Duncan v R

1. [1]

   ADAMSON JA: Neil Duncan (the applicant) seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against his conviction on 2 June 2022 of eight offences of sexually touching a child, which concerned three complainants, following a trial before a jury and Tupman DCJ (the trial judge) in the District Court at Queanbeyan. The trial commenced on 3 May 2022. Verdicts were returned on 2 June 2022.

2. [2]

   The applicant pleaded not guilty to 16 offences, 14 of which were contrary to s 66DB(a) of the Crimes Act 1900 (NSW), against five complainants, each of whom was aged between 10 and 14 years at the time of the offences. The charges are summarised in the following table.

3. [3]

   On 4 November 2022, the trial judge imposed for counts 5, 6, 7, 8, 12 and 13 an aggregate sentence of 5 years’ imprisonment, commencing on 2 November 2022 with a non-parole period of 2 years and 6 months’ imprisonment which will expire on 1 May 2025. For counts 9 and 10, the trial judge convicted the applicant with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). There is no application for leave to appeal against sentence.

4. [4]

   The applicant seeks leave to appeal against his conviction upon a single ground: that the jury’s verdicts on counts 5, 6, 7, 8, 9, 10, 12 and 13 were unreasonable and unsupported by the evidence. As this ground does not involve a question of law alone, leave to appeal is required: s 5(1)(b) of the Criminal Appeal Act.

5. [5]

   As this was the sole ground, there was no criticism of the trial judge’s directions or the summing up. In these circumstances, it is not necessary to detail the directions given or address the summing up, since it is the evidence in the trial which must be assessed to determine whether the unreasonable verdict ground is made out.

The prosecution evidence

1. [6]

   Before considering the ground, it is necessary to set out the evidence in support of the counts on which the applicant was convicted. With one exception, it is not necessary to consider the evidence of the complainants in respect of charges where no verdict or a verdict of not guilty was returned because there is no allegation that the verdicts were inconsistent. However, as RN gave complaint evidence in respect of counts 5, 6, 7 and 8 (sexual touching of OO) and the applicant submitted that the similarities between the evidence of RN and OO raised the potential for contamination, reference will also be made to her evidence.

2. [7]

   The applicant was married and had two daughters, Z and L. He owned competition horses at his property at Coopers Gully, near Bega and give riding instruction to his daughters’ friends there. On occasion, he would travel to remote areas and camp with one of his daughters and another young girl and the three would go riding. They would camp in swags on these occasions.

3. [8]

   As indicated in the above table, verdicts of not guilty were returned in respect of counts 1 and 2 and the jury was unable to reach a verdict in respect of counts 3 and 4. Each of these counts was alleged to have occurred in 2019 when RN was 13 or 14 years old and was camping with the applicant and L (the applicant’s younger daughter). Counts 1 and 2 alleged the applicant touched RN’s breast (twice) while she was sitting beside the campfire. Counts 3 and 4 concerned the same camping trip and alleged he touched her breast when she was in her swag, and then touched the top of her genitals.

4. [9]

   RN was interviewed by police when she was 15 years old. She told police that she went camping at Pinch River with the applicant and L. She said that the applicant put his hand in her swag and massaged her near her vagina and then massaged her breasts or rubbed her stomach. She said when he was doing that it was very quiet or he would be talking to L. She said that he did it very slowly and softly. She found it “scary” and “very confronting” and said that she was “quite frightened”. She said that she could not ring anyone because she was out of service range.

5. [10]

   RN was cross-examined at trial about who she would have phoned if there had been mobile coverage. She answered that she could have called her parents, or older friends. The applicant’s counsel put to her that she did not tell her mother until after she had received a phone call from police and been interviewed. The following exchange ensued:

6. [11]

   OO was born in July 2005. In February and June 2019 (the time of the alleged offences) she was 13 years old. On 15 December 2020, when OO was 15 years old, she participated in a recorded interview with police, which was tendered at trial as her evidence in chief.

7. [12]

   OO gave evidence that whenever she rode the applicant’s horses, he “always like touched my leg, and like do random little things that were just really inappropriate and really gross… like just kind of like normalised”. She said he would try to get her to go to the bush.

8. [13]

   OO said that she, the applicant and L camped with horses in the Kosciuszko National Park. OO said she went to bed around 8.30pm. The applicant, whose swag was next to hers, put his hand in her swag, and then tried to go up her shirt and touch her “boobs”. OO tried to move away and told him to stop, but he did not. He said, “Oh, I don’t bite”. She said he went up her shirt and lifted the bra she was wearing and touched her breasts, for about five minutes. There was no conversation between them at that time.

9. [14]

   OO gave evidence that on 7 June 2019 (the first night of the trip) the applicant offered her alcohol, which she declined. That night, after they had got into their swags, the applicant “stuck his hand in my swag, touched my boobs again.” She told him to stop and zipped up her swag. She described him sticking his hand up her shirt, putting his hand on her breast, “fiddl[ing] his fingers around, it was really gross and uncomfortable”. She said that the applicant’s hand went under her bra and that the touching went on for about five minutes.

10. [15]

    OO said that on the second night, 8 June 2019 (the Saturday night), the applicant offered her Vodka Cruisers, and she drank “quite a few”, which made her a “bit wobbly”. She was cross-examined about this by the applicant’s counsel in the following exchange:

11. [16]

    Later on 8 June 2019, when OO was in her swag, the applicant stuck his hand in her swag and touched her breasts under her bra again.

12. [17]

    OO said:

13. [18]

    Later in the interview, OO told police:

14. [19]

    When asked about the applicant’s hands, OO confirmed that he was just using one hand. The questioning continued as follows:

15. [20]

    OO was cross-examined extensively about her evidence that she had gone into L’s swag after the alleged sexual touching. She said:

16. [21]

    In her police interview, OO told police that, two months after the incident on 10 February 2019 (count 5), she told RD (the complainant for counts 1-4, see table above), who was her best friend, about it. She said, “I didn’t really tell her like to the extent, I just said he was being creepy and tried sticking his hand in my swag”.

17. [22]

    OO was asked by the prosecutor at trial whether she had spoken with RN about something that RN had said had happened to her. OO answered:

18. [23]

    OO said that she could not remember “100% what [RN] said” and:

19. [24]

    OO was cross-examined about this evidence. She confirmed that she did not believe that she and RN ever went into detail about what happened to either of them or that she told RN what actually happened to her. The applicant’s counsel put that it was not true that they had never discussed it, OO said: “[n]ot that I believe. I believe that’s the truth. As far as I recall, for me that is the truth. That is all I remember as being the truth”.

20. [25]

    RN was interviewed by police on 9 February 2021. She was then 15 years old. She told police that she had told OO what had happened to her at Pinch River in 2019. She said she and OO “… explained, we told each other everything, so we kind of just sat down one day and spoke about the whole thing, um, like to each other, so we were comfortable doing it, um, and it was kind of just a way to get it out of our system”. RN said that she was “pretty sure” that she asked OO whether the applicant touched her and put his hand in her swag and that when OO had said that he had, they “went into a whole conversation about it”.

21. [26]

    RN said that when she was at OO’s house, shortly after OO had started riding with the applicant, possibly at the end of 2019, RN told OO that the applicant massaged her breasts, touched her bum and stomach, and held her hand. In cross-examination, the following exchange ensued:

22. [27]

    The applicant’s trial counsel continued:

23. [28]

    OO’s mother gave evidence that, after OO returned from the camping trip in June 2019, she and OO were waiting at the bus stop where OO was to be collected to be taken to school in the bus. OO told her about the applicant’s conduct. OO’s mother’s evidence of OO’s complaint was:

24. [29]

    The applicant’s trial counsel elicited from OO’s mother that in 2019, she had no recollection of ever permitting OO to drink alcohol and that OO had never asked her whether she could.

25. [30]

    The applicant’s trial counsel asked OO’s mother whether OO told her that she had moved into L’s swag to get away from the applicant, to which OO’s mother answered, “Yes, she did”.

26. [31]

    OO agreed that she was “always happy” to ride horses on the applicant’s property after February 2019. She explained:

27. [32]

    When she asked whether she ever made up excuses to get out of riding horses, she answered:

28. [33]

    OO said that she did make up excuses not to have to stay at the applicant’s house and, on such occasions, “would just call mum and ask her to come and pick me up”.

29. [34]

    After the June 2019 camping trip (counts 6, 7 and 8), OO continued to ride at the applicant’s property and stayed overnight (although the overnight stays were less frequent than previously). However, she refused to go “back to the bush”. In her interview with police, OO said that after she had competed in the State Championships on 30 September 2019, she stopped riding with the applicant. However, in evidence at the trial, she said that she “slowly stopped riding [the applicant’s] horses” because she was “getting annoyed because I loved Dynamite [one of the applicant’s horses] so much and I’d been chucked off him and onto their young horses again, which I was just getting sick of it at this point. I was being tossed around”.

30. [35]

    The applicant’s trial counsel put to OO that she had a motive to lie because of her annoyance at being given “crap horses to train up and ride”, as is evident from the following exchange in cross-examination:

31. [36]

    Following this exchange, the screen was turned off as it was judged (by applicant’s trial counsel and the trial judge) that OO needed a break.

32. [37]

    Counts 9 and 10 alleged sexual touching of HU, who was born in April 2008. HU was 10 years old at the time of the alleged offences in counts 9 and 10 as well as when she was interviewed by police on 23 March 2019. As with the other complainants, the interview with HU was played to the jury as her evidence in chief at the trial. At the time of the trial, HU was 14 years old.

33. [38]

    HU told police in her interview that she slept over at the applicant’s house on the night of Wednesday 20 March 2019. On Thursday morning, 21 March 2019, the applicant, HU and L went to feed the horses. When they had finished, L’s grandmother came to collect them to take them to school. The applicant asked L for a hug, following which L ran to the car. The applicant then asked HU for a hug. She said: “he swiped down my breast and gave me a big squeezed hug”. HU then demonstrated to police the way the applicant hugged her, which she described as he “wrapped around me like that, and then he swiped down”. She said further that “he touched me and then, like, moved his around, arm around in circles and then he dragged it down and then squeezed me there [she demonstrated where the applicant had squeezed her in the interview].” She said that it lasted about two seconds. HU said that the applicant used his right arm to do this.

34. [39]

    Mr Stratton SC, who appeared in this Court with Ms O’Rourke on behalf of the applicant, accepted (and the Crown agreed) that it would be appropriate for the Court to view the portion of the recording of the police interview in which HU demonstrated how the applicant hugged her and “swiped” her breast. HU said, and demonstrated (as I have seen from watching the agreed portion of the recorded interview), that the applicant stood behind her and put his left hand on her hip and reached with his right arm over her shoulder, such that his forearm squeezed her breast. He circled his right forearm over her breast area and then grabbed her around the stomach. He then let go and HU ran to the car. She felt very uncomfortable. She did not say anything to the applicant.

35. [40]

    Count 10 concerned an incident on the afternoon of Thursday 21 March 2019, after school where, once again, HU went to the applicant’s home. HU said:

36. [41]

    Later in the interview, she said that she told him to stop at least two or three times because she wanted the applicant to stop touching her but “he left his hand there” and said, “It’ll be all right, HU.”. This made her feel “very, very uncomfortable”. HU’s shirt was untucked and his hand touched her on the skin, on the side of her waist. She told police:

37. [42]

    At the trial, HU was cross-examined about her evidence that she had told the applicant to stop, as follows:

38. [43]

    The applicant’s counsel sought to impugn HU’s credit by suggesting that it was a recent invention that she had tried to “pry” his hand away.

39. [44]

    HU said in her police interview that she had told two of her friends, MM and ES, about the applicant’s conduct. There was some uncertainty in her evidence as to whether she had told them on the day of the incident (Thursday 21 March 2019) or the following day (Friday). She said that she also told her teacher on the day she told her friends.

40. [45]

    HU told police that she told MM and ES together that the applicant had “started getting touchy on me”. HU described MM and ES’s response as follows:

41. [46]

    The police asked HU whether she had told Mr Shannon “exactly what [the applicant] had done”, to which she answered, “Yes.”. She said that after school she told her mother. Ultimately she said that it “may have been Friday” when she told her friends and Mr Shannon (being Friday 22 March 2019, the day after counts 10 and 11 and the day before HU was interviewed by police).

42. [47]

    HU told police that L phoned her on Friday 22 March 2019 and asked if she was coming over “sometime soon”, to which HU responded, “Probably not because Mum doesn’t want me going there anymore.”

43. [48]

    ES was interviewed by police on 17 April 2019, about four weeks after HU allegedly made a complaint to her. At that time, ES was 11 years old. She could not remember what day HU had made the complaint to her. ES said that HU told them that she had gone on a sleepover with Z (the applicant’s elder daughter). She told police:

44. [49]

    Later in the police interview, ES said:

45. [50]

    The following exchange also occurred in ES’s police interview:

46. [51]

    ES’s police interview was played to the jury as her evidence in chief. She was not cross-examined.

47. [52]

    MM was also interviewed by police on 17 April 2019. She was also, at that time, 11 years old. The following exchange occurred:

48. [53]

    Later in the interview, MM told police that HU had previously told ES and MM that she was going to the applicant’s place for riding lessons, as follows:

49. [54]

    The police then asked MM about what HU had told her and ES about what happened:

50. [55]

    In cross-examination, it was put to MM that HU only told her about the applicant touching her waist on the quadbike and not about touching her breast. MM disagreed and said that “[HU] definitely told us in that conversation.”.

51. [56]

    Mr Shannon gave the following evidence of being approached by HU, MM and ES on 22 March 2019:

52. [57]

    In cross-examination, Mr Shannon agreed that he had made notes at the time of the disclosure as follows:

53. [58]

    HU agreed that in May 2019 she phoned the applicant and apologised for an incident that occurred before the quad bike incident (21 March 2019) in which the horse she was riding ran off and she did not try to stop it. The applicant saw this occur and shouted at her to stop the horse, which she did. She was asked why she had phoned the applicant, to which she responded:

54. [59]

    Counts 12 and 13 concerned the complainant SC, who was born in January 2007. Both incidents were alleged to have occurred while SC was camping at Pinch River with the applicant and L in November 2019 when SC was 12 years old. During the trial there were some misstatements concerning the dates of this camping and horse riding trip. Mistaken dates carried through into parts of the submissions in this Court. SC said that the trip lasted three nights and four days and that the party returned home on the Monday. The dates must therefore have been Friday, 7 November 2019 to Monday, 10 November 2019. SC gave evidence in chief at trial by closed circuit television (pursuant to s 294B(3)(a) of the Criminal Procedure Act 1986 (NSW)), by which time she was 15 years old.

55. [60]

    SC said that on the Friday while they were driving and L was in the back seat behind the driver’s seat (where the applicant was sitting), L got out of the car to open a gate and the applicant leant back and rubbed SC’s leg. This conduct was not the subject of charge.

56. [61]

    On the first night, 7 November 2019, SC said L was in the swag on her right-hand side and the applicant was on her left-hand side. He unzipped her swag halfway down and put his hand inside her swag, underneath her shirt, on her stomach, then halfway under her sports bra and in so doing touched her skin. This lasted about 20 seconds. This aspect of the applicant’s touching of SC was not the subject of a charge. Later in her evidence in chief, when SC was taken back to her account of what occurred on the evening of 7 November 2019, she said that the applicant next moved his hand down to her genital area and rubbed up and down and in a circular motion on the outside of her jeans. She was uncertain how long this continued for. The following morning, the applicant said to her, “I hope that you are mature enough to keep this between you and I.”

57. [62]

    SC said that she was crying when she was at the toilet in the morning after this first incident (count 12) and that when she was coming back from the toilet tears were coming out of her eyes.

58. [63]

    The following day, 8 November 2019, SC, the applicant and L went riding. Later they were joined by another young person, Toby, and his father. The five of them sat around the campfire. SC estimated that they ate dinner at about 6pm because that was when it was getting dark. After they had eaten, they rugged the horses before SC and L went to bed (in their swags) at about 8pm. Toby slept about 20m away, next to his horse crate. The applicant and Toby’s father continued to talk and drink by the fire before going to bed at about 9.30pm. L and SC were still awake as they were playing games on their phones, which at that time were not connected to any service because of their location.

59. [64]

    The applicant positioned his swag so that he was on SC’s left side. L’s swag was on SC’s right side. The applicant unzipped SC’s swag, put his arm inside and rubbed her private area (her vulva, which she drew on a picture as she did not want to name the body part) on top of her jeans in an up and down motion as well as a circular motion. This went on for about 10 minutes.

60. [65]

    SC gave evidence that she and L went to bed around 8pm. She was in her swag, which was zipped up. She said the applicant went to bed at about 9.30pm, at which time she and L were awake playing games on their phones. SC gave the evidence of count 13 set out above. She was asked about where L was and what she was doing during the conduct, in the following passage:

61. [66]

    SC gave evidence that after the incident (count 13), there was a conversation between her and L. Although SC could not remember what the conversation was about, she said that it was not about what the applicant had just done to her. In cross-examination, SC said that to her knowledge, L was not awake when the applicant touched her, and did not remember whether she could see and hear L playing a game. She was further cross-examined as follows:

62. [67]

    SC agreed that she spoke to police on 28 August 2020 and that, before she spoke to police, she made notes in a notebook of her recollection of what the applicant did to her at Pinch River.

63. [68]

    It was put to SC that in her evidence in chief she had said that the applicant rubbed her leg in the car before the applicant had stuck his hand in her swag but that in her notes to police, she had written that he had done so on the second day (that is, after the applicant had put his hand in her swag on the first night). SC accepted that there was a difference in the order she had given in oral evidence and what she had recorded in her notes. However, she was definite that the applicant had rubbed her leg in the car.

64. [69]

    When the applicant was driving L and SC back after the camping trip, SC texted her mother and asked to be picked up at the Nimmitabel turnoff rather than, as had previously been arranged, Bega, where the applicant lived. Her parents collected her at the turnoff and took her home. She gave the following evidence of what occurred afterwards:

65. [70]

    SC agreed that she told her mother that she was terrified after the applicant touched her. She was asked if she remained terrified for the rest of the weekend to which she said that she was for the rest of her life.

66. [71]

    SC agreed that her evidence was that she did not tell her mother everything that happened at the camp. SC accepted that whatever she told her mother at the time would have been matters that were still fresh in her mind. It was put to SC that she told her mother that the applicant told her that he had brought raspberry drinks for “us girls” (SC and L) to which she responded that she did not remember. SC disagreed with the suggestion that the applicant had told her that he bought raspberry drinks for her and L to drink. It was put to SC that she did not tell her mum about the applicant offering her any pink drink. SC disagreed and said that she did. SC disagreed that she was making up the story about the applicant offering her some kind of pink drink and about the applicant saying that he could not give her the pink drink because of other people being around.

67. [72]

    SC’s mother gave the following evidence of what transpired on the evening of SC’s homecoming:

68. [73]

    The Crown relied on the evidence of each of the complainants to establish that the applicant had a tendency to have a sexual interest in female children and to act on that interest by sexually touching them.

Evidence in the defence case

1. [74]

   The applicant gave evidence at trial in which he denied each of the counts. In relation to some of the counts, he admitted the touching but denied that it was sexual. He said, in response to count 10, that he had his right hand around HU’s waist on top of her shirt on the quadbike. He said he had unintentionally touched SC’s breast (relevant to count 13).

2. [75]

   The applicant gave evidence that OO had drunk a Vodka Cruiser from his esky although he denied that he had offered it to her. He said that he had had conversations with OO’s mother where OO was “quite open about alcohol and that she was only a beer drinker in front of her mother and her mother did not blink an eyelid”.

3. [76]

   The applicant gave evidence that he does not normally hug his children. This evidence was adduced to prove that it was unlikely that the applicant would have asked L for a hug (as HU said was the prelude to his hugging her in count 9) or that he would have hugged HU.

4. [77]

   The applicant gave evidence that he moved SC’s leg out of the way in the car after a bag of food fell on the floor.

5. [78]

   L was born in December 2009 and was nine years old at the time of the February and June 2019 camping trips (four years’ younger than OO and three years younger than SC who also went on those trips). L was 12 years old at the time of the trial.

6. [79]

   L was asked about going on camping trips in 2019 with her father (the applicant) and OO. The following exchange ensued:

7. [80]

   The prosecutor cross-examined L about this evidence as follows:

8. [81]

   L said that the applicant was not a “hugging person” and denied that she had ever seen him hug HU.

9. [82]

   When asked if she remembered ever going camping with SC, L said, “kind of” and thought it was at Pinch River. She was not asked whether she saw or heard anything of the incident that occurred on the second night of the trip.

10. [83]

    L gave evidence of SC’s demeanour on the trip as follows:

11. [84]

    In cross-examination, L accepted it was possible that SC was crying and she just did not see it. She said she was mainly with SC the whole time, but also accepted SC would have gone to the toilet by herself and that if SC cried in the toilet, L would not have seen her cry.

12. [85]

    The applicant’s wife gave evidence that OO stayed overnight at their house on occasions in 2019, either before events or when OO was riding horses late. As far as the applicant’s wife was aware, OO slept alone in either one of two spare bedrooms.

13. [86]

    The applicant also adduced character evidence from three adults who said that they had no concerns about the applicant having contact with their children.

14. [87]

    The applicant’s mother-in-law also gave evidence. She said that in 2019 she took Z and L to school most days and that, if another child was staying over, she would also take that child. When she was asked whether she ever saw the applicant hugging any of the children on occasions when she took one of her granddaughter’s friends to school, she answered, “no, definitely not”. She also said that she never saw the applicant hug his own daughters before they left for school.

15. [88]

    Z accepted that the applicant hugged her on occasions but only when he went away.

General principles

1. [89]

   Section 6(1) of the Criminal Appeal Act relevantly provides:

2. [90]

   In Crickitt v R [2018] NSWCCA 240, this Court (Bathurst CJ, R A Hulme and Davies JJ) summarised the relevant principles to be applied when addressing an unreasonable verdict ground at [12]:

3. [91]

   Thus, this Court’s obligation is to determine whether it was “open” to the jury to find the applicant guilty or whether a jury “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21. This resolves itself into the question whether it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: 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. [92]

   A verdict of guilty is not unreasonable merely because a complainant’s evidence of guilt is uncorroborated: Pell at [53].

5. [93]

   The jury has the primary responsibility 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). This has the following consequences:

   1. (1)

      it is not generally appropriate, where evidence has been pre-recorded or recorded, for the appellate court to watch it to form its own view of the credibility of particular witnesses on the basis of their presentation, since this is the function of the jury as the tribunal of fact: Pell at [36]-[38];

   2. (2)

      this Court must proceed on the assumption that the jury accepted the evidence of the complainants (on which the verdicts of guilty was based) as credible and reliable: Pell at [39];

   3. (3)

      there are limits to the extent to which this Court is entitled to disbelieve a witness whom the jury must have accepted: Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing) and JL v R [2023] NSWCCA 99 at [95] (Adamson JA, Ierace and Sweeney JJ agreeing); and

   4. (4)

      this Court ought not presume to assess the behaviour of complainants of sexual assault by reference to stereotypical expectations or notions of plausibility derived from other contexts or circumstances: Maughan v R [2020] NSWCCA 51 (Maughan) at [2] (R A Hulme J) and [99] (Ierace J) and Rao v R [2019] NSWCCA 290.

6. [94]

   The observations of courts (which can be expected to accord with the collective experience of juries), which do not constitute legal principles may also be relevant to the factual assessment whether a verdict is unreasonable. For example, courts have observed as follows:

   1. (1)

      it is not uncommon for victims to remember specific details about the assaults but not peripheral or tangential details: Reed v R [2006] NSWCCA 314 at [64] (Spigelman CJ, McClellan CJ at CL and Sully J agreeing) and AS v R [2022] NSWCCA 291 at [137];

   2. (2)

      it is not uncommon for children to be imprecise about time: BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387 at [45]-[47];

   3. (3)

      variations in the terms in which a complainant discloses sexual assault or abuse may be explained by context: Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [82]ff (Hoeben CJ at CL, Button and N Adams JJ agreeing); and

   4. (4)

      a complainant who bears no, or little, responsibility for something may apologise, either because of an instinctive reaction, insecurity or for some other reason: Maughan at [12] (Adamson J).

Consideration of the unreasonable verdict ground

1. [95]

   Mr Stratton raised several matters which he submitted ought result in this Court concluding that each of the verdicts of guilty was unreasonable. It is convenient to address these in two categories:

   1. (1)

      the counts in respect of which Mr Stratton contended that the prosecution evidence, taken at its highest, could not amount to sexual touching; and

   2. (2)

      the verdicts challenged on the basis of challenges made to the evidence relied on in support of the count.

2. [96]

   The first category is confined to counts 9 and 10 in respect of HU. Mr Stratton submitted that neither a hug, nor touching a waist, as described by HU, could amount to “sexual touching” within the meaning of s 66DB(a) of the Crimes Act.

3. [97]

   “Sexual touching” is defined in s 61HB(1) of the Crimes Act, as a person touching another person in circumstances a reasonable person would consider to be sexual: (a) with any part of the body or with anything else, or (b) through anything, including anything worn by the person doing the touching or by the person being touched.

4. [98]

   The trial judge gave the following direction to the jury, the correctness of which was not challenged:

5. [99]

   Mr Stratton referred to the conduct which comprised count 9 as if it were merely “a hug”. However, when one reviews HU’s evidence and, as I have done, views the specified portion of the recorded interview with police where HU demonstrated how and where the applicant had “hugged her”, it is clear that he not only applied pressure with his forearm to HU’s breast when he embraced her from behind, but he also used his right forearm to apply pressure in a circular motion to HU’s breast. The jury was entitled to infer that this aspect of the touching made it unequivocally sexual. It was open to the jury to infer that it was done for the applicant’s sexual gratification. Further, the jury was entitled to infer from the tendency evidence that the applicant had a sexual interest in females of about HU’s age at the time (10 years of age) and that he acted on that sexual interest.

6. [100]

   Although count 10 did not involve touching of HU’s genital areas, or her breasts, it does not follow that the touching was not sexual. The conduct was deliberate, persistent (he continued to touch her in the face of her entreaties that he stop) and intrusive (he touched her bare skin). It was also engaged in under circumstances where HU was hanging onto a frame on a quad bike, which made it difficult for her to escape the touching without danger to herself. It was open to the jury to regard it as highly significant that he touched her bare skin and to infer, from all the circumstances, that the applicant’s purpose was to obtain sexual arousal or sexual gratification. The jury was also entitled to reason from the tendency evidence that HU (who was plainly very distressed by the conduct, as is evident from her demeanour when reporting it to ES, MM and Mr Shannon the following day) did not misconstrue innocent conduct: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40] (Kiefel CJ, Bell, Keane and Edelman JJ).

7. [101]

   In these circumstances, it was open to the jury to conclude that the prosecution had excluded beyond reasonable doubt the hypothesis advanced by Mr Stratton: that the applicant had touched HU on the waist for the sole purpose of ensuring that she remained on the quad bike and did not fall off (as there were no seatbelts). The jury may have considered that the applicant, in touching HU’s waist, exploited her precarious position on the quad bike by taking advantage of the opportunity for sexual gratification.

8. [102]

   The applicant challenged each verdict on several bases, which are set out below.

9. [103]

   Mr Stratton made the following challenges to the verdicts in respect of counts 5, 6, 7, and 8:

   1. (1)

      an alleged inconsistency between RN’s evidence that OO had told her the detail of what the applicant did to her and OO’s evidence that she had only told OO in general terms;

   2. (2)

      the similarities in the evidence of RN and OO, which led to the hypothesis that their evidence was contaminated and that they had concocted their evidence;

   3. (3)

      the difference between OO’s evidence that she had drunk Vodka Cruisers on the second night (8 June 2019) and her denial to her mother that she had drunk alcohol;

   4. (4)

      the alleged implausibility of OO’s account, having regard to the position of the swags and the location of the zips;

   5. (5)

      the evidence of L about whether OO ever shared her swag;

   6. (6)

      the alleged implausibility of OO being prepared to stay overnight at the applicant’s house in a spare room after February 2019 (when the conduct comprising count 5 is alleged to have occurred); and

   7. (7)

      the alleged motive that OO had to lie (she was sick of being required to train up “crap horses” and not being permitted to ride the best horse).

10. [104]

    As referred to above, the starting position is that the jury accepted OO’s evidence of the conduct comprising counts 5, 6, 7 and 8 beyond reasonable doubt and that it was also entitled to use the evidence of other counts to support tendency reasoning. Each of the matters referred to above was canvassed before the jury at the trial by experienced, competent trial counsel. The jury can be taken to have had regard to these matters and, nonetheless, been satisfied of the applicant’s guilt to the requisite standard.

11. [105]

    The background to these counts is also significant. OO enjoyed horse riding. She was a capable and skilled rider who competed at State level. She particularly loved Dynamite, one of the applicant’s horses. Her parents could not afford such a horse. The applicant was the means by which she had access to Dynamite, both for training and competition. She refuted in the strongest possible terms the suggestion put by the applicant’s trial counsel that she was prepared to make false allegations against the applicant because of her chagrin at losing access to Dynamite and having to train lesser horses, calling it “ridiculous” and “insulting”. It was open to the jury to share OO’s view that the suggestion was, in effect, absurd. This is sufficient to address (7) above.

12. [106]

    As to (1), it can be seen from the summary above that OO’s evidence about what she told RN and RN’s evidence about what OO told her was given in general terms. OO said that she did not believe that she went “into detail” about what happened, whereas RN said that she and OO told each other “most things”. These expressions are vague, qualitative and evaluative. It was open to the jury to infer that OO felt that she had not gone into detail but that RN considered that OO had gone into the same level of detail that RN had gone into when confiding with OO. However, even if OO’s recollection about the level of detail which she had imparted to RN was unreliable, this was a peripheral matter which need not have affected the jury’s assessment of OO’s credibility and reliability as to the conduct which was the subject of the counts.

13. [107]

    As to (2), the applicant’s trial counsel made much of matters such as that both RN and OO had given evidence about the lack of mobile phone coverage when they were camping and the fact that each said that they would have called someone had there been such coverage. He used this as the basis for a submission that their evidence was contaminated and that this aspect, at least, was concocted. In support of this submission, Mr Stratton submitted that it was inconsistent with OO’s evidence that she wanted to phone her mother from the camp (which she could not do) that she did not actually tell her mother the detail of what had occurred which she subsequently gave to police and, in fact, lied to her mother about not drinking alcohol on 8 June 2019.

14. [108]

    This submission misses the point. The jury was entitled to infer that a call from the camp site to OO’s mother would probably have resulted in OO’s mother or father coming to collect her and take her away from a situation where she was with the applicant in a remote place. This was what OO wanted. The jury was entitled to draw the distinction between calling someone for help, on the one hand, and calling someone to tell them the detail of what had happened, on the other. The jury was also entitled to have regard to the evidence of SC (whom it was not suggested had any contact with either OO or RN) who, as set out above, called her parents to pick her up at a closer turnoff but who did not tell her mother until she was in bed that evening when her mother, through sympathetic questioning and concern, managed to elicit from her daughter, at least in general terms, why she was so distressed.

15. [109]

    The jury was entitled to reason that, given the ubiquity of mobile phones, it was singular that the applicant took camping trips away from mobile phone coverage and understandable that the girls would want to call home when something traumatic happened. The jury may also have understood that it did not follow from the girls’ respective desire to ring home that they would immediately report to their families in detail exactly what had happened since it was open to the jury to appreciate and take into account that it can be both difficult and embarrassing for victims of sexual abuse to divulge what has occurred.

16. [110]

    As to (3), the jury was entitled to regard OO’s report of sexual abuse and her admission of drinking alcohol as entirely separate matters. A report of sexual touching is a report that someone (in this case, the applicant) has done something wrong to the complainant. For a 13-year-old girl to admit to a parent that she has consumed alcohol, particularly in the company of an adult male in a remote location, contrary to parental prohibition, is likely to involve criticism. The jury, from its experience of the world, was entitled to regard it as understandable that OO would not admit that she had drunk Vodka Cruisers while away on camp, even though she had actually done so. The jury might also have considered that OO was insufficiently mature to realise that the fact that the applicant had actually supplied her with Vodka Cruisers implicated him and that she was, in this respect, also a victim. The jury was entitled to regard this matter as not affecting OO’s credibility about the conduct the subject of counts 5, 6, 7 and 8.

17. [111]

    As to (4), the location and dimensions of the swags and the placement of the zips were the subject of evidence. The jury was entitled to take into account, when assessing OO’s evidence about the applicant’s conduct in putting his hand in her swag, that SC’s evidence as to what the applicant did to her from his swag was substantially similar and there was no basis for any allegation as between OO and SC that there was any contamination or concoction between them.

18. [112]

    As to (5), the summary of L’s evidence set out above shows how little recollection L had of the camping trips. The jury was entitled to reason that, because of her then age (9 years), her memory of what occurred was sketchy at best. L’s denial that anyone had slept with her in her swag was premised on the circumstance that a swag is for one person. At the time, she was 9 years old and OO was 13 years old. The jury had the advantage of seeing L and OO on the screen and were in a position to observe their relative sizes, which would have been greater than when the alleged conduct occurred because of the three years that had passed between the camping trip and the trial. In these circumstances, it was open to the jury to accept OO’s evidence that she in fact resorted to L’s swag for safety and could be accommodated inside that swag but that L may have no memory of OO getting into her swag.

19. [113]

    The proposition in (6) disregards the level of enticement which the access to horses presented to OO, at her age and given her passion for horses and desire to compete on them at a high level. OO explained the topography of the applicant’s house, which had the parents’ room and ensuite at one end and the girls’ rooms and the spare rooms at the other. It was open to the jury to accept OO’s evidence that she considered herself to be safer there than when camping because of the lay-out of the house, the presence of the applicant’s wife and CCTV cameras. Further, OO knew that she had mobile coverage at the applicant’s residence and could readily have called her parents from there. The jury was entitled to accept that OO weighed the risk of being sexually touched by the applicant at his residence against having to give up access to the horses and adjudged that it was a risk worth taking. It was open to the jury to regard OO’s preparedness to stay overnight at the applicant’s residence as not undermining her credibility and reliability as to the applicant’s commission of each of the counts.

20. [114]

    I do not consider that any of the matters which Mr Stratton has raised ought to have led the jury to have had a reasonable doubt as to the applicant’s guilt of counts 5, 6, 7 and 8. Having reviewed all of the evidence I do not have any doubt as to the applicant’s guilt of these charges.

21. [115]

    I have already dealt with and rejected the first of the challenges to these verdicts: that the evidence taken at its highest could not amount to sexual touching. It is necessary to address the balance of the challenges to counts 9 and 10.

22. [116]

    Mr Stratton made the following challenges to the verdict in respect of count 9:

    1. (1)

       there was an alleged discrepancy between the ways in which HU described how the applicant touched her breast;

    2. (2)

       there was an alleged inconsistency in the complaint evidence which tended to suggest that HU did not complain about being touched on the breast on the day following the incident and that the order of events was reversed;

    3. (3)

       evidence that the applicant did not hug his children; and

    4. (4)

       HU apologised to the applicant with respect to unrelated conduct (letting her horse run away) after the events the subject of counts 9 and 10.

23. [117]

    As to (1), Mr Stratton submitted that there was a clear discrepancy between HU’s evidence of the way HU described the contact between the applicant’s right arm and her breast which is evident from the different versions she gave in the police interview. Mr Stratton contended that HU’s description of the applicant “rubbing” her breast with his right arm when he hugged her from behind was inconsistent with her description of his arm as going around in circles and then squeezing it.

24. [118]

    Both of these ways of describing what occurred are evident from the police interview of HU, which took place on Saturday 23 March 2019, two days after the alleged conduct and one day after HU complained to her friends and Mr Shannon. The jury saw the video of HU’s interview and therefore saw her physical demonstration of what had occurred, which she performed at the request of the police officer. As referred to above, I have viewed the portion of the video in which HU performed the demonstration. While HU used different words in the course of the interview to describe what the applicant did with his right arm, it was open to the jury to regard these words as different ways of explaining the same thing. Only the most pedantic of constructions of what HU said would give rise to an inconsistency. The jury, with its collective wisdom and experience, can be taken to have had regard to the following circumstances. First, HU was 10 years old. Secondly, she was describing to police something which had caused her such distress that she began crying and could barely get the words out when confiding in her friends the previous day. Thirdly, her reluctance to report the matter to a teacher was only overcome when her closest friends told her that if she did not say anything “it can just keep going and keep going”.

25. [119]

    The matter raised in (2) above derives from the differences in the evidence of MM, ES and Mr Shannon which are evident from the summary above. ES’s evidence was that HU complained about the incident on the quad bike (count 10) and did not complain that the applicant had “touch[ed] her on the breast”. MM’s evidence was that HU complained about the applicant trying to touch her “boob” as well as putting his hand up her shirt when she was on the quad bike and her telling him to stop. Mr Shannon’s evidence, as noted in a contemporaneous note, was that HU had told him about the incident on the quad bike and the “inappropriate” hug and he had noted that the hug occurred after the incident with the quad bike. When interviewed by police, HU said that the inappropriate hug had occurred in the morning before school and that the incident on the quad bike had happened in the afternoon after school on the same day.

26. [120]

    As referred to above, HU was crying and very distressed when she told ES, MM and Mr Shannon about these events. MM and ES’s concern was that she should report the conduct to stop it happening again. Mr Shannon’s focus was to ascertain whether something had happened which would require him to report it to the authorities. HU’s concern on 22 March 2019 was to unburden herself to her friends and also to tell Mr Shannon because her friends had persuaded her that she should. The concern of police was to interview HU in such a way as to elicit, in as much detail as possible, what happened and when and to ascertain the sequence of events, with a view, if the applicant was charged, to the recorded interview comprising HU’s evidence in chief at an eventual trial. The police questioner had not only much more time and expertise to elicit the detail from HU, but also a reason to do so. In her police interview on Saturday 23 March 2019, HU was initially confused about whether the incident had happened on Wednesday or Thursday and which day she had told her friends and Mr Shannon. However, as the interview progressed, the chronology was ascertained and she was able, on further questioning, to say that the hug incident (count 9) occurred in the morning before school and that the quad bike incident (count 10) happened after school on the same day.

27. [121]

    It was open to the jury to reason that any inconsistencies in the recollections of ES and MM as to what HU had told them and any inconsistency about the order of events between what HU told Mr Shannon and what she told police were readily explained by the circumstances set out above. It was open to the jury to consider that these matters did not undermine HU’s evidence about the conduct that comprised counts 9 and 10, which was supported by her contemporaneous complaint, her distress at divulging what had occurred and the extensive tendency evidence as to the applicant’s preparedness to act on his sexual interest in girls of HU’s age.

28. [122]

    The evidence summarised above included, first, the evidence of the applicant, his mother-in-law and his children that he does not usually hug his children and, second, the evidence of his mother-in-law and L that, if he had hugged HU, they would probably have noticed.

29. [123]

    As to the first matter, it was open to the jury to consider that there is no necessary relationship between a person’s preparedness to display affection by physical gestures, such as a hug, and a person’s preparedness to touch someone for the purposes of sexual gratification. Thus, the jury might have considered that evidence given by the applicant and his family members that he was not demonstrative towards them was entirely beside the point and not bearing on the question whether he had committed the offence in count 9.

30. [124]

    As to the second matter, HU said that the applicant hugged her when L was either in or running towards the car, where her grandmother (the applicant’s mother-in-law) was waiting to take L and HU to school. Thus, it was open to the jury to reason that they would not necessarily have seen the relatively transient physical contact between the applicant and HU which constituted count 9 and, indeed, that the applicant may have taken that very opportunity (when potential eye-witnesses were distracted or otherwise occupied) to engage in sexual touching of HU.

31. [125]

    Mr Stratton submitted that, had the events which were the subject of counts 9 and 10 in fact occurred, it was unlikely that HU would have apologised to the applicant about a previous occasion on which she had let the horse she was riding run away during a riding session conducted by the applicant. Mr Stratton contended that the inconsistency between a victim apologising for an unrelated matter to the perpetrator of sexual touching after such sexual touching ought to have caused the jury to have a doubt about HU’s evidence of counts 9 and 10.

32. [126]

    This submission appears to be based on the questionable assumption that bad (in this case, criminal) behaviour usually, if not always, engenders bad behaviour in response. It was open to the jury to infer that HU’s act in letting her horse “run away” (with her on it), for which the applicant rebuked her at the time, continued to weigh on HU’s conscience and provided the impetus for her ringing him up to apologise some time after the events which constituted counts 9 and 10. It was also open to the jury to infer that HU’s own standards for herself (which required her to apologise for her own, in her eyes, wrongdoing) were not altered by the applicant’s (criminal) wrongdoing, about which she had already complained to her friends, Mr Shannon and the police. The jury might have considered, from its collective experience of life, that the finely-tuned sense of responsibility and guilt demonstrated by HU, which needed to be assuaged by her apology to the applicant, is not uncommon in young people who may have a greater sense of their own culpability for minor matters than adults who may be more able to put such matters in perspective.

33. [127]

    Mr Stratton made the following challenges to the verdict in respect of count 10:

    1. (1)

       taking HU’s evidence at its highest, the conduct did not amount to sexual touching (addressed above);

    2. (2)

       it was inconsistent with HU’s apology to the applicant (addressed in (4) above); and

    3. (3)

       the jury ought to have had concerns about count 10 arising from its concerns about count 9.

34. [128]

    The submission in (3) is premised on the jury having concerns about HU’s credibility with respect to count 9, which, in accordance with the Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) given by the trial judge, would have entitled the jury to have concerns about HU’s evidence of count 10. For the reasons given above, in respect of count 9, it was open to the jury not to have any particular concerns about HU’s evidence of count 9 and to accept her evidence (as it plainly did, as evident from the verdict in respect of count 9) as to the conduct which comprised count 9. Further, the jury, having been given a Markuleski direction (which was not challenged) can be taken to have abided by it.

35. [129]

    I do not consider that any of the matters which Mr Stratton has raised ought to have led the jury to have had a reasonable doubt as to the applicant’s guilt of counts 9 and 10. Having reviewed all of the evidence I do not have any doubt as to the applicant’s guilt of these charges.

36. [130]

    Mr Stratton made the following challenges to the verdict in respect of counts 12 and 13:

    1. (1)

       SC gave inconsistent accounts of the timing of riding and driving on the first day of the trip;

    2. (2)

       SC gave inconsistent accounts of whether L was asleep or awake during the incident that comprised count 13;

    3. (3)

       L’s evidence about SC’s demeanour on the trip was inconsistent with SC’s evidence of her own demeanour; and

    4. (4)

       alleged inconsistencies between what SC told her mother and the evidence she gave at the trial.

37. [131]

    As to (1), it is evident from the summary set out above that there was an inconsistency between SC’s evidence on 6 May 2022 and what she had written down a few days before 28 August 2020 about what had occurred in November 2019 (when the conduct comprising counts 12 and 13 is said to have occurred).

38. [132]

    In her evidence in chief, SC said that when they arrived at the camp on Friday, 7 November 2019, she and L unloaded the horses, set up their swags and fed the horses. The applicant directed them to move L’s swag from the middle to the side and to put SC’s swag in the middle. After the camp was set up, it began to rain. They sought refuge in the car and then went for a drive during which the applicant rubbed her leg.

39. [133]

    In the notes she had prepared some time in August 2020, SC indicated that the applicant had rubbed her leg after the first night, which was inconsistent with his having done so on Friday 7 November 2019.

40. [134]

    It was open to the jury to consider that the order in which particular events (including an uncharged act) occurred did not bear on the credibility and reliability of SC’s evidence of the conduct which comprised counts 12 and 13. Whether the applicant rubbed her leg on the first day or the second day was an immaterial detail which did not cast doubt on whether he had in fact rubbed her leg in the car on that camping trip, much less on whether he had touched her genital area while she was in her swag (as alleged in counts 12 and 13). The jury was entitled to draw on its experience of life to reason that memory as to time and sequence may not be as reliable as memory of events, particularly singular, traumatic events such as being a 12-year-old girl and having one’s leg, breasts or genitals rubbed by a man over fifty years one’s senior in a remote location out of mobile coverage. Imprecision about time is not uncommon with children and may not have any adverse effect on their credibility: BCM v The Queen at [45]-[47]. It was open to the jury to regard the inconsistencies about the timing of the applicant rubbing SC’s leg as not undermining her credibility as to the charged conduct.

41. [135]

    The inconsistencies in SC’s evidence about whether L was asleep or playing games on her phone have been detailed above. It was open to the jury to regard these inconsistencies as immaterial. It was open to the jury to take into account SC’s vulnerability (away from mobile coverage with the applicant and his nine-year old daughter) and her inevitable appreciation that L could not help her, whether awake or asleep. Further, the jury might have inferred from SC’s evidence that she did not want to alert L to what was occurring. It was open to the jury to infer that this was entirely reasonable given that SC was, effectively, within the applicant’s power and control while on camp (since she could not drive, any screams for help would only be heard by L and she could not call anyone because she was out of mobile coverage).

42. [136]

    I am not persuaded that these inconsistencies ought to have caused the jury to have had a doubt, much less a reasonable one, about the reliability of SC’s evidence of the charged conduct.

43. [137]

    Mr Stratton submitted that L’s evidence of SC seeming to be happy on the camping trip was inconsistent with SC’s evidence of what had occurred in counts 12 and 13.

44. [138]

    It was open to the jury to accept L’s evidence that she had little, if any, recollection of ever having gone camping with her father. Although L gave evidence that SC seemed happy on the trip and that she did not see her crying, L accepted it was possible that SC was crying and L just did not see it, particularly in light of SC’s evidence that she was crying in the toilet on the morning after the incident in count 12 and when she was coming back from the toilet. It was open to the jury to consider that SC had cried on the trip at times when L did not see her, that L did not notice that SC had been crying or that L may have registered that SC was distressed in some way but not remembered it or appreciated that she might have needed comfort.

45. [139]

    The jury may also have taken into account when assessing whether SC was actually happy on the trip, SC’s evidence that she had phoned her parents and arranged to be picked up from a point closer to the camp and that, on her return home, she refused to eat dinner and broke down in her bedroom when her mother questioned her about why she had not eaten. The jury might have considered that SC was, in the main, able to keep it together when on the camping trip (when she was under the applicant’s control) but, when she was safely back in her parents’ care, fell apart as a consequence of the violation constituted by the charged conduct.

46. [140]

    The applicant contended that the inconsistency between what SC told her mother (that the applicant had tried to get inside her bra) and her evidence that he did touch her breast inside her bra undermined SC’s credibility which made it unreasonable for the jury to accept her evidence as to the charged conduct.

47. [141]

    I reject this submission. First, SC could not remember what she told her mother. It was open to the jury to consider that SC’s mother’s concern was to ascertain the reason for SC’s evident distress and to report the matter to police if it was warranted and if SC agreed to her doing so. Although SC’s mother questioned SC, she did not want to go into the detail of everything that had happened (as the summary above indicates).

48. [142]

    SC’s evidence included that the applicant’s hand was part way under her bra. Her mother’s evidence and the police statement were substantially consistent with that evidence.

49. [143]

    Mr Stratton also relied on SC’s reference to a “pink drink” in her evidence and her evidence that the applicant said he could not give it to her as other people were around, but that she told her mother he bought raspberry drinks and did not get around to offering them. It was open to the jury to regard this matter as tangential to, and not affecting, the reliability of, her evidence of the charged conduct.

50. [144]

    The matters raised by Mr Stratton as impugning the reasonableness of the jury’s verdicts were also raised at the trial by the applicant’s trial counsel with the witnesses and in final address. As is evident from the reasons I have given above, I consider that it was open to the jury to take the view it did of the evidence and return verdicts of guilty in respect of counts 5, 6, 7, 8, 9, 10, 12 and 13.

51. [145]

    I do not consider that any of the matters which Mr Stratton has raised ought to have led the jury to have had a reasonable doubt as to the applicant’s guilt of counts 12 and 13. Having reviewed all of the evidence I do not have any doubt as to the applicant’s guilt of these charges.

52. [146]

    Mr Stratton also relied generally on the character evidence adduced by the applicant at trial of those who attested to his good character and their preparedness to leave their children in his care. He submitted that this evidence ought to have led the jury to have a reasonable doubt about the applicant’s guilt.

53. [147]

    The applicant adduced evidence of his prior good character in his defence, as was his right. It was entirely a matter for the jury to determine the weight to be accorded to that evidence. It was open to the jury to consider that a man who appeared to be a good family man, into whose care others were happy to entrust their children, was nonetheless guilty of the offences charged.

Conclusion

1. [148]

   For the reasons given above, the unreasonable verdict ground has not been made out. Having reviewed all of the evidence, I consider that it was open to the jury to be satisfied of the applicant’s guilt in respect of all counts where guilty verdicts were returned. I confirm that I do not have any doubt of the applicant’s guilt of counts 5, 6, 7, 8, 9, 10, 12 and 13.

Proposed orders

1. [149]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [150]

   WRIGHT J: I agree with the orders proposed by Adamson JA for the reasons her Honour has given. I have considered the evidence as a whole and I am not of the view that the jury must have had a doubt about the applicant’s guilt in respect of the counts on which he was found guilty.

3. [151]

   FAGAN J: I agree with the orders proposed by Adamson JA and with her Honour’s reasons. As the sole ground of appeal is that the verdicts are unreasonable and as the applicant has asserted numerous and wide-ranging points of deficiency in the Crown’s proof, I have found it necessary to review the entire trial record. My review has included watching and listening to that part of HU’s police interview in which she demonstrated the contact made by the inner surface of the applicant’s forearm with her right breast, which was the subject of count 9.

4. [152]

   I respectfully adopt Adamson JA’s point by point assessment of the numerous concerns that the applicant’s counsel has raised regarding discrepancies and conflicts in the evidence. The matters argued on the applicant’s behalf do not cause me to perceive that there is a reasonable doubt about the applicant’s guilt on any of counts 5-10, 12 or 13. In my view it was open to the jury to have resolved the evidentiary issues referred to on this leave application. It was open to them to find those counts proved beyond reasonable doubt.