appeal granted.

     2. (2)

        Appeal dismissed.

202. [208]

     WRIGHT J: I agree with Adamson J.

203. [209]

     FAGAN J: I agree with Adamson J.