WHS v R

1. [1]

   FAGAN J: The appellant was tried before Judge Whitford SC in the District Court at Newcastle on seven counts of sexual offending against a girl when she was aged between six and nine years. The trial commenced on 13 February 2023. By 2 March 2023 the jury had returned verdicts of guilty on four counts and not guilty on two counts. They were then discharged without having been able to reach agreement on count 7. The appellant appeals against his conviction on the four counts. He was sentenced to an aggregate term of 12 years and 6 months with a non-parole period of 6 years and 3 months. There is no application for leave to appeal against sentence.

2. [2]

   The following are the four counts of which the appellant was found guilty:

3. [3]

   The remaining counts were as follows:

4. [4]

   The complainant is referred to as MW. From November 2005 to May 2008 she and her younger brother, JW, were in the foster care of an adult female referred to as DB. The children were removed from that care in May 2008 due to a perception of personnel in the Department of Family and Community Services that DB was not able to satisfy the children’s psychological and emotional needs. The Department has from time to time been reorganised and has undergone changes of name but for continuity it will be referred to throughout these reasons as FACS. The appellant and DB commenced a relationship in 2008 and were married on 10 October 2009. Shortly after they married, MW and JW were returned to the foster care of DB. The period of offending was alleged to have commenced early in 2010. The appellant lived with DB until September 2010, when he moved to a separate residence. The allegation that MW was under the appellant’s authority at the time of some of the offending arose from the circumstance that he sometimes minded the children, either at DB’s residence or, more usually, at his own place.

Procedural history

1. [5]

   The history of the prosecution is important to an understanding of the grounds of appeal. On about 10 November 2012 JW told DB that the appellant took MW “into his bedroom all the time”. A short time later, MW described to DB sexualised behaviour of the appellant towards her. The complainant was interviewed about those matters by a police Joint Investigation and Response Team (“JIRT”) on 13 November 2012 and again on 14 November 2012. MW was aged 9 years and 9 months at that time.

2. [6]

   MW recounted to the interviewing officer on 13 November 2012 an event she alleged had occurred in 2011, when she was “probably about eight”, which was subsequently charged as count 1. MW said she fell asleep in the loungeroom of the appellant’s house and awoke to find that she had been carried to his bed. She gave repeated, explicit, definitive detail of sexual acts by the appellant, in terms that were unmistakably and without variation a description of him forcing his penis into her anus.

3. [7]

   Also in the first interview MW described conduct of the appellant on an occasion in 2012 prior to August, involving a pool table in the garage at DB’s house. Acts of the appellant in the garage on that occasion were subsequently charged as count 4. MW occupied part of the garage as a bedroom. She said that the appellant lifted her onto the pool table, pulled down her jeans and underwear and his own shorts and inserted his penis into “the bum hole”. MW said the appellant then “turned [her] over” and rubbed his penis up and down on her vagina.

4. [8]

   The appellant was first tried on the seven charges plus an eighth count of aggravated indecent assault in August 2014. Early in the first trial MW was called in the Crown case and appeared before the jury on an audiovisual link. She was then aged 11 years and 6 months. The JIRT interviews were played back to her. In oral evidence in chief MW then identified items, including her own drawings and some photographs, that had been referred to during the interviews. Cross-examination was brief and involved little more than defence counsel formally putting to the complainant that the sexual acts she attributed to the appellant had never occurred, which she rebutted.

5. [9]

   At the conclusion of that trial the appellant was found guilty on the seven counts but not guilty of the eighth. The applicant was sentenced to an aggregate term of imprisonment of 14 years and 6 months with a non-parole period of 10 years and 10 months commencing on 9 October 2014. On 11 March 2020 this Court allowed an appeal against conviction and sentence and ordered a new trial: WHS v R [2020] NSWCCA 31. The Court’s reasons included the following:

6. [10]

   The documents in police possession at the time of the first trial that had not been made available to the appellant included records from FACS that the Crown conceded were exculpatory. The Court found that the documents constituted fresh evidence that potentially impugned “the credibility and the plausibility of the complainant”. The Court’s finding about the significance of the undisclosed documents rested in part upon conclusions regarding MW’s interviews of 13 and 14 November 2012, as appears from the following passages of the judgment:

7. [11]

   In the Court’s view “a significant number” of the FACS documents recorded complaints or concerns of a nature to suggest that before the applicant had any contact with MW she may have been sexually interfered with by other young family members or may have engaged in sexual play with them. The Court said the documents “record reports of observations that from a very young age MW was displaying sexualised behaviour of an alarming nature, suggestive of her having been interfered with in a sexual way”.

8. [12]

   Other categories within the fresh documents from FACS were records of MW having been untruthful; records of a risk perceived by some adults that leaving MW in the sole care of the appellant “could lead to allegations of abuse”; a psychologist’s report diagnosing Reactive Attachment Disorder, symptoms of which include lying and deliberately sabotaging close attachments. The material was not in a form that would be admissible at trial, being largely hearsay. It was not open to the Court to speculate as to what admissible evidence might be adduced from the persons whose observations were referred to in the FACS documents. The Court therefore could not reach a state of satisfaction that a reasonable doubt about the appellant’s guilt must necessarily be entertained and, accordingly, could not enter a verdict of acquittal. A new trial was ordered.

9. [13]

   On 28 July 2021, in anticipation of the re-trial, the appellant applied for advance rulings pursuant to s 192A of the Evidence Act 1995 (NSW) on the admissibility of documents he proposed to tender. Part of the application concerned evidence to impugn the credibility of MW and to prove a tendency on her part to “make false complaints to authorities concerning physical and sexual assaults upon her”. The present appeal grounds are not concerned with the tendency and credibility issue. So far as relevant to the appeal, the application of 28 July 2021 sought rulings on admissibility of the following evidence:

   1. (1)

      FACS records consisting of assessments, file notes, confidential reports and minutes of meetings, to be tendered for the purpose of proving that MW had exhibited sexualised behaviour prior to the alleged conduct of the appellant.

   2. (2)

      A JIRT interview of MW dated 16 August 2017 when she was 14 years old, in which she complained that approximately six years earlier, when she was between 6 and 8 and was living at DB’s house, she was touched indecently by a young male, AT, who was then aged about 11 years.

10. [14]

    The material in both categories was excluded by s 293(3) of the Criminal Procedure Act 1986 (NSW) unless one or more of the exceptions provided for in other subsections applied. The offences with which the applicant was charged were prescribed for the purposes of s 293 and therefore attracted its operation. The relevant parts of the section were in the following terms when Traill DCJ had to decide the matter:

11. [15]

    It was argued that the FACS documents described at [13](1) above were “admissible pursuant to s 293(6) of the Criminal Procedure Act 1986 (NSW)”: see [13](3) Traill DCJ’s judgment of 12 August 2021. Subsection (6) is an exception for cross-examination of a complainant, not for tender of documentary evidence. Presumably, the argument before her Honour was that the appellant should have the right to cross-examine MW about events of a sexual nature that were reported as second hand and third hand hearsay in the FACS records. It was argued that the prosecution case implied a lack of sexual experience on the part of MW at the time of her JIRT interviews in November 2012 — other than her experience of the acts she alleged had taken place with the appellant himself. The appellant submitted to Traill DCJ that, by reason of that implication, sub-s (6) was engaged.

12. [16]

    Before Traill DCJ the appellant also argued that the JIRT interview of MW concerning AT (see [13](2) above) was admissible pursuant to s 293(4)(a) of the Criminal Procedure Act as evidence of MW’s sexual experience with AT during the period of the conduct alleged against the appellant and forming part of a connected set of circumstances in which he was alleged to have offended.

13. [17]

    On 12 August 2021 Traill DCJ ruled against the appellant on all points. The material was held inadmissible. Her Honour refused the appellant’s claim, in the alternative, for a permanent stay of the proceedings against him in the circumstance of the material being excluded.

14. [18]

    On 2 September 2021 her Honour heard an application by the appellant for leave to adduce evidence from the complainant in cross-examination, on two topics. The first was that on 10 November 2012, shortly before her first JIRT interview, MW reported to DB that during a recent visit with members of her extended family she had viewed pornographic movies with her cousins. The appellant also sought to question DB on that subject. The second topic of proposed cross-examination related to a few brief answers that MW gave in her JIRT interview of 16 August 2017, where she told the interviewer that AT had spoken in explicit terms about sexual matters. It was made clear that this questioning of MW would not concern sexual acts by AT, but only the things that he had allegedly said. MW claimed in that interview that, “He was talking about … sex and that …” and further that he spoke of “how to finger people and … all this weird stuff … like wanking, and fingering and … licking vaginas and that”.

15. [19]

    In a judgment of 5 April 2022, ruling against the proposed cross-examination, her Honour said the following:

16. [20]

    Her Honour held that the exception in sub-s (4) did not apply because the viewing of the pornography and the conversations with AT did not “form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed”. The appellant sought a permanent stay of proceedings on the basis that he could not have a fair trial if her Honour disallowed cross examination on the two topics. Her Honour dismissed that application also.

17. [21]

    On 4, 5 and 6 April 2022 Traill DCJ presided over the pre-recording of MW’s further oral evidence, to be tendered in the retrial. MW was then 19 years old. As explained in more detail below, in re-examination towards the end of the pre-recording MW gave an account of the appellant’s sexual acts on the occasions to which counts 1 and 4 relate which was materially different from what she had alleged in her first JIRT interview.

18. [22]

    On 13 February 2023 the appellant’s retrial commenced at Newcastle before Judge Whitford SC. MW’s evidence was given by replaying her JIRT interviews, her recorded evidence from the first trial and her pre-recorded evidence taken before Traill DCJ in early April 2022.

The grounds of appeal

1. [23]

   The grounds of appeal are as follows:

Grounds 1 and 1A – exclusion of evidence of complainant’s sexual experience

1. [24]

   For the purposes of grounds 1 and 1A the appellant identified in written submissions the following FACS documents that he says “fell within the exception to the exclusionary rule in s 293(3) created by s 293(6)” but were rejected (or, more accurately, upon which cross examination was rejected) by Traill DCJ in her judgment of 12 August 2021:

   1. (1)

      28 February 2008: file note of FACS caseworker CB concerning a phone call from a staff member of MW’s school. The staff member reported that MW was seen in class “pulling down her pants and fingering her anus”.

   2. (2)

      16 June 2008: file note of the same caseworker recording a report of a person named Kym that JW and MW “find it normal to touch each other’s private parts”.

   3. (3)

      26 August 2008: file note of the same caseworker regarding a report from Kym that MW had been playing a game with a neighbour’s child and “requesting to see his private parts”.

   4. (4)

      24 September 2009: record of interview between the same caseworker and MW in which MW said that when she visits DB’s house, “Her husband [the appellant] is there and they have sex”. Asked what “sex” means, she said, “They kiss”. MW continued: “They take their clothes off. … In the bathroom and in the bedroom. … [DB] takes me to McDonald’s. DB had sex at McDonald’s. She took her clothes off and everyone ran outside.”

   5. (5)

      21 October 2009: interview between a different caseworker and DB and the appellant during home visit. DB reported that MW had claimed she was in a shower with a maternal aunt during a visit to her relatives and that the aunt “weed on her”. DB informed the caseworker that the relatives did not have a shower.

   6. (6)

      30 October 2009: record of interview between MW and three FACS caseworkers. MW claimed that DB had touched her “private parts” with her hand. She said this had happened “lots of times”.

   7. (7)

      25 May 2010: client information form completed by caseworker JB. Notes of emotional and behavioural functioning include: “Sexualised behaviours including touching her genitals in public and touching other children’s genitals. … Fabricating stories to get others in trouble”.

   8. (8)

      13 September 2010: file note of another caseworker recording a report to her from DB. DB said that MW “has displayed sexualised behaviours on two recent occasions – one incident was when JW and MW were outside, DB noticed that JW had his pants down. DB said the other incident was when some teenage boys were at their home recently and MW had been told to have her bath. DB said that MW came out of the bathroom without any clothes on and said to DB ‘what you want me to do?’”

   9. (9)

      13 September 2010: a second file note by the same caseworker. This recorded that DB told her in a phone call that MW had “a major sexualised incident” on the previous weekend. The appellant had found the children around the side of the house where MW had JW in a headlock and was “kissing him full on the mouth and had her hands inside [JW’s] pants”.

   10. (10)

       3 March 2011: file note of FACS caseworker MF recording a home visit to DB and the appellant. They discussed the possible movement of the children to alternative carers. DB said that she was familiar with them and that in the previous year “MW had come back from a visit with these carers and MW had told DB that she had seen [her half sibling] grab the male carer on the penis”. DB said she was concerned about MW displaying sexualised behaviour for which she had been receiving counselling at Wallsend Hospital. DB said that MW’s behaviour included “touching and rubbing herself and on another occasion taking her clothes off and sitting naked on a bed in the presence of some school friends”.

   11. (11)

       22 July 2011: “Finalisation Submission” prepared by FACS in respect of a complaint by MW that DB “touched [her] between her legs and on her private parts … when putting a pull-up nappy on [her]”.

2. [25]

   Grounds 1 and 1A also concern the JIRT interview of 16 August 2017 in which MW said that AT had “fingered” her, tried to “stick his … penis up my vagina hole” and “in my bum hole”. She said that “the first time it hurt” and that he had also rubbed her vagina and tried to lick it. The appellant submits that those descriptions of sexual activity with AT also fell within the exception in s 293(6), apparently meaning that cross-examination of the complainant on the content of the interview should have been permitted.

3. [26]

   Although not entirely clear from the appellant’s submissions, the respondent has assumed that the argument under grounds 1 and 1A extends to Traill DCJ’s exclusion of cross-examination on the topics of MW having watched pornographic movies and having heard explicit sexual descriptions from AT (see [18] above). I proceed on the assumption that grounds 1 and 1A do extend to that potential evidence. The appellant has not disputed on appeal that watching pornographic movies and hearing AT’s sexually explicit conversation would amount to evidence of “sexual experience” or “sexual activity” of MW, so as to be inadmissible by force of s 293(3) unless the exception in sub-s (6) applies.

4. [27]

   I will address the issues raised by the appellant on that basis, without intending to endorse a proposition that the gaining of knowledge of sexual matters by watching pornography or discussing sexual acts falls within either “sexual experience” or “sexual activity”. If it were necessary to decide that point, consideration would have to be given to the observation of Basten JA in GEH v R [2012] NSWCCA 150 at [14], as follows:

5. [28]

   In the same case at [63]-[64], Harrison J analysed the distinction between “sexual experience” and “sexual activity” in terms of timeframe, continuity and specificity. His Honour appeared to treat both concepts as limited to engagement in sexual contact or sexual acts and not extending to the mere acquisition of knowledge through watching pornography or conversation. On the other hand, in Munn v R; Thomas Miller v R [2006] NSWCCA 61 at [29] the Court appeared to assume that learning of sexual matters from watching television could amount to “sexual experience” for the purposes of the section.

6. [29]

   The appellant’s argument on grounds 1 and 1A rested upon the contention that, within the meaning of sub-s (6)(a) of s 293, it was inherently “disclosed or implied in the case for the prosecution” that MW had not had prior sexual experience or activity. The appellant argued that for the purposes of sub-s (6)(b) he was “unfairly prejudiced” by not being permitted to cross-examine the complainant “in relation to the disclosure or implication”, with the consequence that Traill DCJ’s refusal to allow such cross-examination resulted in a miscarriage of justice.

7. [30]

   By serving on the appellant before the second trial the FACS documents and the JIRT interview concerning AT, the prosecution disclosed to him that the complainant had previously had sexual experience and taken part in sexual activity. However, disclosure by that means did not fulfil the prerequisite of s 293(6)(a). In Spratt v Director of Public Prosecutions [2010] NSWSC 355 Hidden J held that the reference to what “has been disclosed or implied in the case for the prosecution against the accused” in s 293(6)(a) is “concerned with the case presented by the prosecution at a hearing, whether in committal proceedings or at trial”. His Honour said disclosure of a complainant’s prior sexual experience or activity by pre-trial service of material in the brief of evidence would not engage the exemption. This Court confirmed that view in Taleb v R [2015] NSWCCA 105 at [122]-[125] (Davies J; Price and Schmidt JJ agreeing). The decision of Hidden J was cited with approval.

8. [31]

   At trial the Crown did not adduce any evidence tending to show that, up to the date of her first JIRT interview in November 2012, MW either did or did not have sexual experience or take part in sexual activity, other than what was alleged to have occurred with the appellant. Neither in the Crown’s opening address nor in closing was any submission made to the jury regarding other sexual experience or activity of the complainant, or lack thereof. The appellant therefore did not submit on appeal that the prosecution “disclosed” to the jury at trial anything about whether the complainant had sexual experience or activity. Rather it was submitted that by tendering through the JIRT interviews statements made by MW when she was nine years old, the prosecution “implied” a lack of past sexual experience or activity, other than her experience of the alleged acts of the appellant. It was made clear in argument, both before Traill DCJ and on appeal, that the implication was said to have been conveyed solely by the age of the complainant when she gave the interviews.

9. [32]

   In written submissions on the appeal the appellant recounted and reiterated the arguments that were put to Traill DCJ, as follows:

10. [33]

    In oral submissions on the present appeal counsel was asked to confirm that the complainant’s age was the sole basis of the claim that it was implied in the prosecution case that she had not had prior sexual experience or activity aside from the disputed conduct of the appellant. The following exchange took place:

11. [34]

    The terms “sexual experience” and “sexual activity” as used in s 293 do not include experimental or explorative touching between very young children who are not sexually aware and between whom such contact does not derive from or relate to a purpose of sexual gratification: Uddin v R [2020] NSWCCA 115 at [42] (Meagher JA). In that case the children concerned were siblings and cousins living in the same house, ranging in age up to 7 years. Insufficient evidence had been adduced at trial to enable this Court to determine whether what had taken place between them fell within the section.

12. [35]

    The judgment of Fullerton and Wilson JJ in the same case included the following observations:

13. [36]

    With respect to the last point made by their Honours, it is settled that s 293 is concerned with sexual experience or activity that has occurred prior to the events charged (Cook (a pseudonym) v The King [2024] HCA 26 at [35]) and that it includes abusive and criminal sexual contacts of which the complainant may have been a victim: HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [28]-[31] (Gleeson CJ), [70] (Gaudron J), [146]-[147] (Hayne J).

14. [37]

    I accept it would likely be the common experience amongst jurors that, up to the age of nine, it would not be expected that a girl would have gained sexual experience or engaged in sexual activity, within the meaning of the section, unless in circumstances of abuse. It does not follow that in this case, as a result of the Crown tendering the November 2012 JIRT interviews of the nine-year-old complainant, there arose any positive implication that she had not previously been abused by someone other than the appellant or that she had not exceptionally and precociously gained sexual experience or engaged in sexual activity in other circumstances.

15. [38]

    The appellant argued that it would be sufficient to engage subsection (6) if “there [was] a real risk that a juror, or the jury, would reason in that way”; meaning that they would infer a lack of prior sexual experience or activity (other than with the appellant) from the circumstance of the complainant being only nine years old. I do not accept that argument. The activation of subsection (6) depends upon the trial judge being “satisfied that it has been […] implied in the case for the prosecution” that the complainant had, or did not have, prior sexual experience or activity. The statutory test is not one of risk as to how jurors might reason but of whether the evidence and submissions relied upon by the Crown have conveyed an implication of prior sexual experience or activity, or lack thereof. Here, I find nothing in the presentation of the Crown case that effectively invited the jury to draw an inference about lack of prior sexual experience or activity of MW (other than in the events charged), on the basis of her age.

16. [39]

    For the purpose of disposing of this appeal I am content to assume, favourably to the appellant, that the question of what is “implied in the case for the prosecution” is to be resolved by objective assessment, not by reference to what the prosecutor may subjectively have intended. In R v Tubou [2001] NSWCCA 243 this Court considered s 105 of the Criminal Procedure Act, which was in substantially the same terms as s 293. Heydon JA (as his Honour then was) said this at [70] (Wood CJ at CL and Sully J agreeing):

17. [40]

    Those conclusions were not necessary to the Court’s decision. If the point had to be decided for the purpose of this appeal I would respectfully adopt Heydon JA’s dicta. Here, there is certainly no basis for imputing to the Crown any intentional suggestion regarding the complainant’s prior sexual experience or activity.

18. [41]

    The appellant submitted that when this Court heard his earlier appeal it held that it was inevitable the jury would infer from the youth of the complainant that she lacked previous sexual experience or activity. For ease of reference, the portion of [14] in the Court’s judgment that the appellant relies upon is repeated, with emphasis added, as follows:

19. [42]

    MW’s answers in her JIRT interviews suggested that she had an understanding of her own body, an understanding of the male penis and its capacity to penetrate the anus or the vagina of a female, an understanding that discharge from the penis may occur during a sexual act and so on. The conclusion of the Court in the above passage is not that the age of MW would inevitably lead to an inference that she had no history of prior sexual experience or activity. Rather, the Court was of the view that the terms in which she made her complaint would support an inference that the alleged assaults by the appellant actually occurred unless there was “some other explanation for her ability and motive to describe such events in such terms”. An “other explanation” for her ability to make detailed allegations of sexual assaults by the appellant would include that she may have had prior sexual experience or activity, including sexual abuse, or prior acquisition of knowledge of sexual matters, such as from viewing pornography or from conversation on sexual topics with older children or adults. The Court did not say that the tender of the JIRT interviews combined with the complainant’s age impliedly excluded such an “other explanation”. It was not held that lack of prior sexual experience or activity was “implied in the prosecution case”, for the purposes of s 293(6)(a).

20. [43]

    To prevent the Crown sustaining beyond reasonable doubt an inference that the alleged events “must have happened”, the appellant would only have had to identify to the level of a reasonable possibility an alternative explanation for the complainant’s ability to describe in graphic terms the sexual acts she said had been committed upon her. The raising of such a reasonable possibility would not depend upon the applicant sustaining it with evidence: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42. None of these considerations advance the appellant’s argument that the prerequisite in s 293(6)(a) for cross-examining MW on her sexual history was satisfied.

21. [44]

    There was no error or miscarriage of justice in the exclusion of evidence concerning the complainant’s sexual experience or activity. Grounds 1 and 1A should be rejected.

Grounds 2 and 3 – refusal of permanent stay

1. [45]

   It was available to Traill DCJ to grant a permanent stay of the prosecution if satisfied that the exclusion of evidence by operation of s 293 would result in an unfair trial. Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 was a case in which the accused sought to adduce evidence that the person whose complaint supported charges against him had previously made false accusations against others, alleging a violent assault and sexual assaults. The trial judge applied s 293 to exclude the evidence but refused to stay the proceedings. Those rulings were appealed before the trial commenced, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). In the following passages Leeming JA (Bathurst CJ and Johnson, Button and Wilson JJ agreeing) considered the power of a trial court to grant a stay in such circumstances:

2. [46]

   Leeming JA identified a number of uncertainties about how the evidence would unfold at trial, which precluded a determination that the exceptional remedy of a stay was warranted. His Honour concluded as follows:

3. [47]

   In ground 2 the appellant submits that Traill DCJ erred in her prospective assessment, based upon materials available to her in August 2021 and April 2022, of whether the trial of the appellant would be irremediably unfair. Her Honour decided that, notwithstanding the constraint of being unable to cross-examine MW about previous sexual experience or activity, the trial would not be so unfair as to warrant the exceptional remedy of a stay. Her Honour took into account that that the jury would be directed not to speculate and that the Crown would not be permitted to advance in the trial:

4. [48]

   In determining whether Traill DCJ’s refusal of a stay involved error this Court is required to apply a correctness standard, rather than merely to determine whether the decision was open: Koschier v R [2024] NSWCCA 24 at [33]. In my view her Honour’s decision was correct. In addition to the reasons she assigned, considerations similar to those advanced by Leeming JA in Jackmain (a pseudonym) v R were engaged. Although, by operation of s 293, the appellant would not be able to cross-examine MW about prior sexual experience or activity – for example, with AT or with her brother, JW – or to cross-examine her about what pornography she had seen or what AT may have told her about sexual matters, it could not be foretold that the appellant would necessarily be denied adequate forensic opportunities for his defence. As the trial could be expected to unfold, it would be open to defence counsel to ask MW questions about her understanding, as at the alleged date of the first offence charged, of male genitalia and of sexual acts between males and females. Cross-examination on those topics could be conducted without adducing from the complainant that she had learned of such matters through anything that would amount to “sexual experience” or “sexual activity”. Answers could be obtained that would not disclose or imply such past experience or activity and would not contravene s 293(3). The source and means of the complainant’s knowledge need not be touched upon.

5. [49]

   If MW agreed in cross-examination that she had acquired a knowledge of sexual organs and sexual acts prior to the events of count 1, defence counsel could have put to her and later submitted to the jury that she was equipped to fabricate her allegations in the JIRT interviews. Even without such cross-examination, it was open to counsel to submit that the jury should feel a reasonable doubt about whether MW’s graphic descriptions in the interviews were the product of actual experience or of invention. It would not have been necessary to cross-examine MW along the lines suggested above as a prerequisite to propounding to the jury the reasonable possibility that a child of nine could have gained sufficient knowledge to fabricate her allegations, for example from incidental exposure to pornographic material. Yet a third approach would be simply to challenge MW as having made up her allegations, without explicitly opening up the subject of whether she had prior knowledge of sexual matters.

6. [50]

   The appellant’s contention pursuant to ground 3 is that, irrespective of whether Traill DCJ was correct in refusing a stay on the information available to her in April 2022, the trial that followed under conditions of exclusion of evidence pursuant to s 293 was unfair. I do not accept that contention. The forensic opportunities referred to in the preceding paragraphs were open to the appellant if he chose to avail himself of them. They were adequate to enable him to challenge the Crown case and to put his own case in defence to the jury. No miscarriage of justice was occasioned by the limits imposed by s 293 upon cross-examination and adducing of evidence.

7. [51]

   Grounds 2 and 3 should be rejected.

Ground 4 – prosecutor’s final address

1. [52]

   The complainant was cross-examined about her failure to take opportunities that were available to her to complain to family members and authority figures about the sexual acts that she alleged the appellant was perpetrating against her over a period in the order of two and a half years. She gave evidence that she had made a complaint about the appellant striking her with a cricket bat as a form of discipline. In anticipation of a defence submission to the jury that her failure to complain in a timely fashion about sexual acts of the appellant gave rise to a reasonable doubt concerning her allegations, the prosecutor included in his final address the following points that are alleged in ground 4 to have been unfair:

2. [53]

   The unfairness is said to have arisen from the circumstance that the prosecutor’s argument would have been contradicted or at least weakened but for the appellant having been unable to tender FACS records to which the Crown had taken objection under s 293. The parts of the excluded FACS records that the appellant relies upon in his written submissions are as follows:

   1. (1)

      24 September 2009: record of interview between a caseworker and MW in which MW said that “[DB] takes me to McDonald’s. DB had sex at McDonald’s. She took her clothes off and everyone ran outside.”

   2. (2)

      30 October 2009: record of interview between MW and three FACS caseworkers. MW claimed that DB had touched her “private parts” and MW said, “Stop it”. She said this had happened “lots of times”.

   3. (3)

      31 May 2010: email from DB to FACS stating that “on the weekend MW and my grandson reported that [JW] kept trying to put his hands in [MW’s] pants … I witnessed for myself [JW] put his hands in [MW’s] pants”.

   4. (4)

      22 July 2011: a finalisation submission recorded that MW alleged that DB touched her between her legs and on her private parts and had sex with her and her brother [JW].

3. [54]

   When the extracted portion of the prosecutor’s final address is read in the context of the whole of his argument about MW’s failure to complain earlier than she did, I do not accept that Crown’s submission to the jury was rendered unfair by the circumstance that the above four items of evidence had been excluded. A fair summary of the prosecutor’s argument, over two and a half pages of transcript, must include reference to the following points made:

4. [55]

   In my view, none of the FACS records would have materially weakened the prosecutor’s argument if they had been in evidence. Items (1), (2) and (4) were complaints to FACS about DB and item (3) was a complaint to DB about JW. None of the constraints articulated by the prosecutor, explaining why MW had not made timely complaint to other adults about the appellant, would have been contradicted if the jury had received the FACS records. The appellant did not seek a direction from the trial judge that the prosecutor should withdraw his submission or that the jury should disregard it. That is a strong indication that in the atmosphere of the trial there was perceived no unfairness arising from the Crown having made the submission in the absence of the records. Applying r 4.15 of the Criminal Appeal Rules, leave to argue this ground should be refused.

Ground 5 – unreasonable verdicts

1. [56]

   The appellant’s argument that the guilty verdicts are unreasonable, or cannot be supported, having regard to the evidence, centres upon MW’s evidence concerning counts 1 and 4. It is submitted that the jury, acting reasonably, ought to have had a reasonable doubt regarding the appellant’s guilt on those charges because the prosecution case depended entirely on the truthfulness and reliability of MW’s evidence, which had changed radically with respect to counts 1 and 4 from her first JIRT interview on 13 November 2012 to her re-examination during the pre-trial recording of her oral evidence on 5 April 2022. The appellant submits that, making full allowance for the jury’s advantage of seeing and hearing the complainant in the video recordings of her JIRT interviews and in her pre-recorded oral evidence, there was no basis upon which the jury could have resolved the fundamental contradictions between MW’s descriptions, on widely separated occasions, of the events alleged by the Crown in the two counts. The jury, it is submitted, ought to have been left with a reasonable doubt as to whether the acts charged had occurred.

2. [57]

   A second stage of the submission is that MW’s self-contradictions in relation to counts 1 and 4 ought to have left the jury with a reasonable doubt concerning her truthfulness and reliability overall, which should have translated into a reasonable doubt regarding the appellant’s guilt on counts 2 and 5 as well.

3. [58]

   On the hearing of the present appeal the Court does not have the whole record of the first trial in August 2014. As MW had not, up to the conclusion of that trial, departed from the substance of her allegations in the JIRT interviews, the Crown must have put count 1 to the first jury on the basis that the appellant had anally penetrated MW on his bed in his own house. In the first JIRT interview MW described graphically the alleged anal penetration. She said the appellant “put his private front part in my bum”, that it “hurt” and “stung” and that “there was a cut where – cause he’s, when his private part went in it pushed and it made my bum hole, my bottom hole thing bigger -- and it had left a cut -- there”. MW described a discharge from her anus that she observed very shortly after the alleged penetration. She described that event and other alleged sexual acts of the appellant in language that clearly differentiated between her anus and her vagina and exhibited self-awareness of that region of her body. The description MW gave of the anal penetration was consistent over 15 pages of the transcript of the first JIRT interview, in answer to approximately 185 questions.

4. [59]

   Likewise, in the first trial in August 2014 the Crown must have put count 4 to the jury as an instance of anal penetration, on the occasion when the appellant was alleged to have lifted her onto a pool table. MW was very clear in so particularising the event over seven pages of transcript of the first JIRT interview, in answer to approximately 100 questions. She said he “throwed me onto the pool table” and “was also trying to put his front hole up my bum again”. MW said “It went in. The bum. Hole.”

5. [60]

   In the first trial, after the JIRT interviews had been played back to MW in her presence by audiovisual link and in the presence of the jury, no evidence was adduced from her by the Crown to qualify or correct anything she had said to the interviewing officer. In cross-examination by defence counsel it was put to her that the “rude things” that she said happened in the bedroom (count 1) and on the pool table at DB’s house (count 4) “never happened”. MW disagreed.

6. [61]

   In the first trial the Crown evidently persuaded the jury beyond reasonable doubt, on the basis of MW’s evidence in her first JIRT interview, that the appellant had anally penetrated her on the two occasions she identified, being the discrete occasions that the Crown has always specified for the purposes of counts 1 and 4.

7. [62]

   After she gave evidence in the first trial, the next occasion on which MW saw and heard her JIRT interviews was in October 2021. At that time she reviewed the recordings to prepare for what was expected to be a pre-recording of evidence, scheduled for November 2021 in anticipation of a retrial and a still later date pursuant to the order of this Court. The pre-recording did not take place in November 2021. When it did occur, in early April 2022, MW said that she had not listened closely to her JIRT interviews in October 2021 but had been “a bit distracted” and “couldn’t focus” and “kept skipping through it”.

8. [63]

   MW next listened to her JIRT interviews on Friday, 1 April 2022 in preparation for pre-recording her evidence, rescheduled before Traill DCJ for Monday, 4 April 2022. She also watched and listened to the recording of her evidence given at the first trial in August 2014. MW later said she had not skipped through the replaying of the interviews on the Friday, 1 April 2022 but had watched and listened to the whole of them. She said that at the conclusion of the replaying she had asked a solicitor from the Office of the Director of Public Prosecutions “if I could change some things in there”. She said she was told to wait until the following Monday when the prerecording was to commence. However, on the Monday she did not speak to anyone from the prosecution office before giving evidence.

9. [64]

   On 4 April 2022 MW was sworn before Traill DCJ and confirmed in her evidence in chief that she had recently listened to the JIRT interviews, which were tendered. After 14 transcript pages of cross examination, mostly concerned with the time of the alleged offences relative to each other and to surrounding circumstances, the luncheon adjournment was taken. On resumption the witness intermediary advised the judge that the witness had said during the break that she wanted to tell the Court something. MW then said this:

10. [65]

    Cross examination on count 1 then proceeded over 10 transcript pages (AB186-195) during which at least five questions were formulated in terms that expressly reminded MW that in the first JIRT interview she had said the applicant “put his penis in your bottom”. At the conclusion of some testing of MW’s allegations on count 1 the following question and answer are recorded:

11. [66]

    Cross-examination on count 4 is recorded over seven pages of transcript (AB213-220), concluding with the following question and answer:

12. [67]

    Cross-examination continued into the second day of the prerecording, 5 April 2022. The prosecutor was afforded an opportunity to confer with MW before re-examining her. After an adjournment he advised the Court of the following:

13. [68]

    MW was then recalled and altered her evidence about counts 1 and 4 in the above respects. In further cross examination with respect to count 1 she was asked whether, at the time of the first JIRT interview, she understood “the difference between your bottom, so your anus, and your vagina”. She answered, “A little bit, I think” and then said:

14. [69]

    The jury in the second trial could not reasonably have accepted that evidence of a limited understanding of her body parts and of confusion when she was aged nine years and nine months in November 2012. They could not reasonably have accepted confusion during the JIRT interview as an explanation by which her answers then could be reconciled with her evidence in re-examination on 5 April 2022, that what the appellant actually did on the relevant occasion was to attempt vaginal intercourse. There is not the least appearance of confusion on this point in the JIRT interview.

15. [70]

    There was not elicited from MW any separate explanation of how she came to describe the events of count 4 in her JIRT interview as anal penetration over the pool table if, as she now asserted, what had taken place was vaginal intercourse. Her explanation of the change in evidence concerning count 1 was all that the second jury could have relied upon. That explanation was no more acceptable in relation to count 4 than it was for count 1.

16. [71]

    It may be regarded as surprising that the Crown would press on with the trial of the appellant on counts 1 and 4, particularised respectively as instances of attempted vaginal intercourse and completed vaginal intercourse, where those particulars had had been alleged for the first time during re-examination of the sole witness nearly 9½ years after her first complaint and where the particulars were irreconcilable with how she had described the misconduct at a time reasonably proximate to its alleged occurrence. However, the Crown did press those charges. The retrial commenced on 13 February 2023. Having secured in August 2014 conviction of the appellant for conduct on the two occasions in question of an entirely different kind, the Crown opened count 1 to the jury in the following terms:

17. [72]

    The Crown opened count 4 as follows:

18. [73]

    A statement of agreed facts tendered in the second trial included the following:

19. [74]

    In final address counsel for the Crown quoted to the jury MW’s evidence in re-examination at the prerecording, where she said that on the occasion to which count 1 relates the appellant had tried to insert his penis in her vagina, rather than having actually penetrated her anus as she had said in the JIRT interview. Counsel described that as “an important point of clarification by [MW]”. He also quoted the passage of the pre-recorded re-examination evidence where MW had changed her account of what occurred on the occasion to which count 4 relates. The prosecutor accepted that “they are two fairly significant changes”. He urged the jury to accept MW’s explanation “that there was a problem that she had with the way she expressed herself as a child” and submitted that she was not shown to be a liar because she had herself volunteered the change. He submitted that the jury would take account of the fact that in the prerecording MW “was going back probably six months shy of 10 years. She was looking at herself as a nine year old girl”.

20. [75]

    Nothing the prosecutor said in closing address provided a reasonably acceptable rationalisation of why MW gave the evidence of vaginal intercourse upon which the Crown relied upon in proof of the two counts for the first time 10 years after she had alleged materially different sexual assaults. There was no acceptable rationalisation of why she had adhered to the earlier allegations over the intervening period, including through a trial that saw the appellant convicted of acts that she no longer alleged. Without such a rationalisation the jury could not eliminate reasonable doubt with respect to counts 1 and 2. Defence counsel’s strong closing arguments on this point could not be reasoned away.

21. [76]

    It does not follow that the jury ought to have had a reasonable doubt about the appellant’s guilt on counts 2 and 5, to the proof of which MW’s testimony was also critical. Counts 2 and 5 concerned separate occasions. It was open to the jury to find those counts proved beyond reasonable doubt notwithstanding the insoluble unreliability of her evidence on counts 1 and 4. Accordingly, I would uphold ground 5 and set aside the conviction of the appellant on counts 1 and 4.

Orders

1. [77]

   I propose the following orders:

   1. (1)

      Grant leave to appeal so far as necessary for the appellant to advance grounds that are not limited to questions of law alone.

   2. (2)

      Uphold the appeal on ground 5 only.

   3. (3)

      Quash the convictions on counts 1 and 4.

   4. (4)

      Set aside the aggregate sentence imposed on in respect of the appellant’s convictions on counts 1, 2, 4 and 5.

   5. (5)

      List the proceedings in the District Court on 24 January 2025 for mention to fix a date for re-sentence on counts 2 and 5.

2. [78]

   CHEN J: I have had the advantage of reading the draft judgment prepared by Fagan J. I agree with the orders proposed by his Honour. In relation to grounds 1-4, I agree with Fagan J. In relation to ground 5, I am satisfied, having made an assessment of the whole of the evidence, it was not reasonably open for the jury to be satisfied beyond reasonable doubt of the appellant's guilt in on counts 1 and 4, for the reasons given by Fagan J.

3. [79]

   SWEENEY J: I have had the advantage of reading in draft the judgment of Fagan J. I agree with the orders proposed by his Honour.

4. [80]

   In respect of Grounds 1 to 3, the operation of s 294CB of the Criminal Procedure Act can in some cases cause unfairness, as this Court has said before. However, I agree with his Honour’s disposition of those grounds.

5. [81]

   In respect of Ground 4, in my view the Crown Prosecutor’s submission to the jury that it would be difficult for the complainant to disclose the sexual conduct by the applicant was unfair, when the Crown knew there were records of the complainant having complained earlier about inappropriate sexual conduct by the applicant’s partner, even though that material had not been tested or explored in evidence. However, trial counsel did not take issue with the Crown Prosecutor’s submission, and she made comprehensive submissions to the jury about the lack of complaint, presumably in the context of the issues in the trial. Therefore I agree with his Honour’s disposition of Ground 4.

6. [82]

   In relation to Ground 5, I have made my own assessment of the evidence. I agree with Fagan J, for the reasons his Honour explains, that the change in the complainant’s evidence means the verdicts on counts 1 and 4 cannot be sustained. The unreliability of the complainant’s evidence on those two counts was a matter the jury should have borne in mind when considering her evidence as to counts 2 and 5. But it did not automatically or necessarily follow that they must acquit the applicant on counts 2 and 5. It was open to the jury to accept the complainant’s evidence and be satisfied beyond reasonable doubt of the applicant’s guilt on those two counts.

7. [83]

   Accordingly, I agree with the orders proposed by Fagan J.