ZBJ v R (No 2)

1. [1]

   ADAMSON JA: ZBJ (the applicant) seeks leave to appeal against, and appeals, his conviction, following a trial by jury, of a single offence against s 66EA of the Crimes Act 1900 (NSW) (s 66EA) of maintaining an unlawful sexual relationship with a child under 16 years of age, who was his natural daughter (the complainant) between 1 January 2007 and 17 May 2008 (the charge period). He also seeks leave to appeal against the sentence imposed by Culver DCJ (the trial judge) on 4 November 2022 of 18 years imprisonment with a non-parole period of 11 years which commenced on 23 February 2023 and will expire on 22 February 2041. The applicant will first be eligible for parole on 22 February 2033.

2. [2]

   The Crown case at trial, which was, as the jury’s verdict indicates, accepted by the jury, was that the applicant maintained an unlawful sexual relationship with the complainant from the time she was 14 years old until she was 16 years old. While the prosecution evidence was that the unlawful sexual relationship continued after the complainant’s 16th birthday, the Crown acknowledged that this evidence fell outside the age limit in s 66EA. The principal witness in the prosecution case was the complainant. The evidence of her mother (who was still married to the applicant during the charge period) supported the prosecution case. The prosecution also adduced substantial complaint evidence from friends of the complainant, a psychologist and a former boyfriend. The applicant gave evidence in his own case denying the charge. He also called character evidence from his brother. More detail as to the evidence at trial will be provided later in these reasons in relation to particular grounds.

3. [3]

   The applicant was represented by counsel at trial but appeared on his own behalf on the appeal. He seeks leave to appeal on the following grounds:

4. [4]

   The grounds will be addressed in categories since many of the grounds attract the same principles and can conveniently be considered together.

5. [5]

   The conviction grounds will be addressed as follows:

   1. (1)

      Challenge to constitutionality of s 66EA (ground 12);

   2. (2)

      The tender of new and fresh evidence (ground 2);

   3. (3)

      Challenges to the admissibility of evidence:

   4. (4)

      Challenges to the conduct of the prosecutor:

   5. (5)

      Alleged incompetence of defence counsel (ground 1);

   6. (6)

      Challenges to the conduct of the trial judge:

   7. (7)

      Unreasonable verdict (ground 6).

6. [6]

   Each of these grounds, apart from ground 12, requires leave. Ground 12 does not require leave, as it is a question of law alone: s 5(1)(a) of the Criminal Appeal Act 1912 (NSW).

7. [7]

   The applicant also seeks leave to appeal against his sentence on the following grounds, which will be addressed after the appeal against conviction:

8. [8]

   Before turning to the way in which the trial was conducted (which is the subject of several grounds of appeal against conviction), I propose to address ground 12 on the conviction appeal.

Whether s 66EA is constitutional (ground 12)

1. [9]

   In support of this ground, the applicant submitted:

2. [10]

   In oral submissions, the applicant developed the following three sub-grounds:

   1. (1)

      in combination with other legislative amendments, s 66EA deprived an accused of a fair trial;

   2. (2)

      s 66EA was arbitrary in that it permitted punishment for acts which have not been charged and for which the accused had not been convicted; and

   3. (3)

      an accused’s right to trial by jury for an offence under s 66EA was unacceptably compromised because of provisions which permitted expert evidence to be given to remove common misconceptions held by members of the community about reactions of a victim of sexual abuse.

3. [11]

   Section 66EA relevantly provides:

4. [12]

   In order to prove that the accused is guilty of an offence under s 66EA, the prosecution must prove that the accused, being an adult (defined as someone of or about 18 years of age), maintained an unlawful sexual relationship (a relationship that involved two or more unlawful sexual acts over a period) with the complainant who was a child (defined as someone under the age of 16 years).

5. [13]

   Section 66EA in its current form (which commenced on 1 December 2018) was inserted into the Crimes Act following a recommendation by the Royal Commission into Institutional Responses to Child Sexual Abuse: see the discussion in Xerri v The King (2024) 278 CLR 276; [2024] HCA 5 (Xerri) at [48]-[54] (Gordon, Steward and Gleeson JJ). It was also designed to overcome the decision of the High Court in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 (Chiro) at [49] (Kiefel CJ, Keane and Nettle JJ) and [59] (Bell J) which held that it was necessary for the jury to be unanimous about each of the underlying offences particularised by the Crown. So much is clear from the wording of s 66EA(5)(c), as explained in the Second Reading Speech to the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) which, when enacted, amended s 66EA. The Honourable Mark Speakman, Attorney General said (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 at 5):

6. [14]

   Similar provisions were enacted by the legislatures of other States (see s 229B of the Criminal Code (Qld) and s 50(4)(c) of the Criminal Law Consolidation Act 1935 (SA) (CLC Act)).

7. [15]

   Before turning to the three sub-grounds of ground 12, it is useful to refer to relevant authority on the constitutionality of s 66EA (or its equivalents) and its operation as some, if not all, of the submissions put by the applicant have been determined adversely to him by these decisions.

8. [16]

   The constitutionality of the equivalent Queensland provision was challenged in R v CAZ [2012] 1 Qd R 440; [2011] QCA 231 (CAZ) which, like s 66EA, expressly provided that it was not necessary for the jury to be satisfied of the commission of the same unlawful acts. The offender relied on two grounds: first, that the abrogation of the requirement to give particulars compromised procedural fairness to an extent unacceptable in a criminal trial; and, second, that the abrogation of the requirement (articulated in Chiro) that the jury be unanimous as to the same unlawful sexual acts was contrary to Chapter III of the Commonwealth Constitution and, in particular, to s 80 which provided that trials on indictment of Commonwealth offences be by jury.

9. [17]

   The first ground was dismissed on the basis that, although the requirement for particulars had been modified by the equivalent of s 66EA(4)(a), there was, nonetheless, a requirement to provide particulars under s 66EA(4)(b) which was sufficient to accord procedural fairness to an accused. Fraser JA, in dismissing the first ground, noted, at [40]:

10. [18]

    Fraser JA also said, at [42] (in a passage relied on by the applicant):

11. [19]

    His Honour said, of the exemption from the requirement in the equivalent of s 66EA(4)(a) to provide particulars that would be necessary if the unlawful act were separately charged:

12. [20]

    The second ground was also dismissed. Fraser JA noted that s 80 applies to Commonwealth offences but not State offences and said at [53]:

13. [21]

    His Honour concluded at [55]:

14. [22]

    An application for special leave to appeal to the High Court was refused: CAZ v The Queen [2012] HCATrans 244.

15. [23]

    In Morton (Pseudonym) v R [2025] SASCA 29, the appellant appealed against his conviction of an offence under s 50(4)(c) of the CLC Act (the South Australian equivalent of s 66EA). One of his grounds of appeal was that s 50(4)(c) was unconstitutional since, by allowing for minority verdicts, it impermissibly interfered with the institutional integrity of the higher courts of this State in the exercise of their jurisdiction to hear and determine charges of sexual abuse of a child.

16. [24]

    The South Australian Court of Appeal dismissed the appeal, following CAZ. Of this ground, it held that the element which was required to be proved was that there was an unlawful sexual relationship between the appellant and the complainant. This required the prosecution to establish the commission of two or more unlawful sexual acts. However, it was not necessary for the jury to agree on the evidential foundation which proved this element, as long as it was unanimous that the appellant had maintained such a relationship.

17. [25]

    In Xerri, the High Court rejected the appellant’s argument that the maximum penalty for the existing s 66EA offence had been increased retrospectively (from 25 years’ imprisonment to life imprisonment). It found that the new s 66EA created a new retrospective offence which carried life imprisonment: [32] (Gageler CJ and Jagot J) and [65] (Gordon, Steward and Gleeson JJ). The Court held that the new s 66EA offence (maintaining an unlawful sexual relationship with a child) was separate and distinct from the previous s 66EA offence which provided that a “person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to penal servitude for 25 years” (the predecessor offence). The constitutionality of the provision was not otherwise challenged.

18. [26]

    The way in which s 66EA operates has been considered by this Court. The following examples were referred to by the applicant in support of his challenge, although this Court did not hold that s 66EA was invalid.

19. [27]

    In R v RB [2022] NSWCCA 142; (2022) 300 A Crim R 1 (RB), this Court applied s 66EA and allowed a Crown appeal against sentence. The applicant relied on observations made by the Court about the operation of the section in support of his argument that s 66EA was unconstitutional because it created unfairness.

20. [28]

    At [66], Fagan J (Harrison and Wright JJ agreeing) said:

21. [29]

    His Honour also said:

22. [30]

    In RA v R [2024] NSWCCA 149, the appellant argued that the sentencing judge erred by not identifying the particularised unlawful sexual acts when imposing a sentence. This Court held that this was not necessary since the charged offence was the maintenance of an unlawful relationship with a child: [92] (Wilson J, Adamson JA and Dhanji J agreeing but both writing separately). Dhanji J addressed the different considerations which arise under s 66EA and summarised the applicable principles as follows:

23. [31]

    In light of these authorities, I turn to the applicant’s three sub-grounds in support of ground 12.

24. [32]

    The applicant argued that the requirement for particulars of the relationship in s 66EA(4)(b) was insufficient to satisfy the requirements of procedural fairness for a fair trial, in circumstances where s 66EA(4)(a) deprived an accused from an entitlement to particulars of any alleged unlawful sexual act that would have been necessary if the act were charged as a separate offence.

25. [33]

    He argued, accordingly, that s 66EA is invalid in light of Chapter III of the Constitution because:

    1. (1)

       it deprives the court responsible for the trial of an accused for an offence under that section, of the ability to provide procedural fairness (by way of the provision of particulars); and

    2. (2)

       it authorises a jury to return a verdict in circumstances where there may be no unanimity as to the unlawful sexual acts underpinning the alleged relationship.

26. [34]

    As is evident from the summary above, this argument was rejected in CAZ. The Court of Appeal held that the section did not preclude the court from directing that sufficient particulars of the offence be provided so that an accused person is in a position to answer the case against him at trial. It also held that the equivalent of s 66EA requires jury unanimity upon the essential allegation that the defendant maintained a sexual relationship with a child that involved more than one unlawful sexual act. As referred to above, an application for special leave was refused in CAZ.

27. [35]

    While the applicant appeared to accept the authority of CAZ, he submitted that several legislative amendments had been made since CAZ which undermined the right of an accused charged with an offence against s 66EA to a fair trial. The applicant confirmed that he did not separately challenge the constitutionality of any of these provisions and that his constitutional challenge was limited to s 66EA itself.

28. [36]

    The applicant relied on the following:

    1. (1)

       s 94(4) of the Evidence Act 1995 (NSW) (which excludes common law or equitable rules or principles which prevent or restrict the admissibility of propensity or similar fact evidence), which came into operation on 1 July 2020;

    2. (2)

       s 94(5) of the Evidence Act (which prohibits a court, when determining the probative value of tendency or coincidence evidence for certain purposes, from having regard to the possibility that the evidence may be the result of collusion, concoction or collaboration), which came into operation on 1 July 2020;

    3. (3)

       s 97A of the Evidence Act (which creates a presumption that tendency evidence that the defendant has a sexual interest in children and acts on such interest has significant probative value for the purposes of s 97(1)(b) and s 101(2), subject to a finding of “sufficient grounds”, which are limited by s 97A(5)), which came into operation on 1 July 2020;

    4. (4)

       the amendment to s 101(2) of the Evidence Act (which substituted for the words, “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”, “the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”, such as to change the threshold for the prohibition against using tendency or coincidence evidence against a defendant), which also came into operation on 1 July 2020;

    5. (5)

       s 161A of the Criminal Procedure Act 1986 (NSW) (which prohibits a trial judge from directing a jury that evidence, to the extent to which it is admitted as tendency or coincidence evidence, must be proved beyond reasonable doubt), which came into operation on 1 March 2021;

    6. (6)

       s 293A of the Criminal Procedure Act (which provides that a trial judge may give directions to a jury in circumstances where a complainant has given different accounts, including a direction that people may not remember all the details of a sexual offence or describe it in the same way and that it is common for there to be differences in accounts), which came into operation on 1 June 2022; and

    7. (7)

       s 294AA of the Criminal Procedure Act (which prohibits a trial judge from directing or suggesting to a jury that complainants as a class are unreliable or that there is a danger of convicting on the uncorroborated evidence of any complainant), which came into operation on 1 June 2022.

29. [37]

    The applicant relied on what Fraser JA said in CAZ at [42] (set out above) in support of his submission that a trial of an accused for an offence against s 66EA was, in light of these amendments, “repugnant to the judicial process in a fundamental degree”. He submitted that s 94(4) and (5) (which creates a rebuttable presumption) “reversed the onus of proof”. He submitted that s 97A “lets the prosecution generate tendency evidence out of distorted memories, misinterpreted innocent behaviour, exaggerations and pure fantasies”. He argued that s 294AA “explicitly prohibits judges from trying to prevent unsafe convictions based on uncorroborated evidence”.

30. [38]

    The applicant also relied on provisions which were in force and principles which were applicable when CAZ was decided in support of a submission that his right to a fair trial had been rendered illusory. He submitted that:

    1. (1)

       s 66 of the Evidence Act (which permits evidence of complaint to be given and provides that the hearsay rule does not apply to such evidence) “allows a manufacture of unlimited numbers of complaint witnesses out of [the] complainant’s friends”;

    2. (2)

       s 164 of the Evidence Act (which provides that it is not necessary that evidence on which a party relies be corroborated and that it is not necessary that the judge warn the jury that it is dangerous to act on uncorroborated evidence or give a direction relating to the absence of corroboration);

    3. (3)

       although the prosecution was not entitled to pose the question, “why would the complainant lie” (Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2), the question nonetheless “hangs in” the air, and unless the defence answers it, it is very damaging”;

    4. (4)

       a direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 was “eas[y] to dispense with” as juries do not have to give reasons and could convict an accused whom they do not believe; and

    5. (5)

       his trial became unfair because the jury did not need to be satisfied of the same unlawful sexual acts. He relied on KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 (KBT), in which an appeal against conviction was allowed where the offence provision, s 299B of the Criminal Code (Qld) required the prosecution to prove particular offences of a sexual nature during the period of the proscribed relationship between the accused and a child. As the trial judge had not directed the jury that they must be unanimous as to the same three or more acts constituting offences of a sexual nature, the conviction was quashed and a new trial ordered.

31. [39]

    The legislature has sought to criminalise sexual abuse of children in a way which replaces offences which charge an accused with crimes which comprise particular physical acts at a nominated place and a nominated time with an offence such as under s 66EA which provides for different criterion of liability – being a proscribed relationship. These legislative changes reflect a concern that the traditional mode of charging an offence which comprises a particular act is not particularly apposite to sex offending against children whose recollections tend to be untethered to particular dates or times. Further the nature of such conduct, particularly when it takes place within the ambit of a relationship (such as in the present case between father and daughter) is that several similar acts take place over an extended period which may make it difficult for the complainant to distinguish one from another. These matters render it particularly difficult for the prosecution to prove beyond reasonable doubt that a particular unlawful act against a child was committed on a particular date.

32. [40]

    The decisions indicate that the particular statutory wording is determinative. Thus, in KBT, the jury was required to be unanimous about the underlying acts, whereas in CAZ this was held not to be necessary.

33. [41]

    While each of these amendments which post-dated CAZ, might, separately and cumulatively, be regarded as worsening the accused’s position (particularly compared with the situation of an accused at common law), none restricts an accused’s entitlement to procedural fairness further than is provided for in s 66EA(8) (which was regarded as valid in CAZ). Thus, the basis of the decision in CAZ has not, in my view, been undermined by any of these legislative amendments, which largely concern tendency and coincidence evidence and the jury’s assessment of a complainant’s credibility.

34. [42]

    As to the applicant’s arguments about legislative provisions which pre-date CAZ, it is important to note that the Evidence Act was intended to make significant changes to the laws of evidence in New South Wales: Papakosomas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (Papakosomas) at [10], [46] and [88] and McNamara v The King (2023) 280 CLR 201; [2023] HCA 36 at [57]. These changes included that the requirement for corroboration be abolished (s 164). It was recognised by the legislature that common law principles were not necessarily conducive to a just result. For example, Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 (Longman) held that trial judges were required, where evidence of a complainant could not be adequately tested after the passage of time (in that case, more than 20 years), to direct juries that it was “dangerous to convict” on that evidence alone, unless they were satisfied of its truth and accuracy, on the basis of presumptive prejudice arising from the delay (at 91, Brennan, Dawson and Toohey JJ).

35. [43]

    In circumstances, where it is commonplace for a victim of sexual abuse not to complain for decades, a Longman warning had the consequence that many sex offenders were not convicted. Parliament enacted s 165B of the Evidence Act with the effect that actual prejudice was relevant but presumptive prejudice was not: see the discussion in Dawson v R [2024] NSWCCA 98 at [88]-[92] (Adamson JA).

36. [44]

    In R v Johnston (1998) 45 NSWLR 362 at 367, Spigelman CJ said of prior authorities which had placed emphasis on the lateness of complaint in an assessment of the complainant’s credibility:

37. [45]

    For these reasons, sub-ground (1) of ground 12 has not been made out.

38. [46]

    The applicant submitted that, in order to make out the offence, the prosecution needed only to prove two unlawful acts but an offender could be punished for more than two acts if the evidence established a greater number of unlawful acts. Thus, he argued that s 66EA purported to authorise the punishment of an offender for offences (unlawful acts) of which he had neither been charged nor convicted. He submitted that this compromised the institutional integrity of the courts and violated the Constitution in accordance with the Kable principle (after Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51; [1996] HCA 24 (Kable)) that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity and which is therefore incompatible with its role under Chapter III of the Constitution as a repository of federal jurisdiction and as a part of the integrated Australian court system.

39. [47]

    The applicant relied on the minority (Brennan and Deane JJ) in Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72 (Kingswell) in support of the proposition that it was unconstitutional to subject him to a penalty for unlawful acts of which he had not been convicted and that, because that was the effect of s 66EA, the offence was unconstitutional. He also sought to gain support from the observations made by this Court in RB for his submission that it was not open to the legislature to shift the decision-making from jury to judge and that this “shift” undermined trial by jury, since the jury would be responsible only for the question whether the proscribed relationship had been established and not for a determination of which of the unlawful sexual acts had been made out.

40. [48]

    While the applicant accepted that he had no right to trial by jury as he was charged with a State offence rather than a Federal offence, he submitted that, as he was, in fact, tried by jury, he was entitled to a trial by jury and not “an imitation of a trial by jury”. He submitted that this aspect of s 66EA violated the Kable principle. He pointed to the connection made in s 66EA between the offence of maintaining a proscribed relationship and the maximum penalty for the unlawful sexual acts engaged in by the accused during the period of the relationship.

41. [49]

    He also relied on Chiro and submitted that he could not be sentenced for any more than two unlawful acts since this was all that the jury needed to find in order to find him guilty of the offence and there was no basis on which the trial judge could determine on which unlawful acts he ought be sentenced.

42. [50]

    In Kingswell, the High Court considered ss 233B(1) and 235 of the Customs Act 1901 (Cth). Section 233B(1)(cb) made it an offence for a person to conspire with another to import narcotic goods, and provided that a person who was guilty of the offence was to be punished upon conviction as provided by s 235. Section 235(2)(c) provided for a maximum penalty of life imprisonment where the court was satisfied either that a commercial quantity of narcotic goods was involved in the offence or that a trafficable quantity was involved and the accused had on a previous occasion been convicted of another narcotics offence involving a trafficable quantity of narcotic goods.

43. [51]

    The appellant argued that s 235 of the Customs Act was invalid as s 80 of the Constitution required crucial questions of fact to be decided by the jury and that s 235 authorised the judge to find an accused guilty of a more serious offence than that for which the jury returned a verdict of guilty. He submitted that the Crown was obliged to allege the more serious offence in the indictment in accordance with the principles of The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

44. [52]

    The majority (Gibbs CJ, Mason, Wilson and Dawson JJ) dismissed the appeal, holding that the offence provision was s 233B(1)(cb) and that s 235 concerned only penalty. The Court held that the appellant had been tried by jury for an offence under s 233B(1)(cb) and, thus, the requirements of s 80 were met. The plurality (Gibbs CJ, Wilson and Dawson JJ) said at 276:

45. [53]

    While the plurality held that there was only one offence, although it carried a different penalty, depending whether the aggravating circumstance could be established on sentence, their Honours nonetheless held (at 280) that the rule of practice established in R v Bright [1916] 2 KB 441 that an aggravating circumstance on sentence, though not an element of the offence, ought be particularised in the indictment.

46. [54]

    Mason J said at 284 of judicial fact-finding on sentence:

47. [55]

    As referred to above, the applicant relied on the minority in Kingswell. Their Honours said (Brennan J at 293 and Deane J at 321), that offences that attract the maximum penalty under s 235(2)(c) and (d) were distinct from offences under s 233B. Brennan J accepted the appellant’s submissions and said further at 295 (see Deane J to like effect at 321-322):

48. [56]

    This Court is bound by Kingswell. Thus, the minority in Kingswell does not constitute good law.

49. [57]

    Further, the observations in RB (extracted above) did not result in the validity of s 66EA being impugned: it was applied in accordance with its terms, despite the reservations expressed by the Court about the effects of the provision. As Dhanji J explained in RA, referring to Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung), determining the facts on the basis of which an offender is to be sentenced is a “commonplace occurrence”. The sentencing judge is to determine the facts to the standards of proof outlined in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich): beyond reasonable doubt for facts adverse to the offender and on the balance of probabilities for facts in the offender’s favour. These facts must be consistent with the jury’s verdict but need not be facts which the jury has considered at all, since they may not be elements of the offence. Nor is it the sentencing judge’s obligation to work out the basis of the jury’s verdict; it is to find the relevant facts consistently with the jury’s verdict: see the discussion of the authorities in Fuller v R [2022] NSWCCA 203 (Fuller) at [7]-[13] (Adamson J) and [105] (N Adams J).

50. [58]

    Chiro concerned a very different offence. In Chiro, the appellant appealed against his conviction for the offence of persistent sexual exploitation under s 50 of the CLC Act, which required proof of two acts of sexual exploitation separated by three or more days. The jury was given an extended unanimity direction: that is, the jury was directed that they must be agreed on which acts constituted the two acts of sexual exploitation separated by three or more days. The jury returned a verdict of guilty. The appellant was sentenced on the basis of the trial judge’s finding that each of the acts particularised had occurred. The High Court (Kiefel CJ, Bell, Keane and Nettle JJ) held at [53] (the plurality) and [71] (Bell J) that the trial judge should have asked the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved and, as the judge had not done so, the appellant was entitled to be sentenced on the basis most favourable to him (namely, that he had committed the two least serious acts particularised).

51. [59]

    Section 66EA was designed to overcome Chiro by creating an offence, the gravamen of which was the maintenance of the proscribed relationship, rather than unlawful acts (although at least two needed to be proved within the parameters of the relationship) and providing that it was not necessary for the jury to agree on which unlawful sexual acts constitute the unlawful sexual relationship (s 66EA(5)(c)). The analysis in Chiro does not apply in the present case because of the different wording of s 66EA.

52. [60]

    The applicant argued that a provision such as s 108C of the Evidence Act compromised the fairness of the trial because the expert evidence which became admissible as a consequence of that provision was designed to undo common misconceptions. He submitted that his right to trial by jury included a right to be tried by an, in effect, unreconstructed jury. He argued that once a jury were “educated” by evidence such as Dr Pulman’s, its members were no longer capable of reflecting the views of the community from which they were drawn. The applicant submitted that it is critical that juries be able to protect society from “compromised science” and the education of jurors unduly undermines this protection.

53. [61]

    I reject this submission. While one of the acknowledged strengths of the jury system is that twelve members of the community bring to bear their collective wisdom in determining whether the prosecution has proved the accused guilty beyond reasonable doubt, the law (whether common law or statutory) requires certain warnings to be given in circumstances where there is a danger that the jury may, uninstructed by a warning, apply false reasoning. Johnson J in R v Chalabian (No 11) [2022] NSWSC 384 explained the basis for a warning under s 165 of the Evidence Act, as follows:

54. [62]

    Section 108C has a similar purpose: to acquaint the jury with matters affecting their assessment of the credibility of a witness of which they may be unaware or unfamiliar. The Australian Law Reform Commission explained in its report, Uniform Evidence Law (2005) at 319 [9.155], that the provision was inserted to “prevent inappropriate reasoning processes based on misconceived notions about children and their behaviour”, cited in BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [32]. Section 108C does not compromise the applicant’s trial by jury. Nor do the factors relied upon by the applicant render s 66EA unconstitutional.

55. [63]

    Ground 12 has not been made out. In summary, contrary to the applicant’s submissions, the prosecution is required to prove all elements of an offence against s 66EA beyond reasonable doubt. The particular unlawful sexual acts are not elements. Section 80 of the Constitution does not entitle the applicant to be tried by jury (since s 66EA is not a Commonwealth offence) but, in any event, the fundamental features of a jury trial are not compromised by s 66EA.

The conduct of the trial

1. [64]

   The trial commenced on 1 February 2022. The jury retired to consider its verdict on Friday 18 February 2022 (the twelfth day of the trial). It returned a verdict of guilty on Wednesday 23 February 2022 (the fifteenth day of the trial).

2. [65]

   The indictment charged an offence under s 66EA as follows:

3. [66]

   The prosecution case was that the applicant had groomed the complainant from a young age and that, from the time she was 14 until she was 16, he maintained an unlawful sexual relationship with her which involved sexual acts, including engaging in penile-vaginal sexual intercourse with her on an almost weekly basis.

4. [67]

   The defence case was that the applicant had never touched the complainant sexually. His case included that she had a motive to lie because she could not cope on her own without his support and therefore she fabricated evidence against him and actively recruited her friends to make notes and statements to the police which recorded her complaints to them about the applicant’s conduct towards her. He also submitted that the complainant’s evident success at school, in debating and at university was inconsistent with her being the victim of incest.

5. [68]

   A consideration of many of the remaining grounds of appeal and, in particular, the unreasonable verdict ground (ground 6), requires an appreciation of the evidence adduced at the trial. The evidence is summarised below.

6. [69]

   The prosecution also adduced evidence for a tendency purpose to show that the applicant had a long and enduring sexual interest in the complainant. It relied on various matters including the applicant taking the complainant for nudist swimming from the age of five and taking sexualised photographs of her, including in 2005 when she was 12 and the family still lived in Melbourne (when she asked him to take a headshot of her, he took a whole body image, although she was wearing a long T-shirt and no pants at the time). The complainant also gave evidence of the applicant taking a photograph of her in Melbourne when she was naked and asleep. When she asked him to delete it, he told her that he had encrypted it and protected it by a password which he had forgotten and was unable to delete it.

7. [70]

   The complainant was born in Russia in May 1992. She is an only child. In 1994, she migrated with her father (the applicant) and her mother (JK) to Australia. The only family the complainant had in Australia were her parents and her uncle (the applicant’s younger brother).

8. [71]

   The applicant’s unusual parenting techniques were relied on by the prosecution as context evidence. This evidence comprised evidence of the applicant, JK and the complainant attending nudist swimming pools; and the applicant touching the complainant on the bottom and, when she protested, stating he was allowed to because he had “made it”. This evidence pre-dated the offending period and related to the time when the family lived in Melbourne.

9. [72]

   The complainant gave evidence (which was relied on as context, not tendency) as to the applicant’s conduct when she was swimming laps in the pool, naked:

10. [73]

    The prosecution also relied on the following evidence of the applicant’s conduct, which occurred prior to the commencement of the alleged offending conduct, for the purpose of context and tendency:

    1. (1)

       the applicant massaging his wife, JK, in the lounge room of the house, which would be heated by a gas heater for that purpose, while they were either naked or in underwear (if the applicant was the one giving the massage he would be in underwear), in the presence of the complainant who was also pressured by the applicant to be naked or wearing only her underwear;

    2. (2)

       the applicant making sexualised comments to the complainant and asking her whether she felt “warm and fuzzy down there” when a sex scene appeared on TV during the massages;

    3. (3)

       the applicant playing with and parting the applicant’s developing pubic hair and comparing it to the fur of a “baby giraffe” (in Russian);

    4. (4)

       the applicant stroking the complainant’s back, which he sought to justify on the basis he was checking if she was wearing a bra, of which he disapproved; and

    5. (5)

       the applicant photographing the complainant when she was sparsely clad with a particular focus on her chest and groin area.

11. [74]

    The prosecution relied on the following conduct for both context and tendency purposes which is alleged to have occurred during or after the offending conduct:

    1. (1)

       the applicant showing the complainant pornography;

    2. (2)

       the applicant continuing the pattern of sexual abuse, including penile-vaginal sexual intercourse, with the complainant on a regular Saturday evening basis from the complainant’s 16th birthday until she was aged between 21 and 23 years old in a locked bedroom in the house; and

    3. (3)

       the applicant massaging the complainant naked, generally after the conclusion of sexual intercourse but continuing after the sexual intercourse ceased right up until the complainant moved out of the family home in 2016 (when she was aged 23 or 24).

12. [75]

    According to the complainant, the offending itself started in early 2007 after the family had moved from Melbourne to Sydney. The complainant was aged 14 at the time of the move and turned 15 in May of that year. At around the time they moved to Sydney, JK suffered from a fatigue condition, tired easily and spent most of her time when at home in a separate bedroom. JK did not engage with the complainant much and was not close to her while the complainant was growing up.

13. [76]

    The applicant initiated the sexual offending by asking the complainant if she was curious and wanted to try new things. He persuaded her to let him kiss her. The kiss involved the applicant putting his tongue in her mouth. Within a month or two, the applicant was not only sexually touching the complainant, including under her clothing but he was also penetrating her vagina with his finger and with his penis. The applicant would stimulate the complainant until she achieved climax. The sexual activity was followed by the applicant giving the complainant a massage while they were both naked. The sexual abuse took place almost every Saturday evening from 5.30pm, except when either the applicant or the complainant was away from home. Even when the complainant had her period, the penile-vaginal intercourse would continue but on those occasions, the applicant would put towels on the bed.

14. [77]

    The applicant wore a condom during penile-vaginal sexual intercourse with the complainant. The complainant recalled an occasion on which the condom either split or slipped off. Subsequently, the applicant squirted liquid into the complainant’s vagina as well as making her take medication (inferentially, a ‘morning after pill’ to prevent her becoming pregnant).

15. [78]

    The complainant put up with the conduct, as, if she did not, the applicant would ignore her, “ice her out” and manipulate her emotionally. The complainant was asked to explain what she meant by being “ice[d] out” in the following exchange, which will be reproduced in full because of its relevance to the grounds of appeal (including ground 2):

16. [79]

    The complainant recalled the first occasion on which the applicant showed her pornography. She said that it happened at an address to which the family moved in November 2007, when the complainant was 15 years old. She gave the following evidence:

17. [80]

    Because of the regularity and consistency of the sexual abuse, the complainant was unable to recall individual occasions (except where something unusual occurred, such as the splitting of the condom). However, the complainant said that she recalled a single occasion when the applicant had performed cunnilingus on her, which had caused her pain. She also remembered an occasion when the applicant engaged in “role play”, which she found disturbing.

18. [81]

    The applicant asked the complainant to read a book called the Hite Report about female sexuality. One of the main points she remembered from the book was a finding that a lot of women have trouble having an orgasm from penile-vaginal intercourse, which she discussed with him. She thought that she was younger than 16 or 18 at the time. She remembered thinking at the time that she was too young to be reading it.

19. [82]

    Not long after the first act of penile-vaginal intercourse, the complainant protested and refused to continue with the sexual activity. An argument ensued in the presence of JK. The complainant recalled that when she ultimately relented, her mother said words to the following effect, “[l]ook how happy you’ve made him”.

20. [83]

    The complainant’s evidence was that the penile-vaginal sexual intercourse continued on the regular Saturday night basis until some point between mid-2013 and 2015 when she left for university. Although the penile-vaginal sexual intercourse ceased, the naked massaging continued until she moved out of the family home.

21. [84]

    In 2016, the complainant moved to Adelaide for work. This gave her the distance to begin to disclose what she had experienced. In 2017 and 2018, she saw a psychologist for treatment and also disclosed what had happened to friends, a then boyfriend (referred to compendiously as complaint witnesses) and JK. In 2018, she reported the matter to the police.

22. [85]

    The complainant was the principal witness for the Crown. As referred to above, her evidence was corroborated in important respects by JK, who said that she knew that sexual intercourse was occurring between the applicant and the complainant; that she was present when the complainant confronted the applicant about it; and that she also confronted the applicant about it herself in the presence of the complainant.

23. [86]

    The complainant was cross-examined about tension with the applicant when she was over 18 and was, in his view, spending too much time away from home. She agreed that she had created a document which set out her desire to go out as often as she wished and accepted that, “in this context”, she was able to stand up for herself against her parents. The document was tendered on behalf of the applicant and marked Exhibit 11.

24. [87]

    Defence counsel put to the complainant that in about 2018 she had deliberately made disclosures of what she alleged the applicant had done to her with a view to recruiting them as her supporters in her decision to report the applicant’s conduct to the police with the intention that he would be charged. She agreed that she had made disclosures to some of her friends (who were called as complaint witnesses) so that they could provide an account to the police about what she had told them.

25. [88]

    The complainant agreed in cross-examination that it was “on purpose” that the applicant did not know that she had contacted police until he was actually charged. She agreed that she had kept him in the dark as to what was happening, including telling him that she was overseas when she was not, and ringing him in 2019 and engaging in friendly conversations on the same day when she was at the police station providing supplementary statements. The complainant explained her conduct by saying she “felt was the safest thing for [her] to do” as she was continuing to pretend everything was “fine”.

26. [89]

    JK’s evidence was given by audio-visual link (AVL) as she was unvaccinated against, and unwilling to be tested for, the COVID-19 virus and was, therefore, not permitted to enter the court complex. Defence counsel agreed that it was necessary for her evidence to be given by different means.

27. [90]

    Before the commencement of JK’s evidence, the trial judge informed the jury that JK was going to give evidence by AVL and directed them that they must not attach more or less weight to the evidence just because the evidence was given in that way and ought not draw any adverse conclusion against the applicant because of the means by which JK’s evidence was given.

28. [91]

    Because JK’s evidence was given on the basis that she would not be charged for failing to report the applicant’s conduct, the jury was given a warning pursuant to s 165(1)(d) of the Evidence Act that her evidence may be unreliable on the basis that she might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings.

29. [92]

    JK’s evidence corroborated the complainant’s evidence in significant respects. According to JK, while they were still living in Melbourne, the applicant had asked her if he could provide “sexual education” to the complainant to which she responded, “yes”.

30. [93]

    JK gave evidence that around 2008, she had a conversation with the applicant about sexual relations that he was having with the complainant. She knew at that time that the applicant was having sexual relations with the complainant and had known that for about a year. She asked the applicant, “[w]hy do you need to continue having sex with [the complainant]”? His reply was that he needed to do it otherwise the complainant would seek sexual adventures.

31. [94]

    JK recalled that at some time between 2008 and 2010 she asked the applicant if they could meet but he responded that he had an appointment with the complainant at that time. He said it was an “educating appointment” and it was 5pm either on Saturday or Sunday. JK understood that those appointments were for sexual intercourse.

32. [95]

    JK said that, although she could hear voices in the applicant’s bedroom, she could not make out the words of any conversations between the applicant and complainant which took place there. JK also gave evidence that she saw the complainant coming out of the applicant’s bedroom not fully dressed, carrying some of her clothes and not making eye contact.

33. [96]

    JK and the applicant separated in 2013; she moved out of the family home in 2014 (leaving the complainant living with the applicant); and they divorced in 2016. The prosecution tendered an email from JK to the applicant dated 20 February 2013 (when the complainant was 21 years old) in which JK wrote:

34. [97]

    In her oral evidence, JK explained that the highlighted passage amounted to a plea to the applicant to stop sexually abusing the complainant.

35. [98]

    Dr Pulman, a clinical psychologist, neuropsychologist and forensic psychologist, was an expert in the dynamics of child sexual abuse and counter-intuitive responses. She gave evidence that it was common for children who are victims of sexual assault to delay reporting the assault. Her evidence was ruled admissible under s 108C of the Evidence Act in a pre-trial ruling given by Hunt DCJ.

36. [99]

    She explained that there may be various reasons for the delay:

37. [100]

    Dr Pulman also explained that where a child has been “groomed” by the perpetrator, the child might ask themselves why they did not say something before the actual abuse started. She said of children who are abused by a family member:

38. [101]

    Dr Pulman was asked about a situation where there is continued contact between the perpetrator and the complainant:

39. [102]

    Dr Pulman also addressed the position of a child who is being sexually abused by one parent and the other parent is complicit. She said:

40. [103]

    When asked about a situation where the mother is a “passive bystander [who] knows that the abuse is occurring”, Dr Pulman said:

41. [104]

    Dr Pulman also addressed the difficulty of recalling details about a recurring event. She said:

42. [105]

    Dr Pulman was cross-examined about her report dated 27 May 2021, which was served as part of the prosecution brief (but which was not tendered at the trial). After Dr Pulman gave evidence, and following consultation with the legal representatives, the trial judge directed the jury as to the use that could be made of her evidence and said, in part:

43. [106]

    The Crown called several complaint witnesses who deposed that the complainant had complained to them many years after the conclusion of the offence period. It is not necessary to summarise their evidence. To the extent relevant, it will be referred to when it arises in connection with relevant grounds.

44. [107]

    Evidence was adduced by the prosecutor of the investigation but it is not necessary to detail it here as it will be considered when it is germane to particular grounds of appeal.

45. [108]

    The applicant gave evidence in his defence. He said that JK commonly gave him massages and that the complainant was often present. As the room was heated, he was naked while he was being massaged. He said that no pressure was put on the complainant to undress but that he would have found it strange if she had sat there and not removed her clothes, because of the ambient heat. He did not recall whether he asked her if a particular scene on television made her feel “warm and fuzzy”. He denied touching the complainant’s pubic hair and could not think of any context in which a baby giraffe was referred to.

46. [109]

    He agreed that he disapproved of the complainant wearing a bra because he did not think that she needed one.

47. [110]

    The applicant said that there was conflict between him and JK from about 2007 onwards, they separated in March 2013 and were divorced in 2016.

48. [111]

    The applicant denied engaging in any conduct which might be regarded as “grooming” the complainant but agreed that he used to give her massages when she was naked. The massages usually took place at about 5.30pm on Saturdays. He said that the massages stopped at the complainant’s request in July 2013. He agreed that they happened in his bedroom. When cross-examined about the location, he said:

49. [112]

    JK moved out in May 2014. The applicant rented out spare rooms in their home on Airbnb but otherwise he and the complainant were the only family members in the house after JK’s departure.

50. [113]

    In October 2019, the complainant led the applicant to believe that she was in Canada. He received communications from the complainant at that time which were “very, very friendly”. He had no idea that she had complained to the police about his conduct.

51. [114]

    The applicant was cross-examined about observing the complainant, naked, in the swimming pool in the following exchange:

52. [115]

    When cross-examined about the Hite Report, the applicant said:

53. [116]

    The prosecutor cross-examined the applicant about continuing to give the complainant naked massages after the sexual intercourse had stopped as follows:

54. [117]

    When it was put to the applicant in cross-examination that there was ample opportunity for him to have sexual intercourse with the complainant, he said that it was “impossible … [b]ecause she was [a] prude, she was assertive, she would never allow this result – [she would] fight”. To demonstrate this proposition, he referred to two photos which he had taken, which he appreciated had not been tendered in evidence: the first was taken when she was 12 and the next was taken at, or before, a school formal. His evidence of these photographs is addressed with respect to ground 2.

55. [118]

    The applicant said that when he was told that the complainant had reported the matter to police, he thought that the case would never go to trial because there were “so many loose ends”. He also relied on the complainant’s apparent well-being and success at school as evidence that the offences were a fabrication. He said:

56. [119]

    The applicant’s counsel tendered several documents to establish the complainant’s success at school, her debating, her travels, her engagement with friends, her active social life and the affectionate terms of her written communications with the applicant. The applicant described the complainant as “very active” in debating, both at school and university and referred to her being selected to go to Denmark as a debater.

57. [120]

    It was the applicant’s case that these matters were inconsistent with the offending conduct. For example, the applicant tendered an email dated 11 November 2010 which the complainant sent to her parents asking for their advice about how to fill in an application form for a Macquarie Scholarship. In it she wrote, in part:

58. [121]

    The applicant’s counsel sought to tender several documents relating to the complainant’s school achievements, including school reports and letters of reference from the school which were rejected by the trial judge as being “too far removed”. This is the subject of ground 8.

59. [122]

    The applicant’s brother gave evidence of the applicant’s good character. He first became aware of the allegations when the applicant told him that he had been charged by the police. He said that he had never seen any indication over the years that anything of that nature was occurring.

60. [123]

    Ms Drazenovic, a work colleague of the applicant, gave evidence she was shocked by the allegations and that she had never seen any untoward behaviour between the applicant and the complainant. She knew that the applicant was fond of massages and conducted family massages but she did not know that he conducted them in the nude or that he and the complainant were in a bedroom when the massages were taking place.

61. [124]

    The prosecutor referred to the complainant’s evidence about the applicant giving her the Hite Report, as follows (this is the subject of ground 11C):

62. [125]

    The prosecutor referred to Dr Pulman’s evidence at various points in his closing address, in connection with the complainant’s evidence (this is the subject of ground 4A). For example, he said:

63. [126]

    The prosecutor returned to the subject of delay in complaint as follows:

64. [127]

    At the conclusion of the Crown’s closing address, the prosecutor said:

65. [128]

    As the defence closing was not the subject of any ground of appeal (except in the context of criticism of defence counsel which is addressed below), it is not necessary to summarise it. It accorded with the defence case summarised above.

66. [129]

    In the course of the summing up, the jury sent a note asking for the transcript of the evidence of witnesses. Her Honour gave the following direction (which is relevant to ground 9):

67. [130]

    The trial judge said in part, of the Crown’s reliance on the massages:

68. [131]

    The trial judge, when summarising the Crown case, said of the complainant’s Hite Report (this is the subject of ground 11D):

69. [132]

    Other aspects of the summing up which are particularly germane to specific grounds will be referred to or extracted when the ground to which they relate is addressed.

70. [133]

    As referred to above, the jury retired to consider its verdict at 10.30am on Friday 18 February 2022. It returned a verdict of guilty at 11.10am on Wednesday 23 February 2022.

Allegation that “new evidence prevents a miscarriage of justice” (ground 2)

1. [134]

   The applicant sought to tender, on the appeal, evidence which he submitted defence counsel ought to have tendered at the trial. I understood this to form part of his allegation that defence counsel was incompetent and that, on that basis, his conviction ought be overturned. Further, he also relied on evidence which was not available at the time of the trial and sought to tender it in this Court to establish that there had been a miscarriage of justice.

2. [135]

   Before turning to the balance of the grounds of appeal, it is necessary to address the role of defence counsel. The applicant has responded to the Crown’s submissions that he was bound by the way his trial was conducted by defence counsel or that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) was required, that he ought not be bound by his counsel’s conduct because his counsel was incompetent. The applicant has also made several criticisms of defence counsel for not asking questions which he wanted asked or not tendering documents which he wanted to be tendered or which he contended ought be tendered. The detail of these complaints will be addressed below. However, it is useful to outline the applicable principles.

3. [136]

   The starting point is that the applicant was entitled to appear for himself at the trial (as he did in this Court) or be represented by a legal representative. He chose to be represented. The applicant was entitled to competent legal representation, which required his counsel to advance the defence case, to challenge prosecution witnesses, to take appropriate objections and to tender relevant material in support of the defence case. The applicant’s defence counsel was not “some kind of ‘mouthpiece’ for [him], [required to conduct] the case in close conformity with the client’s directions”: Birks v R (1990) 19 NSWLR 677 (Birks) at 691-692 (Gleeson CJ). These propositions are reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (the Barristers Rules): see the discussion in Mashayekhi v R (No 2) [2021] NSWCCA 161 at [50]-[55] (Bell P, Button and Wright JJ agreeing).

4. [137]

   Rule 42 of the Barristers Rules provides that:

5. [138]

   Rule 61(a) of the Barristers Rules provides that:

6. [139]

   Rule 64 of the Barristers Rules provides that:

7. [140]

   Rules 65 of the Barristers Rules provides that:

8. [141]

   Rule 67 provides:

9. [142]

   Other relevant Barristers Rules will be referred to in connection with the specific grounds of appeal to which they are germane.

10. [143]

    In Birks, Gleeson CJ explained:

11. [144]

    To similar effect, Simpson AJA (Bellew and Campbell JJ agreeing) said in Kamali v R [2019] NSWCCA 186 at [33]:

12. [145]

    Generally, an accused will be bound by the conduct of his or her counsel at the trial. However, where serious errors or omissions deprive the accused of a fair trial such as to cause a miscarriage of justice, an appeal against conviction will be allowed and a new trial ordered. In Birks, Gleeson CJ said at 685:

13. [146]

    This passage was cited with approval in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 (TKWJ) at [79]-[80] and Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [2]. In TKWJ, the High Court said at [28]:

14. [147]

    The applicant had firm views about the way he wished the trial to be conducted as were evident from the way in which he conducted the appeal, including in his several complaints (in ground 2) that certain evidence which was available was not tendered as part of the defence case. For the reasons which follow, I do not discern any lack of competence in the way in which defence counsel conducted the defence case. The way in which his discretion, as counsel, was exercised fell within the ambit reserved to him by the Barristers Rules and did not give rise to any matter which would call for this Court’s intervention.

15. [148]

    During the hearing of the appeal, the Court indicated to the parties that it proposed to address the material in its reasons and rule on each item proposed to be tendered separately (if leave to appeal on ground 2 is granted).

16. [149]

    I propose to deal in turn with each of the items of evidence which the applicant submitted ought to have been tendered by his counsel at trial (identified by the letter of its attachment to his affidavit of 17 January 2025) or which ought be admitted by this Court on the appeal.

17. [150]

    If evidence is fresh evidence, then it may be admitted on appeal if it is credible or capable of belief and there is a significant possibility that, if the evidence had been adduced at trial, the jury, acting reasonably would have acquitted the applicant. However, if the evidence is only new evidence, it may only be admitted on appeal if the new evidence is such that, taken with all the evidence at the trial, the conclusion ought be drawn that the prosecution had not established the applicant’s guilt of the charge beyond reasonable doubt. If the evidence does not meet the applicable threshold, the appropriate course is for the Court to reject the tender: Franklin v R [2021] NSWCCA 260 at [127]-[128] (McCallum JA, Beech-Jones and Hamill JJ).

18. [151]

    Before addressing the question whether the evidence is new or fresh and whether it meets the threshold for tender, it is necessary to address whether it would have been admissible at the trial in any event since if it would not have been admissible at the trial, it ought be rejected without further consideration.

19. [152]

    Attachment B comprised postcards which the complainant sent to the applicant from Copenhagen (in July-December 2014); Japan (January 2017); Iceland (July 2017); Vietnam (January 2018) and Nelson, Canada (in 2019). In each, the complainant expressed enthusiasm about seeing the applicant. These documents are of marginal relevance. The complainant lived with the applicant and was dependent on him throughout the charge period and for several years beyond. Her evidence was that she acquiesced in the conduct in order to keep the peace between them and because he would otherwise make life unbearable for her. It was objectively reasonable for defence counsel to decide not to tender these so as to avoid the insinuation that any expression of affection for the applicant meant that the complainant was not being sexually abused by him.

20. [153]

    The evidence is new rather than fresh. Its probative value is slight. It does not meet the threshold for admission of new evidence on appeal and ought be rejected.

21. [154]

    In a handwritten note to her mother dated 14 August 2019, the complainant set out the consequences for her of the applicant’s sexual abuse with a view to obtaining empathy from JK for her situation. The note included the following:

22. [155]

    The applicant submitted that the highlighted portion of her note was “in serious conflict with her victim impact statement”. Whatever slight disparities there may be between this document and the victim impact statement (which was tendered at the sentence hearing and therefore was not available to defence counsel at the trial), it is difficult to conceive of any forensic benefit which the applicant could have gained from its tender. Indeed, there was considerable forensic risk since the applicant’s reliance on the note might have caused the jury to regard him as harsh and pedantic.

23. [156]

    The note was new evidence since it was served on the defence as part of the prosecution brief. It does not meet the threshold for admission on appeal and ought therefore be rejected.

24. [157]

    The applicant conducted a Google search of JK’s webpage on 23 January 2017 and took a screenshot of a web page which purported to offer health improvements on a “DNA level view meditation” under a stroboscopic light. In support of his submission that this document would have made a difference at the trial, he said at paragraph 5 of his affidavit of 17 January 2025:

25. [158]

    The highlighted sentence is entirely speculative and would not amount to a sufficient basis to cross-examine the complainant by reference to any assisted recovery of memory. Further, it would not meet the threshold in ss 103 or 106 of the Evidence Act and would therefore be inadmissible. It is not necessary to address it further, except to say that it is new evidence and not fresh evidence.

26. [159]

    Attachment F is a video recording which the applicant said that he took and stored on a family computer. It depicts an occasion when the complainant was debating in favour of public nudity (that being the set topic). She acknowledged to the audience that her parents were in the audience. She appeared confident and articulate and caused the audience to laugh, appropriately, at the various points she was making.

27. [160]

    The applicant submitted:

28. [161]

    It is difficult to understand what this evidence could have added to the undisputed evidence at the trial that the complainant was an accomplished debater, both at school and university and was sent to Denmark to debate. The complainant’s public acknowledgement of her parents does not undermine her evidence of the offending or how she presented to her friends to whom she ultimately divulged the applicant’s conduct. Had defence counsel been aware of the video, he could, objectively, have regarded it as of no forensic benefit to the applicant in the trial.

29. [162]

    The evidence is new evidence and does not meet the threshold for admission on appeal. Accordingly, it ought be rejected.

30. [163]

    In the letter, the applicant described the complainant and ventured the opinion that she was addicted to adrenaline and should stop debating.

31. [164]

    The applicant said of this document in his written submissions:

32. [165]

    This document was available to the applicant prior to his trial and therefore constitutes new evidence. At its highest, it tends to prove that the complainant had the opportunity to tell a doctor about the abuse, but did not do so. It was not disputed that there was a lengthy period before the complainant disclosed the abuse. Had the complainant been cross-examined about her failure to complain to the doctor to whom she had been sent, the trial judge would have been obliged to direct the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; there may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about the assault; and must not direct the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a direction: s 294 of the Criminal Procedure Act. For defence counsel to tender this document and cross-examine the complainant about it was fraught with forensic risk to the applicant. There is no risk of miscarriage of justice by its non-tender.

33. [166]

    The document does not meet the threshold for admission of new evidence on appeal and ought be rejected.

34. [167]

    Attachment L is entitled “[The complainant’s] lifestyle.” It contains an analysis by the applicant of how the complainant spent her time in the years from 2011-2015 (when she was aged between 18 and 23), well outside the period covered by the indictment (1 January 2007-17 May 2008). The applicant said, in part:

35. [168]

    Attachments I and M are in a similar category since they set out the extent of the complainant’s overseas travel. Of those documents, the applicant submitted:

36. [169]

    These documents would not appear to be relevant to any issue at the trial and therefore would not be admissible under s 55 of the Evidence Act. To cross-examine the complainant about how she spent her time when she was aged between 18 and 23 would carry a substantial forensic risk that the tribunal of fact would consider the applicant to be controlling of the complainant. Further, to suggest that the complainant had fabricated her evidence of the abuse because she was annoyed with her father for no longer supporting her financially would also be likely to produce an adverse reaction from the jury.

37. [170]

    Even if relevant, the evidence is new and does not meet the threshold for admission on appeal. Accordingly, it ought be rejected.

38. [171]

    The photograph at Attachment N was referred to in the evidence given by the complainant at the trial (but apparently not tendered). The complainant gave evidence that she asked the applicant to take a headshot of her when she was about 12 years old and the family was living in Melbourne. She said in her evidence:

39. [172]

    In this Court, the applicant submitted in respect of the photograph to which the complainant referred (paragraph 11 of his affidavit of 17 January 2025):

40. [173]

    The applicant also referred to his own evidence about the complainant’s modesty when he was cross-examined about the family’s regular attendance at a nudist swimming club after the complainant turned five. He said in the following exchange in his cross-examination:

41. [174]

    The applicant also gave evidence about the photograph taken when the complainant was 12 and a later photograph taken of her at a school formal (both of which were the subject of evidence but neither was tendered), as follows:

42. [175]

    As referred to above, the complainant gave evidence at the trial about the photograph of her as a 12-year old (which was plainly available at the trial and therefore constitutes new evidence) and her reaction to it. It was not necessary that the photograph be tendered for this purpose. The submissions which the applicant now seeks to make about the complainant’s reaction to the photograph would have had to be put to the complainant at the trial, which would have carried a significant forensic risk. It was an objectively rational forensic decision for defence counsel not to tender the photo taken of the complainant, apparently against her wishes, in somewhat revealing clothing as a 12-year old child since there was a substantial risk that its forensic effect would be to confirm the tendency alleged by the prosecution that the applicant had a long-standing sexual interest in the complainant since she was at least 12 years old.

43. [176]

    Further, it is difficult to understand how a photograph of the complainant in a full-length dress for a school formal could have advanced the applicant’s case (it having been described in his evidence in any event). No miscarriage of justice can be established on this basis. In addition, the photograph does not meet the threshold for the admission of new evidence on appeal and ought be rejected.

44. [177]

    The applicant sought to tender on appeal a fictional story written by the complainant at the age of 10 (which was not referred to in the trial but which obviously pre-dates it) in support of a submission that the complainant is capable of writing a fictional story which is “not less believable than her story of the abuse” (paragraph 13 of the applicant’s affidavit of 17 January 2025). The story is an imaginative exercise in which the complainant writes a diary from the point of view of a convict girl who is in prison in England in 1787 and is worried about being transported.

45. [178]

    I regard this evidence as irrelevant and, therefore, inadmissible. Its absence from the trial is therefore incapable of giving rise to a risk of a miscarriage of justice.

46. [179]

    The applicant sought to tender a reference from the complainant’s school in Melbourne (attachment Q); a reference from her school in Sydney (attachment R); a certificate showing that she was awarded the Minister of Education’s Award for Excellence in 2010 (attachment S); a list of her marks at university (attachment T); and a photograph of herself and the applicant at the awards ceremony (attachment V). Apart from attachment V, each of these documents was available at the trial and formed part of a bundle of documents marked for identification, MFI 13.

47. [180]

    These documents came to be marked for identification in the trial as the complainant was cross-examined about her discussion with Detective Lavington, a police officer in Adelaide, on 14 and 15 June 2018 (when the complainant was 26 years old). The complainant agreed that she gave Detective Lavington a paper bag containing numerous personal documents and photographs. The complainant also agreed that she had told Detective Lavington that she was going to destroy those documents but the Detective accepted the documents from her.

48. [181]

    The documents were, thus, available at the trial, and could have been tendered by defence counsel had he considered it to be to the applicant’s forensic benefit. As referred to above, it was not in issue in the trial that the complainant was an excellent school student and received various awards and completed her degrees at university. It was the applicant’s case at trial that this was inconsistent with the offending having occurred. The applicant submitted in this Court (paragraph 17 of his affidavit of 17 January 2025):

49. [182]

    The apparent “logic” of the applicant’s submission, at trial and in this Court – that someone who is suffering from sexual abuse cannot function well in other areas of life – was put to, and, implicitly, rejected by, the jury. It was objectively reasonable for defence counsel to consider that it was not to his client’s forensic benefit to tender all the documents available that established a matter which was not in dispute. I am not persuaded that the non-tender of these documents created any risk of a miscarriage of justice to the applicant.

50. [183]

    As to attachment V, the fact that the complainant was prepared to be photographed with the applicant at the awards ceremony is consistent with her evidence that, except when he was sexually abusing her, he was a loving and supportive father (on whom she relied emotionally and financially, as her mother was generally unavailable to her).

51. [184]

    All of these attachments are new evidence which, even if admissible, do not meet the threshold for admission on appeal and ought, accordingly, be rejected.

52. [185]

    The applicant sought to tender an email which he sent to the complainant in 2019 in which he purported to give her life advice about her boyfriend and looking for jobs. He submitted that it showed his positive attitude to his family members.

53. [186]

    The relevance of this document is too marginal to warrant its admission. It post-dates the charge period by about 12 years. Further, as the complainant explained in her evidence extracted above, when the applicant was not sexually abusing her in their regular weekly sessions on Saturday evenings, he was a “loving and affectionate and … good dad”. Thus, any material which suggested that he acted positively towards the complainant was not relevant to any matter in issue.

54. [187]

    In any event, as new evidence, it does not meet the applicable threshold and ought be rejected.

55. [188]

    The applicant sought to tender a document which was annexed to a statement made by JK which formed part of the brief which was served on the applicant before the trial (and is therefore new evidence). In the document, JK expressed unconditional love to various parts of her body. The applicant submitted that it showed that JK was not capable of co-parenting the complainant. The document is irrelevant to any issue in the proceedings and is therefore inadmissible.

56. [189]

    For the reasons given above, including with respect to attachment C, this document is irrelevant and therefore inadmissible.

57. [190]

    The applicant said of four articles that they were included “for convenience”: an article about nudism and children (attachment Y); an academic study about disclosure by teenagers of sexual abuse (attachment Z); an academic study claiming that 86% of allegations of child sexual abuse in divorce proceedings are false (attachment AA); and an academic article on the benefits of massage for adults and children (attachment AB). It is not clear whether the applicant sought to tender them. If so, they should be rejected as inadmissible as irrelevant or by reason of the opinion rule.

58. [191]

    The applicant sought to tender these photographs on the appeal to demonstrate “that there was nothing unusual or sinister in [him] … taking photos of sleeping people” (paragraph 27 of his affidavit of 17 January 2025).

59. [192]

    That the applicant took photographs of other people when they were sleeping is irrelevant and therefore inadmissible. The tender of these photographs ought to be rejected.

60. [193]

    The relevance of the applicant taking a photograph of the complainant when she was naked and asleep and living in Melbourne (just before the commencement of the charge period), as referred to above, was that it showed that he had a sexual interest in the complainant as a young girl. This evidence was capable of being used by the jury for a tendency purpose to prove that it was more likely that he maintained a sexual relationship with the complainant when she was aged between 14 and 16, as alleged by the Crown.

61. [194]

    On 21 September 2020, the trial was listed for 31 May 2021. This date was confirmed at a call-over on 27 May 2021. However, on 31 May 2021, Hunt DCJ adjourned the trial (by consent) to 25 June 2021 for mention, on the basis that the report of Dr Pulman had been served on the applicant late and he ought be given time to respond to it. The admissibility of Dr Pulman’s evidence was debated on a voir dire before Hunt DCJ on 31 May 2021. Following argument, his Honour gave ex tempore reasons for his rulings on her evidence. This ruling is the subject of challenge in ground 3. Ultimately, on 1 December 2021, the trial date was fixed for 31 January 2022. The trial commenced on 2 February 2022 before the trial judge.

62. [195]

    The applicant did not obtain an expert report in response to Dr Pulman’s report. Instead, he conducted his own research, a summation of which (attachment E to his affidavit of 17 January 2025) he sought to tender on appeal.

63. [196]

    The applicant is a computer scientist who has not engaged in academic study or training or had experience such as to qualify him to give an expert opinion on the behaviour of children who are the victims of sexual abuse. As this Court (Beech-Jones CJ at CL, Harrison and Fagan JJ agreeing) said in AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [77]:

64. [197]

    For these reasons, the applicant’s “report” is inadmissible and ought be rejected.

65. [198]

    The applicant sought to tender on the appeal an affidavit of Shirin Bayjanova affirmed 31 October 2024, an analytics specialist who met the applicant at an Open Day at the Parkes Radio Telescope in 2011. She and her family became family friends of the applicant’s family. She deposed to sharing evening meals at the applicant’s home on Saturdays at 7pm “every 2-3 weeks”. Until she left for Adelaide, the complainant was usually present on such occasions. The deponent said that she never witnessed any “animosity, tension or conflict” between the applicant and the complaint; she kept in touch with the complainant after the complainant moved to Adelaide. She deposed that she did not believe that the applicant could be convicted “given the facts [she] knew about the family and the available evidence”. She also deposed that, during the trial, she discussed the progress of the trial with the applicant “almost every day”. He made complaints to her about the way in which defence counsel was running the trial.

66. [199]

    Ms Bayjanova was plainly available to give evidence at the trial and could have given character evidence on behalf of the applicant, had she been called. The defence could have requested that she be called by the Crown to give evidence, for what it was worth, about her interaction with the family and the timing of the visits. Her evidence is, thus, new, rather than fresh. It does not meet the threshold for admission on appeal and ought therefore be rejected.

67. [200]

    The applicant sought to tender an affidavit of his brother dated 25 October 2024 (the 2024 affidavit) in which the deponent stated that he took the complainant on a three-day road trip from Melbourne to Sydney with an elderly Russian woman in April 2007. The deponent said that the complainant was “jovial, well behaved and agreeable” on the trip, of which he has many fond memories. He also deposed that, when staying in Sydney with family members, he observed no conflict between them and none complained about another family member to him.

68. [201]

    The affidavit constitutes new evidence as the applicant’s brother gave evidence at the trial, including of the road trip with his foster mother and the complainant in 2007. He also said in his oral evidence that he saw no indication of the offending behaviour in his visits to the household. The 2024 affidavit provides slightly more detail than was provided in his oral evidence. It falls far short of the threshold for the admission of new evidence on appeal and ought be rejected.

69. [202]

    The document at attachment U to the applicant’s affidavit of 17 January 2025 is an extract from the complainant’s diary dated 14 July 2004 (and not, as stated in the body of the affidavit, an email in which he refused a job in Sydney because he thought that it was in the best interests of the complainant not to move at that time). The diary entry was made when the complainant was 12 years old and still living in Melbourne and concerns her lack of sex education. It was tendered in the defence case and marked Exhibit 3. Accordingly, it is neither new nor fresh and was in evidence before the jury. An email such as the one described by the applicant in paragraph 32 of his affidavit would be new evidence and would not meet the threshold for admission on appeal even if relevant.

The balance of the applicant’s appeal

1. [203]

   Before turning to the individual grounds, it is important to note the ambit of the applicant’s appeal. He challenged the conduct of defence counsel, the prosecutor and the trial judge. The applicant submitted that there were substantial irregularities and errors in his trial, including: alleged failures to challenge evidence adduced by the Crown; “inadmissible prejudicial evidence, misstatements of facts, inflammatory comments, violations of the rules of cross-examination”; and “[c]oncealed or rejected admissible favourable evidence”. He submitted that the trial was “not fair by any standard” and was an “unopposed and an unlawful assassination of character”.

2. [204]

   He submitted that, in a case such as the present where the credibility of the complainant was an important issue, these irregularities and errors were of particular significance. He relied on the following passage from Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 at [55]:

3. [205]

   The applicant also cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [50]:

4. [206]

   The applicant accepted that, in order to obtain relief if any error or irregularity was made out, it was necessary for him to show that there had been a miscarriage of justice, which required him to show that the error or irregularity was material in the sense that it could realistically have affected the reasoning of the jury to its verdict: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 at [3] and [10].

5. [207]

   What is required to be established for that purpose was articulated by this Court (Beech-Jones CJ at CL, Davies and Wilson JJ agreeing) in Zhou v R [2021] NSWCCA 278 at [22] (endorsed in HCF v The Queen (2023) 280 CLR 596: [2023] HCA 35 at [2]):

Grounds challenging the admissibility of evidence adduced at the trial

1. [208]

   The applicant challenged the expert report of Dr Pulman dated 27 May 2021 which was served by the prosecution on the defence and formed the basis of Dr Pulman’s evidence at the trial (which has been summarised and extracted above).

2. [209]

   As referred to above, at the voir dire on 31 May 2021, defence counsel objected to the report on the basis that it was served late and Dr Pulman had been given material which would not be admissible in the trial (such as the whole of the complainant’s recorded interview and all of her witness statements). He highlighted the difficulty for the applicant in identifying the factual basis for Dr Pulman’s opinion, given that much of the material would not be in a form where it could go to the jury. However, but for this matter, defence counsel did not submit that opinion evidence about the conduct of complainants of child sexual abuse, including delayed complaint, was not, of itself, admissible pursuant to ss 79 and 108C of the Evidence Act. In his ex tempore reasons given at the conclusion of the hearing, Hunt DCJ said:

3. [210]

   Hunt DCJ adjourned the trial (from 31 May 2021 to February 2022) to remedy any unfairness caused to the applicant by the late service of Dr Pulman’s report. His Honour also ruled inadmissible aspects of her evidence. Further, the Crown confirmed that it did not press the tender of any of the material relating to the applicant’s trial (such as the transcript of the complainant’s evidence or her witness statements) which had been provided to Dr Pulman.

4. [211]

   Ground 4E has not been made out.

5. [212]

   All of the oral evidence given by Dr Pulman concerned the possible responses of victims of child sexual assault and was within her accepted area of expertise. None of it related to the details of the present case or to the complainant’s conduct, except in so far as her general evidence could be applied by the jury to the complainant’s conduct. Dr Pulman’s evidence was relevant to the jury’s assessment of the complainant’s credibility and in particular to counter the defence case that the complainant had fabricated her evidence and decided, years later (hence the delay in complaint), to punish the applicant for no longer supporting her financially. Neither the opinion rule (evidence of opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1) of the Evidence Act), nor the credibility rule (credibility evidence about a witness is not admissible: s 102 of the Evidence Act) prevented its admission, having regard to the exception in s 108C of the Evidence Act.

6. [213]

   Section 108C provides that the opinion rule and the credibility rule do not apply to evidence of a person’s opinion that is “wholly or substantially based” on specialised knowledge based on their “training, study or experience” if the evidence is capable of “substantially affect[ing] the assessment of the credibility of a witness” and is the subject of leave. Each of these conditions was fulfilled in the present case: see the consideration of this type of evidence in BQ at [36]-[44] (which was decided after the applicant’s trial). For these reasons, ground 3 has not been made out.

7. [214]

   Although the applicant made extensive reference to authorities which pre-dated s 97A of the Evidence Act (which came into operation on 1 July 2020) he accepted that the section created a rebuttable presumption that particular tendency evidence had significant probative value. However, he submitted that the trial judge ought to have determined, pursuant to s 97A(4), that it did not have significant probative value because there were “sufficient grounds to do so”.

8. [215]

   The applicant further submitted that the prejudicial effect of the context and tendency evidence ought to have led to its exclusion under ss 101 or 137 of the Evidence Act. He sought to draw from IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (IMM) the proposition that evidence given by a complainant which was unsupported by an independent source, could be regarded as lacking significant probative value.

9. [216]

   The applicant submitted that social mores had changed since the 1990’s and conduct which would have been acceptable in 1990 (a father kissing a child on the lips) would no longer be regarded as acceptable. I am not persuaded of the relevance of this submission given that the charge period in the present case was from 1 January 2007 to 17 May 2008 and the evidence of grooming did not extend back before 1997 (when the applicant took the complainant nude swimming) and principally concerned the period from 2004 (when the complainant was 12) onwards. In any event, the applicant’s submission was not supported by evidence and will not be addressed further.

10. [217]

    The applicant relied on evidence of his good character (including to establish his “tendency to make sacrifices for others”) in support of his submission that the tendency and context evidence was inadmissible. Good character evidence does not have this effect.

11. [218]

    The applicant posited various “innocent” explanations for the conduct which was the subject of evidence (such as his stroking the complainant’s bottom and saying, when she objected, that her “bum” was his) which was relied on as context and tendency evidence. He also referred to various items of evidence which were not relied on by the Crown as either tendency or context evidence (such as having the complainant sit on his lap when going down a water slide). Other items to which he objected in this Court were tendered on his behalf at the trial (such as an email and a WhatsApp message between him and the complainant). These items were not relied on by the Crown as tendency or context evidence.

12. [219]

    At the time of the applicant’s trial, the applicable test under ss 101 and 137 was that the probative value of the evidence must outweigh (not “significantly outweigh”, as had earlier been provided) the danger of unfair prejudice (by reason of amendments made by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), Sch 1, cl [4]).

13. [220]

    Section 97A changed the law in important respects. Authorities, such as IMM, were decided prior to s 97A. Their continued application must be assessed by reference to that section. Further, The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 (Bauer) significantly qualified some aspects of IMM: see Bauer at [47]-[48]. However, IMM is still good law for the propositions that the complainant’s evidence must be taken at its highest when determining its probative value as tendency evidence and that taking evidence at its highest assumes that the evidence is reliable and credible: IMM at [39] and [50]-[52]; Bauer at [69]; and TL v The King (2022) 275 CLR 83; [2022] HCA 35 at [28].

14. [221]

    The applicant’s counsel did not object to the evidence tendered as context evidence. The trial judge gave detailed directions regarding the use that could be made of context and tendency evidence.

15. [222]

    The applicant has failed to identify any matter which, even had the objection been made at trial, ought to have led to displacement of the presumption of significant probative value created by s 97(2) or any error associated with the admission of tendency and context evidence. The correctness standard applies: Bauer at [61]. The evidence was correctly admitted.

16. [223]

    Accordingly, ground 5 has not been made out.

17. [224]

    In support of ground 10, the applicant submitted that the evidence of the five complaint witnesses was inadmissible for the following three reasons:

    1. (1)

       it was irrelevant since the complainant’s making of a complaint could not rationally affect the likelihood of the fact in issue (the matter about which she complained);

    2. (2)

       it did not fall within the exception to the hearsay rule in s 66 of the Evidence Act as, having regard to the lengthy delay before she complained, the facts could not be said to be fresh in the complainant’s memory; and

    3. (3)

       the complaint evidence ought to have been excluded pursuant to s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the applicant.

18. [225]

    The “hearsay rule” is that evidence of a previous representation made by a person is not admissible to prove the truth of the fact asserted. There are common law and statutory exceptions to this rule.

19. [226]

    The common law exceptions to the hearsay rule included an exception for complaint evidence if it was a recent complaint of an alleged sexual offence: Eade v The King (1924) 34 CLR 154; [1924] HCA 9 (Eade) at 157 (Knox CJ, Gavan-Duffy and Starke JJ); Papakosomas at [12] (Gleeson CJ and Hayne J); R v XY (2010) 79 NSWLR 629; [2010] NSWCA 181 at [50]-[54]. Although the making of a complaint did not amount to corroboration as such, since it was not independent of the complainant, it was evidence of the truth of the complaint (as an exception to the hearsay rule) and tended to confirm the complainant’s credibility and, therefore, to support the prosecution case: Eade at 157. As referred to above, the rule which required corroboration of a child’s evidence was abolished by s 164 of the Evidence Act.

20. [227]

    A relevant statutory exception to the hearsay rule was introduced by the Evidence Act. Section 66 is contained in Division 2 of Part 3.2 of the Act which provides for exceptions to the hearsay rule for “[F]irst-hand” hearsay. It relevantly provides:

21. [228]

    As the complainant, who was the maker of the previous representation (being the complaint), was available to give evidence within the meaning of s 66(1), s 66 applied. The effect of s 66(2) is to make admissible evidence which the complainant gave about the complaints she made to others and evidence which the persons to whom she complained gave about her complaints. Because s 66 is an exception to the hearsay rule, this evidence of a complaint (whether given by the complainant or the person to whom the complaint was made) is admissible to prove the truth of the contents of the complaint.

22. [229]

    The applicant relied on Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 (Graham) (in a response to which, as the note indicates, s 66(2A) was inserted), in which the High Court held that evidence of complaint by the appellant’s daughter to her friend was not admissible under s 66 of the Evidence Act because it was not “fresh in [her] memory” as the complaint was made six years after the alleged offending conduct. In Bauer, the High Court referred to Graham and s 66(2A) and explained:

23. [230]

    The applicant’s reliance on Graham is, accordingly, misplaced. The “nature of the event[s] concerned” is such that the events (weekly sexual intercourse between the complainant and her father, commencing when she was about 14 years old) could be expected to remain fresh in the complainant’s memory well beyond their disclosure to her friends when she was in her twenties. So too is his reliance on s 66(3), which does not apply since the complainant and the complaint witnesses were all called as witnesses in the trial.

24. [231]

    Not only did defence counsel not object to the complaint evidence under s 137 of the Evidence Act or otherwise, but he used it forensically to seek to impugn the complainant’s credibility by incorporating into the applicant’s case theory that the complainant had actively “recruited” those witnesses to support her allegations and then encouraged them to make notes and provide statements to the police. Defence counsel’s reasons for taking this course is rationally capable of explanation on the basis of a perceived forensic advantage: TKWJ at [27] (Gaudron J). In these circumstances, I am not persuaded that any unfairness was created by the admission of the evidence. Ground 10 has not been made out.

25. [232]

    As referred to above, defence counsel sought to tender the complainant’s school reports and letters of reference from the school. These were rejected on the basis that they were “too far removed”, constituted secondary hearsay and were unnecessary, given that it was not in dispute that the complainant was a high-achieving student.

26. [233]

    The applicant argued that, had the trial judge not rejected these documents, he could have tendered a publication by Dr Richard Gardner, True and False Accusations of Child and Sexual Abuse (Creative Therapeutics, New Jersey, 1992) with a view to proving that had the complainant been the victim of incest, she would not have been able to perform as well as she did at school. It is unclear how this publication was admissible as evidence in the trial. The provision postulated by the applicant, s 144 of the Evidence Act (which dispenses with proof of matters which are common knowledge) is inapplicable to such a contentious proposition. That it does not qualify as common knowledge is illustrated by Dr Pulman’s evidence (summarised above) that a victim of child sexual abuse can still “do certain activities or sporting things. And so that’s not unusual for a child to appear to the general world as being happy [and] normal”.

27. [234]

    As to the complaint about the school records and references, these have been addressed with respect to ground 2.

28. [235]

    As set out above in the narrative of the evidence at the trial, defence counsel agreed that the only practical way for JK to give evidence was for her to give it remotely. The trial judge had power to permit this to occur: see the discussion in KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249 at [66]-[68]. If this had not been permitted, the only option would have been to discharge the jury and stand over the proceedings to be listed some time in the future when the COVID-19 restrictions were no longer required.

29. [236]

    The applicant argued in this Court that the taking of JK’s evidence by AVL deprived the jury of the opportunity to assess her credibility and thereby caused a miscarriage of justice. The applicant is bound by the eminently reasonable concession made by defence counsel that JK’s evidence ought be taken by AVL. Leave to appeal ought be refused in respect of this ground.

Grounds challenging the conduct of the prosecutor

1. [237]

   There are several grounds which relate to alleged impropriety of the prosecutor. General principles relating to the role of counsel have been summarised above. The role of prosecutor is different from that of defence counsel. The principles relating to a determination whether a prosecutor has exceeded proper boundaries in the closing address are set out below immediately preceding the grounds which relate to that matter.

2. [238]

   The applicant submitted that the prosecutor had breached Barristers Rules, r 83, which relevantly provides that “[a] prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court …”.

3. [239]

   The applicant alleged that the prosecutor had breached r 83 by failing to adduce evidence of the following, which will be addressed in turn:

   1. (1)

      the complainant’s motive to accuse him of criminal conduct;

   2. (2)

      documentary evidence of the complainant’s scholastic achievements;

   3. (3)

      alleged changes in the complainant’s account of the alleged offending;

   4. (4)

      a note made by the complainant addressed to her mother about her mental health; and

   5. (5)

      the lack of accusations made by other children who had been in the applicant’s care.

4. [240]

   The material in the prosecution brief contained a reference to JK telling the complainant that there was a possibility that she could sue the applicant for damages. If relevant, this evidence related to the complainant’s credibility and therefore was arguably inadmissible in the Crown case: s 102 of the Evidence Act. However, it fell within the exception in s 103 of the Evidence Act, which permits evidence relevant to credibility to be adduced in cross-examination of a witness if the evidence could substantially affect the credibility of the witness. Thus, defence counsel was entitled to, and did, cross-examine the complainant about this exchange with her mother. In the exchange, the complainant accepted that her mother had told her of that possibility.

5. [241]

   The reference in r 83 to “the whole of the relevant evidence” can only be a reference to the whole of the admissible evidence. There was no arguable breach of r 83 by the prosecutor’s failure to adduce evidence that JK had made the complainant aware of the possibility that she could claim damages against the applicant.

6. [242]

   The trial judge’s rejection of evidence of the complainant’s scholastic achievements has been addressed elsewhere in these reasons. The prosecutor’s obligation under Barristers Rules, r 83, is to seek “to have the whole of the evidence intelligibly before the court”. The word “intelligibly” qualifies the obligation since it is a necessary part of the prosecutor’s function to ensure that evidence which is superfluous or of marginal relevance is not tendered (although it must, nonetheless, be disclosed). If prosecutors did not put the whole of the evidence intelligibly before the court, but simply tendered the whole prosecution brief, trials would quickly become unworkable and unwieldy, to no good purpose, which would be inimical both to the administration, and the interests, of justice. The cost would become ruinous for the community and there would be many fewer people who could sit on juries because trials would be disproportionately elongated.

7. [243]

   There was no obligation on the prosecutor to tender evidence of the complainant’s scholastic achievements. There was, as referred to above, no error in the trial judge rejecting these documents when defence counsel sought to tender them.

8. [244]

   The applicant submitted that the prosecutor concealed the version of the offending given by the complainant to her then boyfriend (that she had been raped several times a week). He submitted that this evidence tended to impugn the complainant’s credibility and ought not to have been concealed by the Crown and, indeed, ought to have been led by the Crown.

9. [245]

   I reject this submission. The prosecutor disclosed, as part of the brief which was served on the applicant’s legal representatives, the statement of the complainant’s then boyfriend, Mr T. The prosecutor called Mr T in the Crown case and Mr T gave evidence that in September 2017, the complainant told him what had happened, as follows:

10. [246]

    There was neither concealment of this evidence, nor a failure to adduce it as part of the Crown case. This sub-ground has no basis.

11. [247]

    In support of this sub-ground, the applicant alleged that the prosecutor failed to tender the complainant’s handwritten note to JK which is attachment A to his affidavit of 17 January 2025 and has already been addressed in connection with ground 2. No legitimate criticism could be levelled at the prosecutor for not tendering the note, which, at best, was marginally relevant to the complainant’s credibility and therefore not admissible by reason of s 102 of the Evidence Act.

12. [248]

    The applicant submitted that the prosecutor was bound to adduce evidence that he had not sexually assaulted another young girl who was in his care from time to time. The only possible relevance of this evidence was as to the applicant’s good character. The prosecution has no obligation to adduce such evidence. The evidence was, in any event, irrelevant to the Crown case since it was not alleged that the applicant had sexually assaulted anyone other than the complainant.

13. [249]

    None of the sub-grounds of ground 4F has been made out. It overlaps with ground 4B which, likewise, has not been made out. Leave ought be refused in respect of grounds 4B and 4F.

14. [250]

    The evidence which is the subject of this ground comprises: the evidence of Dr Pulman; tendency and context evidence; the evidence of JK; and the complaint evidence. Each of these witnesses and categories of evidence have been addressed in connection with other grounds of appeal and do not need to be addressed separately here. Ground 4G has not been made out. Leave ought be refused.

15. [251]

    The applicant submitted that the prosecutor caused or influenced the jury to draw improper inferences concerning what was on the applicant’s work computer at CSIRO (being the applicant’s work place). His submission appears to have been based on the false premise that the prosecutor asked the question whether anything untoward was found on the applicant’s computer. In fact, it was defence counsel who elicited that evidence which was of forensic benefit to the applicant.

16. [252]

    The way in which the matter arose was as follows. The question of what was on the applicant’s computer was raised by defence counsel on the third day of the trial. In the absence of the jury, defence counsel asked the prosecutor whether the Officer in Charge of the investigation (the OIC) could confirm that the applicant’s computer had been investigated and nothing untoward had been found on it. The prosecutor confirmed that he could. When the OIC, Detective Senior Constable Scott Tindale was cross-examined by defence counsel on the seventh day of the trial, he confirmed that there had been a “detailed forensic analysis” of the applicant’s workplace computer. He was not, however, asked whether anything untoward was found on that computer. It would appear that this was an oversight by defence counsel because, on the eighth day of the trial, defence counsel told the trial judge that he should have taken the next step of confirming that there was nothing untoward found on the computer. The prosecutor agreed to re-call the OIC for that purpose. Later that day, the prosecutor informed the trial judge in the presence of the jury that defence counsel required the OIC to be re-called for “a very narrow piece of evidence”. This evidence was given by the OIC and the witness withdrew.

17. [253]

    The conduct of the prosecutor was appropriate, proper and co-operative. No criticism could be made of the way in which he dealt with the request from the defence. Leave ought be refused for ground 4D.

18. [254]

    The applicant submitted that several aspects of the prosecutor’s cross-examination of him were improper. Some of these submissions can usefully be addressed by reference to categories, while others contain specific criticisms which need to be addressed separately. These will be addressed in turn.

19. [255]

    The applicant accepted that the prosecutor was entitled to put the Crown case “fully and, where appropriate, forcefully” to him in cross-examination. However, he instanced several examples where he submitted that the prosecutor had gone beyond the bounds of what was proper. These fall into five categories which will be addressed in turn:

    1. (1)

       instances where the prosecutor put the Crown case to the applicant for the purposes of compliance with Browne v Dunn (1894) 6 R 67;

    2. (2)

       instances where the prosecutor put the evidence of prosecution witnesses to the applicant and invited his response;

    3. (3)

       instances where the prosecutor was apparently laying a foundation for a closing submission as to how a document ought be interpreted;

    4. (4)

       instances where the applicant was invited to comment whether the complainant’s evidence was false; and

    5. (5)

       instances where the applicant was invited to speculate about what was going on in the mind of another witness.

20. [256]

    The so-called “rule” in Browne v Dunn was explained by Lord Herschell LC in Browne v Dunn itself as follows:

21. [257]

    It is, in substance, a rule of practice which has the purpose of advancing fairness and according with the rules of procedural fairness: see the discussion in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16 (Hunt J). Its application in criminal trials is qualified and it tends not to be enforced against an accused. Further, it is not always necessary for the prosecutor to put the entirety of the evidence in the Crown case to an accused in cross-examination since the evidence has already been led and therefore the accused can be taken to be on notice of it. However, it is desirable that the Crown case in substance be put to an accused to permit the accused to respond. The limits of the rule in criminal cases do not arise for consideration in the present case, since the criticism of the prosecutor is that he put too much to the applicant in cross-examination, rather than that he failed to put something which ought to have been put.

22. [258]

    This category includes a large number of questions extracted from the transcript. It is not necessary to reproduce them all to deal with the ground since a sample is sufficient. This category includes the following examples:

23. [259]

    I regard each of these questions as constituting the prosecutor’s fulfilment of his duty to put the Crown case to the applicant to give him an opportunity of responding. I am not persuaded that the prosecutor has gone beyond proper bounds in formulating questions in this way.

24. [260]

    This category comprises the following questions:

25. [261]

    The issue which arises in considering category (2) was considered by this Court (Giles JA, Howie and Fullerton JJ) in Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232 (Gonzales) as follows:

26. [262]

    The distinction between what is proper and what is not was explained in R v Booty (Court of Criminal Appeal (NSW), 19 December 1994, unrep, Grove J (Abadee and Simpson JJ agreeing)) (Booty), which was cited in Gonzales at [149]. The Court in Booty explained that while it was proper to make a “simple enquiry of one witness whether another is telling the truth”, it was impermissible and improper to invite the witness to comment on why the evidence of another witness differed from the subject witness’ evidence or to invite an accused to comment about the truthfulness of another witness’ evidence. The latter category is particularly improper where the inquiry is made of an accused as to why the complainant would lie because it has the effect of reversing the onus of proof: Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2. As the Court (Brennan CJ, Gaudron and Gummow JJ) said at [10]:

27. [263]

    The principles were summarised by Hall J in JG v R [2014] NSWCCA 138 at [418]:

28. [264]

    With one exception, question (j), I am not persuaded that the prosecutor in any of the questions in category (2) invited the applicant to comment on the reason for the inconsistency between the witness’ evidence and his own. Rather, as part of putting the prosecution case to the applicant, the prosecutor put the substance of the witness’ evidence to the applicant to give him a chance to respond. The prosecutor did not exceed the proper bounds of cross-examination in respect of these questions.

29. [265]

    Question (j) is in a different category because, on its face, it invites the applicant to comment on what was in the mind of JK when she asked the applicant, in writing, to leave the complainant alone. This question is addressed in category (3) below.

30. [266]

    The questions in this category involved the prosecutor asking the applicant why JK would ask him to “[l]eave [the complainant] alone” and putting to him the Crown case as to the reasons. Although on its face, this question would appear to invite comment about the state of mind of another witness, JK, it is, in substance, an invitation to offer a different interpretation than that for which the Crown contended: namely, that JK was asking the applicant to cease sexual contact with the complainant.

31. [267]

    As a matter of fairness, it was necessary for the Crown to put this document to the applicant and given him an opportunity to respond to the Crown’s interpretation of the words used. Had the prosecutor not done so, defence counsel may have reasonably objected to the submission in closing address on the basis that the applicant had not had a chance to respond to it. Alternatively, defence counsel could have made something of the prosecutor’s failure to afford the applicant an opportunity to say what he actually understood by the document, which was an email which was addressed to him. There was no impropriety in this question.

32. [268]

    The questions in this category are as follows:

33. [269]

    I understand the Crown to accept that these two questions may be regarded as contrary to R v Praturlon (Court of Criminal Appeal (NSW), 29 November 1985, unrep) and Gonzales. However, the Crown submitted that, notwithstanding the impropriety of these questions, there has been no miscarriage of justice. I accept this submission. These were two questions in the 33 pages of transcript of cross-examination of the applicant. The applicant was, at all times, steadfast in his denials of any sexual contact between him and the complainant and was not, in any way, drawn to comment in the proscribed way.

34. [270]

    Further, when the applicant’s responses to these objectionable questions are considered, it is plain that he was able to deal with them.

35. [271]

    The exchange which included question (h) was:

36. [272]

    Although this question was inappropriate, it elicited no greater response than had the proposition been put to him in an appropriate way (by asking him whether he accepted the underlying proposition to be correct).

37. [273]

    The exchange which included question (o) was:

38. [274]

    While the question ought not to have been asked in that form, the answer given would, in substance, have been the same had the question been put appropriately (“You would ice her out, be frosty to her, make her feel alone in the house, wouldn’t you?”).

39. [275]

    Although these two questions would appear to have gone beyond the bounds of what was proper, I do not consider that they gave rise to any miscarriage of justice, either individually or together with any other aspects of the cross-examination of the applicant addressed in these grounds.

40. [276]

    The prosecutor ought not to have invited the applicant to speculate about what was in the complainant’s mind (as clearly occurred in question (q) or in JK’s mind (as occurred in question (v)).

41. [277]

    Question (w) was inappropriate because it appeared designed to elicit an emotive response from the jury by referring to the evidence of one of the complaint witnesses that the complainant felt like an orphan when she was growing up. Further, how the applicant felt about hearing this evidence was irrelevant and therefore inadmissible.

42. [278]

    Question (ee) was improper because it was argumentative and introduced material which had no foundation in the evidence (that the theories in Dressed to Kill had been debunked). It also appeared to ridicule the applicant in a way which appeared designed to rile him.

43. [279]

    However, the applicant’s response to that question is telling and indicates that he was well able to respond, apparently without losing his equanimity (in so far as that matter can be judged from the transcript). The exchange followed the applicant’s evidence that he was aware but had not read a book called “Dressed to Kill”, in which the theory was propounded that constricting lymphatic regions of the body (breasts) increases the risk of cancer. The cross-examination continued:

44. [280]

    Although the questions in this category might appear to have gone beyond the bounds of what is permissible for a prosecutor, their effect on either the applicant and the jury was, in my view, in the context of the trial as a whole and the applicant’s evidence, in particular, minimal. This may explain why no objection was taken to these questions and why the experienced trial judge did not intervene to reject the questions pursuant to s 41 of the Evidence Act (which, in terms, requires a judge to disallow a question “if the court is of the opinion that the question is … offensive … or put … in a manner or tone that is belittling, insulting or otherwise inappropriate…”. I am not persuaded that any of these questions, individually or in combination, posed a risk of miscarriage of justice, as outlined above.

45. [281]

    The complainant gave evidence (extracted above) that when she was swimming laps, naked, in the pool, the applicant would “often swim just behind [her] or if he was like waiting at and [sic – an] end he’d, like, duck down below the water as [she] was approaching the end” when she was turning around. The prosecutor put to the applicant that he “would dive under and … look at [the complainant]”.

46. [282]

    The applicant submitted that his actions were consistent with his observing the complainant’s turning technique but that this questioning was improper as the prosecutor insinuated that he dove under the complainant in order to look at her nude body and imputed “sinister motives” to him. The applicant submitted, incorrectly, that the prosecutor had referred to this in his closing address but, in fact, it occurred in cross-examination.

47. [283]

    I regard the difference between “duck[ing] down” and “div[ing] under” as being semantic in circumstances where it was common ground that the applicant was also in the pool with the complainant. As to the alleged imputation of sinister motives, the prosecutor was obliged to put the Crown case and his questioning was part of his doing so. I would refuse leave for ground 11A.

48. [284]

    As set out above, the prosecutor put to the applicant that when he gave the complainant naked massages after the sexual intercourse stopped, he touched her vaginal area. The applicant submitted that this cross-examination was improper as the complainant had not given that evidence herself.

49. [285]

    I consider that the prosecutor had a sufficient basis for the cross-examination (for the purposes of compliance with Barristers Rules, r 67) in paragraph 101 of the complainant’s police statement dated 13 July 2018 that during naked massages which occurred after the sexual intercourse stopped and continued until she moved out, the applicant would “graze the outer lips of [her] vagina”, even though the complainant had not given that evidence.

50. [286]

    However, it would usually be inappropriate for a prosecutor to seek to elicit, by way of admission in cross-examination of an accused, something of which the complainant has not given evidence in chief. That said, it is understandable that, just as the trial judge failed to recall or appreciate that the complainant had not given such evidence in the trial (although it had been adduced on a voir dire), the prosecutor also failed to recall or appreciate that he had not elicited that evidence in evidence in chief of the complainant (who would, presumably, have given such evidence had she been asked). So too did defence counsel and the applicant himself presumably fail to notice the disparity between what the complainant had said (or, rather, not said) and what the prosecutor put. In these circumstances, it is understandable that the prosecutor put the question, that the defence counsel failed to object and that the trial judge included it, erroneously, in her Honour’s summing up.

51. [287]

    What this aspect of the trial indicates is that trials are demanding and human recollection is fallible. The speed with which trials are conducted means that barristers and judges must rely on memory without immediate recourse to transcript when examining, cross-examining, formulating objections and identifying disparities in a summing up. I am satisfied that the prosecutor’s cross-examination of the applicant about his touching the complainant’s vagina ought not to have occurred. However, it did not cause any miscarriage of justice. The applicant denied it and the prosecutor moved on to his next question.

52. [288]

    For the reasons given below ground 4C has not been made out. Leave should be refused in respect of each of these grounds.

53. [289]

    In a much-cited passage, this Court (McClellan CJ at CL, Johnson and Latham JJ) in R v Livermore (2006) 67 NSWLR 659; [2006] NSWCCA 334 (Livermore), identified, at [31]:

54. [290]

    The Court in Livermore counselled against adopting “a formulaic approach” to the determination of whether a Crown address “exceeds the proper boundaries”. In other words, the effect of the prosecutor’s conduct must be judged by reference to the particular facts and circumstances of the trial under consideration.

55. [291]

    In Lane v R [2013] NSWCCA 317; (2013) A Crim R 321, this Court referred to the use of rhetoric by a prosecutor in final address at [116]:

56. [292]

    The applicant relied on several extracts from the transcript of the prosecutor’s closing address in support of ground 4C. In order to address them, they will be extracted below and numbered for ease of reference, in the order in which they appear in the closing address. However, it is important to note that, while the jury was given a transcript of the evidence of the witnesses, it was not given a transcript of the addresses or the summing up. Thus, for the course of their deliberations, the jury had the evidence of witnesses but no record of the addresses other than those which they may have made by hand during the course of their delivery. The trial judge directed the jury that it was important that they bore in mind what counsel said to them in address but that they must decide the case on the evidence.

57. [293]

    In the transcript of addresses, the Crown is recorded as having read out passages from the transcript to the jury. The transcript writer has not transcribed the whole quotation, but rather its beginning and indicated that other words were said by inserting “…”. This is not uncommon when counsel is reading verbatim from another document.

58. [294]

    The applicant submitted that this amounted to a “mangling” of quotations from the evidence and amounted to a “word salad” which would have confused the jury. The conventional inference can be drawn – that the transcript writers did not see fit to transcribe all of what was read out but identify it by the prefatory words. Further, this method had no capacity to confuse the jury because they heard the actual words spoken by the prosecutor and were not given the transcript of addresses in any event.

59. [295]

    The applicant identified the following as an improper submission:

60. [296]

    The family circumstances of the applicant and the complainant were the subject of substantial evidence. The applicant had led evidence of his daughter’s lifestyle, how she conducted herself and how he had attempted, as effectively a sole parent, to control her, purportedly for her own good. The prosecutor’s rhetoric in Crown closing did not go beyond the bounds of what was appropriate.

61. [297]

    The prosecutor said of the location of the alleged offending:

62. [298]

    It was a significant part of the Crown case that the naked massages, which led to penile-vaginal sexual intercourse, took place in the applicant’s bedroom rather than in the lounge room, where the naked massages between the applicant and JK had taken place. The location formed part of the Crown’s circumstantial case that the “naked massages” were not innocent and started as grooming behaviour and later served as foreplay as well as the aftermath of sexual intercourse between the applicant and the complainant. The hypothesis consistent with innocence advanced by the applicant was that he had innocent naked massages with the complainant as he was a practising nudist and this was normal behaviour with no sexual connotation. The Crown was entitled to emphasise the location of the massages and the alleged offending in its closing address.

63. [299]

    The prosecutor referred to JK’s evidence that, while they were still living in Melbourne, the applicant had asked her whether he could engage in sex education of the complainant and that JK had agreed. He submitted, in closing address:

64. [300]

    The applicant submitted that this conversation could not rationally have had anything to do with the alleged sexual intercourse because it took place in Melbourne several years before the alleged intercourse commenced. I consider that it was open to the prosecutor to make this submission. That the conversation had occurred was significant to the Crown case that the applicant had maintained an unlawful sexual relationship with the complainant with the acquiescence and complicity of JK. The Crown case, supported by JK’s evidence, was that JK was loath to have intercourse with the applicant herself and positively encouraged the complainant to be the substitute (by telling her how happy she had made her father by allowing the intercourse). It was open to the jury to infer that the conversation in Melbourne amounted to the applicant testing JK to see whether she would stand in the way of a sexual relationship between the applicant and the complainant. In these circumstances, it was not material that the conversation occurred some time before the actual sexual intercourse took place since it was, on the Crown case, preparatory to the initiation and maintenance of such a relationship by the applicant. The prosecutor was entitled to put the Crown case in this way to the jury.

65. [301]

    The prosecutor made the following submission regarding the complainant’s final move from Sydney to Adelaide:

66. [302]

    The applicant submitted that this submission was incorrect as the complainant had in fact moved her possessions to Adelaide in 2017 before she had met with her friend, DM (who was one of the complaint witnesses), who had allegedly assisted her to report the matter. The applicant had various theories about the way in which the matter was reported and the immediate chronology prior to his being charged which he submitted showed that the complainant was not to be believed (the detail of which is not necessary to address). The prosecutor was obliged and entitled to put the Crown case and, in doing so, to explain why the complainant felt sufficiently secure in Adelaide, which is geographically far removed from the applicant’s location in Sydney, to report the matter to police there. I am not persuaded that there was anything improper in this submission.

67. [303]

    The prosecutor addressed the aspect of the Crown case that may, but for the evidence of Dr Pulman, have seemed counterintuitive to the jurors: that the complainant continued to live with the applicant after her mother had left. He said:

68. [304]

    The applicant challenged this passage on the basis that it was factually wrong since the complainant could have moved out with her mother or moved out with friends. This is not a proper objection to a Crown closing submission. The prosecutor was entitled to put the Crown case, which included explaining why the complainant felt unable to leave her father earlier than she did.

69. [305]

    The applicant challenged the prosecutor’s submission that the complainant had an “almost crystal clear memory” of the first occasion on which the applicant showed pornography to her, as follows:

70. [306]

    The applicant submitted that this was not a fair summary of the complainant’s evidence which was, at times, vague and lacked specificity in terms of dates and times. That the complainant’s evidence about dates and times was, in various ways, non-specific does not make the extract from the Crown closing submission set out above inappropriate. The prosecutor was implicitly contrasting the detail with which the complainant recalled the first occasion on which the applicant showed pornography to her with her evidence, which was not as specific in respect of other occasions. No impropriety has been established in respect of this passage.

71. [307]

    The applicant also challenged the following passage from the closing address:

72. [308]

    I reject the applicant’s submission that this was an improper submission for the prosecutor to make. It was the Crown case that the applicant was maintaining an unlawful relationship with the complainant which included unlawful sexual acts. The prosecutor was obliged to put the case by reference to the evidence of what occurred.

73. [309]

    The applicant challenged the following submission in the Crown closing:

74. [310]

    In this extract from the closing address, the prosecutor was seeking to refute the anticipated submission to be made in the defence closing that JK’s request that he leave the complainant alone ought be seen through the prism of divorce proceedings where a couple might use a child for leverage between them. The prosecutor submitted that this was not the situation and that, in fact, the email in which the request was made was sent because JK was aware that the applicant was having sexual intercourse with the complainant and JK wanted him to stop. Once again, the prosecutor had an obligation to put the Crown case, which is that this was what the email meant and that this was the way in which the jury ought understand it. There was no impropriety in this aspect of the closing address.

75. [311]

    The prosecutor submitted:

76. [312]

    The applicant submitted that both JK and the complainant were lying when they gave evidence about his using “protection”, that is, a condom, and that this made the prosecutor’s submission improper. I reject this submission. The prosecutor was obliged to put the Crown case, which was that the applicant told JK that he was using “protection” (that is, he wore a condom when having sexual intercourse with the complainant), which corroborated the complainant’s evidence that the applicant in fact wore a condom when he had sexual intercourse with her. No impropriety on the part of the prosecutor has been demonstrated.

77. [313]

    The prosecutor submitted:

78. [314]

    The applicant’s disagreement with the Crown’s submission that the complainant was not “recruiting” complaint witnesses does not make the prosecutor’s submission improper. The remaining passages relied on by the applicant fall into the same category and do not need to be replicated.

79. [315]

    For the reasons given above, ground 4C has not been made out. Leave ought be refused.

80. [316]

    Other grounds germane to Dr Pulman’s report have been addressed above. Ground 4A relates to the prosecutor’s conduct with respect to Dr Pulman’s report. The applicant alleged that the prosecutor breached Barristers Rules, r 86, which provides that “[a] prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.”

81. [317]

    The submissions made by the prosecutor in his closing address about Dr Pulman’s evidence are contained in the narrative of the trial set out above.

82. [318]

    The evidence of Dr Pulman was an important part of the Crown case. Her evidence served to explain many aspects of the complainant’s evidence which the jury might otherwise have found perplexing or counter-intuitive (including why she remained living with the applicant; why she did not complain until many years later; why she was apparently able to function so well in other areas of her life when she was the victim of weekly sexual intercourse with her father; and why she succumbed to it after her initial resistance failed to elicit the support of her mother). The prosecutor was entitled, and, indeed, obliged to put the Crown case to persuade the jury to exclude any hypothesis consistent with innocence. I am not persuaded that the prosecutor overstepped the proper bounds of his role or that there was any arguable breach of Barristers Rules, r 86. Ground 4A has not been made out.

83. [319]

    The applicant submitted that the prosecutor had misstated the evidence when he referred to the Hite Report as “a survey about a number of women and how they’ve failed to achieve orgasm”. The applicant argued that this mischaracterised the Hite Report which he described in his submissions as a “comprehensive survey of many aspects of female sexuality [which] even has a chapter on feminism.” The applicant submitted that it was “unfair and wrong” for the prosecutor to describe it in the terms set out above.

84. [320]

    The Hite Report was not before the jury. What was before the jury was uncontroverted evidence that the applicant had given a copy of the Hite Report to the complainant. It was the Crown case that this conduct was part of his attempt to groom the complainant and indicated his sexual interest in her; it was the defence case that this conduct was an attempt by the applicant to give her sex education as his wife was unwilling to do so. In these circumstances, the jury would have understood the reference in the prosecutor’s address to the Hite Report as a reference to what the complainant took from reading it, about which she gave evidence, rather than as a comprehensive summary of what was contained in the report.

85. [321]

    The applicant, through his counsel, took no exception to this aspect of the prosecutor’s address. It was not improper of the prosecutor to refer to the complainant’s evidence in these terms in the closing address. Leave should be refused in respect of ground 11C.

86. [322]

    The applicant submitted that two passages from the prosecutor’s closing submissions were “inflammatory” and, accordingly, improper, each of which is highlighted in the passage below:

87. [323]

    The applicant did not submit that the first highlighted portion did not accord with the evidence. Rather, he submitted that the prosecutor had failed to give the “whole picture” of their family life.

88. [324]

    While r 83 of the Barristers Rules, requires a prosecutor to “seek impartially to have the whole of the relevant evidence placed intelligibly before the court”, it does not follow that the prosecutor is not required to put the Crown case. While an accused is entitled to a fair trial, the prosecutor does not represent the accused and is obliged to put the Crown case in the context of an adversarial system. There was no obligation on the Crown to refer to circumstances which might have put the applicant in a better light (that he was an orphan, that his wife was sick and not an active parent, that he was, effectively, a sole parent whose only daughter achieved academic excellence). I do not accept that the submission highlighted above was unwarranted, much less inflammatory.

89. [325]

    Contrary to the applicant’s submission, the second statement which the applicant relied on as being inflammatory also accorded with the complainant’s evidence. I reject the submission that it was inflammatory: it fairly stated the evidence which the complainant had given.

90. [326]

    Ground 4I has not been made out. I would refuse leave.

91. [327]

    The applicant has listed several instances on which he alleged that the prosecutor misstated the evidence. On each occasion, there was a basis in the evidence for the prosecutor’s submission. The applicant has sought to argue the merits of his case under the guise of criticism of the prosecutor’s closing. It is not necessary to detail each of the instances relied upon since they exhibit a misapprehension which is common to them all.

92. [328]

    A single example is sufficient to illustrate the point. The prosecutor said, in closing:

93. [329]

    The applicant submitted that the prosecutor misstated the evidence. He claimed in his written submissions on the appeal that he had listened to the claimant’s recorded interview with Detective Lavington and recalled that the complainant was “very business-like and not emotional at all”.

94. [330]

    The complainant gave evidence of the number of statements she had made to the police (a process which could fairly be described as “long and convoluted”). Detective Lavington gave the following evidence of the first interview:

95. [331]

    To the extent to which the prosecutor added a rhetorical flourish to this evidence by using the words “long and convoluted”, this was neither inflammatory nor outside proper bounds. Further, it is telling that defence counsel, of his own initiative or on the instructions of the applicant, did not seek to have the prosecutor’s closing statement withdrawn or corrected.

The challenge to the conduct of defence counsel (ground 1)

1. [332]

   The applicant’s submissions were redolent with complaints about defence counsel, many of which have already been addressed in connection with ground 2. However, the focus of his submissions in support of the contention that defence counsel was incompetent were the following:

   1. (1)

      alleged failure to ask “obvious” questions which were damaging to the prosecution;

   2. (2)

      alleged failure to expose the real reason why the complainant consulted a psychologist;

   3. (3)

      alleged failure to confront the complainant with lies;

   4. (4)

      alleged failure to object to inadmissible evidence (which are the subject of separate grounds); and

   5. (5)

      alleged failure to object to the prosecutor’s conduct or the trial judge’s conduct (which are the subject of separate grounds).

2. [333]

   As sub-grounds (4) and (5) above have been addressed elsewhere under separate grounds, it is unnecessary to address them further.

3. [334]

   Sub-grounds (1) to (3) turn on forensic decisions made by defence counsel in conducting the defence of the applicant. These matters were matters of discretion for defence counsel, who was obliged by Barristers Rules, r 42 not to act as the mouthpiece of his client. He was required to exercise independent judgment and was entitled to act contrary to his client’s instructions within the area of forensic discretion (see the authorities referred to above, including the summary in Birks).

4. [335]

   As to sub-ground (1), the applicant submitted that defence counsel was incompetent for not putting to the complainant that if she was the victim of weekly sexual abuse, she would not have stayed at home with her father. The course desired by the applicant was fraught with forensic risk, including the risk that the jury would regard the defence case as being based on one of the misconceptions exposed by Dr Pulman: why do child victims of sexual abuse remain within the family home? Dr Pulman explained in her evidence the manifold reasons why that would be the case. In my view, it was objectively forensically reasonable for defence counsel not to ask the questions which the applicant wanted to be asked to that effect.

5. [336]

   As to sub-ground (2), the applicant complained that his counsel did not explore with the complainant or her then boyfriend, Mr T, the “real reason” why she went to a psychologist, which he said was depression. The basis for this causal conclusion was the handwritten note which the complainant wrote to JK (addressed above with respect to ground 2). This forensic course was also fraught with risk because it could reasonably have been anticipated that the jury, if they accepted the complainant’s evidence, would regard the complainant’s depression as having been caused, or at least contributed to by, the complainant’s incestuous relationship with her father. It was objectively reasonable for defence counsel to refrain from this forensic course.

6. [337]

   As to sub-ground (3), the applicant complained that his counsel did not cross-examine the complainant about her “lies” about the timing of the meeting she had with DM (a complaint witness), which she said was on Boxing Day. The applicant’s submission reveal that he worked out a series of propositions about timing in 2016 to 2017 which he wanted his counsel to put to the complainant as lies and explain to the jury with a view to discrediting the complainant. As the applicant put it: he asked his counsel to “explain all this to the jury but he did not”. It was forensically reasonable for defence counsel not to cross-examine the complainant along those lines. The prospect of such questioning being productive or causing any doubt as to the complainant’s credibility when it came to the charge period was too remote to warrant the course being taken.

7. [338]

   For these reasons, ground 1 has not been made out. I would refuse leave.

Grounds challenging the conduct of the trial judge

1. [339]

   The applicant submitted that the following matters revealed that the trial judge was biased against him:

   1. (1)

      the exclusion of the evidence of the complainant’s school records;

   2. (2)

      the trial judge intervened when the applicant was giving evidence but did not intervene in the same way when the complainant and JK were giving evidence;

   3. (3)

      the trial judge misrepresented the defence case in the summing up;

   4. (4)

      inaccuracies in the trial transcript imply judicial interference; and

   5. (5)

      the sentence was manifestly excessive.

2. [340]

   I note that each of (1)-(4) is separately raised as grounds of appeal against conviction and (5) is raised as a ground of appeal against sentence.

3. [341]

   The first objection to ground 9 is that, except with respect to (5) above, the applicant is taken to have waived any objection to the matters raised since he was legally represented and did not make any objection on the grounds of bias: Vakuata v Kelly (1989) 167 CLR 568 at 572; [1989] HCA 44. In Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48, the Court (Gummow ACJ, Hayne, Crennan and Bell JJ) said at [76]:

4. [342]

   Although this statement refers to civil proceedings, the principle is not so limited.

5. [343]

   Matters (1)-(4) can be taken to have been apparent to the applicant and his legal representatives during the course of the hearing.

6. [344]

   As to (4), significant time was taken, as the transcript revealed, to correct the transcript following consultation with counsel. For example, all references to “swinging club” were changed to “swimming club” and references to “compliant witnesses” were changed to “complaint witnesses”. The applicant’s counsel had access to the transcript and, as the transcript reveals, checked it and drew the trial judge’s attention to corrections which needed to be made. The applicant, through his counsel, had the same opportunity. While it is difficult, if not impossible, to ensure that a transcript is completely free of error before it goes to the jury, the transcript reveals that attempts were made, through regular consultation with counsel, to provide the best possible transcript to the jury. Further, there was an added safeguard provided by the trial judge’s direction in the summing up about the use which could be made of the transcript, the possibility of errors and that the evidence was what they had heard, not what was written in the transcript (extracted above).

7. [345]

   Rather than taking any objection to the trial judge’s conduct (described in (1)-(4) above) at the time, the applicant stood by to see whether he would be convicted by the jury. This amounts to a waiver because the applicant elected to allow the matter to be determined by the jury. Although the applicant cannot have been taken to know of the sentence that would be imposed by the trial judge in advance of its being imposed, lack of success in proceedings is not an indication of bias. As noted, there is a separate ground of manifest excess on the sentence appeal.

8. [346]

   I note for completeness that, even aside from waiver, none of the arguments raised supports a finding that there was either actual bias an apprehension of bias on the part of the trial judge.

9. [347]

   Accordingly, leave to appeal ought not be granted with respect to ground 9.

10. [348]

    The complainant said in paragraph 101 of her police statement dated 13 July 2018 that during naked massages which occurred after the sexual intercourse stopped and continued until she moved out, the applicant would “graze the outer lips of [her] vagina”. The statement was tendered on the voir dire relating to tendency evidence.

11. [349]

    However, the detail quoted above was not given by the complainant in her oral evidence at trial and was therefore not before the jury, although the complainant gave evidence that the naked massages continued. She also said that she moved to Adelaide, in part, to avoid the massages to which she would have been subjected had she stayed in Sydney.

12. [350]

    In her summing up, the trial judge said, with respect to the massages: “[they] would involve, [the complainant] said, the accused brushing her … vaginal area” and, as set out above, repeated this detail twice in her summary of the Crown case.

13. [351]

    As the complainant did not refer to the applicant brushing her vaginal area in the massages in her evidence, the trial judge misstated the evidence and the summing up was erroneous to that extent.

14. [352]

    Counsel have an obligation to listen carefully to the summing up and correct any inaccuracies which they discern in the course of it so that the trial judge can correct them in front of the jury. The error referred to above was not corrected by counsel (or by the applicant himself through his counsel). The trial judge told the jury that she would not be referring to all of the evidence; and that the jury should bear in mind what counsel said in addresses, but that they were obliged to decide all relevant issues of fact by reference to the evidence: being what was said by the witnesses and what is in the exhibits. A transcript of the evidence (but not the summing up and therefore not the misstatement and not counsel’s addresses) was provided to the jury. The jury retired to consider its verdict on a Friday morning and returned its verdict of guilty on the following Wednesday.

15. [353]

    It is significant that the applicant, who was in the dock throughout the summing up, did not, apparently notice the error and draw it to the attention of his counsel. The error was so minor that it was, in my view, incapable of causing a miscarriage of justice. I would refuse leave to appeal with respect to ground 11B.

16. [354]

    As set out above, the trial judge referred in the summing to the complainant’s evidence about being given the Hite Report by the applicant. Her Honour said,

17. [355]

    For the reasons given above, it must have been plain (to the jury) that the description of the Hite Report was the complainant’s own description about what she had taken from the Hite Report, rather than a comprehensive survey of the report itself. The trial judge, in her summary of the Crown case, was entitled to use the words which the prosecutor had used, which were, in any event, derived from the complainant’s evidence. Leave ought be refused with respect to ground.

Alleged unreasonable verdict (ground 6)

1. [356]

   This Court’s jurisdiction with respect to ground 6 derives from s 6(1) of the Criminal Appeal Act which provides:

2. [357]

   This Court must determine whether it was “open” to the jury to find the applicant guilty or whether a jury “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

3. [358]

   The primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). The Court must proceed on the basis that the complainant’s evidence was accepted by the jury as credible and reliable: Pell at [39]. A verdict of guilty may be reasonable even if the complainant’s evidence is not corroborated: Pell at [53].

4. [359]

   The extent to which this Court may disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which he or she has been convicted, is limited. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

5. [360]

   This Court is entitled to take into account its general experience, including in a particular class of case or for particular witnesses, which relevantly includes that it is not uncommon for victims to remember specific details about the assaults but not tangential details. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing):

6. [361]

   Each member of the Court must carry out an independent assessment of the evidence: Dansie at [38].

7. [362]

   The applicant argued that there was no reliable evidence against him because the complainant was not reliable and she was motivated to “frame” him because she had conspired with a friend, DM (one of the complaint witnesses) to do so. He submitted that her scholastic achievements were “highly inconsistent with the accusations”. He submitted that it was implausible that the alleged sexual conduct had taken place over such a long period, particularly in circumstances where, as far as outward appearance went, the complainant was happy, well-adjusted and successful. He contended that Dr Pulman’s evidence did not serve to explain “why two adult women [the complainant and JK] could not stop the abuse allegedly perpetrated by a soft-spoken, physically non-violent man in 2013 and after, and why both of them stayed in his place much longer than necessary, while one of them was being allegedly abused and another one scared …”.

8. [363]

   He submitted that, although the family had moved to Sydney from Melbourne, the complainant was still in touch with her friends in Melbourne and was, therefore, not isolated. He said that the nude massages between him and JK had commenced before the complainant was born because of their therapeutic value. He argued that the complainant could not explain how it happened that she came to his bedroom at 5.30pm on Saturdays and that, if it were true that he was molesting her, she would not have come there for a naked massage. He also submitted that both the complainant and JK had lied about the complainant feeling (from the complainant’s point of view) and looking (from JK’s point of view) “embarrassed” when she emerged, half-dressed, carrying her clothes after the weekly session with the applicant in his bedroom. He submitted that “if [the complainant] had anything to be embarrassed about, she would get fully dressed before leaving the bedroom.” That she did not, the applicant submitted, “proves that there was nothing shameful happening.”

9. [364]

   The applicant relied on the fact that the complainant continued to live with him after her mother left as strong evidence disproving her version. He submitted that the complainant “end[ed] up voluntarily staying with her ‘abuser’ until she [was] 24 and [left] because she absolutely [had] to, because she found a job in another city.” He submitted that there was “absolutely no chance of [the complainant] as [an] adolescent willingly participating in something sexual, dirty and illegal.” He submitted that her scholastic achievements showed that “she was stress free at home.”

10. [365]

    The applicant also relied on the delay of about 10 years in disclosing the alleged abuse.

11. [366]

    The applicant contended that he was “the opposite of a typical abusive father” and had made many sacrifices for his family.

12. [367]

    The applicant submitted that “the defence version” was “consistent with all the evidence, … simpler than the Crown’s version and fits the evidence much better …”. He imputed nefarious motives to the complainant (that she was shocked at how difficult it was to support herself financially and realised that she could make a financial claim against him) and JK (that she was bitter after the separation).

13. [368]

    In my view, it was open to the jury to accept the complainant’s evidence as to the elements of the offence and the surrounding circumstances, including the following:

14. [369]

    The delay in complaint was not unusual for such a case and was amply explained by the complainant and by the expert opinion evidence of Dr Pulman. The complainant’s evidence was corroborated by JK to a substantial extent. It was open to the jury to accept that JK, being unwilling to submit to sexual intercourse with the applicant (because of her illness, lack of energy, conflict within the marriage or some other reason), was complicit in the sexualisation by the applicant of the complainant, which culminated in the acts of sexual intercourse in his bedroom throughout the charged period. It was also open to the jury to reason that it was only when the complainant could establish a stable existence in Adelaide, far from the applicant, that she felt sufficiently secure to tell her closest friends and, ultimately, to report the matter to the police.

15. [370]

    It was also open to the jury to accept that the outwardly successful face which the complainant presented to the world (including through her achievements at school, university and debating) were not inconsistent with the fact of the abuse and stemmed from embarrassment, shame, fear and a desire to hide the fact of the abuse.

16. [371]

    I consider that it was amply open to the jury to consider, in accordance with the Liberato direction that the applicant’s denials of the offending conduct could not possibly be true and, accordingly, to put his evidence to one side, except in so far as it corroborated the complainant’s evidence (as to the weekly naked massages within the locked perimeter of his bedroom).

17. [372]

    None of the arguments raised by the applicant on his own behalf (or, indeed, those of defence counsel at trial) causes me to doubt the applicant’s guilt of the offences charged. I have reviewed all of the evidence in the trial (the most significant aspects of which I have summarised above) and am not persuaded that the verdict is unreasonable.

18. [373]

    Accordingly, ground 6 has not been made out.

19. [374]

    Several of the grounds argued have little or no merit. The constitutional ground (ground 12) does not require leave as it is a question of law alone: s 5(1)(a) of the Criminal Appeal Act. The other grounds require leave. I would be disposed to grant leave with respect to the unreasonable verdict ground (ground 6) but not otherwise.

Application for leave to appeal against sentence

1. [375]

   The grounds of appeal against sentence have been set out above.

2. [376]

   The proceedings on sentence were adjourned from 6 May 2022 to 22 July 2022 because the applicant had changed legal representatives. On that occasion, the applicant’s counsel said on the question of whether the offence was aggravated by the substantial harm suffered by the complainant:

3. [377]

   Despite this apparent concession, the prosecution agreed that it would not rely on the aggravating factor of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) because it accepted that such harm was inherent in the offence charged. The Crown relied, among other factors on the aggravating factor in s 21A(2)(k) that the applicant abused his position of trust and authority in relation to the victim. Accordingly, the sentence hearing proceeded on the basis that the harm suffered by the complainant was not substantial so as to aggravate the offence under s 21A(2)(g) because of the harm inherent in such an offence. This matter is the subject of challenge in ground 3.

4. [378]

   The applicant’s counsel accepted that the applicant being the complainant’s father significantly aggravated the offence.

5. [379]

   The complainant read her victim impact statement. She said, in part:

6. [380]

   The Crown tendered the applicant’s criminal record to establish that he had no prior convictions.

7. [381]

   The applicant read an affidavit which he had sworn, in which he deposed to his being an orphan and the progress of his life and work which brought him from Russia to Australia. In his affidavit, he did not address the offending conduct. His counsel informed the Court that the applicant maintained his innocence of the offence.

8. [382]

   Before hearing the parties’ submissions, the trial judge said:

9. [383]

   The Crown agreed with what her Honour had put. The applicant’s counsel also agreed and responded:

10. [384]

    The trial judge also raised with the parties the effect of s 61AE(8), which requires the judge to take into account the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.

11. [385]

    Her Honour confirmed with the parties that the evidence established that there was a period of about two or three months in total in the 16-month period of offending when weekly sexual intercourse (and associated acts as particularised in the indictment other than cunnilingus, which occurred only once) took place.

12. [386]

    The Crown confirmed that it relied on the conduct before the commencement of the charge period as “grooming”, which could be taken into account on objective seriousness and moral culpability but submitted that the conduct after the charge period was only relevant as tendency evidence which, if accepted, made it more likely that the offending (during the charge period) occurred. He submitted that the post-offence conduct was also relevant to show that the offender did not voluntarily desist from engaging in the conduct after the complainant turned 16 which meant that no submission to that effect in mitigation could be put.

13. [387]

    The applicant’s counsel submitted:

14. [388]

    The Crown responded to this submission by saying:

15. [389]

    The applicant was sentenced to a term of imprisonment of 18 years with a non-parole period of 11 years. The sentence was backdated to commence on 23 February 2022, when the jury returned its verdict and the applicant went into custody as a result of a successful detention application by the Crown.

16. [390]

    The trial judge’s factual findings on sentence reflected an acceptance of the complainant’s evidence (which the jury can be taken to have accepted with respect to the elements of the offence when returning its verdict).

17. [391]

    The key factual findings included that each of the eight particulars (set out in the indictment, extracted above) was established. The trial judge found that the sexual offending occurred on a weekly basis at 5.30pm and that, once the penile-vaginal intercourse commenced around February 2007, it continued for the charge period as part of the weekly routine until the complainant’s 16th birthday in the middle of May 2008 which amounted to a period of approximately one year and three months. Her Honour found that ejaculation would occur, and that the applicant wore a condom. Her Honour also found that the sexual activity continued after the complainant’s 16th birthday (after the expiry of the charge period).

18. [392]

    Her Honour expressly made no finding of substantial harm under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act although she acknowledged that the harm to the victim was “enormous”. Her Honour referred to authority, including the following statement from R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, in which this Court said at [10]:

19. [393]

    The trial judge also referred to s 25AA(3) of the Crimes (Sentencing Procedure) Act, which provides:

20. [394]

    Her Honour considered the various factors which were relevant to her Honour’s assessment of the gravity of the offence as follows:

    1. (1)

       the age of the complainant at the time of the offending (which was “in the upper range for this offence”);

    2. (2)

       the age of the offender at the time of the offending, 41-43 years old, which did not aggravate the offence since it was inherent in the fact that he is the complainant’s father;

    3. (3)

       the length of time over which the unlawful sexual relationship was maintained (16½ months);

    4. (4)

       the frequency with which the unlawful sexual acts occurred: eight of the nine particulars in the indictment (see above) were repeated weekly but the ninth (cunnilingus) happened only once; this continued for a total of 13½ to 14½ months out of the charge period, which rendered the offence “particularly serious”;

    5. (5)

       the duration of each episode, which was 60-90 minutes, which included 30 minutes of naked massage (which was found to elevate the seriousness of the offence);

    6. (6)

       the type of unlawful sexual acts (the acts of penile-vaginal intercourse were found to have had the strongest impact on sexualising the complainant and adding to the seriousness of the offence);

    7. (7)

       whether violence or coercion was used or pain was caused (her Honour found that although physical violence was not used, psychological manipulation was used and the applicant also used pornography to sexualise the complainant prematurely);

    8. (8)

       the offences occurred in the home of the victim (the trial judge considered this to overlap with the breach of trust occasioned by the circumstance that the applicant was the complainant’s father and therefore did not give it “much significance”; and

    9. (9)

       breach of trust (the trial judge found that a “gross breach of trust” aggravated the offence).

21. [395]

    The trial judge said that “this case represents a serious example of this type of offence” and assessed the objective seriousness of the offence to be “above the mid-range of gravity to a significant extent”.

22. [396]

    Her Honour found that there was no factor that mitigated the applicant’s moral culpability.

23. [397]

    In addressing the subjective circumstances, her Honour found that the applicant’s subjective case was limited. He was not remorseful. He was of good character, but the weight afforded to that factor was limited, given the period of the offending and the frequency of unlawful acts within that period. The trial judge assessed the applicant’s risk of recidivism to be low. Her Honour made a finding of special circumstances and adjusted the ratio between the non-parole period and the total term from the statutory ratio of 75% to about 60%.

24. [398]

    The grounds include criticisms of counsel who appeared for the applicant at the sentence hearing (grounds 1, 3 and 6); of the prosecutor (grounds 7 and 8); of the trial judge (grounds 2 and 5) and of the sentence itself (ground 4). I will address the grounds concerning counsel first (together with ground 2, which is related to ground 1), then the grounds concerning the trial judge and, finally, the manifest excess ground.

25. [399]

    The applicant submitted that the prosecution only served the victim impact statement the day before sentencing which meant that, if the sentencing proceedings had been adjourned to prepare a response, it would have resulted in more time in gaol before the applicant could file his appeal. He submitted that his counsel did not give him the choice.

26. [400]

    An appeal against conviction must be filed within 3 months of conviction or within the period of a notice of intention to appeal. Accordingly, it can be lodged before the imposition of sentence. Further, the applicant is bound by the conduct of his counsel in not seeking a further adjournment. In addition, it is difficult to see what difference any adjournment would have made in circumstances where the Crown accepted (as outlined above) that it could not rely on the aggravating factor of “substantial harm” under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act since this was inherent in the offence. Further, the aggravating factor of breach of trust and breach of authority was inevitably present given that the applicant is the complainant’s natural father and they lived in the same household. This matter was amply established, leaving aside the victim impact statement.

27. [401]

    The victim impact statement must be considered by the sentencing judge before the imposition of sentence: s 30E(1) of the Crimes (Sentencing Procedure) Act. There are considerable restrictions on the provision of access to victim impact statements prior to the sentence hearing: s 30G of the Crimes (Sentencing Procedure) Act.

28. [402]

    Ground 3 has not been made out.

29. [403]

    The applicant referred to his challenges to the complainant’s credit made in ground 1 of the conviction appeal. He also submitted, in support of ground 6 of the sentence appeal:

30. [404]

    The applicant relied on the apparent concession made by defence counsel (extracted above) that the offence was aggravated by the substantial harm suffered by the complainant. For the reasons given above, this concession was implicitly withdrawn by defence counsel and was not, in any event, accepted by the trial judge.

31. [405]

    The trial judge did not find that the offending was aggravated as her Honour did not find that the complainant suffered substantial harm (the type of harm suffered by the victim being inherent in the offence itself). There was no proper basis on which the applicant’s counsel could have objected to the complainant’s victim impact statement since it did not go beyond proper bounds set out in s 28 of the Crimes (Sentencing Procedure) Act and, indeed, addressed the specific matters raised in that section. It fulfilled the purpose envisaged by Division 2 of Part 3 of the Act.

32. [406]

    Ground 6 has not been made out.

33. [407]

    The applicant submitted that the trial judge was in error in basing the sentence on the frequency and number of illegal acts and that his counsel did not object to this course when it became obvious in the course of the sentencing hearing (as set out above) that the trial judge was proposing to do so (and the basis on which her Honour was proposing to assess that frequency and number by reference to the complainant’s evidence).

34. [408]

    The applicant repeated the argument put in support of ground 12 (the challenge to the constitutionality of s 66EA) that he could not be punished for any acts of which he had not been charged. I reject this argument for the reasons given with respect to ground 12.

35. [409]

    The applicant also argued that her Honour was not entitled to sentence him on the basis that the jury had accepted the complainant’s evidence in its entirety for the following reasons:

    1. (1)

       the jury could have convicted him of the offence charged even if had they not been satisfied that there was any penetration;

    2. (2)

       juries are directed that they can accept some part of a witness’ evidence and reject other parts (from which he said that it followed that it cannot be assumed that the jury accepted that he had penetrated the complainant); and

    3. (3)

       the number and frequency of sexual acts were not addressed at trial because they were not part of the charges.

36. [410]

    As to (1), this is theoretically possible. However, once the jury had convicted the applicant of the offence, it was for the trial judge to find the facts on sentence: see Cheung and Olbrich, discussed above. It was open to her Honour to accept the complainant’s evidence beyond reasonable doubt on the number and frequency of the sexual acts for the purposes of sentencing.

37. [411]

    As to (2), the process of sentencing is not to determine what the jury might have thought of particular evidence. Rather, once the jury has returned a verdict of guilty, it is for the trial judge, as set out above, to find the facts: see the discussion of Fuller, above.

38. [412]

    As to (3), the number and frequency of the unlawful acts were the subject of substantial evidence at the trial, as detailed in the narrative of the evidence above and as found by her Honour in the sentencing judgment.

39. [413]

    In my view, the criticisms of the applicant’s counsel on sentence are unwarranted, having regard to the evidence at trial, the jury’s verdict and the applicable law.

40. [414]

    Neither ground 1, nor ground 2 has been made out.

41. [415]

    The applicant submitted that her Honour relied on the “typical experience of courts” and said:

42. [416]

    The trial judge was obliged to take into account, pursuant to s 25AA(3) of the Crimes (Sentencing Procedure) Act, “the trauma of sexual abuse on children as understood at the time of sentencing, which may include … the common experience of courts”. Her Honour’s reasons indicated that she had done just that. Further, this matter was to the applicant’s advantage. Since it is the court’s experience that the harm caused by such offences is almost inevitably very serious, such harm is inherent in the offence. Thus, even the harm suffered by the complainant in the present case was found not to qualify as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. Ground 5 has not been made out.

43. [417]

    In these grounds, the applicant repeated the submissions he made in support of those grounds of his appeal against conviction which were based on alleged misconduct or impropriety of the prosecutor at trial. It is not necessary to address them further since they have been addressed (and rejected) above.

44. [418]

    The only additional matter which the applicant raised which arose in the sentence hearing was that set out in the extract above where the prosecutor was responding to the submission by defence counsel that the sexual activity was “routine” and “ordinary”. I discern no impropriety in the submission which was made by the prosecutor in this context. It was open to the Crown to submit that the iterative process of grooming and psychological manipulation over an extended period was more serious than an impulsive act involving the use of force.

45. [419]

    In support of his submission that the sentence was manifestly excessive, the applicant submitted orally:

46. [420]

    He also submitted that it was wrong for the maximum penalty for this offence to be the same as for murder, namely, life imprisonment, since there could be no greater damage than murder.

47. [421]

    Manifest excess is a conclusion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. The relevant principles were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86] (Payne JA, R A Hulme and Garling JJ) as follows:

48. [422]

    The maximum penalty for an offence under s 66EA is life imprisonment. The offence and the maximum penalty apply retrospectively: Xerri at [11], [21], [25]-[28] (Gageler CJ and Jagot J) and [65] (Gordon, Steward and Gleeson JJ). The maximum penalty is an important guidepost for the purposes of sentencing and is generally regarded as an indication of the seriousness with which the legislature regards the offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [27]. I note that the maximum penalty for murder (referred to by the applicant) is also life imprisonment.

49. [423]

    In answer to the specific submissions made by the applicant about the effect on his life of the sentence which has been imposed, it is important to note the various purposes of sentencing, which are set out in s 3A of the Crimes (Sentencing Procedure) Act. These are, in substance: punishment, deterrence (general and specific), protection of the community, rehabilitation of the offender; making the offender accountable for his actions; denunciating the conduct and recognising the harm done to the victim and to the community. In the present case, where the risk of the applicant re-offending was not regarded as high, the purposes of punishment, general deterrence, making the applicant accountable, denunciating the conduct and recognising the harm to the victim are particularly significant.

50. [424]

    The non-parole period is required to be specified because justice requires that the offender serve that period in custody: Muldrock at [57]. It is the minimum period of time in gaol having regard to all the relevant matters including the objective seriousness of the crime: Power v The Queen (1974) 131 CLR 623 at 628–629; [1974] HCA 26; referred to in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [40]. In the present case this period is 11 years, out of a total term of 18 years (reflecting the finding of special circumstances).

51. [425]

    The crime for which the applicant was to be sentenced was, as her Honour found, objectively very serious and “above the mid-range of gravity to a significant extent”. His moral culpability, particularly as the complainant’s father, was very high. His conduct was egregious, manipulative and calculated. The complainant was extremely vulnerable, having regard to her age at the time the grooming commenced; her distance from her close friends in Melbourne following the family’s move to Sydney; her position as an only child with a mother who was, for various reasons, incapable of protecting her and, indeed, was complicit in the applicant’s conduct; her shame at what was occurring; and her psychological need for her father’s love and approval. The consequences for the complainant will be lifelong. She has been robbed of her innocence, her adolescence and her ability to enjoy intimate relations without trauma. Her once promising trajectory has been blunted and thwarted by the applicant’s criminality. As her Honour observed, there is little to be said for the applicant by way of mitigation, other than that he was otherwise of good character and had no criminal history.

52. [426]

    It is not necessary to address the “comparative” cases referred to by the Crown.

53. [427]

    In all the circumstances, I am not persuaded that the sentence imposed was not open to the trial judge.

54. [428]

    I am disposed to grant leave to appeal on ground 4 (the manifest excess ground) but not otherwise.

Release application

1. [429]

   The applicant made a release application which was listed to be heard together with his appeal and applications for leave to appeal. He had previously applied for bail from this Court. His application was dismissed on 27 August 2025: ZBJ v R [2025] NSWCCA 138 (Hamill J, Harrison CJ at CL and Sweeney J agreeing) on the basis that he had failed to demonstrate “special or exceptional circumstances” under s 22 of the Bail Act 2013 (NSW). Accordingly, before this Court hears another release application, the applicant was required to show that “there are grounds for such an application” under s 74 of the Bail Act. I understood the applicant to submit that he was, as at 24 October 2025, the date of his appeal, in a better position to argue the grounds of appeal than he was when his previous release application was heard. In all the circumstances, the Court did not regard that matter as allowing the applicant to make a further release application and his application was dismissed on that basis. The Court indicated that reasons would be contained in the substantive judgment. These reasons are set out above.

Proposed orders

1. [430]

   I propose the following orders:

   1. (1)

      Reject the tender of all of the documents which the applicant sought to tender on appeal and which are the subject of ground 2 of the conviction appeal.

   2. (2)

      Grant leave to appeal on ground 6 of the conviction appeal but otherwise refuse leave on all other grounds other than ground 12, which does not require leave.

   3. (3)

      Dismiss the appeal against conviction.

   4. (4)

      Grant leave to appeal on ground 4 on sentence but otherwise refuse leave.

   5. (5)

      Dismiss the appeal against sentence.

2. [431]

   CHEN J: I have had the very considerable advantage of reading the draft judgment of Adamson JA. I agree with her Honour’s analysis and with her conclusions.

3. [432]

   In relation to ground 6, having reviewed the evidence in the trial, including its sufficiency and quality, and for the reasons given by Adamson JA, none of the matters raised by the applicant are such as to lead me to experience a reasonable doubt about the applicant’s guilt. It follows that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.

4. [433]

   I agree with the orders proposed by Adamson JA.

5. [434]

   RIGG J: I have had the considerable advantage of reading the draft judgment of Adamson JA. I agree with the orders proposed by her Honour, for the reasons her Honour has given. Having undertaken my own assessment of the evidence, in light of the arguments advanced in support of ground 6, I am of the view that it was well open to the jury to find the applicant guilty.