SC v R

1. [1]

   N ADAMS CJ at CL: I have had the considerable advantage of reading the reasons of Boulten J in draft. I agree with the orders proposed by his Honour and with his Honour’s summaries of the evidence, submissions and applicable legal principles, and his Honour’s conclusions regarding each of the discrete aspects of the Crown case at trial. I wish to provide some additional reasons for concluding that the trial judge, acting rationally, ought to have entertained a reasonable doubt as to the applicant’s guilt on the remaining seven counts. There is significant detail in the reasons of Boulten J which I have not repeated here. My reasons assume that the reader is already familiar with the reasons of Boulten J, which commence at [114] below.

2. [2]

   As Boulten J has explained, this matter has had an unfortunate procedural history. The applicant has already served all of his non-parole period which expired on 22 July 2025. This is his third appeal to this Court since his arrest on 5 October 2018. He was acquitted of five charges at his first trial before Norrish KC DCJ and a jury (“the first trial”) and was acquitted of a further four charges at the judge alone trial before N Williams DCJ, from which the current appeal lies (“the second trial”).

3. [3]

   The remaining seven convictions the subject of this appeal all pertain to one occasion in early 2018 when it is alleged that the applicant sexually assaulted two of his daughters at the same time. Those daughters are MC, who was then aged 7 years old, and GC, who was then aged 17 years old.

4. [4]

   Both GC and MC suffer from Autism Spectrum Disorder (ASD). In addition, GC has a moderate cognitive impairment and MC has selective mutism. The applicant adduced expert evidence that he too had an intellectual disability which placed him in the bottom 10th percentile range compared to his peers. The applicant’s reading age was in the range of a 7 or 8 year old and he too satisfied some of the diagnostic criteria for ASD. [1]

5. [5]

   Besides MC and GC, the other important witness at the trial was SP, the complainants’ mother and former wife of the applicant. The allegations against the applicant arose at a time shortly after he had left the family home because SP had made allegations of physical assault against him. The trial judge made a number of significant adverse credit findings about SP. One of the key issues in this appeal concerned the significance of the trial judge’s adverse credit findings about SP and whether this Court would make the same adverse credit findings.

6. [6]

   This appeal follows a judge alone trial in which extensive reasons were provided by the trial judge. In Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (“Dansie”), the High Court held that the Full Court of the South Australian Supreme Court, sitting as the Court of Criminal Appeal, had erred in their consideration of a ground contending that that the verdict was unreasonable or could not be supported having regard to the evidence. The identified error was in focussing on whether there was error in the factual findings reached by the trial judge (at [37]). The High Court explained (at [7]) that this was an error because:

7. [7]

   The High Court went on to observe the following about this Court’s role in considering whether one or more verdicts are unreasonable following a judge alone trial (at [16]):

8. [8]

   In considering the reasonableness of the verdicts, I have been careful not to focus on any errors in the trial judge’s factual findings and instead determine for myself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt regarding the applicant’s guilt. Despite this, the mixed verdicts in this matter are inextricably tied to the trial judge’s findings about, inter alia, the evidence of SP. To that extent, it is not possible to examine the evidence without also having regard to the acquittals and, to some extent, the trial judge’s reasons for those acquittals. As Boulten J has observed, this Court is bound to have regard to those acquittals.

9. [9]

   Boulten J has considered each of the separate categories of evidence relied upon by the Crown at the second trial. I agree that most of them were rendered as either neutral evidence, or worse, potentially contaminated evidence, for the reasons explained by Boulten J. For my part, I consider the following three aspects of the Crown case to be of particular relevance in consideration of this appeal.

10. [10]

    First, the complainant MC’s evidence was that the applicant had not assaulted either she or GC. Although MC’s evidence was exculpatory of the applicant, the trial judge made no findings about it either way. Instead, her Honour convicted the applicant of one offence against MC and six counts against GC based solely on the evidence of GC without commenting on the significance of the evidence of MC. I consider MC’s failure to implicate the applicant to be of some importance.

11. [11]

    Secondly, the applicant was acquitted of counts 1-4 on the basis that her Honour could not exclude the possibility that SP had contaminated GC’s evidence. All 11 counts relied heavily on GC’s evidence. Although her Honour set out the “Markuleski” direction early in her summing up, she did not go on to apply it to the question of the relevance of the acquittals on counts 1-4 to the remaining counts: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (“Markuleski”). I will address this issue further below at [65].

12. [12]

    Thirdly, although the reason that the applicant was acquitted of counts 1-4 was the potential for contamination or fabrication of the complainants’ evidence by SP, a similar complaint could be made about counts 5-11 upon which the applicant was convicted.

13. [13]

    As against these deficiencies in the Crown case, the fact remains that GC gave an account of the applicant sexually assaulting both MC and her which, on a reading of it, is a credible account. Looking at it in isolation, there is nothing in it which is improbable. The difficulty is that GC’s account cannot be looked at in isolation; it has to be considered in the context of all of the evidence including the problematic aspects of the Crown case I have referred to above.

14. [14]

    I propose to focus in my reasons on the significance of these three aspects of the case. Before doing so, I propose to first recount the evidence of GC in some further detail to that provided by Boulten J given its significance to the Crown case.

15. [15]

    GC was 17 years old at the time of the alleged offending and her two Joint Investigation Response Team (“JIRT”) interviews and 23 years old by the time she gave her evidence at the second trial on 13 and 14 June 2024. A portion of her evidence on 10 February 2021 from the first trial before Norrish KC DCJ was tendered on behalf of the applicant at the second trial. Exhibit 5 at the second trial was a document headed “Agreed Facts pursuant to s 191 Evidence Act 1995” which was in these terms:

16. [16]

    Exhibit 5 was before the court to establish the element of aggravation that GC was cognitively impaired. There was no expert evidence before the court about the impact of GC’s ASD and cognitive impairment on her ability to give evidence and/or remember events.

17. [17]

    GC was not assessed as being competent to give sworn evidence thus her evidence was unsworn: s 13 Evidence Act 1995 (NSW). Her evidence before the trial judge comprised her two police JIRT interviews and her evidence in court before her Honour. After her first JIRT interview was played, she confirmed in her evidence in chief that she did not want the applicant to touch her, put his private part in her, lick her private part or put his fingers in her bottom. [2] The only cross-examination of GC about her first interview concerned questions as to whether she had ever told anyone what had happened with the applicant to which she replied that she had not. [3]

18. [18]

    In her first JIRT interview on 7 June 2018, GC struggled to understand the difference between the truth and a lie, although she eventually appeared to understand. For example, the following exchange occurred: [4]

19. [19]

    Later, when she was asked whether she could read the words “I don’t know” or understand what they meant, she could not do either. [5]

20. [20]

    When the female officer pressed on to see if GC understood the difference between the truth and a lie, the following exchange took place: [6]

21. [21]

    When GC was asked why she was there that day she responded that she did not know. She was asked to mention everyone in her family and was able to do so but she omitted to mention her father. When asked whether she had a “dad” she replied “no”. [7] When later asked why she said she did not have a dad she replied, “He’s gone”. She went on to explain he had moved in with his mother, which was accurate, and that she did not like him because he was “not nice”. [8]

22. [22]

    GC did not mention any sexual assault in her first interview until Q284 when she was asked whether anybody touched her on the mouth to which she replied yes, her dad “kiss me”. [9] At Q298, she was asked whether anybody touched her on the breast and she nodded. When asked who, she replied “dad”. The officer pointed to a picture of the body and to the genital area and the following exchange ensued:

23. [23]

    The officer then asked when the applicant kissed her on the lips and she replied “[l]ast school holidays”, “daytime”, “last year”, “summertime”, after “her birthday”, after Christmas and also after New Year but before she went back to school. [10]

24. [24]

    As the questions continued, she described the applicant asking her to go into the bedroom and take her clothes off. She lay on the bed on her back. [11] MC was on the bed next to her. GC described wearing “dad’s tights” which were brown and thick. She did not like wearing them, but the applicant told her to. She had nothing on besides the tights which covered her toes and came up to the top of her chest. [12] MC was wearing nothing. She stated that the applicant “force” MC to take her clothes off and MC was “upset” and didn’t “like it”. She described him doing that (taking MC’s clothes off) four or five times. [13] She described the applicant “forcing” GC to put the tights on. The questioning continued:

25. [25]

    GC went on to reply that the applicant touched her “private parts”. She circled the breast area of the diagram shown to her by the officer.

26. [26]

    Count 6, the allegation that the applicant licked GC’s breasts, was based on GC’s answers at Q418-422 as follows:

27. [27]

    She was unable to understand the question, “[w]hat did [the applicant] do with his mouth” and was instead asked how it felt and she replied “sad” and that she did not like it. [14] The questioning continued and GC responded that “he lick it” and that it was both breasts (“two”). The questioning continued leading to the answers which were the basis for count 7 (licking of GC’s “private parts”) and count 8 (digital penetration of anus) as follows:

28. [28]

    GC was later asked how the applicant put his tongue on her private parts if she had the tights on and she replied that she took the tights off as she did not like wearing “it”. [15] GC was then asked, “Did he do anything to [MC]?” GC nodded and then replied, “Topping her”. The intermediary clarified she meant “On top of her”. In response to questions GC replied that MC was on her stomach and then gave the following answers which were relied upon for count 11, the only count pertaining to MC: [16]

29. [29]

    When GC was then asked by the officer what MC did, GC replied that "she feel upset". The following questioning then took place:

30. [30]

    The suggestion of anyone crying was first raised by the questioner here. GC went on to answer questions that nobody else was home, everyone was at vacation care and mum was shopping. She did not tell anyone because the applicant told her, “Don’t tell mum … or he’ll get in trouble”. He said, “it’s a secret”. [17]

31. [31]

    Questions 494-495 are edited out of the interview, and the interview picks up part way through questioning in this way: [18]

32. [32]

    The questioning continued and GC stated that she was 16 when it started.

33. [33]

    The questioning continued and GC was asked about when and where it happened and who was home. She also said that MC was 6 when it started. She could not remember the first time or any other time except for the last time it happened: [19]

34. [34]

    After asking GC to point to the penis on the drawing of a boy she is asked the following questions which leads to answers in support of count 5:

35. [35]

    After further probing GC stated that it was on the same day as the other acts she has already described. [20] She described the applicant’s penis as being “Yuck” and “hard” as follows:

36. [36]

    The remaining count was count 10, an allegation that the applicant asked GC to fellate him, arising from the following answers: [21]

37. [37]

    GC then describes further acts committed on MC which were not included in the indictment.

38. [38]

    During GC's second JIRT interview on 20 July 2018 she disclosed counts 1-4 which allegedly occurred when her brother JC went on a school excursion to the Blue Mountains. This excursion took place on 14 August 2017. These were the four counts on which the applicant was acquitted. I do not consider it necessary to summarise this evidence.

39. [39]

    The trial judge described GC’s account as “visceral”, “compelling”, “strong and very believable” and then concluded that, “… it is unimaginable that GC given her level of functioning could have remembered and maintained a version if it was not based on actual events”. [22]

40. [40]

    To some extent it is difficult to assess GC’s account on the basis of the transcript of her first JIRT interview, but what is apparent is that she was able to maintain the narrative during a long interview which runs to 649 questions and answers. A number of the answers were elicited by leading questions, there are a number of inconsistencies in her account and at times GC clearly struggled to understand the questioning. Despite this, there is nothing inherently implausible in her account. I do not feel in a position to be able to comment on whether it would not have been possible for GC to maintain her account if it had not in fact happened in the absence of expert evidence to that effect.

41. [41]

    One unusual aspect of GC’s evidence is the reference to the applicant asking her to wear brown thick tights during the sexual assault. As Boulten J has described, when GC complained to Ms Hare on 28 April 2018 she went into the applicant’s room and pulled out at least 12 pairs of stockings from the applicant’s drawer which she alleged the applicant made her wear. These stockings were later seized, and the feet and crotch were cut out of them. The applicant’s evidence was that he would sometimes wear pantyhose as he felt cold in winter. The trial judge did not accept this account considering it to be “highly improbable”, but the fact remains that no DNA consistent with either GC or MC was found on the stockings whereas the applicant could not be excluded as a contributor. Further, they were located in the applicant’s tallboy.

42. [42]

    GC described not wanting to wear the stockings and the applicant making her do so. She did not describe any portion being cut out of them and in fact stated that they covered her feet. When asked how the applicant could have touched her private parts with the stockings on, she explained that she took them off.

43. [43]

    The trial judge ultimately found that the stockings did not take the case any further and I have come to the same conclusion, but it remains a curious aspect of the narrative.

44. [44]

    The medical evidence was also neutral. GC’s hymen was intact which is consistent with both, sexual intercourse occurring and not occurring. Although GC described intercourse as having happened “100 times before”, I am prepared to proceed on the basis that GC used the estimate of 100 times as an expression and not literally.

45. [45]

    MC was 7 years old at the time of the offences and her interview and 9 years old when she gave her pre-recorded evidence before Judge Shead SC on 8 and 9 February 2021 (MFI 10). MC gave unsworn evidence as she had been found not competent to give sworn evidence (Williams DCJ did not need to re-determine the issue of MC’s competence for the present trial). MC gave evidence with the assistance of a Witness Intermediary.

46. [46]

    It was not possible to elicit any evidence in chief before Judge Shead beyond MC confirming that she had watched her interview and the videos (Exhibit 8). She pointed to the “No” card when asked to tell the court more about the applicant making her feel sad. She continued to point to the “I don’t understand” card when asked if she could talk more about the applicant and herself, if she liked doing anything with the applicant, if there was anything she did not like doing with the applicant and what she was talking about in the videos in Exhibit 8.

47. [47]

    There was very little cross-examination, but MC pointed to “yes” when asked “Does mum talk to [GC] about dad?”, “Does mum ask [GC] to say things about dad?” and “Are the things that mum asked [GC] to say about dad bad?”. [23]

48. [48]

    In re-examination, MC responded both “Yes” and “I don’t understand” when asked, “Are the bad things that mum asked [GC] to say true or not true?”. [24] She was unable to be re-examined further as she became too disengaged.

49. [49]

    As Boulten J has observed, there were a number of aspects of MC’s evidence which are problematic:

    1. (1)

       Her evidence in her JIRT and in court was that the applicant did not sexually assault either she or GC.

    2. (2)

       SP gave some evidence that MC disclosed some offending to SP in April 2017 but then retracted it about two days later.

    3. (3)

       MC’s second disclosure was to Ms Hare when both GC and MC were present, and MC only described the act of fellatio after GC said the same thing moments beforehand.

    4. (4)

       Of the four video recordings SP made of MC making complaint by acting out what happened to her, one was recorded before her first JIRT interview and three were recorded afterwards.

    5. (5)

       In cross-examination MC agreed (nonverbally, by pointing) that SP asked GC to say “bad…things” about the applicant.

50. [50]

    Both the trial judge and Boulten J ultimately put Exhibit 8 (the four video recordings) to one side due to SP’s involvement in their creation. Although I have reached the same conclusion, the fact remains that they depict MC speaking and acting in a highly sexualised manner and implicating that the applicant had sexually assaulted her.

51. [51]

    In this Court the applicant submitted that MC’s account in her interview and in court was reliable whereas the Crown contended that it was unreliable. The Crown relied on the fact that MC did not appear engaged with the questioning as a basis for this Court to discount her in-court evidence (including the JIRT interview) in which she denied the alleged conduct by the applicant.

52. [52]

    Having considered MC’s denials in her JIRT, it is difficult to draw any firm conclusions from them. On the transcript, it is apparent that, as the Crown contended, she does not engage fully with the process. She has no cognitive impairment, and it is difficult know how her ASD and selective mutism could impact on her account, if at all. Her denials in court are, to some extent, inconsistent with the recordings which were made by SP and the other disclosures she is said to have made (and retracted).

53. [53]

    I am not satisfied that MC’s in-court evidence is so unreliable that, as the Crown contended, I would put it to one side. But, on the other hand, there was no suggestion that MC was scared or had any other reason to protect the applicant. The fact that she can be seen to be disengaged during questioning does not answer the question of whether her denials that any offending occurred are reliable.

54. [54]

    As Boulten J has described, the trial judge found SP to be “evasive”, “disingenuous”, “not impartial or objective”, showing considerable “animus” to the applicant and not to be a witness of truth. It was her Honour’s concerns regarding SP’s involvement in some of the complaint evidence and the second JIRT interview that led the trial judge to acquit the applicant on counts 1-4.

55. [55]

    The Crown contended in this Court that SP should be considered a credible witness, and that this Court would not make the same adverse findings concerning SP’s credit as did the trial judge. Having independently assessed SP’s evidence, I have arrived at the same conclusion as the trial judge did insofar as her involvement casts some doubt on the reliability of GC’s evidence.

56. [56]

    It is clear that SP played an active role in the generation of the complaint evidence. I do not consider that that fact alone necessarily means that GC’s account is unreliable. A parent who genuinely believes that their child or children have been sexually assaulted may well assist them to put their best case forward by helping them describe what happened to them. Although such conduct is always a concern, it does not necessarily mean that the account of the child is fabricated.

57. [57]

    The difficulty in the present case is that not only did SP become involved in the creation of evidence such as Exhibits 7 and 8, but she also lied about doing so in court. As for the video recordings of MC (Exhibit 8), SP maintained that she was not present during the 31 August 2018 recording, which was described as a “selfie”, but SP’s hair can be seen in the footage. When SP’s lie was exposed in cross-examination, she responded that she meant that she was “physically” present but not “mentally” present. SP can be heard pressuring MC to give her account in the recordings (see at [177] below). As for GC’s drawing (Exhibit 7), SP denied involvement in it as well but during the second JIRT interview it became apparent that GC could not spell some of the words on it.

58. [58]

    Further, SP initially asserted that nobody had access to the mobile phone on which the incestuous searches were made before accepting in cross-examination that this was not the case (rendering that tendency evidence neutral). She also failed to mention at the first trial that MC had retracted her initial complaint.

59. [59]

    It is the combination of SP’s involvement in the creation of some of the complaint evidence, her subsequent dishonesty about doing so and her strong pre-existing animus towards the applicant which together leaves me with a feeling of unease about her involvement in the complaints by her children in this matter.

60. [60]

    The trial judge observed that SP’s evidence had: [25]

61. [61]

    I have the same concerns.

62. [62]

    When providing her reasons for acquitting the applicant on counts 1-4, her Honour observed the following: [26]

63. [63]

    Her Honour then went on to refer to particular problems with GC’s second JIRT interview before concluding the following:

64. [64]

    Early in her Honour’s reasons, she set out the Markuleski direction which included the following direction: [27]

65. [65]

    The trial judge did not apply this direction to the four acquittals which relied almost solely on GC’s evidence in the context of the trial judge being concerned that SP had played some part in GC’s complaint in her second interview. In considering whether the remaining convictions are unreasonable, I have considered whether the trial judge’s doubt on those four counts arising from GC’s credibility can be taken into account in this Court in the assessment of the credibility of the complainant generally. Even though this Court’s role is to put the trial judge’s reasons to one side and independently assess the evidence, as Boulten J has observed, the Markuleski direction was an important direction in this case.

66. [66]

    I have had regard to the acquittals on counts 1 to 4. Given that I have arrived at my own conclusion concerning SP’s evidence, which accords with that of the trial judge, I consider that finding to be relevant to all of the counts. I am not satisfied that the guilty verdicts are inconsistent with the acquittals: MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35. No such submission was put on behalf of the applicant, and the different verdicts are explicable in the sense explained in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151. Despite this, for my part, the findings made about SP generally and about GC’s credibility in her second interview are highly relevant to this ground of appeal and have caused me concern.

67. [67]

    There are a number of aspects of this case which cause me to have a reasonable doubt. None of them individually would have done so but it is the accumulation of these numerous discrete factors which has led me to the conclusion that the appeal should be allowed. The most important of these were the acquittals on counts 1-4. Overall, I am not satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt.

68. [68]

    In the present appeal both parties submitted that this Court would view the recorded evidence and both JIRT interviews of both complainants but only if the Court came to the initial view that the trial judge ought to have had a reasonable doubt. The relevant principles were stated in R v ZT (2025) 281 CLR 137; [2025] HCA 9 (“ZT”) by the plurality (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) who observed the following at [18]:

69. [69]

    Having made my own independent assessment of the whole of the evidence, I am not satisfied that it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty on the remaining counts. In other words, I am not satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to the accused’s guilt. Having arrived at that conclusion, consistent with what the plurality in ZT identified at [18], I looked at some of the JIRT interviews to consider whether her Honour did in fact have an advantage in seeing and hearing the complainant GC in this matter: M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63 (“M”). The question of whether the trial judge was in a better position than this Court to assess MC’s evidence does not arise as her Honour made no finding either way: she simply convicted the applicant of the charge involving MC based on the evidence of GC.

70. [70]

    As I observed in Radburn (a pseudonym) v R [2025] NSWCCA 125 at [143], it is difficult to envisage an appeal in which, as here, the Crown case rested on the credibility of one or more complainants, where the jury, or judge sitting alone, would not have had such an advantage. Having viewed GC’s first JIRT interview (rather than simply read it), I am satisfied that there is an advantage in seeing GC rather than simply reading the transcript of her account. Despite this, that advantage does not overcome the cumulation of factors that have led me to have a doubt about the convictions, caused by the acquittals and other evidence rather than GC’s evidence alone.

71. [71]

    Having regard to all of the evidence, I am left with a feeling of disquiet that both GC and MC may well have been sexually assaulted, but that is not the applicable test. It follows that I too would grant leave, allow the appeal and quash the remaining convictions.

72. [72]

    FAGAN J: I agree that the orders of the Court should be as proposed by Boulten J. The single ground of appeal, that the guilty verdicts in respect of counts 5-11 are unreasonable and cannot be supported by the evidence, requires that I determine for myself “whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty” (Dansie at [7]). Having considered the entire trial record and applying the established tests for a ground of appeal of this nature, as identified in the judgments of the Chief Judge and Boulten J, I have concluded that it was not open to the learned judge, who tried the case without a jury, to find the charges proved beyond reasonable doubt.

73. [73]

    It was essential to proof of the seven counts that the truthfulness and reliability of GC’s evidence in support of them be accepted to the criminal standard. That evidence consisted of GC’s answers to Q296-Q624 of her JIRT interview of 7June 2018. Her very limited oral evidence in court added nothing. I agree with Boulten J, for the reasons his Honour has given, that there was a significant possibility that GC’s answers in the interview were the product of, or were at least influenced by, manipulation, pressure and/or coaching by her mother, SP. I agree that that possibility gives rise to a reasonable doubt about the reliability of the JIRT interview and that the doubt was not resolved by any other evidence in the case.

74. [74]

    In addition to the doubt arising from the possibility that GC’s evidence was tainted by SP, at a more fundamental level I find the JIRT interview wholly unreliable. That is based on the transcript alone, noting the way in which GC’s answers were elicited and their insubstantial content. I do not purport to have drawn from the transcript a conclusion that GC was unworthy of credit, in the sense of being deliberately untruthful. The individual sexual acts of which she accused the applicant were not inherently improbable. The combination of acts and the allegation that they were committed in the presence of a younger daughter, whose silence would be hard to keep, strained credulity and required convincing proof. The source of doubt, to my mind, is the unreliability of evidence adduced in the form of scant and frequently contradictory answers obtained from GC, a witness of very limited mental capacity, by means of questioning that in significant respects led her answers.

75. [75]

    After a handful of redactions the transcript of the JIRT interview contained 325 questions and answers relevant to counts 5-11. In combination GC’s answers amount to a description of a single incident said to have occurred at some time during January 2018 in the bedroom used by the applicant and GC’s mother. As summarised by Boulten J at [118], GC alleged that the applicant did the following:

76. [76]

    If accepted, this was evidence of a protracted and appalling episode of diverse sexual violation of GC, aged 17, including one form or another of penetration of every orifice. Some of the applicant’s alleged acts would be expected to have been physically painful. As described by GC, her sister MC, aged six, was present, naked, throughout this abuse and was abused herself. The entire experience, if it took place, would have been traumatic for both girls.

77. [77]

    No doubt because of GC’s moderate intellectual disability and autism, the officer who conducted the interview had to coax her answers, including by repetition, by framing questions in the form of alternatives from which GC could choose and by asking questions in leading form. I do not suggest impropriety. It is plain on the face of the transcript that the process of obtaining any information or allegations from GC was exceedingly difficult. However, the result was an exchange in which the interviewer did nearly all the talking and the weight that can be attached to GC’s brief, monosyllabic answers is so reduced that I am left with significant doubt about the reliability of her evidence of the seven counts.

78. [78]

    There is no element of narrative from GC in the interview. Of 325 answers given over 34 minutes, 26% were non-verbal, consisting of a nod or shake of the head or a gesture. Another 69% comprised between one and four words, almost exclusively monosyllables. GC’s longest answer was nine words. Only 16 answers (5%) were in the range of five to nine words. The interview was conducted only five months after the alleged incident. The lack of any fluent narrative or expanded answers volunteering realistic detail of itself causes me to doubt whether these answers describe something that actually took place. The evidence painstakingly extracted from GC, in the briefest possible responses, includes multiple discrepancies and contradictions as considered below.

79. [79]

    According to facts that were agreed at trial, GC’s mental age was equivalent to that of a hypothetical eight- or nine-year-old unafflicted by intellectual disability or autism. In November 2018, five months after the interview, her language function was at a level of sophistication equivalent to that of a seven-year-old. In many cases of child sexual abuse this Court sees JIRT interviews of seven to nine year old complainants who are able to volunteer extended answers and to provide realistically detailed and apparently reliable descriptions of alleged sexual acts. It is possible that the events of counts 5-11 occurred and that the fragmentary character of GC’s answers and the difficulty of obtaining them are attributable to her intellectual disability and/or autism. If it be the case that those mental conditions prevented her from recounting an actual recent episode of sexual abuse in any manner more forthcoming than can be seen in the JIRT interview, that merely explains why the Crown’s proof through GC was so unsatisfactory and unconvincing – but unsatisfactory and unconvincing it remains. There also remains the reasonable possibility that GC’s lack of spontaneity or expansion or realistic detail is attributable to the events described not actually having occurred, so that she had no verifying detail to give and insufficient mental acuity to fabricate beyond her short answers.

80. [80]

    GC’s inarticulate responses were not apparently the product of embarrassment about describing parts of her anatomy or details of things done to her. Although GC did not volunteer details in her answers, she responded, flatly and without indication of embarrassment, when asked questions about whether specified intimate contact occurred.

81. [81]

    GC’s answers concerning the context of the occasion in January 2018 when she and MC were said to have been sexually abused displayed numerous discrepancies. The first act of the applicant that she attributed to that occasion was that he kissed her (A327). Her subsequent answers about the acts charged in counts 5-11 were to the effect that they were part of the same incident. She was asked when the kiss occurred and she answered, “Last school holiday” (A327), which would have been approximately April 2018. Then she said it was “Last year” (A336), after her birthday (being in early December) (A338), then in the current year, 2018, “After New Year” (A342).

82. [82]

    This course of contradiction and variation was not taken up with GC, as to why she had nominated such varying dates of the occurrence, or how she had ultimately settled upon “After New Year”. Undoubtedly, to ask for an explanation would have required GC to give more than her usual nod or shake of the head or answer of between one and four words. GC was apparently not capable of providing explanatory responses, as would be required to reconcile conflicting assertions. Whatever the reason for GC not having been asked about self contradictions such as this, the result is that her numerous inconsistencies and reversals have not been rationalised by her and they remain to cast doubt over her reliability.

83. [83]

    Inconsistency, as a hallmark of unreliability, continued in GC’s answers about the setting in which the applicant commenced to perform the sexual acts alleged in counts 5-11. At A344-350 her answers were to the effect that the applicant told her to go into the bedroom, with which she complied, and then to take off all her clothes, with which she again complied. At A362 GC said that in the bedroom she was wearing the applicant’s brown thick tights and at A367 she said she was wearing them when she walked into the bedroom. Then she said that she put the tights on in the bedroom when the applicant so instructed her (A372-373). GC nodded in the affirmative to the question whether she took off her clothes when instructed by the applicant (A375) and said that all her clothes were removed (A376). When she was then asked if she had anything on she said she was still wearing a T-shirt (A377) – but then again, that she was not wearing the T-shirt on the bed (A379-380).

84. [84]

    At A403 GC nodded affirmatively to the question, “So you’re lying on the bed wearing the tights and [MC’s] got nothing on?”. She was then asked, “Does anything happen after that?”, to which she shook her head (A404). That topic was pursued as follows:

85. [85]

    Despite those successive answers, verbal or non-verbal, to the effect that nothing happened after GC lay on the bed in the tights and, alternatively, that the applicant physically touched her but she did not know how, the interviewer repeated the question:

86. [86]

    Thus by increments GC was brought to the point of alleging sexual contact from the applicant. When asked where she was touched she initially answered only in general terms: “Private parts” (A414). Detail commenced to be elicited by presenting GC with a drawing of the female body and inviting her to indicate parts that were touched. The subsequent answers were replete with contradiction, inconsistency and reversal. The interviewer used leading questions liberally to come to a landing on matters about which GC gave varying answers.

87. [87]

    With respect to count 5, GC made no mention of having touched the applicant’s erect penis until after she had given numerous widely varying answers about a number of occasions other than that in January 2018 on which he had committed sexual acts towards her (discussed further below). GC nodded in answer to the question, “Have you ever touched dad’s penis?” (Q560) and the interviewer proceeded as follows:

88. [88]

    Within the space of those two questions, GC moved from being unable to remember the last time she touched the applicant’s penis to being able to agree, in response to a leading question, that it was on the day in January 2018 when counts 6-11 were also committed, which she repeatedly asserted was the last occasion of any sexual conduct by the applicant towards herself. After the interviewer attempted to probe whether GC’s answer to the leading question (Q565) was the product of genuine recall, GC contradicted herself by answering that the last time she remembered touching her father’s penis was “Last year” (A567), then after a few more questions it was “After New Year” (A572), then back to “Same day” (A573), meaning the day of the alleged episode in January 2018.

89. [89]

    The date upon which count 5 was alleged to have been committed was not a superfluous detail. The offence was charged on the basis that it occurred in the course of the episode that also involved counts 6-11, at which MC was allegedly present. GC’s erratic variability about the date and therefore the circumstances of this alleged offence renders her evidence concerning the charge seriously unreliable.

90. [90]

    At Q582-588 GC was unable to give coherent detail of touching the applicant’s penis. She said she did not know what she did with her hand and that she could not demonstrate to the interviewer what she did. She nodded affirmatively to a question whether the applicant asked her to do anything with her hand but then said she did not know what. Similarly, she nodded affirmatively to a question whether the applicant helped her to do anything with her hand but again said she did not know what. This incoherence is not consistent with a genuine recollection that could be relied upon for the purpose of finding guilt.

91. [91]

    With respect to count 6, GC’s allegation of indecent assault by touching her breasts commenced with her drawing a circle around the breasts on the sketch of the female form that was supplied by the interviewer at Q415. GC proceeded to the following self-contradiction:

92. [92]

    Without pausing to seek an explanation of that contradiction, which would likely have been futile in any event, the interviewer asked what the applicant did with his mouth on her breast. She appeared not to understand the question and gave no answer. When asked how it felt she merely said, “Sad”. The interviewer resorted to a leading question:

93. [93]

    Those final answers, which form the essential evidence to support count 6, appear thoroughly unreliable in view of the sequence in which they emerged from GC’s contradictions followed by the interviewer’s leading question. In order to place reliance upon GC’s description of such an indecent assault, one would expect her to be able to recall the occasion and to volunteer a description of the nature of the contact and the unwanted sensation that it caused. If her account could be relied upon, one would not expect her to say, first, that it occurred in 2017, then in January 2018, or to say that the applicant touched her breasts with his fingers and then, when asked for detail of the touching, to say that he actually made contact with his mouth. One would not expect GC to need prompting and leading, over the course of 15 questions, in order finally to say that the applicant’s action was that of licking both her breasts.

94. [94]

    GC’s allegation underlying count 7 proceeded straight on from what she had said at A433 about the applicant licking her breasts:

95. [95]

    What GC meant by the answer “Then here too” is patently unclear. The leading question that followed, Q435, was based upon an unjustified assumption as to what GC meant. Her nod of assent to that question could not be relied upon as proof beyond reasonable doubt of count 7. The unreliability of this sequence of questions and answers is compounded by conflict with the circumstance that GC had earlier said she was wearing the brown thick tights when she was on the bed. When asked about that apparent conflict she said, “We took it off, the tights” and “I did” (A453-454). She then answered that she took the tights off because “I don’t like it”, “Wearing it” (A455-456).

96. [96]

    No questioning was undertaken to try to have GC reconcile those answers with her earlier allegation that she had put the tights on at the direction of the applicant and that “He force me” (A381, A407). Consequently, GC gave no evidence to reconcile the alleged circumstance that the applicant compelled her to put on the tights but that she then took them off to suit herself. At what stage? With what reaction from the applicant? This is an illustration of how the fragments of information in GC’s answers leave her account of events devoid of realism and therefore open to reasonable doubt.

97. [97]

    GC’s evidence about count 8 was given in answers to Q436-448. A striking feature of her allegation that the applicant inserted two fingers in her anus is that, upon being asked how she felt when that happened, her only answer was, “Sad” (A445). Questions about whether GC said anything to the applicant upon him penetrating her in that way drew only a shake of the head and then “No”. As a matter of common sense, it would likely have been painful, not to mention disgusting, for this 17 year old girl to have her father insert two of his fingers in her anus. It would be expected that the pain and disgust would be impressive and memorable aspects of such an experience. The absence of any evidence from GC of her reaction, beyond the single word “Sad”, gives rise to doubt about whether the act described actually occurred.

98. [98]

    Again, her brevity may be attributable solely to her mental condition but that simply means that she was not a witness able to give an account of alleged events in sufficient detail to enable the tribunal of fact to accept it as reliable beyond reasonable doubt. Care must be taken in such a case not to assume that the criminal act so briefly described was actually committed and, upon that assumption, to dismiss the absence of verifying detail on the basis that the sole witness has an intellectual impairment.

99. [99]

    Count 9, penile vaginal intercourse, was the subject of Q500-508. When asked how this felt, GC initially responded, “Hard” (A505), evidently referring to the applicant’s penis. When pressed with the question, “How did you feel?”, The answer was “Sad” (A506). Again, if this actually occurred one would expect from the complainant some description of whether or not she felt discomfort and/or revulsion at the act being performed by her own father. No such description was given and there was no further questioning that might resolve the anomalous paucity of evidence. Observations made above with respect to count 8 also apply to this allegation of sexual intercourse.

100. [100]

     If this occurred and was the first occasion on which GC experienced penile vaginal intercourse it would likely have been painful and traumatic for her. A difficulty in placing any weight on the evidence is that GC’s answers elsewhere in the interview would not permit a finding as to whether or not this was her first such experience. Her evidence about the applicant previously having had intercourse with her “A hundred times” is the subject of contradiction (referred to further below) and inherent improbability, to such an extent that no sense can be made of it.

101. [101]

     GC was not asked whether the applicant ejaculated or in what manner the penetration ended. Consistently with her failure to expand any of her answers with verifying detail, in the absence of direct questions on those matters she said nothing about them. GC was asked about the duration for which the applicant’s penis was inside her, “How many minutes?” and responded “A hundred times” (A508). Further questioning showed this to be a claim as to the number of previous occasions on which the applicant had penetrated her. She therefore gave no answer as to the duration of the penetration alleged in count 9. If a complainant in the position of GC was subjected to penile vaginal intercourse only five months before taking part in a JIRT interview, it would be expected that she could and would volunteer details of the act such as those referred to in this paragraph. The absence of any narrative description from GC, incorporating such details as might bespeak realism, gives rise to doubt about the reliability of GC’s bare allegation.

102. [102]

     GC’s evidence concerning count 10, the allegation that she put her mouth on the applicant’s penis at his direction, was given in her answers to Q592-598. The allegation was, in effect, led from GC through a sequence of prior questions that in my view deprives her answers of any weight, as follows:

103. [103]

     When the answer to Q591 was in the negative, the following question “Did you use your mouth to touch any part of his body?” was highly suggestive of the answer, which was given but cannot be relied upon in the circumstances. In her few subsequent answers regarding this count, through to A598, there is no detail of the alleged penile oral intercourse. No clear picture of the alleged act emerges. I am left with substantial doubt about GC’s evidence of count 10 by reason of the devaluing effect of the prompting questions, the sparsity of her allegation and the accumulation of my concerns about the minimalism in every aspect of GC’s evidence.

104. [104]

     Count 11 is the subject of GC’s answers to Q390-396 and Q458-474. The effect of those answers is that the applicant forced MC to take her clothes off and, while she was lying naked on her stomach on the bed , the applicant lay on top of her and “He put his penis in [MC’s] private part”, “Yeah, her bottom” (A473-474). When asked, “And how long is this going on for, do you know?” GC gave no audible reply and shook her head.

105. [105]

     MC was interviewed for 33 minutes on 7 June 2018, by the same officer who interviewed GC. MC’s interview took place first. In response to 380 questions she gave about two verbal responses, which were in each case inconsequential. Otherwise she answered questions by nodding or shaking her head or shrugging her shoulders. MC drew some pictures during the interview, as requested. She gave negative responses when asked whether the applicant had ever touched herself or anybody else “where you go to the toilet”. Similarly, MC shook her head to questions whether she had ever touched the applicant “where he goes to the toilet”. By similar gestures she denied that the applicant had ever done anything that hurt her. She gave conflicting responses to questions about whether she was afraid of the applicant.

106. [106]

     MC’s responses in her JIRT interview were, albeit in general terms, to the contrary of her having witnessed any sexual assault of GC by the applicant or having been the victim of any such sexual assault herself. MC’s evidence, coupled with the pervasive unreliability of GC’s entire JIRT interview concerning offences allegedly committed on January 2018, is sufficient to cause me doubt as to the applicant’s guilt of count 11.

107. [107]

     A further indication that GC’s evidence in the JIRT interview of 7 June 2018 is generally unreliable is the variability of her answers about the number of occasions upon which the applicant allegedly committed sexual acts upon herself and/or MC prior to counts 5-11. At A398-402 she asserted that on “four or five” occasions she had seen the applicant force MC to take all her clothes off. At A512-513 she said the applicant had penetrated her vagina with his penis “One hundred times”. She answered that this had commenced when she was 17, in 2018, but then nodded to agree that it had occurred the year before (A514-518). She said that the applicant had first “touched [her] breasts or [her] private part” when she was 16 and that this had happened “a couple of times” (A519-521).

108. [108]

     From that point on in the interview, questions were framed on an assumption that one form or another of sexual contact occurred frequently. Questions were asked in terms of “when it happens”. GC answered the question “How many times has it happened with you and dad on your own?” (Q536) by saying initially, “A couple of times”, then “Ten”. She said it happened with MC present “Four or five” times. When asked a series of 10 questions about what took place the other times “when it happens”, GC gave a series of non-verbal shakes or nods of the head, communicating virtually nil information (Q546-555). After that the questioner did not take GC back to her original assertion of “One hundred times” and consequently no explanation was forthcoming for the wide variances that, unexplained, give rise to obvious doubt about GC’s reliability on this topic – and generally.

109. [109]

     The indicia of GC’s unreliability, in general and in relation to each count, are so extensive and significant that I cannot be satisfied that her evidence of the alleged offences is truthful and accurate. I perceive a reasonable doubt as to the applicant’s guilt of any and all of the seven counts in question. I do not consider that the learned trial judge enjoyed any advantage in assessing GC’s evidence. Nothing about GC’s demeanour, or manner of giving evidence, could remove the doubt that arises from the content of her answers in the interview, as transcribed.

110. [110]

     For greater caution, in the unusual circumstances of GC suffering a moderate intellectual disability and an autism spectrum disorder, I have viewed the video recording of the interview pursuant to the invitation, or acquiescence, of counsel for both parties. Doing so has not indicated to me any basis on which reasonable doubt concerning her evidence could be excluded.

111. [111]

     For the above reasons and in accordance with the principles upon which this Court is required to determine an unreasonable verdict ground in an appeal from a judge sitting alone, it would not be open to me to put aside my doubts concerning GC’s evidence in deference to the conclusions that the learned trial judge arrived at on the same material. With due respect, I am unable to share her Honour’s assessment of the JIRT interview, expressed as follows in the reasons for the decision on the verdicts:

112. [112]

     I respectfully take an entirely opposite view. I do not attribute “guile” to GC. However, I find no element whatever of narrative in her answers. Where 95% of those answers, 309 out of 325, were either non-verbal or of between one and four words, I must respectfully disagree with the adjective “fluid”. I do not accept that GC answered “largely without prompting”. Many of the questions were leading and/or provided alternatives from which GC could choose. Those features are manifest in the transcript. In my view, no “natural progression of events” can be ascribed to GC’s answers. She simply followed the course of questioning set by the interviewer. For reasons elaborated above, both on an assessment of general features of the interview and also taking GC’s answers count by count, I do not have a sense, as the learned trial judge describes, that the answers “could only have been given because GC had experienced the events” or that “GC was speaking from a real memory that she had”.

113. [113]

     From the sexual language used by GC in the interview, from her references to sexual acts and from her expressions of hostility to the applicant, a suspicion arises that there occurred, at some time or times, some form of sexual conduct by the applicant towards GC and/or MC. My conclusion that the appeal should be upheld does not depend upon, or imply, a finding that GC is in all respects a fantasist or a conscious false accuser. However, in counts 5-11 the applicant was charged with specific acts committed on a nominated occasion. There being reasonable doubt about whether he committed the acts particularised in those counts, on the single occasion alleged, he should have been acquitted. It was not open to the learned judge to find the applicant guilty of counts 5-11. The convictions should be quashed and verdicts of acquittal entered.

114. [114]

     BOULTEN J: In 2024, the applicant was convicted after a judge-alone trial of committing various offences against two of his daughters, GC and MC, contrary to ss 61M(1), 61M(2) and 61J(1) of the Crimes Act 1900 (NSW), being offences of indecent assault, aggravated indecent assault and aggravated sexual assault. He was convicted of seven counts and acquitted of four counts. Her Honour Judge N Williams (“the trial judge”), who presided without a jury, sentenced him to an aggregate sentence of seven years and nine months with a non-parole period of four years and three months.

115. [115]

     The applicant brings an application for leave to appeal to this Court (referred to as the “appeal” in this judgment) on the sole ground that his convictions are unreasonable and cannot be supported having regard to the evidence at trial. There is no appeal about the sentence that was imposed.

116. [116]

     The appeal raises issues concerning the role of this Court in fact finding where the sole ground of appeal is for relief pursuant to the first two bases under s 6(1) of the Criminal Appeal Act 1912 (NSW) where many of the trial judge’s findings of fact are contested.

117. [117]

     For the reasons that follow, I consider that leave to appeal should be granted and the appeal should be allowed. The trial judge’s findings of guilt were not reasonably open on the evidence adduced at trial.

118. [118]

     It is helpful to first identify the trial judge’s verdicts as summarised in the following table.

119. [119]

     The 11 counts arose from complaints about 2 separate incidents, namely an incident which allegedly occurred in 2017 when the complainant’s brother, JC, was attending an excursion at the Blue Mountains (counts 1 to 4) and the last time in 2018 that the applicant allegedly sexually abused the complainants (counts 5 to 11).

120. [120]

     First, counts 1 to 4 were said to have been committed against the applicant’s biological daughter, GC, on 14 August 2017. She was 16 years of age at the time.

121. [121]

     Second, counts 5 to 11 related to offending against GC as well as the applicant’s other younger biological daughter, MC, from a day in January 2018 that was unable to be specified. MC was 7 years of age at the time and, while only 1 of the counts was allegedly committed against her (count 11), GC alleged that MC was present when the applicant sexually abused GC (counts 5 to 10).

122. [122]

     I pause to acknowledge that GC has autism spectrum disorder and a moderate intellectual disability. Her total IQ was 48 around the time of the offending, while her “mental age” was equivalent to an 8 or 9-year-old child. [28] Similarly, MC has autism spectrum disorder, but no evidence was led to suggest that she had an intellectual disability.

123. [123]

     Additionally, I note that SP, the complainants’ mother (and the applicant’s now former partner) gave pertinent evidence at trial which became a key focus of the applicant’s submissions in this appeal.

124. [124]

     The proceedings have a long history with the following salient features.

Previous trial and appeals

1. [125]

   The applicant was charged in October 2018. In 2019, he pleaded not guilty to these charges (and other charges) and Traill DCJ made orders appointing a witness intermediary to assist the complainants in giving evidence. Subsequently, the applicant made an application to Shead SC DCJ objecting to the appointment of a witness intermediary on the basis that the person selected was known to the complainants. While Shead SC DCJ declined to revoke the appointment, the applicant was successful on appeal to this Court pursuant to s 5F of the Criminal Appeal Act, which resulted in the witness intermediary appointment being revoked.

2. [126]

   In 2021, the applicant stood trial before Norrish KC DCJ and a jury. At the trial, GC was found not to be competent to give sworn or affirmed evidence. The applicant was convicted of 11 of the counts, acquitted of 5 counts and the jury was unable to agree on its verdict with respect to 2 counts. The applicant appealed to this Court against the convictions. His appeal was upheld on the ground that s 13(5) of the Evidence Act had not been complied with and, consequently, the proceedings had miscarried. Again, his appeal was allowed, the convictions were quashed and a re-trial was ordered.

The trial the subject of this appeal

1. [127]

   The instant trial was the re-trial that had been ordered in SC v R [2023] NSWCCA 111.

2. [128]

   GC was ruled not competent to give sworn or affirmed evidence, and on this occasion the words contained in s 13(5) were read out to her. No issue of competency arose with respect to MC. However, complexities emerged as her evidence was given almost exclusively by non-verbal means, including pointing to physical cards with words written on them, and by making head gestures to signal her agreement or disagreement to questions. It is noted that she is selectively mute with people who are unfamiliar to her.

3. [129]

   Both GC’s and MC’s evidence-in-chief comprised of pre-recorded JIRT interviews from June and July 2018, which were mostly supplemented by cross-examination at trial.

4. [130]

   SP gave evidence about the complainants’ reports to her of sexual abuse. Ms Elizabeth Hare (“Ms Hare”), SP’s friend, also received complaints of sexual abuse from both GC and MC.

5. [131]

   Other witnesses who gave evidence at the jury trial in 2021 were not re-called but their previous testimony was tendered as part of Exhibit 18.

6. [132]

   The applicant also gave evidence in the 2021 trial but not in 2024 trial. The Crown tendered an audio tape recording of his previous evidence as Exhibit 15.

The procedural circumstances of this appeal

1. [133]

   The applicant needs leave to appeal because his notice of appeal was filed outside the applicable statutory period, [29] and the single ground of appeal involves a question of mixed law and fact. [30] Given the issues raised by the appeal, leave should be granted.

2. [134]

   The legal principles that apply to this sole ground of appeal are now well settled. [31] In M, the High Court (Mason CJ, Deane, Dawson and Toohey JJ) stated:

3. [135]

   More recently, the High Court in Pell provided some further guidance with respect to the principles enunciated in M in the following terms:

4. [136]

   When determining an unreasonable verdict ground, these principles apply equally to trials conducted by judge alone. [34] In Dansie, the High Court (Gageler, Keane, Gordon, Steward and Gleeson JJ) summarised the position in the following way:

5. [137]

   Also in Pell, the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) relevantly held:

6. [138]

   The passage in Pell relates to jury verdicts where the appeal court can assume that the jury would have found the complainant to be a credible and reliable witness. But in this appeal, the circumstances are different. The trial judge made adverse credit findings about SP’s evidence and, to a lesser extent, GC’s evidence. [37] Her Honour also disregarded MC’s evidence which was entirely favourable to the applicant. These findings were far from agreed in the District Court and they remain contested in this Court.

7. [139]

   While an appeal court generally proceeds on an assumption that a complainant’s evidence was credible and reliable, nothing operates to prohibit the court from setting aside a verdict because of concerns it has over the credibility and reliability of the evidence. The High Court (per Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) has since confirmed this in ZT, where it was stated that an appeal court can still:

8. [140]

   In other words, there is no obligation as a result of Pell that this Court must proceed on the basis that the complainant’s evidence must be accepted – especially where, as is the case here, their testimony is and was contested. [39]

9. [141]

   Where there is an active challenge to a witness’s credibility, this Court is not bound by the trial judge’s findings and may make its own independent assessment of the evidence so long as this Court does not disregard the significance of the trial judge having the primary responsibility of determining guilt, and giving allowance for the trial judge’s advantage of having seen and heard the witnesses give evidence. [40]

10. [142]

    So, even assuming the complainant’s evidence is credible and reliable, the appeal court must nevertheless examine the evidence and consider whether the record “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.” [41]

11. [143]

    Consistently with the applicable principles, the role of the appeal court is not to duplicate the function performed by the tribunal of fact in assessing the credibility of a witness. The question the Court must ask itself is whether, having made its own independent assessment of the whole of the evidence, it is satisfied that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. [42]

12. [144]

    On appeal, most of the evidence remains highly contested. Consequently, many of the trial judge’s findings are not determinative. [43] Indeed, her Honour’s factual findings, especially concerning her findings about the witnesses’ credibility, ought not fetter my own task of assessing the evidence.

13. [145]

    The purpose of this section is not to set out the entirety of the evidence but rather to identify the central evidence. I will start with SP’s evidence because the potential impact that SP had on the shape of the complainants’ representations is very important to any assessment about the reliability of the complainants’ evidence.

SP’s evidence

1. [146]

   SP gave evidence that the complainants (and their brother, JC) began using sexualised language in or around January 2017, when they started referring to genitalia and describing acts of fellatio at home and in public. [44] The fact that both of the complainants used such language does not necessarily point towards them having been subjected to sexual abuse, let alone at the hands of the applicant. This is especially so given that JC also used this type of language, and it has never been suggested that he was present when his siblings were alleged to have been sexually abused or that he himself was sexually abused.

2. [147]

   The first evidence of complaint from either GC or MC was in or around April 2017 when MC approached SP and disclosed that the applicant “was sucking GC’s boobs”. [45] SP confronted the applicant, but he denied it, [46] as too did GC. [47] MC then retracted her “disclosure” about two days after making it. [48] This complaint occurred before any of the charged acts are alleged to have occurred. During the 2021 trial, SP gave evidence of MC’s disclosure but made no mention of her retraction. SP was cross-examined about this omission in the instant trial and eventually she accepted that she forgot to include that detail in her 2021 evidence. [49]

3. [148]

   In January 2018, SP claimed that she discovered online searches for incestuous activity on the applicant’s mobile phone. She took photographs of the searches, which were then admitted into evidence and marked as Exhibits 13 and A at trial. [50] The Crown sought to rely upon this evidence as tendency evidence, which is addressed further below.

4. [149]

   In early 2018, SP alleged that the applicant had committed acts of domestic violence against her. On 10 April 2018, the applicant was arrested and charged with a number of domestic violence offences against SP. He did not return to his family home from that point onwards. By the time the instant trial took place, the applicant had been cleared of these domestic violence offences.

5. [150]

   On 16 April 2018, SP took the applicant’s mobile phone to Glebe Police Station and urged the police to examine it for signs of child abuse material but, according to SP, the detective concluded that there was no illegal material in the phone’s search history and then showed no interest in keeping the phone. At that point, SP made no mention to the police that MC had complained to her about the applicant sexually dealing with GC some time prior to the applicant’s arrest on the domestic violence charges.

6. [151]

   Approximately a week and a half later, SP was at home with her children when one of her sons, JC, approached her and said, the applicant “sucked [GC’s] boobs.” [51] This was the same type of act that MC had told SP about previously. Rather than asking JC questions about this claim, SP told him to stop talking. When questioned at the instant trial about her approach to JC’s disclosure, SP explained that she had been worried that the detective would not take her seriously if she went to the police with that information. [52] SP then messaged her friend, Ms Hare, and invited her over to the family home, as she believed it would be preferable for an “impartial” person to speak to the children. [53]

7. [152]

   On 28 April 2018, Ms Hare attended the family home after receiving SP’s invitation. While I address the evidence concerning this visit at [232] of these reasons, it is relevant to note that both GC and MC complained to Ms Hare about the applicant having engaged in sexual offending against them.

8. [153]

   On 30 April 2018, SP and Ms Hare went to Glebe Police Station to report GC’s complaints of sexual abuse for the first time. SP told the detective that she wanted GC to make a statement. In response, and based upon SP’s evidence at the instant trial, the detective said: [54]

9. [154]

   Following this, SP contacted Glebe Police Station but they never got back to her. Approximately two days later, SP said that GC approached her at home and complained that the applicant had “humped” MC. [55] GC also said, amongst other things, “Dad sexed [MC]” and “Dad was naked on his bed, and [MC] was naked.” MC also told SP that the applicant had “hurt [her] vagina.” [56]

10. [155]

    SP messaged Ms Hare in light of GC’s and MC’s further disclosures, and they both attended Glebe Police Station on 4 May 2018. They were advised that the detectives would contact SP when they were ready to interview MC. [57]

11. [156]

    On 5 May 2018, SP attended an appointment with Ms Adrienne Chartres from the Department of Family and Community Services. At the appointment, SP told Ms Chartres about GC’s and MC’s complaints. She did this because she was concerned that the detectives were not taking the matter seriously. [58] This is relevant because, with that information, Ms Chartres contacted Glebe Police Station and she was told that the detectives were working hard behind the scenes. [59]

12. [157]

    On 9 May 2018, Detective Senior Constable Clarke contacted SP and scheduled the complainants’ JIRT interviews for 7 June 2018. [60] On that date, both SP and Ms Hare took the complainants to the Child Abuse Unit for those interviews to be conducted. [61]

13. [158]

    On 5 May, 13 June, 28 August and 31 August 2018, SP recorded videos on her mobile phone when MC reported various sexual acts alleged to have been perpetrated by the applicant on her and GC. These four tapes were tendered into evidence as Exhibit 8. The sexual acts that MC described on these tapes were identified as tendency and context evidence. It is noted that SP decided to record MC, at least on the first occasion, because she “wasn’t very trusting of Glebe Police”. [62]

14. [159]

    In relation to the first recording on 5 May 2018, MC disclosed sexual acts said to have been committed against both her and GC. She made the “disclosures” by thrusting her hips and making various noises. JC was also present. For example, MC described the following acts in the recording: [63]

15. [160]

    In this same recording, MC also described (and demonstrated) performing fellatio on the applicant. [64]

16. [161]

    Second, on 13 June 2018, MC disclosed further offending after SP asked a series of questions. MC complained that the applicant had “hurt [her] vagina”. From the record it is apparent that SP essentially interrogated MC about how the applicant had hurt her and, while MC said it was because he used a toy to assault her, SP continued to put questions to MC until eventually MC said it was his “dick” that hurt her. [65]

17. [162]

    Third, on 28 August 2018, MC disclosed that the applicant kissed her and GC, and that the applicant hurt her “vagina”. The record shows that MC described these acts in response to SP saying “go”. [66]

18. [163]

    Fourth, on 31 August 2018, MC recorded herself (on SP’s mobile phone) saying: [67]

19. [164]

    On 9 June 2018, two days after the complainants attended their JIRT interviews, GC “blurted out” a further complaint. This complaint ultimately led to GC attending a second JIRT interview, which underpinned counts 1 to 4 on the indictment. Of the disclosure, SP said the following at trial: [68]

20. [165]

    This evidence was inconsistent with SP’s written statement dated 12 June 2018 (MFI 15), which omitted any reference to GC and the applicant having had sex. The relevant part of SP’s statement provided the following: [69]

21. [166]

    At the instant trial, SP was cross-examined about the inconsistency in her evidence and her understanding that sexual intercourse had since been alleged by police. The following questions illustrate this: [70]

22. [167]

    It is relevant to note that sexual intercourse, between the applicant and GC, was charged as count 3 on the indictment.

23. [168]

    On 18 July 2018, SP sent Glebe Police the following email (together with an attachment of a drawing): [71]

24. [169]

    That drawing, which consisted of two bodies with lines connecting different body parts, was a source of contention at the instant trial. The applicant suggested through questioning that SP played some role in its creation, which was not initially apparent from her examination-in-chief, but was later accepted in cross-examination. Various phrases were written both underneath the drawing and on a separate page, including “Dad sex me”, “Dad touching my boob”, “Dad touching my vagina” and “Dad touching my mouth”. [72]

25. [170]

    SP’s testimony explained much about how both complainants came to give their accounts to the police which, in turn, became the complainants’ evidence-in-chief. SP’s evidence also shed significant light on the complaint and tendency evidence at trial. She was unquestionably an important witness.

26. [171]

    The trial judge made considerable adverse findings about SP’s evidence. Her Honour did not consider SP to be a witness of truth and described her as being evasive and disingenuous. [73] Her Honour also found that SP did not appear impartial or objective and showed considerable animus towards the applicant. [74] On any view of it, her Honour’s conclusions about the inconsistencies in, and implausibility of, SP’s evidence were instrumental in leading her Honour to hold a reasonable doubt about counts 1 to 4 which related to the “Blue Mountains Excursion incident”.

27. [172]

    At the instant trial, the Crown supported SP’s reliability. On this appeal, the Crown urged the Court to reject the trial judge’s findings about SP and identified different parts of her evidence which were argued to support a favourable assessment of credit.

28. [173]

    Meanwhile, the applicant argued that SP’s role in the complaint evidence was more significant than the trial judge perceived it. The applicant contended that the issues relating to SP’s evidence not only affected the assessment of her credibility in relation to counts 1 to 4, but they also extended to at least a suspicion that SP was involved in the generation of the complaints underpinning all 11 counts on indictment as well as the uncharged acts which constituted tendency and context evidence.

29. [174]

    There is a very real possibility that SP acted out of hostility towards the applicant in shaping the form of her daughters’ complaints, not only to police but also to Ms Hare when she visited the family home on 28 April 2018.

30. [175]

    Ultimately, I do not accept the Crown’s submission that SP’s evidence should be viewed as credible or reliable. The trial judge held a substantial advantage in viewing SP’s evidence. Her Honour saw the manner in which SP’s evidence changed over the course of the trial. Her Honour’s credit findings about SP’s evidence were well open.

31. [176]

    There was good reason to doubt SP’s reliability. Cross-examination exposed discrepancies and inconsistencies in her evidence on a number of occasions. For example, SP maintained that she was not present when MC recorded herself making a significant disclosure about the applicant on 31 August 2018. Contrary to her examination-in-chief, counsel for the applicant in cross-examination directed SP’s attention to the fact that her hair was visible in the recording. SP attempted to justify her evidence by saying that she was physically present but not mentally present. [75] That explanation was plainly unconvincing and self-justificatory.

32. [177]

    Clearly SP played an active role in the generation of the complaint evidence. Not only did she create an environment for that to occur by inviting Ms Hare over to the family home, but there is also evidence she pressured MC. For example, while recording MC making complaints on 13 June 2018, SP said: [76]

33. [178]

    In cross-examination, SP said about this exchange that it was late in the evening and MC needed to sleep. Regardless of the purported justification, I find that an unsatisfactory response.

34. [179]

    My analysis of SP’s evidence leads me to the conclusion that there is a real risk that SP was willing to put pressure on MC to make disclosures, further calling into question the credibility and reliability of her evidence. Through SP’s encouragement and signalling, both of the complainants may have either consciously or subconsciously made representations about the applicant that were either false or inaccurate. On the face of the evidence, there is a real risk that the complainants’ allegations were concocted or contaminated by their mother.

35. [180]

    Taking all of this into account, it is difficult to comprehend how the unsatisfactory state of SP’s evidence did not have wider import than the trial judge’s assessment of the evidence concerning counts 1 to 4. While her Honour held concerns about the credibility and reliability of SP’s evidence, she isolated those concerns to the period after the complainants’ first JIRT interviews on 7 June 2018.

36. [181]

    In my assessment, the inadequacies of SP’s evidence cannot be isolated to the period following those initial JIRT interviews. The evidence preceding the complainants’ participation in their first JIRT interviews raises similar concerns about SP’s reliability. Even though the trial judge made adverse findings about SP’s evidence concerning the period before those first JIRT interviews, she nonetheless proceeded to accept the reliability of GC’s account on 7 June 2018. For example, her Honour expressed concerns about SP’s motive behind the four recordings of MC in 2018, which included a recording on 5 May which preceded the complainants’ first JIRT interviews. [77] To this end, I accept the applicant’s submission on appeal that: [78]

37. [182]

    There is also evidence that SP took photographs of the applicant’s mobile phone after she supposedly discovered incestuous searches in January 2018. In her evidence, no one else could have possibly conducted those searches. She robustly asserted that, other than the applicant himself, only she had access to the device. However, the cross-examination exposed that others within the family had access to the device and knowledge of the password, and there were demonstrable instances where the children used the device even when the applicant was not present. [79] In these circumstances, the trial judge was unable to conclude that the applicant authored the relevant searches, a finding which was well open to her. I make the same finding. [80]

38. [183]

    Additionally, both of the complainants’ JIRT interviews on 7 June 2018 give rise to concern. In particular, they both claimed to the interviewer that they did not have a dad; a peculiar piece of evidence which has the appearance of a rehearsed answer. I suspect that there had been open discussion at home about the applicant which had led both of the complainants to disown him in this way. Although this aspect of the evidence is far from determinative, it contributes to my concerns about SP’s potential shaping of the complainants’ narratives and, therefore, the risk of possible concoction or contamination by SP. [81]

39. [184]

    Now, especially having regard to the trial judge’s advantage in observing SP at the instant trial, I have to be particularly careful about concluding that the complainants’ evidence was presented without any influence from SP. In my view there is a real risk that SP did ultimately taint the complainants by influencing what they said to Ms Hare and then to the police.

40. [185]

    Before considering the other evidence, I will briefly address the Crown’s argument that the applicant did not comply with the rule in Browne v Dunn. [82] In particular, the applicant submitted there was a reasonable possibility that SP coached the complainants to make allegations. The Crown argued that such a proposition was not put positively to SP in cross-examination.

41. [186]

    This raises an issue about whether the applicant breached the rule in Browne v Dunn – described by the High Court in the following way (in MWJ v The Queen [2005] HCA 74; (2005) ALJR 329):

42. [187]

    As a rule of procedural fairness, it requires notice to be given to a witness in cross-examination of any intention to impeach the credibility of their account, so that the witness then has an opportunity to respond. [83]

43. [188]

    Importantly though, specific questions need not always be put in cross-examination to ensure compliance with the rule in Browne v Dunn. This has been confirmed in numerous authorities, as reflected by the following remarks of Gleeson CJ in R v Birks (1990) 19 NSWLR 677:

44. [189]

    While the applicant accepts that SP was not bluntly challenged by questions positively asserting that she had coached the complainants, it was submitted that the cross-examination was clearly designed to test SP about her interactions with the complainants. In particular, the applicant submitted that neither the Crown nor the trial judge were under any misapprehension as to the significance of SP’s evidence. [85]

45. [190]

    This submission ought to be accepted. There is little doubt that the applicant’s cross-examination was designed to raise concerns about SP’s role in potentially shaping GC’s and MC’s complaints by inappropriately influencing or pressuring them to allege sexual misconduct by the applicant. There was no unfairness of a kind that the rule in Browne v Dunn was designed to guard against.

46. [191]

    I find that there is a real likelihood that SP encouraged both GC and MC to make allegations of sexual misconduct against the applicant; that GC and MC both knew that their mother was likely to look favourably upon any such allegation and that those allegations, if made to the police, would help their mother in the context of her dispute with the now absent applicant; and that SP gave positive re-enforcement to the two complainants in the process of making allegations against the applicant.

47. [192]

    It is also clear that both complainants were aware of the type of allegations that each of them were making about the applicant. For instance, according to Ms Hare, both of the complainants were present when each of them made disclosures to her on 28 April 2018. Knowing that they were both making allegations against the applicant would have been likely to re-enforce or “cement” each complainant’s position in their own thinking.

48. [193]

    Whilst I am not able to positively determine that SP deliberately crafted false allegations for her daughters to make against the applicant, I have serious concerns that through SP’s encouragement and signalling, both of the complainants may well have consciously or subconsciously made representations about the applicant that were either false or inaccurate.

MC’s evidence

1. [194]

   MC’s evidence mostly comprised her JIRT interview on 7 June 2018 in which she denied that the applicant had ever touched her or her sisters in a sexual way. As it will become apparent, her evidence contradicted GC’s allegations. MC denied that anyone had ever touched her inappropriately and she demonstrated some understanding of the different body parts. While her denials were unwavering, some of her responses were not accurate. For example, she denied that she had ever disclosed sexual abuse to Ms Hare. [86]

2. [195]

   In addition to the recordings of MC from SP’s mobile phone which are addressed above, MC’s evidence from the jury trial in 2021 was played at the instant trial. Parts of the cross-examination demonstrate how MC’s evidence was damaging to the prosecution case, such as the questions which follow: [87]

3. [196]

   As noted earlier, her Honour essentially disregarded the video recordings of MC on SP’s mobile phone (Exhibit 8) by finding: [88]

4. [197]

   Again, giving the trial judge due allowance for her advantage in seeing and hearing SP’s evidence unfold before her, that finding was reasonably open to her. I have to make my own assessment of the effect of this evidence in the light of the totality of the evidence, though I share her Honour’s concerns about SP’s role in the creation of the video recordings and how that may have influenced MC to say what she said.

5. [198]

   In assessing counts 5 to 11, her Honour did not engage with MC’s evidence in any meaningful way. MC’s evidence was at odds with GC’s evidence, yet no attempt was made to reconcile the two competing accounts.

6. [199]

   The Crown argued that MC’s evidence was not reliable and directed the Court’s attention to different parts of her JIRT interview to show inconsistencies and other discrepancies. However, the Crown did not seek to impeach MC in the course of examination. The Crown attempted to deconstruct her evidence retrospectively by way of submissions, suggesting that MC merely showed some lack of application.

7. [200]

   On the other hand, the applicant identified MC’s evidence as being significant. She maintained that she was never sexually assaulted and nor was GC. Further, the applicant argued that there were key features of MC’s evidence that made it more readily acceptable than GC’s evidence. This included that MC’s disabilities were concerned with expression, not mental function. [89] Additionally, MC had the ability to give sworn evidence, while GC was not able to do so. [90]

8. [201]

   Like her Honour, I am not prepared to afford much, if any, weight to the video recordings of MC on SP’s mobile phone.

9. [202]

   However, MC’s evidence in the proceedings cannot simply be put to the side. She was unshaken in her evidence, which exculpated the applicant and was not tested by the Crown. She also denied seeing the applicant sexually deal with GC – even when subjected to quite pointed, closed questions posed by the police officer in the JIRT interview.

10. [203]

    Additionally, while the Crown contended that MC showed some lack of engagement when she responded to questions, no evidence was led to suggest that MC had an intellectual disability which would affect her ability to understand certain questions. Unlike GC, she was competent to give sworn or affirmed evidence at the trial and she did.

11. [204]

    Whilst I am not necessarily satisfied that MC’s evidence is completely accurate to the extent that she never saw the applicant sexually abuse GC and that the applicant never sexually abused her, it does give rise to concerns about the Crown’s case on all 11 counts (especially on count 11 which related to MC personally). This has influenced my ultimate finding on whether I have a reasonable doubt about the applicant’s guilt.

GC’s evidence

1. [205]

   Like MC’s evidence, GC’s evidence was mostly comprised of her JIRT interviews dated 7 June and 20 July 2018.

2. [206]

   Before GC’s evidence-in-chief commenced, the trial judge asked her a series of questions to ascertain whether she understood that she was under an obligation to give truthful evidence. In the end, given the combination of GC’s answers throughout that process, [91] her Honour formed a view that GC did not understand the obligation and so it followed that pursuant to s 13(3) of the Evidence Act she was incapable of giving sworn evidence. The following exchange between the trial judge and GC informed her Honour’s ultimate decision in this respect: [92]

3. [207]

   GC was nevertheless competent to give unsworn evidence – and as noted earlier, the process outlined by s 13(5) of the Evidence Act was on this occasion followed. [93]

4. [208]

   On 7 June 2018, in her first JIRT interview, GC described the conduct alleged in counts 5 to 11 on the indictment, which she said occurred “last school holidays” in the applicant’s bedroom. MC was also said to be present. GC said the applicant put his penis inside of her 100 times. [94] The disclosures that were made throughout the JIRT interview were also relied upon as tendency and context evidence as well as the primary evidence of the acts charged on the indictment.

5. [209]

   During cross-examination, the applicant attempted to establish that SP played some role in the generation of GC’s “disclosures”. For example, the following questions were put to GC: [95]

6. [210]

   As noted earlier, on 20 July 2018 the second JIRT interview took place after GC made a complaint to SP on 9 June 2018. In that second JIRT interview, GC described the conduct alleged in counts 1 to 4 of the indictment.

7. [211]

   However, GC did not immediately disclose any of that conduct at the start of the second JIRT interview. When asked, she could not remember key details, such as even telling SP about what happened in the shower when JC had left for the Blue Mountains and while her other siblings were at home. [96] There was also confusion as to whether the acts occurred in the bedroom or the bathroom.

8. [212]

   As the interview progressed, questions of an increasingly suggestive nature were put to GC. For example, she was asked: [97]

9. [213]

   Only then did GC start to outline the alleged conduct giving rise to counts 1 to 4 on the indictment. I find that the suggestive form of that question reduced the value of GC’s subsequent answers.

10. [214]

    GC was also questioned in relation to the drawing tendered as Exhibit 7. She confirmed that she drew the picture and denied that anyone assisted her with writing the words. [98] Yet when asked, she could not spell “mouth” or “vagina”. She then accepted that SP had helped her with those words. [99] She gave the drawing to JC because SP wanted to see it. [100] JC confirmed in his evidence that GC gave him the drawing and told him, “Dad sexed me”. However, he testified that he never saw the applicant ever do anything like that. [101]

11. [215]

    In this second JIRT interview, GC also disclosed the fact that SP had told her what to say to the interviewer. [102]

12. [216]

    In short, the trial judge accepted GC’s first JIRT interview (relevant to counts 5 to 11 inclusive) but was not convinced beyond reasonable doubt about the allegations made in GC’s second JIRT interview (relevant to counts 1 to 4).

13. [217]

    Her Honour’s acceptance of GC’s first JIRT interview appeared to be the primary and potentially the only basis for her finding of guilt on counts 5 to 11 of the indictment. This is reflected by the following remarks delivered as part of her judgment: [103]

14. [218]

    From these remarks, it is apparent that the trial judge, in effect, isolated SP’s potential infection of the evidence to GC’s second JIRT interview only.

15. [219]

    The Crown’s submissions supported the reliability of GC’s account in her first JIRT interview in two ways: first, by arguing that GC’s evidence represented a clear and coherent account of the alleged conduct underpinning counts 5 to 11; and second, by arguing that her account was inconsistent with the proposition that she had been coached. On appeal, the Crown submitted this provided ample foundation for the trial judge’s conclusion at the instant trial that: [104]

16. [220]

    To the contrary, the applicant argued in written submissions that if the trial judge had concerns about SP’s reliability infecting GC’s second JIRT interview, then the reasonable possibility that she infected all of the complaints was squarely raised and could not be excluded on the entirety of the evidence. This was supplemented by a further argument that if SP had an agenda (which her Honour found she did), then there was no reason to conclude the agenda only manifested after GC’s first JIRT interview had occurred.

17. [221]

    I am not satisfied that GC’s evidence (relating to counts 5 to 11) can be so easily accepted as reliable as the Crown has outlined in its arguments. Instead, I share the same concerns about the reliability of GC’s evidence as the applicant advanced in his submissions.

18. [222]

    Unlike the finding that the trial judge made about SP, I cannot isolate my concerns about SP’s influence on the complainants to GC’s second JIRT interview alone. The inconsistencies in, and inadequacies of, SP’s evidence affect both complainants’ evidence. Most of the worrying features of SP’s involvement in the complainants’ accounts are equally applicable to the representations they made, first to JC, then Ms Hare, and finally, the police, which ultimately led to the initial JIRT interviews and counts 5 to 11 on the indictment.

19. [223]

    SP’s animus towards the applicant was a common thread throughout the whole of the evidence. Her active role in the generation of complaint evidence was likely substantially motivated by her animus stemming from the domestic violence allegations she made against him.

20. [224]

    There is also other evidence that SP was taking active steps to generate evidence, suggesting that the applicant had a sexual interest in, and sexual connection with, his daughters prior to the initial JIRT interviews. I have identified this evidence in these reasons already, such as SP photographing what she claimed to be the applicant’s search history in January 2018 and her recording of MC making disclosures on 5 May 2018.

21. [225]

    SP’s invitation to Ms Hare on 28 April 2018 to visit the family home to receive complaint evidence also suggests that SP was very active at that time in constructing a case against the applicant. This adds to my concerns that SP was by then contaminating the process of dealing with the complainants’ revelations.

22. [226]

    My reading of the trial record leads me to conclude that it was not open to the trial judge to find that SP had only infected GC’s second JIRT interview but not GC’s first JIRT interview. I have real concerns that SP contaminated the entire process of dealing with the complainants. I therefore have difficulty accepting the reliability of all of the complainants’ accounts.

23. [227]

    Further, merely from my reading of the trial record, I do not share her Honour’s confidence in GC’s answers in her first JIRT interview. GC clearly struggled to grapple with some very basic concepts throughout the interview, reflected by the following questioning: [105]

24. [228]

    As the JIRT interview progressed, some important questions posed to her were suggestive and, in any event, GC’s responses to most questions were unsurprisingly unsophisticated. I did not find her account to read as compelling, let alone visceral.

25. [229]

    By way of another example, this small extract from her first JIRT interview was the entirety of her account concerning count 7 on the indictment:

26. [230]

    Nor am I prepared to make allowances for GC’s intellectual disability in my assessment of her answers as her Honour did, given the paucity of evidence about the nature and features of GC’s functioning in the light of her disability.

27. [231]

    There was very limited evidence about GC’s disability. What is clear is that she has a very low IQ and she was found to be incapable of giving sworn or affirmed testimony. There was no expert evidence about the level of her actual functioning and certainly no evidence about the state of her moral development.

The complaints to Ms Hare

1. [232]

   As noted, Ms Hare was invited to the applicant’s family home after receiving an invitation from SP. While SP wanted somebody “impartial” to speak to the children in the light of JC’s earlier disclosure, Ms Hare maintained that she was not aware of any complaints prior to her visit on 28 April 2018. [106]

2. [233]

   Ms Hare gave a detailed account of her time at the applicant’s family home that day. Shortly after she arrived, JC approached her and disclosed the fact that the applicant and GC had sex together. [107] GC confirmed this occurred, and then repeated to Ms Hare that her and the applicant had bathed together. [108]

3. [234]

   This ultimately led to Ms Hare, GC and MC having a discussion in MC’s bedroom. SP was not present, and nor were any of the other children. MC described performing fellatio on the applicant. [109] Ms Hare saw GC pulling stockings out of a bedside table, and GC then said that the applicant made her wear stockings during sex. [110] GC became “frantic” and pulled out at least 12 pairs of stockings. [111] Ms Hare collected the stockings, which were later provided to the police when she and SP made an official disclosure at Glebe Police Station on 30 April 2018. Some of the stockings had their feet cut off and others had holes in the crutch area. [112]

4. [235]

   When cross-examined, Ms Hare clarified that MC’s description of performing fellatio on the applicant occurred after, not before, GC pulled stockings out of the bedside table. Additionally, she accepted that MC provided that description of fellatio only after GC had essentially said the same thing moments beforehand. [113]

5. [236]

   Subsequent to their discussion in MC’s bedroom, Ms Hare informed SP about the complainants’ revelations. Ms Hare did not give SP all of the details because she did not want to put SP into a “frantic state”. [114]

6. [237]

   Ms Hare addressed a conversation she had with SP, that same day, in a statement dated 8 June 2020 (MFI 13). For reasons that will become apparent, it is relevant to note the following paragraph which was referred to in the course of examination at trial: [115]

7. [238]

   Importantly, Ms Hare confirmed this part of her statement to be accurate at the instant trial. [116]

8. [239]

   SP also gave evidence at the instant trial about this conversation, yet it conflicted with Ms Hare’s account. The following was said by SP in her examination-in-chief: [117]

9. [240]

   Between the two accounts, there are plain inconsistencies as to the said conduct and identity of the complainant. Ms Hare had been told that MC said to SP that MC had sucked the applicant’s penis, whereas SP claimed that MC told her that the applicant had sucked and kissed GC’s boobs but that GC had denied it.

10. [241]

    But for some inconsistencies in her evidence, the trial judge found that Ms Hare was generally an honest witness. [118]

11. [242]

    However, her Honour found that Ms Hare was occasionally manipulated by SP. For instance, despite Ms Hare believing that the purpose of her visit to the applicant’s home on 28 April 2018 was for an ordinary lunchtime gathering, the trial judge considered that SP held a “deeper motivation for that invitation.” [119] In particular, her Honour found that SP had invited Ms Hare over so that she could be a “witness of first complaint.” [120]

12. [243]

    The Crown relied upon the acts that the complainants described to Ms Hare as tendency evidence.

13. [244]

    Against that, the applicant’s argument was not so concerned with Ms Hare’s credibility but more so with how SP’s possible influence had affected the reliability of her evidence. The applicant outlined in written submissions:

14. [245]

    Based upon my own independent assessment of the evidence, it was reasonably open to her Honour to make the finding that SP manipulated Ms Hare’s visit to the family house to facilitate the making of complaints against the applicant. I share her Honour’s view, adding to my concerns that SP may have contaminated the complaints.

Applicant’s evidence

1. [246]

   The applicant gave evidence in the 2021 trial, and an audio recording of his testimony was tendered and played in the instant trial. He was assisted by a witness intermediary when he gave that evidence.

2. [247]

   He denied committing any sexual misconduct against his daughters. While his account was tested by cross-examination, his denial of any wrongdoing was unmoved.

3. [248]

   He also denied entering the search terms into his phone which SP photographed in January 2018. He accepted that he sometimes wore “pantyhose” to stay warm when he exercised in winter. [121]

4. [249]

   On appeal, the parties made few submissions regarding the applicant’s evidence. It is nevertheless relevant to note that the trial judge, after giving herself a Liberato direction, assessed and rejected the applicant’s denial of the offending. In particular, her Honour said in her judgment: [122]

5. [250]

   The applicant’s evidence was unshaken. For the purpose of considering whether the totality of the evidence was capable of reasonably establishing that he was guilty of the relevant counts, it is appropriate to put his evidence to one side and to consider the remainder of the evidence. That is what I have done, though noting that he never admitted any of the charged conduct, or the contended tendency evidence or the acts that are relied upon as context evidence.

Other independent aspects of the evidence

1. [251]

   On 19 July 2018, GC and MC were both examined by Dr Paul Hotton at Randwick Children’s Hospital. While Dr Hotton did not identify any relevant injuries to either of the complainants’ genitalia or anal areas, [123] he noted that: [124]

2. [252]

   DNA testing was undertaken by Dr Lisa Wedervang on samples from the stockings that Ms Hare and SP provided to Glebe Police. Dr Wedervang’s evidence from the first trial was admitted into evidence for the instant trial, marked as part of Exhibit 18.

3. [253]

   The DNA recovered from the stockings ultimately matched the same profile as the applicant. [125] This was partly explained by his evidence that he wore stockings for exercise and they were kept in his wardrobe which he regularly accessed. [126] While it was possible that DNA from one of the samples came from a female, Dr Wedervang accepted this may have been a result of SP or Ms Hare coming into contact with the stockings when they were organising them for Glebe Police. [127]

4. [254]

   DNA profiles matching the complainants were not located on any samples. Nor was any semen or other bodily fluid.

5. [255]

   The trial judge made reference to the independent evidence in her judgment, finding that the evidence of the applicant’s possession of the “pantyhose” was rendered largely neutral given that no DNA consistent with the profile of GC was found on examination. [128] Her Honour could not exclude the possibility of the applicant’s DNA being found on the tights being explained by the fact they were stored in his bedside drawers. [129]

6. [256]

   On appeal, the applicant made a submission that the forensic evidence operated slightly in his own favour. He further submitted that the evidence was not supportive of the Crown’s case and it was conducive to overall doubt. [130]

7. [257]

   The objective evidence is largely neutral. It does not advance the Crown’s case. The DNA evidence supporting the allegation that the applicant had contact with the “pantyhose” and tights was explicable by the fact that the items were kept in his bedside drawers. It nonetheless provided some support for GC’s allegations that the applicant made her wear them when he sexually assaulted her.

8. [258]

   But I accept that the absence of identifiable DNA from GC was not supportive of the Crown’s case, especially as GC claimed that such incidents occurred on multiple occasions. If anything, the absence of evidence that GC’s DNA was located on the tights casts doubt upon GC’s evidence that the applicant had penile and vaginal intercourse with her 100 times. [131] If that was true, unless the stockings had been subsequently laundered, it would have been likely that at least some of GC’s DNA would have been identified as part of the forensic investigations. The same can be said of Dr Hotton’s examination of GC; if the applicant had penile and vaginal intercourse with her 100 times, then I would expect there to have been at least some sign of physical injury. This was accepted by Dr Hotton in cross-examination: [132]

9. [259]

   Although this does not necessarily exculpate the applicant, it supports the view that the objective evidence at trial did not advance the Crown’s case.

The context and tendency evidence

1. [260]

   It is necessary, in assessing all of the evidence, to consider the context and tendency evidence relied upon by the Crown.

2. [261]

   The Crown’s case included context evidence, which consisted of other (uncharged) acts of sexual abuse allegedly committed by the applicant against the complainants.

3. [262]

   The admissibility of the context evidence was not in issue. It comprised acts that were described by MC in the 4 videos that were filmed on SP’s mobile phone and by GC in her two JIRT interviews – 21 acts in total.

4. [263]

   Based upon my own assessment, the probative force of the context evidence is also tainted by the possibility that SP infected the complainants’ disclosures – both in MC’s recorded complaints and in GC’s two JIRT interviews.

5. [264]

   My concerns that this evidence was possibly contaminated by SP’s conduct towards the complainants means that any support that this body of evidence might be thought to give to the evidence about the charged acts is very limited.

6. [265]

   Focussing on the tendency evidence, the Crown served a “tendency notice” (“the Notice”) on the applicant prior to the trial which asserted that the applicant had tendencies to have different states of mind, and to act in different ways, namely: [133]

   1. (1)

      a sexual interest in GC when she was 16 to 17 years of age; and he acted on that sexual interest by sexually assaulting her;

   2. (2)

      a sexual interest in MC when she was about 6 years of age; and he acted on that sexual interest by sexually assaulting her;

   3. (3)

      a sexual interest in incestuous activity with the complainants; and he acted on that sexual interest by abusing the complainants separately or together;

   4. (4)

      a sexual interest in incestuous activity between fathers and daughters, and between sisters; and

   5. (5)

      a sexual interest in female children under 16 years of age.

7. [266]

   The admissibility of the tendency evidence was not challenged. The evidence had previously been admitted in 2021 for the jury trial, and the parties as well as the trial judge simply proceeded upon the same basis in 2024. Like the alleged acts constituting the charged offences, the applicant denied the alleged uncharged acts which were advanced as tendency evidence.

8. [267]

   Overall, the trial judge assessed the evidence and found that the first and second types of asserted tendencies had been proved. However, her Honour gave limited or no weight to the third, fourth and fifth asserted tendencies. [134]

9. [268]

   It is important, at this point, to consider the evidence supporting the asserted tendencies and the trial judge’s relevant findings.

10. [269]

    As for the first asserted tendencies, the evidence proposed in the Notice concerned charged acts relating to counts 1 to 10, which comprised parts of GC’s JIRT interviews on 7 June and 20 July 2018 and evidence from the jury trial in 2021, including photographs; parts of Ms Hare’s statement dated 8 June 2018 and her previous evidence in the 2021 jury trial; and part of SP’s statement dated 12 June 2018 and her previous evidence in the jury trial.

11. [270]

    The Crown sought to rely on the alleged conduct underpinning each count where GC was the complainant as tendency evidence in relation to each separate count on the indictment that concerned GC.

12. [271]

    In the trial judgment, her Honour observed that not all of the evidence referred to in the Notice was available to her at the trial. In particular, her Honour said the following: [135]

13. [272]

    Her Honour mistook the import of the Notice. Although Ms Hare’s statement and evidence from the jury trial were not tendered in the instant trial, as had been foreshadowed in the Notice, Ms Hare did give evidence in the instant trial. Likewise, even though SP’s statement and evidence from the jury trial were not tendered, SP also gave evidence in the instant trial. So, there was tendency evidence to consider from both SP and Ms Hare.

14. [273]

    Except for counts 1 to 4, the trial judge was satisfied that the applicant had the first asserted tendencies. Her Honour said: [136]

15. [274]

    For the second asserted tendencies concerning MC, the tendency evidence proposed within the Notice comprised, again, parts of GC’s JIRT interviews and evidence from the jury trial in 2021, including parts of Ms Hare’s statement dated 8 June 2018 and her evidence also in the jury trial; parts of SP’s statements dated 12 June, 19 June, 12 July, 11 October 2018 and 15 November 2019 and her evidence in the jury trial; the four recordings of MC; and JC’s JIRT interview on 20 July 2018.

16. [275]

    The trial judge made the following findings with respect to this tendency evidence: [137]

17. [276]

    Again, when considering the evidence concerning the second asserted tendencies, her Honour made the same error about SP’s and Ms Hare’s evidence. They both gave evidence in the instant trial and that evidence was available to be considered for tendency reasoning.

18. [277]

    Notwithstanding that the trial judge disregarded the four recordings of MC entirely, she found that the applicant had the second asserted tendencies. This finding appears to be based solely on the discrete parts of GC’s JIRT interviews which described sexual acts upon MC. Her Honour did not explain how she approached the relevant part of JC’s JIRT interview from 20 July 2018, in which he said MC disclosed something “bad” about the applicant. [138]

19. [278]

    The third asserted tendency was founded on the evidence of each complainant being cross-admissible in the case concerning all counts on the indictment. The Crown sought to rely on the same evidence adduced for the first and second asserted tendencies.

20. [279]

    Ultimately, her Honour found that this evidence had overlapped considerably with the first and second asserted tendencies, and on that basis she concluded that it was of limited weight. [139]

21. [280]

    The fourth asserted tendency arose from observations of the applicant’s internet search history in January 2018. The tendency evidence for the fourth asserted tendency was comprised of parts of SP’s statement dated 12 June 2018 and parts of her evidence at the jury trial in 2021; all of Detective Choubineh’s statements dated 7 February 2019 and 20 April 2020 and parts of his evidence at the jury trial; and various photographs.

22. [281]

    Her Honour made the following findings with respect to this fourth asserted tendency:

23. [282]

    The fact that the evidence did not conclusively prove that the applicant conducted the relevant searches did not mean that the evidence had to be totally disregarded. There is no requirement that tendency evidence must always be capable of being proved beyond reasonable doubt. In fact, s 161A(1) of the Criminal Procedure Act 1986 (NSW) confirms that, but for some exceptions which need not be addressed here, a jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence.

24. [283]

    Where the elements of a charge need to be proved beyond reasonable doubt, in circumstances where the prosecution contend that charged acts can also be used for the purpose of tendency reasoning, no particular level of proof is required for such tendency purposes. Certainly no particular level of proof is required for findings about uncharged acts when considering whether or not those acts can be used for tendency purposes.

25. [284]

    In relation to tendencies one, two and three, I find it difficult to determine whether or not the tendencies were proved to anything greater than a level of grave suspicion. Ultimately, even factoring in that suspicion to my assessment about the applicant’s guilt, I am unable to be convinced about his guilt beyond reasonable doubt.

26. [285]

    In relation to the fourth and fifth tendencies, there were a number of competing inferences about the identity of the person who conducted the searches on the applicant’s mobile phone. But it was still necessary for that evidence to be considered in conjunction with all of the other evidence to determine whether or not the relevant tendencies had been proved.

27. [286]

    It is not clear who conducted the relevant searches that underpinned the fourth tendency. Of all those likely to have had access to the mobile phone, the applicant was likely to be a key suspect. I am not convinced that he did conduct the searches, but he might well have.

28. [287]

    The fifth asserted tendency arose from observations of the applicant’s search history at the time of his arrest on 5 October 2018. The evidence about that tendency as outlined in the Notice was comprised of parts of SP’s statement dated 12 June 2018 and her evidence at the jury trial in 2021; all of Detective Choubineh’s statements dated 7 February 2019 and 20 April 2020; and various photographs.

29. [288]

    The trial judge gave no weight to this fifth asserted tendency for the following reasons: [140]

30. [289]

    Like her Honour, I regard the evidence in the trial about the online searches on the applicant’s mobile phone as incapable of proving that the applicant made the relevant searches and then viewed incestuous images on his phone. But, of all the people in the house who might have searched for images of incestual activity, the applicant is the most likely. So, while insufficient to prove beyond reasonable doubt that he made the searches and viewed the material, I accept that he may well have done those things. The fourth and fifth tendencies are, in my view, proved to a level of strong suspicion.

31. [290]

    All of the other evidence concerning the first, second and third tendencies was sourced from MC and GC – whether from their JIRT interviews or from the representations that they made to one another and to JC, SP and Ms Hare. All of that evidence suffers from the risk that SP inappropriately influenced the two complainants in making their allegations. As I have concerns about the reliability of all of the complaints made to JC, SP and Ms Hare, the actual probative force of the tendency evidence is weaker than when it was initially presented in the Notice.

32. [291]

    Even if he had sexual interests in the complainants, it is not at all clear that he acted on them in the circumstances which relate to the charged counts.

33. [292]

    Ultimately, I find that, even considering that there is some evidence that the applicant had a sexual interest in the complainants and may have acted on it, the probative value of the tendency evidence, when weighed with the whole of the rest of the evidence at the trial, is insufficient to prove the applicant’s guilt beyond reasonable doubt on counts 5 to 11.

34. [293]

    It must also be borne in mind that the trial judge acquitted the applicant of the first four counts on the indictment notwithstanding that her Honour found him to have some of the asserted tendencies. These acquittals are significant for the reasons outlined immediately below.

35. [294]

    In delivering the verdicts following the trial, her Honour directed herself pursuant to a Markuleski direction; that is, a reasonable doubt with respect to a count based on an adverse finding concerning a complainant’s credibility ought to be taken into account in the assessment of the credibility of the complainant generally.

36. [295]

    This was an important direction in this case because the credibility of the complainants was in issue and there were two different sets of allegations. Apart from stating the effect of the direction, the trial judge made no reference to the direction in light of reaching her decision that she was not satisfied beyond reasonable doubt about counts 1 to 4.

37. [296]

    My finding at [179] that, through SP’s encouragement and signalling, both of the complainants may have either consciously or subconsciously made representations about the applicant that were either false or inaccurate, also affects my assessment of the reliability of GC’s evidence in relation to all counts. In that case, even though I do not have to form a view about the trial judge’s decisions to acquit on counts 1 to 4, I also have arrived at the same conclusion.

38. [297]

    This accords with the trial judge’s following finding which I have previously referred to in these reasons at [217]:

39. [298]

    I am legally bound to accept the full force of the acquittals on counts 1 to 4. In any case, I agree with her Honour’s findings about SP’s actions, which relevantly, adversely affects my assessment of GC’s credibility about the incident which was the subject of counts 1 to 4. But that conclusion should also be considered when considering GC’s evidence about counts 5 to 11.

40. [299]

    I have a doubt about GC’s evidence on all of the counts. Even if she was not deliberately giving a false account, she may well have been confusing one incident with another or with uncharged acts or she may not have understood the significance of giving truthful answers. I cannot be confident that GC gave reliable evidence in relation to counts 5 to 11. I cannot entirely reject MC’s evidence at the trial. That also adds to my difficulties accepting GC’s evidence. MC’s denials substantially undermine the Crown’s case in relation to count 11 and adds to my doubts about all of the counts concerning GC’s allegations.

41. [300]

    I am left with a reasonable doubt about the applicant’s guilt on counts 5 to 11 having carried out my own independent assessment of the sufficiency and quality of the whole of the evidence.

42. [301]

    On appeal, a question arose as to whether the Court should view the complainants’ recorded JIRT interviews. While ordinarily there would be no such need, the Crown submitted that this is a case in which the appeal court should view the recorded evidence.

43. [302]

    Before turning to resolve this question, it is first necessary to consider the applicable legal principles.

May an appeal court view electronic evidence?

1. [303]

   In ZT, the High Court provided the following in this respect:

2. [304]

   It is well established that an appeal court can generally identify, and give full allowance for, the jury’s advantages without viewing recorded testimony. [142] Any such advantage is usually obvious and apparent from the record. [143]

3. [305]

   Nevertheless, there may be cases where an appeal court can only discharge its function, as it was put by the High Court in ZT, by moving beyond the record and viewing the recorded testimony. As was said in Pell:

4. [306]

   Relevantly, viewing recorded testimony to assess the credibility of a witness is not a real forensic purpose for an appeal court as contemplated by the High Court in Pell. Assessments of such a nature are within the province of the tribunal of fact, not the appeal court. [145]

The parties’ submissions

1. [307]

   The Crown urged the Court to view GC’s first JIRT interview and MC’s only JIRT interview. The focus of the Crown’s written submission was on the complainants’ cognitive impairments which were said to bear upon an assessment of the reliability of their evidence. It followed, in the Crown’s submission, that there is a real forensic purpose in viewing that portion of the recorded evidence to give full allowance for the nature and scope of the trial judge’s advantage.

2. [308]

   The applicant did not resist the Crown’s request. However, the applicant submitted on appeal that if the evidence is viewed, it will be seen that the trial judge held no such advantage at all.

3. [309]

   After ZT’s remittal from the High Court, this Court considered how to view the relevant electronic evidence and determined to play it in Court with the parties present and then immediately after, Bell CJ, Dhanji and Yehia JJ heard submissions concerning whether there was, in fact, a “real forensic purpose” for the Court’s viewing. [146] Ultimately, the majority (Dhanji and Yehia JJ) found that the advantages enjoyed by the jury were incapable of resolving the reasonable doubt they had as to the appellant’s guilt. [147]

4. [310]

   In the present case, the parties have already made their relevant submissions about the advantage that the trial judge had and agreed that the Court could view the two relevant JIRT interviews in chambers, should the members of the Court decide that they have a reasonable doubt about the applicant’s guilt. I have now watched that evidence.

Did the trial judge have an advantage over this Court in being able to assess credibility and reliability of the complainants?

1. [311]

   Her Honour made very positive findings about GC’s answers in her first JIRT interview. Indeed, those findings were influential, if not determinative, in her finding the applicant guilty on counts 5 to 11. Her Honour’s reasoning to guilt was underpinned by her assessment of GC’s demeanour, which was itself influenced by her Honour’s understanding of the impact of GC’s intellectual disability and her capacity to deliver a coherent and spontaneous account.

2. [312]

   Whilst there is no doubt that her Honour had the ability to assess GC’s demeanour – a capacity which this Court does not have, for many years, superior courts have urged trial court judges not to over-emphasise demeanour in their assessment of a witness’s credibility and reliability.

3. [313]

   The Court of Appeal in Mt Pleasant Stud Farms Pty Ltd v McCormick [2022] NSWCA 191 indicated how a witness’s demeanour might inform a judge’s assessment of credit. There, Kirk JA (White and Brereton JJA agreeing) observed the following:

4. [314]

   But warnings about placing too much emphasis on demeanour are instructive. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, the High Court (per Gleeson CJ, Gummow and Kirby JJ) provided:

5. [315]

   It is apparent that, even if a witness’s demeanour is taken into account, there is still a need to properly consider and assess the rest of the evidence as a whole. As the Court of Criminal Appeal observed in Hodgson v R [2022] NSWCCA 72 (at [98]) (per Leeming JA, Rothman and Hamill JJ agreeing):

Impressions of the recorded evidence

1. [316]

   These are my impressions of the two JIRT interviews.

2. [317]

   GC had a consistently flat affect. Her answers were simple and straightforward. They rarely exceeded one, two or three words in length. There was little change in her tone of voice, posture or body language. There were occasional hesitations which may have been caused by confusion about what was being asked of her, but equally, those hesitations may well have been a result of the uncomfortable nature of the subject matter being discussed.

3. [318]

   In these circumstances, I find it difficult to see how the trial judge had any great advantage over a reader of the transcript. It is doubtful that her Honour was adequately informed about the relevance of GC’s intellectual disability and how that would impact on her capacity to deliver consistent answers. Without the guidance of a psychologist or some other expert, her Honour was in little better of a position to assess GC’s demeanour than a reader of the transcript.

4. [319]

   MC refused to engage verbally and thus her entire JIRT interview was mute. Her body language was generally in line with how one would expect an uninterested seven year old to engage. But she seemingly understood what was required of her and she provided non-verbal answers throughout the course of the interview.

5. [320]

   In my view, the trial judge’s advantage in respect of MC’s evidence was marginal at best. A reader of the transcript could appreciate MC’s non-verbal responses through the descriptions of her actions, such as when she pointed to separate cards which represented yes or no answers or, where applicable, when she shrugged her shoulders to indicate that she did not understand or know the answer to a question. MC was able to focus on the questioning, even when the questioner increased the pace of the interview and asked more suggestive questions. On all occasions, MC delivered denials to questions that were designed to elicit answers implicating the applicant in the alleged sexual offending, the subject of the investigations.

Did the trial judge’s advantage resolve any doubts about the applicant’s guilt?

1. [321]

   It is acknowledged that the trial judge had at least some small advantage in being able to watch and listen to the JIRT interviews. However, having viewed the two JIRT interviews, it is clear that her Honour did not enjoy any significant advantage above and beyond what I was able to discern from the trial record alone.

2. [322]

   In particular, given that my doubt focusses on the risk that GC’s evidence was contaminated by SP, I cannot see how GC’s JIRT interview provided her Honour with a sound basis to limit her own doubt to the first four counts alone (counts 1 to 4). It certainly does not alter my conclusion regarding the 7 other counts (counts 5 to 11). Likewise, her Honour’s advantage in viewing MC’s mute evidence does not convince me that counts 5 to 11 have been safely proved beyond reasonable doubt.

3. [323]

   Accordingly, the trial judge’s advantage has not resolved my doubts about the applicant’s guilt on any of the seven counts.

4. [324]

   Having reviewed all of the evidence, I am left with a reasonable doubt as to the applicant’s guilt. I am satisfied this doubt cannot be resolved by making allowance for any of the trial judge’s advantages – and, ultimately, it is a doubt that her Honour ought to have had.

5. [325]

   On this basis, I propose that the Court make the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      The guilty verdicts on counts 5, 6, 7, 8, 9, 10 and 11 are quashed, and verdicts of acquittal are to be entered on each of those counts.