LH v R

1. [1]

   N ADAMS J: On 8 June 2023, the applicant was found guilty by a jury of two counts of sexual touching and one count of aggravated sexual intercourse. The offences were all committed on his biological daughter who was ten years old at the time. Given the statutory prohibitions on publishing the identity of the applicant’s daughter, [1] I have referred to her as “the complainant”. I have anonymised her family members in a similar manner.

The indictment

1. [2]

   The period of the alleged offending behaviour was from December 2019 until July 2020. The indictment contained the following four counts which were said to have occurred across three occasions:

   1. (1)

      Sexual touching of a child aged 10 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW). This concerned an allegation that the applicant touched the complainant’s vagina.

   2. (2)

      Sexual touching of a child aged 10 years under s 66DB(a) of the Crimes Act. This concerned an allegation that the applicant touched the complainant’s breasts.

   3. (1)

      Aggravated sexual intercourse with a child aged 10 years (under authority) under s 66C(2) of the Crimes Act. This concerned an allegation that the applicant licked the complainant’s vagina.

   4. (1)

      Aggravated sexual intercourse with a child aged under 10 years (under authority) under s 66C(2) of the Crimes Act. This concerned an allegation that the applicant inserted his penis into the complainant’s mouth.

2. [3]

   The applicant was convicted of the first three counts and acquitted of the fourth.

3. [4]

   On 18 August 2023, the applicant was sentenced by Judge Culver to an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years and 3 months.

The Grounds of Appeal

1. [5]

   The applicant appeals against his convictions pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

2. [6]

   The applicant also seeks leave to appeal against his sentence under s 5(1)(c) of the Criminal Appeal Act on the following ground:

3. [7]

   The applicant does not contend that the verdicts are unreasonable or that there is any inconsistency between the convictions and the acquittal. The complaints are all directed at the cross-examination of the applicant at trial, the Crown closing address and the summing up. In seeking to establish that various discrete portions of the applicant’s cross-examination and the Crown closing address were unfair and that the summing up did not go far enough to correct the unfairness, the applicant’s counsel took the Court to various portions of the trial transcript. This required counsel for the Crown to take the Court to other portions of the trial transcript to place the impugned portions in context and ultimately submit that the trial did not miscarry.

4. [8]

   Although I have endeavoured, where possible, to describe the various portions of the transcript relied upon by the applicant rather than extract them in full, for the most part the nature of the complaints cannot be properly understood without setting out the entirety of any impugned passage. It is for that reason that these reasons are lengthier than they might have been.

Leave to appeal

1. [9]

   None of the grounds of appeal pertaining to the convictions involve questions of law alone. This means that the applicant requires leave to bring his conviction appeal: s 5(1)(b) of the Criminal Appeal Act.

2. [10]

   Further, most of the complaints now made in this Court were not raised by trial counsel before the trial Judge. This means that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is engaged.

Pre-trial rulings

1. [11]

   This was the applicant’s second trial. The first jury was hung. Prior to the commencement of the trial, the applicant’s counsel indicated that she did not intend to revisit any rulings from the previous trial. One of those rulings was that the Crown would be permitted to rely upon each count on the indictment as tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW). The two identified tendencies were: to be sexually attracted to his daughter and to act on that attraction.

2. [12]

   Consistent with the pre-trial ruling, the Solicitor Advocate who appeared for the Crown at the trial (hereinafter “the Crown”), opened to the jury by outlining on tendency evidence to the jury as follows:

The Crown case at trial

1. [13]

   At the time of the alleged offending, the complainant was 10 years old and her body had started developing. She lived in a two-bedroom apartment with her younger brother, her parents and her maternal grandmother. The sleeping arrangements in the apartment changed depending on whether the complainant’s grandmother was at home. The evidence was that she worked 3-4 nights a week and did not come home on those nights.

2. [14]

   When the grandmother was at home, the applicant would sleep with his wife in their bedroom. The applicant’s wife would stay awake in bed playing video games every night from about 9:30 or 10:00pm until 2:00, 3:00 or 4:00am. The grandmother would sleep in the second bedroom on a king-sized bed with the complainant’s little brother whilst the complainant would sleep on a mattress on the floor which was pulled out from underneath the king bed.

3. [15]

   On the nights when the grandmother was away at work, the applicant would sleep in the second bedroom in the king bed with his son whilst the complainant slept next to them on the floor. A walk-through video of the apartment was played to the jury (Exhibit 9). It depicted that the mattress and the king bed were very close to each other in the second bedroom.

4. [16]

   The Crown case is that all of the offences were committed whilst the grandmother was away, and the applicant was sleeping in the bed next to the rollout bed in which the complainant slept.

5. [17]

   The complainant gave a JIRT (Joint Investigation Response Team) interview on 13 November 2020 in which she disclosed counts 1, 2 and 3. That interview was played for the jury at trial. The complainant told police that when she was sleeping the applicant came in and she woke up and he, “[l]ike just did all that weird stuff”. She stated that “at first it was like really awkward for me and really uncomfortable. But then I didn’t judge because I’m like the type that doesn’t, the type that’s really shy and I get really nervous around people”. She told police that it was “not very nice” and that the applicant told her not to tell anyone. She told police, “I didn’t trust anyone until the other day I was talking to my teacher about my life. And then I decided I can’t really take this anymore. So I basically told the teacher”.

6. [18]

   During the interview, the complainant was asked to write things down and draw diagrams. These were tendered at the trial.

7. [19]

   The complainant was due to commence her first day of her pre-recorded evidence for the court proceedings on 12 October 2021. The day before her pre-recorded evidence began, she watched her JIRT interview with police and when she finished watching it, she disclosed further conduct by the applicant which gave rise to Count 4 (the count in relation to which the applicant was acquitted). The complainant gave evidence that the reason she did not tell police about this incident in the first interview was because she felt “uncomfortable and … unsafe” “because I don’t like what happened”.

8. [20]

   The complainant’s allegations can be summarised as follows.

9. [21]

   Around December 2019, on the nights where the applicant slept in the second bedroom, he began taking the complainant’s pyjama pants off and touching and licking her on her vagina. The complainant said this occurred “once or twice a week”, after her brother had fallen asleep. She said the touching made her feel “really awkward” and “really uncomfortable” and that the applicant told her not to tell anyone. The circumstances comprising Counts 1 and 2 occurred in this period.

10. [22]

    As for Counts 1 and 2, the complainant was asleep in her bedroom when the applicant came in and took her pyjama pants off. He touched her vagina in the “middle part” with his index finger (Count 1). He took off her shirt and touched her breasts (Count 2). During the JIRT interview, the complainant wrote down the sequence of events that occurred that day on a red Post-it note which was tendered at the trial (Exhibit PR2).

11. [23]

    The complainant also gave evidence that on a night before July 2020 she was sleeping in the double bed with her brother because she was scared of her father and the dark. She gave evidence that the applicant entered her bedroom and inserted his penis into the side of her mouth and began thrusting back and forward. The complainant gave evidence that, as this was happening, the applicant’s eyes were “slightly open”, and she could see him “looking at the door which was like 10-20 centimetres open”. After three to four minutes, the applicant took the complainant’s brother, who had been facing away from her sleeping throughout the incident, to the bathroom. The complainant gave evidence that afterwards she asked the applicant what he was doing, and he told her: “don’t tell anyone”. This allegation was Count 4 upon which the applicant was acquitted.

12. [24]

    The complainant gave evidence that on another occasion, the applicant entered her bedroom, took off her pants and licked her vagina “in the middle”. She said it felt “really weird … like slime pouring onto you” (Count 3). The complainant said this was probably the last time he did this to her. She wrote down the sequence of events which occurred that day on a blue Post-it note which was tendered at trial (Exhibit PR3).

13. [25]

    The complainant told police that the applicant touched her vagina and breasts more than once on other nights as well. She also told police that she had written down on a piece of paper about the sexual abuse when it happened and put it in a folder with friendship letters but threw it out when her brother was looking at the folder once.

14. [26]

    The complainant gave evidence that in July 2020 she told the applicant to stop and he did stop sexually touching and assaulting her. The complainant gave evidence that she nonetheless continued waiting until her father went to sleep before she fell asleep, in an effort to prevent further offending.

15. [27]

    Five teachers from the complainant’s primary school gave evidence of complaint and observations of the complainant during the period of the alleged offending.

16. [28]

    Ms Rebecca Churchland was a student learning support officer at the complainant’s school. In June 2020, she observed that the complainant was “particularly down” and enquired as to how she was feeling. The complainant told Ms Churchland that she did not “believe her life was worth living” and revealed that she had contacted the Kids Helpline.

17. [29]

    Crystal Tuazon was a teacher at the school. On 12 November 2020, she asked the complainant how she was going. The complainant responded that she felt she was “trapped in a mirror maze” and was not “getting a lot of sleep". The complainant told Ms Tuazon that she kept herself awake because her father sexually assaults her: “My father sexually assaults me in [sic] bed where he pulls down my pants and touches me.”

18. [30]

    Ms Tuazon and the complainant went to speak to the principal, Ms Estelle Southall. The complainant repeated the account and said her “father had sexually assaulted her multiple times, even when she told him to stop and that it had happened last July.” The complainant said that the first person she “felt comfortable to disclose to” was Mrs Tuazon, because she did not want her parents to get divorced.

19. [31]

    Ms Southall gave evidence that between June 2020 and November 2020 the complainant was “pale, tired” and “not comfortable” and reported feelings of worthlessness and made statements such as “I shouldn’t be here".

20. [32]

    Following the complaint on 12 November, Ms Tuazon and Ms Southall contacted police regarding the complainant’s disclosures. On 13 November 2020, Senior Constable Sally Penman arranged for the complainant’s parents to bring her to the police station to participate in an interview.

21. [33]

    Emma Tamsett was the assistant principal. She first met the complainant in 2016 and described her as a “gorgeous and friendly little year 4 girl”. She remembered a conversation with the complainant in 2019 when she told her that she was sad. The complainant told her “my mum hates me”. Also, in mid 2019 the complainant told Ms Tamsett that her mother is strict and angry whereas her father is nice to her and buys her things. Ms Tamsett did not speak to the complainant in 2020 but she heard from other teachers and staff that the complainant was sad and having difficulties and “not the little girl that I knew in 2019”.

22. [34]

    Emily Bull was the complainant’s teacher in 2020. She described the complainant as “happy and lively” at the beginning of 2020 but as the year progressed her demeanour changed. She withdrew from learning and was “rarely happy” by the end of Term 2 and start of Term 3 in June 2020. She spoke to Mr Churchland around the end of June 2020 which led her to check on the complainant daily.

23. [35]

    The complainant’s mother gave evidence that her mother (the complainant’s grandmother) lived with them “occasionally” with periods when she was there every day and periods when she was there for two to three days a week. When she was there, she would sleep in the big bedroom with the children, sharing the bed with her grandson while the complainant slept on a mattress on the ground. When she was not there, the applicant, who would normally sleep with her in the small bedroom, would sleep in the big bedroom. Her evidence was that once or twice he slept on the mattress but never with the complainant.

24. [36]

    She gave evidence that in general her children were closer to the applicant than to her but that from the second half of 2019 into 2020 she noticed that the relationship between the applicant and the complainant “was not as close as before” and was deteriorating. She attributed that to the applicant’s work.

25. [37]

    Her evidence was that in “roughly” 2019 or 2020 the complainant told her that the applicant touched her in “private area” when she came back from school. She immediately called the applicant who was at work at the time as she did not understand what the complainant meant by “touch”. The applicant told her that “he might have accidentally touched her” when he reached to catch the complainant who was about to fall out of bed. She confirmed that the word the complainant used to describe the touch in Chinese was “pong” and that it meant “a very slight touch”, “like touched by accident” but that it could also be “touch quickly”. Her evidence was that her mother was not staying over that night.

26. [38]

    The complainant denied both telling her mother this and that the incident ever occurred.

27. [39]

    Dr Susan Pulman was called as an expert witness. She is a clinical neuropsychologist and forensic psychologist whose area of expertise is children. She explained that children generally do not scream or run away but rather are generally confused if someone they love or trust starts to abuse them. Dr Pulman gave evidence about the power dynamics between an adult parent and a child. Dr Pulman also explained that memory is a reconstructive process and that when an individual describes something that happened to them repeatedly, it is not uncommon for each description to be slightly different.

28. [40]

    Dr Pulman gave evidence that children specifically do not have as much information in their memory storage as adults, and that as the brain develops so too does the capacity to store information. She explained that children generally lack the same memory retrieval strategies available to adults and that “errors children may make in recalling and distinguishing particular acts of abuse from others are more likely to be about identifying particular details rather than reporting details that never happened”. She also gave evidence that in a situation where there have been many incidents of abuse, children will quite likely remember the first and last occurrences.

29. [41]

    Dr Pulman gave evidence about behavioural changes following abuse and the correlation between awareness of sex and disclosures of sexual abuse. In cross-examination she agreed that she was not familiar with any of the evidence in the trial proceedings and had never personally interacted with or assessed the complainant.

30. [42]

    On 13 November 2020, the same day she received the information, Senior Constable Sally Penman arranged for the complainant’s parents to bring the complainant to the police station to participate in an interview. When she spoke to them on the phone, she told them that it was in relation to a report involving the complainant without conveying any information in relation to the allegation.

31. [43]

    When the complainant attended with her mother, the applicant, and her brother, SC Penman repeated to the complainant’s parents what she told them when they spoke on the phone including that the interview with the complainant would be recorded. The applicant remained in the foyer with the complainant’s younger brother during the interview.

32. [44]

    In cross-examination, SC Penman denied that she had any off-record conversations with the complainant or that the complainant was encouraged during the interview to “take a guess” if she did not know something.

33. [45]

    Immediately following the first interview with the complainant, SC Penman arrested the applicant and took him to Mascot Police Station. He was offered the opportunity to participate in an interview with police, which he accepted. The applicant is Chinese-Australian and his first language is Mandarin. He declined the assistance of an interpreter.

34. [46]

    At the time of his interview, the allegations giving rise to Counts 1-3 were put to the applicant. When each of them was put to him he was asked whether he had anything he wished to say. His responses were as follows.

35. [47]

    When the applicant was asked by police about the sleeping arrangements in the family house, he initially stated that he shared a small bedroom with his wife whilst his mother-in-law slept with his daughter and son in the big room. When asked how they fit in the bedroom, the applicant told police that his mother-in-law and his son shared a “really big king-sized bed” and his daughter slept on a “little bed which is on the bottom, single bed” and that “they are not on in the same level, so a special single bed is for her”. When asked whether his wife and the mother-in-law worked, he told police that his wife did not work and that his mother-in-law worked “around one, two days a week” in “age care or home care, something like that”.

36. [48]

    The police asked the applicant whether he had ever spoken to his daughter about any of the allegations put to him in the interview. He said that he had “a story here. That’s what you remind me of in 2019…and if want here I can tell you”. The applicant said that one morning in the winter of 2019, at about 5:00 or 5:30am, he had entered the complainant’s room to “have a look” because “they sleep over different room with me. Once I got ready, dressed up, I will go to their room.” The applicant told the police that the complainant was “half falling from the bed, sleep, to lay down, so I just pick her up. My hand was in the, you know, not correct position. So it was on her, basically private part and she was awake.” The applicant later clarified to police that the private part of the complainant he had touched was her vagina.

37. [49]

    The applicant told police that his wife had confronted him the same day of the incident in 2019. He told her it was an accident. The applicant told police that his wife told him to keep some distance from the complainant because she was “growing up, so noticing a lot of things now, so you be careful what you’re doing.”

38. [50]

    When police put the allegation of touching the complainant on the vagina to the applicant he answered as follows:

39. [51]

    When the same allegation was put to him later in the interview, the applicant responded as follows:

40. [52]

    When the allegation of touching the complainant’s breasts was put to him, the applicant’s responses were as follows:

41. [53]

    In relation to the allegation of licking the complainant’s vagina, the applicant’s response was as follows:

The defence case

1. [54]

   The Crown case closed on the fifth day of the trial, 29 May 2023. The same day, the applicant gave evidence. He was briefly examined in chief before being cross-examined. The applicant’s written submissions extracted significant portions of his cross-examination where the Crown put certain portions of his ERISP to him. In particular, complaint is made about the following passages.

2. [55]

   The complainant gave evidence that the sexual assaults occurred on nights when her grandmother was not there, and the applicant was sleeping in her room. In that context, the following questions were put to the applicant in cross-examination:

3. [56]

   The applicant was cross-examined about the answers in his ERISP when it was first put to him that he had touched his daughter’s breast (see above at [53]) as follows:

4. [57]

   The applicant was cross-examined about his demeanour and his first responses to the allegations as follows:

5. [58]

   The applicant was cross-examined about his failure to deny the allegations of touching the complainant’s breasts as follows:

6. [59]

   The applicant was cross-examined about his failure to deny the allegations of licking the complainant’s vagina and looking “unphased” as follows:

7. [60]

   The applicant was cross-examined about his failure to immediately deny the allegations of licking the complainant’s vagina as follows:

8. [61]

   The applicant was also cross-examined about the innocent explanation he provided to police. It was suggested to him that he volunteered a story about accidentally touching the complainant on the vagina because he knew that was what the allegation would be.

9. [62]

   Consistent with the Crown opening, it was put to the applicant that he had the two tendencies relied upon by the Crown. The applicant denied that he was sexually attracted to his daughter and/or had acted on that.

10. [63]

    The applicant was re-examined. He explained that the reason he slept in the second bedroom was because his wife had “very bad depression” and insomnia and playing video games helped her and that he would sleep in the other room to “give her a bit of quiet space” and look after the children. He agreed that in his culture it was normal for a parent to sleep with a five-year old child.

11. [64]

    The applicant agreed that he arrived at Strawberry Hills Police Station at 6.30pm. The complainant was interviewed until after 8.00pm. His interview started at 9.55pm and finished after 11.00pm. It was his first time being arrested. He felt “exhausted”. He was asked why he agreed to be interviewed without a lawyer or an interpreter and he replied:

12. [65]

    He was asked about the answers he gave such as “there’s nothing I can tell you”. He explained that he was just trying to answer the questions. He explained that his first language is Mandarin and that in order to answer in English he needs a “translator to my language in my head, then try to speak back in English”.

Discussion about legal directions before closing addresses

1. [66]

   The defence case closed the following day, on 31 May 2023. Prior to the commencement of closing addresses, the trial judge raised some proposed directions with the parties including the tendency direction:

2. [67]

   The trial Judge then raised the issue of lies or conduct going to consciousness of guilt. The Crown indicated that he would particularise those in his closing address. The trial Judge asked him to particularise them before his address to avoid “some issue arising after the closing address” and indicated that she needed defence counsel to be on notice about this so there was no surprise. The proposed direction was discussed including by reference to the decision in R v Baden Clay. [3] Defence counsel requested a number of further directions on matters such as the applicant not needing to establish a motive to lie and delay. Her Honour deferred her decision on some of these directions until she had heard the closing addresses.

3. [68]

   There was also a discussion between her Honour and counsel about directions in respect of demeanour. Her Honour proposed a direction about the dangers in attempting to assess the truthfulness of a witness by reference to their body language or demeanour where different cultural backgrounds are involved given that the Crown cross-examined extensively on that. In response, defence counsel requested a specific direction in relation to cultural differences in responding to police questioning.

The Crown closing address

1. [69]

   The Crown closing address began in the morning of 31 May 2023 and finished in the morning of 1 June 2023. I have extracted the portions which are the subject of complaint under Ground 1.

2. [70]

   The Crown submitted that the jury would find the complainant to be a truthful witness. In doing so, he invited them to consider the manner in which the complainant gave her evidence, both in her interviews and her evidence. Part of the address about which complaint is now made was in these terms:

3. [71]

   The Crown also addressed the jury on the complainant’s evidence in the JIRT interview and pre-recorded evidence:

4. [72]

   The Crown submitted that the complainant’s written record of the account was also relevant to the jury’s assessment of her credibility. The Crown told the jury that the complainant’s written account, created during the police interview, took “a considerable amount of bravery and resolve…to actually commit these things to paper in the way she did”. The written record included some drawings created by the complainant, in relation to which the Crown told the jury: “it would be really difficult for [the complainant] to do this unless it really happened to her”. The Crown submitted:

5. [73]

   The Crown also referred to the complainant lifting her finger when providing her account of the offending:

6. [74]

   The Crown made a similar closing submission in respect of Count 4 in reference to the complainant raising her right hand to point to her right cheek in describing the allegation. He submitted that behaviour was consistent with an “honest witness giving an authentic memory” and it was “exactly the kind of little details that you would expect in an honest, truthful account; a real memory being conveyed to you.” The Crown further submitted that “[i]nvoluntarily or automatically gesturing when you’re recounting a memory is something that we all do when we’re telling people about something we experienced.”

7. [75]

   In relation to the drawings made by the complainant during her JIRT interview, the Crown also submitted:

8. [76]

   The Crown suggested that the applicant’s denials were not “worthy of [your] acceptance” and that:

9. [77]

   The Crown said this about the story the applicant gave of touching the complainant as she was falling off the bed:

10. [78]

    The Crown also submitted:

11. [79]

    The Crown also addressed the jury about the applicant’s failure to tell police that the offending would have been impossible because of the presence of his mother-in-law:

12. [80]

    The Crown said the following to the jury in relation to the applicant’s disclosures regarding the sleeping arrangements:

13. [81]

    The Crown went on to say this:

14. [82]

    In relation to the applicant’s demeanour in the ERISP, the Crown said:

15. [83]

    The Crown went on to address the jury about the lack of denials in this way:

16. [84]

    The Crown suggested to the jury that the applicant’s explanation in court about his responses to police that he was exhausted “says a lot about his actual guilt” because he did not say he was bewildered, confused, upset, panicked or shocked. The Crown submitted “there are moments in that interview that in our submission reveal his awareness or his guilt to these offences. They tell you a lot about his perspective.”

17. [85]

    At the conclusion of the Crown closing, the trial Judge asked whether there was anything arising from the closing address and defence counsel responded: “No, your Honour.”

The defence closing address

1. [86]

   The defence closing address commenced in the morning of 1 June 2023 immediately after the Crown closing address and finished that day. Defence counsel responded to matters raised in the Crown closing as to the applicant’s ERISP and the demeanour of both the complainant and the applicant. As for the applicant’s initial answers to police, she suggested:

2. [87]

   Defence counsel then said this about the applicant’s account of accidentally touching the complainant:

3. [88]

   The applicant’s counsel submitted the following with respect to the drawing of inferences regarding the applicant’s response to this allegation:

4. [89]

   As for the applicant’s failure to mention the grandmother when providing his explanation for why the offences could not have been committed, the applicant’s counsel said this:

5. [90]

   With respect to the Crown submission that the applicant’s response to the question suggested an awareness that the alleged conduct occurred on a school day, the applicant’s counsel responded:

6. [91]

   With respect to drawing inferences with respect to the sleeping arrangements, defence counsel submitted that:

7. [92]

   Defence counsel addressed the Crown’s invitation to draw inferences from the applicant’s failure to deny allegations when they were put to him by saying this:

8. [93]

   As for the applicant’s demeanour, defence counsel said the following:

9. [94]

   The addresses finished on the afternoon of Thursday 1 June 2023. Her Honour noted that both addresses had been so thorough that she had a lot to sum up on. She then went through the proposed directions again. She indicated that she hoped to commence her summing up that day. After confirming some of the directions, the trial Judge enquired whether she could bring the jury in and start her summing up noting that she would not get far that day. The following exchange then occurred:

10. [95]

    Her Honour then commenced her summing up at 3.34pm that day and sent the jury home at 4pm. Before adjourning for the day, her Honour confirmed that the only direction that they had not “bedded down” was the tendency direction. She expressed concern that the jury had “heard the concept at the beginning of the trial” and that even if they had not, when there are multiple counts a trial Judge should direct “either way”. Her Honour went on to state:

11. [96]

    The following morning, before the trial Judge resumed her summing up, she commenced by enquiring about the issue of tendency and the following exchange took place:

12. [97]

    Her Honour confirmed another direction and then asked defence counsel if there was anything else. Defence counsel responded that she had a number of matters to raise about consciousness of guilt. She submitted that any suggestion that the applicant must have known that the offences were alleged to have occurred when the grandmother was not there could not be used as consciousness of guilt because the evidence did not support that.

13. [98]

    She then submitted that the Crown’s references in the closing address to inferring consciousness of guilt from the responses along the lines of, “[t]here’s nothing I can tell I suppose [sic – as opposed] to saying I never did it” was not previously raised by the Crown as being relied upon in that way. The trial Judge sought to clarify the Crown position by identifying the four topics relied upon by the Crown as consciousness of guilt as: the volunteering of an innocent explanation for touching the complainant’s vagina; initially lying about the sleeping arrangements and suggesting that the offending was impossible; knowing that the offences were committed when the grandmother was absent and when it was a weeknight; and not responding with shock in the ERISP.

14. [99]

    Defence counsel took no issue with any of these except for the third one and submitted that the evidence did not support an inference being drawn that the applicant must have known the offences happened when the grandmother was away. Her Honour noted this and resumed her summing up indicating that she would continue her summing up and then return to the question of consciousness of guilt directions.

15. [100]

    Her Honour continued her summing up by giving a number of directions usually given in child sexual assault trials in relation to which no complaint is made. She gave an anti-tendency direction in relation to the context evidence and then a tendency direction in relation to the counts in the indictment. She concluded that direction by stating the following:

16. [101]

    Her Honour went on to direct the jury about how to draw inferences. She prefaced the direction by noting that the Crown submits that “some of the responses by the accused reveal that he knew about the alleged offences and the Crown says this is because he committed the alleged offences”. The trial Judge also reminded the jury that “the Crown says here you would engage in inferential reasoning; in other words, draw inferences about these responses by the accused that I will identify later”. She directed the jury in relation to how to draw inferences which included the following:

17. [102]

    Her Honour also directed the jury in relation to demeanour as follows:

18. [103]

    Her Honour then sent the jury out and resumed discussions about consciousness of guilt. It is pertinent to note that defence counsel raised no issue with any of the directions given thus far, including the tendency direction. Defence counsel then continued her submissions as to why the suggestion that the applicant’s failure to mention the grandmother was not capable of being left to the jury as knowledge that the offences occurred when the grandmother was absent, until her Honour resumed her summing up again.

19. [104]

    The trial Judge then directed the jury as to the elements of the offences and went as far as she could before inviting the jury to take an early lunch break so she could consider defence counsel’s submissions on consciousness of guilt. Further submissions continued for some time until the Crown was invited to put its position in writing.

20. [105]

    The Crown subsequently sent an email setting out which specific areas were relied upon as consciousness of guilt. That document was marked MFI 17. It is lengthy and I do not propose to set it out in full, but in it the Crown identified the following six areas as being relied upon as consciousness of guilt:

21. [106]

    There was then considerable further discussion about whether all of these matters were capable of going to the jury as consciousness of guilt. During discussion of the answers in which the applicant is said to not give the “obvious” answer to police, the following exchange took place:

22. [107]

    Further discussion continued. In relation to knowledge that the offences occurred when the grandmother was absent, her Honour concluded that, in circumstances where there was evidence that there was an adult in the room, it was a binary choice of either the offender or his mother-in-law being in the room with the complainant, and this was capable of giving rise to consciousness of guilt reasoning. As for the right to silence being breached, the Crown submitted that it had not been breached as the applicant gave an explicit response that the Crown was entitled to scrutinise.

23. [108]

    Defence counsel accepted that she had not previously considered whether the evidence might impugn the applicant’s right to silence stating:

24. [109]

    After further discussions with the Crown and defence counsel, her Honour indicated the following proposed way forward, which both parties agreed upon subject to changes to the phrasing of the direction:

25. [110]

    Ultimately, the trial Judge did not permit any reliance on a failure to deny the allegations for a consciousness of guilt purpose and gave an Edwards [4] direction in relation to the following four strands relied upon by the Crown:

    1. (1)

       The accused’s decision to tell police about the falling of the bed incident;

    2. (2)

       The accused attempting to leave police with the impression that he did not sleep in the same room as the complainant;

    3. (3)

       The accused answering in a way which revealed he knew that the allegations occurred when the grandmother was absent; and

    4. (4)

       The accused failing to react in any observable surprised way when the allegations were spelled out to him.

26. [111]

    Her Honour then summarised the respective submissions of the Crown and the accused in relation to these four areas. In relation to the second aspect, being the accused attempting to convey to police that he does not sleep in the same bedroom as the complainant, the trial Judge summarised the Crown and defence submissions as follows:

27. [112]

    In relation to the third aspect of not telling the police that the allegations could not be true because the grandmother would have noticed, her Honour summarised the position of the Crown and the applicant as follows:

28. [113]

    Her Honour then summarised the competing submissions on the applicant’s failure to appear surprised when the allegation was put to him:

29. [114]

    After reminding the jury of the respective submissions as to consciousness of guilt reasoning, the trial Judge gave the following direction to the jury in relation to the applicant’s purported failure to immediately deny the allegations:

30. [115]

    Her Honour then went on to give a detailed Edwards direction in relation to the four ways in which the Crown did rely on consciousness of guilt reasoning. I do not propose to extract this direction, but it is pertinent to note that it included directions that these four matters could not alone prove the applicant’s guilt and that the jury could only rely upon the applicant’s responses in the way the Crown invited them to if they were first satisfied: that the matters submitted to be lies were deliberate lies (including a direction that a response would not be a lie if the applicant was just mistaken), that each related to a material matter and that he made them because he knew he was guilty and not for some other reason.

31. [116]

    The jury was then sent home until the following Monday. Her Honour continued her summing up on Monday 5 June 2023 which concluded with detailed summaries of the closing addresses.

32. [117]

    The jury retired at 12.03pm that day and returned verdicts of guilty with respect to Counts 1, 2 and 3 and a verdict of not guilty with respect to Count 4 at 3.39pm on Thursday 8 June 2023.

GROUNDS OF APPEAL

1. [118]

   The grounds of appeal fall into three broad areas. Ground 1 contends that the trial miscarried as a result of the conduct of the Crown. Ground 2 contends that the trial miscarried as a result of the trial Judge’s directions on consciousness of guilt and the right to silence. Ground 3 contends that the trial miscarried because the applicant was denied procedural fairness in relation to the tendency direction.

2. [119]

   Before turning to consider the respective submissions, it is helpful to first briefly set out the relevant principles applicable to the consideration of the applicant’s arguments.

3. [120]

   There are two ways in which the Crown may seek to rely upon post-offence conduct of an accused person in support of the Crown case. That conduct might be in the form of words, most commonly but not limited to lies, or in the form of conduct, most commonly but not limited to flight. If the conduct relates to a material issue in the trial, the Crown may rely upon the conduct as exhibiting consciousness of guilt of the charged offence or offences. In such circumstances, the Crown suggests to the jury that an accused person said or did something (or failed to do something) because they appreciated that they were guilty of the offence charged and wished to keep that guilt hidden.

4. [121]

   The second way in which the Crown may rely upon the accused person’s post-offence conduct is as being relevant to credibility.

5. [122]

   As Adamson JA (with whom Price and Davies JJ agreed) recently observed in MM v R [2023] NSWCCA 236 at [18], there is an important distinction between the two ways that post offence conduct can be relied upon. If the words and/or conduct of an accused are relied upon as evidence of a “consciousness of guilt”, they are relied upon as an implied admission. As such, the evidence forms part of the evidence against the accused in the Crown case. But if the words and/or conduct of an accused are only relied upon as being capable of affecting the jury’s assessment of the accused’s credibility then they do not add to the evidence in support of the Crown case.

6. [123]

   If the Crown relies upon any of the accused’s post offence conduct as consciousness of guilt, then the trial Judge must give a direction in accordance with Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 (“Edwards”). Although that case related to lies, the principles are applicable to any post -offence conduct relied upon by the Crown as consciousness of guilt. What has become known as an Edwards direction is derived from what is set out at 210-211 of that decision (Deane, Dawson and Gaudron JJ) as follows: (footnote omitted)

7. [124]

   If the Crown does not rely on the identified post-offence words or conduct as amounting to a consciousness of guilt, the jury should be directed not to use the evidence in that way and a “Zoneff” direction should be given. Such a direction is derived from the decision in Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 (“Zoneff”). It is required when there is a risk that the jury may use the evidence as consciousness of guilt. The Zoneff direction can be found at [23]-[24] where Gleeson CJ, Gaudron, Gummow and Callinan JJ stated the following:

8. [125]

   It is not necessary to give either an Edwards or a Zoneff direction every time the Crown suggests that an accused person has lied: Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 at [34] per Gleeson CJ and Hayne J; see also Kramer v R; R v Kramer [2023] NSWCCA 152 at [108] and Rahman v R [2021] NSWCCA 290 (“Rahman”).

9. [126]

   Section 89 of the Evidence Act 1995 (NSW) is applicable when an accused person either fails or refuses to answer one or more questions. It is in these terms:

10. [127]

    To some extent, this provision reflects the common law principle in Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; [1991] HCA 34 where Mason CJ, Deane, Toohey and McHugh JJ observed the following at [3]:

11. [128]

    Nor can adverse inferences be drawn from a suspect or an accused exercising his right to silence in the courtroom: s 20 of the Evidence Act; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25.

12. [129]

    Prior to the enactment of the Evidence Act, the High Court held in Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23 (“Woon”) that selective answering of police questions in a recorded interview could amount to evidence of a consciousness of guilt. Section 89 now prohibits adverse inferences being drawn from the accused refusing to answer “one or more questions”. Despite this, the Crown submitted that the principle derived from Woon is still applicable. In support of that submission, reliance was placed on the decision in MM v R, referred to above, where Adamson AJ observed the following at [20]:

13. [130]

    I do not understand her Honour to be making any general statement in that passage that the principle derived from Woon is still applicable following the enactment of s 89 of the Evidence Act. Rather, it seems to me that her Honour was providing a past example of the range of conduct that has been considered in the general category of post offence conduct.

14. [131]

    The reaction of an accused person to being confronted with an allegation is capable of being relied upon as consciousness of guilt but caution is required. In The Queen v Favata [2006] VSCA 44 (“Favata”) the Victorian Court of Appeal considered a ground of appeal which concerned the Crown’s reliance upon the accused person becoming extremely agitated and beginning to sweat profusely during his recorded interview with police. The Crown relied upon the evidence as consciousness of guilt and a “conventional” direction was given (at [144]). In dismissing that ground of appeal, Vincent JA (with whom Callaway and Buchanan JJA agreed) said this at [145]:

15. [132]

    A person’s reaction to a proposition being put to him or her differs in some respects to the concept of using demeanour to ascertain whether a witness is telling the truth. Judicial doubt has been cast on the ability of a fact-finder to determine whether someone is telling the truth from the manner in which they responded to questions. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31], Gleeson CJ, Gummow and Kirby JJ observed the following in this regard (footnotes omitted):

16. [133]

    That a trial can miscarry due to the conduct of a Crown prosecutor is well established. The principles are summarised in Glenn (a pseudonym) v The Queen [2020] NSWCCA 308 (“Glenn”) at [189]-[219] and in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 (“Hughes”) at [265]-[275]. In Hughes, the Court (Beazley P, Schmidt and Button JJ) observed at [275] that the determination of a ground relating to Crown conduct required the Court to analyse exactly what was said or done and consider it in the context of the entirety of the trial, including remedial steps (if any) taken by the presiding judge. The relevant principles have also recently been considered in Zurshig v R [2021] NSWCCA 309, Crockford v R [2022] NSWCCA 115 and Day v R (No 2) [2023] NSWCCA 312 (“Day (No 2)”).

17. [134]

    As this Court observed in Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334, at [31], features of a Crown address that have, alone or in combination, been held to justify the censure of the court include: a submission to the jury based upon material which is not in evidence; intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury; comments which belittle or ridicule any part of an accused’s case; impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit; and conveying to the jury the Crown prosecutor’s personal opinions.

18. [135]

    It is with these principles in mind that I turn to consider the submissions.

Ground 1: The conduct of the Crown prosecutor’s cross-examination and closing address occasioned a miscarriage of justice

1. [136]

   Three sub-grounds were relied upon under this ground. I shall deal with the first two of them together. They rely on the following two aspects of the Crown closing:

   1. (1)

      Commenting on the applicant’s failure to deny allegations;

   2. (2)

      Unfairly urging upon the jury to engage in consciousness of guilt reasoning.

2. [137]

   Central to these two sub-grounds was the contention that the Crown unfairly cross-examined the applicant and then repeated the unfairness by relying on those portions of the cross-examination in his closing address.

3. [138]

   It was submitted that the Crown’s cross-examination of the applicant and his closing address occasioned “such prejudice and unfairness to [the applicant] that despite any directions later made by the trial judge, his trial substantially miscarried”. It was accepted that the applicant’s trial counsel only objected to one of the matters now complained of and on a different basis to the complaint on appeal.

4. [139]

   A large number of discrete submissions were made under these sub-grounds and there was significant overlap between the arguments under these grounds and those under Ground 2. I shall endeavour to encapsulate them as follows.

5. [140]

   The applicant contended that his right to silence was undermined both in cross-examination and the Crown closing address.

6. [141]

   It was submitted that the Crown’s suggestion to the applicant in cross-examination (and to the jury in the Crown closing address) that he had failed to deny the allegations to police in his ERISP because he knew he was guilty could not be cured by direction and that the trial had irremediably miscarried by the end of the Crown closing address.

7. [142]

   It was further submitted that s 89 of the Evidence Act was breached by permitting the Crown to rely on the applicant’s demeanour throughout his ERISP, in particular in not looking surprised by the allegations, as consciousness of guilt. This was because the jury was invited to draw inferences unfavourable to the applicant’s credibility from his silence. This was not cured by the trial Judge’s later directions focusing on consciousness of guilt (rather than credibility).

8. [143]

   At the hearing of the appeal, it was accepted that the Crown relied on the demeanour in the ERISP overall as consciousness of guilt, not just specific answers but the complaint remained that the trial Judge should have directed the jury that they could not use demeanour at all, including for credibility. It was conceded that this was a “very narrow complaint”. [5]

9. [144]

   It was submitted that although the trial Judge was alive to the clear breach of the “right to silence” in the Crown's attempt to rely upon purported failures by the applicant to immediately deny allegations as a consciousness of guilt, neither the trial Judge nor the parties expressly considered the application of s 89 to other aspects such as the answer in which the applicant failed to refer to the grandmother. It was submitted that on every occasion where the Crown queried with the applicant in cross-examination why he had not provided a different answer, his right to silence was undermined.

10. [145]

    Given all the relevant circumstances, including the timing of the ERISP, cultural and language factors, and the undue weight which the jury might give it, it was submitted that it was not appropriate in this case to direct the jury that they could derive any consciousness of guilt from the applicant’s apparent demeanour in response to the allegations during the ERISP.

11. [146]

    It was conceded on behalf of the applicant that one reason why s 89 may not have been raised at trial was that the view was taken that the applicant had not exercised his right to silence. It was further submitted that just because defence counsel embraced the fact that the applicant had waived his right to silence in her closing address does not mean that the protections under s 89 were themselves waived. [6]

12. [147]

    Appeal counsel accepted that once post-offence words or conduct are capable of being relied upon as consciousness of guilt an Edwards direction must be given. The complaint upon this sub-ground is that two of the aspects relied upon were not capable of that inference being drawn, namely, the failure to deny the allegation by reference to the grandmother and the applicant’s demeanour in the ERISP.

13. [148]

    In relation to the failure to refer to the grandmother, it was submitted that it was not logically or rationally open to draw a consciousness of guilt inference in relation to the answer where the applicant failed to mention the potential presence of the grandmother. This was said to be because it was so obvious that the offending could not have allegedly occurred when the grandmother was sleeping in the big bedroom that if the applicant had said that she would have seen it, his answer would have been treated as self-evident or self-serving. Further, the applicant did explain in the next answer (in response to a direct question from police) that he only slept in the big room when his mother-in-law was absent. Finally, the applicant submitted that reliance on this aspect breached s 89 of the Evidence Act.

14. [149]

    Further, it was submitted that this line of questioning (about failing to mention the grandmother) suggested that there was an onus on the applicant to explain every reason why he might not be guilty, reversing the onus of proof.

15. [150]

    As for the applicant’s demeanour being left to the jury as a consciousness of guilt, the same arguments were put as under Ground 1(i). It was submitted that the jury should have been directed that any answers that they were told could not be used as consciousness of guilt (because of the right to silence) could also not be relied upon as credibility.

16. [151]

    Reliance was placed on the fact that, like in Mark McKey v Regina [2012] NSWCCA, this was a “word on word” case where the jury would have been casting around for evidence to support the complainant’s evidence. In that context, the fact that the jury was invited to use their assessment of the applicant's demeanour to undermine his credibility (and to demonstrate a consciousness of his guilt) was unfair.

17. [152]

    In addition to these specific complaints, it was submitted that the cross-examination and Crown closing address were otherwise “unfairly prejudicial” in many other respects because they relied on numerous 'strands' of consciousness of guilt beyond the four areas identified and addressed upon by the trial Judge. In this way, it was said that the cross-examination and closing address created an “irremediable prejudice to the applicant’s right to a fair trial according to law”. Although the Crown identified six possible areas capable of consciousness of guilt reasoning (in MFI 17), the applicant in written submissions identified nine separate “strands” of the closing address, which were collectively said to unfairly raise consciousness of guilt reasoning, as follows:

    1. (1)

       The innocent explanation offered by the applicant to police;

    2. (2)

       The applicant’s knowledge that the alleged offences occurred on a weeknight before the allegations were put to him in detail;

    3. (3)

       The applicant’s knowledge that the alleged offences occurred when the grandmother was not present;

    4. (4)

       The applicant’s failure to tell Police that the offending would have been impossible because the grandmother would have seen it, and a failure to mention the grandmother at all;

    5. (5)

       The applicant’s lying to and misleading police about the sleeping arrangements;

    6. (6)

       That police had to extract from the applicant that he slept in the second bedroom when his mother-in-law was at work;

    7. (7)

       The applicant’s demeanour from the ERISP when allegations were put to him including that he did not look shocked;

    8. (8)

       The applicant’s frequent failure to “actually actively deny the allegations when they’re levelled”; and

    9. (9)

       The applicant’s explanation in court for the way he reacted to questioning being because he was exhausted rather than saying he was “bewildered, confused, panicked, upset or shocked”.

18. [153]

    It was submitted that the trial Judge’s directions were inadequate to ameliorate the unfairness and prejudice which had already occurred in the forceful cross-examination and closing address by the Crown. The directions were described as “too little, too late”. The complaint about the inadequacy of the directions is also the subject of Ground 2.

19. [154]

    In response to the submissions suggesting that s 89 of the Evidence Act had been breached, the Crown submitted that the applicant was not in fact invoking his right to silence when he told police that there was “nothing [he] could tell seriously”. He explained in cross-examination that this answer was intended to convey that “these things never happened, so I have nothing to say”. When asked why he didn’t say the words “that never happened” the applicant attributed this failure to his English ability. He gave a similar answer in response to the allegation that he licked the complainant’s vagina. He explained that he was “stunned by that time.”

20. [155]

    The Crown relied on the fact that not only was there no objection to the cross-examination based on impugning the applicant’s right to silence, but defence counsel herself submitted to the jury that the applicant had waived his right to silence in both instances and was attempting to deny the offences.

21. [156]

    As for the questions about the complainant’s grandmother, it was submitted that the combined effect of the applicant’s answers to police in the interview, and the cross-examination, was that the applicant had told police that he could not have touched his daughter on the vagina because he slept with his wife and his “wife would know straight away” if he got up and went into the complainant’s room. The applicant’s response, when combined with his answer in cross-examination, was capable of demonstrating that the applicant knew he had committed the offences when the grandmother was not present (as alleged by the complainant) and accordingly did not mention the grandmother when explaining why it was impossible for him to have committed the offences.

22. [157]

    While it is acknowledged that the applicant told police a few answers later that he did occasionally sleep in the complainant’s bedroom, it was submitted that this did not diminish the capacity of his initial explanation to demonstrate that he knew the offences had been committed when the grandmother was absent.

23. [158]

    Further, in her closing address, defence counsel explicitly responded to the submission that the applicant did not mention the grandmother because he knew she was absent when the offences were committed. It could not be said that defence counsel failed to understand the way in which the Crown relied upon the evidence and, in the atmosphere of the trial, saw no prejudice or injustice in meeting the submission. It was submitted that the Crown closing has to be considered in the context of the robust submissions made by trial counsel for the applicant on the issue. The applicant’s response to the use sought to be made of the evidence by the Crown was clearly articulated in the direction that was given. Further, the trial Judge cautioned the jury that they should be “extremely careful” about drawing inferences.

24. [159]

    Further and in any event, even if this Court were to conclude that the trial Judge erred in leaving the applicant’s responses (and subsequent evidence about those responses) as consciousness of guilt because it was not capable of demonstrating a consciousness of guilt, the Crown submitted that no miscarriage of justice was occasioned because of the Edwards direction. The trial Judge stressed to the jury on three occasions the care that they must take in assessing whether the evidence could be relied upon as evidence of guilt and directed that they could not rely upon the evidence as consciousness of guilt without being satisfied of the matters set out in the Edwards direction. All three directions excluded any real chance that the jury treated the evidence relied upon by the Crown as consciousness of guilt if it was incapable of having that effect.

25. [160]

    Reliance was placed on the fact that the trial Judge warned the jury about the difficulties in assessing the truthfulness of a witness by reference to their demeanour in circumstances where they are of different cultural background and require interpretation from one language to another (both of which were directly applicable to the applicant’s demeanour in the police interview).

26. [161]

    In oral submissions, the Crown went through the defence closing defence in some detail to show that the issues put on this appeal are markedly different to the way in which the trial was run.

Consideration: Grounds 1(i) and (ii)

1. [162]

   Although a number of discrete complaints were made under these sub-grounds, the underlying focus was an allegation that the applicant’s right to silence had been undermined.

2. [163]

   Section 89 of the Evidence Act is concerned with preventing any adverse inferences to be drawn from the failure of an accused person to answer one or more questions by an investigating official. Had the applicant refused to answer one or more questions or declined to be interviewed at all then the trial Judge would have directed the jury that they could not use that refusal against the applicant in any way. That was not this case.

3. [164]

   The applicant was cautioned by police at the commencement of his ERISP and again thereafter. Despite this, he answered all of the questions put to him. As his defence counsel emphasised to the jury, the applicant waived his right to silence, answered every question put to him by investigating police and then entered the witness box at trial and subjected himself to cross-examination.

4. [165]

   In this context, it is unsurprising that s 89 of the Evidence Act was not raised by defence counsel at the trial.

5. [166]

   Despite the fact that the applicant at no time exercised his right to silence, it is contended that the Crown undermined the applicant’s right to silence in three ways. I am not satisfied that any of these complaints are established.

6. [167]

   The first complaint is that the Crown should have been prevented from cross-examining the applicant and addressing the jury to the effect that the applicant failed to deny the offences when they were first put to him in his ERISP.

7. [168]

   I have carefully considered the applicant’s answers in his ERISP and his cross-examination about them which underpin the complaints under this ground. There was nothing unfair about the cross-examination itself, the question is how it could be used by the jury.

8. [169]

   I have extracted the answers above at [51]-[60]. It is to be accepted that in part of his answers the applicant responded by answering, “there’s nothing I can tell seriously”, “there’s nothing I can tell”, or “Jesus. What … ah there’s nothing I can tell you for this one either. I’m sorry about that”. But some of the answers he gave included denials and in his re-examination at trial he explained his initial answers to police as meaning “these things never happened, so I have nothing to say”. His account was to the effect that he was trying to deny the allegations. When asked in cross-examination why he had not said the words, “that never happened”, he explained that this was due to his “English ability”, that his “mind wasn’t very clear” and he was “stunned by that time”.

9. [170]

   The trial Judge was concerned that some of the answers may have come close to undermining the applicant’s right to silence, but that was a cautious approach taken by the trial Judge and one on which judicial minds may have differed.

10. [171]

    I am not satisfied, as a question of fact, that the applicant’s answers when read in context could be properly categorised as a failure to deny the allegations, nor as a form of selective answering. The applicant did not decline to answer any questions. Despite this, the trial Judge was correct to be cautious as to the extent to which the Crown could rely upon them. Although it was open to the Crown to test the applicant’s credibility by challenging some of the answers he gave, I am not satisfied that these answers were capable of being relied upon as consciousness of guilt because they were not sufficiently clear failures to deny the allegations. Accordingly, it was only open to the Crown to rely upon them for credibility.

11. [172]

    Although I am not satisfied that these answers in the ERISP were clear failures to deny the allegations, any risk of prejudice arising from the cross-examination of the applicant (and the Crown closing address) was ameliorated by the directions given by the trial Judge which were given one day after the Crown closing address.

12. [173]

    It is significant when assessing this ground that the trial Judge prevented the Crown from relying on the answers (inaccurately categorised as failures to deny the allegations) as consciousness of guilt. Given that, for my part, I would have prevented the Crown from relying upon them for a different reason (as not being capable of being evidence of consciousness of guilt) it follows that I am satisfied that any unfairness which arose was in fact cured by the direction given by the trial Judge.

13. [174]

    The second complaint is that the Crown undermined the right to silence by commenting on the way in which the applicant denied the offences, for example by responding that they could not have occurred because his wife would have noticed (as opposed to his mother-in-law). But the fact remains that he did answer the questions. Again, I am not satisfied that the applicant’s categorisation of these answers as being “selective” is accurate. Rather, the Crown sought to explore the veracity of the answers he provided. By denying the offence in a particular way, the permissible inference was able to be drawn that he knew that the offences occurred when the grandmother was at work.

14. [175]

    I am not satisfied that the Crown testing why a question was answered in a particular way breached s 89 of the Evidence Act. There was no refusal to answer any questions and, as he explained in his evidence, the applicant was shocked and attempting to convey that he had not done the alleged acts. In this context, it could not be said that the applicant was attempting to invoke his right to silence in these answers.

15. [176]

    The third complaint is that the Crown undermined the applicant’s right to silence by relying on his demeanour in the ERISP. There are two difficulties with this third complaint. First, it presumes that the Crown’s reliance on demeanour solely pertained to those parts of the ERISP which correlated with the trial Judge’s direction that they could not be used for a consciousness of guilt purpose when that was clearly not the case: the Crown relied upon the ERISP in its entirety. Secondly, as I have already indicated above, although it was not open to the Crown to rely on the manner in which the applicant initially responded to the allegations (miscategorised as a failure to deny the allegations) as an implied admission, it was open to the Crown to rely on these responses as being relevant to his credibility.

16. [177]

    I am unable to accept the applicant’s submission that the jury could not draw any adverse inference from the applicant’s responses to the allegations when assessing his credibility. For one thing, defence counsel relied upon the applicant’s responses to the allegations as denials. The jury were entitled to consider the applicant’s responses to the allegations when examining whether they had a reasonable doubt. This included the manner in which the applicant denied the allegations. As I will consider further under Ground 2, the trial Judge was not obliged to direct the jury that they could not draw any adverse inference from the applicant’s responses to the allegations when assessing the applicant’s credibility.

17. [178]

    The applicant relied on the recent decision in Day (No 2) and suggested that it was similar to the case. I am not satisfied that there any significant similarities between the cases. It is to be accepted that the appeal in Day (No 2) was upheld on the basis that the trial miscarried due to the Crown prosecutor’s closing address. As here, a number of separate complaints about the closing address were relied upon, including that the Crown had impermissibly commented on the applicant’s failure to give evidence and improperly invoked consciousness of guilt reasoning. Otherwise, that case differed to the present on a number of bases.

18. [179]

    First, the accused in Day (No 2) did not give evidence at his trial and the Crown prosecutor clearly and repeatedly commented on this by reminding the jury that there was no other evidence to rebut aspects of the Crown case when the only other person who could have given evidence on those topics was the accused.

19. [180]

    Secondly, in Day (No 2), the Crown properly acknowledged in this Court that there were “infelicities and improprieties” in the address and that the references to the lack of any “explanation” by the applicant were “inappropriate”.

20. [181]

    Thirdly, there was immediate complaint by the applicant’s senior counsel at trial at the conclusion of the Crown closing address, and an application that the jury be discharged.

21. [182]

    Further, as Simpson AJA observed at [84], senior counsel who appeared for the applicant at trial in Day (No 2) had opened to the jury and suggested therein that there would be “an answer” to each allegation made by the Crown (suggesting that the applicant would give evidence). Later, after showing certain documents to the complainant in cross-examination he indicated that they would be tendered through the applicant or another witness. Despite the fact that the jury may well have by that time anticipated that the applicant would give evidence, he did not give evidence. The comments by the Crown about the lack of evidence from the applicant had to be assessed in that context.

22. [183]

    The circumstances in Day (No 2) can be contrasted in a number of respects with what happened in the applicant’s trial. The applicant agreed to be interviewed by police, answered every question and also gave evidence at trial. The closest the Crown came to undermining the applicant’s right to silence was when it was suggested to the applicant that some of his answers would have been different had he not been conscious of his own guilt. An examination of the cross-examination of the applicant and the related portions of the Crown closing address in full show that the Crown was testing the veracity of the applicant’s responses given in the ERISP.

23. [184]

    Finally, I do not accept the submissions made on behalf of the applicant in this Court that defence counsel at trial overlooked the significance of the breach of the applicant’s right to silence. Rather, the trial Judge determined that there was a risk that relying on the applicant’s response to the allegations as consciousness of guilt infringed his right to silence and she gave the directions extracted above for abundant caution. Defence counsel considered the direction and approved it before it was given to the jury. No further direction was sought after it was given.

24. [185]

    The applicant contends that two aspects of the applicant’s ERISP were not capable of demonstrating a consciousness of guilt: the failure to mention that the grandmother would have seen him and demeanour. No complaint is made about consciousness of guilt reasoning having been left to the jury in respect of the story about accidental touching and the lie told by the applicant regarding his sleeping arrangements.

25. [186]

    Although defence counsel at trial objected to the failure to mention the grandmother going to the jury as consciousness of guilt, it was accepted that a different argument is now put on appeal. At trial, defence counsel submitted that there was insufficient evidence that the offences only occurred when the grandmother was absent. The trial Judge was satisfied there was. In this Court the complaint was framed differently: it was contended that failing to mention the grandmother has no “logical connection” with guilt. [7] It was conceded during the hearing of this appeal this was not the “strongest ground”. [8]

26. [187]

    The applicant has failed to establish that the applicant’s denial of the offences by reference to his wife having seen him rather than the (more obvious) example that the grandmother would have seen them was incapable of suggesting that the applicant knew the offences were committed when the grandmother was not there. It was open to infer this especially when these answers are considered in the context of his initial misrepresentation of the sleeping arrangements in the flat. The Crown in these passages was inviting the jury to consider the applicant’s inconsistent and evolving account as to the sleeping arrangements in the family home. Nor am I satisfied that this line of questioning suggested that there was an onus on the applicant to explain every reason why he might not be guilty, thereby reversing the onus of proof.

27. [188]

    As for the applicant’s purported lack of surprise when confronted with the allegations being left as consciousness of guilt, I make the same findings as I did under Ground 1(i). There is no authority for the proposition that the reaction by a suspect during questioning cannot be relied upon as consciousness of guilt, although clearly the jury must be given clear directions about the steps they must go through before they could do so. The applicant gave evidence explaining his demeanour and defence counsel addressed this in some detail in her closing address. Further, the trial Judge gave detailed directions about the caution to be exercised when considering demeanour.

28. [189]

    It is significant to note that the applicant accepts that it was open on the evidence for the jury to assess that the applicant did not look surprised in the ERISP. It was the joint position of the parties at the hearing of the appeal that on that basis there was no need for this Court to look at the ERISP. [9]

29. [190]

    The use of the word “demeanour” to describe the fourth way in which the Crown relied on consciousness of guilt does not fully apprehend the Crown submission. The jury was not invited by the Crown to find that the applicant’s demeanour when denying the offences was such that you could tell that he was lying. Rather, reliance was placed on his reaction to having these serious allegations put to him, which was described by the Crown as a failure to look shocked or surprised. The Crown submitted on this appeal that it was not the case that the applicant did not show any emotion at all in the ERISP, he apparently expressed surprise and became quite animated when discussing whether he would be getting a divorce. That was to be contrasted with his reaction to the allegations.

30. [191]

    The applicant relies on the decision in Favata in support of the submission that demeanour ought not to have been left to the jury as consciousness of guilt. Although in Favata it was held that it would be a rare case where the Crown could rely upon it this way, Favata is not authority for the proposition that it cannot occur.

31. [192]

    Further, the trial Judge gave protective directions about the use of demeanour and summarised the defence submissions in some detail in the summing up. The jury was provided with the respective arguments as to demeanour and instructed that they could only have used it in the way advanced by the Crown if satisfied of all of the matters included in the Edwards direction.

32. [193]

    I am not satisfied that, in the circumstances of this case, any error is disclosed in permitting consciousness of guilt to go to the jury in this way.

33. [194]

    To the extent that the applicant alleged unfairness in the Crown closing where it was suggested that “… there are aspects of his interview with police which may have left you with the impression that he is, indeed, guilty of these offences”, such submissions should not be taken out of context. It is pertinent that no complaint is made in this Court about two out of the four matters that went to the jury as consciousness of guilt.

34. [195]

    As for the complaint that there were in fact nine strands of consciousness of guilt reasoning, rather than four, I am not satisfied that dividing the four general areas into nine smaller subject matters supports the applicant’s allegation of unfairness. Strands two, three, four, five and six all concern the questioning about the sleeping arrangements and the absence of the grandmother, and the ninth strand was part of the Crown submission about demeanour.

35. [196]

    In considering this ground, I have considered a number of decisions of this Court where error about consciousness of guilt reasoning has been relied on. Adamson JA considered some of the cases in MM v R at [30]-[51]. Nearly all of them concern a contention that an Edwards direction should have been given. In nearly all of those cases, the trial judge had not detected any consciousness of guilt reasoning being raised by the Crown: see AB v R [2023] NSWCCA 165; Harper v R [2022] NSWCCA 211; DC v R [2019] NSWCCA 234; Mark McKey v Regina [2012] NSWCCA 1; (2012) 219 A Crim R 227; Elmasri v R [2010] NSWCCA; Kramer v R; R v Kramer [2023] NSWCCA 152 and Rahman v R [2021] NSWCCA 290. That is to be contrasted with the present case where her Honour spent considerable time on the scope of the matters put by the Crown and the appropriate Edwards directions.

36. [197]

    Section 6(1) of the Criminal Appeal Act 1912 (NSW) relevantly provides that a court may allow an appeal on the basis that there has been a wrong decision of any question of law (“the second limb”) or if of the opinion “that on any other ground whatsoever there was a miscarriage of justice” (“the third limb”). Section 6(1) goes on to provide that the court may, even if it is of opinion that “the point or points raised by the appeal” might be decided in favour of appellant, dismiss the appeal if it considers that “no substantial miscarriage of justice” has actually occurred (“the proviso”). There was no suggestion that the proviso would be applied if this Court was satisfied that a second or third limb miscarriage was established.

37. [198]

    As to what constitutes a miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act, in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 Gageler J (as his Honour then was) explained the following at [116] (footnotes omitted):

38. [199]

    In Saunders v R [2022] NSWCCA 273 at [92]-[93], Simpson AJA (Hamill and Ierace JJ agreeing) said:

39. [200]

    The following statement by Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) in Zhou v R [2021] NSWCCA 278 at [22] was endorsed by the majority (Gageler CJ, Gleeson and Jagot JJ) in the High Court in HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35 at [2]:

40. [201]

    The principles governing a miscarriage of justice arising from a misdirection to a jury (or a wrong decision on a question of law) were more recently stated by the High Court (Gordon, Steward and Gleeson JJ) in Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 at [40]-[44]. Their Honours identified the ultimate question as being whether, taken as a whole, the judge’s instructions to the jury deflected the jury “from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt”. Further, the question of whether on any ground “whatsoever” there has been a miscarriage of justice requires consideration of the whole of the judge’s charge to the jury.

41. [202]

    I am not satisfied that a miscarriage of justice has been established under these two sub-grounds. The question remains as to whether leave should be granted to argue them.

Rule 4

1. [203]

   Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is in these terms:

2. [204]

   The applicant accepted that only one matter now complained of under these two sub-grounds was raised before the trial Judge and that r 4.15 applied (concerning the failure to refer to the grandmother). It was also accepted that no complaint was made about Ground 1(iii), Grounds 2(i)(a), 2(ii) and Ground 3. Although the applicant’s counsel proceeded on the basis that r 4.15 applied to those aspects of Ground 1 on which no complaint was made, the Crown properly acknowledged that there is some doubt as to whether r 4.15 applies to Ground 1 at all.

3. [205]

   In Glenn, I observed at [226] that complaints about the cross-examination of an accused or a Crown closing address are not about a “direction, omission to direct, or decision as to the admission or rejection of evidence” and thus r 4.15 is not engaged. Despite this, I went on to observe that even when r 4.15 is not engaged, many of the principles derived from the decisions concerning the engagement of the rule are applicable to the question of whether the trial miscarried as a result of the matters now complained of. As this Court (Giles JA, Hislop and Hulme JJ) observed in Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [11]-[12]:

4. [206]

   The Crown identified additional conflicting authorities as to whether r 4.15 applies to a failure to object to Crown cross-examination or closing address.

5. [207]

   In Armstrong v R [2013] NSWCCA 113 (“Armstrong”), Harrison J, with whom Simpson and Bellew JJ agreed) observed this at [50]:

6. [208]

   In Lyndon v R [2014] NSWCCA 112 at [28]-[29], (Basten JA with whom Button J and RS Hulme AJ agreed) said this at [28]-[29]:

7. [209]

   In Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 (“Medich”), Hoeben CJ at CL (with whom Bathurst CJ agreed on this ground at [4]-[10]; see also Hamill J agreeing with the Chief Judge at [799]-[802]) noted the conflict and then addressed the issue in the following way at [180]:

8. [210]

   The Crown adopted the conservative approach as identified in Medich in relation to these sub-grounds: the fact that no objection was taken at the time of trial is compelling evidence that in the atmosphere of the trial, defence counsel saw no injustice in what was done and had no difficulty with what was said by the Crown.

9. [211]

   I am not satisfied that Grounds 1(i) or (ii) are established but the grounds raise important principles. I have not applied r 4.15, but the sub-grounds raised questions of mixed fact and law. I would grant leave but not uphold these sub-grounds.

Ground 1(iii): Crown inviting inferences not based on evidence

1. [212]

   The applicant submitted that the Crown at trial made a number of submissions as to why the jury should accept the evidence of the complainant that were not based on the available evidence at trial.

2. [213]

   It was submitted that these submissions compounded the unfairness that arose from the complaints made under Grounds 1(i) and (ii), particularly where the jury was invited to find support for the complainant's evidence from her demeanour and hand movements. It was submitted that these matters should not have been given the significant emphasis they were afforded, particularly given the recognised and inherent difficulties of drawing any inferences (let alone of guilt) solely from observing a person's demeanour.

3. [214]

   One of the portions of the Crown address relied upon was suggesting that the complainant’s physical gestures enhanced her credibility because it was as if she was reliving an authentic memory. It was submitted that this was objectionable because it was not based on expert evidence. The Crown had adduced evidence from Dr Pulman, and it was submitted that she should have been asked to comment about these aspects of the complainant’s evidence.

4. [215]

   A similar complaint was made that the Crown suggested to the jury that the complainant’s writing or drawing in her interview with police enhanced her credibility and authenticity when there was no expert evidence about this. It was submitted that such behaviours may have no bearing on the credibility or authenticity of a child’s account at all or may be consistent with a child’s imaginary or falsely reconstructed account of events and that Dr Pulman should have been asked about these matters so that there was a proper evidentiary basis to put the submission. Further, if these matters had been put to Dr Pulman the applicant would have been on notice of it.

5. [216]

   At the hearing of this appeal, it was conceded that counsel was unaware of any case in which an expert such as Dr Pulman has given evidence about a complainant’s demeanour when making complaint or giving evidence or their believability generally. [10] It was also accepted that there is no general principle that a Crown cannot make submissions about the demeanour of a child complainant unless expert evidence has been given about children’s demeanour more broadly. [11]

6. [217]

   The Crown submitted that there was no unfairness in the Crown seeking to draw on the jury’s common sense and life experience to find that the complainant was both credible and reliable. Most of the submissions to the jury were prefaced with the phrase, “you might think”. It was submitted that such submissions do not need to be supplemented by expert evidence. Nor was there any requirement for the Crown to adduce expert evidence as to whether writing down allegations, drawing aspects of the allegations, gesticulating while outlining an allegation or giving a detailed account made the allegation more credible or reliable. None of these matters were properly a matter of expert evidence.

7. [218]

   Finally, as with the other complaints now made, reliance was placed on the fact that defence counsel did not raise any of the issues raised under this sub-ground at the conclusion of the Crown’s closing address. Instead, defence counsel chose to respond to these submissions in her closing address and submit, in effect, that none of the matters raised by the Crown indicated that the complainant was credible or reliable.

Consideration: Ground 1(iii)

1. [219]

   It is unsurprising that the focus of the Crown closing address was on the evidence of the complainant given her significance in the Crown case. The jury was invited to find her to be both a reliable and credible witness. In that context, they were directed to the way in which she first disclosed the offending and the observations made by complaint witnesses of her. There is nothing unfair about doing so.

2. [220]

   I have considered all of the portions of the Crown closing about which complaint is made for the first time in this Court. There was nothing unfair or inappropriate in the Crown invitation to the jury to assess the complainant’s demeanour. The Crown invited the jury to use their common sense and life experience in their assessment of the complainant’s evidence. This occurs in all trials when the Crown case rests significantly on evidence given by a central witness.

3. [221]

   As for the suggestion that aspects of the Crown’s submissions were not supported by evidence, it is difficult to identify what that evidence would have been. The evidence of Dr Pulman was narrowly confined and general. The jury was directed that it was not a comment upon the evidence of the complainant. It is difficult to see how Dr Pulman could have properly been asked to comment on aspects of the evidence of the complainant. Rather, her evidence was largely adduced to avoid the jury making false assumptions.

4. [222]

   To the extent that the applicant suggests that the Crown impliedly invited the jury to reason that the complainant’s “version must be more truthful than the [applicant’s]”, because the applicant did not write or draw any of his responses, I do not accept that that reflects the Crown closing address when considered overall.

5. [223]

   I am not satisfied that an unfairness arose from the Crown closing address insofar as the jury was invited to accept the complainant’s evidence.

6. [224]

   I would grant leave to argue this sub-ground, but I would not uphold it.

Ground 2: Errors in summing up regarding consciousness of guilt

1. [225]

   There were three separate sub-grounds under Ground 2:

   1. (1)

      The trial judge erred in directing the jury it could rely on consciousness of guilt reasoning arising from an assessment of the applicant’s demeanour in his ERISP: Ground 2(i)(a);

   2. (2)

      The trial judge erred in directing the jury it could rely on consciousness of guilt reasoning arising from the applicant’s failure to refer to the maternal grandmother in part of his response to police questioning: Ground 2(i)(b);

   3. (3)

      The trial judge erred in failing to direct the jury it must not draw any unfavourable inference (including as to credibility) from the applicant’s asserted failure immediately to deny allegations put by Police: Ground 2(ii).

2. [226]

   There is significant overlap between these sub-grounds and Ground 1. By necessity, I was required to consider the complaints made about the Crown conduct in the context of the ameliorating directions given by the trial Judge.

3. [227]

   It was submitted that it was not appropriate to direct the jury that they could derive any consciousness of guilt from the applicant’s apparent demeanour during the ERISP for the reasons explained under Ground 1.

4. [228]

   As for the second complaint, it was submitted that the trial Judge's decision to leave the absence of reference by the applicant to the grandmother to the jury as being available for consciousness of guilt reasoning was prejudicial to the applicant because it suggested that there was an onus on the applicant to explain every reason why he might not be guilty.

5. [229]

   As for the third complaint, although it was accepted that the trial Judge directed the jury it could not use his purported failure to deny the allegations for a consciousness of guilt purpose, the applicant submitted that the trial Judge erred in failing to direct the jury that it could not use the applicant’s purported failure to deny the allegations in any other way unfavourably to him.

6. [230]

   It was submitted that although the trial judge expressly directed the jury that it could not use the applicant’s failure to immediately verbally deny the allegations as consciousness of guilt, she directed the jury that they could rely on the applicant’s demeanour during the ERISP as consciousness of guilt. This was unfair because the jury was directed that it could not rely upon the verbal part of the applicant’s denial, but they could rely upon the non-verbal part of the same representation to infer a consciousness of guilt. It was submitted that it would have required the jury to engage in “mental gymnastics” in reviewing the footage of the ERISP, to see whether an adverse inference as to consciousness of guilt from the applicant’s demeanour could be drawn by ignoring his words while simultaneously relying on both the applicant’s demeanour and his words in assessing his credibility at the point when allegations were first put to him by police.

7. [231]

   The applicant submitted that the trial Judge’s direction in relation to consciousness of guilt left open to the jury that it could use the applicant’s silence or failure to deny allegations as evidence for drawing other unfavourable inferences, including in respect of credibility. Otherwise, the applicant repeated his submissions made under Ground 1 in support of this ground.

Consideration: Ground 2

1. [232]

   It follows from the findings I have made under Ground 1 that I would not uphold ground 2 either. I have already considered the protective nature of the Edwards direction, the trial Judge’s directions as to the drawing of inferences and the trial Judge’s direction as to the caution required before assessing demeanour under Ground 1.

2. [233]

   As I observed under Ground 1, the suggestion that the jury should have been directed that that they could not draw any inferences from the applicant’s responses, including as to his credibility, is flawed; the jury was entitled to assess the manner of the applicant’s denials to the allegations when assessing the credibility of those denials and defence counsel relied on the same answers to boost his credibility.

3. [234]

   Not only is the Edwards direction protective in nature, the trial Judge gave other directions on this issue including regarding inferences and the caution required before relying on demeanour.

4. [235]

   Leave is required under r 4.15 to advance sub-ground 2(i)(a) and sub-ground 2(ii). Defence counsel agreed that it was appropriate to give the directions that are now the subject of complaint. Leave pursuant to r 4.15 is not required with respect to that sub-ground 2(i)(b).

5. [236]

   The applicant relied on the manner in which this Court dealt with a failure to raise the issue before the trial judge in Rahman. In Rahman none of the matters complained of on appeal had been raised before the trial judge but the appeal was allowed. In relation to the purported failure to give an Edwards direction (Ground 1), leave to argue that ground was refused under r 4.15 on the basis that there was an obvious reason why no such direction was sought: it would have undermined the submission that no lie had been told. It was held that no miscarriage of justice was occasioned by the trial judge’s failure to give an Edwards direction because lies amounting to consciousness of guilt did not arise at the trial.

6. [237]

   Despite this, leave was granted to argue Ground 3 in Rahman. That ground was upheld, and the appeal allowed. Ground 3 concerned the right to silence. The applicant had abruptly discontinued an ERISP. No direction was given at the time that the ERISP was tendered about his right to silence. Nor at any other stage was the jury directed not to draw any negative inferences from the fact that he did so. Davies J (with whom Harrison J (as his Honour then was) and Wright J agreed) found (at [88]) that: “it is difficult to conceive of any forensic reason why that was not done. It must be assumed to be inadvertence on the part of counsel for the accused.”

7. [238]

   Similarly, it was submitted before this Court that the failure by defence counsel to object to the matters now complained of must be due to inadvertence as there was no tactical reason for such an approach. I do not accept that submission. Rather, I am satisfied that in the atmosphere of the trial, defence counsel did not perceive any of the unfairness now alleged.

8. [239]

   As for the reliance placed on the exchanges between the trial Judge and defence counsel extracted above at [107] to explain why objection was not taken at trial, given that it is not clear to me that the applicant’s right to silence was in fact breached, I do not accept that submission either.

9. [240]

   I have read the transcript of trial and it reflects that defence counsel was vigilant to ensure that the appropriate directions were given and that the Crown’s arguments were forcefully met in the defence closing address.

10. [241]

    Given the issues raised, I would grant leave to argue these sub-grounds but dismiss Ground 2.

Ground 3: Error in summing up re tendency evidence

1. [242]

   The applicant submitted that the trial Judge’s directions to the jury on tendency evidence occasioned a substantial miscarriage of justice because it arose in circumstances where the Crown had abandoned reliance upon tendency reasoning prior to its closing address. Accordingly, neither the Crown nor the applicant addressed the jury on tendency.

2. [243]

   It was submitted that the applicant was denied procedural fairness. Further, complaint was made that it was the trial Judge who invited the Crown to reconsider his position after both parties had completed their closing addresses. It was submitted that the trial Judge should not have “stepped into the arena”, given that it was an adversarial process in which the Crown had explicitly disavowed reliance on tendency reasoning.

3. [244]

   Complaint was made that the trial Judge did not provide an anti-tendency direction as requested by defence counsel. It was submitted that the jury could have been told that although the Crown had opened with tendency and the applicant had been cross-examined on it, it was no longer relied upon by the Crown and was not therefore addressed by defence counsel in her closing address, such that they must not engage in any tendency reasoning.

4. [245]

   The applicant submitted that there was no forensic advantage or reason for the applicant’s counsel to acquiesce to the tendency direction and that the forensic decision by trial counsel to inform the judge that there was no unfairness should not bind the applicant on appeal.

5. [246]

   It was submitted that it was unfair that the Crown had the forensic benefit of opening and cross-examining the applicant with respect to tendency. Then, after disavowing it and making no reference to it in his closing address, defence counsel was entitled to expect in the circumstances that tendency would no longer be relied upon and that the trial Judge would provide an anti-tendency direction. The result was that the applicant was denied the ability to argue in his closing address why tendency reasoning should not be engaged.

6. [247]

   The applicant also submitted that he was denied the benefit of having his perspective reflected in her Honour’s directions on tendency, which referred to what “the Crown says” and “the Crown alleges” etc. He was denied, by that process, a countervailing argument during the direction to the jury of what he through his counsel might have said about tendency not being established on the evidence. It was submitted “with respect” that this was incurably unfair and occasioned substantial prejudice to the applicant.

7. [248]

   During the hearing of this appeal, counsel was asked to identify the lost opportunity to make submissions given that trial counsel did not identify any and instead informed her Honour, in effect, that she was ultimately not prejudiced by a tendency direction being given. Appeal counsel submitted that “I don’t know that she’s really thought it through” and that defence counsel was “rob[bed] [of] the ability to make submissions about the tendency and the effect on it”. [12]

8. [249]

   The Crown relied on the way in which the issue evolved at trial and the fact that throughout the trial there were a number of discussions about the Crown’s reliance on tendency reasoning. It was submitted that in that context the trial Judge’s directions in relation to tendency did not amount to a denial of procedural fairness.

Consideration: Ground 3

1. [250]

   There is no complaint under this ground about the terms of the tendency direction or the decision that the Crown be permitted to rely upon the counts on the indictment as tendency evidence. Rather, the sole complaint under this ground was of a denial of procedural fairness. Before turning to consider that claim, it is important to trace through the background as to how the tendency direction came to be given. I have extracted the relevant transcript above at [67], and [95-97]. It does not support the applicant’s submission that the trial Judge “stepped into the arena”. In summary, the issue emerged as follows.

2. [251]

   There had been a pretrial ruling that the charges on the indictment could be relied upon as tendency evidence. The applicant agreed to be bound by the pre-trial rulings given this was a second trial. The Crown opened on tendency and cross-examined the applicant to suggest that he had a sexual attraction to his daughter and that he acted on it. The applicant denied this and denied all charges.

3. [252]

   In discussions with the parties regarding the suitable directions for the jury, prior to the commencement of the closing addresses, the trial Judge noted the recent decision in Rassi v R. [13] In an exchange with counsel, the Crown told the court that he was “fairly confident” he would not be invoking tendency reasoning in his closing address.

4. [253]

   After closing addresses, in which neither party referred to tendency reasoning, defence counsel sought an anti-tendency direction given that the Crown had disavowed tendency. The trial Judge reflected on the fact that the Crown had opened on tendency evidence and put the two tendencies to the applicant in cross-examination. In those circumstances, her Honour discussed with counsel how she could give an anti-tendency direction after the Crown had opened and cross-examined on tendency. Her Honour commenced her summing up before that issue had been resolved.

5. [254]

   When the Crown subsequently indicated that, on reflection, he did seek a tendency direction, the trial Judge asked defence counsel whether there was any unfairness in that course to which she replied that there was not. No doubt that was because the defence case was one of outright denial of all the offences. In denying all offences, it necessarily followed that the applicant disputed that he had either of the tendencies alleged or that there was conduct from which those tendencies might be inferred.

6. [255]

   It was apparent to the trial Judge that the applicant’s defence to any tendency argument was the same as the allegations in the indictment: a complete denial. This is reflected in the trial Judge’s summary of the defence case that included the defence submission that, “[y]ou would not find that the accused committed any offence and you would not find he had a sexual interest in [the complainant] or a tendency to act on that sexual interest”.

7. [256]

   It is to be accepted that when it was thought that tendency would not be relied upon by the Crown, defence counsel sought an anti-tendency direction. But later, after the Crown changed its position and did seek a tendency direction, defence counsel’s response to that was that there would be no unfairness.

8. [257]

   The difficulty for the applicant in now alleging a denial of procedural fairness is that the person best placed to address the question of a loss of opportunity was defence counsel and she did not perceive there to be any procedural unfairness at the time, in the atmosphere of the trial, and she informed her Honour accordingly. The transcript does not reflect that defence counsel misapprehended what the trial Judge was going to do. This is reflected in the fact that no complaint was made after the tendency direction was given either. Further, it is necessary when complaining of procedural unfairness to identify what submission it was that you were prevented from making and none was identified on this appeal beyond a general description that defence counsel was denied the opportunity to put the applicant’s case on tendency.

9. [258]

   The content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34] per Gleeson CJ. A party complaining of procedural unfairness must be able to demonstrate a material error: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17, meaning a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, it was held (at [14]) that the question of materiality is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. The word “realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable.

10. [259]

    I am not satisfied that the applicant was denied procedural fairness because defence counsel at trial was invited to address on whether she had lost any opportunity and she did not do so. But even if I was satisfied that there had been any such denial, I am not satisfied that it was material.

11. [260]

    Applying these authorities to third limb miscarriage under s 6(1) of the Criminal Appeal Act, it seems to me that if the making of submissions on tendency in the defence closing address could realistically have led to a different result, then the procedural unfairness would be of such a fundamental nature that there could be no application of the proviso. If, on the other hand, an applicant does not establish that the purported denial of procedural fairness could have led to a different result, then there would be no “third limb” miscarriage.

12. [261]

    My conclusion that the applicant was not denied procedural fairness is confirmed by the position taken by defence counsel at trial: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121] (per Beazley P, Hall and Wilson JJ): Greenhalgh v R [2017] NSWCCA 94 at [42] (Basten JA, Button and N Adams JJ agreeing); and see also Latu v R [2023] NSWCCA 19 at [76]-[77] (Davies J, Bell CJ and Fagan J agreeing); Marco v R [2023] NSWCCA 307 at [64] (Ward P, Walton and Fagan JJ agreeing).

13. [262]

    I would grant leave to argue this ground but dismiss it.

14. [263]

    Accordingly, I would dismiss the appeal against conviction.

Leave to appeal against sentence

1. [264]

   The applicant also seeks leave to appeal against his sentence on the following ground:

2. [265]

   Before turning to consider the applicant’s submissions it should be acknowledged that the applicant stood to be sentenced for two offences contrary to s 66B(a) of the Crimes Act (sexual touching of a child between 10 and 16 years of age) and one offence contrary to s 66C(2) Crimes Act (aggravated sexual intercourse with a child between 10 and 16 years of age). He was not sentenced in relation to an offence contrary to s 66EA Crimes Act.

3. [266]

   The offence under s 66EA of the Crimes Act carries a maximum penalty of life imprisonment. Such an offence occurs when an adult maintains an “unlawful sexual relationship” with a child. An “unlawful sexual relationship” is defined by s 66EA(2) as being a relationship in which an adult “engages in 2 or more unlawful sexual acts with or towards a child”. Before considering the applicant’s complaints under this ground, I will first extract the impugned passages of the remarks on sentence. Given the narrow scope of the one ground of appeal, it is not necessary to summarise the remarks on sentence in any detail.

4. [267]

   Relevant to the assessment of the objective seriousness of the offending, the applicant relied on the fact that there was no grooming, coercion or threats of violence. In response, the Crown submitted that the absence of these factors was not particularly mitigating on the facts of this case given the relationship of trust between the applicant and the complainant.

5. [268]

   Her Honour accepted the Crown submission as follows:

6. [269]

   Her Honour went on to note a number of other matters relevant to the objective seriousness before noting the following:

7. [270]

   Later, when considering Count 3, her Honour observed the following:

8. [271]

   When considering the application of the totality principle, her Honour noted the following:

9. [272]

   It was submitted that the italicised portions of the Remarks on Sentence extracted above establish that the sentencing Judge elevated the offences for which the applicant was being sentenced to an offence under s 66EA. In doing so, it was contended her Honour breached the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (“De Simoni”). The applicant relied on the decision of Gould v R; R v Gould [2021] NSWCCA 92 for the recent re-statement of that principle.

10. [273]

    Reliance was placed on the fact that at the commencement of the trial her Honour observed the following.

11. [274]

    The applicant relied on this passage to suggest that by the time her Honour came to sentence the appellant, she did what she stated she would not do. It was submitted that her Honour treated the existence and nature of the relationship between the offender and the complainant as relevant to the determination of the objective seriousness of the offending and that her Honour erred in doing so.

12. [275]

    It was submitted that when her Honour noted that the lens by which to consider the question of grooming was the “gravity of the relationship between the father offender and the victim child in circumstances where, so grave was the breach of trust”, this was in fact a finding about the nature of the existence of an “unlawful sexual relationship” between the appellant and the complainant which is an element of an offence under s 66EA.

13. [276]

    It was further submitted that her Honour erred in considering the factors of breach of trust and breach of authority because they were features which arose from the existence of the (unlawful sexual) relationship between the appellant as father and the complainant as daughter, which is an element of s 66EA.

14. [277]

    Overall, it was submitted that her Honour's emphasis on the nature of the relationship between the appellant and the complainant in determining the objective seriousness of the offences and the aggregate sentence imposed offended the De Simoni principles by incorporating all the elements of the s 66EA offence.

15. [278]

    The applicant accepted that it is undoubtedly a difficult task to sentence an adult offender convicted of at least two offences against one child complainant in the context of a familial relationship where the charges are separate counts, without infringing De Simoni. But it was submitted that this difficulty cannot be “side-stepped” by sentencing the offender as though he had been charged with an offence under s 66EA. It was suggested that factors which could otherwise be relied upon as aggravating features in determining the objective seriousness had the charge been under s 66EA, must be excluded from a consideration of those factors in this case because of the De Simoni principle.

Consideration

1. [279]

   The “De Simoni principle” is a well established principle of sentencing derived from the decision of the High Court in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. It simply states that an offender is only to be punished for the offence of which he or she has been convicted and not for other acts which are not the subject of the verdict which could have constituted a more serious offence: at 389 and 392. As Gibbs CJ (with whom Mason and Murphy JJ agreed) observed at 389:

2. [280]

   I do not accept that the De Simoni principle was breached by the sentencing judge in this matter.

3. [281]

   It is to be accepted that only a month before the applicant was sentenced, a five judge bench of this Court delivered its decision in MK v R; RB v R (2023) NSWLR 96; [2023] NSWCCA 180 which considered the meaning of “unlawful sexual relationship” in s 66EA (2) of the Crimes Act. Beech-Jones CJ at CL (with whom the other four judges agreed) observed at [95] that what converts a “relationship” (such as parent and child) into an “unlawful sexual relationship” is the commission of two or more unlawful sexual acts in the course of that relationship or a relationship that arises from the commission of the unlawful sexual acts themselves.

4. [282]

   The fact that an “unlawful relationship” for the purposes of s 66EA can exist when there is a relationship (such as that between the applicant and the victim in the present matter) in which two or more unlawful sexual acts occur does not mean that a sentencing judge who is sentencing for individual child sexual assault offences, as in the present case, must ignore a feature such as the father/daughter relationship when assessing the objective seriousness of the offending.

5. [283]

   The applicant stood to be sentenced on three separate counts. As for Count 3, although the complainant had given evidence at trial of other uncharged acts occurring between December 2019 and July 2020, her Honour did not rely on those acts as an aggravating feature; rather, she held that this denied the applicant any mitigation that might have flowed had there been an isolated act.

6. [284]

   No error is disclosed in the trial Judge assessing the objective seriousness of Counts 1 and 2 by having regard to the grave breach of trust by a father against his own daughter: see for example ZA v R (2017) 267 A Crim R 105 at [104]; [2017] NSWCCA 132 and Maxwell v R [2020] NSWCCA 94 at [115].

7. [285]

   Further, her Honour was careful not to give undue weight to the factor of the abuse of trust where abuse of authority was an element of Count 3: MRW v R [2011] NSWCCA 260 at [77]-[78] and PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107 at [73]. This is to be considered in the context that defence had accepted that in respect of Counts 1 and 2 (but not Count 3), the offending was aggravated “by virtue of the abuse of the offender’s position of authority pursuant to s 21A (2)(k)”.

8. [286]

   Significantly, at no time did the sentencing Judge use the language of s 66EA by finding that the applicant had an “unlawful sexual relationship” as defined in s 66EA(2). Rather, her Honour assessed the objective seriousness of each offence separately.

9. [287]

   It is to be accepted that it was important that her Honour take great care to ensure that the sentence she imposed and the sentencing exercise she undertook did not traverse the De Simoni principle. Her Honour’s reasons disclosed that she was alive to the De Simoni principle and the sentencing task she was required to undertake. The existence of s 66EA of the Crimes Act as an offence does not mean that when an offender in a position of authority is sentenced for multiple offences (rather than under s 66EA) the sentencing judge is precluded from having regard to the nature of the relationship between the victim and the offender when assessing the objective sentence.

10. [288]

    I would grant leave to appeal given the length of the sentence imposed but I would dismiss the appeal against sentence.

Orders

1. [289]

   Accordingly, I would propose the following orders:

   1. (1)

      Leave to appeal against conviction is granted.

   2. (2)

      The appeal against conviction is dismissed.

   3. (3)

      Leave to appeal against sentence is granted.

   4. (4)

      The appeal against sentence is dismissed.

2. [290]

   SWEENEY J: I agree with the orders proposed by N Adams J, and with her Honour’s reasons for those orders.

3. [291]

   R A HULME AJ: I agree with N Adams J.