MKR v R

1. [1]

   DAVIES J: The applicant was charged with 11 counts of sexual intercourse with a child under the age of 10 years contrary to s 66A of the Crimes Act 1900 (NSW) and 1 count of indecent assault with a person under the age of ten years contrary to s 61M(2) of the Crimes Act as it was in 2001.

2. [2]

   The applicant pleaded not guilty and stood trial before Williams ADCJ in a judge alone trial from 18 to 20 October 2021. By a judgment given on 22 October 2021, the applicant was convicted of all of the offences.

3. [3]

   He was subsequently sentenced on 18 January 2022 to an aggregate sentence of 9 years commencing 17 October 2021 and expiring 16 October 2030, with a non-parole period of 5 years expiring 16 October 2026.

4. [4]

   The applicant now appeals against his conviction on the following grounds:

5. [5]

   The applicant seeks that time be extended to enable him to appeal. Although he was sentenced on 18 January 2022, a Notice of Intention to Appeal was not filed until 28 September 2022. That Notice of Intention to Appeal expired almost a year before the Notice of Appeal was filed on 23 September 2024.

The offending

1. [6]

   The complainant, KL, was born in October 1993. At the time of the offending she was aged 7. The applicant is the complainant’s uncle, being the brother of the complainant’s mother, SL. He was born in May 1978 and was aged 22 and 23 when the offending occurred. At the time of the first group of offences the complainant resided with her parents SL and CL, and her brothers JL and ML on a family farm near Tarcutta. In 2001 the family moved to a property in Lake Albert, a short distance from Wagga Wagga.

2. [7]

   Counts 1 to 4 occurred at the family farm at a time when the applicant was residing with the complainant and her family. The applicant slept in a bedroom with the complainant’s older brother JL and the complainant had a room of her own.

3. [8]

   The offending took place on three separate occasions, and each occasion involved multiple offences. The three occasions are called Incidents 1, 2 and 3.

4. [9]

   In November 2000 the complainant’s parents and the applicant went to a friend’s 40th birthday party at a property near where they lived at the time. The complainant stayed at home, being minded by her brothers JL and ML.

5. [10]

   By the time the parents and the applicant arrived home, the children were in bed. The complainant was sleeping in a queen size waterbed with JL. The complainant heard her parents come home. She heard her parents go to their bedroom and then she heard someone come into the room where she was sleeping. She said it was the applicant because she could see him. She pretended to be asleep.

6. [11]

   The complainant said that the applicant lifted up her nightie, pulled down her pants and “started licking my wee and bottom”. The applicant said that JL was sleeping with her on the waterbed and she kept trying to wake him but he did not wake up. In the course of doing these acts, the applicant licked the complainant’s vagina on the inside and the outside (count 1). He also licked her anus, inserting his tongue into it (count 2). He also ran his finger up her vagina, gently spreading her legs apart and inserting his index finger (count 3). He then removed his index finger and inserted his thumb inside her vagina, moving it in and out (count 4).

7. [12]

   After the applicant had done these things he just left and went to the single bed in the same room to go to sleep.

8. [13]

   Subsequent to Incident 1, the complainant and her family moved to the property in Lake Albert. At that time the applicant was living with his friends, Tim and Mandy Francis, at a property in Balmoral Crescent on the opposite side of Lake Albert to where the complainant’s family lived.

9. [14]

   One weekend in early 2001, the complainant and her family visited the place where the applicant, Tim and Mandy lived for a barbeque. At the end of the night when her parents were due to leave, they decided to leave the complainant at Tim and Mandy’s place because she was asleep. She had gone to sleep in the applicant’s bed. The applicant got into bed with the complainant. She pretended to be asleep and heard him whisper her name. She did not respond, and the applicant pulled down her pyjama pants and her underwear and licked on the inside and outside of her vagina (count 5). He also licked the complainant’s anus but did not insert his tongue (count 8, indecent assault). He also inserted his index finger into her vagina and moved it in and out (count 6). He changed his hands into the “thumbs up” position and inserted his thumb into her vagina and moved it in and out (count 7).

10. [15]

    Sometime late in 2001, whilst the complainant and her family were still living at Lake Albert, the complainant’s parents together with the applicant and a friend of SL’s called Katrina Rath went to what is called a Star Party run by a local radio station. The complainant and the applicant were sleeping in the family home after that party on a foldout sofa. The complainant thought it was about dawn the following morning when the applicant was sitting up having a cigarette and the complainant was lying next to him. The complainant said that the applicant first licked the inside and outside of her vagina and inserted his finger into it, moving it in and out for a period of time (counts 9 and 10). The applicant then inserted his toe into her vagina (count 11). He thereafter inserted his finger into her anus and pushed it in and out for a period of time (count 12).

11. [16]

    After the applicant ceased this activity, and shortly thereafter, the complainant went into her mother’s room and told her what the applicant had done on each of the three occasions. SL’s evidence was that the complainant was crying and screaming, and it was SL’s inquiry about what was wrong that led the complainant to say “I just want Uncle [M] to stop. I want him to stop hurting me”. It was in that context that the complainant informed her mother what had happened.

12. [17]

    The police conducted a child interview with the complainant on 14 August 2001. At that time, it appears that the complainant’s parents did not wish to proceed with the matter, and it was only after the complainant reviewed her 2001 interview in 2020 or 2021 that the applicant was arrested and charged.

13. [18]

    At the trial, the complainant gave evidence and her JIRT interview was played. Her parents gave evidence, as did David and Julia Ham, in respect of the first incident.

14. [19]

    The applicant gave a late alibi notice in respect of the third incident. That led to the Crown calling Katrina Rath (now Katrina Job) with whom the applicant said he spent the night rather than being at the complainant’s home for the third incident. Katrina Job denied that the applicant spent the night of the third incident with her and denied, contrary to the applicant’s evidence, that they were ever sexually intimate.

15. [20]

    The applicant also gave evidence at the trial. He denied the charges. He asserted, contrary to the evidence of the complainant’s parents, that the complainant did not sleep the night at Tim and Mandy’s place at the time of the second incident. He gave evidence of staying the night of the Star Party at Katrina’s place and of having sex with her. He said that he had told his sister he believed the complainant was covering for her father in accusing him (the applicant).

Extension of time

1. [21]

   As noted earlier, the Notice of Intention to Appeal was filed more than 7 months out of time, that Notice expired, and, almost a year later, the Notice to Appeal was filed.

2. [22]

   The explanation for the delay is set out in a lengthy affidavit of the applicant’s solicitor, Eugene O’Sullivan.

3. [23]

   The position, in short, is that after the applicant was sentenced, he did not have access to funds to engage a solicitor or barrister to provide him with an opinion as to prospects of success for an appeal. When the family were able to get some money together they instructed Jacob Robertson, JDR Law in Canberra and the barrister who appeared at the trial for the applicant, Mr James Sabharwal, to provide an opinion.

4. [24]

   The applicant then engaged Boxall Legal in Canberra, and that firm filed a Notice of Intention to Appeal. It is not clear why the applicant ceased engaging Jacob Robertson and Mr Sabharwal. Mr O’Sullivan says that he has tried to contact Mr Robertson but the website of the firm indicates that he is on sabbatical for two years.

5. [25]

   After the filing of the Notice of Intention to Appeal, the appeal was not able to be prosecuted because the family was not able to raise the necessary funds.

6. [26]

   The applicant and his family then engaged Chapman Gray and Associates, Solicitors in Caboolture in Queensland to assist them with prosecuting the appeal and providing them with an opinion as to prospects of success. Although the firm did some work on the matter, the principal of the firm left for Thailand and did not return. The firm apparently went out of business and the principal solicitor is no longer a solicitor in Queensland.

7. [27]

   Eventually, the applicant had sufficient funds to engage Mr O’Sullivan and his firm and to brief the applicant’s present counsel, Mr Gabriel Wendler.

8. [28]

   Mr O’Sullivan says in his affidavit that he is unsure of whether any applications were made to Legal Aid.

9. [29]

   The Crown opposes an extension of time being given, principally because the prospects of success on the appeal do not warrant the grant of an extension, but also from a finality point of view from the perspective of the complainant and the community. The Crown says, with some justification, that the evidence about delay is unsatisfactory in a number of respects. It is difficult to understand, for example, why it cannot be ascertained what, if any, application was made to Legal Aid. Coupled with that, is the fact that the evidence about the lack of resources of the applicant and his family is exceedingly general, and no explanation is given about why JDR Law and Mr Sabharwal ceased to act in the matter when it is said that the family obtained some money to enable them to provide an opinion on prospects of success.

10. [30]

    Ordinarily, the question of whether an extension of time should be granted is bound up with the merits of the appeal. Whilst the principle of finality cannot be ignored, it would be an unusual case if some merit was shown in relation to the issues sought to be appealed for an extension to be refused, particularly if there is some explanation for the delay. It is clear that the delay in the present case cannot be laid entirely at the feet of the applicant. As the Crown accepts, the delays on the part of the lawyers acting in 2023 were regrettable. It is, nevertheless, necessary to deal with the grounds of appeal before reaching a final view on the question of an extension of time.

Grounds of appeal

1. [31]

   His Honour delivered judgment two days after the trial concluded with counsel’s addresses. His Honour first set out in some detail the evidence, principally the evidence of the complainant but interspersed with evidence of other witnesses and the applicant as the need arose when the facts were being recounted.

2. [32]

   The trial judge then relevantly said this in relation to the onus and burden of proof:

3. [33]

   The applicant pointed particularly to three passages in the reasons for judgment (italicised above) to submit that his Honour reversed the evidentiary and persuasive burdens of proof. The applicant directed attention to the trial judge’s use of the word “might” in the first italicised passage, “that I might be able to say”, to submit that, if that was the standard, the trial judge could be satisfied if proof beyond reasonable doubt might be possible. The applicant submitted that the standard of proof could never be satisfied simply by a finding that the complainant “might” have been telling the truth.

4. [34]

   In relation to the second italicised passage containing the rhetorical questions, the applicant submitted that there was an insinuation that, unless those questions were answered in favour of the applicant, the Crown would succeed.

5. [35]

   In relation to the third italicised passage, the applicant submitted that the judge could only be referring to the applicant putting forward something “rational” to cast doubt on the complainant’s credibility. Yet, the applicant had no obligation to put anything forward to disprove the Crown case.

6. [36]

   Those findings, the applicant submitted, led to a miscarriage of justice.

7. [37]

   It must first be borne in mind when considering both grounds of appeal that the judgment given by the trial judge was effectively an ex tempore judgment, as his Honour noted at the beginning of the judgment. The evidence concluded just before lunch on Wednesday 20 October 2021. Addresses followed after lunch, and the trial concluded later that afternoon. His Honour indicated that on the following day he had three other matters to deal with, and that he wanted to see a transcript of evidence given on that last day. It is clear from a reading of the judgment that it had not been prepared in advance by the trial judge. That is a matter of some significance when matters that are pointed to by the applicant are largely matters of expression. In any event, the judgment must be read as a whole (Hopgood v R [2019] NSWCCA 246 at [47]), and for that reason the whole of the portions of the judgment dealing with onus and burden of proof are set out above at [32].

8. [38]

   A reading of the judgment as a whole makes perfectly clear that his Honour was in no doubt, and said so, that the onus was on the Crown to prove the applicant’s guilt beyond reasonable doubt and, as his Honour said, the accused did not have to prove or disprove anything. The Judge referred to the fact that the applicant gave evidence but said that he did not have to do so, and that his giving evidence in no way shifted the burden of proof from the Crown having to prove the essential facts and ingredients of each offence, and that the applicant did not have to prove anything.

9. [39]

   Those particular remarks were made immediately before his Honour used the expression “to the extent that I might be able to say that I am satisfied of what she says beyond reasonable doubt”. In my opinion, his Honour was not saying that it was sufficient that he “might” come to a sense of satisfaction beyond reasonable doubt. What his Honour was saying, perhaps unfortunately expressed, was that he needed to examine the complainant’s evidence carefully and critically so that he would be able to reach the position of satisfaction beyond reasonable doubt. As the Crown put it, it refers to a contingent conclusion that might, subject to examination of the evidence, be able to be reached.

10. [40]

    Nor do I consider that the posing of the rhetorical questions insinuate, as the applicant submitted, that there was an onus on the applicant. Indeed, an examination of the questions asked show clearly that they were challenges to the Crown case and not to the position of the applicant. They were all matters raised by counsel for the applicant in his closing address. The trial judge was obliged to consider them.

11. [41]

    The first question (“Why would [MAR] risk assaulting the complainant in bed next to her brother who may have been a light sleeper?”) is the question one would ask of the Crown. It is another way of saying that the circumstances of the offending suggested that the offending was unlikely. Similarly, the question about why the complainant was not taken to the doctor at the time suggests that there was nothing serious that happened. The question about a lack of animus between the child and the accused, about which evidence was given by the applicant, must be a question effectively directed to the Crown to suggest that the lack of animus cast doubt on the complainant’s account.

12. [42]

    The asking of those questions by the trial judge appears to have been simply a way for the judge to challenge the Crown case until satisfactory answers could be given to those questions. The questions were, in effect, raising possibilities that need to be excluded.

13. [43]

    The third and final passage challenged must first be seen in the light of the very clear directions the trial judge gave himself about the onus and standard of proof. A jury is told that, after examining the evidence, if there is a reasonable possibility consistent with innocence, they must find an accused not guilty. All that the trial judge was doing in the passage commencing, “Nothing rational has been put before me” is undertaking that process. The judge was simply saying that there was no evidence of a reasonably possible explanation consistent with innocence. To construe that remark as a suggestion that the applicant had an onus to put something before the court would be to ignore what the judge had said a number of times earlier, that the onus was on the Crown and that the applicant did not have to prove anything.

14. [44]

    The applicant has identified these passages and seized upon them without reading the judgment as a whole and not having apparent regard to the fact that this was effectively an ex tempore judgment. I do not have any doubt from a reading of the whole of the judgment that the trial judge did not reverse either the evidentiary or the persuasive burdens of proof. His Honour clearly stated the correct principles and adhered to them.

15. [45]

    I would reject this ground of appeal.

16. [46]

    The applicant highlighted four areas where directions were not given or were said to be inadequate and where there was a failure to expose the reasoning process linking the relevant principles of law to the findings of fact. Those areas were the alibi evidence direction, the character evidence direction, the Markuleski direction, and the absence of a Liberato direction.

17. [47]

    The applicant drew attention to the provisions of s 133 of the Criminal Procedure Act 1986 (NSW) (“the CPA”) and to what was said in Fleming v R (1998) 197 CLR 250; [1998] HCA 68 and Barwick v R [2023] NSWCCA 139.

18. [48]

    Section 133 provides:

19. [49]

    In Fleming, the High Court set out some points of construction concerning ss 32 and 33 of the CPA (as it then was), and how they related to s 6(1) of the Criminal Appeal Act 1912 (NSW). The wording of s 33 is identical to the present wording of s 133. Relevantly for the present matter the Court said:

20. [50]

    In Barwick, Wright J (with whom Basten AJA and Button J agreed) said at [56]:

21. [51]

    In McDonald v R; Obeid v R; Obeid v R [2023} NSWCCA 250 this Court (Bathurst CJ, Basten AJA, Button J) said when discussing warnings about lies:

The alibi direction

1. [52]

   The trial judge said this in relation to the alibi evidence:

2. [53]

   The applicant submitted that the direction was both erroneous and inaccurate. He submitted that the trial judge’s finding concerning the alibi was a conclusion and the conclusion did not, within the meaning of s 133(2) of the CPA, explain the steps leading to the conclusion that the Crown had disproved the alibi evidence.

3. [54]

   The applicant submitted that the three steps which ought to have been followed, but were not, were these:

4. [55]

   The applicant submitted that his Honour considered the alibi evidence in terms of the Crown disproving it either as a possibility or a probability, whereas the cases speak in terms of the Crown removing or eliminating any reasonable possibility that the accused was not in or at the relevant place when the crime was committed.

Consideration

1. [56]

   In R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 this Court (Hunt AJA, Button and Hoeben JJ) said:

2. [57]

   There was no requirement for the sentencing judge to give himself the direction set out at [54] above. The correct alibi direction, which appears in the bench book, is taken from the judgment in Kanaan at [135]. In the present case the applicant did not call alibi evidence except for his own evidence that he was with Katrina Job. Ms Job gave evidence for the Crown to refute the applicant’s evidence.

3. [58]

   The trial judge, at the conclusion of considering Katrina Job’s evidence, said:

4. [59]

   In any event, in the passage where his Honour referred to “probability” his Honour clearly accepted Ms Job’s evidence.

5. [60]

   A reading of the judgment as a whole makes clear that the judge was aware, and directed himself, that where an alibi is put forward the burden of proving the accused’s guilt continues to rest on the Crown. That was why the judge said (taking the two passages together) that the Crown had eliminated any reasonable possibility that the alibi evidence was true.

6. [61]

   His Honour did not fail to give himself the appropriate direction and did not fail to explain how it was that the alibi evidence was rejected.

The character direction

1. [62]

   In his reasons for judgment the trial judge said this:

2. [63]

   The applicant submitted that what the trial judge said in relation to character was simply a formulaic recognition of the application of character without relating to the credibility of specific explanations. When the applicant’s counsel was asked how that was to be done, counsel submitted that the trial judge should have directed himself that the applicant had not committed any dishonesty offences, that the applicant had given evidence that he was family man, married with two or three children and that when he lived with the complainant’s mother they all got on well. Reference was made to what was said in Barwick in relation to character evidence.

3. [64]

   The position in Barwick was significantly different from the position of the applicant in the present case. Although the trial judge in Barwick said that the appellant gave his evidence in a forthright manner and did not have any issues with his memory about people, places, sequences and dates, she went on to say that having assessed him as a witness she did not accept parts of his evidence. However, she did not identify the parts that were not accepted anywhere in her judgment. She gave no specific reasons for not accepting the parts of his evidence, and the second limb of the good character direction was not expressly considered or mentioned in the face of “impressive and powerful” evidence of the appellant’s good character from 14 witnesses: see at [71], [82]-[84]. Further, her Honour said nothing about the credibility of the appellant when determining whether or not to accept or reject his evidence: see at [88].

4. [65]

   In FB v The Queen [2020] NSWCCA 137, Basten AJA said:

5. [66]

   In Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, Hayne J said at [157]:

6. [67]

   The applicant’s counsel, in his closing address said only this concerning the applicant’s character:

7. [68]

   The trial judge gave himself a character direction in accordance with that submission. His Honour was not under an obligation to give himself a direction as to how the evidence of good character was to be used, nor was he obliged to explain how he used it. Indeed, it is difficult to see how that could be done in a meaningful way. To record, as the applicant submitted, that he was a family man with children, and when he lived with the complainant’s mother the family got on well with him, says nothing more than that he was a person of good character.

Liberato direction

1. [69]

   The trial judge did not give himself a Liberato direction as formulated in De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12].

2. [70]

   The applicant submitted that his case was diametrically opposed to that of the complainant because he testified that there was never any sexual contact with the complainant. He also gave evidence in respect to counts 9-12 that he could not have committed those crimes because he was not present at the time and place they were alleged to have been committed.

3. [71]

   The applicant submitted that before his Honour reached the conclusion that the Crown case had been proved reasonable doubt because his Honour concluded that the complainant’s evidence was reliable, the trial judge was required to identify the Liberato reasoning process and reflect it on the face of his findings.

4. [72]

   The applicant submitted that there were controversies that fed into the question of whether the case had been proved reasonable doubt. The controversies were the applicant’s denial that the incidents took place, there was the alibi issue, there was the evidence that suggested someone else was responsible for what happened to the complainant, and there was evidence about whether Katrina Job was indeed the person relevant to the alibi.

5. [73]

   In Liberato v The Queen (1985) 159 CLR 507 Brennan J said at 515:

6. [74]

   In De Silva, the judgment of Kiefel CJ, Bell, Gageler and Gordon JJ said:

7. [75]

   It may be observed from what is said in De Silva that the occasions calling for a Liberato direction are those where there is a risk that the jury may wrongly reason that the evidence of the accused will only give rise to a reasonable doubt if the jury believes it to be truthful or that a preference for the evidence of the complainant is enough to establish guilt. The risk that is being spoken of there does not sit easily with a judge alone trial where the judge has correctly directed himself or herself on the onus of proof.

8. [76]

   In the portions of his Honour’s judgment set out above, it is clear that his Honour did not fall into the errors that are spoken of in De Silva, and it is clear that his Honour accepted, and stated, that it was for the Crown to prove its case and that his Honour needed to examine the complainant’s evidence carefully and critically to satisfy himself of what she says beyond reasonable doubt. There was no real dispute about the identity of Katrina because the applicant gave evidence that it was Katrina Rath (Katrina Job) with whom he spent the night after the Star Party. No issue was raised about her identity in the defence closing address. In any event, the trial judge accepted Ms Job’s evidence and determined that the Crown eliminated any possibility that the alibi facts could have occurred. In that regard, the Judge said that he did not accept the applicant’s evidence.

9. [77]

   It may be doubted if there was a serious controversy about who the offender was. Although counsel for the applicant put to the complainant that she was mistaken that it was the applicant in relation to the first incident, and although he put to the complainant’s mother that she thought the complainant may have been mistaken about the identity of the person, he accepted that he had no firm basis for putting to the complainant that the offender was her father. That was where the matter rested because nothing was said about that matter in the applicant’s closing address.

10. [78]

    Certainly, his Honour gave consideration to the issue of the identification of the offender, but his Honour was clearly of the view that the complainant’s evidence should be accepted for reasons his Honour gave, particularly because the applicant was known to the complainant and there was an age difference of some 10 years between the applicant and the complainant’s father.

11. [79]

    In the light of what the trial judge said in the course of his judgment, I do not consider that there was any risk that his Honour may have reached a guilty verdict simply because he found the applicant’s evidence unreliable or that he did so simply by preferring the complainant’s evidence. In the circumstances, a Liberato direction was not required to be given.

Markuleski direction

1. [80]

   The trial judge said:

2. [81]

   The applicant accepted that by saying that, his Honour gave himself the direction but submitted that even though it didn’t “activate”, that did not absolve the trial judge from going through the controversies and making findings that were referable to that direction. The applicant submitted that the trial judge should, in his reasons, have demonstrated that the direction was not applicable in the circumstances. That was said to be a requirement from s 133(2) of the CPA.

3. [82]

   The submission by the applicant’s counsel is difficult to understand. He accepts that the judge correctly gave himself a Markuleski direction but submitted that, although in the circumstances it had no application because the judge accepted the complainant’s evidence on all counts, somehow the judge should have included reasons that to the effect that he did not have to apply the Markuleski direction.

4. [83]

   In my opinion, nothing in s 133(2) or in Fleming or in Barwick requires a trial judge to adopt such a course.

5. [84]

   A standard form of the Markuleski direction is given to a jury as a hypothetical. They are ordinarily told:

6. [85]

   In my opinion, there was no error on the part of the trial judge in this regard.

Conclusion

1. [86]

   Although the applicant does not establish error in respect of either ground of appeal, that does not automatically mean that an extension of time should not be given to argue this appeal. The appeal raised a number of arguable points relating to the obligations of a trial judge in a judge alone trial to comply with s 133 of the Criminal Procedure Act. Further, as noted earlier, a lengthy part of the delay was caused by the Queensland solicitors without fault on the part of the applicant.

2. [87]

   Accordingly, I propose the following orders:

   1. (1)

      Extend time for the applicant to appeal to 23 September 2024.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

3. [88]

   N ADAMS J: I agree with the orders proposed by Davies J for the reasons provided by his Honour.

4. [89]

   YEHIA J: I have had the considerable advantage of reading the draft judgment of Davies J. I agree with the proposed orders and his Honour’s reasons.