SS v R

1. [1]

   ADAMSON JA: SS (the applicant) seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction on 22 November 2019 of seven child sexual offences against a single complainant (the complainant) following a trial by judge alone which was conducted by English DCJ (the trial judge).

2. [2]

   The applicant also seeks leave to appeal against the sentence imposed by the trial judge of 8 years and 6 months’ imprisonment commencing on 22 November 2019 and expiring on 21 May 2028 with a non-parole period of 4 years and 6 months’ imprisonment which expired on 21 May 2024. At the time of the hearing of the appeal the applicant was on parole, having been released on 21 May 2024.

3. [3]

   It was common ground that the applicant requires an extension of time for leave to appeal. The applicant filed a notice of intention to appeal on 24 June 2020. An extension of time to appeal was granted to 9 April 2021. On 28 April 2023, the applicant provided a letter explaining that he had been diagnosed with a brain tumour. The notice of appeal was not filed until 3 April 2024.

4. [4]

   The applicant’s proposed grounds of appeal are as follows:

5. [5]

   For the reasons which follow, I would extend time for the filing of the notice of appeal in so far as it relates to the convictions (grounds 1 and 2), grant leave to appeal against the convictions (grounds 1 and 2) but dismiss that appeal and refuse an extension of time for leave to appeal against sentence (ground 3).

6. [6]

   In order to address ground 2, it is necessary to review all of the evidence in the trial. In order to address ground 1, which involves an appeal against the convictions (and not an appeal against the trial judge’s refusal of the applicant’s application for the trial to be aborted and the trial judge to recuse herself), it is necessary for the applicant to establish that the refusal of the application resulted in a miscarriage of justice. This, in turn, requires some consideration of the context in which the application was made.

The trial

1. [7]

   The trial began before the trial judge in the District Court at Wagga Wagga on 15 October 2019. The indictment charged seven offences (set out in the table below) which were alleged to have been committed in the course of three incidents against a background of the applicant’s repeated sexual and physical abuse of the complainant, when she was aged between 7 and 11 years old.

2. [8]

   The Crown case was that, in 1993, the complainant complained to her friend, ES, and her maternal grandmother, PW, about being sexually and indecently assaulted by the applicant (who was her mother’s de facto partner). She subsequently reported the offending to police in a formal interview on 24 August 1993, who referred her for an internal examination by Dr Geraldine Duncan, an obstetrician and gynaecologist. This led to the applicant being charged on 27 August 1993. However, on 4 November 1993 the complainant signed a retraction statement in which she said none of the conduct comprising the offences had occurred (the retraction statement). The Crown case was that the retraction statement, which led to the charges being dropped, was signed unwillingly by the complainant (who was, at this time, 11 years old) as a result of threats made by her mother.

3. [9]

   Shortly after the charges were dropped, the complainant went to Queensland to visit her biological father. Later the applicant arrived and took the complainant to his mother’s house and his sister’s business premises where, in his family’s presence at each location, he admitted that he had done what the complainant had alleged. Until his admissions were made, his sister, brother-in-law to be and brother had supported him and disbelieved the complainant. After the admissions they appreciated that the complainant had told the truth about his conduct. Ultimately, in 2013, the complainant contacted the police in Wagga Wagga to restore her original complaint against the applicant, which led to his being charged and, ultimately, convicted by the trial judge.

4. [10]

   The Crown case comprised the following evidence:

   1. (1)

      evidence of the complainant including as to each of the offences, her background of abuse, her familial relations, her diary entries, the letter from ES, the circumstances in which she had reported the offending to police on 24 August 1993, the circumstances of her making the retraction statement and the admissions made by the applicant to his family;

   2. (2)

      evidence of ES and PW about the contemporaneous complaints which the complainant had made to each of them in 1993;

   3. (3)

      the expert evidence of Dr Duncan regarding her internal examination of the complainant on 26 August 1993 (within 4 days of the occurrence of the last offence); and

   4. (4)

      evidence given by some of the applicant’s family members of admissions which the applicant made to them following the retraction statement.

5. [11]

   The defence case was that the complainant was lying and that the applicant did not commit any of the offences charged.

6. [12]

   The complainant was born in 1982 when her mother was 15 years old. Her biological father, TA, who was also a teenager, lived in Queensland. In her early years, the complainant lived in Redcliffe, Queensland with PW, the complainant’s mother and PW’s five other children. The complainant’s mother was the eldest of the six children, followed by PaW (a boy), SeW (a boy), SuW (a girl), RW (a girl) and SiW (a girl). According to PW, TA’s father “jammed [TA] into the army”, which led to TA and the complainant’s mother going their separate ways.

7. [13]

   In the 1980’s, when the complainant’s mother was still living with PW and the complainant was about three and a half years old, the complainant’s mother met and formed a relationship with the applicant. The applicant was one of five children. His siblings were AS (a girl), GS (a girl), MS (a boy) and DoS (a boy)

8. [14]

   When she lived with PW in Queensland, the complainant had weekly contact with her biological father, TA, at TA’s parents’ home in Margate in Redcliffe. However, she called the applicant “dad” from an early age until some time after the offending conduct ceased.

9. [15]

   At around this time, the complainant’s mother and the applicant went to Cairns for work, leaving the complainant with PW. While they were up there, the complainant’s mother became pregnant again and they returned to Redcliffe where their first son, DS, was born in July 1987. The applicant, the complainant’s mother, the complainant and DS then moved into their own place in Ashmore Road in Redcliffe. According to PW, following that move, the complainant, who was by then 5 or 6, started to have problems with “toilet training” (which she had not had as a toddler). PW said that “that’s when [she] noticed that something was terribly wrong”.

10. [16]

    Shortly afterwards, the complainant’s mother, the applicant, DS and the complainant moved to Wagga Wagga in New South Wales, where the applicant’s brother, MS, was then living. BS, their second son, was born in 1988. A third son, RS, was born in September 1990. After RS’s birth, MS moved back to Queensland to live with his mother in Morayfield, near Caboolture.

11. [17]

    SeW (one of the complainant’s mother’s brothers) came from Queensland to live with his sister and the applicant in Wagga Wagga. In October 1990, after he had been living with them for about a year, SeW was killed in a car accident. In late 1990 (after SeW’s funeral), PW went to visit the complainant’s mother and the rest of her family who were then living in a two-bedroomed house on a property near Wagga Wagga (having moved from their first residence, which was a flat in the town). PW came with her two youngest daughters, RW and SiW (who were not much older than the complainant), and stayed until about Christmas. The complainant said that the sexual abuse which the applicant inflicted on her did not occur when PW was there but resumed when PW went to Sydney, leaving RW and SiW with the complainant’s family.

12. [18]

    Between about 1988 when the complainant and her family left Brisbane until the end of 1993 when she returned to Queensland, the complainant only saw her biological father, TA, when he was stationed for training for a period of about six weeks at the nearby Kapooka Army Barracks.

13. [19]

    The complainant gave evidence that when she was 7 years old (between May 1989 and May 1990), she was living in a house outside Wagga Wagga with her mother, the applicant and DS and BS, who slept in a cot in the corner of the main bedroom (RS was not yet born). She recalled that it was summer when the applicant called her into his bedroom that he shared with her mother and told her to take her clothes off because she was in trouble. The applicant told her he wanted her to be on her knees. She obeyed. He told her that she needed to be taught how to be a good girl. He took his clothes off, stood above her and put his penis in her mouth (count 1). The complainant said that her tooth must have caught his penis because it hurt him and he took it out.

14. [20]

    The applicant then told her to lick his penis. He told her that she had to be taught to be a good girl and if she did not do what he wanted her to do, she would be in trouble. He ejaculated “in [her] face” and then reached over to the cot and got a cloth nappy which he used to wipe her face.

15. [21]

    The applicant told the complainant to lie on the bed with her legs apart. She did what she was told because he “was abusive and if [she] didn’t do as told… he would flog [her]”. The applicant then lay down beside the complainant on the bed and put his finger in her vagina and moved it in and out (count 2), which hurt the complainant. She told him that it hurt her and to stop but he responded, “[a]ll girls have to be taught”.

16. [22]

    At about this time, the complainant heard a car coming down the track to the house where the complainant’s family lived. She told the applicant that she had heard a car. He got up, dressed and told her not to say anything. The person in the car was the property manager. This was one of the first times on which there was sexual contact between the complainant and the applicant.

17. [23]

    The complainant gave evidence that while she was in the applicant’s bedroom he would video tape what he did to her on a video camera which was positioned on a chair near the cot. He would also show her what he had filmed. In cross-examination, the complainant said:

18. [24]

    A few days after the incident comprising counts 1 and 2, RW and SiW, who were aged about 10 and 14 at the time, were at the house. The complainant gave evidence that she told her mother that the applicant had touched her and made her suck his penis. Her mother told her that she was a liar and “bashed” her and “flogged” her with a piece of hose.

19. [25]

    On another occasion, the complainant was in her bedroom when her mother called her to the main bedroom. Her mother was lying in the bed and the applicant was “lying beside her but across her”. When the complainant entered the room, she walked to her mother’s side of the bed and “the doona came down off her breasts”, which were naked. The complainant observed that, under the bedcovers, the applicant was touching her mother “where mum’s vagina would’ve been”. The complainant’s mother asked her to suck her breasts. The complainant said, “no” to which her mother said, “[w]ell you used to while you were a baby so what’s the difference now?” Because the complainant was scared, she sucked her mother’s breast for “[a] couple of seconds” before leaving the room. Her mother yelled out to her to come back and said that the complainant had “ruined it for [the applicant]”.

20. [26]

    The complainant left the house and went to “the pine tree up in the paddock”, where she stayed until it got dark. When she returned to the house, her mother “bashed” her and “belted [her] with her fists, her hand” and the complainant went to bed without dinner.

21. [27]

    The complainant agreed in re-examination that she had not told police about this incident when she made her statement on 24 August 1993 and explained that she did not include it “[b]ecause she was my mum”.

22. [28]

    The complainant’s family eventually moved from the house on the property to a residence in the town of Wagga Wagga. The complainant’s youngest half-brother, RS, was born after this move.

23. [29]

    About two weeks before the incident described below as counts 6 and 7 and while they were living in town (in August 1993), the applicant “pulled [the complainant] into his room and … made [her] suck his penis” (count 5) and “would touch [her] breasts” (count 4) and “then he put his fingers inside [her] vagina” (count 3).

24. [30]

    This incident was similar to others that had occurred on a daily basis when the applicant would make the complainant undress and he would also undress before sexually assaulting her.

25. [31]

    Around 22 August 1993, the complainant’s friend, ES, was visiting her house. ES had to go out to check with her father whether she had to go home. While ES was on the balcony out the front of the house, the applicant called the complainant into his bedroom. He had just had a bath and was naked. He wanted her to rub his penis. She said no and told him that ES would be “back in a minute” because she did not want to do it. He said that he did not care and that he wanted her to lie on the bed. He put his fingers inside her vagina (count 6) and touched both of her breasts (count 7).

26. [32]

    The complainant also gave evidence in cross-examination of a sexual assault which occurred when she was ten years old (and therefore occurred between May 1992 and May 1993) which was video recorded by the applicant. The tape depicted the complainant naked on the bed, straddling the applicant while he masturbated her. His penis was not inside her. Some time after this event, SiW and RW arrived with PW in Wagga Wagga.

27. [33]

    After PW had left to go to Sydney, the complainant put the tape in the video recorder in the lounge room and played it to the two girls. By that stage SiW was about 13 years old and RW was about 15 years old. SiW and RW were “horrified” and “very upset” by what they saw and told the complainant that they would tell her mother. They told the complainant’s mother in the complainant’s absence. On her return, “[the complainant’s mother] came outside and bashed [her] with a baseball bat for lying to them and showing them things that weren't true”. The complainant was kept home from school because of the injuries her mother had inflicted on her.

28. [34]

    The complainant’s evidence that she had played the video tape to RW and SiW was not corroborated. RW recalled the complainant telling her about the sexual assaults but denied that she had been shown a video recording of any such assaults (see below).

29. [35]

    After the conduct which constituted counts 6 and 7, the complainant went outside and told ES what had happened as follows:

30. [36]

    After this disclosure, the complainant and ES went to the “shed” (a garage, which had a roller door) where the complainant showed ES the diary which she had kept hidden “in one of the beams behind all the drums” and which she had “prayed” her mother would not find. The complainant told ES that she could not do it anymore and that she “couldn’t handle it”. While ES was with her in the garage, the complainant wrote about the occasion which had just happened (counts 6 and 7). Photocopies of the pages from the complainant’s diary were tendered and marked Exhibit B. The notes read:

31. [37]

    Although the complainant could not, at first, explain the reference to “periods” (spelled “peeredes”), she said that she remembered a time when the applicant scratched the inside of her vagina and she bled. However, she did not begin menstruating until after the applicant left, when she was taken by the police and the Department of Community Services (DOCS) on 23 August 1993.

32. [38]

    ES met and became friends with the complainant in grade 3 or 4 when they were attending the same school in Wagga Wagga. During this period, ES lived with her mother but would stay at her father’s place every second weekend. As ES’s father lived near the complainant’s home, ES would visit the complainant when she was staying with her father. By the time of trial (October 2019), ES had little recollection of the details of what occurred. For this reason, her evidence largely comprised portions of the statement she had made to police on 28 August 1993, shortly after the complainant had disclosed the sexual abuse to her.

33. [39]

    ES gave evidence of the day on which the complainant told her about what the applicant had done to her. The complainant’s mother and the applicant had gone to a funeral that day, leaving the children in the care of a babysitter. Her evidence included the following from her statement to police dated 28 August 1993:

34. [40]

    After this disclosure, ES contacted her mother and asked if the complainant could stay over. ES’s evidence (read from her police statement dated 28 August 1993) was:

35. [41]

    ES’s evidence continued as follows:

36. [42]

    ES also gave the following evidence from her police statement:

37. [43]

    ES did not see the complainant again but she wrote her a letter which was tendered in the trial. She wrote:

38. [44]

    When the complainant’s family was living in the town of Wagga Wagga, PW was living in Caloundra, Queensland. On one occasion, when the complainant was the only one at home, she rang PW. The complainant’s evidence was as follows:

39. [45]

    PW gave the following evidence of complaint:

40. [46]

    On 24 August 1993, a couple of days after the complainant had told ES what had been happening, the police spoke to her and took a formal statement from her, following which she was sent to live in a foster home with foster parents. She stayed there for “several weeks” until the applicant left home. Her foster parents allowed the complainant to use a computer. She created a document on the computer, which read:

41. [47]

    Detective Senior Constable Judith Jorgensen gave evidence on 16 October 2019 by reading her statement made on 27 August 1993 as follows:

42. [48]

    Detective Jorgensen was not cross-examined.

43. [49]

    Detective Sergeant Genevieve Graham (who in 1993 was a uniformed police constable) identified the typed transcript of the interview of the complainant which she conducted at the Wagga Wagga Police Station, which commenced at 2.20pm on 24 August 1993 at which Mr Scott from DOCS was present.

44. [50]

    The complainant acknowledged in her cross-examination that, in August 1993, she told Detective Graham that she did not like the applicant, that she “liked living at home but only with him out of the house” and that she was “glad to see the back of him”.

45. [51]

    Dr Duncan conducted an internal examination of the complainant on 26 August 1993, following which she prepared a report dated 30 August 1993 which was tendered in the prosecution case.

46. [52]

    Dr Duncan recorded the history which the complainant gave her when she attended for the examination on 26 August 1993 (in the company of her foster mother and a female police detective), which included that the complainant had tried several times to run away from home and had been beaten by the applicant on her return. Dr Duncan also recorded:

47. [53]

    Dr Duncan noted that at the time of the examination the complainant had not started menstruating. On examination she noted damage to the hymen which was evidence of injury and “relevant when you are dealing with a sexual assault case”. She also confirmed that genital areas may bleed if scratched with a fingernail. She also noted a scratch to the left fourchette.

48. [54]

    After the applicant had left the complainant’s family home, the complainant was removed from her foster parents and sent back home to live with her mother. The complainant said that after her return to her mother’s place, she and her mother went to visit a friend of her mother’s, Amanda. The complainant gave the following evidence:

49. [55]

    Following this conversation, the complainant’s mother took her to the police station so that she could speak to police. As the complainant put it, “[m]um made me retract my statement.”

50. [56]

    The complainant made a further statement, of which she said:

51. [57]

    In cross-examination, the complainant agreed that she had said the following in her retraction statement but maintained that it was not true:

52. [58]

    The retraction statement also included the following:

53. [59]

    In cross-examination, the complainant said that she was “coerced to change [her] statement”. She described herself as “an 11 year old girl trying to make sense of shit” and said that her retraction statement was “worth nothing than the paper it’s written on”.

54. [60]

    The complainant accepted that the words about deserving to be hit (in paragraph 5 of the retraction statement) came from the applicant who had “drummed that into [her] head”. She recalled that he said, “I only hit you when I need to, when you deserve it, when you’re naughty”. The complainant said, “I copped that all my life”.

55. [61]

    The complainant explained in cross-examination that she did not want her natural parents to be together (as referred to in paragraph 5 of the retraction statement) because TA was married and she knew that it was not going to happen because her “parents were never together”. When asked about the provenance of that portion of the statement, the complainant said:

56. [62]

    The complainant said in cross-examination of her statement that she “got the idea from Megan”, “[w]ell, I never had a friend called Megan and none of my friends or people that I knew at that time had been taken and put into foster care”.

57. [63]

    When asked if she could recall where her mother was when the police officer was taking the statement from her, the complainant said:

58. [64]

    The complainant explained why she signed the statement as follows:

59. [65]

    The complainant also gave evidence that the prospect that the applicant would come and kill them all was on her mind when she made the retraction statement.

60. [66]

    At the beginning of the Christmas holidays in December 1993, the complainant was sent to Brisbane to spend Christmas with her biological father, TA, who worked on a fishing trawler, and his parents (with whom he then lived). At some point, her father had to leave to work on the trawler so he left the complainant with a female friend of his who lived in Caboolture while he was out to sea.

61. [67]

    While the complainant was at Caboolture, the applicant (whom the complainant had not seen since she was in Wagga Wagga) came to collect her in his mother’s car. The applicant took her to his mother’s house, which was nearby. The complainant referred to the applicant’s mother as “gran”. The complainant’s three half-brothers were there with their grandmother and the applicant’s brother, MS.

62. [68]

    For a while, the complainant was outside, playing with her half-brothers and a dog but at some point she went inside the house to the kitchen where the applicant, MS, and their mother were. The complainant’s evidence was:

63. [69]

    According to the complainant, MS walked into his room without saying anything and their mother told the applicant to “stop being so stupid, then turned around and started making - finished making the coffee or tea, whatever she was making at the time”.

64. [70]

    In cross-examination, it was put to the complainant that she was happy to see the applicant on 22 December 1993, to which she responded, “I was more happy to see my brothers”.

65. [71]

    The applicant’s mother (who was 79 at the time of trial) recalled an occasion shortly before the wedding of the applicant’s sister, GS, and her fiancé, AE, (on 24 December 1993) when the complainant and the applicant were at her home in Morayfield, near Caboolture. She was not on speaking terms with the complainant because of the allegations which the complainant had made against the applicant and “still felt a bit unforgiving of her at the time”. She agreed that it was “all still pretty raw” and that she “didn’t want to get into anything and probably say something [she would] regret”. Her evidence was that she did not recall the applicant saying that he did what the complainant had said he had done or that she had responded by telling him not to be stupid.

66. [72]

    MS gave evidence that he had no recollection of the applicant saying anything in the presence of his mother and the complainant. He said that he was “nowhere near them” when the applicant was speaking to their mother. MS said that in September 1993 to December 1993, the applicant and his three sons had been living with the applicant’s mother.

67. [73]

    MS identified a photograph of the applicant and the complainant which was taken at his mother’s house in Avondale Street, Morayfield on 22 December 1993, which was marked Exhibit 1. The photograph depicts the applicant with his arm around the complainant, who was smiling.

68. [74]

    The complainant was asked about the photograph as follows:

69. [75]

    The applicant then took the complainant to a solar tinting shop (for tinting car and house windows) in Caboolture to see GS, who worked there with AE, and DS, another of the applicant’s brothers.

70. [76]

    The complainant’s evidence was:

71. [77]

    She also adopted the contents of her statement to Senior Constable Powell on Monday 14 October 2019 (made during the course of the trial) as follows:

72. [78]

    GS’s evidence of this incident was that the applicant and the complainant arrived at the shop unexpectedly. GS thought it was strange that they were together because she knew of the allegations which the complainant had made against the applicant, that he had been charged and that the charges had been withdrawn. Her thinking at that time was as follows:

73. [79]

    GS gave evidence of the following:

74. [80]

    GS’s reaction to this information was:

75. [81]

    When asked when she became aware of the allegations which the complainant had made against the applicant, GS said:

76. [82]

    GS confirmed that she had provided the affidavit as requested and had either posted it or provided it to her mother prior to the occasion referred to above in the tint shop.

77. [83]

    GS was cross-examined about why she had sworn the affidavit saying she believed that the complainant had lied in the following exchange:

78. [84]

    GS agreed in cross-examination that she was very relieved to learn in 1993 that the charges against the applicant had been dropped.

79. [85]

    GS provided a statement to police in July 2016 about the matter. In her evidence at trial she confirmed that she held firmly in her memory the occasion on which the applicant had made the admission. She was cross-examined about her recollection, having regard to the time between December 1993 and July 2016 in the following exchange:

80. [86]

    The applicant’s trial counsel sought to challenge GS’s recollection of the applicant’s admission. GS was adamant that she recalled it, as evident from the following passages:

81. [87]

    AE, GS’s husband (then her fiancé), gave the following evidence about what occurred:

82. [88]

    AE also gave evidence about the effect of the admission on GS, as follows:

83. [89]

    AE was repeatedly cross-examined about what had occurred and GS’s reaction. He said, in part:

84. [90]

    AE confirmed in cross-examination that his police statement was given on 27 July 2016 and that he had been telephoned by Detective Anna Smith prior to that and questioned about what occurred. The relevant part of his statement was:

85. [91]

    DS (one of the applicant’s younger brothers) was in the office area of the tinting business with GS and AE when the applicant walked in with the complainant. DS described his reaction to the complainant’s presence as follows:

86. [92]

    DS’s evidence as to what then occurred was:

87. [93]

    As far as DS knew, the arrival of the applicant and the complainant was “unexpected”. DS confirmed that he knew that the complainant had alleged that she had been indecently and sexually assaulted by the applicant and explained, “that’s why myself was not talking or engaging with [the complainant] because I believed her to be a liar”. DS understood that the reference to giving the complainant a hard time arose “because we weren’t talking to [the complainant when] she’d came up and as I said me personally and other family members were not interacting or engaging with her because of the allegations”. DS’s evidence was that he was “shocked but also confused and hurt you know even at the time I was still trying to be in denial of it”, in part because the applicant was older than he was and DS, who was then 23 years old, “looked up to him to an extent”.

88. [94]

    DS never spoke to the applicant about this admission again. He agreed that he had made a statement to police on 29 July 2016.

89. [95]

    Hearsay evidence was also elicited in cross-examinations of the complainant and of Detective Smith that GS’s son from a previous relationship had overheard the applicant admitting to having sexually assaulted the complainant as he was in the back room of the solar tint premises when the complainant, the applicant and other members of his family were at the front of the premises when the applicant made his admission. Detective Smith said that the complainant told her that she had spoken to SB in 2013 and SB had told her he overheard the admission. Detective Smith said she obtained this same version directly from SB.

90. [96]

    After their visit to the solar tinting shop, the applicant took the complainant back to his mother’s place and then back to TA’s friend’s place where she had been staying. Afterwards, the complainant returned to TA’s parents’ place “because dad was home” before her paternal grandparents drove her to PW’s place where she “lived from then on” without her mother, the applicant or her half-brothers.

91. [97]

    During the Christmas holidays, there was an occasion on which the complainant saw her mother, the applicant and her half-brothers again. The complainant was at PW’s place with aunts and uncles and their spouses (PW’s evidence was that she was not there as she was at work when they came). The complainant’s mother arrived unexpectedly with the applicant and their three sons. At that point:

92. [98]

    The complainant’s mother said to the complainant, “Give your father a cuddle”, referring to the applicant. The complainant “didn’t go near him” and the group then left.

93. [99]

    The complainant lived with PW for about a year in Queensland before returning to live with her mother in Wagga Wagga. PW’s evidence about the reason for the move was as follows:

94. [100]

    By the time the complainant was 17, she was living with her mother in Newtown in Sydney. For a period around that time, PW lived with them before moving into her own place nearby.

95. [101]

    The complainant had had no contact with her half-brothers since she saw them last in Queensland (in the incident referred to above) but was “keen to maintain contact” with them. AS, another of the applicant’s sisters, gave her a phone number for her half-brothers so that she could do so and she maintained phone contact with them for some time.

96. [102]

    In September 1995, the complainant wrote to her youngest half-brother, RS, to wish him a happy fifth birthday (she was, at that time, in year 7, and was 13 years old). She wrote:

97. [103]

    When it was suggested to the complainant in cross-examination that she still called the applicant, “Daddy”, she responded that she used that term because the applicant was RS’s father. The complainant rejected the applicant’s trial counsel’s suggestion that the reference to missing them “all” included the applicant and said she was referring to DS, BS and RS, who were “my baby brothers who I looked after from the day they were born”.

98. [104]

    When the complainant was about 17 years old, the applicant offered to pay for her to fly from Sydney to Brisbane to see her half-brothers. By this time, she was calling the applicant by name rather than “dad”. She spent about eight weeks in Queensland during which she stayed at times with the applicant, who lived with her three half-brothers, and also with her maternal uncle, PaW. During that period, the applicant was at work five days a week and her half-brothers were at school so she saw them after school. Her evidence was that the applicant was “hardly ever at home even at night”. There were no incidents between her and the applicant while she was staying there.

99. [105]

    When it was put to the complainant in cross-examination, that (if her allegations were true) she would not want to sleep in a house where the applicant was, she answered:

100. [106]

     The applicant’s trial counsel put to the complainant in cross-examination that she had never talked to the applicant about the sexual offending. She rejected that proposition and said that while she was staying there, she and the applicant talked about “this past history” when the boys were in bed. She asked the applicant, “Why? Why me? Why did you do it to me?” and he responded, “Because I thought you enjoyed it”.

101. [107]

     The applicant’s mother saw the complainant at the applicant’s house during this period. When asked about the relationship between the applicant and the complainant at that time, the applicant’s mother gave evidence that “[the complainant] always called him dad. It was always friendly”. This was contradicted by the complainant’s evidence that she had stopped calling the applicant “dad” by this time). The applicant’s mother also recalled a conversation with the complainant, in which the complainant had said to her, “I’d like to live here with dad and the boys because I don’t like living with mum and her new boyfriend” and “I had to tell mum’s new boyfriend that I was coming to visit me three cousins.” The applicant’s mother agreed that while the complainant was in Queensland for this period, she spent a lot of time with “the boys” (her half-brothers) and also spent time at PaW’s residence.

102. [108]

     On 8 July 2013, the complainant phoned the Wagga Wagga Police Station. In cross-examination, she explained why she had made the call as follows:

103. [109]

     At the time of making the call, the complainant was 31 years old and homeless. She had a number of children, each of whom had been taken away by DOCS. She spoke to Sergeant Byrnes and told him that she “wanted to come in and see somebody about reopening a case that happened many years beforehand”.

104. [110]

     At that time, the matter was allocated to Detective Smith. On 10 July 2013, the complainant made a statement to Detective Smith. The complainant agreed that when she made this statement, Detective Smith did not have the old file with her. This statement had the effect of restarting the investigation, which had stopped as a consequence of the retraction statement in 1993, about 20 years previously. When Detective Smith became aware that the complainant had made a statement as a child, she obtained the original file from State Archives because she wanted to read the witness statements at the time of the original complaint.

105. [111]

     The complainant accepted in cross-examination that in her statement in 2013 she did not mention the admissions which the applicant had made to members of his own family in her presence in December 1993. The following exchange occurred:

106. [112]

     The investigation stalled until 2016. Detective Smith explained that “we couldn’t further the case beyond the original”.

107. [113]

     Detective Smith gave evidence that when “further evidence … came to light over time”, the case was re-opened.

108. [114]

     The police case narrative recorded what had prompted the complainant to contact police again (which constituted the “further evidence”) as follows:

109. [115]

     The police also noted the following:

110. [116]

     The complainant agreed in cross-examination that, in 2016, SB had contacted her and told her that he had overheard the applicant’s admission at the solar tinting shop as he was sitting in the back room of the premises. The complainant was unaware of his presence at the time.

111. [117]

     On 13 April 2016, the complainant made a further police statement which dealt with her reasons for making the retraction statement. She made subsequent statements to police dealing with discrete issues. The complainant was extensively cross-examined by the applicant’s trial counsel about discrepancies between her evidence in chief and what she had said in her police statements, including as to timing, season and clothing.

112. [118]

     As a result of speaking to the complainant and SB, Detective Smith appreciated that there were potential witnesses in Queensland who needed to be located and interviewed as part of the investigation.

113. [119]

     In about July 2016, Detective Smith telephoned GS and questioned her about what the applicant had said in December 1993 in the tint shop. When the statement had been prepared, Detective Smith emailed it to GS, who signed it and emailed it back. A similar process was adopted with other witnesses who lived in Queensland.

114. [120]

     Detective Smith also gave evidence that the police notes recorded that RW had told police that she recalled that the complainant had told her about the sexual assaults and that RW had witnessed physical abuse. According to the notes, RW recalled that the complainant’s mother and the applicant had a video camera but denied ever having seen or been told of a video recording of the sexual assaults.

115. [121]

     The complainant’s cross-examination was ultimately completed on Friday 18 October 2019, the fifth day of the trial, after having been deferred to permit other witnesses to be interposed. All of the evidence summarised above apart from that of Detective Smith was called in the prosecution case before the complainant’s mother was called. Detective Smith was the only prosecution witness called in the prosecution case after the complainant’s mother was called.

116. [122]

     Before calling the complainant’s mother, the prosecutor said:

117. [123]

     The complainant’s mother gave evidence that the complainant was born in May 1982 and that TA was her biological father. She and TA started seeing each other at the age of 13 and split up when she was 14 before she realised that she was pregnant with the complainant, who was born when she was 15. They got back together when they were 17 and became engaged but the relationship lasted about a year. Throughout, the complainant’s mother was living with her parents.

118. [124]

     In 1985, when the complainant was three years old, her mother met the applicant on a Friday night at a hotel in Deception Bay when they were introduced by a security guard who was one of the applicant’s brothers-in-law. The complainant’s mother and the applicant went to Cairns for about five months, leaving the complainant with PW. She gave evidence of the birth of her three sons and the move to Wagga Wagga. After living in a flat in town, they moved to a small two-bedroom house on a country property out of Wagga Wagga. She and the applicant shared a bedroom, where there was also a cot for the youngest boy, and the complainant shared a bedroom with the older of her two half-brothers. At times other family members stayed with them. They moved into town in about 1993.

119. [125]

     The complainant’s mother gave evidence about finding out in August 1993 that the complainant had made allegations against the applicant and being told by detectives that the complainant was in temporary foster care. She recalled that the complainant was in foster care for less than two weeks before the applicant left Wagga Wagga for Brisbane, taking their three sons with him.

120. [126]

     The complainant’s mother was asked about the retraction statement and accepted that she must have taken the complainant to the police station. She said that she had not read the complainant’s first statement to police made on 24 August 1993 because she “didn’t want to believe that it had happened and … didn’t believe her, so [she] didn’t read it”.

121. [127]

     The following exchange then ensued in her evidence in chief:

122. [128]

     At that point, the court adjourned until the following Monday 21 October 2019. When the court resumed on 21 October 2019, the prosecutor asked the complainant’s mother why she packed her bags, to which she responded:

123. [129]

     The applicant’s trial counsel objected to the evidence on the basis that it was “new material” which was “completely unexpected and completely against the tenor of the witness’ statements to police … [and] completely contrary to things that she has told the police about their relationship during the course of this investigation.” He said further:

124. [130]

     The trial judge stood the matter down in order that a statement could be obtained from the complainant’s mother and served on the defence. After the luncheon adjournment, a six-page statement was served on the defence by the prosecution. The final paragraph of the statement indicated that it had been induced, as follows:

125. [131]

     The applicant’s trial counsel identified the following matters which the statement dealt with and sought that the matter be adjourned overnight:

     1. (1)

        abuse, threats and coercion by the applicant;

     2. (2)

        the applicant’s access to firearms;

     3. (3)

        the circumstances of the retraction statement; and

     4. (4)

        the incident which implicated the complainant’s mother.

126. [132]

     On the following morning, the applicant’s trial counsel applied for the trial judge to recuse herself and vacate the trial. He submitted that, if the complainant’s mother’s latest statement had been disclosed before the beginning of the trial, a different approach would have been taken in respect of “two significant witnesses” and that there would need to be a “considerable recalibration of the defence case” which would not be a “contradictory case” but “one with very much a different emphasis”. He submitted that the applicant needed an opportunity to “present his case as he chooses to do so not a case that is forced upon him by circumstances mid-stride”.

127. [133]

     In response the prosecutor submitted that each of the matters in the new statement had been canvassed already and that it was not an unusual circumstance that the evidence changes throughout a trial. He submitted that it was difficult to see how the new statement would change the way in which the complainant was cross-examined, given that the defence case was that none of the acts charged occurred. The prosecutor submitted that an adjournment would be sufficient and that the Crown was prepared to have any of the prosecution witnesses made available for further cross-examination, if required. He emphasised the benefit of a trial by judge alone in such a circumstance.

128. [134]

     In reply, the applicant’s trial counsel said, in part:

129. [135]

     The trial judge stood the matter down until noon and delivered an ex tempore judgment refusing the application. In her reasons, the trial judge noted that the applicant had applied for a trial by judge alone and that the Crown had consented to the application (thereby mandating that the trial would be by judge alone: s 132(2) of the Criminal Procedure Act 1986 (NSW)) “due to the potential contentious nature of evidence of certain witnesses and in particular the complainant's mother”.

130. [136]

     The trial judge’s reasons included the following:

131. [137]

     The proceedings resumed about four weeks later. The complainant’s mother continued to give her evidence and was cross-examined. She accepted that she had counter-signed the retraction statement. She denied many of the previous statements which she had made, including parts of what was set out in her police statement dated 26 August 1993 (in which she had supported the applicant). She denied that the complainant had ever complained to her about the sexual assaults. It is not necessary to review her evidence in detail as it was not accepted by the trial judge.

132. [138]

     The prosecutor’s closing address reflected the Crown case as summarised above. The prosecutor described the complainant’s mother as a “curious witness” and pointed to occasions on which she admitted that she had lied to police. The prosecutor also referred to the complainant’s mother’s denial that the complainant had told her about the sexual abuse. He submitted that the complainant’s evidence that her mother had asked her to suck her breast was corroborated by her mother’s evidence about that incident.

133. [139]

     At times in the closing address, the prosecutor made references to demeanour. For example, the prosecutor said of AE:

134. [140]

     The applicant’s trial counsel submitted that the complainant was an unreliable witness. He relied heavily on the circumstance that the complainant’s mother considered her daughter to be a liar. Indeed, he commenced his closing address as follows:

135. [141]

     The applicant’s trial counsel submitted of the complainant’s mother’s evidence:

136. [142]

     The applicant’s trial counsel propounded his case theory in closing address that the so-called “admissions” made by the applicant to his family members were based on a misunderstanding of what the applicant had actually said. He submitted that the applicant was merely telling his family members not to give the complainant a “hard time” as she had already had a hard time by being bullied at school and having other issues during her childhood and adolescence.

137. [143]

     The applicant’s trial counsel concluded his closing address by submitting that the complainant’s preparedness to stay with the applicant in Queensland when she was 17 was inconsistent with her evidence of the sexual assaults while she was a child. He said:

Ground 1: alleged miscarriage of justice arising from the trial judge’s refusal to recuse herself and vacate the trial

1. [144]

   Mr Walker, who appeared for the applicant in this Court, submitted, in writing, in support of ground 1:

2. [145]

   Mr Walker accepted that the Crown called the complainant’s mother as a witness in the prosecution case as part of its obligation to call all material witnesses: Whitehorn v The Queen (1983) 152 CLR 657 at 674 (Dawson J); [1983] HCA 42. However, he could not point to any particular prejudice which the applicant had suffered as a result of the trial not being vacated and heard by a different judge. Nor could he provide an example of a forensic decision which may have been differently made, had the defence been aware of the gravamen of the complainant’s mother’s final evidence, in advance of the trial. He submitted, in effect, that this Court ought accept the submissions of the applicant’s trial counsel before the trial judge that the defence case would have been conducted in a different manner, had the statement made by the complainant’s mother on 21 October 2019 been served on the defence before the trial commenced on 15 October 2019.

3. [146]

   The applicable legal test is whether, as a result of the refusal of the application, there was a miscarriage of justice. The appeal is not against the decision of the trial judge to refuse the application, but rather against the convictions: Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [67] (French CJ, Hayne, Kiefel and Bell JJ) and see also the summary of principles in Ilievski v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 at [89] (Dhanji J). Adopting the language of Basten JA in Conway v R [2023] NSWCCA 265 at [34], the proper question for this Court is whether the failure to vacate the trial and have it re-listed before a different judge had a prejudicial effect sufficient to deprive the appellant of a fair trial or could realistically have affected the verdicts.

4. [147]

   The adjournment of the trial for four weeks to enable the applicant’s trial counsel to (as he put it) “recalibrate” the defence case in light of the complainant’s mother’s evidence was ample. It is telling that the applicant’s trial counsel did not avail himself of the Crown’s offer to make any prosecution witness available for further cross-examination. As it turned out, no “recalibration” was required. The defence case was, from start to finish, a denial of any of the sexual conduct and an assertion that the complainant was a liar who had fabricated all of the allegations. The applicant’s trial counsel took such forensic advantage as he was able from the complainant’s mother’s evidence and relied heavily on her evidence that the complainant had not complained to her. Neither the applicant’s trial counsel in submissions in support of the application, nor Mr Walker, was able to identify with any particularity any forensic disadvantage which the applicant suffered as a result of the complainant’s mother departing from her earlier police statements in her evidence.

5. [148]

   I am not persuaded that there was any miscarriage of justice. The Crown case did not depend on the complainant’s mother’s evidence and rested on the evidence identified above (the complainant’s evidence, the evidence of complaint, the medical examination of the complainant by Dr Duncan and the evidence of the admissions made by the applicant to his family members). The complainant’s mother was called, as a matter of fairness to the applicant, so that she could be cross-examined by the applicant’s trial counsel. The prosecutor correctly anticipated that her evidence might be unfavourable to the Crown (thereby attracting the operation of s 38 of the Evidence Act). Further, she was implicated in at least some of the conduct and had, on the Crown case, signed a false police statement on 26 August 1993 (thereby potentially requiring consideration of s 128 of the Evidence Act).

6. [149]

   The complainant’s mother’s evidence did not materially affect the strength of the Crown case. She was not a witness to most of the sexual acts against the complainant; nor was she a witness to the admissions the applicant made to his family members; she was not present when the complainant complained to ES, PW or, initially, to the police. Her evidence was largely self-serving and did not undermine the complainant’s credibility in any material way.

7. [150]

   For these reasons, ground 1 has not been made out.

Ground 2: alleged unreasonable verdicts

1. [151]

   The proper approach for this Court when considering the reasonableness of a conviction after a judge alone trial is the same as that confirmed as being the correct approach following a jury trial in M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ).

2. [152]

   This Court summarised the relevant principles which apply to an unreasonable verdict ground in Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ), as follows:

3. [153]

   The question is whether it was “open” to the tribunal of fact to find the applicant guilty or whether it “must have had a doubt”: M v The Queen; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

4. [154]

   A verdict of guilty may be reasonable even if the complainant’s evidence is not corroborated: Pell at [53].

5. [155]

   The tribunal of fact (whether jury or judge) has the primary function of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). While this Court is obliged to proceed on the basis that the complainant’s evidence as to the elements of the offences for which the applicant was convicted was accepted by the tribunal of fact as credible and reliable, the Court is not bound to find that the conviction based on that evidence was reasonable. In Pell, the High Court said at [39]:

6. [156]

   Thus, this Court’s power to disbelieve a witness whom the tribunal of fact has accepted as, relevantly, credible and reliable is constrained. In Z (a pseudonym) v R [2022] NSWCCA 8 (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing), this Court said at [29]:

7. [157]

   Although this Court is entitled to have regard to the trial judge’s reasons for verdict, it must do so with circumspection, so as not to be diverted from its task of independently assessing the evidence for the purpose of determining whether it was open to the tribunal of fact (in this case, the trial judge) to be satisfied of the applicant’s guilt beyond reasonable doubt: Dansie at [16].

8. [158]

   Mr Walker principally relied on the second sentence of [39] in Pell in support of his submission that, notwithstanding the trial judge’s acceptance of the complainant’s evidence of the charges, this Court ought be satisfied that the tribunal of fact, acting rationally, ought to have entertained a reasonable doubt as to the applicant’s guilt because of inconsistencies and discrepancies in the complainant’s evidence.

9. [159]

   In support of this submission, he relied on the following matters:

   1. (1)

      the number of police statements which the complainant had made and her failure to reveal certain matters in particular statements at particular times;

   2. (2)

      the gross inconsistency between the retraction statement and the complainant’s evidence;

   3. (3)

      the lack of corroboration of (and denial of) the complainant’s evidence that she had played the video recording of the applicant performing sexual acts on her to RW and SiW;

   4. (4)

      the complainant’s failure to mention the admissions made by the applicant in December 1993 when she contacted the police again in 2013, particularly in circumstances where it was SB’s communication to her about those admissions which prompted her to contact police again;

   5. (5)

      the complainant’s letter to RS (her youngest half-brother) in 1995 in which she had referred to the applicant as “Daddy” and had included, “I miss you all” (which Mr Walker submitted indicated that she missed the applicant as well as her half-brothers);

   6. (6)

      the complainant’s preparedness, at the age of 17, to leave her mother’s house in Newtown and travel to Queensland for 8 weeks to divide her time between the applicant’s house (where her half-brothers lived) and her maternal uncle PaW’s residence;

   7. (7)

      the circumstance that the complainant did not mention her conversation with the applicant during this stay when she asked him “Why me?” and he answered that he thought that she enjoyed it; and

   8. (8)

      the complainant’s mother’s evidence that the complainant was a troubled child and a liar and that she had never complained to her about having been sexually assaulted by the applicant.

10. [160]

    Before turning to each of these matters, it is important to have regard to the particular issues which arise when a tribunal of fact is called upon to assess the evidence of child complainant in a sexual assault trial.

11. [161]

    The starting point is the directions which the Criminal Procedure Act requires be given to the tribunal of fact (in this case the trial judge directing herself) regarding a complainant’s evidence in sexual assault trials. First, if there are differences in a complainant’s account, the judge may inform the jury in accordance with s 293A (as it applied at the date of the trial) “that experience shows … people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and … trauma may affect people differently, including affecting how they recall events, and … it is common for there to be differences in accounts of a sexual offence, and … both truthful and untruthful accounts of a sexual offence may contain differences, and … that it is up to the [tribunal of fact] to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability”. Secondly, if it is suggested that there has been an absence of complaint or delay in complaint, the judge must warn the tribunal of fact in accordance with s 294 that “an absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and … that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault”.

12. [162]

    Further, it is well-established by decisions of this Court that assumptions based on misconceptions about how a sexual assault complainant might behave are inappropriate: see, for example, Khamis v R [2018] NSWCCA 131 at [56]–[58] (Gleeson JA), [533] (Button J); Rao v R [2019] NSWCCA 290 at [98] (Gleeson JA); Xu v R [2019] NSWCCA 178 at [92] (N Adams J); Maughan v R [2020] NSWCCA 51 at [2] (R A Hulme J), [13] (Adamson J), [99] (Ierace J).

13. [163]

    There are also particular considerations which may be relevant to the assessment of a child’s evidence or the evidence of an adult about events which occurred when the witness was a child. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing):

14. [164]

    In addition, it has been noted that it is not uncommon for children to be imprecise about time and sequence of events, including sexual offences: BCM v The Queen [2013] HCA 48 at [45]-[47] (Hayne, Crennan, Kiefel, Bell and Keane JJ); (2013) 88 ALJR 101.

15. [165]

    The tribunal of fact was required to have regard to the evidence as a whole. The evidence included the evidence that the applicant admitted to members of his family that he had done what the complainant had alleged. The complainant’s evidence of his admission in the solar tint shop was wholly corroborated by GS, AE, DS and the hearsay evidence of SB (whom the complainant did not appreciate could hear what was going on). The impact of the admission was immediate and substantial: GS left the room to vomit; DS threw something; and AE became very concerned about the effect of the admission on GS, who felt terribly sorry for the complainant and was obviously troubled by the fact that she had earlier sworn an affidavit in support of the applicant.

16. [166]

    I turn now to address the specific matters raised by Mr Walker (set out above).

17. [167]

    As to (1), having considered all of the evidence, I am not persuaded that minor discrepancies as to timing or acts are such as ought to have caused the tribunal of fact to doubt the complainant’s credibility or reliability as to the offences charged. It was open to the tribunal of fact, including by reason of the directions in s 293A and s 294 of the Criminal Procedure Act and the matters referred to in Reed v R and BCM v The Queen, to consider that the complainant’s memory of the events was affected by time and that she was able to remember further details as time passed but that these variations did not impugn her reliability.

18. [168]

    As to (2), the evidence of the circumstances of the retraction statement is set out above. By its very nature, a retraction by a complainant is forensically significant: it may indicate either that the complainant has actually lied and wants to set the record straight; or that the complainant has been subject to pressure, often from an assailant or those associated with the assailant, to withdraw the original statement. If the former, it is a powerful piece of evidence which weakens, and usually destroys, the prosecution case; if the latter, it tends to strengthen the prosecution case. It is evident from the verdict (and confirmed by the trial judge’s reasons) that the tribunal of fact accepted that the retraction statement was false.

19. [169]

    Having regard to the whole of the evidence, I do not regard the making of the retraction statement as impugning the credibility of the complainant. Indeed, it tended to support her evidence of the physical abuse which she had suffered at the hands of her mother during her childhood and the extent to which her mother was prepared to act to the complainant’s detriment in order to protect her relationship with the applicant.

20. [170]

    Further, it was open to the tribunal of fact to regard the applicant’s admissions which were made shortly after the making of the retraction statement as establishing its falsity. After the applicant’s family became aware, in about late August 1993, of the complainant’s allegations against the applicant, they turned their back on the complainant and sided with the applicant. This circumstance caused tension in the family as well as between the complainant’s mother and the applicant because none of the applicant’s family members wanted to engage with the complainant because they each thought that she was a liar (and GS had gone so far as to swear an affidavit to that effect).

21. [171]

    In this context, it was open to the tribunal of fact to consider that the applicant was motivated to come clean with his own family members so that they would not remain hostile to the complainant (by “giv[ing] her a hard time”, as he put it). Further, it was open to the tribunal of fact to consider that the applicant believed that, once he had admitted the truth of the complainant’s allegations, his own family would, once again, accept the complainant as his step-daughter and that there would be no adverse ramifications for him because, first, his immediate family would not disclose his admissions out of loyalty to him and, second, he could rely on the complainant’s retraction statement. Indeed, it would appear that the complainant expected that all of the applicant’s family members would deny his admissions to them and that no one outside the family would believe her that the admissions had been made. It was open to the tribunal of fact to reason that, in light of the applicant’s admissions, the retraction statement must be false and that the complainant’s original allegations were true.

22. [172]

    As to (3), the complainant gave evidence that she played the video recording of the applicant committing sexual acts on her to her aunts, RW and SiW. Detective Smith made a note to the effect that although RW remembered that the applicant had a video recorder, she denied that the complainant had played the video recording to her. Neither RW nor SiW gave evidence. Detective Smith contacted RW some time after 2013 when the matter was allocated to her, a period of at least 20 years after the alleged offences. Whether or not the complainant played the video recording to RW and SiW was a matter of little moment in the context of the whole of the evidence in the trial and it was open to the tribunal of fact to regard this detail as peripheral to its assessment of the complainant’s credibility. This is particularly so as RW recalled that the complainant had told them about the sexual assaults.

23. [173]

    As to (4), the applicant’s admission to his family members at the solar tint shop was amply established by the evidence of GS, AE, DS and the hearsay evidence of SB, all of which corroborated the complainant’s own evidence of the admission. The complainant was cross-examined at length about her failure to tell Detective Smith about the applicant’s admissions when she first spoke to her in 2013. The narrative of the evidence demonstrates the complainant’s reasons for not telling Detective Smith about the admissions immediately: first, her answers indicated that she had no idea of their forensic significance; and, secondly, she was convinced that no one would believe her as she thought that none of the members of the applicant’s family would tell the truth about the admissions because she thought that they would side with the applicant. As she put it, “I didn’t think his family would even turn around and say yeah, he did admit it to us.” It was open to the tribunal of fact to consider that the complainant had every reason to think that the adults present would deny what had happened: first, they were related to the applicant; and, secondly, the complainant’s experience of life had been that adults (such as her mother and the applicant) lie to support each other against children.

24. [174]

    Furthermore, there was no reason for the complainant to withhold information about the admissions from the police. It was open to the jury to infer that she had no appreciation of how supportive of her own evidence the applicant’s admissions were.

25. [175]

    As to (5), Mr Walker submitted that this letter indicated that the complainant still called the applicant “daddy” and that she missed him and that these matters demonstrated that she must have been lying about the sexual assaults.

26. [176]

    This submission rests on dubious assumptions about the nature of love and abuse (reflected similarly in the fact that the complainant did not tell the police about the incident in which her mother asked her to suck her breasts because she was her mother). However, in any event, the complainant gave an explanation for the letter which it was open to the tribunal of fact to accept.

27. [177]

    The context in which the letter was written was as follows. The complainant was only a few years older than her half-brothers. She had known each since birth and had looked after them and loved them. When the applicant and her mother separated, she no longer saw her half-brothers (who lived in Queensland with their father) and she missed them. Whatever (understandable) hostility she bore towards the applicant, she bore none towards them. As she explained in her evidence, she stopped calling the applicant “dad” prior to writing this letter to RS but her reference to “daddy” was because the applicant was RS’s father and her reference to missing them “all” was a reference to her three half-brothers, whom she did indeed miss. It was open to the tribunal of fact to find that the writing of this letter was an expression of the complainant’s familial love for her half-brothers and did not in any way impugn the credibility of her evidence.

28. [178]

    As to (6) above, Mr Walker submitted (as the applicant’s trial counsel had done at the conclusion of his closing address) that it was, in effect, inconceivable that the complainant would stay under the same roof as the applicant in Queensland if her allegations that he had sexually assaulted her were true.

29. [179]

    It was open to the tribunal of fact to regard the following factors as explaining the complainant’s willingness to go to Queensland, notwithstanding the offending conduct. First, the complainant’s evidence was that the applicant had sexually assaulted her repeatedly up until August 1993 (when she was 11 years old) but not since then. Secondly, in December 1993, the applicant had, in order to get his own family to accept the complainant again and not give her a “hard time”, admitted that he had sexually assaulted her. Thirdly, the complainant loved and missed her three half-brothers, who were still of school-age and lived with the applicant in Queensland. Fourthly, other members of the complainant’s family, including her uncle, PaW, lived in the vicinity. Fifthly, the complainant had been living with her mother in Sydney but her mother had a new boyfriend, with whom she did not get on.

30. [180]

    In these circumstances, it was open to the tribunal of fact to accept the complainant’s evidence, “I was 17. I wasn't scared of [the applicant] anymore. He couldn’t hurt me anymore and my love for them boys to know that they're okay was stronger than any fear that I ever had”.

31. [181]

    As to (7) above, Mr Walker submitted that the complainant’s credibility was adversely affected by the circumstance that she had not disclosed to police that she had spoken to the applicant about the sexual offending when she was staying with him in Queensland when she was 17 years old. The complainant’s evidence to this effect was elicited by the applicant’s trial counsel in cross-examination in the following exchange:

32. [182]

    It was open to the tribunal of fact to accept that the reason the complainant did not disclose this conversation with the applicant was that she was not asked, until the applicant’s trial counsel raised it in cross-examination, about the trip to Queensland or whether she had ever discussed the sexual offending with the applicant after his admissions in December 1993. In these circumstances, it was open to the tribunal of fact to regard the complainant’s evidence as reliable and credible and not undermined by any alleged failure to mention it earlier.

33. [183]

    As to (8) above, Mr Walker submitted that the complainant’s evidence of the sexual assaults ought not be accepted because her mother gave evidence that the complainant was a troubled child and a liar and that she had never complained to her about having been sexually assaulted by the applicant.

34. [184]

    The complainant gave evidence that she complained to her mother, which was denied by her mother. It was open to the tribunal of fact to accept the complainant’s evidence that she complained to her mother and to reject her mother’s evidence (which was self-serving) to the contrary. However, even if the tribunal of fact did not accept that the complainant had complained to her mother, there was ample complaint evidence which the tribunal of fact was entitled to regard as supportive of the complainant’s evidence: for example, the evidence of the complaint to ES (which was supported by contemporaneous notes) and to PW. It was also open to the tribunal of fact to have regard to the evidence of PW that, from the time the complainant moved away from PW’s home, she became troubled and had toileting issues which she had not had as a toddler. This timing coincided, in substance, with the commencement of the sexual offending by the applicant. Further, the defence counsel accepted in final address that the complainant’s mother’s evidence was problematic and, implicitly, that it would be open to the tribunal of fact to reject it.

35. [185]

    I have addressed the specific matters raised by Mr Walker on behalf of the applicant, each of which was raised before the tribunal of fact during the trial, either in cross-examination or closing address, or both. In addition, I have reviewed all of the evidence in the trial as required in consideration of an unreasonable verdict ground. Although I have read the trial judge’s reasons for verdict, I have not allowed myself to be diverted by them and have independently assessed the evidence adduced at the trial. The Crown case was very strong and comprised credible evidence of the complainant, reliable complaint evidence (which was supported by contemporaneous documents), medical evidence of a timely medical examination and evidence of unequivocal admissions by the applicant established by witnesses whose credibility was fortified by the fact of their being members of his own family (and not related to the complainant). I consider that it was open to the tribunal of fact to return a guilty verdict in respect of each count. I have no doubt about the applicant’s guilt on any of the counts.

Extension of time for leave to appeal against conviction

1. [186]

   As set out above, the applicant filed a notice of intention to appeal on 24 June 2020. He filed applications for extension of time on 19 January 2021 and 22 March 2021, each of which was granted. The last of these was granted on 9 April 2021 and extended the time for filing the notice of appeal to 23 May 2021. On 28 April 2023, the applicant provided a letter explaining that he had been diagnosed with a brain tumour. He filed a notice of appeal on 3 April 2024.

2. [187]

   The respondent submitted that neither an extension of time to file the notice of appeal, nor leave to appeal, ought be granted because the appeal against conviction was without merit. I consider that, as all matters raised have been addressed at length, it is appropriate to grant an extension of time for leave to appeal against the convictions.

Conclusion on conviction appeal

1. [188]

   For the reasons given above, I would grant leave to appeal against the convictions but dismiss the appeal.

Application for an extension of time for leave to appeal against sentence

1. [189]

   As with the application for leave to appeal against conviction, the applicant requires an extension of time for leave to appeal against his sentence.

2. [190]

   The applicant does not challenge the correctness of the sentence at the time at which it was imposed. Rather, he submitted that this Court ought intervene to reduce his sentence on the ground that, at the time the sentence was imposed, he was suffering from a brain tumour, which was, at that time, undiagnosed.

3. [191]

   The applicant relied on a letter dated 28 April 2023 by A/Professor Elizabeth Hovey, Senior Staff Specialist at the Department of Medical Oncology at the University of New South Wales in support of a submission that, at the date of the letter, the applicant was suffering from a terminal illness, which may have been present but latent for a number of years. The letter appears to have been written to support an application for early release to parole and does not address the relevant question for present purposes, which is whether the applicant was suffering from an undiagnosed brain tumour as at 11 June 2020, being the date on which the sentence was imposed.

4. [192]

   Dr Hovey said in part:

5. [193]

   Generally, the appropriateness of a sentence is to be determined by reference to the evidence adduced and submissions made in the sentencing proceedings: Iglesias v R [2006] NSWCCA 261 (Iglesias) at [8] (McClellan CJ at CL, Hulme and Hall JJ agreeing).

6. [194]

   In R v Munday [1981] 2 NSWLR 177 at 178, Street CJ said (Moffitt P and Lee J agreeing):

7. [195]

   However, there is a limited exception to this principle. In exceptional circumstances, this Court may receive fresh evidence which may, if appropriate, cause this Court to intervene and resentence: R v Bailey (1988) 35 A Crim R 458 (Bailey). Such exceptional circumstances have been found to have been established where an applicant can show that a medical condition which existed at the time the sentence was imposed has later been found to be extremely serious and well beyond that which was known when the sentence was imposed.

8. [196]

   In Bailey, the applicant, while on remand awaiting sentence, had shared needles with other persons in custody. He subsequently tested positive for HIV, although the disease had not been diagnosed at the time he was sentenced. Lee J (Maxwell and Yeldham JJ agreeing) said (at 462):

9. [197]

   The letter of Dr Hovey falls short of establishing that the applicant had a brain tumour at the time the sentence was imposed. Dr Hovey’s opinion rises no higher than that it was possible that the tumour “may” have started at a lower grade and that it was possible (implied by the words, “could mean that the tumour has likely been around for some years”) that the tumour has been present for some time. There is no reference to the date of imposition of sentence and no opinion expressed as to that date. Further, Dr Hovey’s opinion that the tumour may have been causally connected with the offending is offered without any identification of what the offending was or when the offences were alleged to have been committed. The opinion, in so far as it warrants that description, is inadmissible in that form.

10. [198]

    Further, evidence adduced by the respondent is to the effect that, as at 26 September 2023 and 31 October 2023, Dr Hovey noted that the applicant appeared to be “clinically stable”. This situation continued up until the latest note of 27 February 2024. Thus, it would appear that Dr Hovey’s opinion has not been borne out by what has occurred since she wrote her letter of 28 April 2023.

11. [199]

    However, even if the Court considered that the fresh evidence ought be received, it does not follow that the Court would intervene: Iglesias at [12]-[13]. It is “critical” to that question whether, by reason of the diagnosed medical condition, the applicant’s time in custody would be more onerous than was appreciated by the sentencing judge at the time the sentence was imposed and the availability of medical facilities which would enable an applicant to be treated while in custody: Iglesias at [13].

12. [200]

    I am not persuaded that, even if the evidence of Dr Hovey (and the respondent’s evidence in response) were properly admitted as “fresh evidence”, this Court ought intervene. First, the applicant is no longer in custody as he was released to parole on 24 April 2024 and was in court in person at the hearing of this matter. Second, even if the principles were applicable to conditions on parole (a matter which is not necessary to decide but would appear doubtful), Mr Walker could not identify any parole conditions with which the applicant’s medical condition made it difficult to comply. Thirdly, the medical interventions of surgery, chemotherapy and radiotherapy were all performed in custody and appear to have had a salutary effect. Fourthly, the non-parole period stipulated by the sentencing judge and the total term were, in my view, at or near the bottom of the available range: Iglesias at [19]. The offending was very serious and has, as is not uncommon, had a lifelong effect on the complainant.

13. [201]

    For these reasons, I regard the challenge to the sentence as so devoid of merit as not to warrant an extension of time. Accordingly, I would refuse an extension of time to seek leave to appeal against sentence.

Orders

1. [202]

   For the reasons given above, I propose the following orders:

   1. (1)

      Extend the time for filing of the notice of appeal with respect to grounds 1 and 2 (against conviction) to 3 April 2024.

   2. (2)

      Grant leave to appeal against the conviction (grounds 1 and 2).

   3. (3)

      Dismiss the appeal against conviction.

   4. (4)

      Refuse to extend time for filing the notice of appeal with respect to ground 3 (against sentence).

2. [203]

   STERN JA: I agree with the orders proposed by Adamson JA and with her Honour’s reasons for proposing those orders. The following matters are not intended to indicate any disagreement with her Honour’s reasons.

3. [204]

   As to ground one, I am well satisfied that no miscarriage was occasioned by the decision of the trial judge not to abort the trial and recuse herself. As Adamson JA has identified, this was a judge-alone trial, the trial judge allowed a period of four weeks to allow the defence to conduct further inquiries and the Crown indicated that witnesses could be made available for further cross-examination. Further, and of some significance, counsel for the applicant did not identify any particular prejudice having been occasioned by the failure of the trial judge to abort the trial and it does not appear that there was any material recalibration of the defence case at trial when the hearing resumed.

4. [205]

   As to ground two, I also have conducted my own independent assessment of the evidence and am not left in any doubt as to the reasonableness of the verdict. The Crown case was strong. There was evidence of contemporaneous complaint, the letter from ES and a diary entry that supported the complainant’s account, medical evidence supportive of her account and evidence of admissions made by the applicant to those who would naturally have an allegiance to him. For the reasons given by Adamson JA, none of the matters relied upon by the applicant do not cause me to doubt the applicant’s guilt on any of the counts.

5. [206]

   As to the application for leave to appeal against sentence, I have nothing to add to the reasons given by Adamson JA for refusing leave to appeal.

6. [207]

   FAULKNER J: I agree with the conclusions of Adamson JA and the reasons for those conclusions. I have conducted a review of the evidence. I have no doubt of the reasonableness of the verdict.

7. [208]

   There is one matter I wish to address.

8. [209]

   In Maughan v R [2020] NSWCCA 51 at [2], R A Hulme J referred to:

9. [210]

   This case demonstrates the futility referred to in the first sentence but not the movement referred to in the second. In support of the applicant’s submission that the conviction is unreasonable and cannot be supported having regard to the evidence, the applicant relied on the eight matters set out in the judgment of Adamson JA at [159] above.

10. [211]

    Matters (5) and (6) relate to specific behaviour by the complainant after the offences were alleged to have been committed, namely referring to the applicant in a birthday letter written to her younger brother and voluntarily staying in the applicant’s home when she was 17. The two instances of behaviour were relied upon before the trial judge, together with the complainant posing with the applicant for a photograph in December 1993. It was submitted that the complainant’s behaviour was inconsistent with the complainant being a victim of earlier sexual abuse at the hands of the applicant. Had the complainant really been a victim, it was submitted to the trial judge that “there’s no way” she would have behaved as she did. On appeal, it was submitted that “one would think” that she would have behaved otherwise.

11. [212]

    Having regard to the particular behaviour in question, the applicant’s reasoning depends on an unspoken assumption about the way victims of sexual abuse behave. The assumption necessarily extends to all victims of sexual abuse in all cases and makes no allowance for the unique circumstances of the individual person in the particular case. As such, the applicant’s submission rose no higher than an assertion.

12. [213]

    The persuasive value of the evidence about the complainant’s subsequent behaviour, if any, pales in comparison to the highly persuasive value of the credible and reliable evidence which the complainant gave in the District Court in October 2019, together with the complaint’s contemporaneous diary entries and letter, the contemporaneous complaints which she made to ES and PW, the expert evidence of Dr Duncan and the evidence from four witnesses (including two of the applicant’s siblings) about the applicant’s admissions in the summer of 1993/1994.

13. [214]

    In my view, the matters relied upon by the applicant fell well short of that required for a finding by the Court that, notwithstanding the trial judge’s assessment of the complainant as a credible and reliable witness, her Honour ought nonetheless to have entertained a reasonable doubt as to proof of the applicant’s guilt.

14. [215]

    I agree with the orders proposed by Adamson JA.