Smith (a pseudonym) v R

1. [1]

   STERN JA: Following a judge alone trial, on 31 May 2024 the applicant was convicted on four counts of sexual offending (and was acquitted on two counts). All counts involved one child, the complainant. The offending occurred between 1 August 2021 and 30 September 2022 when the complainant, who turned 12 in late 2020, was 12 or 13 years old. The applicant is 15 years older than the complainant. He is the half-uncle of the complainant on her father’s side and, together with his mother (JP, the complainant’s grandmother) and his grandmother (DC, the complainant’s great-grandmother), was living with the complainant at the time of the offending. On 31 January 2025, the applicant was sentenced to an aggregate sentence of imprisonment of 9 years and 3 months, with a non-parole period of 5 years and 2 months, backdated to reflect time in custody.

2. [2]

   The applicant seeks leave to appeal against his conviction on one ground only, that:

3. [3]

   The key contention of the applicant in support of this ground is that there was a miscarriage of justice because he should have been permitted under s 294CB(6) of the CPA to cross-examine the complainant “[a]s to the circumstances of the 2017 conduct [being conduct which occurred in 2017 when the complainant was sexually touched or assaulted by her maternal uncle, who pleaded guilty and was convicted]” and as to whether or not those details were consistent with details given by the complainant to her friend, ER (a school friend of the complainant and a Crown witness), on 10 October 2022. The disclosure by the complainant to ER on 10 October 2022 was, on the Crown’s case, the complainant’s first disclosure that she was being sexually assaulted by the applicant.

4. [4]

   By way of context, on 15 April 2024 the applicant had sought an evidentiary ruling under s 294CB(4)(a) of the CPA from the trial judge that he be permitted to cross-examine the complainant and ER, and for that purpose to adduce evidence, about the 2017 conduct. That application was considered on a voir dire (the s 294CB voir dire) and was unsuccessful. The applicant did not ultimately press his original ground of appeal challenging this ruling.

5. [5]

   At the trial, the applicant had not, however, sought any evidentiary ruling under s 294CB(6) of the CPA that he could cross-examine the applicant as to the occurrence or details of the 2017 conduct. Nor did he seek any ruling at trial that the complainant’s answers to any such questions put to her in cross-examination would fall within the exception to inadmissibility in s 294CB(4)(f) of the CPA. The applicant thus accepts that he needs leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) to rely upon his single proposed ground of appeal. In any event, as this ground involves a question of mixed law and fact, leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

6. [6]

   For the reasons set out below, leave under r 4.15 and s 5(1)(b) of the Criminal Appeal Act should be refused.

The offending

1. [7]

   The offences involved one count of sexual intercourse without consent, knowing that the complainant was not consenting, in circumstances of aggravation being that the complainant was under 16 years of age contrary to s 61J(1) of the Crimes Act 1900 (NSW) (count 4), one count of sexual intercourse with a child aged between 10 and 14 years of age in circumstances of aggravation, namely that the complainant was under his authority at the time, contrary to s 66C(2) of the Crimes Act (count 6), and two counts of intentionally sexually touching a child aged between 10 and 16 years contrary to s 66DB(a) of the Crimes Act (counts 3 and 5). The applicant was acquitted of two counts of sexual intercourse contrary to, respectively, ss 66C(2) and 61J(1) of the Crimes Act (counts 1 and 2).

2. [8]

   Count 1 was alleged to be the first act of penile-vaginal intercourse. Counts 2 and 3 were alleged to occur on the one occasion, count 2 involving penile-vaginal intercourse and count 3 involving use of a vibrator. Counts 4 and 5 were also alleged to occur on the one occasion, with count 4 involving penile-vaginal intercourse and count 5 involving use of a vibrator. Count 6 was alleged to be the last occasion of penile-vaginal intercourse that the complainant could recall.

Section 294CB of the Criminal Procedure Act

1. [9]

   It is convenient to set out the relevant parts of s 294CB of the CPA (which I will refer to in this judgment simply as s 294CB) before turning to the factual background. Section 294CB relevantly provides:

2. [10]

   Five observations should be made about s 294CB and its application in the present case.

3. [11]

   First, evidence going to whether the complainant was a survivor of sexual assault is evidence that goes to her “sexual experience” within s 294CB(3): Cook (a pseudonym) v The King [2024] HCA 26 at [39].

4. [12]

   Second, as explained by Simpson J in Rowney v R [2007] NSWCCA 49 at [68], considering s 293 which has now been renumbered to s 294CB:

5. [13]

   In the present case, as explained at [53]-[56] below, for the purposes of s 294CB(6), the applicant relies upon a disclosure in the Crown case constituted by the leading of evidence in examination in chief of a Crown witness, that the complainant told her on 10 October 2022 that she had been sexually assaulted by her maternal uncle. As explained below, that is evidence which satisfies the requirements of s 294CB(6)(a). It is a disclosure made in evidence led by the Crown in the trial and it was thus part of “the case presented … in court”: see Taleb v R [2015] NSWCCA 105 at [125] (Davies J, Schmidt and Price JJ agreeing). It is also a disclosure in the Crown case that the complainant had had a particular sexual experience either before or at the same time as the offending conduct of the applicant. That is so irrespective of the fact that the Crown contended, and the trial judge found, that ER was most likely either mistaken or confused in this evidence, and the trial judge did not accept that the complainant had in fact discussed the 2017 conduct with ER on 10 October 2022.

6. [14]

   Third, given that the applicant relies upon an express disclosure in the Crown case, by the evidence led from ER, that the complainant had had the sexual experience of being sexually assaulted by her maternal uncle, it is unnecessary to consider the correctness of the conclusion of Fagan J (Chen and Sweeney JJ agreeing) in WHS v R [2024] NSWCCA 242 at [38] that the statutory test under s 293(6) (now s 294CB(6)) is “whether the evidence and submissions relied upon by the Crown have conveyed an implication of prior sexual experience or activity, or lack thereof” (noting that special leave to appeal to the High Court has been granted in WHS v R and the correctness of this interpretation of s 293(6) is in issue in that appeal).

7. [15]

   Fourth, even if cross-examination is permitted under s 294CB(6), the evidence given in cross-examination is admissible under s 294CB(4)(f) only if the concluding words of s 294CB(4) are satisfied, namely that the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

8. [16]

   Fifth, it appears from s 294CB(5) that a decision about admissibility of evidence that falls within the ambit of s 294CB(3), or that may fall within the ambit of s 294CB(4)(f), must be sought from the court in advance of cross-examination under s 294CB(6). Thus, a ruling as to whether questions on a particular topic may be put in cross-examination under s 294CB(6) is, in substance, a ruling as to admissibility under s 294CB(4)(f) of evidence that might be given during that cross-examination.

9. [17]

   It follows from these latter two matters that the proper characterisation of the applicant’s proposed ground of appeal is that there was a miscarriage of justice because he was not permitted to cross-examine the complainant as to both the fact and details of the 2017 conduct and because the trial judge did not rule under s 294CB(5) that the evidence, if given during, that cross-examination would be admissible under s 294CB(4)(f). Absent such permission, questioning about the details of the 2017 conduct would necessarily have been precluded by s 294CB(5) as it was evidence that was inadmissible under s 294CB(3) but which may be admissible under s 294CB(4)(f).

Factual background

1. [18]

   The complainant moved into the home in St Clair, where she lived with DC, JP and the applicant, when she was about seven years old (shortly after the 2017 conduct). Her grandmother, JP, was diagnosed with PTSD, probably in September or October 2021. Her great-grandmother, DC, was diagnosed with cancer in July 2021. On some occasions she would go and stay with her mother.

2. [19]

   Whilst the detail of the Crown’s opening is not relevant for the purposes of the application before this Court, it should be observed that the Crown did refer to the 2017 conduct, but consistent with the guidance in Cook (a pseudonym) v The King at [56]–[58], did so in a way that avoided any reference to any sexual experience or activity. Thus, the Crown explained that as “a result of an incident between [the complainant] and another family member in 2017, [the complainant] began to feel unsafe and as a result moved into [the house in St Clair]”. Consistently with how the Crown opened the case, the evidence at trial did not include the 2017 conduct but it did include reference to a traumatic incident involving the complainant and another family member in 2017 which caused the complainant to feel unsafe at her home. Further, as will become apparent, at trial counsel for the applicant contended that the complainant had conflated details of past events with other matters in her disclosure of sexual assault by the applicant to ER on 10 October 2022.

3. [20]

   The complainant was interviewed by the police about the applicant’s offending on three occasions: 10 October 2022, 21 October 2022 and 11 April 2024. She confirmed in her oral evidence that she had told the police the truth on those three occasions. The police interviews were all played at trial. The detail of her evidence as to the offending is not relevant for the purposes of this appeal. Suffice to say that she explained in her police interviews that the applicant had touched her and had sexual intercourse with her, she could not remember how many times he had had sex with her, the first time was probably around November 2021 and the last time was a couple of weeks, or probably about a month, prior to 10 October 2022. She said that it was her uncle who had been abusing her, and that the sexual assault occurred “at his mum’s house”. She also named the applicant as the perpetrator of these sexual assaults, and identified him as her father’s half brother, in her first police interview.

4. [21]

   In the interview on 10 October 2022 the complainant disclosed the conduct the subject of counts 1 and 6. The complainant said that the first person she told of the sexual assault by the applicant was her friend, ER, who she told on the way to see her year adviser, Ms Panes, that day. She said that she told ER that “my uncle’s been, like, touching me” and that the reason she told ER this was because:

5. [22]

   In her second police interview the complainant was also questioned about messages on the Discord messaging app between her and the applicant on 10 October 2022. She said that these were messages during the first and second period of school that morning (spanning 8.40 to 10.40 am) and that, earlier that morning, the applicant had said something to her that caused her “to tell him, to say, Stop”. She said that during the messaging on Discord that morning she got “really, uh, triggered at, like, what’s happening”, and she showed ER the Discord messages. She said that in these messages the applicant had “admitted to doing it”, meaning, “like, everything he’s done to me”.

6. [23]

   In the complainant’s third police interview, she was asked about the flashbacks she was having on the morning she disclosed the sexual assault. She said that “I tend to have these, like, episodes and that day was one of those episodes where I see everything that [the applicant] had done to me in the past”. She was then asked if the flashbacks were of just the applicant or other things as well and she said that they were about the applicant and the things he did.

7. [24]

   Discord messages between the applicant and the complainant from 10 October 2022 (as referred to by the complainant in her evidence) were tendered at trial by both the Crown (Exhibit B) and, with additional messages, by the applicant (Exhibit 1). The content of Exhibit B was summarised by the trial judge as follows:

8. [25]

   The content of Exhibit 1, to the extent it went beyond Exhibit B, as summarised above, included the following:

9. [26]

   When cross-examining the complainant, the applicant’s counsel avoided any reference to the 2017 conduct. For example, when asked during cross-examination why she did not return to live with her mother, [the complainant] said, among other things, that she “used to blame my mum for a lot of things that happened in my past and…”. Counsel for the applicant cut her off at that point, saying “I don’t want to talk about that.”

10. [27]

    The complainant was cross-examined about details that ER said she disclosed to ER on 10 October 2022 (at [31]-[38] below) and also as to possible conflation between conduct of the applicant and the 2017 conduct during that disclosure. For example, she was asked whether she had told her mother about “what was happening” (clearly referring to the alleged sexual assault by the applicant). She replied “No, not until October 10”.

11. [28]

    She was also asked if the flashbacks she said she had on 10 October 2022 were about the applicant. She replied:

12. [29]

    When cross-examined about what she had disclosed to ER on 10 October 2022, she said that that was only about the applicant but that ER “already knew about her past”. She was then asked whether, prior to 10 October 2022, she had told ER about “things that happened in 2017.” She replied that she had and that she was sure about that. She also denied that on 10 October 2022 she had told ER anything “about the past situations”. She also denied that on 10 October 2022 she had told ER that she had told her mum about the sexual assault by the applicant or that she had told ER that the applicant would sexually assault her at family gatherings.

13. [30]

    In cross-examination it was also put to the complainant that on 10 October 2022 she was actually upset because the applicant had been accessing her Discord account. She accepted that she could have been upset about that and that she knew that she was “very upset about a lot of things”, being her flashbacks, being triggered and being “upset about being annoyed at my past”.

14. [31]

    ER, who was aged 13 on 10 October 2022, participated in two interviews with police, the first on 31 August 2023 and the second on 12 April 2024. She was also cross-examined at the trial. The interview of 31 August 2023 was tendered as part of ER’s evidence in chief. The second interview was not tendered by either the Crown or the applicant. However, both of the police interviews were before the trial judge during the s 294CB voir dire. No explanation was provided for why ER’s first interview occurred over 10 months after the matter was reported to police.

15. [32]

    ER’s account at her police interview on 31 August 2023 was that on 10 October 2022 the complainant had come out of class after first period and “was crying, and then I came up to, she had a phone in hand and she was, um, texting, like, a lot”. The complainant asked to go and see a teacher (whom ER said was Ms Panes, using her previous name Ms Brennan) and showed ER the texts, which ER said were “between her and her assaulter. I don’t know his name”. It is not disputed that these “texts” were the Discord messages referred to above.

16. [33]

    ER said that she could not remember what the complainant said exactly, “not, let alone, really anything, I was just focused on the fact that she was crying, she needed me …”. When asked what the complainant had told her, she said that before they saw Ms Dent:

17. [34]

    ER said that the complainant had said:

18. [35]

    When asked if she knew “anything else about him”, ER said:

19. [36]

    When asked what else the complainant said, ER said that it was inappropriate “starting when she was around, like, 11 or 12”, that it had happened “in a few family gatherings, maybe at home. Whenever it was just him and her, nobody else around.”

20. [37]

    ER was asked if she could say anything more about the complainant texting her uncle on Discord, and she said that she remembered seeing:

21. [38]

    When asked whether the complainant had told her “anything previously about anything else”, ER said:

22. [39]

    At her further interview on 12 April 2024, over 18 months after the disclosure on 10 October 2022 (which was not in evidence at the trial), ER was asked to clarify some of the things she had said in her initial interview. For this purpose she was given a transcript of that first interview.

23. [40]

    As to the timing of the assaults, ER gave varying accounts of when the assaults disclosed by the complainant on 10 October 2022 occurred. She first said that it happened “two years from 2022 because that’s when we were taking about it”. However, she later said that it “happened from when she was 10, she said … or just a very young age between like those double digits.” Later still, having said that “it happened gradually, more overtime … for a large amount of time … several amount of amounts of times”, ER said that she had not been very clear in her initial interview but that it was clear to her that in 2022, when “we were taking about it, it was about from when she was 10 and happened gradually over time, still up until she was 13 or whatever age [the complainant] was in 2022”.

24. [41]

    ER was also asked if she knew “which uncle [the complainant] was talking about”. She replied that the assault that the complainant was specifically talking about on 10 October 2022 was by her uncle on her mother’s side. She said that she said it was her mother’s brother and she “[thought] it was because that was why her mum hesitated to take action or talk to family about what [the complainant] mentioned to her before”. ER also said that the complainant had told her that it was her mother’s brother but that she “did say that on her father’s side, something happened” but that this was a completely separate incident. She added that the complainant had told her that she was “sexually assaulted by her uncles on both sides.” She said that on 10 October 2022 the complainant had told her that action had already been taken in relation to the uncle on the father’s side, however this uncle was only briefly mentioned and she was more focused on the uncle that ER believed “is being taken action on”.

25. [42]

    Somewhat inconsistently with ER’s evidence that the person the complainant was most focussed upon on 10 October 2022 was her uncle on her mother’s side, ER also said that this uncle (being the one that the complainant said had sexually assaulted her from around age 10 to 2022) was the uncle that the complainant lived with together with her grandmother (which could only be the applicant), and was also the uncle that she was describing as featuring in the Discord messages (which also could only be the applicant).

26. [43]

    In her oral evidence in chief ER’s evidence was that on 10 October 2022 the complainant told her that she was messaging “her uncle who did things to her”, that she said that this was her uncle on her mother’s side, and that she lived with that person at that time. She said that the complainant had told her that he had sexually assaulted her over time, starting from when she was “around 10, 11 or 12”, “he’d do it at home alone or when nobody was around” and that “it was still happening up until when she decided to finally break her silence”.

27. [44]

    She said that she was certain that the complainant had said that this uncle was on her mother’s side, although again, ER said that that was the uncle that the complainant was living with at that time.

28. [45]

    When asked why she believed that the complainant was referring to her uncle on her mother’s side, she said:

29. [46]

    During cross-examination, ER also said that the complainant told her that she had told her mum “when she was younger before but her mum was either scared or confused and nothing much really came out of that afterwards”.

30. [47]

    ER was also asked “at some stage, did [the complainant] speak to you about another uncle”. She replied:

31. [48]

    ER then explained that on 10 October 2022 the complainant:

32. [49]

    When asked about her conversation with the complainant on 10 October 2022 ER said that “it all happened very quickly”.

33. [50]

    ER was also cross-examined about the complainant having said that the sexual assault would happen at family gatherings. She said that “it did happen in social settings like family gatherings but only whenever they were alone, say in a room by themselves” and agreed that it was whilst family gatherings were happening at home.

34. [51]

    Having regard to ER’s evidence as a whole, ER’s account of the conversation on 10 October 2022 differed from the complainant’s account of events in three respects. First, the complainant said that the sexual assault by the applicant occurred at home and did not suggest that it occurred at home at family gatherings. Second, the complainant denied that she had told her mother about the applicant assaulting her prior to 10 October 2022. Third, ER said that the complainant told her that the sexual assault was by her maternal uncle but the complainant’s evidence was that the disclosure to ER was of the applicant sexually assaulting her.

35. [52]

    It should also be observed that ER’s account is consistent with the complainant’s account of sexual assault by the applicant in significant respects. In particular, ER says that the complainant said that the uncle abusing her was the uncle that she lived with and that the sexual assaulter and the complainant were messaging on Discord that morning, and broadly as to the content of those messages. ER’s oral evidence at trial was also consistent with the time period given by the complainant of her sexual assault by the applicant. Finally, it is of some significance that ER was wrong in her evidence that the complainant was living with her grandmother on her mother’s side at the time of the sexual assaults.

36. [53]

    The applicant contends that ER’s oral evidence discloses or implies that the complainant had or may have had sexual experience, thereby engaging s 294CB(6)(a). As I have already indicated, I agree. Whilst (as discussed below) there were real questions about the credibility and reliability of ER’s evidence and, having regard to the evidence as a whole, the overwhelming likelihood is that the sexual assault the complainant disclosed to her is in fact that perpetrated by the applicant, that does not mean that s 294CB(6)(a) was not satisfied by the Crown leading her oral evidence. Parliament is unlikely to have intended that the question whether s 294CB(6)(a) is satisfied depends upon an assessment of the credibility or reliability of a disclosure by reference to the evidence as a whole, or even by reference to the evidence led by the Crown at the trial. It would be unworkable if that were the case, as the question of cross-examination under s 294CB(6), and admissibility under s 294CB(4)(f), could not be determined until the conclusion of the evidence and possibly also after submissions as to what should be made of the evidence as a whole.

37. [54]

    Rather, giving effect to the language of s 294CB(6), the question here was whether sexual experience, being that the complainant was a survivor of sexual assault by her maternal uncle, was disclosed in the Crown case, in the sense that evidence led by the Crown on its face disclosed that the complainant had told ER that this had occurred. This is so irrespective of the fact that the evidence of ER was also that the complainant described the uncle who had abused her as the person she was messaging on Discord and the uncle who she lived with. An assessment of the significance of those additional details, and of whether the complainant was in fact referring to two separate incidents of sexual assault on 10 October 2022, required detailed consideration of the evidence as a whole.

38. [55]

    Further, having regard to her evidence as to the timing of the sexual assaults that the complainant disclosed to her, the assaults by the complainant’s maternal uncle disclosed by ER’s evidence met the requirement in Cook (a pseudonym) v The King at [35] that the prohibition in s 293(3) (now renumbered to s 294CB(3)) concerns “evidence that discloses or implies relevant sexual experience or sexual activity which occurred prior to or at the time of the alleged offending”.

39. [56]

    The Crown relied in submissions upon the fact that the questioning of ER by the Crown at trial was focussed upon the applicant and did not seek to elicit any reference to the 2017 conduct. The Crown contended that this meant that sexual assault by the complainant’s maternal uncle was not disclosed or implied in the prosecution case for the purpose of s 294CB(6)(a) of the CPA. That submission should be rejected. The relevant disclosure occurred in answer to a question from the Crown as to how the uncle who the complainant said “did things to her” was related to the complainant. ER responded that it was her maternal uncle. That suffices for the purpose of s 294CB(6)(a) irrespective of whether the Crown was seeking to lead evidence of the disclosure. That is so irrespective of the fact that that evidence was thus inadmissible under s 294CB(3).

40. [57]

    A statement of Ms Dent, a teacher at the complainant’s school, which was tendered at the trial, indicated that at about 9.40 am on 10 October 2022 the complainant and ER came to the English staff room and asked for Ms Panes, who was not available, so they asked to speak to Ms Dent. Ms Dent observed that the complainant was incredibly distressed, was crying and her breath was quite shaky. An incident report which Ms Dent completed that day included that:

41. [58]

    That evidence is only consistent with the applicant being the person whom the complainant identified to Ms Dent as having sexually assaulted her.

42. [59]

    Ms Panes, another teacher at the school, also prepared a statement that was tendered at trial. Her evidence was that she was told by Ms Dent of the complainant’s disclosure at around 9.56 am on 10 October 2022. Ms Panes asked the complainant “is it [the applicant]” and the complainant “instantly clearly nodded confirming it was” (as recorded in the incident report that Ms Panes completed on 11 October 2022).

43. [60]

    Mr Land, Head Teacher of Welfare at the complainant’s school, also saw the complainant on 10 October 2022. His contemporaneous incident report, which was tendered together with his statement at trial, was that the complainant told him that the assault was physical, the last occurrence was a month earlier and it had been happening since she was 11 years old. He described the applicant as “involved in the disclosure”.

44. [61]

    The complainant’s mother also gave evidence that on 10 October 2022 the complainant disclosed an incident of a sexual nature involving the applicant and she, together with the complainant’s sister, took the complainant to the hospital and to speak to the police.

45. [62]

    The applicant did not give evidence at trial. He relied upon evidence of his good character given by his mother and a school friend.

46. [63]

    In closing submissions at trial the applicant’s counsel contended that the complainant’s disclosure to ER on 10 October 2022 was “confected with other events”, that it was “absolutely” possible that “this was the complainant drawing on her past to infuse her complaint with half-truths” and that the complainant “knew she conflated her account to [ER] with details of another time”. He submitted that the complainant’s genuine distress on 10 October 2022 was based upon flashbacks and that she was angry for her past and angry at being annoyed at her past. He also identified inconsistencies between the evidence relating to the alleged sexual assault by the applicant and the complainant’s account to ER (at [51] above) and submitted:

The trial judge’s reasons

1. [64]

   The trial judge said that, to her observation, when the complainant described events in both her interviews and in court she appeared to be doing so from genuine recollection. She said:

2. [65]

   The trial judge found that the complainant’s reliability and honesty were supported by a number of pieces of evidence, including the complaint evidence, and described her as overall “an impressive witness”.

3. [66]

   As to the applicant’s submission that the complainant’s account was unlikely given the proximity of two adults in the house, the trial judge observed that both JP and DC trusted the applicant. The trial judge found that JP slept in the granny flat and spent a lot of time outside where she was unable to see the complainant’s bedroom and she had no reason to monitor or pay attention to the applicant’s movements. As to DC, the trial judge found that, given DC’s state of parlous health, it was unsurprising that there was no evidence that she observed anything untoward between the applicant and the complainant. The trial judge also rejected JP’s evidence that the doors in the home were always open and that the complainant’s door made a loud noise when it closed, as being inconsistent with body-worn video evidence adduced. Moreover, the trial judge found that any inconsistency as to evidence about the noise made by doors was peripheral and did not undermine the complainant’s reliability. The trial judge also found that JP’s perception was clouded by her honest belief that her son did not do the things alleged and therefore that the complainant must be lying. Her evidence was found to be not entirely credible and aspects of it to have been tailored to assist the complainant.

4. [67]

   As to the complaint evidence, the trial judge found that the complaint evidence of Ms Dent, Ms Panes, Mr Land and the complainant’s mother and sister, was “compelling” and “relevant to the honesty of the complainant’s account”. She found that this evidence made it more likely that the complainant was telling the truth about having been sexually assaulted by the applicant. However, the trial judge put evidence of the complainant’s distress to one side. As to ER, the trial judge had doubts about the accuracy of her evidence, found that it was “most likely that ER and [the complainant] had discussed other matters at some stage” and rejected the applicant’s contention that on 10 October 2022 the complainant discussed details of “an unrelated matter” with ER. Her Honour disregarded ER’s evidence given her concerns about its unreliability.

5. [68]

   The trial judge found that, in the Discord messages, the applicant was making general admissions to having engaged in sexual misconduct with the complainant. The trial judge did not use that evidence as proof of the charged conduct, but solely as providing some support for the credibility of the complainant.

6. [69]

   The trial judge acquitted the applicant on counts 1 and 2. The applicant contends that this shows that the trial judge had doubts about the complainant’s credibility and reliability as a witness. The trial judge’s reasons for acquitting the applicant on these two counts is thus of some significance.

7. [70]

   As to count 1, the trial judge observed that the complainant’s evidence about this count was vague about matters that she would reasonably expect her to be able to give evidence of. In particular, she noted that the complainant could not describe the event beyond saying it was an act of penile-vaginal intercourse that occurred in her bedroom. She also gave inconsistent evidence as to the date of this incident of sexual intercourse, describing it as having occurred both at the beginning of 2021 and probably around November 2021. Also, the complainant said that this incident of sexual intercourse occurred in her bedroom, but the evidence disclosed that she did not move into her own bedroom until February 2022. In these circumstances, the trial judge entertained a reasonable doubt as to count 1 which was charged as occurring between 1 January 2021 and 31 December 2021.

8. [71]

   As to count 2, which was alleged to be an act of penile-vaginal intercourse, the complainant’s evidence was that she had only a brief memory of the incident and that she did not remember the applicant putting his penis into her vagina. She was then asked: “Does that mean that he might not have” to which she responded “I don’t know. I don’t remember”. This evidence caused the trial judge to have a reasonable doubt as to whether there was an act of penile-vaginal intercourse on this particular charged occasion.

9. [72]

   The trial judge’s findings as to these two counts discloses the necessary careful examination of the evidence relating to individual counts. They show that in some identified respects some of the complainant’s account of the offending was not ultimately accepted. However, on count 1 this was because of a specific inconsistency as to the date of the offending and the lack of recollection of the complainant as to details of the offending. As to count 2, it was because of the candid acceptance by the complainant that she had no recollection of the essence of the offending conduct. These matters do not suggest that, as a matter of generality, the trial judge doubted the credibility of the complainant or the reliability of her evidence in instances where she was able to recall details of the offending, as was the case with the counts on which the applicant was convicted.

The limited application under s 294CB at the trial

1. [73]

   The applicant’s conduct of his application to adduce evidence under s 294CB(4)(a), and his failure to make any application under s 294CB(6) at trial, both, in context, objectively support a conclusion that the choice neither to seek to adduce evidence of the details of the 2017 conduct at trial, nor to seek to cross-examine the complainant about those details, was a rational forensic choice.

2. [74]

   The starting point is what material was available to the applicant and his legal team in advance of the s 294CB voir dire and trial. The transcript of the second interview of ER was made available on the Friday afternoon before the trial started and was tendered on the s 294CB voir dire. Further, as the Crown drew to this Court’s attention, some (but not all) of the brief of evidence relating to the criminal proceedings arising out of the 2017 conduct was served on the applicant some time prior to the s 294CB voir dire. Moreover, during the s 294CB voir dire, the Crown told the trial judge that, in light of the application under s 294CB, the Crown was considering whether the entirety of that brief of evidence ought to be served on the applicant. I would infer that at least some of the details of the 2017 conduct were thus before the applicant and his legal team at trial. It would also have been open to the applicant to subpoena the entirety of the file relating to the criminal proceedings arising out of the 2017 conduct, or at least to have sought disclosure of that material from the Crown. There is nothing to suggest that this step was taken.

3. [75]

   In that context, the ambit of the applicant’s application for an evidentiary ruling under s 294CB(4)(a) is of some significance. First, the evidence that the applicant sought to adduce was expressly limited to the following:

4. [76]

   No application was made to question the complainant about, or to tender any evidence of, the details of the 2017 conduct.

5. [77]

   Further, in the applicant’s written submissions, the application under s 294CB(4)(a) was described as an application to cross-examine the complainant and ER about “the complainant’s cross-pollination of events at the time of the complaint to [ER]”. The purpose of the application was said to be to support a contention that the distress that the complainant was suffering on 10 October 2022 was contributed to by the trauma of the 2017 conduct. This was submitted to be important because otherwise the Crown could rely upon that distress as constituting “powerful and compelling circumstantial support for the complainant’s account.”

6. [78]

   Consistent with this, the applicant expressly eschewed any application under s 294CB(4)(a) to adduce evidence of the details of the 2017 conduct and did not contend that the details of the 2017 conduct were relevant either as to the credibility or reliability of the complainant’s evidence or as suggesting that the complainant had conflated the details of the 2017 conduct with her allegations against the applicant. Thus, in his written submissions in support of that application, the applicant explained that:

7. [79]

   Further emphasising the limited ambit of the application, counsel for the applicant framed the application orally as follows:

8. [80]

   He later submitted:

9. [81]

   As to the forensic relevance of that evidence, he submitted that:

10. [82]

    Having been unsuccessful in his application under s 294CB(4)(a), on 18 April 2024 the applicant flagged an application that the proceedings be permanently stayed. In his submissions in support of this application the applicant contended that “the complaint to [ER] suffers from a high degree of cross-pollination”, and was a “contaminated, infected account” relying upon the fact that ER said that the complainant told her she had told her mum about the sexual assaults and that they occurred at family gatherings. The applicant contended that this went to the complainant’s credibility and that there was an unfairness in not being able to put those matters to the complainant. The trial judge described the application as “premature” and the applicant indicated that he “might see how things go” and would “just allow the Court to take notice of a potential application”. Ultimately, no application for a permanent stay was pressed either on 18 April 2024 or during or after ER or the complainant’s evidence.

11. [83]

    At trial, the applicant did not seek to adduce evidence as to the details of the 2017 conduct or to cross-examine the complainant about those details, even using the convention of describing the events as a physical assault. This was so notwithstanding that contentions were made by the applicant’s counsel at trial as to conflation (see above at [63]) and the reliability of the complainant’s evidence. The conduct of the applicant’s case at trial in this regard is all the more stark once it is appreciated that the applicant had some of the brief of evidence relating to the prosecution arising out of the 2017 conduct and made no apparent effort to seek further details.

12. [84]

    In those circumstances, I would infer from the objective circumstances that there were forensic advantages to the applicant in neither seeking leave to adduce evidence of the details of the 2017 conduct nor seeking to cross-examine the complainant as to those details. These were both objectively rational forensic decisions. If the disclosed part of the brief of evidence arising out of the 2017 conduct, or any other information that the applicant may have had as to the details of the 2017 conduct, suggested that those details might provide meaningful support for contentions as to conflation or inconsistency then, objectively, it would be expected that leave would have been sought to adduce such evidence under s 294CB(4)(a) or to cross-examine the complainant as to such matters under s 294CB(6).

13. [85]

    Conversely, unless the applicant was confident that the details of the 2017 conduct would support his contentions as to conflation or inconsistency, then there were real forensic risks in seeking either to tender, or cross-examine the complainant by reference to, such material. Objectively, there was a rational basis for the applicant or his legal team concluding that the risks of this course outweighed any possible benefits.

The proposed ground of appeal

1. [86]

   The applicant now contends that a miscarriage of justice occurred because of the inability of his counsel to cross-examine the complainant about both the fact and details of the 2017 conduct. The applicant accepts that the evidentiary ruling he says should have been given, and his contentions in support of this ground of appeal, differ in three substantive respects from the ruling sought, and his contentions in support of that ruling, before the trial judge.

2. [87]

   First, he accepts that he did not seek a ruling under s 294CB(6) (or for that matter s 294CB(4)(f)) at trial. He submits, however, that in his application under s 294CB(4)(a), he made it clear that he wished to “get in evidence about the 2017 abuse” such that the issue now raised was “squarely raised on the evidence”. He submits that there was not any forensic basis for the applicant’s counsel at trial not pursuing an application under s 294CB(6) to cross-examine the complainant.

3. [88]

   Second, he accepts that at trial he sought a ruling only as regards the fact of the 2017 conduct having occurred and expressly eschewed any attempt to rely upon the details of the 2017 conduct.

4. [89]

   Third, he accepts that there are also differences in the asserted relevance of the 2017 conduct as between the application on 15 April 2024 and the contentions now made in support of the applicant’s contention of miscarriage. As already noted, at trial the applicant contended that the evidence that he sought to adduce was “to contextualise the distress of the complainant at the point of complaint to ER on 10 October 2022” and he sought to limit the scope of his application for a ruling to that topic. Before this Court, however, the applicant contends that cross-examination of the complainant as to both the fact and details of the 2017 conduct would have been relevant in showing inconsistencies between the account of the complainant and that of ER of the conversation on 10 October 2022 when the complainant disclosed to ER that she had been sexually assaulted (which I will describe as the “inconsistency basis”), and in raising the possibility that the complainant had conflated the 2017 conduct with conduct of the applicant when disclosing on 10 October 2022 that she had been sexually assaulted (which I will describe as the “conflation basis”).

5. [90]

   The applicant did not, however, seek to put any evidence of the details of the 2017 conduct before this Court in order to support these contentions. Nor does he make any submission that details of the 2017 conduct would in fact support either of these contentions. The applicant’s counsel on the application before this Court in fact accepted that his contentions invited the Court to speculate as to what the details of the 2017 conduct might be.

6. [91]

   As to the inconsistency basis, the applicant submits that if the complainant’s evidence of the details of the 2017 conduct were consistent with what ER said the complainant told her on 10 October 2022, the trial judge may have found that ER’s account of what the complainant told her on 10 October 2022 was accurate (at least in part) and that the complainant’s account of that conversation was not accurate. That, he submits, might cast doubt upon the credibility and reliability of the complainant’s evidence more generally. In this regard he submits that the inability to explore or adduce evidence about the details of the 2017 conduct meant that there was no opportunity to test the differences between the complainant and ER’s accounts of that conversation.

7. [92]

   As to the conflation basis, the applicant’s submission appears to be that cross-examination as to the details of the 2017 conduct may show that the complainant conflated the 2017 conduct with her account of alleged sexual assault by the applicant when making her disclosure to ER in the conversation on 10 October 2022.

Leave under r 4.15 and s 5(1)(b) of the Criminal Appeal Act should be refused

1. [93]

   As already noted, the applicant concedes that he requires leave under r 4.15 and under s 5(1)(b) of the Criminal Appeal Act. Rule 4.15 provides that:

2. [94]

   As I have already explained, whilst the applicant’s ground of appeal focusses upon a lack of permission under s 294CB(6) to cross-examine the complainant, his ground of appeal necessarily also entails a challenge to the failure of the trial judge to make an evidentiary ruling under s 294CB(5)(b) that the evidence would, if given, be admissible under s 294CB(4)(f). The applicant’s concession that he requires leave under r 4.15 is well founded.

3. [95]

   The question of leave is of real import in this case. If the appeal were allowed, there would necessarily be a retrial which would take place at least three years after the complainant’s disclosure of sexual assault by the applicant which had even at that date been continuing for some time. The reliability of witnesses’ recollection, and the ability of key witnesses such as the complainant to recall details of the offending conduct or of the 2017 conduct, would likely be further diminished if they are asked to give evidence as to such matters at a retrial.

4. [96]

   The principles applicable to an application for leave under r 4.15 were discussed by the Chief Justice in Gould v R [2023] NSWCCA 103; 377 FLR 26 at [82]-[90]. As was there emphasised, leave under r 4.15 will be granted in an applicant’s favour where there has been a miscarriage of justice such that the applicant has lost a real chance of acquittal or, generally, where a necessary element of a fair trial was overlooked. Here, the question of the fairness of the trial very much turns on choices made in the conduct of the trial.

5. [97]

   As to this, Gleeson CJ explained in Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 at [9] that:

6. [98]

   Relying upon this statement of principle (which was affirmed in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [48]), Kiefel CJ, Keane and Steward JJ observed in Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54], that “[w]ithin our system of justice, save for exceptional cases, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’”.

7. [99]

   In Brawn v The King [2025] HCA 20 at [15] the High Court expressly declined to address “whether or not the establishment of an error or irregularity that is material in the sense explained above will be sufficient to establish a miscarriage of justice in all circumstances, including those circumstances where that error or irregularity was the product of, or contributed to by, the accused as a result of rational forensic decisions of their trial counsel”. Thus, the High Court did not qualify the principles set out in Nudd v The Queen and TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79]. Consistent with these authorities, whether there is a miscarriage of justice by reason of the conduct of counsel ordinarily depends upon an applicant establishing, in the first instance, that there was a material irregularity arising from that conduct.

8. [100]

   These considerations also inform whether it is in the interests of justice that leave to appeal be granted under s 5(1)(b) of the Criminal Appeal Act. As the Chief Justice observed in Gould v R at [91]-[93]:

9. [101]

   There is, perhaps, some uncertainty in this context as to the circumstances in which the Court should consider whether an objectively rational forensic choice was made deliberately. In the context of the discretion whether to grant leave under r 4.15, Leeming JA recently said in Radburn (a pseudonym) v R [2025] NSWCCA 125 at [107] that:

10. [102]

    It is also implicit in the approach of Kiefel CJ, Keane and Steward JJ in Hamilton v The Queen at [54]-[57] that in some cases it may be appropriate to infer that a particular evidentiary ruling was not sought at trial because of a deliberate decision of counsel.

11. [103]

    However, as Gleeson CJ explained in Nudd v The Queen at [10], when considering r 4.15, “[t]o the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process” rather than the subjective motivations of counsel. His Honour later added that “as a general rule, the test of whether a forensic decision has resulted in an unfair trial is objective” but that there is the possibility that, in exceptional cases, it is relevant to know why a certain course was or was not taken: at [17].

12. [104]

    Turning to the facts of this case, as I have already found, the decision not to seek to cross-examine the complainant by reference to the details of the 2017 conduct was an objectively rational decision which could have conferred significant forensic advantages on the applicant. That weighs heavily against a grant of leave either under r 4.15 or s 5(1)(b) of the Criminal Appeal Act. This is even more so given that nothing was put before this Court to suggest that any attempt had been made in advance of or at trial to get further details of the 2017 conduct, and no attempt was made to put anything before this Court that suggested that the details of the 2017 conduct would have supported either the inconsistency or the conflation bases.

13. [105]

    The merits of the applicant’s contention do not point in another direction. Consistent with the statement of principle from Nudd v The Queen, the matters discussed above as regards r 4.15 and leave to appeal also weigh heavily against any conclusion of miscarriage of justice or even arguable miscarriage of justice. Moreover, irrespective of the respects in which ER’s evidence is inconsistent with that of the complainant, for the reasons already set out ER’s evidence as a whole is in significant respects corroborative of the complainant’s account of sexual assault by the applicant. ER’s evidence strongly suggests that the complainant disclosed sexual assaults by the applicant on 10 October 2022, irrespective of the possibility that the complainant also mentioned the 2017 conduct.

14. [106]

    Further, to the extent relevant, I am not in any event satisfied that the failure to permit the applicant to cross-examine the complainant as to the detail of the 2017 conduct could realistically have affected the trial judge’s reasoning to a verdict of guilty so as to meet the materiality threshold identified in Brawn v The King at [11]. Even if responses were elicited in cross-examination of the applicant consistent with ER’s evidence, and if the complainant accepted that she had given those details to ER on 10 October 2022 (as opposed to on an earlier or later occasion), all that could have established was that that limited aspect of the complainant’s earlier evidence was inaccurate and that she mentioned some details of the 2017 conduct when disclosing sexual assaults which were, having regard to the whole of what ER said she was told on 10 October 2022, clearly perpetrated by the applicant.

15. [107]

    That evidence would have had to be weighed against the primary judge’s favourable assessment of the complainant as a witness, the complaint evidence of Ms Dent, Ms Panes, Mr Land (the evidence of each of which was corroborated by contemporaneous reports of what the complainant had disclosed) and the complainant’s mother and sister and the general admissions to having engaged in sexual misconduct with the complainant in the Discord messages which are, as the Crown submitted, compelling. It would also have had to be weighed against the evidence of ER that was corroborative of the complainant’s account of the applicant sexually assaulting her, including that ER said that the complainant told her that the person assaulting her was the uncle that she lived with, that it was the person with whom she was messaging on Discord that morning, and that the sexual assaults continued from when the complainant was 10, 11 or 12 up until when she decided to break her silence. The evidence of the Discord messages is also corroborative of the complainant having disclosed the sexual assault by the applicant to ER on 10 October 2022 given that in those messages, very shortly before she spoke to ER, the complainant was herself confronting the applicant about the sexual assaults and that, in the context of messages about “reporting” the applicant, the complainant messaged that “it’s already been done”, “i don’t know what’s gonna happen to you” and that “my friend [ER] told”. Moreover, there is nothing to suggest conflation in any way infected the complainant’s accounts in her police interviews or in her evidence as to the applicant’s offending.

16. [108]

    Further, even if some of the details recounted by ER were consistent with the 2017 conduct, that says nothing about when the complainant disclosed those details to ER and the complainant denied in cross-examination at trial that she gave ER those details on 10 October 2022. There is no reason to suppose that the complainant will alter that denial if cross-examined as to the details of the 2017 conduct. Moreover, irrespective of whether the complainant told ER some details of the 2017 conduct on 10 October 2022, the evidence compels the conclusion that the complainant’s disclosure of recent sexual assault on 10 October 2022 was that of the applicant and that ER confused the two uncles in her evidence. Neither a submission as to conflation nor inconsistency could realistically have affected the trial judge’s reasoning to a guilty verdict.

17. [109]

    In these circumstances, leave under r 4.15 and leave to appeal should be refused. Having regard to the matters set out above, moreover, leave been granted, the appeal should in any event have been dismissed.

18. [110]

    There are additional matters which reinforce my conclusion (albeit that I have not relied upon these matters in reaching that conclusion). First, as is apparent from the matters set out above, the adducing of ER’s evidence as to the complainant telling her on 10 October 2022 that the person sexually assaulting her was the complainant’s maternal uncle did not of itself cause any prejudice to the applicant’s case. Indeed, that disclosure on its face favoured the applicant’s interests as it was inconsistent with the complainant’s evidence. What the applicant contends caused him prejudice was a general inability to cross-examine the complainant as to the details of the 2017 conduct so as to make the conflation and inconsistency submissions. In these circumstances, it is by no means clear that s 294CB(6) is engaged. This is because cross-examination would not be with a view to ameliorating prejudice caused by the disclosure of past sexual experience, it would be with a view to potentially (although this is speculative for the reasons already discussed) attaining further forensic advantage.

19. [111]

    Second, had it been necessary to do so, consistent with the Crown’s submission, in light of the matters addressed above, I would have found that the applicant or his legal team made a deliberate forensic decision not to seek to adduce evidence of the details of the 2017 conduct or to seek to cross-examine the complainant about those details. As was the situation in Hamilton v The Queen, in the present case it is fanciful to suggest that counsel at trial did not seek leave to cross-examine the complainant as to the details of the 2017 conduct by reason of oversight. That is simply not an available inference given the manner in which counsel approached the s 294CB voir dire and the trial.

20. [112]

    Third, it is by no means clear that her Honour would have been satisfied, as required under s 294CB(4), that the probative value of any evidence adduced under cross-examination would outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. In circumstances where it is pure speculation what that cross-examination might reveal, that threshold may pose a genuine obstacle to the course the applicant now says he wishes to take.

Conclusion

1. [113]

   Having regard to the matters set out above, the order I propose is:

   1. (1)

      Leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is refused.

2. [114]

   CAVANAGH J: I agree with Stern JA.

3. [115]

   YEHIA J: I agree with Stern JA.