SJB v R

WARD P: Following a trial by jury before T Smith SC DCJ in the District Court at Campbelltown, the applicant (who is not identified by name pursuant to the restrictions on identification of the complainant) was convicted on 30 November 2023 of five sexual offences against her partner’s son (the complainant). The complainant was aged 13 at the time of the offences and 17 at the time of the trial.

The applicant had been charged, and was tried, in respect of 15 counts (14 primary counts and one in the alternative). The jury returned unanimous verdicts: guilty verdicts as to five of those counts (6, 9, 11, 13 and 14) and not guilty verdicts on the balance of the counts. In respect of two of the counts (counts 7 and 15 – see below), on which not guilty verdicts were returned, the trial judge had directed that the date of the offence was an essential element of the offence (28/11/23; T 30-T 31).

For each count, the issue at trial was whether the alleged sexual act occurred. That issue turned on whether the complainant’s evidence was to be accepted beyond reasonable doubt.

On 2 May 2024, the trial judge sentenced the applicant to an aggregate sentence of 7 years 9 months imprisonment, with a non-parole period of 5 years. The applicant was granted bail at the time of her arrest and remained on bail during the trial and sentence proceedings. The applicant has remained on conditional bail following sentence, pending the hearing of this appeal.

The applicant now seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against her conviction. There is no complaint in respect of the sentence imposed.

The applicant raises two grounds of appeal:

The 15 counts with which the applicant was charged related to conduct that had allegedly occurred during the period between 16 December 2019 and 5 March 2020, over which time the applicant was aged 42 and, as noted above, the complainant was aged 13.

At the time of the offences (and continuing as at the time of the trial (17/11/23; T 190.33)), the complainant’s father was in a relationship with the applicant, although the two lived separately (17/11/23; T 190.44; Electronically Recorded Interview of a Suspected Person (ERISP), A.43-49). That relationship had started in around 2012 or 2014 (see 17/11/23; T 190.13; ERISP, A.33). Each had children from previous relationships (17/11/23; T 189, ERISP, A.36-43). In 2016, the couple had a child together (17/11/23; T 190.27, ERISP, A.36-43). The applicant lived in Campbelltown, about 21.4 km or a 20 minute drive from the complainant’s father (ERISP, A.74; Ex C (map), 17/11/23; T 201.38).

The complainant was made a ward of the state and was in foster care from the age of 18 months (17/11/23; T 191.3). His care arrangements were managed by Catholic Care (16/11/23; T 116.16; ERISP, A.330).

In 2010, the complainant began living with foster parents (Mr and Mrs B) (20/11/23; T 327.29). About a year later, the complainant’s younger sister (“A”), also began living with the B family. The complainant’s sister (A) was aged 11 at the time of the alleged offences (and the B family was then living in Thirroul (20/11/23; T 328.9)).

In 2018, the complainant made allegations that he was verbally and physically abused by Mr and Mrs B (16/11/23; T 115). There was a private investigation of those claims arranged by Catholic Care (16/11/23; T 116), none of which was found to be sustained (as concluded in the investigation report dated 30 November 2019) (Ex 8;16/11/23; T 116.36). The complainant also said that he (the complainant) used to bash Mrs B (16/11/23; T 138).

After the complainant made allegations against Mr and Mrs B, he was removed from their care and he never returned to live with them (16/11/23; T 116.41). However, the complainant’s sister (A) continued to live with Mr and Mrs B; and was still living with them at the time of the trial (16/11/23; T 115.13, 17/11/23; T 246.31).

In October 2019, the complainant began living with his father in Cartwright (17/11/23; T 191.21). This was referred to as a ‘self-placement’. No one else lived in the house. While the complainant lived at his father’s address, the applicant visited about five times (17/11/23; T 192.34).

On 29 December 2019, the complainant ran away from his father’s house and began living at the applicant’s house (17/11/23; T 191.30). There was some inconsistency in the evidence as to the timing of events on this day (which is considered in more detail in due course). The complainant remained living at the applicant’s house from 29 December 2019 until 5 March 2020, when he was removed by the police following reported threats of self-harm (see below).

The applicant’s house contained four bedrooms (ERISP, A.92; Ex 4 (photographs of the house)). During most of the relevant period, there were five occupants: the applicant, a boarder (Craig), the applicant’s daughter (J) and her partner, and the complainant.

The applicant lived in a bedroom at the front of the house, which faced the street (on the right-hand side looking at the front of the house) (Ex 4, photograph 2; 16/11/23; T 164.30).

The boarder, Craig, a 42 year old who was unemployed and “at home a lot”, occupied a bedroom at the back of the house (ERISP A.101, 106; 17/11/23; T 261) which faced the backyard. Craig’s room was on the right-hand side looking at the back of the house (see Ex 4, photographs 21-22; 16/11/23; T 166.20) and was diagonally opposite the complainant’s bedroom (Ex 4, photograph 1; 16/11/23; T 167.4). Craig’s room had its own entry and exit from the house but the complainant said that the boarder usually used the front door (16/11/23; T 166.23).

The applicant’s 19-year-old daughter (J) and her partner lived at the house until 10 January 2020 (ERISP A.114; 17/11/23; T 259-T 261). J was working four to five days per week in Narellan (17/11/23; T 262). After J and her partner moved out, the complainant occupied J’s bedroom (17/11/23; T 269.43).

As adverted to above, on 5 March 2020, two police officers attended the applicant’s home following reports that the complainant was threatening self-harm. The complainant was detained under the Mental Health Act 2007 (NSW) (Mental Health Act) and taken to Campbelltown Hospital for assessment (22/11/23; T 486). The complainant did not live with applicant after that date.

As set out below, Counts 1 to 4 were alleged to have occurred on a single occasion on 17 or 18 December 2019, shortly before the complainant ran away from his father’s house; Counts 5 to 15 were alleged to have occurred when the complainant lived with the applicant.

The alleged offences occurred at various locations: Counts 1 to 4 on the same day inside the applicant’s Ford Territory motor vehicle (Counts 1 and 2 occurred when it was parked outside the complainant’s father’s house; Counts 3 and (the alternative count) 4 after the applicant drove them from outside the complainant’s father’s house to a forest area); Count 7 inside the applicant’s Ford Territory when it was parked at Sandon Point, a beach near Thirroul (on an occasion after the complainant visited his sister at the B family’s residence in Thirroul); the remaining counts in various parts of the applicant’s house (Counts 6, 9, 10, 11, 13 and 14 in the applicant’s bedroom; Count 5 in the lounge room; Counts 8 and 12 in the bathroom; and Count 15 in J’s room).

The complainant said that he first disclosed the offences to his father. It would seem from the chronology of events considered below that this complaint was allegedly made after the conduct that was the subject of Counts 1 to 4. The complainant said that, after telling his father what occurred, the complainant’s father said “who really gives a fuck” and “I don’t really care” (Joint Investigation and Response Teams (JIRT) A.133). The complainant’s father denied any such complaint was made to him (17/11/23; T 216-T 217).

The complainant said that he otherwise made no complaint to anyone during the period of the alleged offences (16/11/23; T 99-T 100). In particular, the complainant did not say that he complained to “G”, the teenage daughter of the applicant’s friend (“D”).

G, on the other hand, said that she had received a message from the complainant saying that the applicant had raped him (17/11/23; T 277.33). G initially gave evidence that it was received after the complainant had moved out of the applicant’s house (17/11/23; T 277.50) but G later agreed that she had told the police in a statement dated 8 September 2022 (more than two and a half years after the complainant left the applicant’s house) that the message was sent at a time when (by inference) the complainant was still living with the applicant (17/11/23; T 280). G remained uncertain as to the timing of the message (17/11/23; T 282.16). G said that she did not do anything after receiving the message because “people say it all the time in care” (17/11/23; T 282.49).

The evidence of G was the only complaint evidence emphasised by the Crown in its closing address (24/11/23; T 631) and was the only evidence the subject of a complaint direction (28/11/23; SU 57). (See discussion in the jury’s absence at 23/11/23; T 593-T 594).

On 15 May 2020, at a mental health appointment with counsellors, the complainant disclosed that the applicant had sexually abused him (16/11/23; T 98-T 99). The complainant said that he was then driven home by a man called Mustafa. The complainant said that he told Mustafa, in some detail, what happened between him and the applicant (16/11/23; T 99.25-35). There was no evidence at trial about the details of the complainant’s conversations with either the counsellors or Mustafa. Detective Kelly, the officer-in-charge of the investigation, said he did not make any enquiries with the counsellors because “there’s very strict regulations about speaking to people in that role” (22/11/23; T 493) and that he did not “follow up” with Mustafa or establish his surname and that he “must have missed” the potential importance of that evidence (22/11/23; T 494).

The trial judge told the jury that the absence of evidence from Mustafa was a matter they could consider in determining if the Crown had proved the charges (28/11/23; SU 60-61). No such direction was sought or given in relation to the absence of evidence from the counsellors (23/11/23; T 596). The trial judge told the jury that the only relevance of the evidence about the counsellors was to provide context in relation to other events from 15 May 2020 (see below) (28/11/23; SU 61).

Later, on 15 May 2020, the complainant attended the Penrith Police Station where he disclosed some of the alleged offences to a detective, who made notes that were put on the Computerised Operating Police System (COPS) (the 15 May COPS entry) (22/1/23; 475.48). Those notes were not tendered at trial, but some of the contents of those notes was adduced through the oral evidence of various witnesses. From this, it can be deduced that the notes recorded at least the following things.

First, that the complainant told the detective that he recalled “the first incident occurring towards the end of January 2020” (16/11/23; T 112.11; 22/11/23; 491). This incident involved the applicant entering the bathroom where the complainant had been showering, when the applicant then masturbated the complainant and performed oral sex on him; and then, later in the evening, the applicant came into the bedroom, pulled the complainant’s pants down and had sex with him (16/11/23; T 101.40). In cross-examination, the complainant agreed that he described that incident to the detective first but he did not recall describing it as the first incident (16/11/23; T112.19).

Second, that the complainant “recall[ed] the last incident of sexual abuse occurring four days prior to him being scheduled by police” (22/11/23; T 492.14-19). In cross-examination, the complainant said that he did not recall saying that about the timing of the last event, but he accepted he could have (16/11/23; T 102.19-46).

In cross-examination, the complainant agreed that he never said anything to the detective about: anything happening in a car; things happening at Sandon Point; a dildo (Count 8); or anal sex (Count 10) (16/11/23; T 102-T 103). It is unclear whether the complainant said anything to the police at that stage about cunnilingus (Count 9). There was no re-examination to confirm any matters that were contained in the notes that may have been said to have been consistent with the complainant’s allegations.

On 28 May 2020, the complainant was interviewed by Detective Kelly. This interview was recorded and became the complainant’s evidence-in-chief at trial (MFI 4 (JIRT)). Some additional portions of the interview that had originally been edited out were tendered later in the trial (MFI 51).

On 7 July 2021, the applicant was arrested. The applicant was interviewed by Detectives Kelly and Cole at Campbelltown Police Station. A recording of the interview was played at trial (Ex N1, disc and N2, transcript (ERISP)). The applicant denied committing any offences (ERISP, A.518-527). The applicant suggested that a possible motive for the complainant to lie was that he was looking for a way to end her relationship with the complainant’s father (ERISP, A.409).

At the trial, 16 witnesses were called to give oral evidence in the prosecution case: the complainant, various family members of the complainant (his father, his mother, his younger sister (A), his cousin (M) and his older sister (MB)); people living or spending time in the applicant’s home while the complainant lived there (the applicant’s daughter (J), Craig (the boarder), the applicant’s friend (D) and her daughter (G)); various persons who had had some involvement with the complainant as a result of his care placements (Louise Hampton and Sarah Egbers, who were employed by Catholic Care; Vanessa Turner, who was employed by the Department of Communities and Justice (DCJ)); the complainant’s former foster parents (Mr and Mrs B); and Detective Kelly, the officer in charge of the investigation. “M”, the complainant’s cousin, had initially declined to make a statement but made one during the trial on 21 November 2023 (22/11/23; T 490).

Each of the complainant’s father and the complainant’s cousin (M) was subject to cross-examination by the Crown (with the leave of the court on the basis that their evidence was unfavourable to the Crown). As already noted, at the time of the trial, the complainant’s father continued to be in a relationship with the applicant. The Crown case was that he was tailoring his evidence to protect the applicant (17/11/23; T 239.1-9).

The Crown also relied upon documentary evidence and exhibits, including maps of various relevant locations, photographs, an aerial image of AB’s house, employment records of the applicant, the ERISP of the applicant and a drawing done during that interview, a recording of a conversation between the complainant’s cousin, M, and records from the Twin Towers Hotel where the applicant and complainant spent two nights. A Statement of Agreed Facts was tendered pursuant to s 191 of the Evidence Act 1995 (NSW).

The applicant did not give or call any evidence in her case. The applicant relied on her ERISP with police (which is summarised in due course).

The jury was provided with a document (MFI 12) summarising the alleged conduct relied upon by the Crown for each count.

Counts 1 to 4 were alleged to have occurred in the applicant’s Ford Territory at a time when the complainant was living with his father. The complainant said it occurred on 17 or 18 December because it was four months before his birthday (JIRT, A.63-64).

The complainant said the applicant arrived in her Ford Territory (17/11/23; T 152.11) at an area at the back of his father’s house (JIRT, A.48, 93; 16/11/23; T 94-T 97; Exs F and G); that it was “exactly 6:30” at night because he ate dinner at 6:00pm for about five minutes, watched a show on Netflix for ten minutes, and had a shower for about 15 minutes (JIRT, A.81-83; 16/11/23; T 149-T 150).

The complainant said that the applicant was sitting in the driver’s seat, wearing her work uniform (JIRT, A.79-80; 16/11/23; T 152.48) and that his father was present but, at some point, the complainant’s father went inside (JIRT, A.34, 38).

The complainant said that at some point he joined the applicant inside the car; that he had cut his foot on a piece of colorbond (JIRT, A.69) and had then stepped on rocks, and the rocks had ended up inside his cuts (JIRT, A.65, 67) and that the applicant assisted him by removing the rocks from his foot with a pair of tweezers (JIRT, A.67).

The complainant said that the applicant leaned in and tried to kiss him (JIRT, A.36, 75, 88-90) but he pushed her away (JIRT, A.36); and that the applicant then grabbed his hand and put it on her breast (Count 1) (JIRT, A.39, 51, 112-116). The complainant said that he told the applicant that he had a scratch from a dog on his leg (JIRT, A.90) and that she asked to see it (JIRT, A.91). The complainant said that the applicant then started touching it and then grabbed his penis and started “wanking” him (Count 2) (JIRT, A.91-100).

The complainant said that he jumped out of the car and told the complainant to “fuck off” and that she then drove off (JIRT, A.106, 16/11/23; T 151); and that his father asked him what happened, and he told his father “don’t worry about it, it’s all good” (JIRT, A.106).

The complainant then said that he went for a ride with the applicant as his father permitted him to leave with her (JIRT, A.121; 16/11/23; T 151.1-17) and that he did this because he was “scared” (16/11/23; T 151.11). He said that they went to the Miller Shops where the complainant bought alcohol (JIRT, A.121-123, 152-153); that the complainant “spiked” his drink, which caused him to become drunk (JIRT, A.121); that the applicant drove them to an isolated forest area (JIRT, A.124, 154-155); and that he fell asleep in the car, and when he woke up the applicant was on top of him having penile-vaginal intercourse with him, which continued until he ejaculated (Counts 3 and 4) (JIRT, A.125-133, 159-161, 166-167). The complainant said that the applicant had tied up his hands with a seatbelt so that he could not move (JIRT, A.129, 168-170) and that there was “stuff on the windows so no-one could see in” (JIRT, A.133). The complainant said that after intercourse he went back to sleep and then he went back to his father’s house (JIRT, A.133). The complainant said (JIRT, A.133):

At 16/11/23; T 99-T 100, the complainant gave evidence as to the complaint to his father and the complainant was cross-examined on this at 16/11/23; T 149-T 153. Detective Kelly put this account to the complainant in the JIRT, A.568-580.

The complainant said that the applicant tried to do the same thing a week later but the complainant “knew what she was up to” and he jumped out of the car and ran back inside (JIRT, A.106, 173, 583).

The complainant agreed that when he spoke to the detective at Penrith Police Station on 15 May 2020 to report the applicant’s sexual abuse, he never mentioned that anything happened in a car (16/11/23; T 102.50). The detective recorded that the complainant recalled the first incident as occurring towards the end of January 2020 (16/11/23; T 100-T 102, T 112.11, 22/11/23; T 491).

The complainant’s father said that the applicant visited him on about five occasions while the complainant was living with him (17/11/23; T 192.34). The only specific date he recalled was 17 December 2019 (17/11/23; T 192.38) and he was certain about the date because it coincided with a school event where the complainant was photographed receiving a merit award (17/11/23; T 218.30).

The complainant’s father said that on that occasion, the applicant visited, arriving in her charcoal Mazda 3 at about 8:30pm (17/11/23; T 192-T193) and that she was not wearing a work uniform (17/11/24; T 244.43). He said that he spoke to her outside the house for about half an hour (17/11/23; T 195.14) and that at some point, the complainant, who was inside, messaged his father to say he was hungry (17/11/23; T 195.33). The complainant’s father said that he and the applicant then walked to McDonald’s (without the complainant) before returning to his house; and the complainant’s father went inside to deliver the food from McDonald’s to the complainant. He said that he then went back outside to speak to the applicant and a short time later she left (17/11/23; T 196.34). The complainant’s father then went back inside for the remainder of the evening (17/11/23; T 196.46). In evidence (Ex 6) was an electronic receipt which showed that the applicant spent $10.65 at McDonald’s Cartwright at 8:46pm on 17 December 2019 (17/11/23; T 243).

The complainant’s father said that on the following evening (18 December 2019) he was at home and that the applicant did not visit (17/11/23; T 197.37); and that on the next day (19 December 2019) he took the complainant with him to a work site at Caringbah (17/11/23; T 198.4-17). The complainant’s father said that the complainant’s mother then took the complainant shopping for a couple of hours before returning him to the work site (17/11/23; T 198.16). The complainant’s mother gave evidence confirming this event occurred but she was unable to identify the date on which it occurred (20/11/23; T 299-T 302). The complainant’s father said that after leaving the work site, he and the complainant went home and spent the evening together at home and at a soccer game in Narellan; and that the applicant did not visit them (17/11/23; T 198-T 199).

The complainant’s father denied ever telling his son he could go for a ride in the car with the applicant in that period (17/11/23; T 245.4) and denied that the complainant complained to him about these offences (17/11/23 T 216-T 217).

The applicant, during her interview with police, denied: that she had sexual intercourse with the complainant; that she sexually touched him; or that she asked him to touch her in a sexual manner (ERISP, A.518-520). Detective Kelly did not ask the applicant any questions specifically about 17 and 18 December. He said that he “must have just forgotten” to do so (22/11/23; T 490.16).

The applicant owned two cars in the relevant period (a beige or gold Ford Territory and a dark grey Mazda 3) (Ex 7 (photographs of the cars), 17/11/23; T 242.26). The Ford Territory was registered to the applicant as at 1 December 2019 according to RMS records (22/11/23; T 480.14). The complainant’s father said that, as at 29 December 2019, the Ford was his car and he “drove it all the time” even though it was “technically” in the applicant’s name. The complainant’s father said that the applicant drove it before 2019 and that she “hated” it because “it was like driving a truck” (17/11/23; T 202) and that he subsequently bought the Ford from the applicant (17/11/23; T 241.38). The applicant’s daughter (J) said her mother only drove the Mazda and never drove the Ford (17/11/23; T 261.41-T 262.14). However, D, a friend of the applicant, said that on 4 March 2020 the applicant drove her to the applicant’s house from where they met in Parramatta in a car that “would have been the gold one…a Ford Territory” (22/11/23; T 468.45).

When asked in her police interview what car she was driving around the time of the offences, the applicant said she was driving a “Mazda 3” (ERISP, A.269). The applicant agreed that she had owned a “Territory” and said that the complainant’s father “has that Territory”. Asked whether, since the complainant’s father had it, she drove it, the applicant said “Nuh. I didn’t like the car. It’s too big for me, sorry…” (ERISP, A.276-278).

Count 5 was an allegation of fellatio that occurred in the applicant’s loungeroom. Count 6 occurred on the same occasion as Count 5 and involved an allegation of penile vaginal intercourse in the complainant’s bedroom. Both of those offences were alleged to have occurred on the first day that the complainant was living at the applicant’s house (see Crown opening (at 15/11/23; T 70.6); Crown closing (at 24/11/23; T 628.37); MFI 46 Crown Timeline of Alleged Events (provided to the jury during closing (24/11/23; T 625.10))). It was not disputed that the first day that the complainant stayed at the applicant’s house was 29 December 2019. (The indictment had stated that the conduct the subject of these counts occurred “between 27 and 31 December 2019”.)

Count 7 was an allegation of penile-vaginal intercourse in the applicant’s car while it was parked at the beach at Sandon Point. This, too, was alleged to have occurred on 29 December 2019 (and this was the date specified in the indictment). The trial judge (without opposition from the Crown – see 23/11/23; T 589-T 591; 24/11/23; T 605.25) determined that it was an essential element of the offence for Count 7 that it occurred on that date (MFI 48 pp 1 and 9 (revised elements document), 28/11/23; SU 30-31).

There was some conflicting evidence as to the chronology of the alleged events on 29 December 2019.

The complainant’s father gave evidence as to his son running away from home (17/11/23; T 200-T 201); relevantly, that he did not hear his son leave; that at around 6:30am on 29 December 2019, he received a phone call which prompted him to check on his son and he then discovered his son had left home. The complainant’s father said that at around 9:00am he spoke to Sarah Egbers from Catholic Care about the fact that his son had left (see also ERISP, A.112).

Ms Egbers’ evidence was that on the morning of 29 December 2019 she received a phone call the complainant’s father, who told her that he had awoken and realised that his son was gone, and that at 8:51am that morning, Ms Egbers contacted Mrs B, who said that she had woken that morning to the complainant knocking on her door (21/11/23; T 433).

Mrs B gave evidence that, between 6 and 7am on 29 December 2019, the complainant banged on her door and entered; that he was agitated and wanted to see his sister; and that he was only there for ten minutes. Her evidence was that the complainant ran out the front and up the hill and his sister (“A”) chased him (20/11/23; T 328.35-T 329). Mrs B said that she asked the complainant how he got there and he said “oh, you don’t need to know… somebody drove me” (20/11/23; T 329.32-35). Mrs B had told the police on 24 August 2022 that the complainant had arrived before 5am (21/11/23; T 349.50) but her evidence at the trial was that the notes she had made in her diary indicated 7am (21/11/23; T 350.12).

The complainant’s sister (A) said that the complainant came to the house, unexpectedly, at 5 or 6am and was knocking on the door; that he stayed for ten minutes during which he “rushed around” (MFI 13, A.29) and that he said “I can’t stay, [the applicant]’s up the road”. The complainant’s sister said that when the complainant left, she chased after him but could not keep up (20/11/23; T 322-T 323) and that she saw a lady in a car. She described the car as looking “exactly like [the applicant’s] car”, being a silver, seven-seater car, “a bit like a captiva” (MFI 13, A.29, 34-35, 77). The complainant’s sister later told the DPP that she made an error; and that this event that she described actually happened in October; not around Christmas 2019 (20/11/23; T 322).

Mr B said that the complainant arrived between 5-6am (21/11/23; T 359.12); that the complainant left and the complainant’s sister chased him halfway up the road; and that he saw a car up the road but he could not see the person driving it (21/11/23; T 360.25). Mr B said the car was a grey, charcoal SUV, like a Territory (21/11/23; T 362.41). He said that the car was stationary and then it drove off (21/11/23; T 363.9). Mr B had given evidence on an earlier occasion on 27 March 2023 that this occurred at 6-7am (21/11/23; T 364) and he did not say that he saw the car on that earlier occasion when he gave evidence (21/11/23; T 366).

Several visits were made to the applicant’s house on 29 December 2019. The evidence as to those visits was as follows.

Ms Hampson and Ms Egbers from Catholic Care attended the applicant’s house in the afternoon of 29 December 2019 (20/11/23; T 303-305, 21/11/23; T 435). Their evidence was that they took the complainant to the shops to buy some items for him, before returning him to the applicant’s home (20/11/23; T 306, 21/11/23; T 437.12). Ms Hampson observed that the complainant was “very anxious, nervous, agitated” (20/11/23; T 306.11) but she agreed he was “happy” and that he wanted to stay with the applicant (20/11/23; T 307.20). Ms Hampson said that the complainant was not drunk (20/11/23; T 307.25). Ms Hampson spoke to the complainant about his medication, and the complainant said “I can kill myself if I take all these” (20/11/23 T 308.9). Ms Egbers also said that the complainant was agitated but that he was very adamant that he wanted to stay with the applicant (21/11/23; T 435). Ms Egbers was taken to a Catholic Care case note that read “we believe [the applicant] is someone who is able to keep [the complainant] emotionally safe” (21/11/23; T 438.5). It appears that there were two visits from Catholic Care that day (see Remarks on Sentence at p 4): one to drop off some medication that the complainant needed and the other to take him to the shops to buy some essential items.

Ms Egbers agreed that she requested that police do a welfare check in relation to the applicant and the complainant at the applicant’s house (21/22/23; T 437.20). At some stage, the police attended to do a welfare check and they reported that the complainant was safe and well and they had no concerns (21/11/23; T 373, T 437-T 438). The Catholic Care case note shown to Ms Egbers read that “we sent the police out the day after [the complainant] arrived at [the applicant’s house] …”, which suggests that this welfare check may have been on 30 December 2019 (21/11/23; T 438.40), although given the early hour of the morning when the complainant arrived at the house it is not clear.

The complainant’s father also gave evidence that around 8:30pm (in context he appears to have been talking about some time in the morning, see 23/11/23; T 568-T 569 and 24/11/23; T 625.43) he drove to the applicant’s house but when he arrived nobody was home (17/11/23; T 201.41). The complainant’s father said that he then went for a drive before returning to the applicant’s house; that he knocked on the door, but no-one answered (17/11/23; T 202-T 203); and that he then went back to his car and saw the complainant running up the street towards the applicant’s house (which he described by indicating on a map, Ex I, 17/11/23; T 204). The complainant’s father said that the complainant entered the house followed by him and that the two then had a verbal argument (17/11/23; T 205, ERISP, A 119).

From that evidence it appears that: in the early hours of 29 December 2019 the complainant left his father’s house in Cartwright; before 8:51am, the complainant visited his sister for a short time at the Bs’ residence in Thirroul; in the afternoon, Catholic Care employees visited the applicant’s home and both the complainant and applicant were present; and, at some point (likely 30 December 2019), the police visited the applicant’s home; and the complainant and applicant were present. The trial judge in her remarks on sentence noted that it was unnecessary for present purposes (i.e., sentencing) to determine definitely how the complainant got to Thirroul to visit his sister but that the Crown case was that the applicant had taken him there.

Also at some stage (perhaps in the morning), on the evidence of the complainant’s father, he saw the complainant running to the applicant’s house and he entered it with the complainant. The complainant’s sister’s evidence that she chased the complainant up the hill from the Bs’ residence is corroborated by the evidence of Mr and Mrs B but her recollection of seeing a car like the applicant’s car (the Territory) is not corroborated nor is her evidence that the complainant said the applicant was there.

The complainant said that he ran away from his father’s place on 29 December (JIRT, A.181-182); that he made a “plan” with the applicant (JIRT, A 187-199); that he went to McDonald’s near Cartwright and the applicant picked him up from there at 2am before driving them to her place (JIRT, A.181-202); and that he arrived at the applicant’s house at “3 o’clock” (JIRT, A.368).

When it was put to the applicant in the ERISP (see ERISP, Q.203) that she and the complainant had been talking together at the complainant’s father’s house and that she arranged to pick the complainant up later that night or early in the morning and that she was going to meet him close to his father’s place, the applicant said that was “very much incorrect” (ERISP, A.203) because the complainant’s father did not allow her to speak to the complainant while he was at the complainant’s father’s house. The applicant denied the allegation that she took the complainant to Wollongong to meet his sister at a location and denied that after that she met him a little bit up the street in her car and parked near the beach and they had sex in the car (ERISP, Q/A.205-206). The applicant also denied that they returned back to her place and had sexual intercourse in her room (ERISP, A.208).

The applicant said that it was early morning when the complainant turned up at her doorstep, “I’d say about 1.30, 2 o’clock in the morning” (ERISP, A.382); that he said “I can’t handle it at Dad’s anymore, I had to get out” (ERISP, A.385) and that she said that the complainant could sleep on the couch and they would call the complainant’s father first thing in the morning (ERISP, A.386). The applicant said that she tried to call the complainant’s father in the morning but he was already on the way over; and that the complainant’s father arrived about 8am or 8.30 (ERISP, A.383) and bashed on the door and demanded that the complainant get in the car (ERISP, A.393).

As to Counts 5 and 6, the complainant’s account was as follows.

The complainant said that after he arrived at the applicant’s house, he slept in the applicant’s bed (JIRT, A.203). The complainant said that he woke up at “4 o’clock” (though he did not specify if this was in the morning or afternoon, it appears from other answers that it was not 4 o’clock in the afternoon – see JIRT, A.354, A.363, A.368-369). The complainant said that the applicant was careful to hide him from her daughter (J), who was living in the house at the time (JIRT, A.203, A.221-223, A.264).

The complainant said that he and the applicant had sex three times “that day” and 12 times that week (JIRT, A.203, 224; 16/11/23; T 127.16). There is some confusion (see JIRT, A.225) as to whether “that day” was a reference to 29 December or 30 December 2019. In the Remarks on Sentence at pp 4-5, the trial judge noted that despite the complainant saying in his interview at one point that he was pretty sure that it was 30 December when the first occasion of penile/vaginal intercourse occurred, the description he gave elsewhere was consistent with this being the first day that he was at the applicant’s house.

The complainant said the applicant gave him alcohol and “weed” and got him “drunk” and “high” (JIRT, A.224, A.235-239). The complainant said that the applicant walked in on him while he was having a shower and said “you look pretty cute”; that he then went into the bedroom; and that the applicant then came in with her daughter’s iPad and “she ended up chucking on, I think it was porn or something” (JIRT, A.235). The complainant said that the applicant made him pick her up and he did so, but he dropped her (JIRT, A.239).

The complainant said that the applicant performed fellatio on him against his will (Count 5) (JIRT, A.239, A.244) in the loungeroom (JIRT, A.256); and that the applicant had penile-vaginal intercourse with him by jumping on him while he was lying on the bed (Count 6) (JIRT, A.244-T 256). The complainant said that the penile-vaginal intercourse occurred in the applicant’s bedroom as well as in the applicant’s daughter’s bedroom (JIRT, A.256).

In cross-examination, the complainant said that on the day he arrived at the applicant’s house, the applicant insisted that he contact the “helpline” to inform “DoCS” as to his location (16/11/23; T 127.11; JIRT, A.354-356; see, also, ERISP, A.117-118); and that his father arrived that morning and there was a “screaming match” between them (16/11/23; T 127.46; ERISP A.119, A.393). The complainant said that the police and Catholic Care visited (16/11/23; T 128-T 129) and that he believed that the applicant’s daughter was home on the two occasions that Catholic Care visited (16/11/23; T 161.4).

In his interview with Penrith Police, the complainant said that first incident occurred towards the end of January 2020; and the first incident he described was one involving fellatio in the bathroom followed by penile-vaginal intercourse in the bedroom.

The complainant was cross-examined about his claim that the applicant walked in on him while having a shower (16/11/23; T 161). It was put to the complainant (and D confirmed) that there was a functioning lock on the bathroom door (16/11/23; T 161, Ex 10 (photograph of lock)). The complainant’s cousin (M), who stayed with the applicant at various times, confirmed that there was a functioning lock on the bathroom door whenever he was there (23/11/23; T 540.1-18).

As to Count 7, the complainant said that he was “pretty sure” it occurred the night before New Year’s Eve (i.e., 30 December) (JIRT, A.317) but he also said that it occurred on a Saturday night (in 2019, 28 December was the Saturday, not 30 December). The complainant said that it happened at 11:00pm in the applicant’s Ford Territory while it was parked at the beach (JIRT, A.292-306).

The complainant said that between 6:30 and 7:30, he visited his sister in Thirroul having been driven there by the applicant (JIRT, A.310, 317, 321). Read in context, the applicant says that this was a reference to 6:30-7:30pm as the complainant appeared to count back five hours from 11:00pm (JIRT, A.304-310).

The complainant said that the applicant “hid up the street…up the top of the hill” while he was visiting his sister (JIRT, A.322-326); that he then ran back up the hill and jumped in her car (JIRT, A.326); that they then went to McDonald’s and “had a feast”; that the complainant then had a surf and that they then went and visited the complainant’s aunt (of whose name he was unsure; “[X] or something” (JIRT, A.326-328)). In cross-examination the complainant said he was at his aunt’s for ten minutes and that the applicant did not join him on the visit (16/11/23; T 162.43-50).

Detective Kelly gave evidence that he attempted to speak to the aunt but could not locate her; and he agreed that he did not disclose these investigative attempts (22/11/23; T 496-T 498). The trial judge told the jury that the absence of evidence from the aunt was a matter they could consider in determining if the Crown had proved the charges (28/11/23; SU 60-61).

As to Count 7, the complainant said that they then drove back to Sandon Point; that they watched the sun set; and that the applicant then put “stuff up on the windows” of the car. The complainant said that he “started getting high” and drank “a bit”. The complainant said that the applicant then forcibly had penile-vaginal intercourse with him by ripping off his pants and jumping up and down on him until he ejaculated inside her (JIRT, A.329-343); and that they then drove home and went to sleep (JIRT, A.344-348).

The complainant said that the applicant was wearing a black and pink dress during this incident (JIRT, A.335-336). When it was suggested to him in cross-examination that the applicant did not own any dresses (let alone wear them), the complainant said that the applicant owned “heaps of dresses” and that she had a cupboard that was “pretty much full of dresses” (16/11/23; T 167).

Contrary to the complainant’s evidence about dresses, the following witnesses gave evidence that the applicant never, or almost never, wore dresses: the complainant’s father agreed that that the applicant “doesn’t wear dresses” (17/11/23; T 246.42); the applicant’s daughter, J, said that her mother has “never worn dresses” (17/11/23; T 269.2); the applicant’s friend, D, said that she had only seen the applicant wear a dress on two occasions (her son’s funeral in 2012; and when she was a bridesmaid at D’s wedding in 2011, when D said that she had to beg the applicant to wear one) (22/11/23; T 471.47).

As noted above, in her interview with police, the applicant denied that she ever travelled with the complainant to Wollongong; and denied ever having sex in the car with the complainant near a beach (ERISP, A.205-207, 266-268).

As noted, of the counts alleged to have occurred on 29 December 2019 (5-7), the first day that the complainant was at the applicant’s house after running away from his father’s house, the applicant was found guilty only of Count 6 (penile/vaginal intercourse in the applicant’s bedroom).

Count 8 alleged an incident that occurred the day after the Sandon Point incident (JIRT, A.370), in which the complainant said that the applicant put his hand on her vagina and then made him put a dildo inside her.

The complainant said that when they woke up nobody else was home. The complainant said that the applicant went for a shower but did not have towel; that the applicant asked the complainant to give her towel; that he “just hung it out and put it inside the door”; and that the applicant “pretty much dragged” him into the bathroom. The complainant said that the applicant grabbed his hand and put it on her vagina and then made him put a purple dildo inside her (Count 8) (JIRT, A.370-373). The complainant said that he then ran down to Campbelltown Mall or Macarthur Square (JIRT, A.374).

In cross-examination, the complainant disagreed with the propositions that: there was never an occasion when he and the applicant were together in the bathroom and that the applicant did not have a purple dildo (16/11/23; T.167-T 168, T 170). The complainant accepted that he never mentioned a dildo when he spoke to the detective at Penrith on 15 May 2020 (16/11/23; T 103.6).

Counts 9-11 relate to an incident in which the complainant said that, after he returned to the complainant’s house from the mall (i.e., seemingly following the incident in Count 8) the applicant said that she “wanted to try anal” and “then it happened” (JIRT, A.374-379).

The complainant said that they were in the bedroom and that “we were making out, I was sucking her out, lickin’ her out and everything like that” (Count 9) (JIRT, A.380). The complainant said that the applicant “brought up” a pornographic video “how to do it” which they watched in the applicant’s bedroom and “then I did it” (JIRT, A.395-396). The complainant said “she told me to lift her legs up and do it that way. So I just did it” (Count 10) (JIRT, A.405). The complainant said the complainant brought up a “normal video, a porn, and then I, we just did it normally” (Count 11) (JIRT, A.395).

The applicant notes that these counts (9 to 11) were the first occasions on which the complainant says he agreed to intercourse (JIRT, A.374,384; 24/11/23; T 629.6).

The complainant in cross-examination agreed that he did not mention anal sex when he spoke to the detective on 15 May 2020 (16/11/23; T 103.10). The applicant notes that there was no evidence one way or the other as to whether cunnilingus had been mentioned to the detective in Penrith.

However, the complainant was adamant that both anal sex and cunnilingus occurred (16/11/23; T 170).

The only counts on which guilty verdicts were returned in relation to this alleged incident were the counts other than the anal sex count.

Counts 12-14 related to an alleged incident in which the complainant said he and the applicant had sex in the bathtub (JIRT, A.455, 458-459). The complainant said that he was having a bath; that the applicant came into the bathroom, got undressed, and sat on top of him; that the applicant put his penis into her vagina and started going up and down, “putting water everywhere” (JIRT, A.459) (Count 12).

The complainant said that he then said “this ain’t gonna work” (JIRT A.461); that they then got out of the bathtub and went into the bedroom; and that the applicant then performed fellatio on him until he ejaculated into her mouth (Count 13) (JIRT, A.462). The applicant said that an “hour or two” later, they had penile-vaginal intercourse in the bedroom (Count 14) (JIRT, A.462-465).

In cross-examination, the complainant was shown a photograph of the bath (Ex 4, number 15; 16/11/23; T 165.7). When it was suggested to the complainant that two people could not fit in the bath, the complainant said “I disagree. Actually, I honestly agree. I don’t know how she did it but we were both in the bathtub” (16/11/23; T 165.27).

The applicant’s friend, D, agreed that the bathtub was very small (22/11/23; T 472.30).

Other than the bath incident, the jury returned guilty verdicts on these counts.

Count 15 was alleged to have occurred “on or about 5 March 2020”, that being the day that the complainant was taken from the applicant’s house by police (24/11/23; T 629.34) (Crown closing address). The trial judge directed the jury, again without opposition from the Crown (24/11/23; T 605), that the date of the offence was an essential element (MFI 48; 28/11/23; SU 30-31).

The complainant said this was the last time he and the applicant had sex; and that it occurred in J’s bedroom, which had become his bedroom after J moved out (JIRT, A.544; ERISP, A.159). The complainant said that it occurred about four hours before he was removed and taken to hospital in a “paddy wagon” (JIRT, A.541, A.681-682) and that it happened an hour before the applicant left for work (JIRT, A.541).

The complainant described this incident as follows (JIRT, A.543):

The complainant said that he threatened to kill himself that day because he was angry with his sister (JIRT, A.689-690).

In cross-examination, the complainant agreed that: he went to Campbelltown Mall in the morning; that he was there with his father; that he walked home from the mall; that he met his father and the applicant at home; that there was an incident where he pushed his father into a bedroom wardrobe; and that the applicant went to work at about 2 o’clock (21/11/23; T 427-T 428). The complainant said that the sex occurred about half an hour after his father left (21/11/23; T 429.10).

The applicant points out that police records showed that at 8:34pm on 5 March 2020 a message was received over the police radio system in relation to threats of self-harm. At 9:09pm two police officers attended the applicant’s address. The complainant was detained under the Mental Health Act and taken to Campbelltown Hospital for assessment (16/11/23; T 134.38, 22/11/23; T 486.29). (See, also, 21/11/23; T 379.37-43 (DCJ records for this day).)

Records from the applicant’s employment agency showed that she worked from 3pm until 10pm on 5 March 2020 (Ex M; 22/11/23; T 482.35, 23/11/23; 531.43).

The boarder, Craig, gave evidence that he was present on the day the police took the complainant away from the house (21/11/23; T 400.5); and said that the applicant was at work when that happened, although he did not see her leave for work (21/11/23; T 400.21). Craig described the complainant as “agitated” earlier in the day before police arrival (21/11/23; T 400.18).

The 15 May COPS entry recorded that the complainant reported the final occasion as having occurred “four days before being scheduled by police” (16/11/23; T 102.20). In cross-examination, the complainant initially denied saying that to the police but then accepted it was possible he said that (16/11/23; T 102.42).

The Crown adduced, as context evidence, uncharged acts described by the complainant as well as evidence from the boarder, Craig.

The complainant said that, after the applicant’s daughter (J) moved out of the applicant’s home, sex with the applicant happened nearly every night or “almost every day” (JIRT, A.61, 621-623) and that it happened “nearly 50 times, 40 times” (JIRT, A.495).

The complainant also described an occasion where he said that the applicant took him on a holiday for a weekend to the Twin Towers Inn and had sex with him (JIRT, A.549-556, 590-602; 16/11/23; T 169-T 170 (cross-examination)). Records from the Twin Towers Inn in Greenwich showed a booking in the applicant’s name, arriving on 28 February 2020 and departing 1 March 2020 (Ex A showed that 2020 was a leap year) (see Ex O, 22/11/23; T 477-T 478, T 488-T 489, T 497).

The Crown submitted to the jury (at 24/11/23; T 629.42-T 630.3) that the evidence of other uncharged sexual activity provided some context as to sexual activity that was occurring between the accused and the complainant at this time, and that it placed those charges on the indictment in context, saying that “it is that other uncharged sexual activity that gives you an insight into the context of the accused’s conduct with the complainant”.

Craig’s evidence was that he lived at the applicant’s house for “roughly a year” and he was unemployed (21/11/23; T 382.49, T 385.20). As to his observations of the applicant and the complainant during the complainant’s time at the applicant’s house, Craig said the following: that on “one occasion” (21/11/23; T 399.29) and “more than one occasion” (21/11/23; T 399.40) there was “hand holding” (21/11/23; T 385.45); that the complainant “might have been the instigator” of it (21/11/23; T 398.50); and that it was “like when you’re in a relationship” (21/11/23; T 399.32) being a relationship between “husband and wife, or boyfriend and girlfriend” (21/11/23; T 425.35).

Craig said there were “hugs, like it’s kind of positive things, you know, so like what I’d show my child, I guess, is – so yeah, so hugs” (21/11/23; T 393.20); that there was snuggling, which he regarded as unusual (21/11/23; T 397-T 398); and that on one occasion (21/11/23; T 393.32, T 405-T 406) when he was in the lounge room, he saw both the applicant and complainant (21/11/23; T 394.29) enter the applicant’s bedroom (21/11/23; T 397.11) and that he then heard what he described as “sex sounds”, which lasted for about eight minutes (21/11/23; T 394-T 395, T 406.33). Craig said that the sounds came from a male voice (21/11/23; T 395.34). (The complainant said in his JIRT interview at A.509 that the applicant would “keep, like, a ball or some shit in her mouth to stop her from moaning and stuff”.) Craig said that “it could have been meant as a joke” (21/11/23; T 393.26, T 394.50) and he said that he did not know if he saw them come out (21/11/23; T 396.40).

In cross-examination, Craig maintained that evidence (21/11/23; T 422). Craig also said in cross-examination that: the hugs and the snuggling, but not the hand holding, could be described as “motherly” (21/11/23; T 405.40). (It will be recalled that he had described the hugs as like what he would show his child, by which he must have been referring to paternal hugs.) Craig said that he was a “little concerned” about the sounds and that he “might have” told a friend or his then partner about it but he was “not so concerned to report it” (21/11/23; T 406). Craig agreed that he did not attempt to record the sounds on his laptop (21/11/23; T 414.11). Craig also agreed that the police attended the applicant’s house on “maybe three or four” occasions in November and December 2020 (21/11/23; T 410.50). Craig appeared to accept that he did not raise with the police concerns about the applicant and complainant (21/11/23; T 410-T 411).

Craig said that he never saw the complainant drunk or intoxicated from drugs during his time at the applicant’s house (21/11/23; T 412.31).

In relation to Craig, Detective Kelly gave evidence of various COPS event recordings to the effect that: on 12 November 2020 police attended the applicant’s house because of a rental dispute between the applicant and Craig (23/11/23; T 528.27); on 14 November 2020 the applicant made an allegation against Craig for recording her on his laptop (23/11/23; T 527.38) and that Craig had been recording their interactions as he believed the applicant had made false allegations about him at the Rental Tribunal to have him evicted (23/11/23; T 528.7); Craig was charged with an assault against the complainant’s father, alleged to have occurred on 23 November 2020 (23/11/23; T 524.31); there was an incident on 25 November 2020 where Craig had been served with an eviction notice and there was an argument with M (the complainant’s cousin) (23/11/23; T 525.42). Detective Kelly gave evidence that Craig made his statement to police about the applicant’s case on 1 September 2022 at a time when Craig’s assault charge had not been finalised and it would appear the applicant was going to be called as a witness in that case (23/11/23; T 527). Detective Kelly said that “work” caused a delay in him taking a statement from Craig (23/11/23; T 525.24). The assault charge was dismissed on 31 January 2023 (23/11/23; T 526.50).

Craig agreed that his assault case was pending when made his statement to the police (21/11/23; T 414.33) but he denied that he made his statement to police as “payback” for what the complainant’s father and the applicant were saying in relation to the assault allegation (21/11/23; T 410.10, T 422.41).

Craig agreed that he met with the DPP on 24 August 2023 and that he said during that conference “you scratch my back, and I’ll scratch yours” (21/11/23; T 419.48). Craig said that he was “trying to pull out” of giving evidence (21/11/23; T 420.19). Craig said he asked the DPP to look into his case (which, he explained in re-examination, was a reference to a case involving his child, 21/11/23; T 425.17) (21/11/23; T 420.20).

The Crown submitted to the jury (at 24/11/23; T 632.24-32), that if Craig’s evidence of the snuggling, hand-holding and the sex sounds was found to be evidence of activity of a sexual nature occurring between the accused and the complainant, the jury could use that as evidence of other sexual acts “that places the charges on the indictment and those alleged incidents reflected in the counts on the indictment into the context that was actually occurring at the time”. Again, it was said that the jury would then have “the context of the accused’s conduct with the complainant and get a real insight into the nature of their interactions which makes the charged incidents easier to comprehend”. (There was discussion as to the use of context evidence in the absence of the jury at 22/11/23; T 515-T 516, 23/11/23; T 591-T 592.)

In summary, in her ERISP, the applicant said the following.

As to the circumstances of the complainant coming to her home, that: “he rocked up on my doorstep” and she was not aware as to how he arrived (ERISP, A.117-127); and she did not know why he did that (ERISP, A.405); the complainant arrived at about 1:30 or 2am (ERISP, A.382); the complainant said “I can’t handle it at dad’s anymore, I had to get out” (ERISP, A.385) and she told him that he could sleep on the couch and that she would be calling his father “first thing in the morning” (ERISP, A.386).

The applicant said that her house was a 20-minute drive from the complainant’s father’s house (ERISP, A.381). The applicant said that in the morning she contacted the complainant’s father, but that he was already on his way to her house (ERISP, A.387); and that he arrived at her house at about 8 or 8:30 in the morning (ERISP, A.383). The applicant said that the complainant’s father demanded that the complainant get in his car, and she said they were “screaming at each other” (ERISP, A.393). She said that AB was “there for a while” but he left once Catholic Care got involved. She said that Catholic Care took the complainant out but brought him back about an hour later (ERISP, A.397-400).

The applicant agreed that the complainant lived with her from late December until early March (ERISP, A.130-131). The applicant said that she “treated him like any of my other children” (ERISP, A.133). The applicant said that “I wouldn’t say it was one of the best relationships at all” as she “reported to Catholic Care on multiple occasions and to FACS worker[s] that [the complainant] was belting me while in my, in my care” (ERISP, A.133).

As to the living arrangements at her house, the applicant said that: the complainant slept in multiple rooms while he was living there (ERISP, A.135); Craig (the boarder) was living there (ERISP, A.106-107) and that he was unemployed and was “home a lot” (ERISP, A.191-193); and D (her friend) was there a lot and D’s daughter, G, “would come over as well” (ERISP, A.101-104).

Asked if the complainant ever slept in her room, the applicant said that he used to watch TV in her room and would sometimes fall asleep; that she would leave him there and close the door (ERISP, A.160-164). She said there was also a TV in the lounge room (ERISP, A.164).

The applicant said that her relationship with the complainant’s father was “hostile” during the period in which the complainant lived with her; and that this was because the complainant’s father wanted the complainant back at his house and the complainant was refusing to go (ERISP, A.194-196).

The applicant described her employment situation (ERISP, A.210-236). The applicant said she was driving a Mazda 3 around the time that the complainant lived with her (ERISP, A.269) but confirmed that she previously had a “Territory” (which the complainant’s father now had) (ERISP, A.276-278).

The applicant denied committing any sexual offences against the complainant (ERISP, A.518-520). The applicant denied ever supplying the complainant with alcohol or drugs (ERISP, A.286-288, 507-510); said that she had never seen the complainant drink alcohol or use drugs of any kind (ERISP, A 286-288) although he was on antidepressant tablets that assisted him to sleep (ERISP, A.404). The applicant said that she was “very anti-drugs” and had “never touched drugs” in her life (ERISP, A.289). The applicant confirmed that she did drink alcohol (ERISP, A.279) limited to “a glass of wine with dinner…usually on weekends” (ERISP, A.508-509). The applicant said that if she was working, she did not drink as her employment contract prohibited her from drinking alcohol within 12 hours of starting a shift (ERISP, A.509). The applicant said that she “wouldn’t even buy [her] own daughter alcohol” (ERISP, A.510).

As to the alleged Sandon Point incident, the applicant: denied ever travelling with the complainant to Wollongong so that he could meet his sister (ERISP, A.205); denied having sex in the car with the complainant near a beach (ERISP, A.206); and denied that there ever was sexual intercourse in her bedroom with the complainant upon returning from Wollongong (ERISP, A.207-208). The applicant said that she never drove the complainant to Wollongong during the time that he lived with her (ERISP, A.266-268).

As to the complainant’s final day of living with her, the applicant said that: she and the complainant met the complainant’s father at Campbelltown Mall (ERISP, A.242); while they were sitting opposite the fish shop, the complainant “lost his shit right in the middle of Campbelltown mall…he went absolutely crazy” (ERISP, A.246-248); the complainant walked home and the complainant’s father followed him; and she drove home. The applicant said that the complainant “smashed … up” her house (when he got home); that the complainant “belted” his father and pushed him through the bedroom wardrobe (ERISP, A 248) and that he also “belted” her (ERISP, A.248).

The applicant said that “we called his caseworker” who instructed the complainant’s father to leave (ERISP, A.248). The applicant went on to say that the complainant’s father was “like, I’m not leaving, like [the applicant’s] in danger” and that she had to go to work (she started work at 2 o’clock) so the complainant’s father left the house but he waited and probably 10-15 minutes later the complainant’s father “escorted” or drove her to work because he was concerned as to her welfare; and the complainant was left in the company of Craig. The applicant said that later she received a message from Craig saying that the police and the ambulance had arrived for the complainant and that he was being scheduled under the Mental Health Act (ERISP, A.249).

Asked if she ever stayed in a hotel room with the complainant (ERISP, Q.434), the applicant said that: she stayed in a hotel room (the Twin Towers Inn) with the complainant for two nights, being the Friday and Saturday nights (ERISP, A.434-450, 465-470); that the complainant slept on the bed and that she slept on the lounge (ERISP, A.434); that the reason she did that was because her aunt, who was “like [her] mum”, died at Royal North Shore Hospital and she was too distraught to drive home (ERISP, A.434-480) and that the hotel room was within walking distance of the hospital (ERISP, A.442). The applicant said that she received a call on the Friday informing her that her aunt was “on her last legs” and her aunt died on the Saturday (ERISP, A.465-470). The applicant gave her aunt’s name and that of her widower and said that he lived in Chatswood (ERISP, A.498-501). The applicant denied that it was for a romantic weekend (ERISP, A.497-506).

Asked why the complainant would make these allegations against her, the applicant said “because the kid hates my guts. And there’s no other way to say it. He is looking for a way to break [the complainant’s father] and I up” (ERISP, A.409). The applicant also said that the complainant made a comment to the complainant’s father that “everyone was gunna pay for ah, for him being in foster care, and this is his way of doing it” (ERISP, A.413).

The applicant said that she had been aware of the police investigation since April 2021 (ERISP, A.433), when the complainant’s father came to her house and told her what was going on; and she said that the complainant’s father had phoned the complainant and the complainant said to him “Well, I’m causing you a lot of drama now”.

Detective Kelly gave evidence that he was unable to verify the death of the applicant’s aunt (this being the reason that the applicant gave for staying at the Twin Towers Inn). Detective Kelly said that: he did not find any confirmation in police records for the aunt’s death over about a 12-month period despite using a variety of spellings for the aunt’s name (22/11/23; T 480.47); Royal North Shore Hospital, including the hospital’s morgue, did not have records of a person with that name (or a similar name) passing away at that time (22/11/23; T 480-T 481); the Ryerson Index, a list that records all deaths in Australia, also did not list that name (or a similar name) during the 18-month timeframe that he searched (22/11/23; T 481.16). Detective Kelly also could not locate the person said to be the aunt’s widower in the Chatswood area but acknowledged that he did not do a driver’s licence search and did not request from the applicant that person’s phone number or email address (23/11/23; T 523-T 524).

Detective Kelly applied for a warrant to obtain the complainant’s school records but said that “the local registrar knocked it back saying that the school wasn’t involved in the incident” (22/11/23; T 482.45).

Detective Kelly did not ask for the applicant’s phone when he arrested her (22/11/23; T 502.22). Detective Kelly made enquiries into obtaining the complainant’s phone but was told by the complainant that the phone was broken (22/11/23; T 502.29). Detective Kelly did not obtain any Snapchat messages (22/11/23; T 487-T 488); he obtained a few telephone records (22/11/23; T 487, T 498-T 499) but no cell tower records (22/11/23; T 501).

Detective Kelly obtained work records from one organisation which showed the applicant did not work for that organisation from 16 December 2019 to 5 March 2020 (22/11/23; T 488.11) but he acknowledged that that applicant’s work records from two other organisations “may not have been requested” (23/11/23; T 523.16).

Detective Kelly did not seek any CCTV footage that might have assisted in verifying the alleged trip to the forest area on 17 or 18 December 2019 (22/11/23; T 495.3); he thought enquiries were made into obtaining CCTV of 29 December 2019 at Cartwright McDonald’s, but such footage was only kept for a period of time and it was not available at the time of complaint (22/11/23; T 495.27).

Detective Kelly did not seek to carry out a Forensic Procedure on the applicant to photograph any scars on her body (22/11/23; T 506.28).

Detective Kelly obtained medical records that showed the applicant was admitted to hospital overnight on 18 May 2020 following an incomplete miscarriage on 15 May 2020 (Ex 11, 23/11/23; T 530-T 531). Those records contained a note that indicated “LMP 16/3/20” (which, if this was a reference to last menstrual period, suggested that the applicant had menstruated after the time that the complainant was removed from her house, which presumably may have been relevant to any suggestion that the miscarriage was of a pregnancy involving the complainant but this is speculation because Detective Kelly did not know, nor apparently did he seek to find out, the meaning of the initials “LMP”).

There were in evidence certain Agreed Facts dated 23 November 2023, recording that it was agreed that the applicant exchanged messages between 4 and 15 May 2020 with a representative of the DCJ about her pregnancy, including: informing the Department on 4 May 2020 that she was pregnant; that the complainant’s father was the father; and, on 15 May 2020, informing them of the baby’s lack of heartbeat (Ex R, 23/11/23; T 559). The complainant’s father gave evidence as to this (17/11/23; T 246.17).

As noted above, in 2018, the complainant made allegations that he was verbally and physically abused by Mr and Mrs B (the complainant’s then-foster parents) (VD Ex 6). Catholic Care engaged a private investigator to look into these claims. In a report dated 30 November 2019, the investigators found that none of the allegations was sustained. The fact of this investigation, and the result of the investigation, were matters before the jury (see 16/11/23; T 114-T 116.36; 20/11/23; T 311-T 313; 21/11/13; T 440).

At some stage Catholic Care placed the complainant with a disability and youth services organisation. On 19 July 2020, the complainant met with a youth worker, Ms Josephine Kannan from that organisation. Ms Kannan’s note of this meeting was in evidence before the jury (VD Ex 5) (see 21/11/23; T 380). The note records that:

Significantly, in cross-examination, the complainant admitted that most of the record was accurate, though he denied saying the works “I can just say I fucked you” (16/11/23; T 117). The complainant agreed that for the month that followed this incident, only males worked with him (16/11/23; T 118.17).

At [18] of her 8 September 2022 statement (VD Ex 8), G referred to a conversation (by phone call or text message) with the complainant, during which she said the complainant said that “he was doing everything to get [the complainant’s father] and [the applicant] to break up” and at [19] of this statement G stated that “it was during this time when [the complainant] was with [the applicant] that he sent me a message that [the applicant] had raped him”. G noted in her statement (at [19]) that “[she] wasn’t sure if [the complainant] was kidding or not as you hear this comment in care all the time”. This was reiterated by G during cross-examination (17/11/23; T 282.49).

The complainant disagreed that he said this to G but did agree that he told G that he did not want his father to be with the applicant (16/11/23; T 121).

There is no complaint as to the directions given by the trial judge to the jury. Those directions included directions to the effect that trauma may affect people differently in how they present (28/11/23; SU 7), and in how they recall and describe events (28/11/23; SU 12-13) and that there may be good reasons for a delay in a complaint (28/11/23; SU 60); that it is not necessary to accept or reject everything that a witness says (28/11/23; SU 8-9, 13) but that if the jury rejected parts of a witness’ evidence, the jury would need to look at the reasons for doing so and consider whether that impacted upon the jury’s ability to accept the witness’ evidence in other respects (28/11/23; SU 13); and as to the need to consider separately each count on the indictment as well as a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (Markuleski) (28/11/23; SU 23-25).

Directions were also given as to the onus and standard of proof (28/11/23; SU 20); and that it is not altered because a motive to lie was raised (28/11/23; SU 35). It was noted that the Crown “essentially” relied on the complainant’s evidence to prove each charge (28/11/23; SU 37).

The trial judge gave the jury directions about context evidence (28/11/23; SU 49-57), as follows.

As to the complainant’s evidence about other sexual misconduct by the applicant, the trial judge noted (28/11/23; SU 49-50) that: the evidence was admitted solely for the purposes of placing the complainant’s evidence into “what the Crown says is a realistic and intelligible context”; that is, it avoided “any artificiality or unreality” in the presentation of the evidence and allowed the complainant more naturally and intelligibly to explain his account about what allegedly took place during the charged acts; the evidence could not be used as establishing a tendency and tendency reasoning was not permissible; and the evidence must not substitute the evidence of the specific charges on the indictment.

As to Craig’s evidence (28/11/23; SU 51), the trial judge said (28/11/23; SU 53) that “[t]he limited relevance of this evidence is that it, again, is admitted solely for the purposes of placing the complainant’s evidence towards proof of the particular charges on the indictment into what the Crown says is a realistic context”. Her Honour made clear that the evidence could not be used as supporting proof of any of the particular charges on the indictment, saying that the conduct described by Craig did not relate to any of the specific charges on the indictment and so must not be used in proof of any of the charges (28/11/23; SU 54). Again, her Honour said that the evidence could not be used for tendency purposes and could not be used as a substitute for the evidence of the specific charges on the indictment (28/11/23; SU 54).

A direction was given about complaint evidence in relation to G (D’s daughter) (28/11/23; SU 57).

Directions were given about witnesses not called by the Crown (namely, Mustafa and the complainant’s aunt, who the complainant said the applicant had taken him to Wollongong to visit – after which Count 7 was alleged to have occurred) (28/11/23; SU 60); inadequacies in the police investigation (28/11/23; SU 62); and the limited use of evidence about disclosures the complainant made to counsellors (28/11/23; SU 61 and 24/11/23; T 636-T 637).

Directions were also given about the applicant’s good character (28/11/23; SU 62); lies as relevant to credibility (28/11/23; SU 63); the failure to give evidence at trial (28/11/23; SU 69); and a Liberato direction (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 direction (28/11/23; SU 70) given the applicant’s denials of wrongdoing in her police interview).

Her Honour then dealt further with further specific issues raised by the jury (29/11/23; SU 91) that it is not necessary here to record.

As noted above, Ground 1 of the grounds of appeal is an unreasonable verdict ground in relation to the jury’s guilty verdicts (i.e., the verdicts on counts 6, 9, 11, 13 and 14). The applicant contends that the guilty verdicts are unreasonable, or cannot be supported, having regard to the evidence (s 6(1) of the Criminal Appeal Act).

The Crown, in its submissions, dealt with the grounds in reverse order, arguing that Ground 2 must be resolved before Ground 1. The applicant, to the contrary, dealt with the grounds in chronological order. Ultimately, nothing turns on the difference in approach. The same outcome is reached on the respective grounds whichever is considered first.

The applicant submits that it was not open to the jury, on the whole of the evidence, to be satisfied of the applicant’s guilt on any count because proof of each count relied almost exclusively on the complainant’s evidence and his credibility was significantly diminished (because of general claims he made that were either fantastical, contradicted by unchallenged evidence, inconsistent or otherwise unworthy of acceptance) and his claims about each count were, at times, inconsistent, countered by other evidence, and lacking in plausibility. (For convenience, the Crown’s response to particular submissions is noted immediately following those submissions.)

As to the first of these propositions (that there was only limited evidence that supported the complainant’s version of events), the applicant notes that, in the Crown’s closing address, the Crown Prosecutor identified three aspects of the evidence said to support the applicant’s account (24/11/23; T 630.47).

First, the evidence of the complainant’s sister and his former foster parents (Mr and Mrs B), which was relied upon as support for Count 7; in particular, their evidence that the complainant made a short visit to their residence in Thirroul.

The applicant accepts that, to some extent, their evidence (and particularly the evidence of the complainant’s sister) provides some support for the complainant’s evidence that the applicant drove him there; and that this, in turn, undermined part of the applicant’s interview with police (ERISP, A.205, 266). However, the applicant says that their evidence did not go further in proving that a sexual crime occurred. Hence the applicant argues that the value of their evidence was relatively limited, particularly when weighed against the confusing chronology associated with Count 7 (and Counts 5 and 6).

In that regard, it should be noted that: the complainant’s account of the trip to Thirroul on the day he ran away from his father’s home was itself confusing. On his initial account to the police there was no mention of this; rather, he said he was picked up by the applicant from the McDonald’s at Cartwright in the early hours of the morning and went to the applicant’s home (where various sexual offences occurred).

The applicant adamantly denied in her ERISP that she had picked the complainant up from McDonald’s and said that he just “rocked up” on her doorstep. The applicant denied driving the complainant to Thirroul.

The foster parents and the complainant’s sister all said that the complainant came to their house early in the morning of 29 December 2019 (they put this at various times but this must have been before 8:51am, given that Ms Egbers had contacted Mrs B at that time, during which conversation Mrs B said that the complainant had been to the B’s residence earlier that morning). The Catholic Care records place the call as to the complainant being missing at 8:51am (21/11/23; T 433).

Only the complainant’s sister gave evidence of seeing a car that looked exactly the same as the applicant’s up the hill with a woman in the car but she did recall that the complainant said that the applicant was waiting for him. However, the complainant’s sister had also told the DPP that the occasion where she saw a woman in a car up the hill was a different occasion (in October 2019).

The complainant’s father’s evidence was that he realised his son was not at home about 6.30am (17/11/23; T 200-T 201). The complainant’s father said that when he went to the applicant’s house (although he said that this was at 8:30pm it appears from other evidence that this was in fact some time in the morning – see 23/11/23; T 568) no one was there. On any version of events this is hard to reconcile with the complainant’s account as to the presence of the applicant’s daughter in the house at the time (the complainant said that the applicant wanted to hide him from her). The complainant’s father then said that when he went back (a short time later) he saw the complainant coming to the house. There was no reference to him seeing the applicant with the complainant at that time.

The evidence thus supports a conclusion that the complainant did visit Mr and Mrs B’s house, and his sister, in the morning of 29 December 2019 (after he had run away from his father’s house and before the call to Catholic Care) but does not establish beyond reasonable doubt that the applicant drove him there. (There is also some doubt as to the vehicle that the applicant would have driven had she taken the complainant to Thirroul.) The fact that the complainant’s father spoke only of seeing the complainant going into the house is consistent with the applicant’s denial that she had driven him to Thirroul (although as already noted the Crown submitted that his evidence had been tailored to support the applicant).

Second, there was the complaint evidence of G (24/11/23; T 631). The applicant says that this evidence was not independent of the complainant (presumably on the basis of the complainant’s friendship or alleged sexual relationship with G) (citing Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [17] per Gleeson CJ and Hayne J); and that it had limited value. The applicant further says that the timing of the complaint being made was uncertain (17/11/23; T 277-T 282); its content was minimal (17/11/23; T 277.33) and, being in the form of a short message, there was no detail; and that there was no associated evidence about the complainant exhibiting distress. It is noted that G was asked if she spoke to the complainant further about the message and she said “no” (17/11/23; T 277.35). The applicant says that this was also not evidence that could be attached to any particular count on the indictment.

Third, the Crown referred to the evidence of Craig (24/11/23; T 631). The applicant points to the limitations of this evidence and submits that this evidence was also of modest evidentiary value. The applicant points to the various bases on which this evidence was criticised in closing address at 24/11/23; T 652-T 653. If the evidence be accepted, the applicant nevertheless submits that it: did not relate to any charge on the indictment and could not be used as supporting proof of any particular charge on the indictment (28/11/23; SU 54); could not be used to demonstrate the applicant had a tendency such as to have a sexual interest in the complainant or to act on that sexual interest (28/11/23 SU 54); and was relied on by the Crown only to place the complainant’s allegations into a “realistic context” (28/11/23; SU 53).

The applicant accepts that Craig’s evidence had a limited capacity to support the complainant’s credibility but says that this capacity was limited by reason of the fact that it did not relate to any charge on the indictment and could not be used to demonstrate tendency (citing Qualtieri v R (2006) 171 A Crim R 463 at [119]-[120]; [2006] NSWCCA 95).

Fourth, the Crown argued that the applicant’s interview was not true in relation to three matters: first, the circumstances as to how the complainant arrived at her house; second, the trip to Thirroul to visit the complainant’s sister; and, third, the reason for staying at the Twin Towers Inn (Crown closing at 24/11/23; T 625-T 627). The applicant submits that even if this argument was accepted, the matters in question were not capable of advancing the Crown case; rather, at most, they undermined the credibility of the applicant’s denials of guilt, which, if rejected, were to be put to one side (24/11/23; T 627).

Thus, the applicant argues that, properly analysed, this was a case that depended heavily and almost exclusively on the complainant’s evidence.

As to the second of the propositions put by the applicant, the complainant’s general credibility, the applicant argues that the following matters in combination showed that the complainant was not a reliable witness, and that the jury was required to be cautious about accepting the complainant’s evidence, particularly given the limited support from other sources of evidence.

First, the complainant’s evidence (described as fantastical) about the applicant having had twins, which the applicant says was demonstrably untrue. In his JIRT interview, the complainant said that: the applicant and his father had twins two or three months before the complainant moved into her house (JIRT, A.533); the twins were a boy and girl named Connor and Shelby (JIRT, A.665-666); and the girl (the complainant’s half-sister) died while in the complainant’s arms (JIRT, A.533-537). When asked where the death occurred, the complainant first said Nepean Hospital and then that he could not tell what hospital because the applicant’s other daughter (J) was born there and that “Shelby was somewhere up Newcastle way because that’s where she was at the time” (JIRT, A.666-668). When asked what happened to the other twin, the complainant said “I dunno” (JIRT, A.670).

The complainant said that the applicant had named his dead half-sister with him and that the applicant “said that I had to replace her” (JIRT, A.536). (The applicant submits that this comment seemed to be some kind of attempt by the complainant to link the death of the twin with the alleged offending, which involved unprotected penile-vaginal intercourse.)

The applicant notes that the complainant told the police that everything he told them in his interview was 100 per cent true (JIRT, A.709); and that, similarly, after watching that interview in court, the complainant told the jury, on oath, that everything he said in the police interview was true (16/11/23; T 94.10).

When it was put to the complainant in cross-examination that this evidence was a “complete fabrication”, the complainant maintained that this evidence about twins was true, insisting that the applicant had told him the twins were her children, as well as their names (16/11/23; T 122).

The applicant points to the following evidence at trial that contradicted the complainant’s evidence about the twins.

First, the evidence of the applicant’s daughter, J, who was living with the applicant until 10 January 2020, that: her mother did not have twins; did not have a child named Connor or Shelby; and did not have a child that died in January 2020 in the Nepean Hospital (17/11/23; T 268). Second, Detective Kelly’s evidence as to the enquiries that he made about this subject, including speaking to a number of agencies that dealt with the applicant at the relevant time, and nothing in that evidence suggested that the applicant had ever had twins or a child that died in the circumstances described (22/11/23; T 505-T 506).

The applicant submits that there should be a finding that this evidence about the twins was a lie; that the lie was elaborate; and, given the complainant’s statement that the applicant said he had to replace the dead girl, the applicant says that it was intertwined with the allegations at trial.

As to the complainant’s evidence that the applicant had told him that she had twin babies, and that he had held one of the babies in a hospital (16/11/23; T 122.22-36, T 123;), the Crown accepts that there was evidence in the trial that suggested that the applicant did not have a twin pregnancy but says that this does not preclude the complainant’s evidence that the applicant had told him that she did. The Crown points to the complainant’s understanding being that the birth had occurred prior to him moving in with his father in October 2019 (JIRT, A.533); and submits that the history of the relationship between the complainant and his father was such that it cannot be inferred that the complainant’s account is a deliberate lie in circumstances where there was no evidence that he saw his father or the applicant regularly prior to October 2019 and the complainant had no reason not to accept what he may have been told by the applicant.

The Crown suggests that the complainant’s evidence on this topic may have been an honest but mistaken belief, that is, that he had either misunderstood or been misled by the applicant. Pausing here, while that submission might have force in relation to the allegation of the twin births, it hardly explains the reference to the complainant having actually held the deceased baby (or his account of having named the twins with the applicant). Both of those matters cannot be reconciled with a misunderstanding as to what the applicant had told him and they show the elaborateness of the lie.

Second, the applicant points to the history of the complainant telling elaborate lies about having children. The applicant notes that documents held by the DCJ included an entry dated 1 November 2019 where the complainant reported (21/11/23; T 378.39):

The applicant notes that this claim by the complainant suggests that he fathered the child at the age of 11, and that the child would have been conceived when he was still aged 10.

A case note held by Catholic Care dated 6 March 2020 read (20/11/23; T 314.28, 21/11/23; T 439):

Ms Turner, a child protection caseworker employed by DCJ, gave evidence that DCJ had no information that the complainant had fathered a child (21/11/23; T 379.2).

Ms Hampson, the complainant’s case manager from Catholic Care, said the complainant did not have any children (20/11/23; T 315.5). Her manager, Ms Egbers, gave evidence to the same effect (21/11/23; T 439).

In cross-examination, the complainant: admitted that he did not have a child that was two years old in November 2019 (16/11/23; T 122-T 123); denied ever telling a worker the matters recorded in the DCJ entry dated 1 November 2019 (16/11/23; T 123); and admitted that he did not have any children as at 5 March 2020 (16/11/23; T 124).

The applicant submits that it should be concluded that the complainant told lies about these matters; and says that the lies are elaborate (referring to the one about permitting the life support to be turned off). The applicant notes that they are relatively proximate to the time the complainant made his allegations in this case; and they also concern a subject matter not dissimilar to the trial in that the complainant told police the applicant was determined to, and did, become pregnant to him (JIRT, A.61, A.167; 16/11/23; T 126).

As to the reliance placed by the applicant on the statements recorded in the Catholic Care case notes (as to the complainant having said that he had fathered children), the Crown submits that the highest that the evidence rose was that the case notes existed in the relevant file(s). It is noted that no witness was called to give evidence to the effect that he or she had heard the complainant make these representations and the case notes were not tendered as evidence (rather, the content of the notes was adduced through cross-examination of an employee of Catholic Care).

The Crown points out that the complainant denied that he had made each of the representations (16/11/23; T 117-118, T 123). (Pausing here, the history recorded in the DCJ case not – as to the complainant having said that he had agreed to the life support being turned off – seems such an extraordinary statement to have been made that it surely cannot be explained away simply by the carer mishearing or misunderstanding what was said by the complainant at the time. Further, if it was indeed a statement made to the carer then the apparent lack of any investigation into the statement at the time suggests that it was viewed as nothing more than a fantasy on the part of the complainant.)

Third, the complainant claimed to have had sexual activity with G.

In particular, the complainant told the police that (JIRT, A.519-531): he had sex with G on the lounge in the backyard at the applicant’s house and that G had told him that she wanted to have a child with him. In cross-examination, the complainant maintained these claims, on oath (16/11/23; T 124-T 125).

Later in the trial, the complainant said that he slept with G on the day he moved into the applicant’s house (23/11/23; T 573.30) (a claim that the applicant says is undermined by his other claims that he had sex with the applicant three times that day, notwithstanding the large number of visitors to the applicant’s home that day).

The applicant notes that G gave unchallenged evidence to the contrary (17/11/23; T 283-T 284), giving evidence that: she had never had sex with the complainant; she had never seen the complainant at the applicant’s house; and she had never had a conversation with the complainant about wanting to have a child with him.

The applicant emphasises that G’s evidence was unchallenged and submits that, where the complainant’s credibility was plainly the critical issue, it should be concluded that the complainant’s evidence about G is not true and that the complainant lied to the police (a lie repeated under oath). The applicant says that it is significant that the lie concerned the subject matter of sexual activity in the applicant’s home during the alleged offence period.

As to the inconsistency between the complainant and G about whether they had engaged in sexual intercourse, again the Crown says that this was not evidence which required the jury to have a doubt about the central allegation against the applicant. The Crown argues that this was a tangential matter (such that the inconsistency did not require the Crown to cross-examine G regarding whether they had sexual intercourse) and that it was open to the jury to accept the evidence of the complainant in respect of the sexual activity with G, and to prefer his evidence over that of G. (Pausing here, that submission does not appear to recognise that if the evidence of the complainant as to sexual activity with G on 29 December 2019 was accepted by the jury then this cast doubt on other allegations by the complainant, including that he lost his virginity to the applicant.) The Crown says that even if the jury accepted the evidence of G, that inconsistency did not require doubt about the complainant’s evidence in respect of the applicant. The Crown emphasises that it was the fundamental role of the jury to assess the weight to be given to any inconsistencies.

Fourth, the applicant points to the inconsistency in the complainant’s statements as to the loss of his virginity. It is noted that the complainant told the police that he lost his virginity to the applicant (MFI 39) (JIRT extracts) but that in a recorded conversation with his cousin M, on 21 June 2023, the complainant told M that he lost his virginity to G (Ex Q, 23/11/23; T 534). The applicant notes that this was in a conversation where sex with the applicant was a topic of conversation. The applicant notes that, when confronted with this recording, the complainant reverted to claiming that the applicant took his virginity (23/11/23; T 573-T 574).

The applicant says that, at best for the complainant, these different versions as to the identity of his first sexual partner are inconsistent. The applicant says that the inconsistency is on a subject matter that was critical at trial.

Interposing here, the evidence as to loss of the complainant’s virginity whether to G or the applicant is also inconsistent with his claim (as recorded in the DCJ entry of 1 November 2019) that he had fathered a child who was then two years old (since that must have occurred in 2017).

Fifth, as noted earlier, the applicant refers to the DCJ note of the interaction between the complainant and Ms Kannan, the youth worker, on 19 July 2020 (see above).

The applicant says that the contents of the note demonstrate the complainant’s appreciation and consciousness of the influence he can have on others by making allegations of unlawful sexual intercourse; and that this also shows a casual attitude towards the making of such grave allegations. The applicant says that this is not insignificant in the context of a trial where it was the defence case that the allegations were fabricated to cause a breakdown in the relationship between the applicant and the complainant’s father.

The applicant also refers to G’s evidence that, while the complainant was living with the applicant, the complainant told G in a phone call or message that “he was doing everything to get [the complainant’s father] and [the applicant] to break up” (17/11/23; T 281.27, T 283). It is noted that, while the complainant disagreed he said that to G, he did agree he told G that he did not want his father to be with the applicant (16/11/23; T 120-T 121).

As to the reliance placed by the applicant on the statements recorded in the DCJ case notes (as to the complainant saying “I can just say I fucked you” to a female carer), the Crown again submits that the highest that the evidence rose was that the case note existed in the respective file and that no witness was called to give evidence to the effect that he or she had heard the complainant make these representations. The Crown again points out that the complainant denied that he had made the representations (referring to T 117-118, T 123), though it should be noted that the complainant accepted that most of the note was accurate. (Pausing here, it is significant that the response by Ms Kannan, as recorded in the note, was to cancel her shift immediately; and that her employer appears to have responded to the making of the statement by replacing the female carer with a male carer. This is corroborated by the complainant’s acceptance that for a time after this did not have a female carer. This strongly suggests that the statement reported by the female carer was taken seriously by the DCJ.)

Sixth, the applicant notes that the complainant made allegations of physical and verbal abuse against his former foster parents (Mr and Mrs B), which were investigated and found not to be sustained (Exhibit 8, 16/11/23; T 116.36, 20/11/23; T 311-T 313, 21/11/23; T 440). It is noted that notwithstanding the making of the allegations, the complainant’s younger sister has continued to live with those same foster parents.

The applicant accepts that the fact that previous allegations against parental figures were made and not sustained cannot be equated with a finding that the allegations were conclusively false. However, it is submitted that the fact that previous allegations against parental figures were made and not sustained is of some relevance when viewed in combination with the other matters raised in these submissions. It is submitted that the finding has significance when the issue here is whether it was open to accept, beyond reasonable doubt, the complainant’s allegations made against another parental figure.

As to the fact that allegations made by the complainant on another occasion about his out of home carers were found to be unsustained (on the balance of probabilities), the Crown says that this finding (which the applicant in her submissions accepts cannot be equated with a finding that the allegations were false) cannot be used to reason that the allegations were false; nor that this establishes a tendency on the part of the complainant or pattern of making false accusations against parental figures.

Seventh, the applicant refers to inconsistency in the account given by the complainant to Penrith Police on 15 May 2020 (less than two weeks before the interview with Detective Kelly and only two months or so after the offence period).

The applicant points out that the detective recorded the first reported incident as occurring towards the end of January 2020 in the applicant’s home (16/11/23; T 112.11, 22/11/23; T 491); and that there were notable omissions in that account (anal sex, a dildo, or anything happening in a car). The applicant accepts that the jury was informed about the care required when considering the significance of inconsistencies in sexual assault matters (28/11/23; SU 12-13, Criminal Procedure Act 1986 (NSW) s 293A (Criminal Procedure Act)) but says that those inconsistencies, including those by omission, were matters that (when combined with the other matters raised above), contributed to significant doubt about the complainant’s version. The applicant emphasises that the inconsistencies in the account given to the Penrith detective were not just important to the relevant count (such as the count involving anal sex), they impacted upon the applicant’s overall credibility.

Eighth, the applicant points to the further contact that was initiated by the complainant with her, as follows.

There was evidence of in person contact between the applicant and the complainant on 9 March 2020 (17/11/23; T 247, 23/11/23; T 532.36). The applicant points out that the complainant agreed that he lied to the police about this in that he told them on 28 May 2020 that the last time he saw the applicant was on 5 March 2020 (JIRT, A.679-681; 16/11/23; T 148-T 149). There was also evidence that the complainant visited the applicant, with others, on 27 December 2020 (17/11/23; T 247); and a series of Facebook messages sent in early 2021 where the complainant sought to reinitiate contact with the applicant (months after his complaint to the police) (Ex 2, 16/11/23; T 156-T 159).

The complainant’s cousin, M, gave evidence that, during his phone call with the applicant on 21 June 2023 (but at a point when he was not recording it), the complainant asked if he could go to the applicant’s house as he needed somewhere to stay (23/11/23; T 537-T 538). The complainant denied any memory of that (23/11/23; T 573). (The Crown challenged the credibility of M, as already noted.)

The applicant notes that the complainant explained his conduct on 9 March 2020 (see at 16/11/23; T 148) but says that the balance of the conduct, particularly the Facebook messages, sat awkwardly with his claim that the applicant’s conduct had “destroyed” him (23/11/23; T 576.50).

Ninth, the applicant points to the (contested) evidence that the complainant admitted to making up the allegations.

M, the complainant’s cousin, gave evidence about an occasion on 22 October 2021 where the complainant said “I made up the allegations to get her away from my dad…cause I was losing dad to [the applicant]” (23/11/23; T 538-T 539). M said that the conversation took place in the complainant’s bedroom in the presence of the complainant’s sister (MB) and her partner. The complainant (23/11/23; T 575) and his sister (23/11/23; T 554) both denied that the complainant said anything to that effect. M was challenged about this by the Crown (see at 23/11/23; T 581-T 583).

The complainant’s father gave evidence that on 23 March 2023 he received a phone call from his daughter, MB; that MB handed the phone to the complainant; and that the complainant then said to his father, inter alia: “I’m sorry for what I’ve done…do you want to know why I’ve done it…I did this out of an act of revenge…Because I didn’t have my father in my life” (17/11/23; T 236-T 237). The complainant agreed that this conversation occurred, but he disputed that he said the words that he acted out of revenge because he did not have his father in his life (16/11/23; T 146-T 147). MB said that she did not hear her brother say words to that effect (23/11/23; T 552-T 553).

The complainant also sent his father Facebook messages on 17 April 2023 where he said, inter alia, “I just want to say I apologise for everything I have done all the bullshit I made up…I’m sorry for making the false comments that I made about u at the station” (Ex 1, 16/11/23; T 143-T 144). In re-examination the complainant said these messages did not relate to the applicant (16/11/23; T 171-T 173). Asked “what was the false comment” that he made, the complainant said that there was no false comment and that he just said it “to get my dad back” (16/11/23; T 173).

As to the evidence to the effect that the complainant admitted to making up the allegations against the applicant , the Crown notes that this came only from the complainant’s father and the complainant’s cousin, M, each of whom was directly challenged by the Crown about his account. The Crown notes that the complainant denied that he had ever admitted the allegations were made up. The Crown submits that it was well open to the jury (particularly given other credibility issues arising in the evidence of those two witnesses – as referred to below) to accept the evidence of the complainant on this point.

The Crown says that its position at the trial that the complainant’s father and the complainant’s cousin were not credible on this aspect and were untruthful in order to protect the applicant was supported by other evidence in the trial, including: the evidence of MB, the complainant’s older sister (who was present at the time that the complainant was alleged by his cousin to have made the relevant admissions and whose evidence was that the complainant had never said that his allegations were untrue; and who similarly gave evidence that she had been present with the complainant when he spoke with his father on the phone during the conversation in which the complainant’s father asserted the complainant had made admissions, and that she had not heard the complainant say the things alleged); the evidence of the manner and timing of the complainant’s father and the complainant’s cousin bringing these matters to the attention of authorities (that the Crown says the jury could take this into account in assessing the credibility of their evidence in this regard); and the evidence undermining the credibility of the complainant’s father more generally (referring to his evidence that the applicant did not drive the Ford Territory in the relevant period, which was contradicted by D and by the Twin Towers Hotel record of the Ford Territory licence plate being provided by the applicant as the registration of her vehicle – Ex O).

The Crown says that it was open to the jury to assess the evidence of the complainant’s father in light of the Crown’s challenge to that evidence, submitting that the entirety of the complainant’s father’s evidence about Counts 1-4, as to the Ford Territory and including Ex 6 (the McDonald’s receipt) only had the significance for which the applicant contends if his evidence was accepted by the jury. Again, the Crown submits that the evidence of the complainant’s father was undermined by other evidence in the trial (such as the evidence as to the use by the applicant of the Ford Territory and as to the asserted admissions of lying made by the complainant).

Tenth, the applicant points to the lack of support for, and indirect contradiction of, the complainant’s claim that he was frequently given drugs and alcohol by the applicant (the claims made at JIRT, A.39, 61, 121, 224, 235, 239, 281-284, 329, 495, 574-577, 644). It is noted that the complainant told the police that there were “about 18 times” he had sex with the applicant while “drunk and high” (JIRT, A.495) and that he stopped going to school in that period because he was “high” or “drunk” (JIRT, A.644).

The applicant points to the following evidence that she submits casts doubt on these claims.

The applicant’s denial that she ever supplied the complainant with alcohol or drugs, her description of herself as “very anti-drugs” and that she had “never touched drugs” in her life (ERISP, A.286-289, 507-510). Craig, who was home a lot, said he never saw the complainant drunk or intoxicated from drugs during his time at the applicant’s house (21/11/23; T 412.31). The applicant’s daughter (J) said her mother “stands highly against drugs – any type of drugs” (17/11/23; T 268.11). G, who lived with the applicant for “quite a few months” in 2019 (17/11/23; T 271-T 272) never saw anyone using drugs at the applicant’s house. The applicant notes that although G said that she did once find a bong in the back shed, there was no evidence this belonged to the applicant (17/11/23; T 273, T 277). M, the complainant’s cousin, who stayed at the applicant’s house “at various times” described it as a “drug-free house” and the applicant as “very anti-drugs” to the point where “she kicked her own son out because of drugs” (23/11/23; T 540.20-32). M said that whenever he visited the house and saw the complainant, the complainant was never “drunk or stoned” (23/11/23; T 540.32). D did not see the complainant affected by alcohol or drugs when she saw him on 4 March 2020 (22/11/23; T 472.34).

The applicant also notes that none of the Catholic Care employees observed the complainant to be affected by drugs or alcohol in their interactions with the complainant (20/11/23; T 310-T 311, 21/11/23; T 372, T 439).

The applicant submits that there was thus a conflict in the evidence: one hypothesis was that the applicant was persistently supplying unlawful substances to a minor; and that the other hypothesis was that she was not (consistent with her anti-drug stance). The applicant says that the following evidence favoured the latter hypothesis.

First, that on 20 January 2020, at a meeting with workers at the Macarthur Community Centre, the complainant was asked about his time living with the applicant and he said that “It took four days to adjust to her rules” (16/11/23; T 137.4). It is submitted that it is most unlikely the complainant would make this statement if the applicant was busy plying him with alcohol and drugs as he so claimed. Rather, the applicant says that this comment is more in keeping with those witnesses who described the applicant as opposed to drugs.

Second, on 21 April 2021, during a Snapchat conversation between the applicant and complainant (well after the offending period), the complainant referred to the fact he was admitted to hospital because of his own drug use. The applicant responded to that by saying “just sound [sic] like bad choices at the moment” (Ex 2, p 9). As above, the applicant says that this response is again most unlikely if the applicant had actually spent weeks or months in the previous year plying him with drugs and alcohol. The applicant says that again it is more in keeping with the evidence that suggested she was anti-drugs.

As to the evidence of other witnesses to the effect that they did not see the complainant drug or alcohol affected, the Crown says that this was not evidence that required the jury to have a doubt about the complainant’s version. The Crown says that there was no evidence from the complainant about whether he had engaged with any other people during these occasions, or how he presented. The Crown says that there was only evidence that the Catholic Care workers had attended the premises three times in the period that the complainant was residing with the applicant (the first being the initial visit on 29 December 2019). (Of course, that the first of those occasions was the day on which, according to the complainant’s version of events, the applicant had given him both alcohol and drugs and that he was drunk and high.)

As to the third proposition, the applicant points to the following matters relating to the particular counts that it is submitted raise a doubt in relation to every count.

The applicant argues that these allegations were undermined by the 15 May COPS entry in two respects: first, it recorded the first incident as occurring towards the end of January 2020 (16/11/23; T 112.13) and, second, there was nothing mentioned about an incident having occurred in a car (16/11/23; T 102-T 103). (The Crown argues that there is an issue as to whether the complainant was describing the “first” incident in that interview as that occurring on 29 December 2019 or that was instead the first of the incidents that the complainant disclosed to police – though not first in time.)

The applicant notes that the complainant’s version about what happened outside his father’s house was contradicted by his father (and that the father’s version of those events was partly supported by the receipt from McDonald’s, Ex 6).

The applicant says that the complainant’s version was internally inconsistent in that the complainant said that after Counts 1 and 2 occurred he told the complainant to “fuck off”, he jumped out of the car and she drove off (JIRT, A.106) but he also said that following Counts 1 and 2, the applicant drove him to a forest area (JIRT, A.121-123, 151).

The applicant also notes that there was some doubt as to the car that she would have been driving at the time (i.e., her evidence that she was not driving the Ford Territory but instead the Mazda 3 at that time), although accepting that there was evidence from D about the applicant driving the Ford Territory on 4 March 2020 (22/11/23; T 468.42).

The applicant says that the complainant’s version in relation to Counts 3 and 4 (that he woke up and the applicant was already having penile-vaginal intercourse with him) was not plausible and that the claim that she tied him up with seatbelts was far-fetched.

As to the complainant’s evidence that he complained to his father about this event, the applicant says that this was implausible in that it is most unlikely his father responded to news that his partner raped his son by saying “I don’t really care…who really gives a fuck?” (JIRT, A.133); and it is noted that it was contradicted by the complainant’s father who said no such complaint was made (17/11/23; T 216-T 217).

As to these counts, the applicant points out that even though there was evidence that the complainant ran away to the applicant’s house in the early hours of 29 December and attended his sister’s house in Thirroul later that morning, there was otherwise no support for the alleged sexual offences.

The applicant says that the complainant’s chronology of events was at odds with the actual chronology of events (see above), which undermined the cogency of his account.

The applicant argues that the compIainant’s version that the applicant supplied him with alcohol and drugs and had sex with him three times was implausible given that she demanded that the complainant inform the authorities of his presence; there were various visitors to the applicant’s home throughout the day; and the applicant’s daughter was present.

It is submitted that the complainant’s version about each of these counts was further undermined by his claim that he had sexual intercourse with G on the day he moved into the applicant’s house (23/11/23; T 573).

The applicant says that these allegations were undermined by the 15 May COPS entry in three respects. First, it recorded the first incident as occurring towards the end of January 2020 (relevant to Counts 5 to 7) (16/11/23; T 112, 22/11/23; T 491). Second, there was nothing mentioned about an incident having occurred in a car (particularly of relevance in relation to Count 7) (16/11/23; T 102-103). Third, the first incident of fellatio in the applicant’s house was recorded as occurring in the bathroom, whereas Count 5 was alleged to have occurred in the lounge room. Further, the applicant says that the complainant’s allegation that she was wearing a dress during the Count 7 incident was unlikely given the evidence about her aversion to wearing dresses.

Finally, the applicant says that the lock on the bathroom door raised a doubt about the complainant’s version that she walked in on him in the bathroom.

The applicant says that these allegations were undermined by the 15 May COPS entry in two respects. First, it recorded the first incident as occurring towards the end of January 2020 whereas the complainant said this incident occurred the day after the Sandon Point incident (JIRT, A.370; 16/11/23; T 112, 22/11/23; T 491). Second, there was nothing mentioned about an incident involving a dildo (16/11/23; T 103).

The applicant says that these allegations were undermined by the 15 May COPS entry in two respects. First, that it recorded the first incident as occurring towards the end of January 2020 whereas the applicant says that the complainant implied this incident occurred the day after the Sandon Point incident (JIRT, A.370-380; 16/11/23; T 112, 22/11/23; T 491). Second, that there was nothing mentioned about an incident involving anal intercourse (16/11/23; T 103).

It is noted that for Count 12, the complainant accepted that the bath was too small for two people and he struggled to explain how they were both in the bathtub (16/11/23; T 165).

The applicant says that the allegation was undermined by the 15 May COPS entry in that it recorded the last incident occurred four days before the complainant was scheduled by police (22/11/23; T 492). (As noted, in his police interview the complainant gave a different account as to the timing of this incident.)

The applicant says that there was very limited opportunity for the offence to have occurred given her work records (Ex M) and the events that occurred that day (relevantly, the trip to the Campbelltown mall and the conflict between the complainant and his father) (ERISP, A.241-249, 21/11/23; T 427-T 429).

The applicant points to conflicting evidence about who was behaving in an emotionally dysregulated way that day, pointing to her description of the complainant as being “cranky and very upset” and that he “lost his shit right in the middle of Campbelltown mall” and “went absolutely crazy”; and then describing his behaviour when they got back to the house as “he went psycho” and smashed various things and belted the complainant and her (ERISP, A.241-249),whereas the complainant described the applicant as releasing “all of her emotions and everything on me” and said that he “gave” her sexual intercourse to “make her feel better” (JIRT, A.543).

The applicant submits that the objective evidence supports the applicant’s version that it was the complainant who was emotionally dysregulated, pointing to the fact that she went to work that afternoon (from 3pm until 9pm) whereas the complainant was scheduled under the Mental Health Act.

The applicant submits that the complainant’s evidence, when considered with the whole of the evidence at trial, lacked credibility for reasons which are not explained by the manner in which it was given (in the words used in M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 (M v The Queen) at 494 (Mason CJ, Deane, Dawson and Toohey JJ)). The applicant submits, again adopting the words in M v The Queen at 494 that the evidence “upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead [this Court] to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”. The applicant says that the reasonable doubt that affects individual counts should, given the centrality of the complainant’s credibility to each charge, contribute to a reasonable doubt in relation to each of the other counts.

The applicant emphasises the submission that there was no evidence that supported the complainant’s account (other than indirectly through Craig and the complaint to G, which did not relate to the particular counts).

As to the applicant’s argument that the complainant’s account of particular individual counts on the indictment was not supported by other evidence (other than indirectly through the context and complaint evidence), the Crown says that this is not a matter which renders the guilty verdicts unreasonable, noting that there is no requirement for a complainant’s evidence to be corroborated, generally or in relation to individual counts; and that the jury was properly directed as to the standard of proof in respect of each count, and the need to consider whether doubts on any count affected the other counts.

The Crown points out (correctly) that the mere existence of discrepancies and inconsistencies in the complainant’s account about the offences does not suffice to establish a ground that the verdict is unreasonable or cannot be supported having regard to the evidence (citing M v The Queen at 534 per McHugh J), referred to with approval in Rossi v R [2024] NSWCCA 17 at [15] (per Mitchelmore JA with whom Cavanagh and Weinstein JJ agreed) (Rossi).

The Crown emphasises the distinct advantage that the jury had in seeing the complainant give his evidence on a number of occasions throughout the trial. In that regard, the Crown says that the complainant here was still a very young man at the time he was cross-examined; and that he was also a vulnerable young person with a mental health history and a complex family background who was subject to a lengthy cross-examination and had been recalled on several occasions to answer further questions. The Crown says that the jury was uniquely placed to assess the impact of those matters on the complainant’s responses as well as to assess whether any of his answers were affected by his emotional state, immaturity, fatigue or distress.

The Crown also points out that the credibility of the complainant’s father and the complainant’s cousin, M, was in issue (the Crown says it was a key issue) in the trial and hence the Crown says the scope of the advantage the jury enjoyed was relatively wide (referring to the observation made by Beech-Jones CJ at CL (as his Honour then was) in AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [105] as to the opportunity of the jury to assess numerous aspects of the complainants’ evidence to assess whether “some aspect of their answers was truly a self-contradiction or just a lack of sustained focus (or something else)”).

The Crown also refers to the observation by McCallum J (as her Honour then was) in Hawi v R [2014] NSWCCA 83 at [480] to the effect that the advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses and that the “appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function” (noting that this statement has been cited with approval by this Court in a number of decisions including Rossi at [14] per Mitchelmore JA (Cavanagh and Weinstein JJ agreeing) and LS v R [2024] NSWCCA 110 Ward P (Dhanji and Hamill JJ agreeing)). The Crown says that the observation is of particular force where a case turns upon the honesty and reliability of the principal Crown witness.

The Crown points out that the same arguments regarding the complainant’s credibility, his inconsistency and the asserted implausibility of his evidence were made to the jury in the closing address for the applicant at trial (referring to 24/11/23; T 644.47-T 651.15; T 655.30-42); and submits that, in light of the clear directions the jury was given, it may be taken that the jury took those submissions into account in the evaluation of all of the evidence and their assessment of the reliability and credibility of the complainant’s account. The Crown says that plainly none of those matters undermined the complainant’s credibility or reliability such that his evidence as to the conviction counts could not be accepted.

The Crown says that, as to the particular arguments raised by the applicant, whether considered separately or cumulatively, do not demonstrate that the verdicts of guilty were unreasonable in the sense described in M v The Queen and says that it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt in respect of the conviction counts. The Crown notes that there was no requirement that the complainant’s evidence be corroborated before the jury was entitled to accept it beyond reasonable doubt.

As to the applicant’s arguments regarding the inconsistency between the complainant’s evidence in respect of particular counts, and the first complaint to police on 15 May 2020, the Crown says that this overlooks that the jury was appropriately directed pursuant to s 293A of the Criminal Procedure Act in respect of these matters (as the applicant accepts). The Crown says that the applicant’s argument that the inconsistencies were such that it was not open to the jury to convict directly contradicts the direction that the jury was given. The Crown says that the asserted inconsistences on which the applicant relies (both as to the inconsistencies with the initial report to police and other matters such as the sequence of events regarding his intercourse with the applicant compared with G) were not matters critical to the acceptance of the complainant’s evidence about the counts and the critical issues at trial.

The Crown points out that it is not uncommon for children to be imprecise about details such as time and sequence; and that it is not uncommon for victims to remember specific details about assaults, but not tangential details. As to the latter, the Crown includes details such as how bodies were positioned in a bathtub or in what room particular acts occurred. The Crown points out that the complainant’s evidence was that there had been multiple occasions of intercourse across the period that he had lived with the applicant. The Crown says that the significance of each of the asserted inconsistencies falls to be assessed in the context of that evidence and understanding the ongoing nature of the sexual relationship and that the complaint was not made until some months later.

Reference is made in this regard to the observation by Adamson JA (with whom Price AJA and Garling J agreed) in Davis v The King [2024] NSWCA 120 at [149] (Davis) that “the significance of any inroads apparently made to the complainant’s credibility in cross-examination was pre-eminently one for the jury as the tribunal of fact”. Reference is also made to the observation of Adamson J, as her Honour then was, in AS v R [2022] NSWCCA 291 (at [111]) as to the experience of the courts in assessing the testimony of child complainant witnesses.

To the extent that the applicant suggests that particular aspects of the complainant’s evidence are implausible (such as the likelihood that he would be consuming drugs or alcohol given that no witnesses gave any account of observing him in an intoxicated state), the Crown says that these were not matters of such significance that they required that the jury have a doubt about the complainant’s account on critical matters. Again, the Crown points out that the Catholic Care and DCJ employees only met with the complainant a few times over the period of time that he lived with the applicant.

As to the complainant’s ongoing contact with the applicant (after his removal from her house) the Crown emphasises the “complexity of his emotional circumstances” and argues that this contact is explained by the complainant’s attachment to his family, including his father and the applicant. The Crown says that the complainant was a young teenager, with a complex family history of disrupted attachments and that the applicant was a maternal figure in that complex family environment. The Crown further says that the evidence in the trial (referring in particular to that of Craig) also established that the applicant and complainant behaved as if in a romantic relationship during the period of time that they resided together. The Crown also argues that the suggestion that the complainant would not have continued any contact with her if sexual offending had occurred ignores that victims of sexual assault do not always react in the same way to what has occurred (referring to what was said by Adamson JA (Dhanji and Sweeney JJ agreeing) in RM v R [2024] NSWCCA 148 at [233]).

As to the submission that the complainant demonstrated uncertainty in respect of an aspect of the detail associated with Count 12, the Crown says that this does not mean that the jury should not have accepted the complainant’s evidence about other counts for which the complainant was not uncertain (referring to what was said in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA) by Gleeson CJ, Hayne and Callinan JJ at [34] as to uncertainty by a complainant as to matters of detail or a faulty recollection being a potential factor that could cause a jury to draw back from a conclusion beyond reasonable doubt in relation to some aspects of the evidence but one which does not necessarily imply disbelief or a want of confidence in the complainant). The Crown says that, to the extent that the applicant suggests that it was not open to the jury to consider that the complainant’s memory was faulty on some details (for example, location or time) because the offences were not historical, or because he did not claim that he did not remember the events, and because he was not an especially young child, those arguments should not be accepted.

The Crown thus submits that the jury was uniquely placed to assess the complainant’s evidence in light of the way in which he gave his evidence, including his emotional state and any reluctance or difficulty he experienced; and had the benefit of the robust submissions of trial counsel in respect of the matters now relied upon by the applicant. The Crown says that the complainant was steadfast in his evidence that the applicant had offended against him in the manner he described; and that the complainant’s evidence as to those counts on which the applicant was convicted was supported by the complaint made to G, as well as the initial disclosures to the police (noting also that parts of his evidence were also supported by the evidence of his two sisters, his former foster parents and the boarder, Craig).

There is no dispute as to the applicable principles on an unreasonable verdict ground of appeal (see M v The Queen; MFA; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; (2022) 274 CLR 651). Bell P, as his Honour then was, summarised those principles in Dadley v R [2021] NSWCCA 267 (Dadley) (at [104]-[107]) and it is not necessary here to repeat them.

I have reviewed carefully the evidence that was before the jury and I take into account the distinct advantage of the jury in seeing and hearing not only the evidence given by the complainant but also that of his father and cousin, M, whose credibility was challenged by the Crown and also the other witnesses in this case.

Noting the Crown’s submission as to the logical order in which these grounds should be approached, I have proceeded, for the purposes of considering Ground 1, by starting with the assumption that Ground 2 is not made good (i.e., that there was a rational explanation for the not guilty verdicts) and that the jury should be taken to have assessed the complainant’s evidence on the guilty verdicts as credible and reliable. Of course, the applicant’s position would be strengthened on Ground 1 if Ground 2 is made good.

I fully accept that it is not my role on appeal to duplicate the function of the jury in the assessment of the complainant’s credibility and that one must be cautious about weaknesses in the evidence that might be apparent on paper when the jury was able to assess those weaknesses in light of the oral evidence before it. That said, it is my duty to analyse the whole of the evidence in order to determine whether there is a real doubt as to the guilt of the accused on the counts in respect of which she was convicted, that being a doubt that the jury should have experienced.

On an assessment of the whole of the evidence, I am left with a real doubt as to the guilt of the applicant on those counts in respect of which the jury returned guilty verdicts.

As to Count 6, the inconsistency as to the chronology of the events on the day that the complainant arrived at the applicant’s house after running away from his father’s house itself gives rise to a reasonable doubt as to the complainant’s allegation that there was penile/vaginal intercourse on that occasion – even leaving aside matters such as the complainant’s claim that he had sexual intercourse with G on that day as well.

The complainant’s account that the applicant gave him alcohol and drugs that day is inherently implausible given that the Catholic Care workers (and the police if they conducted the initial welfare check on that day) gave no evidence of observing the complainant in this condition. It is also inconsistent with the complainant’s complaint as to the “rules” in the applicant’s house and other evidence as to the applicant’s anti-drug stance.

Further, if the complainant’s account is to be understood as being that the offence occurred after his arrival at the house but before he went to see his sister at Thirroul, this is inconsistent with his account of it having occurred after he had woken up at 4 o’clock and the applicant having walked in on him while he was having a shower. It is implausible that the applicant woke up, consumed alcohol and drugs so as to be drunk and high, showered and then had sex with the applicant all before arriving at Thirroul in a state that no-one described as “drunken” or “high” (simply as agitated, which would be consistent with him having run away from his father’s house).

If the complainant’s account of such events occurring that day is true, it is again highly unlikely that it could have occurred in the period in which the Catholic Care workers visited, without anyone noticing or reporting on his state at that time. There was no suggestion that the intercourse occurred later that evening. And, on the complainant’s account, he had also at some stage had penile/vaginal intercourse with G that day.

As to Counts 9 and 11, which involved cunnilingus and then penile/vaginal intercourse in the applicant’s bedroom, the first is undermined by the apparent lack of reference to the cunnilingus in the police interview (although there is some uncertainty as to this because the complainant was not cross-examined on any entry about this in the COPS entry) but in any event both these counts (as with all of the conviction counts) are seriously impacted by the credibility issues relating to the complainant generally (see below).

As to Counts 13 and 14, these guilty verdicts relate to counts following the alleged bathtub incident, which was the subject of a not guilty verdict. There is an inconsistency in a finding that the complainant’s account was credible on those counts but not the earlier one, given that the happening of the bathtub incident is part of the overall circumstances in which the complainant says the bedroom incidents occurred (i.e., that they went to the bedroom at the applicant’s suggestion because of the awkwardness of the sex in the bathtub). These verdicts were again seriously impacted by doubts as to the complainant’s credibility.

Relevant, in my opinion, in relation to the complainant’s credibility is the evidence of the complainant which is quite simply unbelievable (such as his account that he had held his half-sister “Shelby” in his arms when she died and his account that he had himself fathered a child who was two years old and on life support and he had had to make the decision to turn off the life support). Although one must read records contained in case notes of this kind with caution (in the absence of evidence from the person who recorded the statements or histories given by the complainant), the content of those statements is such that it would be extraordinary for the person recording the history to have misheard or misrecorded such statements; and there would be no reason for the maker of the notes simply to have made up such statements.

The Crown’s submission to the effect that if such statements (as to the applicant having had twins) were correctly recorded the complainant may simply have been saying what he had been told (or may have been misled by the applicant) does not grapple with his recorded account being that he jointly named the babies and of holding one in his arms as she died.

Even leaving aside those case notes, which point to the making by the complainant of histrionic or fantastical statements, more significant in my opinion, in assessing the complainant’s credibility, is the attribution to him in the case worker’s notes of the statement that he could “fuck up any woman that work with me” by just saying “I fucked you”. As already noted, the complainant accepted that most of the DCJ note was accurate (just not the statement that he could just say “I fucked you”) and that, after that incident, he accepted that for a time he only had male case workers. If the account is accurate this can only be seen as exhibiting vindictiveness on the part of the complainant (and an appreciation of the damage he could cause by making false allegations). I accept that caution must be used in placing weight on what is recorded by someone in the position of the case worker but, again, the complainant accepted that most of the note was accurate (which must have included “I can fuck up any woman that work with me”). There is also doubt as to the weight that can be attached to the complaint evidence of G, whose memory as to when the message was sent was unreliable and who clearly did not take it seriously.

I attach no significance to other of the matters emphasised by the applicant, such as the complainant’s further contact with the applicant (which could be explicable for other reasons) and the evidence of the complainant’s father and M as to the complainant making up the allegations. In the case of the complainant’s father, there is in any event a vagueness about what the complainant was said to have been apologising for; and the Snapchat messages related to false comments about his father not the applicant.

As to the context evidence relied upon by the Crown, the evidence of Craig was not only unrelated to any particular count but it was itself vague (“sex sounds” from a male voice, which could for example have emanated from pornographic videos – bearing in mind that the complainant himself says that the applicant showed him such videos). I place little weight on Craig’s perception of the hugs (which he seems to have considered consistent with a parental hug), “snuggling” and “handholding”, which could well have had an innocent explanation, noting that Craig does not appear to have been concerned enough to have reported this to the police at the time (and noting his apparent animosity to the applicant in relation to the rental dispute to which reference is made in the COPS entries to which Detective Kelly referred).

I also place no weight on the making by the complainant of the allegations against Mr and Mrs B (since the fact that an investigator found them not to be sustained does not mean they were proven to be untrue).

While I quite accept that mere inconsistencies in detail of the complainant’s recollection would not alone necessarily render the verdicts unreasonable, nor would the fact that the complainant may have only remembered (or recounted) some incidents after the initial police interview (as recorded in the 15 May COPS entry); taking all the evidence into account I am left with real doubts as to the applicant’s conviction in respect of counts 6, 9, 11, 13 and 14.

Accordingly, Ground 1 is made good. The convictions on these counts should be quashed and verdicts of acquittal entered in their place.

Ground 2 contends that the guilty verdicts are factually inconsistent with the not guilty verdicts such that they cannot stand. As the applicant accepts, it is necessary carefully to examine the acquittal verdicts, having regard to the whole circumstances of the case, to determine whether an explanation can be found for them other than doubts as to the complainant’s credibility.

The applicant has identified a number of patterns in the verdicts: the first, being the location of the offences in respect of which guilty verdicts were returned (all but one – the anal sex incident, where there was a not guilty verdict – being in the applicant’s bedroom); and, second, the 15 May COPS entry, noting that each event that was not recorded in the document resulted in a not guilty verdict (Counts 1-4, 7, 8 and 10) and that other verdicts of not guilty were returned where there was an inconsistency in the location of the offence as recorded in the COPS entry (Count 5) or in respect of some of the not guilty verdicts there was an inconsistency in the timing of the event (Counts 1-4, 5, 7, 8 and 10) (although in some of the offences where there was such an inconsistency (Counts 6, 9 and 11) a guilty verdict was returned).

From this, the applicant observes that: the not guilty verdict on Count 10 (anal sex in the bedroom) suggests that the location was not wholly decisive; the guilty verdicts in respect of Counts 6, 9 and 11 suggest that any criticism deriving from the 15 May COPS entry was not fatal to the Crown case; and the not guilty verdict on Count 12 (penile vaginal intercourse in the bath) shows that an absence of criticism from the 15 May COPS entry did not automatically result in a guilty verdict.

The applicant says that a guilty verdict was not returned unless the event occurred in the bedroom and the occurrence of the event (as distinct from the date of the event) was not undermined by the 15 May COPS entry.

As to the location of the offences, the applicant says that if the jury considered there was something inherently improbable about unlawful sexual activity taking place in locations other than the bedroom (because, for example, there was a greater chance of detection), then such reasoning should have had implications for the complainant’s credibility, citing Markuleski at [234](c). The applicant submits that this implies that the jury doubted the truthfulness of his claims that sexual activity occurred in those locations and says that, in the circumstances of this case, that was a significant matter when considering the counts that occurred in the bedroom.

Further, noting that the context evidence included an incident where Craig said he heard “sex sounds” coming from the applicant’s bedroom (see above), the applicant submits that the pattern of verdicts gives rise to a concern that the jury misused his evidence (by reasoning from that evidence that there was some kind of tendency on behalf of the applicant to engage in sexual activity with the complainant in her bedroom). The applicant submits that the likelihood of the context evidence being misused was increased by the fact that the Crown did not articulate exactly how the context evidence made the “charged incidents easier to comprehend” (24/11/23; T 632.24-32).

As to the 15 May COPS entry, the applicant argues that it would be unrealistic, in the circumstances of this case, to use the omissions of details in the 15 May COPS entry as casting doubt on the corresponding counts only (if that is what occurred) rather than as a factor that detracted from the complainant’s overall reliability (citing Markuleski at [234](d)). The applicant notes that the Crown did not suggest that the statements made to the police on 15 May amounted to probative complaint evidence.

The applicant points out that (apart from Counts 7 and 15 where the date of the offence was an essential element) the central issue in the trial was whether the alleged sexual acts occurred. The applicant says that (despite the fact that the complainant was a child at the time) questions of mistake and faulty memory do not explain the acquittals, nor does the absence of supporting evidence in relation to those counts (given that there was a similar absence for those counts resulting in verdicts of guilty). As noted above, the applicant raises here the possibility that the jury misused the context evidence as tendency evidence as one possible explanation for the inconsistent verdicts.

The applicant submits that each of the guilty verdicts was inconsistent with the 10 not guilty verdicts for the following reasons.

First, the preponderance of the counts resulted in verdicts of not guilty, which the applicant submits supports an argument that “the jury looked with real disfavour upon the credibility of the complainant” (citing Markuleski at [234](a)).

Second, the applicant says that there was not “something additional” in the evidence that supported the complainant’s version for one or some of the counts so as to explain the mixture of verdicts (referring to MFA at [34], [36]). In that regard, the applicant emphasises that the complaint evidence of G and the context evidence of Craig was not pertinent to any particular count. The applicant accepts that there was evidence from the foster parents in support of Count 7 but says that the not guilty verdict on that charge means it is not a factor that explains the mixture of verdicts.

Third, the applicant says that the complainant did not show “some uncertainty as to matters of detail” in relation to some counts (referring to MFA at [34]). The applicant says that the complainant was adamant that each sexual event occurred (referring by way of example to JIRT, A.709; 16/11/23; T 94.9, T 170); and that the complainant’s descriptions of what occurred (though not with precision as to the physical movements necessary to establish the elements of every offence – such as the description of cunnilingus for Count 9 at JIRT, A.380 and the descriptions of penile-anal intercourse and penile-vaginal intercourse for Counts 10 and 11 at JIRT, A.378-406) were, in context, sufficiently clear to establish the relevant elements of each count. The applicant notes that this was not a case where, for example, the offences occurred in dim light or at a time when the complainant’s eyes were closed such that there was room for error about some aspects of the offences (cf R v KRL [2007] NSWCCA 354 at [55]).

Fourth, the applicant says that this is not a case where the complainant’s memory could be considered faulty on certain details (referring to MFA at [34]). The applicant points out that the offences were not historical and the complainant did not claim that he had difficulties remembering the events. Hence the applicant argues that this was not a case where the complainant’s memory of some offences was clearer than others due to the relative recency of those offences or for other reasons.

Fifth, the applicant says that the complainant was not shown to be more reliable about some parts of his evidence than about others (referring to MFA at [34]). In that regard, the applicant accepts that some counts had special problems (such as the fact that the complainant’s father contradicted aspects of Counts 1 to 4, the problematic chronology of Counts 5 to 7 (on which there were mixed verdicts), the small size of the bath which undermined Count 12, and the limited opportunity on 5 March 2020 for Count 15) and the applicant accepts that some counts were undermined more directly by the 15 May COPS entry than others. However, the applicant maintains that these are all matters that detracted from the reliability of the complainant’s account. The applicant says that on the facts of this case, it is not fair to assume that the acquittals reflected a finding that the complainant exaggerated in certain respects to “reinforce” his account (referring to Markuleski at [235](e); Collins v R [2020] NSWCCA 198 (Collins) at [75]-[76]).

The applicant submits that the whole circumstances of this case suggest that the jury should, and did, have doubts about the majority of the complainant’s allegations; and that this was a case where the acquittals on 10 of the counts, in combination, implied “a want of confidence in the complainant” (MFA [34]). The applicant submits that this want of confidence ought to have led to acquittals on the remaining counts. The applicant says that no jury, acting reasonably, ought to have concluded otherwise; and that, even allowing for the advantages enjoyed by the jury over an appeal court (MFA [23]; Kim v R [2020] NSWCCA 288 at [37]), this Court should intervene and enter verdicts of acquittal.

Finally, the applicant submits that nothing would justify a conclusion that the jury reasoned that justice was met by convicting the applicant of 5 out of 15 counts in the way described in R v Kirkman (1987) 44 SASR 591 at 593 and referred to in MFA at [34]. The applicant argues that there is no warrant to conclude that these were “permissible unreasonable verdicts” (in the words of Collins at [88]-[90]).

In particular, as to the guilty verdict for Count 6 (penile-vaginal intercourse in the bedroom), the applicant says that this is inconsistent with the not guilty verdict for Count 5 (fellatio in the loungeroom) for the further reason that those counts were intertwined both “temporally and contextually”, such that it is a “logical affront to accept the inconsistency between the acquittal and [conviction]” (referring to Dadley at [89]). The applicant makes a similar submission in relation to Counts 9 and 11 (given the acquittal on Count 10) and Counts 13 and 14 (given the acquittal on Count 12).

The Crown notes that the test to be applied where an allegation is made that verdicts are inconsistent is one of logic and reasonableness; that the applicant “must satisfy the court that the verdicts cannot stand together”, that is, that “no reasonable jury who applied their minds properly to the facts in the case could arrive at that conclusion”. The focus of the enquiry is on the acquittals (rather than the convictions) and it is noted that there is a relatively high bar to be overcome.

The Crown emphasises that different verdicts in trials of multiple count indictments which depend upon the evidence of a single complainant do not necessarily signify disbelief of the complainant; and that the significance of verdicts of not guilty on some counts on an indictment must be considered in light of the particular circumstances of the case (referring to the observation by Gleeson CJ, Hayne and Callinan JJ in MFA at [34] that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count, and that the jury will ordinarily be directed that the evidence of each witness may be accepted in whole or in part; and that a finding of not guilty in respect of a particular count in proceedings relating to allegations of sexual assault does not necessarily involve a rejection of the complainant’s evidence. Reference is also made to what was said in Markuleski at [8], [34], [219]-[221]). The Crown also refers to the distinction between credibility and reliability (referring to what was said by Basten JA in Ganiji v R [2019] NSWCCA 208 at [8]-[9]).

The Crown also (again) emphasises the need to take proper account of the advantage of a jury over an appellate court.

The Crown says that a logical consequence of the need to focus (in an inconsistency of verdicts appeal) on whether there is any explanation for the acquittals, rather than the convictions, is that outlined by Beech-Jones J in Martin v R [2020] NSWCCA 192 at [79], namely that:

Thus, the Crown says that if there is a logical and reasonable basis for the differentiation in the verdict, then Ground 1 proceeds in accordance with the fact that the acquittals are logical and rationally explicable and are not inconsistent with the jury accepting the complainant as a witness of truth.

Turning then to the submissions on Ground 2, the Crown submits that the directions made by the trial judge (see at 28/11/23; SU 8-13, 23-24) provide important context for the consideration of this ground of appeal.

The Crown argues that the elements of each of the offences reveal a logical and reasonable basis for the jury to return a verdict of not guilty on the acquittal counts, while being satisfied to the necessary standard with respect to the conviction counts. The Crown emphasises that any assumption that acquittals on some counts and convictions on others necessarily denotes rejection by a jury of a complainant’s credibility or reliability was rejected in MFA at [34]; and points out that it has been recognised that differential verdicts may provide the basis for confidence that the jury has done precisely what it has been instructed to do, namely, consider each count separately and reach a verdict on that count, on the evidence relevant to that count (citing AH v R [2019] NSWCCA 152 at [62] per Simpson AJA).

As to the bulk of the acquittal counts (Counts 1-4, 5, 7, 8, 10 and 15), the Crown argues that the verdicts are reconcilable with the conviction verdicts on the basis that the complainant acknowledged that his first complaint to police on 15 May 2020 did not contain any complaint about the acts that comprised Counts 1-4, 7, 8 and 10; and that, as documented in the 15 May COPS entry, his first complaint to police contained inaccuracies in respect of Count 5 (as to location) and Count 15 (as to date).

In that regard, the Crown points to the following concessions by the complainant as to what he had or had not told the police in his interview on 15 May 2020: as to Counts 1-4, that he had not told police about this incident at his father’s house or any incident which occurred in the applicant’s car (16/11/23; T 102; T 103-T 104); as to Count 5, that he had told police that the fellatio occurred in the bathroom, whereas in his evidence in chief (the 28 May 2020 interview with police) he had said that the fellatio occurred in the lounge (16/11/23; T 101); as to Count 7, that he had not mentioned the Sandon Point incident (16/11/23; T 103); as to Count 8, that he had not made any complaint about the dildo incident (16/11/23; T 103); as to Count 10, that he had not mentioned anal intercourse (16/11/23; T 103); and as to Count 15, that, while he did not remember saying that the final incident occurred “four days” before he left, it “could be” possible he had done so. As to the last, the Crown says that was a significant concession about reliability as to the date (rather than general truthfulness) in the context of a count where the date was an essential element.

The Crown points out that the 15 May 2020 COPS Entry was used in cross-examination of the complainant to undermine the reliability of his account in respect of particular counts omitted from, or inconsistent with, his initial complaint on 15 May 2020; and says that the logical basis for differentiation of the acquittal verdicts on these counts is the fact of the concessions made by the complainant in respect of particular counts.

The Crown argues that the applicant’s observation that there was “no evidence one way or the other” as to whether Count 9 had been disclosed on 15 May 2020 does not detract from this logical basis for differentiating the verdicts. The Crown says that the distinguishing factor is the complainant’s concession in evidence (as to whether those matters had formed part of his initial account or where he had given an inconsistent account) rather than what was or was not contained within MFI 5 (which was not itself in evidence). The Crown notes that there was no such concession by the complainant in respect of Count 9 (noting that no proposition of that kind was put to the complainant).

The Crown points to the recognition by Courts that where a complaint had been made of the conduct (or type of conduct) the subject of the conviction counts, but not the conduct the subject of the acquittals, that may be sufficient to differentiate the verdicts and to make the different verdicts logical and reasonable (referring to Markuleski at [83]-[88]; R v ACK [2000] NSWCCA 180 at [51]; Bayliss v R [2023] NSWCCA 84 at [71]-[72]; Davis at [127]-[135]).

The Crown says that, given the high standard of proof beyond reasonable doubt, it is consistent with a proper discharge of the responsibility of the jury that the jury would have had regard to the complainant’s concession that he had omitted a particular count from his first complaint to police, when determining whether they had reached satisfaction about his reliability on that count beyond reasonable doubt.

As to Count 12, the Crown notes that there was a concession by the complainant in his evidence not as to the initial complaint to police but related to the size of the bathtub (16/11/23; T 165), the complainant accepting in cross-examination that he could not explain how both he and the applicant had fit into the bathtub (a concession that the Crown says was a relevant matter for the jury to consider). The Crown says that this was a count where the complainant had shown uncertainty as to a matter of detail (referring to what was said in MFA by Gleeson CJ, Hayne and Callinan JJ at [34] to the effect that faulty recollection, or uncertainty on matters of detail, was a circumstance where a verdict of not guilty on a particular count may not necessarily imply a want of confidence in the complainant).

Further, in respect of both Count 7 and Count 15, the Crown notes that the date was an essential element of the offence. The Crown notes that there was a live issue in the trial about the date of the alleged offences in respect of both of these counts (noting that in respect of Count 15 this was largely in relation to the COPS entry reflecting “four days” rather than four hours but that it also involved the applicant’s work records. In respect of each of these matters), the Crown says that a verdict of acquittal on those counts may be explained by a jury accepting the complainant’s account as truthful, but reasoning that he was unreliable as to the date (which required satisfaction beyond reasonable doubt).

The Crown says that the fact that more of the counts resulted in acquittals does not mean that the jury looked with disfavour on the complainant’s credibility; and that the applicant’s submission to this effect overlooks the distinction between the separate concepts of truthfulness and reliability (and overlooks the directions given to the jury that they were entitled to return separate verdicts, so long as they did so in accordance with the directions given to them, which included the Markuleski direction). The Crown argues that a jury’s conclusion about matters of credibility and reliability cannot be discerned by simply considering whether there is a numerical majority of acquittals or convictions, especially in circumstances where two of the acquittal counts involved time as an essential ingredient of the count on the indictment.

The Crown maintains that the verdicts of not guilty in relation to the acquittal counts are not indicative of a want of confidence in the complainant or a rejection of his evidence; rather, the Crown says that they are consistent with the jury having accepted the complainant’s evidence as truthful but having recognised that there was a qualitative difference in the reliability of his evidence in relation to the incidents the subject of the acquittal counts (referring to the concessions made by the complainant in his evidence, as noted above).

Thus the Crown contends that the not guilty verdicts on the acquittal counts are logically and reasonably explicable on the basis of the jury applying the directions given to them about separate consideration and allowing the applicant the benefit of any doubt in respect of particular individual counts (even if they otherwise accepted the complainant was credible and honest); and those verdicts do not signify a want of confidence in the complainant more broadly as to his account of the ongoing sexual relationship with the applicant.

Again, there is no doubt as to the applicable principles on an inconsistency of verdicts ground of appeal. They were considered by the High Court in MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35; Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56; and also MFA; and were summarised in Dadley by Bell P (as his Honour then was) (at [76]-[78]). Reference should also be made to Markuleski (and R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 (TK)) in this context. It is necessary carefully to examine the acquittals to determine whether an explanation can be found for them other than doubts about the complainant’s credibility (TK at [128]-[130]).

I accept that there is superficially a basis for the jury to have returned a not guilty verdict for counts relating to offences that were not the subject of complaint to the police in the first instance (though to my mind that would not be a rational or reasonable basis for distinguishing between those of the acquittal counts which were temporally linked to other counts on which guilty verdicts were returned).

In this regard, I do not consider that the absence of mention in the COPS entry is a logical basis to distinguish between the acquittal on Count 5 and the conviction on Count 6, nor between the acquittal on Count 10 and the conviction on Counts 9 and 11.

Nor is there a logical basis for distinguishing between counts where the conduct was alleged to have occurred in the applicant’s bedroom and other counts where the location was, say, in the applicant’s car; or for distinguishing between the counts on the basis of the type of sexual activity said to have occurred.

I do accept that where date was an essential element of the count there would be a logical basis to explain the acquittals on Counts 7 and 15.

Thus, I have concluded that there was not a logical and reasonable basis for distinguishing between most of the acquittal counts and the conviction counts but that for the acquittal counts where date was an essential element of the offence (being Counts 7 and 15), a logical and reasonable basis can be found to distinguish them from the conviction counts. However, that does not address the inconsistency (and lack of a logical basis for distinction) between the acquittals on Counts 1-4, 5, 10 and 12 and the convictions on counts 6, 9, 11, 13 and 14. The verdicts of not guilty on the acquittal accounts to which I have referred cannot be explained other than as a reflection of the jury’s non-acceptance of the credibility and reliability of the complainant’s account of those events and should have led the jury to experience a reasonable doubt on all of the counts.

This Ground 2 is also made good.

For the above reasons leave to appeal should be granted and the appeal allowed. The following orders should be made:

McHUGH JA: For the purposes of the first ground of appeal, I have reviewed the written record of the trial in order to determine whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. I have done so conscious that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and bearing in mind the jury’s advantages of seeing and hearing the witnesses and of collective deliberation. The Court’s function when determining an appeal on the unreasonable verdict ground is nevertheless “to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty”: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [7]. I have concluded that the guilty verdicts were unreasonable and that the appeal must be allowed.

As my reasons are largely the same as those given by the President, whose judgment I have had the considerable advantage of reading in draft, I can state the basis on which I reach that conclusion relatively shortly.

The Crown case depended almost exclusively on the evidence of the complainant. As Ward P explains, there were significant limitations on (a) the evidence of the complainant’s sister and former foster parents about the complainant’s visit to their home at Thirroul, (b) the complaint evidence of the witness known as G, and (c) the “context” evidence of the witness Craig. That being so, as the trial judge said, “the Crown case essentially relies on the evidence of the complainant in order to establish the essential elements of each of the offences” (28/11/23; SU 37). It followed that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty if it had a reasonable doubt about the complainant’s credibility or reliability. As the trial judge put it, the jury had to be satisfied that the complainant’s evidence was “both honest and accurate beyond reasonable doubt in the essential respects that are relied upon to prove the charge” (28/11/23; SU 38).

Whether the guilty verdicts can stand thus depends on whether, in the face of the applicant’s attack on the complainant’s credibility and reliability, it was open to the jury to accept his evidence as establishing beyond reasonable doubt that the sexual acts on which the charges were founded occurred. The matters to which the applicant points on appeal were the subject of arguments put to the jury, who may be taken to have considered those arguments in assessing all the evidence. Even so, and making full allowance for the advantages enjoyed by the jury, the matters to which Ward P refers did significant damage to the complainant’s credibility and reliability. Among the most damaging were the following.

Each of those matters involved elaborate untruths which the complainant had told (or in the case of Ms Kannan, threatened to tell) about sex, having children, the applicant, or some combination of the three. Under cross-examination, the complainant then denied either that the things he had said were untrue (the dying twin and having sex with G) or that he had said them (turning off life support for his own child, and the most damaging part of what he had said to Ms Kannan). The way in which those matters affected the complainant’s credibility and reliability had nothing to do with the manner in which his evidence was given, such that the jury’s advantage in seeing and hearing the evidence is not capable of resolving a doubt experienced in this Court. Those matters, taken together with the other matters to which Ward P refers, should have caused the jury to experience a reasonable doubt about the credibility and reliability of the complainant’s evidence, and therefore to experience a reasonable doubt that the sexual acts occurred as charged.

I also agree with Ward P’s reasons for concluding that the second ground was established, and with the orders her Honour proposes.

ROTHMAN J: In accordance with the task required of the Court in dealing with Ground 1 of the appeal, I have examined the evidence in the trial and concluded that the verdict is unreasonable in that, making full allowance for that which the jury has observed and we have not, the jury should have had a reasonable doubt as to the guilt of the appellant. It was not open for the jury to find guilt beyond reasonable doubt.

I have had the benefit of reading, in draft, the reasons for judgment of the President. Those reasons express the basis for the conclusion I have reached and it is unnecessary to add to them or repeat any aspect of them. As to Ground 2 of the appeal, while I agree with the President’s conclusion, it is, given the conclusion as to unreasonableness, strictly unnecessary to deal with the ground.

I agree with the orders proposed by her Honour.