JPM v R

1. [1]

   SIMPSON AJA: I have had the advantage of reading in draft the judgments of Fullerton J and Adamson J. The relevant facts and circumstances are set out in the judgment of Fullerton J. I agree, for the reasons given by her Honour, that Grounds 1 and 3 should be rejected. In respect of Ground 3 I have made my own independent analysis of the evidence and am satisfied that the verdict of guilty was open to the jury.

2. [2]

   I am grateful to both Fullerton J and Adamson J for their comprehensive analyses of the circumstances that call for consideration under Ground 2, and, particularly, for their detailed discussions of relevant authority.

3. [3]

   I agree with Fullerton J that Ground 2 also should be rejected. As a number of the decisions to which reference has been made emphasise, the High Court did not, in Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, make a direction concerning the in-court silence of an accused person mandatory. Rather, their Honours said that such a direction will “almost always” be “desirable”. Whether, in a particular case, such a direction ought to be given will depend on all the circumstances of the case.

4. [4]

   Here, the directions given by the trial judge with respect to the onus of proof, and the use to which the jury could put the applicant’s recorded interview, extracted in the judgment of Fullerton J, were, in my opinion, sufficient to bring home to the jury that the applicant was under no obligation to do anything more, including give evidence. The directions concerning the recorded interview all but equated those answers with evidence.

5. [5]

   In the particular circumstances of this case, to have done more would have risked undermining those powerful directions and drawn attention to the different status of the answers given by the applicant.

6. [6]

   In my opinion the decision in Azzopardi does not mandate that, in the circumstances of this case, such a direction ought to have been given.

7. [7]

   FULLERTON J: On 8 October 2018, the applicant was arraigned in the District Court and entered a plea of not guilty to one count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (since repealed) in the following terms:

8. [8]

   On 12 October 2018, the jury returned a verdict of guilty.

9. [9]

   On 5 July 2019, Girdham SC DCJ sentenced the applicant to 2 years and 10 months’ imprisonment to commence on the day of sentence with a non-parole period of 1 year and 5 months.

10. [10]

    On 8 July 2019, Turnbull DCJ released the applicant to bail under s 22 of the Bail Act 2013 (NSW). It is unnecessary to refer to his reasons for doing so. They have no bearing on the resolution of the appeal.

11. [11]

    The applicant seeks leave to appeal his conviction on the following grounds. There is no appeal against sentence.

Trial procedure

1. [12]

   The trial was conducted under the Child Sexual Offence Evidence Pilot Scheme in Sch 2, Pt 29 of the Criminal Procedure Act 1986 (NSW) which provided for the evidence of a child to be placed before the jury in the form of a recorded interview with an audiovisual recording of the child’s pre-recorded evidence, including cross-examination.

2. [13]

   DE was interviewed by members of the Child Abuse Squad on 25 July 2017 when she was aged 7 years and 10 months. The interview was conducted after the child complained to her parents on 8 July 2017 that the applicant had indecently touched her.

3. [14]

   DE’s evidence was pre-recorded in March 2018. She was cross-examined by the applicant’s counsel, Ms Davenport SC.

4. [15]

   A witness intermediary was present during the Joint Investigation Response Teams (“JIRT”) interview. The same person acted as a witness intermediary during DE’s pre-recorded evidence. On occasions during her cross-examination, the witness intermediary would intervene and suggest that a question be restated or suggest to the trial judge that the child was “confused”. On all such occasions the question was reframed or abandoned.

5. [16]

   The trial commenced before the jury on the day the applicant was arraigned, 8 October 2018.

The Crown case at trial

1. [17]

   It was the Crown case that the indecent assault occurred during a “sleepover” at the applicant’s home when DE was sleeping (or, more precisely, according to her evidence, feigning sleep) on a trundle bed in the bedroom of the applicant’s son (JM). On the Crown case, the applicant knelt down beside the trundle bed and placed his hands inside DE’s pyjama pants and under her underpants and touched her on the outside of her vagina with two fingers which he then “moved around”.

2. [18]

   JM and DE were close school friends. The two families were on friendly terms as neighbours.

3. [19]

   The Crown relied upon DE’s account to police in the JIRT interview of the circumstances in which the assault occurred and her demonstration of the “touching” as the act of indecent assault after the child had complained to her parents that she had been “touched” by the applicant in her “private parts” with “two fingers”. The Crown also relied upon the way the child demonstrated how she was touched when she complained to her father as consistent with the touching she demonstrated to police in the JIRT interview.

4. [20]

   Although it was the Crown case at trial that the jury would be satisfied that the offence was probably committed during a sleepover on Friday 11 March 2016, the charge was framed on a between dates basis, there being uncertainty as to the precise date on which the offence was committed.

5. [21]

   This issue was raised by Ms Davenport before the trial commenced. She complained to the trial judge that she had prepared for trial on the basis that the allegation of an indecent touching occurred on a specified date, namely 11 March 2016 as specified in the Crown case statement. After the trial judge permitted Ms Davenport to consider her position overnight, she informed the trial judge that she was satisfied she could meet the Crown case that the indecent assault alleged occurred on a “between dates” basis.

6. [22]

   The evidence at trial was that between the dates alleged in the indictment DE slept overnight at the applicant’s home on multiple occasions, although on only one or perhaps two of those occasions had she slept in JM’s room on the trundle bed alone, that is, without either her sister (JE) or the applicant’s younger daughter (GM) on either a separate (or second trundle bed) or on a mattress.

7. [23]

   The sleeping arrangements during sleepovers was addressed, in general terms, in the applicant’s account to police in an ERISP recorded on 25 July 2017. The applicant’s wife gave affirmative evidence that DE never slept in her son’s room alone.

8. [24]

   The trial judge directed the jury that they did not need to be satisfied beyond reasonable doubt of the date the offence was committed; it was sufficient they were satisfied the offence was committed within the timeframe alleged in the indictment.

9. [25]

   The first ground of appeal concerns what is said to be evidence adduced at trial through DE and in her JIRT interview, and in the way the Crown conducted the case at trial, which allowed for the possibility that some members of the jury might have reasoned to a finding that the applicant indecently assaulted DE on one occasion during the timeframe particularised and other jurors that she was touched on a different occasion in that same timeframe and that their verdict was returned by a “pooling” of those findings. In the absence of a unanimity direction, this was said to give rise to the possibility that the verdict of the jury was not unanimous as to which act of touching was proved beyond reasonable doubt, resulting in a miscarriage of justice.

10. [26]

    In the context of the summing up, and the way in which the cases for the Crown and the accused were conducted at trial, the Crown submitted the jury would have been left in no doubt that the only allegation of criminal conduct with which they were concerned was the indecent touching that DE complained of to her parents on 8 July 2017 and the indecent touching she described in the JIRT interview on 24 July 2017, irrespective of the date on which it occurred. That being the case, the Crown submitted no unanimity direction was required and the first ground of appeal should be dismissed.

11. [27]

    I will return to consider the submissions developed in support of the first ground of appeal.

Evidence of complaint

1. [28]

   DE’s parents gave evidence in the Crown case. Their evidence was the subject of criticism by Ms Bashir SC who appeared for the applicant on the appeal. It is convenient to deal with those criticisms now.

2. [29]

   DE’s mother, JGE, gave evidence that on 8 July 2017 (a Saturday night), when she was putting DE to bed, they had the following conversation:

3. [30]

   JGE gave evidence that DE put a hand on the top of her hand and used two fingers to stroke or pat it. JGE asked again whether she was sure the applicant had touched her in that way. DE confirmed she was. JGE reported the complaint to her husband, BE, who spoke to DE the following morning.

4. [31]

   JGE said she spoke with her daughter again the following morning to clarify when the incident had occurred before her husband spoke with the child. In the meantime, JGE had spoken to JE, her other daughter, to inquire whether she knew anything of the incident. JGE gave evidence that DE (and on occasions JE) had slept at the applicant’s house on multiple occasions both before and after 11 March 2016, including the week before the complaint was made. JE told her mother that the incident could not have happened at the sleepover the previous week because she was sharing a bed with her sister. When JGE raised the issue with DE she said that the “touching” had not happened the previous week but “on the night that Jack had visited”. (“The night that Jack visited” or “the Jack Henry night” was later confirmed to be a reference to an occasion on 11 March 2016 when a friend of JGE had visited and was taken to the applicant’s home where DE was “sleeping over” to be introduced to her.) JGE gave evidence that this may have been the first occasion on which DE slept over at the applicant’s house - if not the first, then the second occasion.

5. [32]

   JGE also asked her daughter why she had not said at the outset that the “touching” happened on the night Jack visited at which the child became very upset. JGE gave evidence that she comforted her daughter by telling her that she had done the right thing by reporting the matter.

6. [33]

   JGE was asked the following questions in cross-examination:

7. [34]

   It was suggested by Ms Bashir in oral submissions that when JGE spoke to her daughter to seek clarification as to when the assault occurred, the child did not nominate “the night that Jack visited” but, rather, that was suggested by JGE as another occasion when the child slept over. The complaint seems to be that JGE did not challenge the child by suggesting the assault did not happen at all but that she proceeded on the assumption that it did. For my part, I do not read JGE’s evidence as conveying that suggestion. Despite some lack of clarity in JGE’s evidence, neither does it support the submission advanced by Ms Bashir that the child was complaining to her mother of multiple acts of touching, a submission foundational to the first ground of appeal.

8. [35]

   JGE also gave evidence that later that morning, after her husband had spoken to DE, she again asked DE how the applicant had touched her. JGE gave evidence that DE “told me again that he had touched her and the way that he had touched her”. DE also told her mother about the circumstances in which the touching happened. She said that JM was having trouble sleeping so the applicant lay down with him to get him to sleep. DE told her mother the applicant “thought she was asleep … and that's when he touched [me]”.

9. [36]

   DE’s father, BE, gave evidence that when he spoke to his daughter she was “hesitant, a bit upset because she didn't want to talk about it”. He said he reassured her and that she then said, “Daddy, he has touched my private parts”. When BE asked what the applicant did, she performed with two fingers a circular motion on top of her vagina. He then confirmed that was what the applicant did by repeating the two-fingered motion on his daughter’s clothing in the area of her crotch.

10. [37]

    On the appeal, although not at trial, it was submitted that it was the child's father who first demonstrated or instigated the form of the touching, being a circular movement of fingers on top of the area of the child’s vagina, and that this had the effect of undermining the integrity of DE’s demonstration of the “touching” in the JIRT interview. In effect, it was submitted that DE was subject to the power of her father’s suggestion. This was an argument advanced by Ms Bashir in support of the third ground of appeal. I am content to make it clear now that I do not accept the analysis of BE’s evidence as proposed by Ms Bashir.

11. [38]

    He was not cross-examined by Ms Davenport. Importantly, it was not put to him that he was the source of the demonstration of the two-fingered circular touching motion, something that one would have expected of trial counsel were there any suggestion of the kind arising from his evidence before the jury.

12. [39]

    On 24 July 2017, DE’s parents spoke with a doctor who advised them to report the matter to police.

The JIRT interview on 25 July 2017 and the child’s evidence at trial

1. [40]

   After confirming DE’s appreciation of the difference between the truth and a lie, the interviewing officers asked her what she had come to talk to police about, to which she responded, “My friend’s dad touching me”. When asked when that happened she said, “the first ever time I had a sleepover there”. She was asked to describe what happened from “start to finish”. She said:

2. [41]

   She was asked to draw a diagram of the location of JM’s bedroom and a plan of the house. She identified the family members as the applicant, his wife and their two children, JM and GM. The drawings were later identified in her evidence in chief and tendered at the applicant’s trial.

3. [42]

   She described the events of the night she was “touched”, including what they had for dinner and dessert (being ice cream with Ice Magic syrup) and that they had a bath, changed into their pyjamas and played, including sliding in their socks. Later in the interview she said they watched “Odd Squad” on Netflix. She described her pyjamas.

4. [43]

   DE said she thought the touching was “last year” (being 2016) after Christmas (she later said it was after JM’s birthday on 31 January 2017). She was unable to be any more specific about the date. She did say it was a school day and that she was picked up after school and went with the applicant’s children to the Aquatic Centre. She also said one of her mother’s friends who she had never met came over to the applicant’s house where she was having dinner and it was then that she asked her mother whether she could sleep over. Her mother brought her a pillow and blanket. (This was confirmed in JGE’s evidence to be 11 March 2016, the night Jack Henry visited.) DE said the next day she went to ballet.

5. [44]

   She repeated that she had slept in JM’s room and that he needed help falling asleep, so the applicant “came in and helped him … then he went out and then he touched me”.

6. [45]

   The interview continued as follows:

7. [46]

   DE confirmed that she was touched on the vagina under her pyjamas. She repeated this later in the interview. When asked how it felt, she said “Weird and I didn’t like it”. She said later in the interview that it made her feel unsafe. She also confirmed that when the touching occurred the applicant was on his knees next to the bed she was lying on. She then went on to describe how she was lying and what the applicant was wearing:

8. [47]

   When DE was asked whether the applicant had done anything like that before she said, “No”. When she was asked whether he had done anything after that she said, “Um, I don’t, I don’t know if he’s still doing it but I’m just fast asleep so I can’t feel it. But I don’t know if he’s still doing it or not”. When she was asked whether she had ever woken up to his touching her she said, “No”.

9. [48]

   At the conclusion of the interview, when she was asked whether she remembered the touching being the first time she stayed at the applicant’s house she said, “Or it might be the second, I don’t really, I think it was the second, the second time”. She confirmed she was 6 at that time (DE turned 7 in September 2016).

DE’s pre-recorded evidence

1. [49]

   On 14 March 2018, DE was cross-examined by Ms Davenport. At that time she was aged 8 years and 6 months.

2. [50]

   The cross-examination commenced with Ms Davenport inviting DE to confirm that the “touching” occurred when she was 6 and that she initially told police it happened the first time she slept over at JM’s house and that later she told police that it could have happened “not on the first time … but the second time”.

3. [51]

   When DE was asked to confirm that she told police that the applicant only touched her once she said, “I think”. The following questions were then asked:

4. [52]

   In the questions that followed, Ms Davenport proceeded to establish that the touching occurred on the occasion when DE met her mother’s friend and, further, it was that night that she had asked her mother whether she could stay the night at the applicant’s house, being the night that she slept in JM’s room and her sister did not sleepover.

5. [53]

   The cross-examination also focused on other occasions that DE had slept at the applicant’s house in JM’s room on the trundle bed and other occasions when she played with or visited the applicant’s home during her first and second year at school.

6. [54]

   The sleepover nights included what were referred to later in Ms Davenport’s closing address as the night before the applicant’s wife’s birthday in September 2016 (as to which DE said she slept in JM’s room on the trundle bed with JM’s sister (GM) and that the applicant did not touch her) and the night of the Christmas lights in 2016, as to which she gave the following evidence:

7. [55]

   Having viewed the audiovisual recording of the evidence, DE refers to the touching on that night with some uncertainty, in contrast to the clear and emphatic terms in which she had earlier dealt with questions asked of her as to her memory of events and the sequencing of events.

8. [56]

   The cross-examination then proceeded with DE being invited to consider other occasions when she had slept over at the applicant’s house.

9. [57]

   The next occasion was referred to in the trial and on the appeal as the grandparents’ visit which occurred early in the first term of 2017. On that occasion, DE slept in JM’s room and her sister slept in GM’s room. As to that occasion, the following questions were asked:

10. [58]

    The cross-examination continued with Ms Davenport asking DE about another occasion when she slept over at the applicant’s house, sometime in the second term of the 2017 school year. On that occasion she slept with GM in the double bed in the spare room. DE said that there was no touching on that occasion.

11. [59]

    The next occasion DE was asked to reflect upon was the night of the street party. She agreed that on that occasion she asked the applicant if she could stay the night at his house. She agreed that the applicant said she should ask his wife. The applicant’s wife agreed but said DE had to ask her parents. DE said that night she slept in JM’s bedroom on the trundle bed and GM slept on a mattress. She agreed that the applicant was already asleep when the children went to bed. As to that occasion, DE was asked the following questions:

12. [60]

    Ms Davenport then turned to what she described as “the last time” that DE stayed at JM’s house. DE confirmed that she stayed overnight at the applicant’s house with her sister as her parents were going out for the night and that the three girls (DE, her sister, JE, and the applicant’s daughter, GM) slept in the spare room whilst JM slept in his room. She agreed that the following morning she asked CM if she could sleep a second night but was told that was not possible because the family was going out. As to that occasion she was asked following questions:

13. [61]

    She disagreed with the proposition put to her by Ms Davenport that the reason she told her mother that she did not want to have any more sleepovers was because of a rearrangement of the children’s bedrooms so that the applicant’s two children were sharing JM’s room.

14. [62]

    Ms Davenport asked DE to reflect upon an occasion when all three children were sliding around on “slippery socks” which DE said was in winter time and that it was cold, and that after sliding they watched some television for a time and then she had to go home. DE agreed that there were occasions when she watched “Odd Squad” on Netflix at the applicant’s home before Netflix was connected to her home. Ms Davenport suggested to her that was in Year 2 (that is, in 2017). DE disagreed and said it was in Year 1 but, when pressed, said she could not remember.

15. [63]

    After a five minute break towards the end of the cross-examination, Ms Davenport returned to the last night DE slept over:

16. [64]

    On my viewing of the audiovisual pre-recording of DE’s evidence, there is a clear indication of both confusion and interruption from both the judge, the witness intermediary and by DE herself before ready acceptance by her that the touching did not occur on that last occasion.

17. [65]

    The confusion continued, as evidenced by the following exchange:

18. [66]

    The cross-examination concluded with the following questions:

19. [67]

    There was no re-examination by the Crown.

The applicant’s case at trial

1. [68]

   The applicant voluntarily participated in an ERISP on 25 July 2017 in which he denied ever touching DE. He did not give evidence at his trial. His wife gave evidence. Her evidence was relied upon by Ms Davenport in her closing address to rebut significant aspects of DE’s evidence and to support her submission of the improbability that the applicant indecently assaulted DE as alleged or at all.

The ERISP

1. [69]

   The Court was invited to view the ERISP. I have viewed it in its entirety.

2. [70]

   That is significant for the following reasons. It is a version of events volunteered by the applicant to investigating police. It is also the version of events relied upon by the applicant at his trial in defence of the allegation that he indecently assaulted DE.

3. [71]

   The trial judge did not direct the jury that the accused’s silence was not evidence against him and could not be used to fill gaps in the prosecution case - a direction which has been referred to as the “Azzopardi direction”, referencing the decision of the High Court in Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25. That was said to be the error the subject of the second ground of appeal.

4. [72]

   What follows is a summary of the transcript of the ERISP.

5. [73]

   The applicant confirmed that he had been cautioned by the custody manager and that he did not want to seek legal advice before he was interviewed.

6. [74]

   It would appear, from the way in which the interview was conducted, that the applicant had been notified by his wife by telephone that police had attended their home and wished to speak to him. After meeting with police at his home the applicant was informed that he had been accused of the aggravated indecent assault of a 7 year old child. DE was not named as that child. The applicant did not ask the identity of the child complainant. The police advised that they would provide further details of the allegation at the police station.

7. [75]

   At Question 53 of the interview DE was named as the complainant for the first time. In response to that allegation and on being asked whether he wished to say anything about it, the applicant said:

8. [76]

   In response to general questioning about the sleepover arrangements, the applicant said they varied, but that if all the children were together they would have slept in JM’s room because it was bigger. DE would sleep in JM’s room on the trundle bed with the second trundle bed being brought in if his daughter, GM, was also sleeping in his son’s room.

9. [77]

   The applicant also confirmed that there were good neighbourly relations between his family and DE’s family. He said that his wife decided to have an “open door policy” because of the friendship that had developed between DE and his son who had special needs. He said later in the interview that DE was “our neighbour’s kid … she gets on with our kids … we [who I take to mean was the applicant and his wife] look out for her”.

10. [78]

    The incident described by DE as constituting the indecent assault was put to the applicant in detail. When he was told that police had “sort of pinpointed [the date as] 11th of March”, coincident with the date when a friend of DE’s mother had visited, he said that “rings a bell”. The following questions were then asked:

11. [79]

    In answer to a question asked of him as to whether there were any circumstances where he would need to touch the bodies of children who slept over at his house, the applicant said that the only time when he would be close to touching DE would be when he was helping her out of the bath by handing her a towel, but that he had no reason to touch her genitals. He confirmed that DE used the toilet unaided and actually closed the toilet door behind her, unlike his children.

12. [80]

    The applicant confirmed the general layout of his son’s bedroom and that the bathroom was next to his son’s bedroom.

13. [81]

    Police then asked the following questions:

14. [82]

    The interview concluded with the following question and answer:

15. [83]

    In the absence of any explanation from trial counsel as to why an Azzopardi direction was not sought (either at the commencement of the summing up or by way of redirection), in my view the ERISP, including the applicant’s denials and the approach of police to those denials, provides some insight as to why a forensic decision might have been made to rely upon the applicant’s unsworn account to police in his defence at trial and not to seek an Azzopardi direction which would inevitably have highlighted the fact that he could have given evidence but elected not to.

The applicant’s wife’s evidence

1. [84]

   A map of the applicant’s home was produced through his wife (CM) and tendered in evidence. It showed a bathroom in the corridor close to JM’s bedroom. CM said that it was not used by either her or her husband as they had an en suite bathroom. It would appear this was the bathroom DE heard the applicant use after she described his indecent assault of her.

2. [85]

   CM gave evidence that her son was diagnosed on the autism spectrum and routine was important for him, including a domestic routine on his arrival home from school which she was responsible for managing. She said her son had difficulty getting to sleep and that there was an additional routine in that process with either her or her husband usually staying in the room with JM for up to two and a half hours until he fell asleep. While CM said she invariably took on that role, if she were unable to get her son to sleep the applicant would take over.

3. [86]

   In cross-examination, whilst she confirmed that on occasions the applicant might lay down with JM to get him to sleep, she denied that if DE were sleeping over that the applicant would ever be alone with the two children. She claimed that were DE to sleep over her daughter would also sleep in JM’s room.

4. [87]

   CM gave detailed evidence of the after-school activities of her two children. In what she described as term one of 2016, they had occupational therapy combined with a martial arts program on a Friday afternoon. She would drive them to and from this program. She said her son had a break in term two but he resumed the program in term three of 2016. She recalled that on one occasion she was asked by DE’s mother to pick DE up from school which she did. On that occasion DE went with her children to the martial arts program.

5. [88]

   CM said the children had swimming lessons but not in term one. She said she did not take DE to swimming lessons. The only time DE accompanied her children swimming was in the Christmas holidays 2017. She said DE did not sleep at her home that night.

6. [89]

   She confirmed that on 11 March 2016 it was possible that DE had slept over. If that had happened she said that would have been one of the first of many occasions that DE slept at their home. She said the Netflix program “Odd Squad” was first viewed in March 2017. She said she did not remember DE’s mother dropping off clothes or any conversation about a friend of DE’s mother visiting.

7. [90]

   CM recalled six sleepovers in 2016, the first on the night before her birthday, being 27 August 2016. On that occasion she said DE slept on the trundle bed in JM’s room with GM on a mattress at the end of the two beds. The next occasion was the night of the Christmas lights with the same sleeping arrangements.

8. [91]

   Another occasion was when the applicant’s parents attended for his birthday and stayed overnight in the spare room. She said both DE and her sister slept over one night whilst her parents-in-law were staying. On that occasion DE slept in JM’s room and the other girls slept in her daughter’s room. On that occasion, however, her son woke up distressed in the night and went into her bed and she slept in her son’s bed.

9. [92]

   The next sleepover was on 24 June 2017 after what she described as “a street neighbourhood catch up”. On that occasion her daughter and DE slept in JM’s room. On another occasion, sometime between April and July 2017, DE slept with her daughter in the spare room while her son slept in his bed.

10. [93]

    CM gave evidence that the last sleepover was on the first weekend in July 2017. On that occasion she agreed to have DE and DE’s sister stay over as their parents were going to a ball. All three girls slept in the spare room. JM slept in his bedroom.

11. [94]

    The only occasion CM recalled the children sliding around on their socks was an occasion when DE did not sleep over.

12. [95]

    CM said when DE visited that DE would have a general conversation with the applicant at dinner and at other times but there was no physical interaction between them. She saw nothing in DE’s behaviour that made her think she was not comfortable around the applicant and she noticed no change in the child's behaviour in relation to the applicant at any time. In cross-examination she said there was never an occasion when the applicant would be in the bathroom to give DE a towel as bathing was her domain.

The closing addresses of counsel

1. [96]

   Shortly stated, the Crown’s closing submissions were to the effect that if the jury were satisfied beyond reasonable doubt that what the prosecutor described as “this touching” occurred in the way that DE said it did, the jury should convict the applicant. The only “touching” referred to by the Crown as constituting the offence charged was what DE complained of to her parents and the account she gave to the interviewing police in the JIRT interview.

2. [97]

   The Crown dealt with the issue of the date of the offence by encouraging the jury not to assess the evidence of a child witness as one would an adult witness. She submitted that children do not have autonomy over their lives, including ordering their lives by reference to a calendar. After referring to the timeframe within which the Crown alleged the offence occurred, the Crown submitted as follows:

3. [98]

   On the appeal, it was submitted that this was an invitation to the jury to choose between multiple acts of touching occurring on different dates within the particularised timeframe. Clearly, neither trial counsel nor the trial judge interpreted it that way. For my part, I do no not interpret it that way either. Other aspects of the Crown’s closing were also said by Ms Bashir to invite the jury to consider multiple acts of touching as constituting the offence charged. Those submissions were developed in support of the first ground of appeal. I will return to consider the Crown prosecutor’s submissions to the jury and the applicant’s complaint about them when considering the first ground of appeal in detail.

4. [99]

   Ms Davenport’s closing submissions were structured to seek to persuade the jury that they would not accept DE as a reliable witness given what she submitted were grave doubts as to when “this touching” occurred. In counsel’s submission these doubts flowed from the initial complaint when DE nominated the occasion when “it” occurred as an occasion when “it” could not have occurred, namely 1 July 2017 when DE and her sister were sharing a bed, and that those doubts were perpetuated thereafter, including in DE’s evidence, by reference to the surrounding circumstances of what Ms Davenport described as “the one occasion that she was touched” by the applicant.

5. [100]

   Ms Davenport’s submissions then focused on the context in which DE had said that she was indecently touched by the applicant, including the timing of visits to the Aquatic Centre, what they watched on television and how they played before bed, to raise further doubts as to the reliability of her account. In each instance, Ms Davenport invited the jury to focus on the fact that DE’s account of the touching could not have occurred in the circumstances DE described. As Ms Davenport put it, “it all goes to the reliability of her account of what happened and when it happened”.

6. [101]

   Later in her address, Ms Davenport reminded the jury of the seven or eight occasions that DE slept at the applicant’s house between the dates particularised on the indictment. These events were referred to on the appeal as the first sleepover on 11 March 2016 (the Jack Henry visit); the second on 27 August 2016, JGE’s birthday; the third on the night of the Christmas lights; the fourth on the grandparents’ visit; the night between April and July 2017 when DE and the applicant’s daughter slept in the spare room; the street party on 24 June 2017; and 1 July 2017 when DE, her sister and the applicant’s daughter all slept in the spare room. As to the other instance of touching revealed in cross-examination, being the night of the Christmas lights, Ms Davenport said:

7. [102]

   The only reference by Ms Davenport to DE’s evidence was that “it” happened on other nights “as well”, was again in the context of inviting the jury to question DE’s reliability, as is clear from the following:

8. [103]

   Ms Davenport then went on to submit:

9. [104]

   So far as the issue of the date of the offence was concerned, Ms Davenport also submitted, “If this [the indecent assault alleged] happened in March of 2016 or August of 2016 or February of 2017, why did [DE] keep wanting to go back?”.

10. [105]

    Ms Davenport concluded her submissions by urging the jury to determine, having regard to DE’s evidence, whether after they:

The trial judge’s summing up

1. [106]

   After directing the jury that their assessment of a witness’s credibility was solely a question for their assessment, the trial judge gave the following direction as to how they should approach the evidence of DE as a child witness:

2. [107]

   The jury were also directed that they should exercise caution in their consideration as to whether the evidence relied upon by the Crown proved the applicant’s guilt beyond reasonable doubt where the Crown case was dependent upon the jury accepting DE as a truthful witness. Her Honour gave the following direction:

3. [108]

   After identifying the constituent legal elements of an indecent assault of a child under 16 years, the trial judge said that “the alleged offence occurred between 10 March 2016 and 8 July 2017” but that the date was not an element that needed to be proved beyond reasonable doubt.

4. [109]

   As to the issue of the date of the offence, the trial judge directed the jury in the following way:

5. [110]

   Her Honour concluded her directions on the essential elements of the charge as follows:

6. [111]

   The directions as to the constituent legal elements of the offences are not said by the applicant on appeal to have been deficient. The directions were also reduced to writing. It is unnecessary to set them out in full.

7. [112]

   In the summing up, the trial judge repeatedly used the words “the alleged offence” or “the offence” or the date “it” was alleged to have happened which, when regard is had to the summing up as a whole, can only be taken to refer to the indecent touching described in detail by DE in her interview with police and demonstrated by her in the interview, since the trial judge did not refer to the other occasions when DE said she was “touched” by the applicant. No direction was sought as to how the jury should treat that aspect of her evidence. No complaint is made on the appeal that a direction should have been given.

8. [113]

   The trial judge then identified the real issue in dispute “in respect of the charge on the indictment” as whether “the Crown has proved beyond reasonable doubt that the relevant act, that is, the relevant indecent touching, took place” (Emphasis added).

9. [114]

   I have referred earlier to the evidence of DE’s parents which attracted a direction from the trial judge to the effect that if they were satisfied that DE complained to her parents substantially to the effect that the applicant “touched [her] on the outside of her vagina on the wee wee” (that is, that she made the allegation against the applicant and in the terms that she made that complained of to her parents), and that is “the sort of conduct you would expect of a person who has been assaulted in that way”, it may be used by them to support the reliability of DE’s evidence. Again, when giving that direction her Honour referred to “the touching” the subject of “the allegation”.

10. [115]

    When her Honour reminded the jury about Ms Davenport’s submissions concerning the evidence of complaint, she made repeated reference to the date upon which “it” happened, clearly a reference to the indecent assault the child had described and demonstrated to her parents and to police as exemplified in the following extract:

11. [116]

    Her Honour went further and said that in contrast to the Crown case which is reliant on the jury accepting DE’s evidence as truthful and reliable, the defence case is:

12. [117]

    In further elaboration of the applicant’s case at trial, her Honour again referred to Ms Davenport’s submission that the inconsistencies in DE’s evidence in relation to the date the offence was alleged to have occurred and the circumstances surrounding it, as informing the jury’s assessment of the child’s credit and reliability.

13. [118]

    DE’s evidence in cross-examination was referred to in the context of her Honour’s summary of the applicant’s case as it was advanced by Mr Davenport on his behalf in her closing address. It is instructive to set out that aspect of the summing up in full:

The first ground of appeal: A miscarriage of justice was caused by the failure of the trial judge to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt.

1. [119]

   On the hearing of the appeal, although not the subject of written submissions, Ms Bashir submitted that S v The Queen (1989) 168 CLR 266; [1989] HCA 66, and the principles for which that case is authority, dictate that the first ground of appeal has been made out.

2. [120]

   That submission proceeded on Ms Bashir’s acceptance of the proposition that the only question the jury had to decide was whether the applicant touched DE indecently, it being accepted in filed submissions that were the jury satisfied of that fact beyond reasonable doubt a guilty verdict would necessarily be returned.

3. [121]

   MS Bashir submitted, however, that the way the Crown conducted its case at trial, inter alia by emphasising that it did not need to prove the date on which the offence occurred or the precise circumstances contextual to the offending, and by putting what was said to be “opportunity” at the forefront of its case, the jury were distracted from the need to reach a unanimous decision about which act of multiple acts of “touching” they found proved. That argument was in turn premised on there being evidence of multiple acts of indecent touching at the applicant’s trial as part of the evidence upon which the Crown relied in proof of its case or which the jury might have considered were alternate scenarios of indecent touching.

4. [122]

   Ms Bashir also relied upon Lane v R [2017] NSWCCA 46 in further support of her submission that a miscarriage of justice resulted from the failure of the trial judge to give a unanimity direction. In reply to the Crown’s submission, Ms Bashir submitted that the decision of this Court in Cabot v R [2018] NSWCCA 265 was distinguishable and the Crown’s reliance on the reasoning in that case in disposition of the first ground of the appeal was misplaced.

S v The Queen

1. [123]

   In S v The Queen the High Court was concerned with an indictment which contained three counts of incest on successive years between January 1980 in November 1982, it being the Crown case that in each of those three years the applicant had one act of sexual intercourse with the applicant’s daughter which constituted each of the offences charged. The applicant’s daughter gave evidence of an incestuous relationship with the applicant before she left home at the age of 17 which extended over the timeframe comprehended by the three counts on the indictment. The repeated acts of intercourse which she described in evidence were indistinguishable, one from the other, save as to them occurring on different occasions, “every couple of months” during each of the three years covered by the indictment. The closest the complainant came to identifying any specific occasion when intercourse occurred was a reference to the first occasion and the first time the applicant put on his wife’s underclothing. In regards to the other acts of intercourse, the complainant gave evidence that they occurred over “the next two years”.

2. [124]

   The Crown declined to furnish particulars of the offences alleged. An application to the trial judge that the Crown provide particulars was also refused, the trial judge apparently accepting that the Crown was not in a position to provide further particulars of the offending the subject of any of the three counts and was unable to nominate or identify with particularity the acts of intercourse the subject of each of the three counts. In the result, the applicant only knew that what was alleged against him was that on an unspecified occasion in each of the 12-monthly periods comprehended by each of the three counts on the indictment he had carnal knowledge of his daughter.

3. [125]

   The trial judge summed up to the jury on the basis that it was sufficient for them to be satisfied beyond reasonable doubt that on at least one occasion during each of the three years there was an act of incestuous intercourse without any guidance as to what the evidence revealed about any of those three occasions.

4. [126]

   The argument advanced in the High Court was based on the proposition that where a count in an indictment alleges one specific offence, it is not open to the Crown to lead evidence of a number of acts which amount to the actus reus of the offence charged, and then to invite the jury to convict on the basis of proof of the acts led in evidence.

5. [127]

   As Toohey J saw it, the issue was not that the indictment was open to challenge on the ground of duplicity or a failure to provide adequate particulars; the issue was that the accused did not know, with any certainty, the charge he had to meet. As his Honour noted at 281, that had been considered by Dixon J in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 where his Honour said:

6. [128]

   Toohey J went on to say at 282:

7. [129]

   In declining to apply the proviso, Toohey J said at 283:

8. [130]

   Dawson J considered that the three counts on the indictment were framed in a permissible way and that each charged only one offence and gave rise to no duplicity for that reason. Had the evidence adduced at trial revealed only one offence in each of the three years in question, his Honour was satisfied there could have been no complaint about the form of the indictment. He observed, however, that although each count charged only one offence of carnal knowledge, the evidence revealed multiple instances of intercourse with nothing to identify any one of them as the offence with which the applicant was charged in any particular count.

9. [131]

   His Honour went on to say at 273:

10. [132]

    He concluded that what he described as the “latent ambiguity” in each of the three counts required correction if the applicant was to have a fair trial.

11. [133]

    It was only in the judgment of Dawson J that the issue of unanimity was discussed. In that regard his Honour said at 276:

12. [134]

    In the joint judgment of Gaudron and McHugh JJ, their Honours regarded the issue raised by the appeal as a case where the prosecution led evidence from the applicant’s daughter of multiple acts of intercourse answering the description of the three offences of carnal knowledge on the indictment. This was said to be similar to a count on an indictment which is bad for latent duplicity and productive of prejudice for that reason.

13. [135]

    Their Honours went on to say at 286:

14. [136]

    And further, at 287:

15. [137]

    In the applicant’s trial, the evidence of other acts of touching was not only adduced by defence counsel in cross-examination, as I have already noted, no directions were sought or given to ensure the jury did not use that evidence for tendency or propensity purposes. On the appeal no complaint was made that a direction in those terms should have been given.

16. [138]

    Although Brennan J dissented on the question whether the trial involved a substantial miscarriage of justice, his Honour also considered that by allowing the trial to proceed without confining each count on the indictment to a single act of intercourse was an error of law. He accepted the applicant’s submission that it was not open to the Crown to lead evidence of the number of acts which amount to the actus reus of an offence and then to invite the jury to convict on any one of those acts. At 269, his Honour accepted that each count on the indictment was regular on its face but, “it referred indifferently to a number of acts of intercourse indistinguishable one from another save as to the different occasions of their occurrence”. That being the case, his Honour considered that the facts revealed by the evidence disclosed, in respect of each count on the indictment, a latent ambiguity which was not removed by the provision of particulars nor by an election by the prosecution to proceed to prove its case on a particular act falling within the period specified in the count.

17. [139]

    In the course of oral argument Ms Bashir accepted that in order to make good her submission that the reasoning of each of the judges in S v The Queen that the trial of the accused was fundamentally flawed dictated that the first ground of appeal must succeed for that reason, she was obliged to demonstrate that DE gave evidence of repeated acts of indecent touching within the timeframe specified in the count on the indictment, and that each of those acts was capable of constituting the offence of indecent assault the subject of the single count on the indictment upon which the accused was convicted.

18. [140]

    It was submitted that the JIRT interview was a source of evidence that acts of indecent touching occurred on more than one occasion and that DE’s evidence in cross-examination was affirmative evidence of that fact.

The JIRT interview

1. [141]

   The questions and answers in the JIRT interview relied upon in support of that submission are as follows:

2. [142]

   I do not regard the applicant’s interpretation of these questions as suggesting acts of indecent touching on successive sleepovers as sustainable. When being asked by the interviewing officer towards the end of the interview whether it was “the first or the second time” that the incident she had described occurred, DE merely conceded the possibility that it was one time or the other. At no time had she suggested it was on both occasions.

3. [143]

   The following questions asked of DE in the JIRT interview were also relied upon as suggesting touching on multiple occasions:

4. [144]

   I do not regard those questions as suggesting any more than the obvious and somewhat insightful proposition that DE would be unaware of something happening to her were she asleep. To the extent that this evidence might have been thought to have operated to the applicant’s prejudice at his trial, an application to edit the JIRT interview could have been made. It was not. No reference was made to it by counsel in their addresses or by the trial judge.

5. [145]

   The only episode of touching the child describes in the JIRT interview is the occasion described in detail at [45] above.

The child’s evidence in cross-examination

1. [146]

   Despite the child’s account to police in the JIRT interview that she was only touched (“like that”) once by the applicant, in cross-examination she said she was “touched” by the applicant on three of the seven occasions she slept over at the applicant’s house, that is, two occasions additional to the Jack Henry night (11 March 2016), being the night of the Christmas lights (of 2016) and the last sleepover on 1 July 2017. The seven occasions sourced from the evidence of the applicant’s wife and questions asked of DE in cross-examination, obviously on instructions.

2. [147]

   DE’s evidence of other occasions of “touching” was before the jury in response to leading questions put to her by Ms Davenport, apparently with the intention of confirming that the applicant had not “touched” her on any other occasion so as to provide a basis for a submission that the child returned to the applicant’s house for sleepovers on multiple occasions after 11 March 2016 before making a complaint to her parents on 8 July 2017, ultimately to undermine the reliability of the child’s account that she was touched at all.

3. [148]

   Of significance, Ms Davenport did not ask the child to identify or describe the “touching” on the night of the Christmas lights or the last sleepover or where or when or how the touching occurred or what it entailed. After having confirmed with the trial judge before the trial commenced that she was in a position to meet the Crown’s case of a single act of “touching” on a between dates basis, that Ms Davenport did not ask further questions about the touching is hardly surprising. Even accepting that the concept of touching used by Ms Davenport in cross-examination of DE to confirm that the applicant did not touch her on the occasion of successive sleepovers after 11 March 2016 should be understood as “indecent touching”, without any details of the circumstances in which that touching occurred, or the way in which the child was “touched”, it remains the fact that the only incident of indecent touching the child ever described or demonstrated was the incident she described initially to her parents and then later in the JIRT interview.

4. [149]

   Furthermore, as the Crown pointed out on the appeal, in Ms Davenport’s closing address she referred to the Christmas lights “touching” and the 1 July 2017 “touching” (being the last sleepover) merely as illustrations of the child’s unreliability. Ms Davenport invited the jury to find that the child’s contradictory versions of touching or not touching on the last night (as reflected in the evidence extracted at [63]) indicated the child’s willingness to agree to almost any version of events as evidence of her unreliability and, as concerns her evidence of being touched on the occasion of the Christmas lights as a further example of her unreliability since GM was sleeping in JM’s room with DE that night and the child had given evidence that when the applicant touched her on the vagina she was sleeping alone on the trundle bed.

5. [150]

   Despite the fact that DE said, in contradicting leading questions asked of her that she was not “touched” by the applicant on occasions other than the occasion of the Jack Henry visit, that she was touched on the night of the Christmas lights and the last night she slept over at the applicant’s house, her complaint to her parents on 8 July 2017 and her account in the JIRT interview of the applicant returning to JM’s bedroom after the applicant had settled him to sleep and kneeling down beside her on the trundle bed and touching her on her vagina with two fingers in a circular motion under her pyjamas and underwear while she appeared to be sleeping, was not the subject of any questioning in cross-examination, save as to suggest to her that the incident did not happen at all, which she denied.

6. [151]

   Although the jury were not directed they must not substitute the evidence the child gave under cross-examination of being “touched” on those two other occasions for the specific and detailed allegation of indecent assault upon which the Crown relied in proof of its case, neither was a direction of that kind sought. In my view, the failure of trial counsel to seek that direction is a further indication that in the context of the trial and the way it was conducted, a unanimity direction was neither called for nor has a miscarriage of justice resulted from it not being given.

The Crown’s address on the issue of multiple acts of touching

1. [152]

   That the Crown invited the jury to focus on the particular event described by DE to her parents and in her JIRT interview as the act constituting the indecent assault charged is clear in the following extract from the Crown prosecutor’s address:

2. [153]

   The Crown prosecutor then proceeded to remind the jury of DE’s account in the JIRT interview, commencing with Question 228 (extracted above at [45]), pointing out the details of the act of indecent assault which DE volunteered in answer to non-leading questions asked of her by police, as eloquent of her reliability, even if she was inaccurate when recounting the sequence of events on the night of that sleepover, and even if the sequence of events that were common or routine at sleepovers on other occasions was confused or she was unable to reconstruct particular events under cross-examination.

3. [154]

   One of the particular features of the sleepover on the night she was assaulted that the Crown prosecutor did emphasise in her closing address was DE’s drawing of where the applicant was positioned relative to her in the trundle bed when he touched her. The Crown advanced the following submission:

The Crown’s address on the issue of opportunity

1. [155]

   I do not regard the way in which the Crown addressed the jury on the issue of opportunity as advancing the applicant’s submission on the appeal that without direction from the trial judge as to the necessity for unanimity, and without election by the Crown as to which acts of “touching” it relied upon to prove its case, there was a theoretical possibility that individual jurors would regard the different occasions of touching as constituting the offence of indecent assault charged.

2. [156]

   When considered in the context of her address as a whole, when the Crown prosecutor addressed the jury on the issue of opportunity, in my view, she must be taken to have been referring to the “opportunity” the applicant had to commit the particular offence the child had complained of to her parents and police, an assault that occurred when the applicant took the opportunity to assault the child because he was the last in the room alone with her that night having successfully settled his son to sleep and believing she was asleep.

3. [157]

   This much is clear from the following extract from the Crown’s closing address:

4. [158]

   The applicant also relies upon the Crown prosecutor’s specific reference to the possibility of touching during bath time that invited the jury to speculate that the indecent touching the subject of charge may have occurred at that time, thereby raising the theoretical possibility that the jury, without guidance from the trial judge in the form of a unanimity direction, convicted the applicant based upon that scenario or any one of multiple acts of touching which the child said occurred in cross-examination without being unanimous as to which act of touching was proved beyond reasonable doubt.

5. [159]

   In the Crown prosecutor’s closing address, she said:

6. [160]

   The issue of bathing was raised with the applicant in the ERISP in the following series of questions and answers:

7. [161]

   There was nothing in the JIRT interview or in DE’s evidence to suggest that she was ever indecently assaulted during bath time. She was asked no questions about it in the JIRT interview or in cross-examination. That being the case, it is unclear why the issue acquired any currency in the trial or in the Crown prosecutor’s closing address.

8. [162]

   Whatever else might be said about the Crown prosecutor’s emphasis on the issue of opportunity, including, it must be said, her suggestion that there was an opportunity for indecent touching at bath time, there was simply no evidence in the trial for the jury to proceed to consider guilt on the basis of some alleged act of indecent touching at bath time. This much was emphasised by Ms Davenport.

9. [163]

   I am not of the view that there is a theoretical possibility that any member of the jury could have understood that an indecent touching at bath time was a finding of fact open to them upon which they might return a verdict when there was simply no evidence at all upon which to do so.

Consideration of the authority of S v The Queen

1. [164]

   Having reviewed the Crown’s address concerning DE’s evidence and the defence address in response to it, I am not persuaded that the Crown went to the jury on the basis that there were multiple factual bases upon which the jury could convict the applicant, or that there was any occasion during the course of the trial when the Crown ought to have been invited to elect as to what occasion of touching it relied upon in proof of its case. As reflected in the Crown’s closing address, the way the Crown case was conducted was that there was a single act or incident of indecent assault which the Crown relied upon to prove its case. The Crown acknowledged, however, that given the many occasions when DE slept over at the applicant’s home in the particularised timeframe on the indictment, the particular sleepover when he assaulted her and in the way that she described to her parents and police could not be appointed with absolute certainty.

2. [165]

   In addition, in circumstances where the jury were directed, in clear terms, that the precise date of the indecent assault that was alleged was not a matter about which they needed to be satisfied in returning a verdict, and where both counsel focused their closing addresses on the single incident of indecent assault DE had complained of to her parents and which she repeated and elaborated upon in the JIRT interview, I am satisfied the jury would have been in no doubt that the only incident of touching they needed to be concerned with, that is, the only act of indecent assault they needed to be satisfied of beyond reasonable doubt were they to return a verdict of guilty, was what DE described to her parents and to interviewing police.

Other authorities referred to in argument

1. [166]

   The applicant’s reliance in written submissions on Lane v The Queen [2018] HCA 28 does not alter my view. In that case this Court found error in the trial judge’s failure to give the jury a unanimity direction as to the factual basis upon which they might convict the appellant of manslaughter was affirmed, but the Court’s application of the proviso (by majority) was overturned.

2. [167]

   It is sufficient for present purposes to refer to the judgment of Meagher JA and Davies J in Lane v R [2017] NSWCCA 46 where the error in the failure to give a unanimity direction was discussed by their Honours at [18]:

3. [168]

   Their Honours went on to note that this statement of principle had been approved and applied by this Court in Pratten v R [2014] NSWCCA 117 and in other state courts.

4. [169]

   I note that the same extract from Walsh was extracted in the judgment of Meagher JA in Pratten at [45] as a case exemplifying the circumstances where a unanimity direction is required and the cases where that principle has been applied. Those cases were also cited by his Honour in Lane at [47]-[51].

5. [170]

   In Pratten (Hamill and Fullerton JJ agreeing) convictions were overturned where the evidence adduced by the prosecution in proof of a number of counts laid contrary to s 134 of the Criminal Code Act 1995 (Cth), alleging the dishonest obtaining of a financial advantage from the Commonwealth by deception in the lodging of tax returns over successive financial years, disclosed various payments, some of which were income and some of which may not have been income. No direction was given that the jury needed to agree as to which of the multiple payments in any given year were income in order to return verdicts on that count. At [78] the need for unanimity was made clear:

6. [171]

   Further, in both Pratten and Lane the Court was concerned to emphasise that cases where a unanimity direction is required will depend upon the nature of the charge, the way in which the prosecution and defence cases were conducted and what were described as “the live issues at the conclusion of the evidence”.

7. [172]

   In both Pratten and Lane (in each case requiring a unanimity direction) there was a factual question central to proof of the elements of the offences charged which was put in issue in the way the trial was conducted.

8. [173]

   In Lane it was submitted that the need for the trial judge to give a unanimity direction arose because of a change in the way the Crown put its case at trial, from relying on a single act as the act causing death to relying on the accused’s conduct at two separate points in time, without the jury being directed of the need to be in agreement as to the same voluntary act which caused death before a verdict of guilty could be entered. Although the trial judge’s general direction that the jury might return a verdict even if different members of the jury followed a different path of reasoning to that conclusion, because the facts were capable of supporting alternative legal bases of guilt, a unanimity direction was necessary. The decision of the jury was found to be defective because no direction was given.

9. [174]

   Similarly, in Pratten it was the approach of the Crown, and the way in which it led evidence in its case of multiple payments in the timeframe of each count, that gave rise to the need for a unanimity direction.

10. [175]

    On the applicant’s case at trial, for the reasons already discussed, I am not persuaded that the Crown went to the jury on the basis that there were multiple possible factual bases upon which the jury could convict the applicant of the one count of indecent assault charged against him, or that the other instances of touching were live issues at the trial in the way contended for on the appeal. The Crown prosecutor invited the jury to treat DE’s evidence as descriptive of a single incident of indecent touching by the applicant (being the incident described in detail by her in the JIRT interview) despite the fact, as the Crown accepted, that she had given different descriptions of the events of the night on which that incident occurred and different descriptions of the occasions when she slept over.

11. [176]

    A similar approach was taken by this Court in Cabot. In that case, the applicant was convicted of one count of committing an indecent assault (by touching a child on the penis). The jury returned verdicts of not guilty in respect of other counts of sexual misconduct involving the same child and failed to reach a verdict in respect of other counts, also involving the same child.

12. [177]

    On the appeal, but not at trial, it was submitted that inconsistencies in the child’s evidence as to the time of day that the offence was committed gave rise to the possibility that the child was describing two separate incidents constituting a charge of indecent assault, albeit committed on the same day, one in the morning and one in the evening, and that the failure of the trial judge to direct that the jury must be unanimous as to the particular occasion that the applicant indecently assaulted the child constituted a miscarriage of justice. In Cabot it was submitted that the decision of the High Court in Lane dictated that the failure to give a unanimity direction was fundamental and that the proviso could not stand in the way of the verdict being set aside.

13. [178]

    Leeming JA (McCallum and Bellew JJ agreeing) did not uphold that ground of appeal. It is accepted that, while the child was clearly confused about the time of day the applicant touched him on the penis (as the Crown conceded), the way the case was run at trial, including the Crown’s closing address, made it clear that the conduct the subject of the charge was “anchored” in a single incident, namely that it occurred in the child’s bed when his mother was at the gym (an account he had given to police in the JIRT interview). The Crown also submitted, and this Court accepted, that the failure to take the point at trial indicated that in the atmosphere of the trial and then the way in which the parties conducted their respective cases, that issue was not considered to be important such as to support any suggestion that a miscarriage of justice had occurred. Emphasis was given in that connection to the way in which defence counsel addressed the jury, by emphasising that the child’s inconsistent answers as to whether his mother was at the gym when he was assaulted and whether it was at night or in the morning that he was assaulted were identified as features which would leave the jury in doubt as to whether the offence was proved.

14. [179]

    Leeming JA also observed, albeit in obiter dicta, that given that the issue of unanimity was not raised at trial, there may have been good reason why a direction was not sought. His Honour said at [84]:

15. [180]

    The same observation is apposite in this case.

16. [181]

    In the result, I am satisfied that, given the issues that were litigated and the way in which the cases were conducted on behalf of the Crown and the accused, there was nothing to raise the theoretical possibility that the jury might have “pooled” together individual conclusions as to different occasions when they were satisfied the child was “touched” to reach the unanimous view that the applicant’s guilt on the one count of indecent assault with which he was charged had been proved. I am not persuaded that there is the level of necessary uncertainty as to the acts of the applicant upon which the jury’s verdict was based to undermine the verdict, or that the absence of the unanimity direction was productive of a miscarriage of justice.

The second ground of appeal: A miscarriage of justice was caused by the judge’s failure to direct the jury that the accused’s silence in Court was not evidence against him, could not be used to fill gaps in the prosecution case, or support the prosecution case.

1. [182]

   This ground of appeal concerns what is said to be trial judge’s failure to direct the jury in accordance with Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 to the effect that the accused’s election not to give evidence is not evidence against him and does not constitute an admission by him of his guilt. The complaint is also made that there was no direction that the applicant’s silence may not be used by the jury to fill any gaps in the evidence relied upon by the Crown to prove its case, or used by them as a “make weight” in assessing whether the Crown has proved its case beyond reasonable doubt.

2. [183]

   In Azzopardi, Gaudron, Gummow, Kirby and Hayne JJ said at [51]:

3. [184]

   Ms Davenport, an experienced senior trial counsel, did not seek an Azzopardi direction. Accordingly, leave under Rule 4 of the Criminal Appeal Rules (NSW) is required to permit the applicant to raise the matter on appeal. The applicant’s senior counsel on the appeal, Ms Bashir, submitted that because the Azzopardi direction relates to the onus and standard of proof, if there is merit in the applicant’s argument that the direction should have been given, leave under Rule 4 should be granted.

4. [185]

   The Crown submitted that where the issue at trial was whether DE’s account of the indecent “touching” was reliable - a matter about which the trial judge directed the jury they would need to be satisfied if they were to return a verdict of guilty - and where Ms Davenport’s address focused on a wide range of features of DE’s evidence which she submitted were eloquent of DE’s unreliability, to seek an Azzopardi direction might well have been considered by trial counsel to be uncalled for or even unwise.

5. [186]

   The Crown further submitted that, having regard to the way in which the applicant’s case was conducted at trial, it would be open to this Court to conclude that the decision that the applicant would not give evidence was made in circumstances where trial counsel considered that the trial judge’s directions as to how the jury should approach their assessment of the applicant’s ERISP were sufficient to emphasise that his denials of any indecent touching were part of the evidence available to the jury to consider on the question of whether the Crown had proved guilt beyond reasonable doubt, and that an Azzopardi direction would inevitably draw the jury’s attention to the fact that the applicant could have given sworn evidence but chose not to, which might operate to his detriment, notwithstanding that the trial judge would warn the jury against that fact being used adverse to him.

6. [187]

   The Crown submitted that, even were leave granted under Rule 4 to permit the applicant to pursue this ground of appeal, the applicant has not demonstrated that the failure to give an Azzopardi direction has led to a miscarriage of justice, in the sense that it led to a loss of a chance of an acquittal and, for that reason, the first ground of appeal should be dismissed.

7. [188]

   The trial judge’s direction concerning the ERISP was as follows:

8. [189]

   After the jury retired, they asked to view DE’s JIRT interview and her pre-recorded evidence. Before the pre-recorded evidence was played in open court (the other items being exhibits in the trial provided to the jury for their continued deliberations) the trial judge gave the following further direction:

9. [190]

   In reminding the jury of Ms Davenport’s closing address, she said:

10. [191]

    The Crown submitted that even accepting that this Court has recognised, consistent with what was said in Azzopardi at [51], that it is desirable that a jury is directed that where an accused does not give evidence that cannot be used in any way adverse to the accused, the direction is not mandatory and has not been treated as such in any of the authorities that have had occasion to consider it. The Crown submitted that where no evidence has been adduced on the appeal from Ms Davenport or her solicitor to explain her failure to seek a direction, and where the error now contended for could easily have been cured were the trial judge’s attention drawn to it, the Court would more readily conclude that there was an informed forensic decision made, in the atmosphere of the trial, by an experienced trial counsel not to seek a direction and, in those circumstances, no miscarriage of justice has resulted from the direction not being given.

The authorities

1. [192]

   The applicant accepts that there is no absolute rule that an Azzopardi direction must be given where an accused does not give evidence at trial (R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20).

2. [193]

   In Wilson, the complaint was that the trial judge had misdirected the jury by failing to give the full complement of what has become known as the “Azzopardi direction”, as distinct from the complaint made here that the trial judge was in error in not giving an Azzopardi direction at all. In concluding that the error contended for had not been made out, Hunt AJA, with whom Grove and James JJ agreed, said at [15]:

3. [194]

   Grove J went further and emphasised that was an approach which had been adopted by the Court in most of the cases where the absence of an Azzopardi direction has been said to be an error.

4. [195]

   In R v SMR [2002] NSWCCA 258, at [105], Carruthers AJ (Mason P and Hidden J concurring) observed that not only was an Azzopardi direction not considered mandatory in every case, but that in some cases defence counsel might consider the accused not well served by a direction. In R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38, Levine J (Hodgson JA and Howie J agreeing) said of the submission that a failure to give an Azzopardi direction went to matters fundamental to a fair trial:

5. [196]

   In R v Graham [2005] NSWCCA 127, both Wilson and SMR were cited. The accused was convicted of knowingly taking part in the supply of heroin. She had given a lengthy interview with police in which she denied any knowledge of the presence of narcotics in the parcel in her possession. The trial judge had given a direction to the jury consistent with the direction by the trial judge at the applicant’s trial emphasising that the Crown had the burden of proving the essential elements of the offence beyond reasonable doubt and that the accused’s ERISP was evidence in the case and available to the jury to evaluate in the context of all of the evidence. As Grove J emphasised at [17], there was nothing in the trial judge’s remarks that would qualify the evidential value of the record of interview and nothing said to draw attention to the fact that the ERISP was not the subject of cross-examination. Despite an affidavit from trial counsel read on the appeal in which counsel explained the failure to seek an Azzopardi direction as an oversight and not the result of a tactical decision, leave under Rule 4 was refused. The Court was not satisfied that a miscarriage of justice had occurred.

6. [197]

   As to the operation of Rule 4 Grove J said at [26]:

7. [198]

   At [25], Grove J said of the facts that were in issue in that trial:

The applicant’s submissions

1. [199]

   In short, Ms Bashir submitted that the trial judge was obliged to direct the jury in accordance with Azzopardi and that a failure to do so has been productive of a miscarriage of justice. She submitted that to suggest, as the Crown has submitted, that trial counsel may have perceived a forensic advantage in not seeking an Azzopardi direction is “unfathomable” since by failing to ensure that the jury, under judicial direction, did not use the accused’s silence in any way adverse to him was “simply perilous”. Without any explanation from experienced trial counsel as to why a direction was not sought, whether because of error or inadvertence, the submission that there was no conceivable forensic advantage that would have justified a decision not to seek a direction is not, in my view, a submission that carries any weight.

2. [200]

   The applicant relied upon five aspects of the trial which were said to have obliged the trial judge to give an Azzopardi direction.

3. [201]

   First, the JIRT interview and DE’s pre-recorded evidence, is the only direct evidence of the offence. This was said to be in stark contrast to the applicant’s case where he was asked questions by interviewing police officers in the ERISP but did not give evidence. I do not consider that as a factor of any significant weight. It is frequently the case that a complaint about the failure to give an Azzopardi direction is where the accused has given an unsworn account to police denying the offence (see for example Graham).

4. [202]

   Secondly, because the applicant’s wife gave evidence in the defence case this would inevitably have raised a question in the minds of the jury whether the applicant elected not to give evidence because he had something to hide. Where there was nothing said or suggested by either counsel to that effect, and nothing said by the trial judge, the argument lacks substance.

5. [203]

   Further, if it were sufficient for this ground of appeal to be made out that the applicant is able to satisfy the Court that it was “desirable” in the circumstances of his trial that an Azzopardi direction was given, it would seem to me to follow that what has not hitherto been treated as a mandatory jury direction has become mandatory by default. I do not understand what McClellan CJ at CL said in Johnston v R [2007] NSWCCA 133 at [13] to suggest otherwise.

6. [204]

   In that case the appellant participated in an ERISP in which he denied his involvement in a robbery. The ERISP was tendered. The appellant did not give evidence. In her closing address, the appellant’s counsel alerted the jury to the directions she anticipated the trial judge would give on the accused’s right to silence. The trial judge did not give that direction and no re-directions were sought. McClellan CJ at CL (with whom Hulme and Hislop JJ agreed) was satisfied that when the trial judge failed to give what was referred to as “the right to silence” direction, counsel’s failure to raise the matter with the trial judge was an oversight. He rejected the suggestion, advanced by the Crown on the appeal, that there may have been a tactical reason for counsel not seek a redirection. On that basis, leave under Rule 4 was granted.

7. [205]

   His Honour then made the following observation at [13]:

8. [206]

   To the extent that those obiter remarks are taken to be some endorsement by this Court that a trial judge is obliged to give an Azzopardi direction where there is evidence indicating that an accused may have committed a crime and where the accused’s denial has not been the subject of sworn evidence, that is an analysis with which I respectfully disagree. If the test as to whether an Azzopardi direction should be given is that where an accused does not give evidence a jury might conclude that the accused committed the offence, an Azzopardi direction would be given in every case.

9. [207]

   Thirdly, it was submitted that in order for the jury to be satisfied beyond reasonable doubt of the applicant’s guilt, it was essential that they accepted DE as a witness of truth and rejected the applicant’s denials to police that he had ever indecently touched the child. In those circumstances, counsel submitted that there was a significant risk that the fact that the applicant did not give evidence would be used by the jury to reason to the conclusion that they should accept DE’s evidence and more readily reject his denials. It was submitted that the trial judge’s direction that the Crown must satisfy them that the applicant’s version of events could not reasonably be true in order to prove the accused’s guilt was not sufficient to ameliorate the risk that they would impermissibly use the applicant’s election not to give evidence to undermine the force of that direction in their deliberations to verdict. I do not regard the trial judge’s directions to have left open that approach. The trial judge’s directions were clear and unambiguous as to the burden and standard of proof. Nothing was advanced on the appeal to suggest otherwise.

10. [208]

    Fourthly, it was submitted that by directing the jury about the special circumstances in which DE gave evidence (namely, by the tender of her pre-recorded evidence) the fact of sworn evidence being the “normal course” in which trials are conducted was emphasised. Again, I do not read the trial judge’s directions as having that effect or carrying a risk of that kind.

11. [209]

    Finally, it was submitted that DE’s nomination in cross-examination of other occasions where she claimed to have been “touched” by the applicant, being occasions she had not nominated in the JIRT interview and that had not been dealt with in the applicant’s ERISP, meant that there were aspects of her evidence the applicant neither answered nor explained in the ERISP. The applicant submitted that although the answers given in the ERISP were capable of constituting a general denial to indecently touching DE on any occasion, because, in cross-examination, she nominated other occasions of “touching”, this was an aspect of this trial which distinguished it from other cases where an accused’s account in the form of an ERISP addressed all matters of contested fact.

12. [210]

    The difficulty with that submission is that it proceeds on the assumption that the other instances of touching were matters the parties treated as significant issues for the jury to consider and that they were put in issue in the applicant’s trial for that reason. The fact is the other instances of touching attracted no comment from the Crown, and were referred to only peripherally by defence counsel in the context of her challenge to DE’s credibility, and attracted no direction from the trial judge. In my view, this is strongly suggestive of the fact that the other instances of touching were not treated by the jury with the significance the applicant contends for on the appeal.

13. [211]

    In the applicant’s submissions in reply to the Crown’s submissions, a further basis upon which it was submitted an Azzopardi direction was essential was advanced. This was said to be the weaknesses in the Crown case and the importance of the jury being warned not to use the applicant’s election not to give evidence to make up for those weaknesses. The applicant also emphasised that the jury’s request for the child’s evidence, her JIRT and the applicant’s ERISP would inevitably have served to highlight the difference between the child’s evidence and the applicant’s unsworn account. The difficulty with that submission is the direction the jury were given when DE’s pre-recorded evidence and the JIRT interview were supplied to the jury at their request:

The Victorian authority of Le v The Queen

1. [212]

   Both parties referred to the decision to the Victorian Court of Appeal in Le v The Queen [2016] VSCA 100. In that case, the Court dismissed a ground of appeal where the applicant submitted that a substantial miscarriage of justice had occurred as a result of the failure of the trial judge to give an Azzopardi direction.

2. [213]

   In any event, the question for this Court is whether, in the context of the trial and the issues that were engaged by the evidence, and having regard to counsel’s submissions about the evidence and the trial judge’s directions about the use the jury could make of the applicant’s ERISP, an Azzopardi direction was essential. I am not satisfied it was. I would reject the second ground of appeal. Neither am I satisfied any miscarriage of justice has resulted.

3. [214]

   The Crown relied upon Le in further support of its contention that where a forensic advantage in not seeking a direction can objectively be discerned, a trial judge will not be in error in failing to give a direction (particularly where counsel specifically asks that it not be given, as was the case in Le) and where, as the Court noted, the giving of an Azzopardi direction is not mandatory. As to that issue, the Court observed:

4. [215]

   The Court ultimately concluded that because the Crown case was based on circumstantial evidence with the focus of the defence on explanations available to the jury consistent with the accused’s innocence, there was a discernible advantage in trial counsel not inviting the jury to focus attention on the fact that those explanations had not been proffered by the accused in evidence.

5. [216]

   The same analysis can be deployed here. The applicant had the advantage of the trial judge’s directions as to how the jury should deal with his denials of any indecent touching in the ERISP and a direction that they could not convict the accused unless they accepted the child’s evidence beyond reasonable doubt. To focus on the fact that the applicant might have given a sworn account of his denials, but chose not to, may have been thought to undermine his prospects of an acquittal.

6. [217]

   The applicant sought to distinguish the decision in Le not only on the basis that the Court was concerned with a case based on circumstantial evidence, in contrast with the applicant’s trial which was based on the direct evidence of DE (in my view, in the way the trial was conducted, a distinction without a difference), but also on the basis that the Jury Directions Act 2013 (Vic) imposed a statutory regime which has brought about significant changes to the law in Victoria as it relates to trial process. At [27]-[30], the Court observed:

7. [218]

   After referring to the High Court decision in Azzopardi and the seminal passage at [51] of the judgment, as the Court saw it there was a need to discern whether, objectively, there was or was not a forensic advantage as trial counsel saw it, in not seeking an Azzopardi direction. The Court was of the view that if a forensic advantage is able to be discerned then it will be assumed that it was that which motivated counsel to ask the judge not to give the direction.

8. [219]

   In my view, the same analysis is available here. It is not an analysis which is novel. In considering the application of Rule 4 it is not infrequently the case that the Court has sought to discern why counsel might have failed to seek an Azzopardi direction in those cases where no explanation is forthcoming.

9. [220]

   As the Crown urged in its submissions, the basis upon which it was submitted that the trial judge was obliged to give an Azzopardi direction needs to be considered in the context of the way the trial was conducted on behalf of the applicant by his trial counsel. The Crown, in its submissions, has sought to identify, objectively, a rational forensic advantage that might have been perceived by trial counsel in not seeking an Azzopardi direction.

10. [221]

    In the absence of an explanation from trial counsel that she saw no forensic advantage in not seeking an Azzopardi direction but failed to do so through error or oversight, I am disposed to accept that it was a rational choice of trial counsel not to seek a direction and, in those circumstances, that it is not open to the applicant now to complain that there has been a substantial miscarriage of justice.

11. [222]

    Given the extensive discussion this ground of appeal has attracted, I would grant leave under Rule 4 but dismiss the ground of appeal.

The third ground of appeal: The verdict of the jury was unreasonable and cannot be supported by the evidence.

1. [223]

   The principles to be applied by an appellate court when considering a ground of appeal that alleges an unreasonable verdict which cannot be supported by the evidence are settled. They have been most recently restated in Obierzynski v R [2019] NSWCCA 103:

2. [224]

   Ms Bashir identified five points which, in her submission, made it “fundamentally improbable” that the indecent assault which DE described to her parents and to police in the JIRT interview occurred on either the first occasion she slept over at the applicant’s house (being 11 March 2016), the date which the Crown submitted was more probably than not the date when the assault occurred, or at any other time.

3. [225]

   The first, second and fourth points are allied. It was submitted that for the child to have returned on repeated occasions for sleepovers after 11 March 2016, and on some occasions to have actively sought permission to sleepover, raises a serious doubt as to whether she was assaulted on the first sleepover or on any subsequent occasion. It was further submitted that the sheer improbability of the applicant assaulting her in the manner alleged, of itself justified the jury having a reasonable doubt as to guilt.

4. [226]

   As the Crown submitted, and I accept, what has to be factored into that analysis is that DE had a very close connection with the applicant’s son and apparently enjoyed sleeping over at his home. The Crown submitted that DE’s obvious pleasure and enjoyment, as a very young child, at the opportunity to sleep at her friend’s house, could have overridden any feelings of unease when sleeping in her friend’s bedroom, even despite an awareness that the applicant rubbing his fingers on her vagina was wrong.

5. [227]

   The third and fifth points raised by Ms Bashir are also allied. They focused on what was said to be the improbability of the applicant assaulting DE with the risk that the child would complain, putting to an end the relationship between DE and his son. Proceeding on what I regard as the reasonable assumption that the applicant assaulted DE believing she was asleep, I do not regard his choice of his son’s bedroom as the place to assault her, or the potential consequences were she to have awoken and screamed out when she was touched, or the risk that she may have complained of the assault the following morning, as impacting on the reliability of DE’s evidence or rendering the circumstances in which she was assaulted so improbable such as to undermine the jury’s verdict.

6. [228]

   Ms Bashir also submitted that DE’s failure to be able to give a cohesive account of the circumstances contextual to the occasion that she described being touched by the applicant; significant inconsistencies on the dates of the sleepovers, and the seven occasions when it was confirmed DE had slept over at the applicant’s house and where, according to the applicant wife, there was no possibility of the applicant ever being alone with DE in her son’s room, rendered her evidence so fundamentally unreliable that the jury could not rationally convict upon it.

7. [229]

   In my view, it was open to the jury to give preponderant weight to DE’s evidence when reasoning to the conclusion, and beyond reasonable doubt, that the applicant re-entered his son’s bedroom and assaulted her without his wife’s knowledge, just as it is open to this Court to take that approach in undertaking its independent assessment of the child’s evidence in determining whether the third ground of appeal is made out.

8. [230]

   In the context of this trial, the inconsistencies in the child’s evidence with respect to the circumstances in which the assault occurred, including the particular Friday night sleepover when the assault occurred and the events contextual to it, were issues the jury was alive to. They were dealt with extensively in cross-examination and referred to at length in defence counsel’s address in support of the submission that the level of vagueness and uncertainty in DE’s evidence generally should raise a reasonable doubt that the incident she described to her parents and police occurred at all.

9. [231]

   In Cabot at [59], Leeming J made the following observations about the issue of reliability generally:

10. [232]

    As with Cabot, this is a case where I am satisfied that, in discharge of their function and under direction from the trial judge, the jury must be taken to have considered the inconsistencies in DE’s evidence which had been drawn to their attention in considering whether the Crown had established the elements of the offence charged to the criminal standard. Consistent with the approach an appellate court is obliged to take in assessing the sufficiency and quality of the evidence in determining whether the verdict of a jury is unreasonable, due consideration must also be given to the advantage the jury had in assessing the sufficiency and the quality of DE’s evidence for itself (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494-5 and SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 at [13].

11. [233]

    I am not of the view that DE’s evidence generally, or issues as to her reliability as a child witness (such as they were), detracted from the quality and sufficiency of her evidence that was she indecently assaulted in the manner that she described to her parents and interviewing police, or in the circumstances in which she said that assault occurred, namely when the applicant returned to his son’s bedroom after he had settled his son to sleep, at a time when she gave the appearance of being asleep. Neither does her account suggest the assault is so inherently improbable that a jury should have rejected it.

12. [234]

    DE’s account to police when she was aged 6, inclusive of the relatively matter of fact way in which she described the assault, including, in my view, her apparent lack of comprehension of the significance of the applicant’s use of two fingers in a circular motion when touching her vagina, have all the hallmarks of an incident remembered and not imagined. It is those features of her evidence, and not the contextual details or events in the sleepover itself, that, in my assessment, reflect her honesty and reliability as a witness, an assessment the jury were directed they were obliged to make in the context of the issues that had been ventilated fully for their consideration in the case advanced on the applicant’s behalf. I am not satisfied that there is any reasonable possibility that either DE was “making up” her evidence of being indecently assaulted or that her evidence was not a “genuine memory” of an actual event or that she was simply wrong and the act of indecent assault did not happen at all.

13. [235]

    After a full review of all of the evidence, and after what I am satisfied are both understandable mistakes the child made as to events of the night of the assault (including how she played with her friends and what they watched on the television) and the likelihood of her conflation of these events across various of the sleepovers during the timeframe particularised on the indictment, I am not persuaded that there is a significant possibility that the applicant was wrongly convicted (see M at 494; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [56])

14. [236]

    The third ground of appeal is not made out.

Orders

1. [237]

   Accordingly, the orders I propose are:

   1. (1)

      Insofar as concerns Ground 1, leave to appeal is granted.

   2. (2)

      Insofar as concerns Ground 2, leave to appeal is granted.

   3. (3)

      Insofar as concerns Ground 3, leave to appeal is granted.

   4. (4)

      The appeal against conviction is dismissed.

   5. (5)

      The sentence imposed in the District Court on 5 July 2019 is confirmed subject to the following variation: the sentence of 2 years and 10 months’ imprisonment with a non-parole period of 1 year and 5 months is to commence from 16 December 2019. The non-parole period will expire on 15 May 2021. The balance of term will expire on 15 October 2022.

2. [238]

   ADAMSON J: I have had the benefit of reading Fullerton J’s reasons in draft and am indebted to her Honour’s summary of the trial and the appeal. I agree with her Honour’s reasons with respect to ground 1.

3. [239]

   I agree with the reasons given by Fullerton J with respect to ground 3 and wish to add the following further reasons of my own with respect to that ground.

4. [240]

   I confirm that I have considered the evidence at the trial, including the appellant’s recorded interview. At the Crown’s request I have not only read the transcript of the complainant’s interview and her evidence but I have also viewed the footage of the interview of the complainant and her evidence: cf. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [27]-[35] (French CJ, Gummow and Kiefel JJ). I discern nothing about the complainant’s evidence, taken by itself or in the context of the whole Crown case, which leads me to entertain a doubt about the appellant’s guilt, much less one that the jury might not have been able to resolve, having regard to their advantage of seeing and hearing the witnesses. The most significant evidence in the trial was the complainant’s evidence and the denial by the appellant in the recorded interview, in respect of which the jury did not have an advantage as this evidence was pre-recorded. I am satisfied that on the whole of the evidence it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. Accordingly, ground 3 has not been made out.

5. [241]

   I respectfully disagree with her Honour’s reasons with respect to ground 2 and, accordingly, with her Honour’s orders. The reasons for my view, which is a dissenting one, are as follows.

6. [242]

   Ground 2 raises the extent to which the jury should be directed regarding an accused’s choice not to give evidence at trial. The starting point is that the right to silence and the presumption of innocence are fundamental principles in a criminal trial. It was common ground that the trial judge directed the jury correctly as to the presumption of innocence and the onus of proof. The issue was whether her Honour was required to give a further direction, known as the “Azzopardi direction” (after Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25) (Azzopardi)). In the present case no issue arose which attracted the principles set out in Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 or RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3. Accordingly, it is not necessary to consider these two authorities. Nor did any issue arise concerning the qualified prohibition in s 20(2) of the Evidence Act 1995 (NSW) on any comment being made on the failure of the accused to give evidence.

7. [243]

   In Azzopardi, the majority of four judges (Gaudron, Gummow, Kirby and Hayne JJ) said at [51]:

8. [244]

   As is apparent from this extract, there are four aspects to the direction: namely, if the accused chooses not to give evidence, the accused’s silence:

   1. (1)

      is not evidence against the accused;

   2. (2)

      does not constitute an admission by the accused;

   3. (3)

      may not be used to fill gaps in the evidence tendered by the prosecution; and

   4. (4)

      may not be used as a “make-weight” in assessing whether the prosecution has proved its case beyond reasonable doubt.

9. [245]

   The statement in the passage extracted above from Azzopardi that “it will almost always be desirable” to give such a direction has resulted in consideration being given to the circumstances in which the direction is required to be given. Before turning to the circumstances of the present case, I propose to address decisions of this Court in which the Azzopardi direction has been considered.

10. [246]

    In R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 (Wilson), the appellant was acquitted of murder but found guilty of the manslaughter of a two-year-old boy who was in her foster care. The Crown case was circumstantial. The injuries causing death indicated that the child had been shaken shortly before death and that only the appellant was present at the relevant time. The appellant gave a version to police in an Electronically Recorded Interview of a Suspected Person (ERISP) to the effect that the deceased’s five-year-old sister was in a different room at the relevant time. Her ERISP was tendered by the Crown. The location of the deceased’s sister was relied on as an admission, as it tended to exclude the sister as the person responsible for the shaking. The trial judge gave directions in accordance with (1) and (2) above but not (3) or (4).

11. [247]

    It was argued in Wilson that the “gap” in the Crown case was the absence of direct evidence or admission that the child had been shaken or that it was the appellant who had shaken him. It was further submitted that the omission of directions (3) and (4) caused a miscarriage of justice because the giving of such directions would have ensured that the jury did not treat the appellant’s silence in court as an admission that she was the one who had shaken the child. The Court held that it was not necessary that the trial judge give directions (3) and (4) as the jury had been directed, first, that no inference could be drawn against the appellant for not having given evidence and, secondly, that she had not admitted or confessed anything by declining to give evidence.

12. [248]

    This Court in Wilson regarded it as significant that there was no complaint at trial about the lack of directions in accordance with (3) and (4). Their Honours (Hunt AJA, Grove and James JJ agreeing) referred to rule 4 of the Criminal Appeal Rules which relevantly provides:

13. [249]

    The Court said, at [20], that leave to rely on an error where no point was taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. It also referred to the “more onerous test” of whether there has been a departure from the requirements of the law that goes to the “root of the proceedings”. Their Honours cited Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 in support of the proposition that there is a miscarriage of justice where, by reason of the error made, the accused may have lost a chance fairly open to him of being acquitted. The Court in Wilson refused leave under rule 4 to rely on the ground.

14. [250]

    In R v Graham [2005] NSWCCA 127 (Graham), the appellant was convicted of a single count of knowingly taking part in the supply of a prohibited drug, heroin. The issue at trial was whether the appellant knew that the relevant package contained a prohibited drug. The appellant participated in an ERISP in which she denied any knowledge of the presence of drugs in the parcel but gave inconsistent details about its collection. The Crown tendered the ERISP. At the close of the Crown case, the appellant’s trial counsel said, in the presence of the jury:

15. [251]

    The trial judge then said, as reported at [17] of this Court’s judgment in Graham:

16. [252]

    The appellant neither gave, nor adduced, any evidence in her case. This Court (Grove J, Howie and Hall JJ agreeing) dismissed the appeal against conviction. Its reasons were as follows:

17. [253]

    In Johnston v R [2007] NSWCCA 133, the appellant was convicted of robbery in company inflicting grievous bodily harm. He participated in an ERISP in which he denied the assault or robbery which was tendered in the Crown case. The Crown at trial contended that the appellant’s lies in the ERISP amounted to a consciousness of guilt.

18. [254]

    The sole ground of appeal was that no direction had been given concerning the fact that the appellant had not given evidence at trial. It was common ground that no such direction had been given, although it had been anticipated in the address given by appellant’s trial counsel as follows:

19. [255]

    This Court (McClellan CJ at CL, Hulme and Hislop JJ agreeing) was satisfied that the omission was an oversight by the trial judge, the prosecutor and defence counsel and that the failure of the appellant’s trial counsel to raise it was not a tactical decision. McClellan CJ at CL said, at [13]:

20. [256]

    This Court found that the need for an Azzopardi direction “became undoubted” in circumstances where the Crown relied on lies in the ERISP as a consciousness of guilt: [17]. Accordingly, leave to raise the issue was granted, the appeal allowed, the conviction quashed and a new trial ordered.

21. [257]

    In Restricted Judgment [2019] NSWCCA 153: [111]-[118] (Restricted Judgment [2019]), this Court overturned the convictions for murder of both appellants on the basis that the trial judge had failed to give directions in accordance with (3) and (4) of the Azzopardi direction. In that case, the directions were held to be necessary because of the following four factors:

    1. (1)

       appellant J, who was a co-accused, had given evidence in the joint trial thereby highlighting the circumstance that appellant W could have given evidence;

    2. (2)

       the trial judge had directed the jury that it could use the evidence of appellant W’s threats, if accepted, as evidence of his consciousness of his guilt of one or both of the offences with which he was charged. The giving of a full Azzopardi direction would have ensured that the jury did not use appellant W’s absence from the witness box as a consciousness of guilt;

    3. (3)

       there was no evidence before the jury of ERISPs in which appellant W denied the Crown’s allegations; and

    4. (4)

       although, as the Crown contended, a direction about appellant W’s silence in court would have highlighted the disparity between his silence and appellant J’s decision to give evidence, the disparity would already have been obvious to the jury and should have led to a full Azzopardi direction being given to protect appellant W.

22. [258]

    The present case is to be distinguished from Wilson, Graham, Johnston and Restricted Judgment [2019]. Unlike in Restricted Judgment [2019], there was no disparity between the position of the appellant and that of a co-accused to address as the appellant was the sole accused. Unlike in Wilson, the Crown case was not circumstantial. As in Wilson, Graham and Johnston, the appellant denied his guilt in an ERISP which was tendered by the Crown: cf. Restricted Judgment [2019]. In the present case the Crown did not rely on the appellant’s answers in the recorded interview as amounting to a consciousness of guilt (as it did in Johnston) or as admissions (as in Wilson). As in Johnston, no aspect of the Azzopardi direction was given in the present case, which is to be compared with Graham, Wilson and Restricted Judgment [2019] where some variant of Azzopardi which fell short of the full direction was given.

23. [259]

    The cases in which it will be necessary to give the full Azzopardi direction are not to be categorised by reference to individual factors. Ultimately, the question whether such a ground is made out is to be answered by reference to the directions actually given, the circumstances of the case and the conduct of counsel at the trial: Thi Quyen Le v The Queen [2016] VSCA 100; (2016) 308 FLR 486 at [36] (Weinberg AP and Redlich JA).

24. [260]

    In the present case, both the appellant and the complainant gave versions which had been recorded at a time which was broadly contemporaneous with the first complaint about the alleged offending conduct.

25. [261]

    The complainant was interviewed by police on 25 July 2017. The film of the interview was played to the jury and a transcript of the interview was MFI 2. The diagrams which the complainant drew were marked for identification. The complainant was cross-examined on 14 March 2018. Her cross-examination was filmed. The transcript of her cross-examination was MFI 4.

26. [262]

    The trial commenced on 8 October 2018. The complainant’s version to police became her evidence in chief and was played to the jury. MFI 2 was provided to the jury. The diagrams which the complainant had drawn in the interview were tendered. The cross-examination of the complainant was also played to the jury. Documents which had been shown to the complainant in cross-examination were tendered. The complainant’s mother and father each gave evidence. Detective Senior Constable Hall was also called in the Crown case to prove the complainant’s birth date, the arrest and charging of the appellant on 25 July 2017 and his recorded interview later that day. The Crown tendered the ERISP of the appellant in its case, although it did not rely on any statements as amounting to either express admissions or a consciousness of guilt. The ERISP was played to the jury and a copy of the transcript was marked for identification and provided to the jury. The Crown case closed on 10 October 2018.

27. [263]

    On 10 October 2018, the appellant’s wife gave evidence and was cross-examined. The accused’s case closed. The proceedings were adjourned to 11 October 2018 for addresses. The addresses concluded before the luncheon adjournment on 11 October 2018 and the summing up concluded before 3pm, at which time the jury was sent out to consider its verdict.

28. [264]

    It can be seen from this narrative that the jury saw and heard recordings of both the complainant and the accused being interviewed. They also saw and heard a recording of the complainant being cross-examined at a prior date. The trial was one of “word against word” since the complainant gave evidence that she had been sexually assaulted by the appellant and the appellant denied it. Despite the similarities (the complainant and the appellant had each given versions which had been recorded on a prior date), there was a stark difference between them in that the complainant was subject to cross-examination but the appellant was not.

29. [265]

    It is important to examine the detail of the directions given by the trial judge on the question. Her Honour (Day 1, 11.10.19, SU, page 2), when referring to the evidence in the trial, said:

30. [266]

    Her Honour (Day 1, 11.10.19, SU, pages 11-12) also said:

31. [267]

    The trial judge gave the jury a document (MFI 3) which set out jury directions. Of present relevance, the directions included the following:

32. [268]

    Although the trial judge directed the jury as to the presumption of innocence and the onus of proof, her Honour did not direct the jury as to any of components (1)-(4) in the Azzopardi direction set out above.

33. [269]

    There is no evidence in the present case as to whether the appellant’s counsel chose, as a tactical decision, not to ask for such a direction, or whether she, through inadvertence or oversight, simply failed to ask for it. Nor is there any indication whether the trial judge decided that it would not be in the interests of the appellant to give the direction or simply forgot to give the direction.

34. [270]

    It is conceivable that the appellant’s trial counsel did not ask for the direction because she did not want to emphasise to the jury that the appellant had a right to give evidence which he chose not to exercise (and a right to silence, which he did choose to exercise). However, I consider that the pre-trial filming of the complainant’s version, her adoption of this version in evidence and her cross-examination, when compared with the filming of the appellant’s recorded interview with police, would have been more than sufficient to alert the jury to the fact that the appellant, by choosing not to give evidence at the trial, had not rendered himself susceptible to cross-examination. Further, the fact that the appellant was in court in the dock and that the complainant’s parents and the appellant’s wife gave evidence in court and were cross-examined would have served to highlight the appellant’s in-court silence.

35. [271]

    These objective matters make it less likely to have been a tactical decision by the appellant’s trial counsel. In any event, evidence from trial counsel as to tactical choices is not determinative and may be of little or no assistance: Richards [2002] NSWCCA 38; (2002) 128 A Crim R 204 at 209-210 (Levine J, Hodgson JA and Howie J agreeing). I am not persuaded that there was any objective forensic advantage to the appellant in the Azzopardi direction not having been given. Although the giving of the Azzopardi direction would have highlighted the appellant’s undoubted right to give evidence, it would have bound the jury not to take the appellant’s choice not to give evidence into account against him.

36. [272]

    I consider that, in these circumstances, there was such a substantial risk that the jury would have assumed that the appellant’s silence in court could be taken into account against him because if he were innocent, he would have given evidence, that it was incumbent on the trial judge to give the Azzopardi direction. This is not a case where it could be said that there was no real likelihood that the jury would misuse the in-court silence of the accused: cf. Nguyen v R [2017] NSWCCA 4; (2017) 264 A Crim R 405 at [71] (Basten JA). Her Honour’s directions about the presumption of innocence and onus of proof were not, in my view, sufficient to direct the jurors that they were prohibited from inferring guilt from in-court silence.

37. [273]

    I consider that the failure to give such a direction occasioned a miscarriage of justice. By reason of the omission, the jury might have used the appellant’s silence either as an indication that they could more readily accept the complainant’s evidence or as an additional factor which satisfied them of the appellant’s guilt beyond reasonable doubt. Both these inferences were erroneous. Had the jury been properly directed, the jury would have appreciated that such reasoning was prohibited and would have been bound to act in accordance with the direction. Accordingly, I am persuaded that the trial judge’s failure to direct the jury as to the appellant’s in-court silence caused him to lose a chance, which was fairly open to him, of being acquitted. In these circumstances, I am persuaded that leave pursuant to rule 4 ought be granted and the appeal allowed. By reason of my view as to ground 3, I consider that this Court ought order a re-trial.

Proposed orders

1. [274]

   In relation to ground 2, I propose the following orders:

   1. (1)

      Grant leave pursuant to rule 4 of the Criminal Appeal Rules to rely on ground 2.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the conviction.

   4. (4)

      Order a new trial.