Sherry v R

1. [1]

   HAMILL J: The identity of the complainants and various witnesses are protected by statutory prohibitions against publication of information that may lead to their identification. Criminal sanctions including sentences of imprisonment apply to any breach of those prohibitions. In conformity with those prohibitions, pseudonyms have been used in this judgment.

2. [2]

   Harley Sherry seeks leave to appeal against his conviction in relation to a single count (count 1) involving the sexual touching of a child between the age of 10 and 16 years. The conviction was entered after the applicant’s trial on three counts in the District Court at Wagga Wagga in December 2024. The trial was conducted before Judge Lerve and a jury. Count 1 related to an allegation made by a complainant I will call “AZ”, while counts 2 and 3 related to AZ’s twin sister “IZ”. [1]

3. [3]

   The jury retired to consider its verdicts at 3:28pm on Tuesday 17 December 2024. Following a note indicating unanimity on count 3 but difficulties with counts 1 and 2, the jury was given a majority verdict direction at around 2:15pm on Thursday 19 December 2024. At 2:34pm on that date, the jury returned the verdict of guilty on count 1 and not guilty on counts 2 and 3. The verdicts on counts 1 and 2 were by majority (11:1).

4. [4]

   When the allegations first emerged, AZ identified as female but by the time of the trial he identified as male. [2] It is unfortunate that the parties at trial did not respect AZ’s preferred pronouns or gender identity. He/him/his pronouns are used in these reasons where reference is made to AZ. This conforms with this Court’s practice and its objective to foster “mutual respect to which all participants in judicial proceedings are entitled”. [3]

5. [5]

   The applicant relies on a single ground of appeal asserting that the verdict is unreasonable and unable to be supported having regard to the evidence. He relies on the “golden thread” which is “always seen” running through “the web” of our criminal justice system. [4] More pertinently, given Mr Sherry’s current legal predicament, the applicant refers to High Court decisions such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 and Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25. He invites the Court to undertake an independent review of the evidence and identifies several inconsistencies, discrepancies and inadequacies which he submits would leave the Court with a reasonable doubt about his guilt and establish that there is a significant possibility that an innocent man may have been convicted.

6. [6]

   The applicant submits that a thorough review of the evidence will leave the Court with the kind of feelings of “anxiety and discomfort” experienced by Sully J when the case of M v The Queen was before this Court. He submits the Court will conclude there is a reasonable doubt about his guilt which cannot be resolved by reference to the constitutional role of the jury or by the jury’s advantage in being present in the courtroom when the witnesses gave their evidence. He places somewhat muted reliance on the acquittals in respect of counts 2 and 3.

7. [7]

   The applicant was sentenced to imprisonment for 2 years and 3 months with a non-parole period of 18 months commencing on 24 December 2024. There is no application to appeal against the sentence. The trial Judge granted Mr Sherry bail on 9 May 2025 noting the delay, length of the non-parole period and his Honour’s assessment that the prospects of success on appeal “on an unreasonable verdict point are at least reasonable.” Quite properly, Dr Hickie, who appeared for the applicant on the appeal, placed no reliance on Judge Lerve’s assessment which was made in the context of a release application.

8. [8]

   Having reviewed the entire record of the trial with considerable care, paying particular attention to the eight matters of concern raised by the applicant, and keeping firmly in mind the onerous requirement of proof beyond reasonable doubt, I am satisfied that it was open to the jury, in the sense explained by the High Court in M v The Queen and several cases since, to reach the verdict of guilty on count 1. Any doubt that I may have experienced as to the details of AZ’s allegation and the particulars of the count on the indictment is readily dispelled by the advantages enjoyed by, and the constitutional role of, the jury. Accordingly, I would grant leave to appeal but dismiss the appeal. What follows are my reasons for those conclusions.

No inconsistency or unreasonableness arises from the acquittals on counts 2 and 3

1. [9]

   As part of his broader argument on the asserted unreasonableness of the verdict on count 1, Dr Hickie relied on “the acquittal of the appellant in respect of almost identical allegations levelled against the appellant by [his] sister [IZ]”. Reference was made to “the close similarity of the allegations” and the “opportunities for concoction, fabrication, and contamination of the evidence”. The respondent replied to those submissions in writing and, apart from the suggestion of “collusion”, no further arguments were made on the subject either in Dr Hickie’s written reply or in his oral submissions.

2. [10]

   The issue of joint concoction will be considered below but there is no legal, logical or factual inconsistency between the conviction on count 1 and the acquittals on counts 2 and 3: MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 and MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. The jury was required to give separate consideration to each allegation and different issues arose with respect to its evaluation of the credibility of the two complainants.

3. [11]

   The mixed verdicts demonstrated the jury performed its function and followed the directions provided by the trial Judge. The reasonable doubt the jury experienced in relation to IZ’s allegations in counts 2 and 3 did not impact on an assessment of AZ’s credibility and whether the allegation in count 1 was established beyond reasonable doubt: cf, for example, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56.

An overview of AZ’s allegations and a brief summary of the prosecution case at trial

1. [12]

   Given the acquittals on counts 2 and 3, and the absence of any sustained contention that those verdicts had the capacity to undermine the efficacy of the conviction on count 1, it is not necessary to refer to those parts of the evidence which relate specifically to IZ’s allegations. In the submissions on the appeal, neither party placed much emphasis on IZ’s evidence or her complaints and allegations.

2. [13]

   AZ’s evidence in chief was elicited by playing two interviews he made with police officers attached to the Joint Investigation Response Team (“JIRT”). He was cross-examined robustly by Mr Radojev who, along with another barrister (Mr Keller), appeared for the applicant at the trial.

3. [14]

   AZ and IZ are twins born in late November 2008. Their mother is “DH” and their father is “MM”. They have a sister born in April 2011 who I will call “MH”. Their parents separated in 2014-2015 and DH subsequently commenced a relationship with the applicant. The applicant moved in with DH and her three children in November 2015 and moved out in 2020. He moved into a rental unit on 14 October 2020. Before moving to the unit, he stayed with DH’s mother at another address. There was an agreed statement of facts (Ex N) which set out some of these details but not all of the dates – including the date when the applicant moved out of the family home – were precise.

4. [15]

   AZ gave evidence of a history of conduct on the part of the applicant that made him (AZ) feel uncomfortable. This conduct was not charged in the indictment and was not said to amount to criminal offending. It was tendered to establish the nature of the relationship between the applicant and AZ and to place the event charged in count 1 in a realistic context. The conduct included touching AZ on his thighs, his stomach and the upper part of his chest up or near his sports bras. AZ estimated that such things happened “probably, like, twenty, thirty times”. AZ could not remember how old he was when the first instance of such touching occurred, although he believed he was “quite young”. AZ said he didn’t remember a lot of his childhood explaining that “I don’t have quite a good memory of it because blocking things out.”

5. [16]

   AZ referred to a number of homes in which the family lived with the applicant, but his evidence was not precise when it came to the timing of movements between these various premises. The timing of the family’s movements took on some prominence at the trial and acquired more significance in the arguments on appeal. It will be necessary to discuss this, as well as the cars owned by various family members, in addressing the ground of appeal. It will also be necessary to return to some seemingly peripheral evidence relating to AZ making a chicken sandwich because it has some significance to the timing and sequence of events which is crucial to some of the applicant’s arguments on appeal.

6. [17]

   The incident charged in the indictment was described by AZ in the following exchange in his first JIRT interview:

7. [18]

   Mr Radojev cross-examined AZ over three days from the afternoon of 9 December 2024 until 11 December 2024. A lot of the questioning focused on what was said to be the contradiction between the complainant’s professed dislike of Mr Sherry and fear of being alone in the car with him after the incident occurred, and the evidence of interactions between AZ and Mr Sherry both in person and via text messaging.

8. [19]

   AZ was questioned at length about an incident at the family home in George Street, Junee when AZ made the applicant a chicken sandwich. This occurred sometime around “when COVID like first happened”. Mr Radojev suggested to AZ that the summary he gave in Court of his response to Mr Sherry’s request for the sandwich was missing the original “rudeness” contained in the version AZ gave to police in the first JIRT interview. Mr Radojev questioned why AZ would make Mr Sherry a sandwich and then go near him to give it to him, rather than just leave it in the kitchen, when AZ claimed that he wanted nothing to do with Mr Sherry. AZ responded “Well, what was I meant to do? He asked me to bring it to him.”

9. [20]

   It was suggested to AZ – and he accepted – that he did not like Mr Sherry very much at all. Mr Radojev put to him that he told police he never cared for Mr Sherry “basically from the moment [he] met him” but AZ denied this. He explained that he did not specify the time period when he started to hate Mr Sherry.

10. [21]

    In relation to the incident charged as count 1 in the indictment, Mr Radojev put to AZ that his description of Mr Sherry leaning over the console of the car while driving, using his left hand to touch AZ’s right thigh and then reach under his shorts and inside his “knickers” to touch his vagina, when AZ was far lower in the passenger seat than Mr Sherry in the driver’s seat, involved “a lot of contortion”. Mr Radojev suggested that what AZ described could not have happened “[b]ecause, what you’ve described is somebody who has joints where joints don’t exist.”

11. [22]

    Under cross-examination, AZ confirmed his statement to the police that this incident was the last time he was in the car with Mr Sherry by himself. He clarified this by saying he was still required to be in the car with Mr Sherry but was always with other people, and he would never sit in the front seat with Mr Sherry, or at least “tried [his] best to stay in the back seat”. Mr Radojev then showed AZ a text message exchange from 15 August 2021 where AZ asked Mr Sherry to pick him up from a friend’s house, and AZ agreed that Mr Sherry picked him up on that occasion and that he sat in the front seat of a ute next to Mr Sherry for the “two minute” journey home.

12. [23]

    Counsel played and tendered as Ex 6 a video which recorded AZ and Mr Sherry at a service station on the evening of 16 October 2020 and suggested to AZ that they travelled there together by car. AZ said that he did not know and did not remember how they got there, but said they would both drive and walk to the service station because there were periods when Mr Sherry did not have a car. Mr Radojev suggested to AZ that he was not telling the truth, asserting if they did go in the car, it would be “the opposite” of what AZ had previously told the police. This assertion was based on AZ’s evidence that he avoided being alone with Mr Sherry in a car. I have watched the video and it comprises a nine second recording of AZ in front of a drinks fridge, presumably in the shop attached to the petrol station. The interaction is a friendly and playful one.

13. [24]

    Counsel played another video (Ex 7) and AZ agreed that it depicted him and Mr Sherry alone, laughing and joking, in the front seat of a ute in February 2021. AZ explained that there were no back seats and he had no option but to sit in the front.

14. [25]

    Counsel took AZ to several text messages between himself and Mr Sherry commencing on 29 July 2021 (Ex 5). AZ confirmed that when he got a new ‘phone, he messaged Mr Sherry and provided his new contact details to him. AZ agreed that he and Mr Sherry kept in contact after Mr Sherry moved out of the George Street house, but said that he only texted Mr Sherry when directed to by his mother and/or to make arrangements for Mr Sherry to watch the kids while AZ’s mother was at work.

15. [26]

    Mr Radojev directed AZ to various messages that he sent to Mr Sherry including “Love you, too” and a request that Mr Sherry give him money to buy a chest binder. It was put to AZ that he contacted Mr Sherry voluntarily without being asked to by his mother. AZ accepted that some of his texts and contact were not directed by his mother, but that the majority of the ongoing contact was so directed and occurred because “he was still my dad” and “he was still my stepdad”.

16. [27]

    Counsel asked AZ about an incident described in the second JIRT interview where he and Mr Sherry were in the car outside the George Street address and Mr Sherry said, “If you were older, I would marry you”. Mr Radojev again pressed AZ as to why he would be in the car alone with Mr Sherry if AZ wanted to avoid those situations “[a]fter being supposedly touched on the vagina”.

17. [28]

    Counsel then suggested that the witness’s account as to the timing of this conversation was inconsistent. It was put to AZ that he told the police that the conversation happened after the incident when the applicant touched AZ’s vagina. This exchange was muddled and confusing. At times counsel attributed certainty to the witness as to timing whereas, on a close examination of the evidence, there was no entirely clear sequence of events either in the second JIRT interview or in the evidence at trial: MFI 3, QQ 62-82 and Tcpt (10.12.24) pp 60-63. Counsel managed to extract a concession that the witness told police that the “marry you” conversation occurred after the sexual touching incident in the following exchange:

18. [29]

    However, even that exchange was confusing, as was the part of the JIRT interview upon which it was based. The result was that the adamantine and persistent interrogation – “[i]t’s not what you told the cops, is it?”; “[y]ou’ve made that up as well” – was bordering on unfair. A very short time afterwards (seven questions later) when counsel moved to a different topic, AZ said:

19. [30]

    As to the “I would marry you” conversation, Mr Radojev put to AZ that the applicant never said anything like that to him and that AZ got that idea from his sister. AZ denied this. IZ told police that the applicant said something similar to her but she denied that she and AZ “made those stories up” together.

20. [31]

    There were inconsistencies in the evidence about how AZ’s allegations first emerged. The evidence suggested that AZ was reluctant to speak about the matter with family and friends and did not initially want to be involved in the court case at all.

21. [32]

    IZ gave evidence that she told AZ in late 2020 or early 2021 that the applicant had been sexually assaulting her. She said that AZ responded by saying it “might” have happened to him as well and that the applicant might have “tried something” with AZ. According to IZ, AZ told her that the applicant was “rubbing [AZ’s] leg and stuff and [AZ] told him to stop and he stopped.”

22. [33]

    AZ said he did not speak to IZ about the incidents until the applicant and DH broke up in early 2020. His evidence was that IZ said “[h]e touched me. Did he touch you?” to which AZ replied “[y]es”. However, he told IZ that he did not want to talk about it. AZ walked away and the twins did not speak about the matter again. AZ said he did not really remember this conversation with IZ.

23. [34]

    DH (the twins’ mother) also gave evidence of what AZ told her. She said that on 2 October 2021 IZ made certain disclosures to her and that this prompted her to speak to AZ the next day. Her evidence of that conversation was as follows:

24. [35]

    MM (the twins’ father) gave evidence of a conversation he had with AZ after IZ made a complaint to him. He decided to take the twins to the police station although he was not clear as to precisely when that was. (Other evidence suggested it was on 2 October 2021.) In his evidence in chief, MM said he broached the subject with AZ in the car on the way to the police station, at which point AZ said “yes, that something had happened, but [he] didn’t want to talk”. MM noticed that AZ looked “sort of withdrawn, upset”. AZ was generally a “quiet kid, but [he] was quieter than normal, like, just, yeah, didn’t want to really talk about it.” In cross-examination, MM was shown his police statement and agreed he told police that AZ said “no” when asked if anything had happened. In re-examination, MM said his “best memory” was that AZ said “no”. Over objection, MM volunteered the inadmissible opinion that he did not believe AZ and the follow up question by the Prosecutor (“[w]hat are the actual words … not your opinion about them?”) made it clear that MM’s opinions were not relevant.

25. [36]

    The police officer in charge of the investigation was Detective Senior Constable (DSC) Brodie Hughes. They took on that role in about April 2022 and had access to earlier police statements. DSC Hughes said that on 2 October 2021, IZ, AZ and MM attended the Wagga Wagga Police Sation and spoke to an officer, Plain Clothes Constable (PCC) Jelena Djuric. IZ disclosed an incident that occurred between her and the applicant. PCC Djuric approached AZ and asked if they could talk privately together. AZ was asked “[i]s there anything you would like to tell me?” AZ replied “[n]o”. When pressed, AZ confirmed that he was “sure” he did not want to talk to police.

26. [37]

    On 7 October 2021, AZ attended the “child abuse unit” in Wagga Wagga and reiterated that he did not want to speak to police or to be formally interviewed about the matter. However, on 14 April 2022, DSC Hughes learned that AZ wished to be interviewed and the first formal JIRT interview was conducted on 20 April 2022.

27. [38]

    There was evidence adduced in various forms which the parties at trial submitted either supported or undermined the version of events provided by AZ. This included evidence of “opportunity”, the ownership of particular cars, the timing of the family’s movement between houses, text messages and other contact between AZ, DH and the applicant. Where necessary I will say more about this evidence in addressing the ground of appeal.

The applicant’s case at trial

1. [39]

   The applicant did not give evidence at the trial. However, he made an electronically recorded interview with police (“ERISP”) on 20 July 2022 in which he denied any wrongdoing against either IZ or AZ. His case at trial can be discerned from his answers to the police and from counsel’s closing address.

2. [40]

   Early in the interview, the applicant was asked about AZ’s allegation which formed the basis of count 1. He raised a few issues about whether he was in Junee (rather than Leeton) at the relevant time and the uncertainty as to the year of the alleged offence became clear with the officers confirming “this is alleged to have happened in either 2018 or 2019.” In either case, the applicant said, “I don’t believe this is true”. He explained that he owned a Rodeo ute and Ford Courier ute at relevant times, but acknowledged that DH owned the “blue VE Commodore, 2015” referred to in AZ’s allegation. However, while that remained registered to DH until 2019, her brother was using it from 2018. Mr Sherry said he knew the “Pie Face” service station but denied going there alone with AZ in the blue VE Commodore at 10 o’clock at night around Christmas in 2018 or 2019. When the thrust of AZ’s allegation was put to him for a third time, Mr Sherry said:

3. [41]

   Mr Sherry was asked about his relationship with DH and where they lived from time to time. He said they got together in 2015 when he was still only 20 years old, moved to Junee and they lived together in Short Street before moving to a house in Arnold Street. He described the layout of the houses and where everybody slept. They moved to DH’s mother’s house for a time but he said that “[DH] had a very hard time living with her mother”. His evidence on these topics, while imprecise, generally reflected the objective evidence and the evidence given by other witnesses.

4. [42]

   The applicant also told police that DH would ask the “girls” lots of questions like “why are you tired?”, “[w]hy are you sad?”, “[w]ho’s touched you?” and “has X-Y-Z touched your vagina?”. He said this occurred many times and it was something DH “was putting in their heads … from a very young age”. He also said that after he and DH split up, “she got very nasty, very vindictive very quickly” and ventured, “I feel like it’s a lot of spite that’s been filled into the [twins’] heads by [DH].”

5. [43]

   Mr Sherry presented to police with “a lot of printed material” which was also on his telephone. He agreed the police could download that information from his mobile telephone which was relatively new but which had the older communications transferred to it.

6. [44]

   Mr Radojev’s closing address essentially amounted to an attack, or a series of attacks, on AZ’s credibility and truthfulness. It was not subtle. The arguments put to the jury included:

7. [45]

   There were some unfortunate and unnecessary aspects of the address which ran a high risk of backfiring, but which were calculated to portray AZ as dishonest and manipulative. For example, counsel submitted:

8. [46]

   Mr Radojev returned to this theme when he told the jury “[r]emember the green frog, delicate little thing that [he] is” and “I don’t know if the frog was there to protect me or why it was there”. Insofar as counsel’s strategy can be discerned at this distance, the import of this attack on AZ was that he was being deceptive or feigning the need for a “comfort” toy in the witness box.

9. [47]

   All of these submissions, and many more, led to the assertion that the 20 or 30 occasions of which AZ spoke in his JIRT interview were bereft of detail and that:

The eight matters of concern raised on the appeal

1. [48]

   In arguing that the verdict of guilty on count 1 was unreasonable or unable to be supported, Dr Hickie raised “eight concerning aspects of the [prosecution] case” in his written submissions. At the hearing of the appeal, he maintained his reliance on those eight matters both individually and collectively, but submitted that the third matter related to a “central issue” and went to “the heart of the case”. It was this “third concerning aspect” of the case that was the focus of Dr Hickie’s written submissions in reply and his oral submissions. Because of its prominence in the arguments on appeal, I will set out the background and evidence relevant to that third concerning aspect first, before identifying the other seven matters in a little less detail, and then return to consider the overall impact of the matters raised by the applicant.

2. [49]

   The third concerning aspect relied on by Dr Hickie presents quite starkly. It highlights the lack of precision in the dates on the indictment and the particulars of the charge and became the focus of most of the oral arguments on appeal. This aspect of the case can be summarised as follows:

3. [50]

   The Prosecutor at trial submitted that AZ was “either mistaken about the house they were living in at the time, or … mistaken about the type of car they were in” and that, either way, the “mistake is inconsequential.”

4. [51]

   There is no force in Dr Hickie’s complaint that it was unfair to put this submission when the Prosecutor did not put to AZ that he was possibly mistaken when he gave evidence. The circumstances are not analogous to a situation where a prosecutor is obliged to challenge their own witness as a matter of fairness both to the witness and to the accused person: see, for example and by way of contrast, R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 and Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334.

5. [52]

   In Livermore v R, to quote Mr Parker the Public Defender who appeared at the trial, the Prosecutor, “clothed in the authority of the office of the Crown, presenting himself as representing the community and presenting his case fairly, repeatedly [expressed] disparaging personal views of [the] prosecution witness.” The Prosecutor told the jury that he (the Prosecutor) had come to the view that his own witness was “an idiot” and essentially invited the jury to reject his evidence altogether. In R v Teasdale, the Prosecutor implicitly accused a group of witnesses who, like the appellant, were off duty police officers, of a “conspiracy of silence” to protect the appellant. In the circumstances of each of those cases, it was incumbent on the Prosecutor to challenge the witnesses before making such submissions.

6. [53]

   The circumstances here could not be more different. For one thing, the ground of appeal in those cases was that the Prosecutor’s conduct caused the trial to miscarry whereas, in this case, the issue arose in the arguments about whether the verdict was unreasonable. More significantly, the Prosecutor here was inviting the jury to believe AZ, to accept he was honest and reliable as to the central issues in the case, but at the same time conceding that AZ must have been mistaken about one or other of these matters of detail.

7. [54]

   The more significant question raised by Dr Hickie was whether this clear problem with AZ’s evidence, either by itself or along with any or all of the other matters raised on appeal, was such that the jury ought to have entertained a reasonable doubt because the key witness’s evidence “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force”: M v The Queen at 494. Put another way, it was submitted that this evidence is of such a character that it “ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged”: Pell v The Queen at [127].

8. [55]

   I will return to those questions but will first address the other seven “concerning aspects” identified by Dr Hickie. I will adopt his numbering system in doing so.

9. [56]

   The first matter advanced by the applicant is somewhat related to the third, most significant, “concerning aspect” because it also relates to the inability of the prosecution to particularise its case precisely in terms of the timing of the offence. The complainant gave inconsistent answers in the first JIRT interview as to the period over which the inappropriate touching occurred. Early in the interview (Q 39) he spoke about “the sexual abuse that my stepfather put me through for about four, five years”. Then (Q 52) he said “it happened for quite some time, probably three years”. Three questions later he said it may have started when he was “10 till, actually, probably from like 9” years of age until he was 11. Trial counsel raised these inconsistencies with the jury and submitted, “[t]hey can’t all be the truth – but [he] says they’re all the truth. That’s what you’re dealing with.”

10. [57]

    Counsel on the appeal drew the Court’s attention to problems in AZ’s evidence as to sequences of the few specific incidents of which he could give evidence. This included an incident when the applicant allegedly held AZ around the waist which was said to have been “when COVID like first happened” (January 2020) but before the incident in count 1. That was “incompatible” with the prosecution case that count 1 occurred around Christmas of 2018 or Christmas of 2019.

11. [58]

    The respondent relied on several authorities which make it clear that it is not uncommon for children to be imprecise about time. While it was accepted that the jury may have considered the imprecision as to the timing and sequence of events to be “indicative of unreliability”, it was equally open to reason that such imprecision was “of little significance to the overall assessment of the reliability of the complainant’s account of an alleged assault.” Counsel for the respondent also submitted that the language used by AZ made it clear that he was only ever able to give approximate dates and sequences and that mistakes as to the order of events or when COVID occurred were mistakes that could be attributed to AZ’s youth.

12. [59]

    As was submitted at the trial, the applicant suggested that there was some implausibility in the physical action described by AZ as constituting the offence. He relied on the photographs of the inside of the car and the description AZ gave of the way in which the applicant touched his leg(s) and then moved his hand up the leg, under his shorts, to touch his vagina. It was submitted that the act would involve some “contortion” on the applicant’s part. I have referred at [21] to the cross-examination on this subject and at [44] (last dot point) to trial counsel’s submission to the jury.

13. [60]

    In addition to considering the photographs and cross-examination, I have watched the JIRT interview (MFI 2) where AZ demonstrated where the applicant allegedly touched his leg. At the hearing, the parties identified those parts of the JIRT interview which should be watched by the Court to obtain an understanding of the evidence. Between time stamps 23.15 minutes and 24.30 minutes, AZ twice indicated that the applicant touched him approximately halfway between his knee and groin. The first time AZ placed his palm flat on the top of his right thigh and the second time he drew a line with his finger at a slightly higher point on his thigh.

14. [61]

    I discern no implausibility in AZ’s description of the physical events. It would have been quite straightforward for a person in the driver’s seat to reach across and rub the complainant’s leg, and then reach under the loose fitting (pyjama) shorts and touch his vagina. It was open to the jury to reject these arguments just as I have rejected them.

15. [62]

    Both at the trial and in this Court, the applicant relied on several text messages between the applicant and AZ in which AZ said things like “[l]ove you too” and “[l]ove you, Dad”. Counsel at trial interrogated AZ at some length about these messages. That part of the cross-examination ended with AZ saying to counsel:

16. [63]

    The submission made on appeal was that AZ’s conduct was inconsistent with his evidence that he did not want to have contact with Mr Sherry after the incident and after the separation. Counsel on the appeal adopted the address of trial counsel where it was suggested that the cross-examination had “got under [AZ’s] skin” because the text messages:

17. [64]

    Counsel at trial, who told the jury in his closing address that he and others in the courtroom had not heard the profanity when it was uttered, made light of this incident. He said it was “the second greatest compliment” he had received in the last 43 years and that he “laughed like train” (sic) [6] when he read the transcript. It seems that the jury, like the complainant, did not share counsel’s mirth.

18. [65]

    Contrary to the import of the submissions on this topic, both at trial and in this Court, this evidence (at least in my assessment) had no negative impact on the complainant’s credibility, let alone his “trustworthiness”. It is worth setting out a longer extract of the cross-examination to attempt – even at this distance – to get an idea of its flavour and tone:

19. [66]

    Based on a review of the transcript, the complainant’s explanations for these messages and the ongoing contact resound with what might be described as the ring of truth. AZ said he maintained contact with the applicant and sent messages of love and affection because “he was still my dad” or “he was still my stepdad”. DH also gave evidence of the ongoing contact that Mr Sherry had with her three children (AZ, IZ and MH). She said that the children called him dad because he “stepped in to that dad role” early in their relationship. She gave evidence that after the separation, the children continued to have contact with him and sometimes went for drives with him although that happened “not very often” with AZ.

20. [67]

    One problem with the kind of arguments made under this heading is that both the cross-examination and the submissions run contrary to a more modern understanding of the behaviour of child or teenage victims of these kinds of offences, especially when they are said to have occurred in complex family settings.

21. [68]

    Reliance on preconceived ideas of how people behave, or how they are expected to behave, after incidents of sexual touching and inappropriate or abusive relationships are not in line with the current understanding of the diverse ways in which people react and conduct themselves in the aftermath of such trauma. The trial Judge did not direct the jury about such matters (and was not obliged to do so because provisions such as s 292B of the Criminal Procedure Act 1986 (NSW) did not strictly apply). The trial Judge simply invited the jury to consider whether:

22. [69]

    That direction related to the delay in complaint and the way the complaint emerged. It was not directed to the cross-examination and submissions relating to the text messages. As to that latter issue, the jury was reminded of defence counsel’s arguments about the messages and ongoing contact without comment:

23. [70]

    Finally, this fourth “concerning aspect” of the case is an instance where the jury is in a better position than the members of this Court to evaluate the effectiveness of the line of questioning and the credibility of the complainant’s response to it. The Prosecutor at trial explicitly invited the jury to consider AZ’s:

24. [71]

    Dr Hickie referred to the complainant’s description of counsel as a “fucking cunt” no less than three times in his written submissions as though it was a matter that reflected adversely on AZ’s credit. It was for the jury to decide whether the complainant’s hostile response to the cross-examination reflected adversely on his credibility or whether the barrister “got under [his] skin” for other reasons such as the tone, persistence and, perhaps, haughtiness with which the questions were put to the 16-year-old witness. This is an evaluation made more readily in the atmosphere of the courtroom. On my reading of the transcript, the least that can be said is that AZ’s response to counsel, as crude as it may have been, was understandable.

25. [72]

    I have considered this fourth “concerning aspect” identified by Dr Hickie both individually and generally in the context of the other concerns raised on the applicant’s behalf and the whole of the evidence adduced at the trial. It should be clear from what I have written in the last few paragraphs that I find the cross-examination and the arguments advanced at the trial, as well as the somewhat refined submissions made on appeal, unpersuasive.

26. [73]

    As was noted in summarising the ERISP at [42] above, the applicant raised with the investigators the possibility that the children were influenced in making the sexual allegations by their mother asking them repeatedly whether they had been touched or interfered with. The Prosecutor asked DH about this in her evidence in chief, and she agreed that she asked the twins about such matters:

27. [74]

    There was also cross-examination on this issue:

28. [75]

    IZ confirmed that her mother asked her about her “flossie” being sore and whether the applicant had touched her.

29. [76]

    Apart from the possible contamination of, or influence on, AZ’s testimony Dr Hickie also raised the following argument:

30. [77]

    The respondent submitted that this submission is “imbued with assumptions about how and why adults commit child sexual abuse”. Reliance was placed on the following observations by Beech-Jones CJ at CL in Sita v R [2022] NSWCCA 90 at [55]:

31. [78]

    While the prosecution case against Mr Sherry was not premised on an assertion that Mr Sherry was sexually attracted to children in a general or “tendency” sense, the observations of Beech-Jones CJ at CL remain relevant. The case was that the applicant, over time, formed an attachment and attraction to AZ in particular (as well as his sister, IZ, in relation to whose allegations the jury had a reasonable doubt). The kind of risk taking or inability to control his affection or attraction of which Beech-Jones CJ at CL spoke in Sita v R was also relevant in the circumstances of this case.

32. [79]

    Despite the assumptions and speculation that lie behind the argument, I accept that these are valid submissions and matters to be considered, but they are not matters of great moment in the overall context of this case. It was a matter raised at the trial and one that the jury was entitled to take into account, but it is not a factor that I find to be very compelling. It is not the kind of discrepancy, inadequacy or tainting that would lead the Court to harbour concerns that an innocent man was convicted.

33. [80]

    I have touched upon the sixth “concerning aspect” relied on by the applicant in the context of discussing the fourth matter identified (the text messages). This sixth matter is of some substance. It arose out of AZ’s assertion in the first JIRT interview that after the charged incident he did not travel in the car alone with the applicant or, if he did so, tried to sit in the back seat. There was evidence capable of disproving that assertion.

34. [81]

    The evidence emerged as follows:

35. [82]

    AZ went on to tell the police that the applicant later bought a “second-hand ute” (QQ 353-354).

36. [83]

    AZ was confronted with a video taken on 16 February 2021 in which he is seen to be sitting in the front seat of a car and having a friendly interaction with Mr Sherry talking about an incident where AZ drove a car into a tree. This was Ex 7 at the trial and there was cross-examination in which AZ struggled to explain the video. He agreed he was depicted in the video, that he was sitting in a car and that there was nobody else around. He said he did not remember the incident.

37. [84]

    The respondent submitted that the reference in the JIRT interview was a reference to “the car”, that is the car in which the sexual touching took place, and was not meant to convey that AZ had never again “even years later” been in a car with the applicant alone.

38. [85]

    I accept that this evidence had some capacity to impact on an assessment of AZ’s credibility. It was also to be considered with the contents of Ex 6, another video, this one taken on 16 October 2020, where AZ and the applicant were interacting in a friendly and joking manner in front of a drink fridge in a shop, possibly the shop attached to the “Pie Face” service station. While the friendliness of the interactions is not of great significance, the video in Ex 7 undermined AZ’s assertion that he avoided being in the front seat of a car with the applicant. This issue was emphasised at the trial and no doubt considered by the jury which assessed it to be “credible and reliable”: Pell v The Queen at [39]. As I have said, the contradictory evidence is a matter of substance and I have taken it into account in considering the ultimate question of whether the combination of factors identified by the applicant lead to a conclusion that the jury ought to have entertained a reasonable doubt as to his guilt. I should emphasise that it is the undermining of AZ’s factual assertions that is significant to my mind, rather than the fact that the alleged victim continued to spend time with his stepfather after the incident of sexual touching.

39. [86]

    The seventh aspect of the case said to raise concerns about the conviction was the allegation that the applicant told AZ that he would have married him if he was a couple of years older. This part of AZ’s evidence did not emerge until the second JIRT interview which was recorded on 20 March 2024.

40. [87]

    It was submitted that the failure to mention this “important and perverted conversation” in the first JIRT interview “stretches credibility”. Counsel also emphasised inconsistencies about whether the conversation occurred before or after the charged incident and the suggestion of collusion between IZ and AZ.

41. [88]

    I am unable to accept the applicant’s arguments on this aspect of the case. I agree with the respondent’s submission that it is “unremarkable” that AZ did not refer to this conversation in the first JIRT interview. The question of collusion was a matter for the jury to consider. The evidence of the conversation was not a central aspect of AZ’s evidence and his account of it was not undermined to any significant degree in cross-examination. The jury was entitled to reason that this conversation was a peculiar one to fabricate and may have reasonably taken the view that it was consistent with the general nature of the relationship between Mr Sherry and AZ. The fact (if the jury accepted it to be) that the applicant said similar things to both of the complainants did not establish collusion between the witnesses.

42. [89]

    The applicant pointed to the sequence of events around the complainants’ recorded interviews and to some similarities in their respective accounts. This was the eighth concerning factor advanced on behalf of the applicant because it was submitted that it supported an inference of collusion between the witnesses.

43. [90]

    The similarities in the evidence of the two witnesses included the age they thought they were when the abuse happened (9 years old in each case), the number of times the inappropriate conduct occurred (IZ said “50 times”, AZ said “twenty, thirty times”) and the fact that both witnesses said that some of the touching took place when they went on drives. AZ and IZ also gave similar reasons for failing to complain to their mother earlier. IZ said “[i]t’s really hard to tell your parent that someone they trusted for years has decided to do that to you” while AZ said “[h]ow do you tell your Mum that a man she loved for six years was doing that to you”. Both complainants gave evidence that Mr Sherry had said words to the effect that he may have married them if they were older.

44. [91]

    The respondent submitted that the “defence theory at trial that there had been collusion” was a matter for the jury to consider and resolve. It was submitted that the coincidence between the timing and nature of the allegations was not surprising given that the children were twins. It was also submitted that even if the jury accepted the pair had spoken, that did not of itself mean the account given by AZ lacked credibility or reliability in its essential details.

45. [92]

    The applicant’s suggestion that the twins spoke about their evidence and put their heads together was a prominent issue before the jury. Defence counsel directly accused the two complainants of “colluding” and invited the jury to accept they had “ample opportunity, ample opportunity” and gave several examples of what he described as “worrying coincidences” between their evidence. In summarising the case for each side, the trial Judge reminded the jury:

46. [93]

    While it must be accepted that there was “ample opportunity” for collusion or, to put it in less pejorative terms, for the twins to have spoken about each other’s allegations, this was not conclusive as to the credibility of AZ’s allegations and whether the count on the indictment was established beyond reasonable doubt. Again, it is a matter I have considered in the context of the whole of the evidence in the case, but I do not find it to be the most compelling argument advanced by the applicant.

Analysis and conclusion

1. [94]

   The approach to a ground of appeal asserting that a jury verdict is unreasonable was explained authoritatively in M v The Queen in 1994. It has been confirmed and applied in many cases since. Even so, in R v ZT (2025) 281 CLR 137; [2025] HCA 9, Gageler CJ, Gleeson, Jagot and Beech-Jones JJ “noted” at [9]-[12] three aspects of the Court’s earlier judgment.

2. [95]

   First, the advantage enjoyed by the jury encompasses more than seeing and hearing the witnesses give evidence. It extends to the “application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility”. The extent of the advantage will vary from case to case. Secondly, an appellate court is required to give “full allowance” to the advantages of the jury including an assessment of a witness’s tone or “emotional state” and how they interact with others including family members or people in positions of authority. Thirdly, while the appellate court is required to consider the whole of the evidence, that assessment takes place in the context of an adversarial process on appeal and where:

3. [96]

   The present reasons focus on the eight “concerning aspects” of the evidence identified by Mr Sherry’s counsel on the appeal which were in turn addressed by counsel for the respondent. In watching and listening to specific parts of the evidence (including the exhibits) I have been guided by counsel.

4. [97]

   While I have paid particular attention to those aspects of the case identified by counsel arguing the appeal, I have not lost sight of the fact that the role of an intermediate appellate court in an appeal of this kind is to guard against miscarriages of justice by reference to a consideration of the entire record of the trial court. I have kept firmly in mind the observation of the High Court in M v The Queen at 494 that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” and that “[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

5. [98]

   Contrary to the import of some of the applicant’s submissions, this is a case where the jury’s advantage was considerable. As I implied earlier, it is difficult to discern the tone of parts of the cross-examination which, in turn, makes it hard to evaluate AZ’s reaction to it. Based on AZ’s forthright appraisal of defence counsel’s qualities and the Prosecutor’s closing address to the jury, the trial was permeated by a significant amount of emotion. The interactions between the barrister and the witness are difficult to evaluate by reading the transcript.

6. [99]

   Even so, Dr Hickie submitted that there was objective evidence which had the capacity to establish that AZ’s evidence was unreliable as to particular aspects of his accusation. That was the situation, for example, in Pell v The Queen and Hodgson v R [2022] NSWCCA 72.

7. [100]

   The applicant also relied on matters that might be thought to diminish AZ’s credibility more generally in that they suggest that he either lied, exaggerated or had false memories of important matters of detail.

8. [101]

   I will put to one side aspects of the argument which were apt to perpetuate certain “myths” and preconceptions about how genuine victims (or perpetrators) of sexual assault ordinarily behave or are expected to behave. I have addressed these earlier, but they include AZ maintaining contact with his step-father after the alleged sexual touching by messaging the applicant, expressing love to him, and the personal contact and affection after the incident which was established by the evidence in the videos in Ex 6 and Ex 7. It also includes the applicant’s apparent risk taking in allegedly touching the children inappropriately or sexually when their mother was in the habit of asking them if anybody had interfered with them. While these were legitimate arguments for the jury to consider at the trial, they were clearly rejected and, on my independent assessment, appropriately so. I do not include in this list of matters to which I have given very little (if any) weight, the objective evidence of the videos which contradicted AZ’s assertion that he did not travel in the car with Mr Sherry after a certain time.

9. [102]

   I also give no weight to the argument that AZ’s description of the touching was implausible because of the nature of the physical acts involved and the layout of the front seat of the car. As I said in canvassing that submission, I see little merit in that aspect of the applicant’s case at trial and on appeal.

10. [103]

    As noted, I have taken into account AZ’s evidence (in the JIRT interview) where he said he avoided being in the front seat of a car with the applicant and the clear contradiction of that evidence in the video (Ex 7). That is a matter that bears upon an assessment of AZ’s truthfulness and reliability. However, it was patently before the jury which, having considered the matter, was satisfied beyond reasonable doubt that the allegation was established. It was reasonably open to the jury, in the relevant sense, to reject part of AZ’s evidence – as mistaken, untruthful or an exaggeration – and yet accept the central aspects of his evidence as to the pattern of inappropriate touching and the facts that constituted the single count on the indictment.

11. [104]

    The matters of most significance are, as Dr Hickie correctly argued, those numbered 1 and 3 in counsel’s catalogue of eight “concerning aspects” of the case. There is, as I observed, some connexion between those two matters because each arises from the imprecision of AZ’s evidence concerning the dates of the offences which in turn impacts on some of the details he provided as to the car in which the sexual touching allegedly happened or the home in which the family were living at the relevant time.

12. [105]

    Standing alone, the inconsistencies in the complainant’s account as to how old he was and the length of time over which the inappropriate touching occurred do not take the matter very far. This was not a case where the timing of events was made to be “vital” or “of the essence” because of the way in which the trial was conducted: see, for example, R v Westerman (1991) 55 A Crim R 353 and Hilton John Cawthray v R [2013] NSWCCA 105.

13. [106]

    Further, it is well established that child witnesses can be very uncertain as to the timing and sequence of events and how old they were when things, even significant things, happened to them. For example, in AS v R [2022] NSWCCA 291 Adamson J said at [109]:

14. [107]

    In the same case I said at [179]-[180]:

15. [108]

    However, the uncertainty as to dates gave rise to another issue, which I have explained above at [49]-[50] and [54]. To recapitulate and put the matter in the simplest of terms:

16. [109]

    This problem led the Prosecutor at trial to make the important concession that AZ must have been mistaken about one or other of those details. That concession was inevitable in view of the objective evidence and agreed facts.

17. [110]

    However, it must be remembered that the prosecution was required to establish the elements of the offence and not the surrounding details. This was made clear in the great case of Woolmington v Director of Public Prosecutions [1935] AC 462 where Viscount Sankey LC, after his famous observations about the “golden thread” upon which Dr Hickie quite properly relied, emphasised (at 482) that the prosecution was required to prove beyond reasonable doubt the elements of murder.

18. [111]

    That is not to deprive Dr Hickie’s argument of all of its force. Decisions in cases such as Pell v The Queen in the High Court, and Hodgson v R in this Court, show that problems in the evidence on such issues, which do not go directly to the elements of the offence, can lead an appellate court to intervene. The cases are fact specific, and each case must be considered in light of the true issues at the trial and the evidence in the case.

19. [112]

    In Pell v The Queen, the facts of which are well known, the overwhelming and uncontested evidence was that the appellant could never have been alone with the complainant at times after Sunday mass, and thus could not have committed the offence as it was described by the complainant. This was sufficient to cause the High Court to intervene.

20. [113]

    In Hodgson v R, two complainants – who were brothers – both asserted that the sexual offending occurred when the applicant (a neighbour) had a pool. The complainants’ evidence was specific and apparently certain on that issue. Yet, the objective evidence established that the pool in question had not been installed for some time after the alleged sexual assaults and after the applicant’s parents sold the property and moved away. As Leeming JA explained at [82]:

21. [114]

    Hodgson v R was a trial by judge sitting without a jury, and the trial Judge placed some weight on her assessment of the witnesses’ demeanour. Whether a verdict is returned by a jury or judge sitting alone, the approach on appeal to a ground asserting the verdict is unreasonable is more or less the same: see, for example, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [82]-[83].

22. [115]

    There were other difficulties in the prosecution case in Hodgson v R but it is unnecessary to go into all of the evidence. The point is merely that a matter of detail may be of such significance that the appellate court may determine that the conviction cannot be permitted to stand.

23. [116]

    Dr Hickie argued that the issues concerning the uncertainty of the dates and the impossibility that the offence occurred in the particular car and when the family was living at the particular property, amount to the kind of error that so diminishes AZ’s credibility that the Court must intervene. However, that was not the approach to the case taken at the trial. Trial counsel put to the jury that AZ was not to be accepted as an honest witness. His address, which I have summarised briefly at [44]-[47], was designed to convince the jury that AZ’s credibility was so diminished that it would be left with a reasonable doubt that the applicant ever touched AZ in a sexual way at all. The problem concerning the place of residence or type of car was before the jury for consideration and referred to in counsel’s address, but it did not play a significant role in counsel’s forceful attack on AZ’s credibility. The applicant’s ERISP also demonstrates that his case was that AZ’s accusations were untrue and that he did not touch AZ inappropriately or sexually at any stage or in any circumstance.

24. [117]

    The jury rejected that case and was satisfied that the elements of the single offence were established beyond reasonable doubt. That is to say, the jury was satisfied to that very high standard that the applicant touched the complainant on the vagina as AZ said that he did. The prosecution was not required to establish that, at the time of the offence, the family was living in the George Street house or that the sexual touching took place in a particular car.

25. [118]

    After considering the whole of the evidence very closely, taking into account the way the case was conducted at trial and the submissions made on the appeal, I am not persuaded that the verdict is unreasonable or unable to be supported having regard to the evidence. Based on a careful review of the transcript and the exhibits, and considering the advantages of the jury discussed in cases like M v The Queen and R v ZT, I am not left with a reasonable doubt concerning the truthfulness or reliability of AZ’s evidence. Once accepted, AZ’s evidence established the elements of the offence in count 1 beyond reasonable doubt.

26. [119]

    Accordingly, the applicant has not established the single ground of appeal. Because of the substantial consequences to Mr Sherry and the fact that the third matter of concern raised an important issue of fact relevant to the efficacy of the conviction, I would grant leave to appeal. However, the appeal must be dismissed.

27. [120]

    I would make the following orders:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal dismissed.

    3. (3)

       The Court notes Mr Sherry was sentenced to a non-parole period of 18 months from 24 December 2024 to 23 June 2026 with a balance of term (9 months) to expire on 23 March 2027 and that bail was granted by the District Court on 9 May 2025 pending the outcome of this appeal. The applicant will be returned to custody to serve the balance of his sentence pursuant to ss 18 and 28A(3) of the Criminal Appeal Act 1912 (NSW).

28. [121]

    McNAUGHTON J: I have had the advantage of reading the draft judgment of Hamill J. I have considered the trial record carefully including viewing and listening to portions of audio-visual exhibits referred to by counsel on the appeal. Having made my own independent assessment of the evidence, and for the reasons set out by his Honour, I agree with the orders proposed.

29. [122]

    EMMETT J: I too have had the benefit of reading Justice Hamill’s draft judgment. I have also reviewed the trial record, including portions of the electronic recordings to which counsel directed this Court. For the reasons set out by Hamill J, I agree with the orders proposed.