Al-Sheikh v R

1. [1]

   THE COURT: The applicant, Lu-Ay Karim Al-Sheikh, was charged with two counts of aggravated sexual intercourse with a child aged between 10 and 14 years contrary to s 66C(2) of the Crimes Act 1900 (NSW) (being counts 1 and 2 on the Indictment), and eight counts of aggravated sexual intercourse with a child aged between 14 and 16 years contrary to s 66C(4) of that Act (being counts 3-10). The complainant, AZ, was the daughter of a woman, CW, with whom the applicant was in a relationship.

2. [2]

   Counts 1 to 9 related to sexual intercourse alleged to have occurred at AZ and CW’s home in Casula. Counts 1, 2, 4, 6, 7 and 9 involved penile-vaginal intercourse; Counts 3 and 5 involved penile-anal intercourse; and Count 8 involved fellatio. Count 10 related to penile-vaginal intercourse alleged to have occurred at the applicant’s home in Liverpool between 1 January 2019 and 31 December 2019, when AZ was 14 years of age. Each count involved circumstances of aggravation, namely, that AZ was under the applicant’s authority.

3. [3]

   The trial took place over 16 days between May and June 2023.

4. [4]

   Both AZ and the applicant gave evidence. AZ commenced her evidence on 31 May 2023. After some legal argument, her examination in chief continued on 1 June 2023. AZ was cross-examined on 5 June 2023 for most of that day. She was recalled and gave further evidence and was further cross-examined on 15 June 2023. The applicant, who gave his evidence via an interpreter, was examined in chief on 9 June 2023 and that examination continued on 14 June 2023. He was cross-examined on 15 June 2023 and was further cross-examined on 19 June 2023.

5. [5]

   The applicant was convicted of all ten counts after a jury trial in the District Court. He was sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 7 years 9 months. He does not seek to challenge his sentence.

6. [6]

   The applicant seeks leave to appeal his conviction on the following grounds:

7. [7]

   For the reasons outlined below, leave to appeal is refused with respect to ground 2(a) but is granted in relation to the other grounds. However, none of those grounds are made out and the appeal must be dismissed.

8. [8]

   In what follows we first give an overview of the background to the proceedings and the trial, before addressing each of the grounds in turn.

Background

1. [9]

   AZ was born in January 2005. Her father passed away in May 2016.

2. [10]

   In 2017, AZ’s mother, CW, entered an intimate relationship with the applicant.

3. [11]

   In 2017, AZ commenced year 7 at a local high school. The offending conduct was alleged to have occurred between 1 January 2017 and 26 May 2020. AZ was between 12 and 15 years of age during this period.

4. [12]

   On 8 June 2018, CW purchased a home in Casula (the Casula home), and moved into the house with her son and AZ. A games room in the house was completed in September 2018. This was of some significance because of AZ’s testimony that no aspect of her complaints in relation to the applicant happened to her before then.

5. [13]

   The applicant visited and would stay overnight at the Casula home, and sleep in CW’s bedroom.

6. [14]

   In 2019, AZ, CW and the applicant went on a trip to China. According to AZ’s interview with police on 11 August 2022 (see below at [28]), the applicant, while clothed, told AZ “I miss you” and rubbed his penis against her when they were alone together in a stairwell, doing so on more than one occasion (the China Incidents).

7. [15]

   From 5 July 2019 to 17 June 2020 and 5 July 2019 to 6 October 2019 respectively, the applicant and AZ were members of Snap Fitness Casula.

8. [16]

   On 14 May 2020, AZ corresponded with her friend, LF, on Instagram, stating that:

9. [17]

   On 15 May 2020, LF informed a friend about what AZ disclosed in the above Instagram correspondence. On 21 May 2020, LF informed his English school teacher about what AZ had disclosed in her Instagram correspondence of 14 May 2020 and, on 22 May 2020, the relieving principal of LF’s high school contacted the police. LF attended a different high school to AZ. The teacher’s Incident Report which became Exhibit 10 in the trial recorded LF advising the teacher (on the basis of what LF had been told) that “the mother's boyfriend constantly makes sexual comments and advances towards her … that about 2 years ago she was raped by her mother's boyfriend … she [AZ] continues to be subjected to abuse (physical, verbal).”

10. [18]

    Under cross-examination during the trial some three years later, LF agreed that at no stage did AZ tell him that the sexual assault that she had told him about by the applicant was on a continuing basis. There was some tension between this answer and the statement recorded in Exhibit 10 that LF told his teacher that “she [AZ] continues to be subjected to abuse (physical, verbal).”

11. [19]

    On 25 May 2020, police attended AZ’s high school to interview her, during which handwritten notes were taken. On the following day, police attended AZ’s school again and electronically interviewed her (the First JIRT Interview). During the First JIRT Interview, AZ provided the following evidence:

12. [20]

    Interpolating here, AZ was in year 7 during 2017 and year 8 during 2018. She was in year 10 during the First JIRT Interview.

13. [21]

    Prior to, but some time during the same week as the First JIRT Interview, AZ disclosed the offending to her friend, JL, via a call on “Discord. JL’s evidence was that AZ told her that there was abuse in general terms, but she was not told anything specific.

14. [22]

    On 17 July 2020, AZ was referred to a specialist paediatrician, Dr Anna Stachurska, who conducted a physical examination of AZ. The manner in which Dr Stachurska’s evidence was adduced is challenged in Ground 2. Dr Stachurska provided evidence that AZ informed her of sexual intercourse having had occurred between AZ and the applicant on multiple occasions:

15. [23]

    Another young woman who we will refer to as BT who was a friend of AZ, although not attending the same school, gave a statement to the police on 30 October 2021 and was examined by the Crown during the trial in relation to a conversation she had with AZ (although the timing of this conversation did not emerge from the evidence):

16. [24]

    Under cross-examination, immediately following this evidence, BT was asked:

17. [25]

    After a series of further questions, BT was then shown a piece of paper and asked to read it out:

18. [26]

    BT was then asked whether this piece of paper refreshed her memory as to what AZ had said to her, to which she replied in the affirmative. The following exchange then occurred:

19. [27]

    BT’s evidence was left in a somewhat ambiguous state – whether AZ had told her that she had been assaulted about 15 times and once two years ago, or only once, two years ago.

20. [28]

    On 11 August 2022, more than two years after the First JIRT Interview and shortly prior to when the trial was originally due to begin, AZ participated in a further interview with police (the Second JIRT Interview). The reason for doing so was that she recalled further details, having watched the First JIRT Interview. AZ provided the following evidence during that second interview, relating to the China Incidents, as referred to at [14] above:

21. [29]

    Although AZ said in this interview that the trip to China was in 2018, it was in fact between 5 April and 6 May 2019.

22. [30]

    AZ also made further allegations of sexual abuse in the Second JIRT Interview:

23. [31]

    On 23 August 2022, the Crown served a tendency notice on the applicant (the Tendency Notice), seeking to rely upon the entirety of both the First JIRT Interview and the Second JIRT Interview for the following tendency purposes, namely the tendencies:

24. [32]

    The Tendency Notice identified the following common features of the account given by AZ as being relied upon to prove the tendency:

25. [33]

    The trial commenced on 30 May 2023 and proceeded for 16 days, until 21 June 2023.

26. [34]

    As noted above, both AZ and the applicant gave evidence. AZ was challenged in cross-examination as to how she came to recall further incidents in the Second JIRT Interview and as to why she had not referred to them in the First JIRT Interview. Relevant cross-examination of AZ was as follows:

27. [35]

    Later in her cross-examination, she repeated this answer, saying “in between my two interviews I was under the assumption that the police would reach out to me and ask for more information that I would provide”.

28. [36]

    AZ was squarely challenged by defence counsel at trial as to her veracity, as the following extract from the cross-examination illustrates:

29. [37]

    Other witnesses at the trial included AZ’s mother, CW. Her evidence included that:

30. [38]

    EZ, AZ’s brother, also gave evidence that there were times when the applicant and AZ would be at the Casula house when he and his mother, CW, were not at home.

31. [39]

    The applicant gave evidence denying any sexual interaction with AZ and saying that he noticed some resentment from AZ and her brother as to his being in a relationship with their mother, CW. He said that he would not go into the house if CW was not there and would only go to the house “30 or 45 minutes” after she had arrived home. He denied ever staying at the Casula house over the period when CW was not there. He also denied ever going to the gym alone with AZ. Part of AZ’s evidence was that assaults at his Liverpool house occurred after they had been to the gym together.

32. [40]

    On 22 June 2023, in his summing up to the jury, the trial judge gave the following directions, consistent with s 293A of the Criminal Procedure Act 1986 (NSW):

33. [41]

    Following an adjournment, the trial judge continued his direction to the jury as follows:

Ground 1: Use of uncharged acts for a tendency purpose

1. [42]

   Ground 1 complains that the trial “miscarried as a result of the failure to warn the jury not to use evidence of uncharged acts for a tendency purpose where the evidence was not admitted for that purpose”. The uncharged acts in question were allegations by AZ that the applicant had sexually assaulted her many more times than had been charged, in the same period as that covered by the ten counts. Those allegations were made by AZ in the two JIRT Interviews and were reiterated in the course of oral evidence. Leaving aside the China Incidents, the uncharged conduct was said to have occurred both in AZ’s home in Casula and at the applicant’s house in Liverpool.

2. [43]

   There is no dispute that the trial judge did not warn the jury on the point. On the contrary, his Honour gave a tendency direction, as sought by the Crown, which explained the manner in which certain uncharged acts could be used for a tendency purpose. No complaint was made at the trial on behalf of the applicant about that direction, nor about the Crown having raised the issue in closing address. Although the ground is not quite stated in these terms, the applicant complained that the trial judge erred in giving a tendency direction which encompassed the uncharged acts occurring in Sydney. The applicant also argued that, conversely, the trial judge positively should have directed the jury not to use that evidence in that way (ie give an anti-tendency direction).

3. [44]

   The complaint is thus both about an act and an omission by the trial judge in his Honour’s summing-up. As shall be explained, wrapped up in this ground is an issue as to whether or not the evidence had been admitted for a tendency purpose, and what that means in practical terms when evidence is adduced without qualification or objection and then sought to be used for a tendency purpose in closing address.

4. [45]

   As no complaint was made below about the directions given (and not given), r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies, requiring leave of the Court to raise this ground. The Crown opposed a grant of such leave.

5. [46]

   The Crown’s Tendency Notice identified two tendencies sought to be proved: to have a particular state of mind, namely a sexual interest in AZ; and to act in a particular way, namely to engage in sexual acts with AZ. Certain common features were identified in the notice, the first of which was that the accused and AZ “engaged in sexual acts on at least nine occasions”. The “substance” of the tendency evidence sought to be adduced was that contained within the “[e]ntire recorded interview” of each of the two JIRT Interviews of AZ. It was said that particulars of the date, time, place and circumstances of the conduct were contained within those interviews.

6. [47]

   The Tendency Notice was not as clearly drafted as it could have been. It did not state in express terms that the uncharged acts referred to in the two interviews were being relied upon. As the applicant argued, the reference to “at least nine occasions” could have been understood to focus on the charged acts, although the words “at least” are consistent with a broader focus. Given the notice did indicate that the entirety of the two JIRT Interviews was being relied upon, overall the notice would reasonably be understood to indicate that the Crown was planning to rely on all relevant allegations contained within those interviews, including as to uncharged acts.

7. [48]

   The Crown opened its case on 31 May 2023. That day, in the absence of the jury, the Crown Prosecutor handed up to the trial judge a transcript of the Second JIRT Interview with some passages highlighted, relating to the China Incidents. The Crown Prosecutor indicated that the “issue for determination” in due course was whether that evidence was admissible, it being relied upon in the tendency notice and “in a broader sense as context evidence”.

8. [49]

   The Court returned to the issue the next day. Junior counsel for the applicant handed up some written submissions in which it was said that the “acts relied upon by the prosecution concern events said to have occurred in China in 2018”. It was that evidence which was the focus of the oral argument. The trial judge then gave ex tempore reasons for judgment. The issue for decision that his Honour identified was “an application made on behalf of the accused seeking a ruling precluding the Crown leading evidence of events” alleged to have taken place on the trip to China. His Honour rejected that application. In so doing he noted that “it is apparently conceded by defence that it is open to the Crown to rely on tendency reasoning as between the respective counts on the indictment”.

9. [50]

   The trial judge ended his reasons as follows:

10. [51]

    His Honour was ruling on the material in relation to the China Incidents, which the applicant objected to being used for a tendency purpose. He was not ruling on anything else. He did not rule on the cross-admissibility of the evidence going to the different counts; he simply noted that the applicant “apparently conceded” on that usage. The issue of the other uncharged acts referred to in the two JIRT Interviews, occurring in Sydney, was not addressed in argument or in the judgment.

11. [52]

    In the First JIRT Interview AZ was asked “did it happen [on] more than two occasions?”, to which she answered “countless”. Later she was asked “how many times do you think it may have happened”, and said “past 10 probably”, then said: “I don’t know how many times. Probably once a week, or sometimes no times a week, I don’t know”.

12. [53]

    AZ’s Second JIRT Interview occurred a bit over two years after the first. Towards the end of the second interview she was asked if there was anything else from the first interview that she wanted to change. Part of the exchange that followed was this:

13. [54]

    Earlier in the interview she was asked about encounters at the applicant’s house in Liverpool. The net effect of her answers was that there were sexual encounters “whenever we went to the gym”, which was “once or twice a week” in a period in 2019, prior to the gym being closed because of COVID-19 lockdowns (which occurred in 2020).

14. [55]

    In cross-examination of AZ she was asked, amongst other things, about telling police in the second interview that sex had occurred at the Liverpool house once or twice a week, being challenged on the fact that she only recalled this in her second interview. This exchange occurred:

15. [56]

    It should be noted that in this exchange the “up to 50” number was suggested by senior counsel for the applicant, and that this was done by reference to the Second JIRT Interview. In substance the applicant’s evidence did not go beyond what she had said in that interview.

16. [57]

    The case for the applicant closed on the morning of 19 June 2023 and there was no case in reply. Immediately thereafter, in the absence of the jury, the parties and the trial judge addressed some issues with respect to the proposed directions to be given by his Honour in closing. The trial judge said this:

17. [58]

    There was then some discussion about s 161A of the Criminal Procedure Act (which relates to juries not generally being directed that tendency or coincidence evidence must be proved beyond reasonable doubt). There was then the following exchange:

18. [59]

    The Crown thus made clear that it was relying on the uncharged acts occurring in Sydney, as referred to in the recorded interviews, as tendency evidence. It relied on the terms of the Tendency Notice in that regard. There was some subsequent discussion about the Crown relying on the uncharged acts as both tendency and context evidence.

19. [60]

    Importantly, when the Crown made its position clear as regards employing the uncharged Sydney acts as tendency evidence, counsel for the applicant did not suggest that doing so was outside the Tendency Notice, or argue that it could not be done because it had not been ruled upon. Nor was any other protest made.

20. [61]

    In his closing address the Crown Prosecutor referred to “the evidence of other uncharged acts, both [at] Casula, Liverpool and China” as part of a tendency argument. Senior counsel for the applicant referred to the claimed number of uncharged acts which had been identified in the Second JIRT Interview, but which had not been identified in the first, in order to attack AZ’s account.

21. [62]

    The trial judge, in his summing up, gave long and careful tendency directions. They related to “the ten counts on the indictment, the other acts of penile-vaginal and penile-oral sexual intercourse that are alleged to have taken place at other times than the ten counts, and the act or acts … in China”.

22. [63]

    The applicant made no attack on the trial judge’s tendency directions per se, save insofar as they referred to the uncharged acts which occurred in Sydney. No attack was made on his Honour identifying the potential for tendency reasoning as between the ten counts, nor with regard to the conduct occurring in China. Furthermore, the applicant’s counsel indicated in her oral submissions in reply that “we don’t complain about the admission of the evidence”.

23. [64]

    The applicant’s core complaint was that his Honour did not actually rule on whether the Sydney uncharged acts should be admitted for a tendency purpose. In this context the applicant said that his Honour should not have identified the potential for tendency reasoning with respect to the uncharged acts occurring in Sydney; and said, conversely, that his Honour should have given an anti-tendency direction.

24. [65]

    The complaint is made even though senior and junior counsel appearing for the applicant at trial made no protest about the Crown Prosecutor’s submissions on tendency, nor with respect to the trial judge’s summing up, even though they had ample opportunity to do so. In that context, and in light of r 4.15, the applicant needs leave to raise this ground. This ground was argued as a miscarriage of justice under the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), rather than as a wrong decision on a question of law. That was so given that the applicant’s complaint was not about any ruling made as to the admissibility of the evidence but rather as to directions given and not given, in circumstances where no contrary directions had been sought.

25. [66]

    The applicant argued that evidence is not admissible for a tendency purpose unless and until the court in question has positively made a ruling permitting that to occur. Here, leaving aside the evidence of the China Incidents, the “evidence was deployed as tendency with no judicial consideration of s 97 and s 97A or 101 Evidence Act”, and that was not permissible. It was said that it is not sufficient that no objection is taken to that course following service of a tendency notice:

26. [67]

    It was argued that, in any event, the Tendency Notice did not identify that the Sydney uncharged acts were being relied upon. Further, the evidence of uncharged acts elicited in cross-examination could not be used for a tendency purpose because it had not been elicited by the cross-examiner for that purpose and, given the definition of tendency evidence (see below at [71]), it was the cross-examiner’s purpose which was determinative.

27. [68]

    As the oral argument developed it was argued that if the issue had been addressed below then the correct conclusion would have been that the Sydney uncharged acts evidence was not admissible for a tendency purpose taking account of ss 97, 97A and 101 of the Evidence Act 1995 (NSW). It was said in that regard that AZ’s evidence on how many occasions the uncharged intercourse had taken place was inconsistent. The applicant’s counsel also seemed to argue that the Crown had failed to challenge him in cross-examination on the various versions of the applicant’s evidence.

28. [69]

    The applicant argued that there was a likelihood that the jury used the evidence in question as tending to prove the offences charged such that there was a miscarriage of justice. The miscarriage was said to be fundamental such that the operation of the proviso would be displaced (although in fact the Crown did not seek to invoke the proviso).

29. [70]

    Section 97(1) of the Evidence Act provides:

30. [71]

    In the Dictionary in the Act tendency evidence is defined to mean “evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection”. The required content of a tendency notice is addressed in cl 5 of the Evidence Regulation 2020 (NSW). Section 97A is relevant to making the assessment required by s 97(1)(b) with respect to child sexual offences. Section 101(2) of the Evidence Act provides that tendency evidence about a defendant “that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”.

31. [72]

    Section 97(1) is expressed in terms of evidence being “not admissible”. But the restriction is as to such evidence being admitted for a particular purpose or use, namely to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind. It does not prevent evidence which might be relevant to establishing such a tendency from being admitted per se. In this respect s 97(1) is similar to a number of other provisions in the Evidence Act. For example, the opinion rule in s 76(1) of the Act provides that evidence “of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. Evidence of an opinion might be admitted for a range of other reasons. Thus six members of the High Court said the following in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21:

32. [73]

    As noted, the applicant did not contend that evidence of the uncharged acts in issue here was inadmissible, seemingly accepting that it could have been adduced as (at least) context evidence. The subject of complaint is the directions given and not given by the trial judge.

33. [74]

    A party seeking to rely on evidence for a tendency purpose is required to foreshadow that usage by provision of a tendency notice. However, the court can dispense with the requirement for such a notice pursuant to s 100. Sometimes a case will evolve such that a tendency notice does not encompass all of the evidence sought to be relied upon for a tendency purpose: see eg DP v R [2025] NSWCCA 45 at [65]-[66]. In DP this Court when on to say the following about the desirability of the Crown being clear about its position:

34. [75]

    These statements about desirable practice and fairness implicitly recognise the potential for evolution in the use the Crown seeks to make of certain evidence over the course of a hearing. That is not surprising. A trial is a dynamic process.

35. [76]

    There is a long line of authority in this Court and in the Court of Appeal of this State holding that the words “not admissible” when used in the Evidence Act should generally be understood to mean “not admissible over objection”. That authority goes back to the turn of the century: R v Reid [1999] NSWCCA 258 at [5] (concerning a cognate provision in the Crimes Act); Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [149].

36. [77]

    When that line of authority was drawn to the attention of counsel for the applicant, a half-hearted criticism was made that it had not grappled with the significance of s 190 of the Evidence Act, which provides for waiver of the rules of evidence. Yet the applicant did not assert that there was compelling reason to overturn that line of authority (to use the phrase which is preferable to “plainly wrong” – see Moriarty v Nye (2024) 114 NSWLR 560; [2024] NSWCCA 116 at [156]; Lendlease Corp Ltd v Pallas [2025] HCA 19; (2025) 99 ALJR 834 at [109]). In Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121, at [199], the Victorian Court of Appeal suggested that criticisms of the construction adopted in those cases appeared to have some force, but indicated that it did not need to determine the issue. Subsequently, in Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89, at [261]-[270], this Court again considered the issue, including by reference to s 190 and Velkoski, and concluded that not only was the conclusion reached in the earlier cases not “plainly wrong” but it was in fact correct. The Full Court of the Federal Court similarly has followed the position set out in Reid and Seltsam: see Roberts-Smith v Fairfax Media Publications Pty Ltd (Appeal) (2025) 310 FCR 170; [2025] FCAFC 67 at [876], and authority there cited; see also Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 at [20], [53]. In this context there is no reason not to adopt the same construction here with respect to s 97(1) of the Act (see similarly New v R [2025] NSWCCA 32 at [198]).

37. [78]

    The applicant sought to distinguish Perish and the preceding line of cases on the basis that he did not in fact object to the admissibility of the evidence but rather criticised its subsequent use and the directions given and not given. No doubt that describes the focus of the applicant’s attack. But the applicant made a related argument that evidence cannot be deployed for a tendency purpose unless and until there has been a judicial determination of the issues raised in ss 97, 97A and 101 of the Evidence Act. He also argued that the purpose of the counsel or party adducing the evidence was determinative.

38. [79]

    These arguments take too narrow a view of the issue. True it is that tendency evidence is defined to mean “evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection” (emphasis added). Yet it is formalistic to argue that evidence that emerges in cross-examination, against the interests of the party engaging in the cross-examination, cannot be admitted because the questioner may not have been seeking to adduce answers which might be used for a tendency purpose. If the applicant’s argument was accepted then it would be necessary for the other side to seek to ask the same questions again in re-examination in the hope of obtaining the same answers but this time with a subjective intent of using any such answers for a tendency purpose. It is unlikely that the drafters of the Act intended to require that such a pointless exercise be undertaken.

39. [80]

    As explained, the tendency rule is one going to the purpose or use to which evidence is put. Just as for the opinion rule, discussed in Dasreef (see above at [72]), it directs attention to the finding which the tendering party will ask the tribunal of fact to make. The reference to a party adducing evidence in s 97 is best understood as identifying the party seeking to use evidence for a tendency purpose, even if that party had not originally adduced the evidence. If no objection is taken to that proposed use then, consistently with the line of authority discussed, it may be so used by the tribunal of fact without the necessity for the court to determine the issues raised by ss 97, 97A (if applicable) and 101. That is not to suggest that a court would err if it considered the application of those sections in any event, having provided procedural fairness. If a tendency use is objected to then whether or not such a use is permissible will depend upon application of the criteria in those sections. The objection might be taken prior to the evidence being admitted at all. Or it might be taken only at the point where it first becomes apparent that the other party seeks to employ evidence for a tendency purpose which has already been admitted.

40. [81]

    This Court said in Perish that “nothing we have said relieves the trial judge from his or her overriding obligation to ensure a fair trial according to law” (at [272]). That point might arise if there was a manifest or obvious danger of an unfair trial in the circumstances: note Poniris v R [2014] NSWCCA 100 at [49]. However, courts should be wary of second-guessing decisions made by counsel not to raise issues: note Dhanhoa at [20]; R v FDP (2008) 74 NSWLR 645; [2008] NSWCCA 317 at [28]-[29]. If objection has not been taken to evidence being used in a criminal trial for a tendency purpose then it is open to the accused, on appeal, to argue that counsel erred in taking that course in such a manner and degree as to occasion a miscarriage of justice.

41. [82]

    In the end the applicant’s complaint here boils down to that type of argument. We have already rejected the argument that the Tendency Notice did not identify that the Sydney uncharged acts were being relied upon (see above at [47]). We also do not accept the suggestion that AZ’s answers given in cross-examination went materially beyond her earlier evidence (note above at [56]). But even if those criticisms had been made good, the intention of the Crown to employ the evidence of the uncharged Sydney acts for a tendency purpose was made clear by the Crown Prosecutor prior to him commencing his closing address. That course was not objected to at that time or subsequently by senior and junior counsel then appearing for the applicant. The tendency directions subsequently given by the trial judge, and the omission of an anti-tendency direction, flowed from the position taken by the parties. There was no overriding obligation on the trial judge in this matter to raise whether the Sydney uncharged acts could or should be used for a tendency purpose in that context. There was no manifest danger of an unfair trial in relation to the issue. The question becomes whether the failure by counsel to object to the proposed course occasioned a miscarriage of justice.

42. [83]

    The applicant’s counsel accepted for the purposes of Ground 3 that in general a party is bound by the conduct of their legal representatives. The same point applies with respect to Ground 1. It is not necessary in this case to review in any detail the authorities relating to claims of a miscarriage of justice occasioned by the conduct of counsel. It is sufficient for current purposes to refer to the following summary by Hoeben CJ at CL, Leeming JA and Beech-Jones J in Matthews v R [2013] NSWCCA 187:

43. [84]

    As the Crown noted, the evidence in question was admissible and could be used for a context purpose, and may also have been relevant as an answer to the good character case that was being run by the applicant. As the Crown suggested, counsel for the applicant could rationally and reasonably have considered that it was in the interests of the applicant not to have those other uses emphasised by the trial judge by focusing in on how the evidence could and could not be used (note similarly DP at [56]-[57]). That suffices to reject the applicant’s complaint.

44. [85]

    In any case, we consider that the evidence of the Sydney uncharged acts was properly admissible as tendency evidence, such that there was no possible miscarriage in the trial judge directing that it could be used for a tendency purpose. It was not in dispute that pursuant to s 97A there was a presumption that the evidence would have significant probative value. The argument made below with respect to the evidence of the China Incidents sought nevertheless to exclude that evidence on the basis that the conduct in question – the applicant rubbing his penis against AZ’s bottom whilst in a stairwell – was “of a markedly different nature” to the sexual intercourse the subject of the charges. The fact that the conduct occurred overseas was also said to be a differentiating factor. The trial judge rejected those arguments and that conclusion has not been challenged.

45. [86]

    In this Court counsel for the applicant said that “what is not excluded by s 97A(5) is the inconsistency in the allegation, the improbability in an allegation, the generality of the evidence”. She submitted that AZ’s evidence about the Sydney uncharged acts was too inconsistent to have significant probative value:

46. [87]

    The argument is unpersuasive. As noted above, in the first recorded interview AZ said that sexual molestation had occurred “countless times”. The variations of expression used by her subsequently did not undermine her core allegation that there had been repeated, regular sexual intercourse, but she did not remember precisely how often. It is not surprising that a complainant might employ some variations of expression in that regard. That is especially so when it is understood that she was aged 15 when giving the First JIRT Interview, aged 17 when undertaking the Second JIRT Interview, and aged 18 when testifying in court (and see further the discussion below at [179]-[188]).

47. [88]

    The evidence of the Sydney uncharged acts had significant probative value for the purposes of s 97 of the Evidence Act, taking account of s 97A. And that probative value outweighed the danger of any unfair prejudice to the applicant for the purposes of s 101 of the Act.

48. [89]

    As for the applicant’s criticism that the Crown did not sufficiently challenge him in cross-examination on the claimed tendencies, the argument was undeveloped and has no obvious merit. The Crown Prosecutor put to the applicant that the Sydney uncharged acts had occurred. The applicant denied that they had occurred. Whether or not they did, and what significance if any that had for tendency purposes, was then a matter for the jury.

49. [90]

    Leave to appeal should be granted with respect to Ground 1 given that it raised issues of principle. But the ground is not made out.

Ground 2: The admission of expert medical evidence and the attempt to rely on further medical evidence

1. [91]

   Ground 2(a) is about some evidence given in the trial by Dr Anna Stachurska, who had examined AZ 3 or 4 months after the last alleged incident of sexual intercourse. Her evidence was adduced without objection from trial counsel for the applicant, from a report which had been served on the applicant’s legal representatives.

2. [92]

   The essence of the applicant’s submission is that a miscarriage occurred because Dr Stachurska’s evidence in the trial supported AZ’s account, contrary to the way in which the Crown had opened its case. Counsel for the applicant submitted that the Crown Prosecutor cross-examined the doctor and thereby elicited evidence damaging to the applicant, which was wrongly admitted and enlarged the Crown case beyond that which the Crown had told the jury it would prove.

3. [93]

   In the opening address to the jury the Crown Prosecutor said that AZ was examined by a paediatrician some months after the last act of sexual activity. He read to the jury the doctor’s conclusion, which ended: “Normal physical findings neither confirm nor deny the history”.

4. [94]

   Dr Stachurska gave the following evidence. She had prepared a report in relation to her examination of AZ. She examined AZ on 17 July 2020 and understood that that was some 3 to 4 months after the last alleged assault between March and April 2020. AZ gave a history which included penile-vaginal penetration, which once or twice had caused bleeding for a day, and penile-anal penetration, which on one occasion had caused anal bleeding and pain. The doctor conducted a genital examination of AZ. She observed that AZ had notches or indentations up to 50% of the depth of her hymen, at “3 o’clock, 6 o’clock and 9 o’clock” which the doctor considered a “normal variation in the appearance of the hymen”. The doctor said that from the description AZ gave of genital bleeding it was probable she had some acute genital injury at the time, but such injuries would heal quickly and do not leave permanent changes that can be visible weeks or months after the incidents. The impugned question by the Crown and Dr Stachurska’s answer was:

5. [95]

   The doctor then confirmed that in her report she had said AZ’s “anogenital examination was within normal limits” and “normal physical findings neither confirm nor deny the history given by [AZ]”. The last question asked in her evidence in chief was “Your findings were neutral”, to which she answered “Yes”.

6. [96]

   In cross-examination the doctor gave evidence that acute partial lacerations of the hymen may heal and:

7. [97]

   Dr Stachurska also provided evidence that, if someone is having regular sexual intercourse there may or may not be damage to the hymen or notches:

8. [98]

   In the Crown’s closing address, the Crown Prosecutor said:

9. [99]

   In his closing address then senior counsel for the applicant said:

10. [100]

    In his summing up the trial judge told the jury that the Crown relied on the complaint by AZ to Dr Stachurska.

11. [101]

    Later in his summing up the trial judge addressed the jury about Dr Stachurska as an expert witness. His Honour gave a general expert witness direction in similar terms to the Criminal Trial Courts Bench Book direction. His Honour then said:

12. [102]

    The applicant submitted that the evidence adduced from the doctor by cross-examination by the Crown Prosecutor did establish that the genital bleeding described by AZ likely gave rise to the partial laceration which was depicted in the notches which the expert observed on examination of AZ. Counsel submitted that this evidence was not neutral; it supported AZ’s account in that her evidence of injury to her vagina was supported by the physical presentation of her hymen when she was examined in 2020.

13. [103]

    Counsel submitted that the jury were given the transcript of the doctor’s evidence and the trial judge directed the jury that the expert witness was called to assist them, thus giving rise to a risk that the jury would use that piece of evidence in corroboration of AZ’s account. The applicant relied on the observations of the Court (Spigelman CJ, Wood CJ at CL and Kirby J) in R v RTB [2002] NSWCCA 104 at [24]:

14. [104]

    The applicant submitted that the doctor’s evidence in the challenged question and answer supported AZ’s account of her bleeding and the jury was not directed that the evidence was not admissible to support AZ’s account or credibility.

15. [105]

    The applicant submitted that where it is established that evidence has been wrongfully admitted, a conviction will be quashed unless the Court holds that the evidence so admitted cannot reasonably be said to have affected the minds of the jury in arriving at their verdict and that they would almost inevitably have arrived at the same verdict if the evidence had not been admitted, relying on Maric v The Queen (1978) 52 ALJR 631 at 635. The High Court confirmed recently in Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 at [3] that:

16. [106]

    The applicant submitted the Court should be so satisfied, given that the doctor’s evidence was “conspicuous evidence of potential corroboration of sexual misconduct” by the applicant.

17. [107]

    Both the applicant and the Crown referred to cases in which the Court considered the use of the term “neutral” to describe medical evidence, such as Adams v R [2018] NSWCCA 303 and KE v The Queen [2021] NSWCCA 119, especially per N Adams J at [111]–[122]. However, the applicant’s complaint was that the impugned question and answer were not neutral but bolstered the Crown case.

18. [108]

    The Crown submitted that the assessment of whether there was a miscarriage of justice should be made on the whole of Dr Stachurska’s evidence, not isolating the one question and answer, and on the whole of the trial record.

19. [109]

    The Crown submitted that Dr Stachurska’s evidence did not impermissibly bolster AZ’s credit or her account of bleeding, because the doctor said the presence of notches was neutral when observed months after an alleged injury, because a laceration may be one explanation for an observed notch, but notches are also observed in other circumstances. The Crown submitted that the effect of the whole of Dr Stachurska’s evidence was that the physical examination of AZ did not tend to prove or disprove her allegations, because the observed notches could be consistent with a partial laceration of the hymen but could also be caused in other ways, and in the absence of an observation of an acute injury it was not possible to conclude that a laceration was the cause of any notch.

20. [110]

    The Crown relied on senior counsel appearing for the applicant in the trial not having applied to exclude the evidence or sought any redirection after the judge summed up to the jury about this evidence, as an indication that no miscarriage of justice occurred.

21. [111]

    The impugned question and answer on its own is capable of giving rise to some concern, but the question and answer cannot be looked at in isolation. It must be seen in the context of all the doctor’s evidence, particularly the cross-examination of the doctor, which effectively dealt with and neutralised the perceived concern now raised on behalf of the applicant about the question and answer. The effect of the doctor’s evidence by the end of her cross-examination, as set out above in [96], did not provide support for AZ’s allegations; it was neutral.

22. [112]

    When regard is had to the whole of the doctor’s evidence and to the other evidence admitted in the trial, the addresses of the Crown Prosecutor and counsel for the applicant and the trial judge’s direction in respect of this evidence, the Court is not satisfied that the impugned question and answer could realistically have affected the reasoning of the jury to its verdicts.

23. [113]

    Furthermore, it is significant that no objection was taken by counsel appearing for the applicant to the evidence that was adduced, nor was any concern subsequently raised either about that evidence or as to the relevant parts of the closing submissions of the Crown and the summing-up by the trial judge. Rule 4.15 applies, requiring leave of the Court to raise this ground. The requirements of the rule do “not constitute some mere technicality which may simply be brushed aside”: R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]. The absence of objection to directions can be taken into account as an indication that there was no injustice to the accused in the atmosphere of the trial: ARS v R [2011] NSWCCA 266 at [148]; Beattie v R [2021] NSWCCA 291 at [23]; GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 at [25]. The discretion to grant leave will be exercised in the applicant’s favour where there has been a miscarriage of justice such that they have lost a real chance of acquittal: ARS v R at [147]-[148]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24].

24. [114]

    Here, the absence of objection tends to confirm our conclusion that the material in question did not cause any material prejudice to the applicant, let alone being of such significance as to lose a real chance of acquittal. Leave to raise this ground should be refused.

25. [115]

    In support of Ground 2(b) the applicant tendered in the appeal a report by Dr Michael O’Connor, dated 17 November 2024. The Crown objected to Dr O’Connor’s evidence and cross-examined him in the appeal hearing, including as to his professional experience, the factual assumptions underlying his opinions in his report, and his opinions.

26. [116]

    The applicant sought to rely on the opinion of Dr O’Connor that if the hypothesis was correct that the notches observed in AZ’s hymen were caused by the injury she described, and she was repeatedly sexually assaulted, it would be expected there would be further injuries resulting from repeated penetrative sexual activity (at pages 6 and 7 of his report).

27. [117]

    One of the facts assumed by Dr O’Connor was that AZ had been sexually assaulted 730 times, that is daily over a 2-year period.

28. [118]

    The Crown challenged the admissibility of Dr O’Connor’s evidence on three bases:

29. [119]

    In his evidence in the appeal hearing Dr O’Connor said the following. He has practised in gynaecology for 45 years or more. His experience of forensic examinations of children complaining of sexual abuse last occurred in the 1970s when he was “doing paediatrics”. He agreed that since the 1970s there has been a degree of development in the understanding of the way that the hymen may or may not present following an allegation of sexual penetration of a child. He agreed that it is accepted that on examination of an adolescent hymen any notch or cleft at 3 and 9 o’clock is a normal variation. He agreed that in a post-pubertal child penetrative sexual activity may occur without any tearing or laceration of the hymen and may not leave any permanent abnormality or marker on the hymen.

30. [120]

    He said his opinion in his report that the presentation of AZ’s hymen gave rise to a doubt about the allegations of sexual activity was because the assumed fact he was given was that the number of alleged sexual penetrations was extremely high. He agreed the number he was given was in excess of 700. He said his opinion was founded not on precisely 700 acts but “certainly a very large number”. Dr O’Connor was not asked during cross-examination “about how much lower the assumed number within the period” would have to be in order to change his opinion. He agreed his opinion may be different if that were not established to be the case “but it would need to be a very different number”. He said the hymen is capable of being injured. He accepted that many injuries to the hymen heal within days, and an examination months or years after alleged incidents will quite possibly yield no evidence of whether those incidents did or did not occur. He agreed there are a number of causes of notches other than sexual trauma. He agreed it would be possible to have multiple episodes of sexual intercourse in a post-pubertal adolescent without findings being visible on an examination that occurred months or years later.

31. [121]

    He said the theory and experience is that only notches which reached the base of the hymen are accepted as being indicative or suggestive of sexual penetration. In terms of repeated sexual penetration he said there is a basic principle that the more trauma that a tissue is subjected to the greater risk that that trauma will leave more permanent injuries.

32. [122]

    He agreed that it was a possibility that the genital bleeding which AZ described may have given rise to (seemingly meaning that it may have manifested) a partial laceration, leaving a notch, and where there was similar laceration of the hymen most likely there will be further injuries and further notches.

33. [123]

    The Crown tendered in the appeal a further report of Dr Stachurska dated 13 June 2025 in which she critiqued Dr O’Connor’s report.

34. [124]

    Counsel for the applicant submitted that:

35. [125]

    What Dr Stachurska said at line 140 of her report of 13 June 2025 was:

36. [126]

    In written submissions counsel for the applicant accepted that Dr O’Connor’s evidence could have been adduced at trial, but submitted, relying on the statements of Barwick CJ in Ratten, that great latitude must be extended to an applicant in determining what evidence, by reasonable diligence, could have been available at his trial. In oral submissions counsel submitted that Dr O’Connor’s evidence was fresh evidence, because the problem arose during the course of the trial by the Crown enlarging its case in questioning of Dr Stachurska, and due diligence of counsel could do nothing in those circumstances.

37. [127]

    Counsel for the applicant submitted that the Crown adduced very damaging evidence that “the presentation of the hymen was consistent with the injuries sustained by counts 1 and 2 and the presentation of the hymen was to be expected given the history she provided”. In our view, this is not an accurate summary of Dr Stachurska’s evidence.

38. [128]

    Counsel submitted that “if the jury had evidence before them that the presentation of the hymen did not likely support repeated penetrative intercourse over months or years, this was evidence which raised at the very least a doubt as to the tendency evidence”.

39. [129]

    The Crown submitted that the evidence of Dr O’Connor does not have the quality or capacity to satisfy this Court that the applicant was innocent or his guilt was not established beyond reasonable doubt. The Crown submitted that the applicant did not advance such an argument, but rather had argued that Dr O’Connor’s evidence raised a doubt as to the tendency evidence.

40. [130]

    The Crown submitted that Dr O’Connor’s opinion about the examination of AZ, who was then aged 15, is not admissible pursuant to s 79(1) of the Evidence Act, as it was not based on his experience as a gynaecologist treating adult women.

41. [131]

    The Crown submitted that the factual assumptions on which Dr O’Connor’s opinions were grounded, being that the notches observed by Dr Stachurska were caused by the genital bleeding reported by AZ and that she had experienced over 700 sexual penetrations, were not borne out by the evidence in the trial.

42. [132]

    The Crown also submitted that Dr O’Connor’s evidence is in any event not admissible in the appeal because it is new evidence and the applicant has failed to demonstrate that its absence at his trial occasioned a miscarriage of justice. The Crown submitted that Dr O’Connor’s evidence would not lead this Court to conclude that the applicant was innocent or that his guilt was not established beyond reasonable doubt. The Crown submitted that, putting aside issues of expertise, the evidence of Dr O’Connor was that it was possible for intercourse to occur without injury to the hymen, that it was possible a forensic examination months after intercourse would not be able to prove or disprove that repeated sexual intercourse occurred or did not, and that there were a number of causes of notches in the hymen other than sexual trauma.

43. [133]

    In Ratten, which has been adopted and confirmed in many decisions of this Court (most recently in Adanguidi v R [2024] NSWCCA 82 at [9]-[13] and Lawavou v R [2025] NSWCCA 35 at [110]ff), Barwick CJ summarised the position with respect to further evidence adduced in criminal appeals in respect of convictions as follows (at 520):

44. [134]

    The evidence of Dr O’Connor was new, not fresh, evidence. New evidence is that which the accused chose not to call or which the accused “could reasonably have been expected to have become aware [of] and which he could have been able to produce at the trial” (Ratten at 517). Barwick CJ said that “[g]reat latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial” (at 517). Even allowing such latitude, there is no reason why such evidence could not have been obtained at trial if the point had been seen as significant in the context of the trial. As discussed below with respect to Ground 3, the legal representatives for the applicant seem to have been reasonably assiduous in considering the need for expert evidence with respect to that issue. There is no reason to think that they could or would not have been similarly diligent if the evidence of Dr Stachurska had been regarded as significant. As outlined above with respect to Ground 2(a), the evidence in fact had very limited significance.

45. [135]

    The applicant seeks to rely on the asserted lack of expected observable results of injuries to discredit AZ’s account. However, as noted above, in the account of the evidence at the trial, AZ’s evidence varied as to how often she was assaulted by the applicant. The number given to Dr O’Connor as the assumed fact for his opinion as to injury relied on the most extreme view of her evidence. That was not a reliable basis for his opinion. Moreover, Dr O’Connor’s evidence in the appeal overall was consistent with Dr Stachurska’s evidence given in the trial. Its effect was similarly “neutral”.

46. [136]

    The evidence of Dr O’Connor does not satisfy this Court that the applicant was innocent or raise a reasonable doubt about his guilt. The absence of his evidence from the trial did not give rise to a miscarriage of justice. It is unnecessary to consider the Crown’s argument that the report is inadmissible pursuant to s 79 of the Evidence Act.

47. [137]

    Leave to appeal should be granted with respect to Ground 2(b) but the ground has not been established.

Ground 3: Failure to adduce evidence of the applicant’s genitalia

1. [138]

   AZ gave evidence in the Second JIRT Interview, with respect to the fellatio the subject of count 8, that “it was really not fun ‘cause there was, like, a wart on [the applicant's penis], and it was weird, um, and then, yeah, it was, it was, like, a bubble”. She also said “I really didn’t like it, though, ‘cause he had this wart on it”. Also in evidence was a note that she had made in which she wrote “I remember he had a wart or a bump on his penis”. Thus the feature was variously described by AZ as a wart, bubble or bump. As noted, she was aged 17 when she participated in that interview. The fellatio was alleged to have occurred when the applicant was in Year 8 or 9, when she was aged 13 and 14.

2. [139]

   The complainant was not challenged on this evidence in cross-examination. That fact is the subject of complaint in Ground 3(a).

3. [140]

   A forensic procedure was conducted on 4 May 2023 in which eight photographs were taken of the applicant’s genitalia. Neither side ultimately sought to tender them. That fact is the subject of complaint in Ground 3(b). Counsel now appearing for the applicant asserts that the photos do not depict anything which might be described as a wart, bubble or bump. The photos were provided to this Court in a sealed envelope. The applicant’s counsel invited the Court to review them. The Crown submitted that it was unnecessary to do so.

4. [141]

   The premise of both complaints is that the fact that AZ claimed to be aware of a distinctive feature of the applicant’s penis was highly probative evidence in support of a finding of guilt. The applicant’s counsel submitted:

5. [142]

   The issue was not overlooked by the senior and junior counsel and the solicitor representing the applicant at the trial. The Crown provided this Court with affidavits from each of them, the applicant having expressly waived privilege. The lawyers were not required for cross-examination and we accept their evidence. In summary, taken together, their evidence establishes the following:

   1. (1)

      The forensic photographs were made available to the applicant’s legal team on about 18 May 2023.

   2. (2)

      On about 24 May 2023 the applicant, junior counsel (Mr Peter Kondich) and the solicitor (Mr Kruz Cupitt) met and reviewed the photos, seemingly looking at them on a computer screen. The applicant indicated that he did not have a wart, bubble or similar abnormality on his penis. Mr Kondich and Mr Cupitt said that they could not then see any such thing in the photos.

   3. (3)

      On the afternoon of 18 May 2023 the solicitor, Mr Cupitt, had emailed a medico-legal advice body seeking an expert report as soon as possible with respect to the photos. The email said that the report sought was to the effect that: (1) there is no evidence of a wart or similar abnormality at present; (2) there is no evidence there was ever such a thing in the past; (3) if there had been such a thing in the past 5-6 years there would be some evidence of it; and (4) a conclusion that the applicant could not have had such a thing on his penis in 2017 or since. A week later there was an email in response indicating that a named professor, a dermatologist, had stated that it was “simply not possible to produce a report stating [points] 2, 3 and 4 below are correct, even if 1 were correct”. The email added that “[t]his seems to be the general feeling around our dermatologists”.

   4. (4)

      At some stage after the trial had commenced, but before AZ gave evidence, the Crown Prosecutor and the applicant’s senior counsel (Mr Mark Hobart SC) had a discussion at court about the photos, in the hearing of Mr Kondich. The Crown Prosecutor told Mr Hobart that he saw “nodules” on the applicant’s penis in the photos, and that if AZ in cross-examination was challenged in cross-examination about the issue of there being a wart or bubble on the penis then the Crown would seek to tender the photos.

   5. (5)

      Mr Hobart then reviewed the photos closely and saw “about halfway down the penis some nodules, or growths under the skin” which “formed a ridge-like structure”. Mr Kondich re-reviewed the photos, this time looking at printed copies. He changed his view “as to whether there appeared to be things” on the applicant’s penis. Mr Cupitt said he showed the applicant printed copies of the photos “and pointed out the nodules”, implicitly indicating that Mr Cupitt, too, now saw such a feature.

   6. (6)

      A conference occurred in a conference room at the courthouse involving the three lawyers, the applicant and an interpreter. No detailed notes were taken. The three lawyers had different degrees of recollection, but their accounts are consistent (Mr Cupitt said that the matters were “particularly memorable given the unique subject matter”). Drawing those accounts together, we conclude that Mr Hobart told the applicant the following: there were things shown on the applicant’s penis in the photos which could be described as warts, bubbles, lumps or nodules; those things could have been larger five years earlier; if he challenged AZ on the issue the Crown could try to tender the photos; if the photos were tendered, the Crown would address the jury on the issue, and the photos might be taken by the jury to corroborate the complaint; having the jury focus on the images would be prejudicial; if expert medical evidence was called in reply the applicant’s case would be severely damaged; if the applicant denied on oath having anything on his penis that would significantly affect his credibility; thus, in the circumstances, it was dangerous to raise the issue.

   7. (7)

      Mr Cupitt then asked the applicant, through the interpreter, if he understood Mr Hobart’s advice and was happy with what he had suggested. The applicant indicated “yes”. Mr Cupitt asked “is there anything else you want Mark to raise”, and was told “no”. Although the advice came from Mr Hobart, there is no suggestion that the other two lawyers present disagreed with it. It is implicit that they agreed; Mr Hobart testified that “We decided it was dangerous to raise this issue” (emphasis added).

   8. (8)

      On the day AZ finished giving her evidence Mr Kondich and Mr Cupitt (at least) had a conference with the applicant after court. The applicant agreed that they should resist tender of the photos if the Crown sought to rely upon them.

6. [143]

   In this Court the applicant argued as follows. The Crown Prosecutor’s “opinion” that there were nodules shown in the photos was irrelevant. The expert who was contacted by Mr Cupitt had raised the likelihood that he could opine as to the fact there was no evidence of a wart or similar abnormality in the photographs. The advice given by the applicant’s legal team was “simply wrong”. The photos do not in fact show anything in the nature of a wart. That being so, it would have aided the applicant’s case to tender them. It would not have been possible for the Crown to tender a medical report at that late stage. Counsel for the applicant said:

7. [144]

   As noted above, the applicant’s counsel accepted that in general a party is bound by the conduct of their legal representative. The argument is that the advice given by the applicant’s legal team, and the omission to challenge AZ or tender the photos, was such as to occasion a miscarriage of justice. Relevant principles were set out by this Court in Matthews, as quoted above at [83].

8. [145]

   The applicant’s argument is devoid of merit.

9. [146]

   There is no suggestion that the Crown Prosecutor’s opinion about seeing nodules was of itself given any particular weight by the applicant’s legal team. What was significant was the Crown Prosecutor’s indication that he would seek to tender the photos if the issue were raised with AZ. That led to a close review of the photographs by the legal team. The three lawyers then considered that they could see something on the applicant’s penis.

10. [147]

    The email which relayed the expert’s advice did not state that he could not see anything on the penis – he was quoted as saying contingently “even if 1 were correct”, where “1” was the proposition that there was no evidence of a wart or similar abnormality at present. Indeed, it seems – unsurprisingly – that the photos were not attached to the cold-call email that had been sent seeking advice. Even if they had been, and even if the expert had said he could not see anything, it is not apparent why his dermatological expertise should mean his view of what could be seen in the photos was any better than anyone else’s.

11. [148]

    As noted in Matthews at [63], the question is whether there could be a reasonable explanation for the course that was adopted at trial. There was certainly such an explanation here. Regardless of whether or not the Crown would or could have sought to produce and tender an expert medical report, there was a very real possibility that the Crown would seek to, and be permitted to, tender the photographs. If that occurred, and if there was something in the photos to lend credence to AZ’s testimony, then that could have had a devastating effect on the applicant’s defence.

12. [149]

    Insofar as it was suggested that the fact the lawyers reported seeing “nodules” or “bumps” or “growths” in the photos undermined AZ’s evidence as to seeing a “wart”, “bubble” or “bump”, that involves a distinction which, if it exists at all, is very fine. The suggestion that such a distinction made for a strong line of attack on the evidence of a young person, giving evidence of what she recalled about the applicant’s penis from when she was aged 13 or 14, is implausible.

13. [150]

    We have not reviewed the photos ourselves as, in this case, it would not be to the point to do so. Even if our eyesight did not detect nodules or such like, that would not mean that there was no reasonable explanation for the course adopted. The applicant’s legal team was required to undertake a risk analysis and give advice accordingly. That is what they did. And the ultimate choice was given to the applicant. If the three lawyers could discern something which looked like nodules, there was a real risk that members of the jury might also have done so. That would be so even if we could not see any such nodules. Moreover, the point they expressed about the possibility of any nodules seen now having been bigger in the past (a point echoed in what the expert said) was a rational one. And even if there was doubt about whether or not some nodules or such like could be seen in the photos, it was also entirely rational to consider that it would be prejudicial to have the jury closely analysing photos of the applicant’s penis.

14. [151]

    Leave to appeal on Ground 3 should be granted given the nature of the argument but the ground is not made out.

Ground 4: The jury’s questions about agreeing on some charges but not others

1. [152]

   The trial transcript records that the jury retired to consider its verdicts at 10:56AM on Friday 23 June 2023. After a short discussion between the trial judge and counsel about the applicant’s bail, the transcript records that there was a short adjournment. The Court then resumed and his Honour told counsel that he had received two notes from the jury, one of which is the subject of Ground 4. His Honour discussed the questions from the jury and how they should be answered. The transcript records that the jury returned to Court at 1:29PM and their questions were answered. The timeframe indicates that the jury’s question came very early in their deliberations. (For context, the jury returned their verdicts on the morning of Tuesday 27 June 2023).

2. [153]

   The jury’s question which gives rise to Ground 4 was:

3. [154]

   The judge discussed the question with counsel. Initially the Crown Prosecutor submitted that the simple answer to the question was “yes”.

4. [155]

   His Honour suggested that if he answered the question “yes” the jury may expect to be sent home because they could not agree on unanimous verdicts on the remaining counts, only for them to be told that that was not to happen, that he was going to give them a “Black” direction and “urge them forward”. His Honour suggested that the answer was better framed, “It is open to the jury to return any unanimous verdicts they might now have”, and that he would perhaps indicate to them that there are some further directions he would need to give them, and he would then give a “Black” direction. Senior counsel for the applicant and the Crown Prosecutor at trial agreed with those suggested responses.

5. [156]

   After discussing the other jury question with counsel his Honour returned to this question and observed that the question was framed in a way which was “to some extent hypothetical”: “What happens if we can agree on some charges but not others”. The Crown submitted that the judge should answer the question “If at a stage in your deliberations you have reached unanimous verdicts on some counts, yes, you can return those verdicts” and then give the “Black” direction. Counsel for the applicant agreed.

6. [157]

   His Honour answered the jury’s question in the following terms:

7. [158]

   After his Honour had answered both of the jury’s questions, he asked the Crown Prosecutor and counsel for the applicant if there were any other directions they would ask him to give the jury and both answered “no”.

8. [159]

   The applicant contended that while the trial judge’s answer to the first question was procedurally correct, the proper answer to the second question was simply “yes”. The applicant submitted that his Honour not telling the jury that it was legally open to them to not agree was contrary to the High Court’s decision in Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 that a jury must be free to deliberate without any pressure being brought to bear on them and that individual jurors may feel that they had to join in a verdict with which they did not agree. Counsel submitted that given the timing of the jury’s question, in the early stages of their deliberations, the entirety of their deliberations were infected by his Honour not answering the question “yes”. Counsel submitted that the failure of the judge to answer the jury’s question in that way was a fundamental irregularity in the trial process amounting to a miscarriage of justice.

9. [160]

   The Crown relied on the decisions of this Court in Isika v R [2015] NSWCCA 304 and Profilio v R [2024] NSWCCA 219.

10. [161]

    The Crown acknowledged that it is fundamental that the jury must be free to deliberate without any pressure being brought to bear upon them and that a jury must not be pressured to acquiesce in a verdict with which he or she cannot conscientiously agree: Black; Profilio.

11. [162]

    The Crown submitted that nothing in the trial judge’s direction violated that fundamental principle, that the trial judge’s answer to the question asked was appropriate and that senior counsel appearing for the applicant at trial did not indicate that any injustice was caused to the applicant as a result of the direction given in response to that question.

12. [163]

    The situations in Isika and Profilio were quite different from that which occurred in this trial.

13. [164]

    In Isika at 4:10PM on the day the jury had retired to consider its verdicts at 12:22PM the jury sent a note with several questions, one of which was “What happens if we cannot agree?” The trial judge told the jury:

14. [165]

    The Court (Macfarlan JA, Hall and Bellew JJ agreeing) said at [15] that the first part of the trial judge’s response, up to the word “deadlocked”, was unobjectionable, but what followed was objectionable in that the High Court in Black specifically disapproved of a trial judge telling a jury about the public inconvenience and expense of a further trial, as likely to put undue pressure on the jury to reach a verdict.

15. [166]

    In the applicant’s trial, the trial judge said nothing to the jury about the cost and time which would be involved in a further trial if the jury could not agree, and thus did not put pressure on the jury as was done in Isika.

16. [167]

    In Profilio, after the jury had been deliberating for what the judge observed had been 5 hours and 40 minutes, the jury sent a note which said:

17. [168]

    After discussion with counsel, the trial judge gave the jury what purported to be a lengthy direction in accordance with the High Court’s decision in Black, but in which he omitted to tell the jury that he had the power to discharge them if they could not agree on a verdict, in order to avoid pressure being placed on jurors to acquiesce in a verdict to which they could not conscientiously subscribe. The last phrase of the trial judge’s direction to the jury was “you must reach a unanimous verdict, whatever it is”. The Court held that the trial judge so informing the jury that there was no alternative but that they must reach unanimous verdicts caused a miscarriage of justice in that trial, because the jury not being informed of the possibility of a majority verdict being available or their being discharged because they could not agree upon a verdict was apt to produce the real possibility that an unknown number of jurors may have felt compelled to accede to the views of fellow jurors or otherwise their deliberations would be required to continue indefinitely.

18. [169]

    In the applicant’s trial, the direction given to the jury in response to their question was a legally accurate and appropriate answer in the circumstances. To be told that if there were counts on which the jury had not reached or could not reach unanimous verdicts they would be given further directions was apt to reassure the jury that if that situation arose the judge would assist them further. Nothing in the judge’s answer to the question was apt to place pressure on the jury or cause individual jurors to feel pressured to accede to the views of other jurors with which they did not agree. No miscarriage of justice has been demonstrated by the judge’s answer to this question from the jury.

19. [170]

    Given the broader significance of the issue raised it is appropriate to grant leave to appeal with respect to Ground 4. However, the ground is not made out.

Ground 5: Unreasonable verdicts

1. [171]

   The applicant contended that the verdicts of the jury were unreasonable in respect of each of the ten counts on the Indictment. There was no specific attack on any individual verdict; they were challenged as a whole.

2. [172]

   The issue raised by the unreasonable verdict challenge is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]; M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. The question is “one of fact which the court must decide by making its own independent assessment of the evidence”: M at 492, quoted in Dansie at [8].

3. [173]

   In resolving the question of fact, “the burden of persuasion that appellate interference is required, in what is otherwise the jury's province, is upon the person who impugns a jury’s verdict”: MacKenzie v The Queen (1996) 190 CLR 348 at 370; [1996] HCA 35.

4. [174]

   In considering whether the jury’s verdict was unreasonable, “the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”: M at 493, quoted in Dansie at [9]. As Kirk JA observed in Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170 at [29]:

5. [175]

   Additionally, as held in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], this Court’s enquiry as to unreasonable verdict:

6. [176]

   The applicant contended that the jury’s advantage was displaced because of the “inadmissible evidence that was adduced at trial” and the “great body of evidence” which was “wrongly deployed”. This submission assumed success on Grounds 1-4. For the reasons given above, however, those grounds have not succeeded and the basis for the applicant’s submission as to the displacement of the jury’s advantage falls away.

7. [177]

   Plainly enough, in a case such as the present where both AZ and the accused gave evidence, the jury’s advantage is significant. In this regard, the Crown relied upon JL v The King [2023] NSWCCA 99, where this Court observed that:

8. [178]

   The applicant acknowledged that it is not uncommon for victims of sexual assault to remember specific details about the assaults but not tangential details: Reed v R [2006] NSWCCA 314 (Spigelman CJ, McClellan CJ at CL and Sully J agreeing). In that case, Spigelman CJ observed at [64] that:

9. [179]

   Similarly, it is not uncommon for children to be imprecise about time and sequence of events, including sexual offences: BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 at [45]-[47] (Hayne, Crennan, Kiefel, Bell and Keane JJ); see discussion in Davis v R [2024] NSWCCA 120 at [150]-[151].

10. [180]

    AZ, who was both a child and, on her case, a victim of sexual assault, was imprecise about aspects of the time and the frequency of the alleged assaults. Thus, she volunteered to the police in the First JIRT Interview that she could not recall when the first assault occurred but placed it as being when she was in year 7 or 8. During her cross-examination in response to the question “You were having difficulty remembering what occurred a few years before?”, AZ responded “I remember the things that happened. I just don't remember any of my timelines”. Later in her evidence, she was challenged and responded as follows:

11. [181]

    AZ was also imprecise as to the frequency of the assaults. In the First JIRT Interview, she told police that they were “countless” and later “past 10 probably”. She could recall detail of the first assault, as noted above, and the approximate timing of the last assault, namely “earlier this year”: see also [19] above. AZ was also specific in aspects of her recollection in particular in relation to her memory of the mirror in her mother’s bedroom, a detail she also recalled in her Instagram exchanges with LF (see [16] above).

12. [182]

    Further, AZ readily accepted under cross-examination that, to the extent that she had told police that the assaults commenced when she was in years 7 or 8 (2017 and 2018 respectively), they could not have occurred in 2017 or the first half of 2018 before she had moved into the Casula house with her mother and brother. The same may be said about the initial assault in the games room at the Casula house whose construction was not completed until August or September 2018. That candour may itself have had a positive impact on the jury.

13. [183]

    The applicant submitted that his focus upon AZ’s various versions was not confined to tangential details or sequence but that “the inadequacies in her account are fundamental and consistent with invention and recent invention and simply do not withstand scrutiny where that scrutiny can be applied”. A weakness in the applicant’s submissions was that sweeping assertions such as this were not supported by granular analysis to support the assertions.

14. [184]

    The applicant relied upon the fact that, in her interaction with LF on Instagram which led to the complaint being made to the police by his teacher, AZ had not referred to multiple assaults. The applicant submitted that the fact that this was private correspondence in which AZ was not preoccupied with the risk or likelihood that LF would report it to the police made it unlikely that she would have been reticent about reporting multiple assaults, had they in fact occurred. But there was an undoubted reticence on AZ’s part. As the full sequence of the Instagram messages reveal, she did not want the applicant to get into trouble because of his relationship with her mother and the impact it would have on her. The Crown highlighted AZ’s statements to LF that “If I tell her she will hate me” and “I don't want him jailed and stuff cause I will prolly [probably] live in guilt”. She gave a similar response when pressed as to her veracity while under cross-examination: see [34] above.

15. [185]

    Further, while LF’s cross-examination lent support to the submission that AZ had only disclosed one sexual assault, his answer under cross-examination was in tension with the more contemporaneous record of the teacher to whom he disclosed his conversation with AZ. As noted at [17] above, that record included LF telling the teacher that “she [AZ] continues to be subjected to abuse (physical, verbal)”. It is also to be borne in mind that, in the First JIRT Interview, AZ referred to having been sexually assaulted by the applicant on “countless” occasions, and this was consistent with what AZ had told Dr Stachurska in July 2020, two years before the Second JIRT Interview.

16. [186]

    It must be also be noted that the Instagram exchange between LF and AZ was the first occasion, on the evidence, that AZ had disclosed to anyone what she claimed the applicant had done to her. The Crown’s submission that “it is common for accounts of sexual offences to contain differences and that delay in complaint or provision of further detail after an initial disclosure tends to be a common feature of child sexual abuse because of the attendant trauma caused by such abuse and the shame felt by victims” is well supported by authority. In Davis at [146], Adamson JA identified the following propositions:

17. [187]

    The Restricted Decision referred to in the third of these points is no longer restricted. It is the decision in Ferguson v R [2024] NSWCCA 81 in which Davies J (with whom Button J and Sweeney J relevantly agreed) observed at [92] that:

18. [188]

    It should also be noted that AZ was squarely challenged as to the difference in the number of assaults she referred to in her two police interviews, two years apart, and gave the evidence that has been reproduced at [34]-[35] above. Her explanation was reasonable and plausible. Claims of invention in 2022 were inconsistent with what Dr Stachurska had been told in 2020. It was well open to the jury to accept AZ’s evidence and explanation as to what emerged in the Second JIRT Interview, in relation to which she was strongly cross-examined, and the jury was best placed to make an assessment as to AZ’s credibility. Further, the fact that AZ did not go into full detail with LF in her Instagram exchange was not inconsistent with her subsequent statements to the police in the JIRT Interviews.

19. [189]

    We agree with the Crown’s submission that the jury enjoyed a distinct advantage due to seeing AZ and the applicant give evidence including under cross-examination and which allowed the jury to assess their respective credibility.

20. [190]

    The jury must also have resolved an important clash between CW and EZ’s evidence, on the one hand, and the applicant’s evidence, on the other hand, as to whether he was ever at the Casula house without CW being there. This clash must have been resolved adversely to the applicant. Again, the jury had the advantage of observing CW and EZ give their evidence on this topic. That topic was significant because it was corroborative of AZ’s evidence that Counts 1-9 occurred at the Casula house while only she and the applicant were present.

21. [191]

    To the extent that the applicant was unable to be specific as to timing, as s 293A of the Criminal Procedure Act recognises and as the directions by reference to that section made clear to the jury, that is not an unusual occurrence in matters of this kind. AZ’s inability to be specific as to timing did not require the jury to reject her evidence or resolve credibility and reliability issues against her. AZ was frank in acknowledging that she was not certain about dates, stating that “I remember the things that happened. I just don’t remember any of the timelines”.

22. [192]

    In support of his challenge to the reasonableness of the jury’s verdict, the applicant also relied upon the absence of any evidence from AZ’s family or other witnesses of observing “any indicia” of grooming by the applicant or any sexualised behaviour between the applicant and AZ. In circumstances where the offending, on AZ’s evidence, always occurred surreptitiously in the absence of CW or her brother, the absence of evidence of observation of grooming was not significant. It is equally consistent with the applicant taking care not to expose his interest in AZ. While evidence of observation of grooming may have supported the jury’s verdict, its absence did not render the verdicts unreasonable. We accept the Crown’s submission that it was “inherently unlikely that the applicant would have demonstrated sexualised behaviours toward the complainant in the presence of her mother or brother, or any other family members” and that this was “particularly so given his own relationship with the mother of the complainant.”

23. [193]

    Nor did the fact that evidence was led as to the applicant’s good character undermine the reasonableness of the jury’s verdict on a consideration of the whole of the evidence and taking into account the jury’s advantage.

24. [194]

    The applicant also relied upon the fact that AZ had originally placed some of the assaults as having occurred at a time when she was in year 7 in 2017, and that this cannot have been correct. But AZ was never definitive as to timing and readily accepted under cross-examination that, if her mother did not acquire or take possession of the Casula house until 2018, the assaults could not have commenced in 2017. As has been noted earlier in these reasons, AZ’s candid acceptance of this may have redounded to her credit in the eyes of the jury.

25. [195]

    In this context, it has been observed by the High Court that juries are “usually well able to evaluate conflicts and imperfections of evidence”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [96]. The present case was not unlike Wentworth v R [2023] NSWCCA 143 in which Beech-Jones CJ at CL observed at [48] that the jury “had the distinct advantage of viewing the footage of [the complainant’s] oral evidence over several days” and that “every point raised on appeal concerning [the complainant’s] credibility was fully ventilated before the jury”. In these circumstances, his Honour concluded at [48], citing AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [105], that “[t]he scope of the advantage [the jury] enjoyed in seeing and hearing [the complainant] give evidence and in considering the attacks on his credit was relatively wide”.

26. [196]

    In the present case, of course, the jury had the opportunity to observe AZ give her evidence in person, over a sustained period of time. Nor was this a case where it was suggested that AZ’s evidence had been subjected to manipulation by members of her family. Indeed, she explained her initial reluctance to cooperate with the police because of a desire not to damage her mother’s relationship with the applicant.

27. [197]

    The jury was properly instructed by the trial judge in accordance with s 293A of the Criminal Procedure Act (see [40] above) and was well placed to resolve the central questions of credibility and reliability of AZ’s testimony, including by reference to the very direct confrontation of her credibility by defence counsel: see at [36] above.

28. [198]

    For the above reasons, we do not consider that “even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted” (M at 494) and that the jury “acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt” (Pell at [39]). Rather, following our independent review, we conclude that on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. Leave to appeal on this ground should be granted but the ground is not made out.

Orders

1. [199]

   The orders of the Court are as follows:

   1. (1)

      Grant leave to appeal with respect to Grounds 1, 2(b), 3, 4 and 5.

   2. (2)

      Dismiss the appeal.