AS v R

1. [1]

   ADAMSON J: On 24 March 2021, AS (the applicant) was arraigned before Girdham SC DCJ and a jury on an indictment which charged the offences which are summarised in the following table. The applicant pleaded not guilty to all counts. All references to legislation in these reasons are, unless otherwise stated, references to the Crimes Act 1900 (NSW).

2. [2]

   Counts 1 and 2 were alleged to have occurred on the same occasion, as were counts 3 and 4, and counts 6 and 7.

3. [3]

   On 7 April 2021, following a trial by jury, the applicant was convicted of counts 1, 2, 3, 4 and 5 and found not guilty of counts 6 and 7. All charges alleged sexual offences against F, his natural son (counts 1 and 2), and against G, the son of his former partner, R, (the remaining counts). R was the mother of both F and G.

4. [4]

   The applicant appeals against his convictions on the ground that the guilty verdicts for counts 1-5 were unreasonable. The particulars of the ground are as follows:

5. [5]

   In order to address this ground, it is necessary to review the evidence in the trial to determine the adequacy of the evidence in support of the counts of which the applicant was convicted as well as to determine whether there is a basis on which the jury could have returned not guilty verdicts in respect of counts 6 and 7, having found the applicant guilty of counts 1-5.

The Crown case

1. [6]

   In 2007, G’s mother, R, commenced an intimate relationship with the applicant. R already had three children, two daughters, M and S, and a son, the youngest of the three, G, who was born in July 2004. They lived at R’s home in a suburb of Newcastle (R’s house).

2. [7]

   F was born in September 2009. About a year later, in September 2010, the relationship between R and the applicant broke down which led to their separation. The applicant moved in with his own father.

3. [8]

   Although they no longer lived together, the applicant would return to R’s house on occasions and stay overnight to help to look after the children.

4. [9]

   The sleeping arrangements in R’s house changed from time to time, depending on who was living there. The house had three bedrooms upstairs and another room downstairs, which was eventually converted into a bedroom. At one stage, F and his mother slept in one bedroom, with F sleeping in a “car bed” or “toddler bed”. Later, F moved into the bedroom where there was a bunk bed and a trundle bed (the boys’ bedroom). When the applicant stayed overnight, he would either sleep on the lounge downstairs or trundle bed on the floor beside the bunk bed in the boys’ bedroom. G’s sisters slept in the third bedroom (the girls’ bedroom).

5. [10]

   There was a bathroom upstairs which had a drain in the floor as well as a drain in the shower recess. There was a separate toilet downstairs in the laundry near the kitchen.

6. [11]

   In about December 2011, R took two foster children, a boy and girl, into her care as their father, who was a friend of hers, had died. A, the foster son, used to sleep on the top bunk in the boys’ bedroom. The two foster children lived with R until about 2014 and were, therefore, living in the house at the time of the alleged offences.

7. [12]

   From about 2012, R’s father, who then lived nearby, needed care as he had cancer. In about March 2013, “Aunty”, a neighbour, began to help R look after her father, whose health continued to deteriorate. From about that time, Aunty stayed at R’s house for a few nights a week. In June 2013, R’s father was moved in to R’s house. Aunty and R became intimate partners in about 2013. Aunty was still living in the house in 2021 when she gave evidence at the applicant’s trial.

8. [13]

   In about October 2013, the applicant moved in with J, one of R’s brothers. On one occasion, the six children went to J’s place, where the applicant was living, and stayed the night there. There was an issue about whether the applicant had ever stayed overnight at R’s house after October 2013. This was significant to particular b) of the unreasonable verdict ground because count 5 was said to have been committed on 6 November 2013, when R’s father had stitches removed from his back and shoulder (G’s evidence related the sexual intercourse to that occasion). The applicant argued, at trial, that he could not be guilty of count 5 because he had not stayed overnight after October 2013. He relied on an affidavit sworn by R in Family Law proceedings (commenced by the applicant in March 2017, see below) in which she said that he had not stayed overnight after October 2013. R said in her evidence at trial that she had been mistaken about the date and that the applicant had stayed overnight after that time.

9. [14]

   R’s father died in December 2013, shortly before Christmas. The applicant came to the house on the day of R’s father’s death to say goodbye to him. He returned on Christmas Day, 2013. The applicant also saw F and G on 31 December 2013, the day of R’s father’s funeral. The applicant did not see F again until contact visits began in late 2016, pursuant to an agreement between R and the applicant that he could see F at McDonald’s at Warners Bay (see below).

10. [15]

    According to J (R’s brother), after their father had died in December 2013, the applicant stopped coming around to the house and R and Aunty made it clear to the children that the applicant did not care about them and was not interested in them (this was denied by R and her daughters, M and S, as well as Aunty). J regarded the applicant as a friend. He has not had contact with R since their father died.

11. [16]

    Aunty recalled that the applicant contacted R in about November 2014 with a view to having contact with G and F. The applicant brought presents for them as Christmas was approaching. Aunty’s evidence was that the two boys did not want to see him. At some stage, Aunty tried to persuade F to see the applicant. R asked the children whether they wanted to see the applicant and they said no, a decision which R and, to her knowledge, the applicant at the time, respected. There was other evidence that R encouraged her sons to see the applicant.

12. [17]

    It was an agreed fact that on 22 July 2016 the applicant took formal steps to have access to F. On 7 December 2016, the applicant and R attended a mediation session concerning the applicant gaining access to F. As a result of an informal arrangement between the applicant and R, the applicant was to have weekly access to F at McDonalds in Warner Bay. The first such visit occurred on 17 December 2016 and the second on 12 January 2017.

13. [18]

    On 17 January 2017, R took F to her general practitioner, Dr Kabir, as he was stressed and not eating. Dr Kabir referred F to Jenni Gilmour, psychologist. On 18 January 2017, the applicant had a third access visit with F. An incident occurred during that access visit. Following this incident, the applicant did not have further access to F.

14. [19]

    On 30 March 2017, the applicant commenced Family Law proceedings in which he sought orders that he have access to F.

15. [20]

    As referred to above, on 24 May 2017, R swore an affidavit in the Family Law proceedings that there was no occasion after October 2013 when the applicant had gone to her home. In her evidence at trial, R said that she was mistaken about that and that the applicant had visited and stayed overnight after that time.

16. [21]

    On 6 July 2017, F saw Jenny Richards, a family consultant, as part of the Family Law proceedings. On 7 August 2017, interim orders were made by consent which provided for the applicant to spend time with F.

17. [22]

    On 17 August 2017, F saw Ms Gilmour for a consulting session and made the disclosures which are the subject of counts 1 and 2 (set out in more detail below).

18. [23]

    Ms Gilmour reported what F had told her on 17 August 2017 to the relevant authorities. As a consequence, on 18 August 2017, F was interviewed by police. He was, at the time of the interview, about 7 years and 11 months old. R took him to the interview. F gave pre-recorded evidence in June 2018, when he was 8 years and 8 months old and in Year 3 at the local public school.

19. [24]

    F and G did not discuss what F had told police. On 14 September 2017, police contacted R and asked her to bring G to be interviewed by police. G was told one day after school that he needed to go and see the police and tell them what he knew. R took G to the police interview but did not tell him why he was being taken to speak to police or what F had told her about the applicant’s conduct. G was interviewed by police on 14 September 2017 when he was 13 years old. G gave pre-recorded evidence on 27 June 2018 when he was still 13 years old.

20. [25]

    F said that when he was 3, 4 and 5 years old, the applicant used to play “the Whizzle Game” with him upstairs “in our bathroom when we had an old bathroom before we got a new bathroom” in R’s house (where F was still residing at the time of the interview).

21. [26]

    F described the Whizzle Game as follows:

22. [27]

    F said that the applicant would hold his phone in one hand and pull his own “doodle” (penis) up and down with the other. When the “white stuff” came out of the applicant’s penis, “he closed his eyes and looked up and he made a weird noise.” The white stuff came out of his penis and went on the floor. He cleaned it up with a paper towel or toilet paper.

23. [28]

    The applicant would also lick his fingers and pull F’s penis, which was “fully straight”. F was crying and telling him to stop. As a consequence, the applicant called him a “brat”.

24. [29]

    When F was asked who the applicant was (in relation to him), he said that he “was my Dad” but “I don’t allow him to be anymore … [a]fter all the stuff he has done to me … every time Mum was gone he did it … [w]hen I was in preschool.” F told the interviewer that he “hate[d] Father’s Day” because “everyone else has fun with their Dad”. F also told the interviewer:

25. [30]

    In his interview, F described the “old bathroom” before it was renovated, where these assaults occurred. He said that the applicant would play the Whizzle Game with him whenever his mother was away looking after her father, who was “really, really, really sick”. In cross-examination in his recorded evidence, F said that it happened more than ten times and “maybe more” than 20 times.

26. [31]

    F said that he would be downstairs in the house and the applicant would tell him that he wanted “to show [F] something” and F would say, “No”, but the applicant would pull him up the stairs by his “arm, ear or hair” and take him to the bathroom and lock the door. F said that he was “crying” and if he tried to run out, the applicant would pull him back and throw him into the bathroom.

27. [32]

    Afterwards, the applicant would drag F downstairs and throw him outside and lock the door. If they encountered any of F’s siblings along the way, the applicant would say, “Shush and don’t tell your Mum or anything.” The applicant told the other children to stay downstairs when he went upstairs with F “or they would be grounded forever” and “wouldn’t be able to have anything to eat forever.”

28. [33]

    F said that the applicant stopped coming to the house before F’s grandfather died but after F’s grandfather had come to live with them.

29. [34]

    F said that he saw the applicant at McDonalds (which other evidence established was in the course of agreed contact visits). On one occasion when F was playing in the playground, the applicant asked him, “Do you remember the Whizzle Game?” At that point, F “just froze”. The evidence did not reveal whether this question was the “incident” which occurred during the last contact meeting between the applicant and F but it was accepted that it was open to the jury to infer that this is what had precipitated F’s refusal to attend another such meeting.

30. [35]

    G said that he got on well with the applicant but said that the applicant “was quite cruel to [F].” In his recorded interview, G said:

31. [36]

    When asked what would precipitate this conduct by the applicant towards F, G said:

32. [37]

    G also said that the applicant was “really mean” to F and swore at him and used “the F-word” and “the C-word” and called him a “grub” when F “got stuff around the face when he used to eat.” G said that F’s behaviour as a child had been better than his own had been. When the applicant was annoyed with F, he would sent him upstairs but, according to G, this did not happen when their mother was there because when she was at home the applicant would be “nice” to F “so then he wouldn’t get in trouble.”

33. [38]

    The applicant would play PlayStation with G and F while he was at their house.

34. [39]

    M, the younger of G’s sisters, recalled “numerous occasions” in the period from 2012 to the end of 2013 when F was locked outside the house because the applicant had locked the doors to the house. On such occasions, M would go outside and take food to F and wait with him until their mother arrived home.

35. [40]

    M recalled seeing the applicant, on these occasions, bring F downstairs, holding him by his wrist, throwing him outside, locking the door and leaving him outside by himself. M recalled that F was “crying and screaming”.

36. [41]

    S, the elder of G’s sisters, was in primary school when she met the applicant and was 24 when she gave evidence in June 2021. In the period from 2012 until the end of 2013, S recalled that the applicant would stay overnight at their house and sleep either on the lounge downstairs or upstairs in the boys’ bedroom on the trundle.

37. [42]

    On multiple occasions, S saw F “put outside” by the applicant who did not want him inside. Sometimes, F would be “crying and whinging” and the applicant would take him by the arm or the side of his shirt and “take him outside.” On such occasions, S and M would play with him or take food to him and wait with him outside.

38. [43]

    S said that she had had no discussion about the case with members of the family because she had been told that “everything was to be kept individually and we weren’t supposed to discuss anything with anyone else.”

39. [44]

    F recalled that he saw Ms Gilmour on more than one occasion. F had not told anyone else before telling Ms Gilmour because the applicant said that he would kill F if he told anyone. However, F felt sufficiently safe with Ms Gilmour to confide in her. After he had told Ms Gilmour, he also told his mother. Later, he told his brother, G.

40. [45]

    F saw Ms Richards once. This occasion was after he had spoken to Ms Gilmour. When he gave pre-recorded evidence, he could not recall whether he had told Ms Richards about the whizzle game.

41. [46]

    Ms Gilmour, a registered psychologist, who worked at the Jacaranda Centre at Cardiff, gave evidence in the Crown case that, following a referral from Dr Kabir, a general practitioner, she had seen F on about 5 occasions, the first of which occurred on 31 January 2017 and the last of which took place on 17 August 2017. (According to R, it was the applicant’s suggestion that F received some counselling.)

42. [47]

    Each session lasted between an hour and an hour and a half. On each occasion, F presented as “agitated and stressed and distressed and upset.”

43. [48]

    In the first session, F told Ms Gilmour that he was scared of his father and was “extremely determined that he didn’t want to see his father.” F told her that there had been an altercation at McDonald’s during a contact visit and that the applicant had hurt him many times. F was very traumatised about words his father had said to him during the last contact visit. F refused to enter Ms Gilmour’s consulting room at the first session because he was worried that his father would be inside.

44. [49]

    At their fourth session on 5 May 2017, according to Ms Gilmour, the following occurred:

45. [50]

    Ms Gilmour tried to reassure F in that session. She adopted a strategy of asking him to write down his worries and draw pictures of them. For this purpose, she gave him an art book in which he could draw or write. Ms Gilmour agreed that this strategy was “a fairly common therapeutic strategy for children”. She told him:

46. [51]

    The next appointment took place on 17 August 2017. On that occasion, F arrived with a visual art book which was, according to Ms Gilmour, “much nicer” than the one she had given him. Ms Gilmour spoke briefly with F’s mother in the waiting room but, by that stage, F was comfortable coming into Ms Gilmour’s room for the session. Ms Gilmour described what happened as follows:

47. [52]

    Ms Gilmour took some time to look at, and read, the book. While she was doing so, F was talking to her but she was focussed on the pictures and the text. When she had finished, she asked F to explain the toilet drawing (see description below) and F told her that the applicant (F used the applicant’s first name and did not refer to him as “Dad”) would take F into the toilet and he could hear the noise of girls running on the applicant’s phone and the applicant would flick F on the penis, which he would call the “whizzle game”. F then told Ms Gilmour that the applicant would make a weird noise and white stuff would come out of his penis.

48. [53]

    While F was telling Ms Gilmour about the picture, he was “[a]gitated, but determined and … resolved he was going to tell me what he was going to tell me.” Ms Gilmour asked him how he felt when that was happening and F said that he felt “scared and sad”. She also asked him how he felt telling her about it and F said, “I feel really embarrassed because you’re a girl, this is really embarrassing.” Ms Gilmour also said in evidence:

49. [54]

    Ms Gilmour asked F about the chest of drawers drawing to which he responded as follows:

50. [55]

    Ms Gilmour did not ask F when he had done the various drawings in the book since she regarded that matter as of no consequence.

51. [56]

    Ms Gilmour said that, at this session, F was “very scared” and “very determined” that he never wanted to see the applicant again. When F had finished talking about the pictures, Ms Gilmour told him that she would have to tell the police and that they would also need to tell his mother. F did not want her to tell the police because he thought that the applicant would kill him but he agreed to tell his mother. Ms Gilmour left F in her consulting room and went out into the waiting room to speak to R. Ms Gilmour spoke to R separately to attempt to manage her reaction when F told her what the applicant had done to him. Ms Gilmour brought R back into the consulting room and remained there while F told his mother about the conduct which comprised counts 1 and 2.

52. [57]

    Although R recalled giving F the drawing book, she had not looked inside the book until 17 August 2017 when F explained the contents of the book to her in the presence of Ms Gilmour in her consulting room. R described F’s demeanour when he was showing her the drawings as “upset and embarrassed.”

53. [58]

    Ms Gilmour told F that he was not going to be killed and that he had done the right thing in talking about it. She observed that, after this disclosure, F was visibly relieved, was smiling and that he also said that he was relieved. On the following day, 18 August 2017, F was interviewed by police (as referred to above).

54. [59]

    It was put to Ms Gilmour in cross-examination that it was possible that someone had suggested the content of the drawings to F and that he had, in substance, drawn them because of outside influence. Ms Gilmour said that she had seen no evidence of that.

55. [60]

    According to F, one day, when the other members of the household were otherwise engaged, he drew pictures in a drawing book while he was alone in the kitchen, sitting at the kitchen table. His mother had given him the drawing book when he was at pre-school (other evidence established that he was at pre-school in 2012, 2013 and 2014). R could not remember when she gave him the book. The uncontroverted evidence of Detective Senior Constable Matthew Davis was that the type of book was distributed nationally by Big W and was first supplied on 11 October 2016.

56. [61]

    When F had finished the drawings he put the book in the bedroom which, at some stage, he shared with his mother (he later moved into the “boys’ bedroom” where he slept on a bunk bed). He did not show anyone what he had done.

57. [62]

    F said in cross-examination in his pre-recorded evidence that no one other than him had drawn in the drawing book (apart from one page which was not relevant to the proceedings) and that no one had told him what to write. G confirmed in his pre-recorded evidence that he had not done any of the drawings or written in that book. Nor had he told anyone what to draw or write in that book. G said that he had seen the book in the “boys’ bedroom” but “didn’t know what it was so [he] just left it.”

58. [63]

    The earliest of the drawings showed three stick figures with bubbles coming out of their mouths to indicate thoughts or words. The stick figure on the left has a bubble with the words, “pleace [scil.] god keep me away from [the applicant]”. The second figure is standing in front of a toilet and has a bubble with the words, “I don’t want to play the wizzle game”. The third figure is sitting on the toilet and has a bubble with the words, “You will do what your [scil.] told you little fucker.” Under the drawing, the following words appear:

59. [64]

    In the police interview, F said that he did the toilet drawing “ages ago”, before 2017, before he saw Jenny from the Jacaranda Centre (Ms Gilmour) and before his “Pop” (his mother’s father) came to live with them because he was so ill (which was in 2013). It was accepted that this evidence could not be correct because the drawing book was, having regard to the information on its barcode, first available in October 2016.

60. [65]

    The second drawing depicts a stick figure marked with the applicant’s name with a bubble with the words, “I’ll kill you, your [scil.] a little cunt, I fucking hate you!” The second stick figure has a bubble with the words, “please God help me!” and another bubble, with the words, “please, he’s hurting me.” There is a chest of drawers in the drawing. Under the drawing, the following words appear:

61. [66]

    F said in his interview that he did the second of the drawings “after [he] saw the court Jenny” (Ms Richards). In his pre-recorded evidence, F said that he did the drawing before he saw Ms Richards.

62. [67]

    The third drawing depicted a man with two sharp teeth and hoofed feet, carrying a jagged stick. There was a small stick figure in the foreground with a bubble with the word, “run” in the bubble. On another page, there was some writing which said:

63. [68]

    F also pointed out this drawing to the police interviewer which was just a picture “with no writing”. The picture was “of him [the applicant] killing me with a knife ‘cause he said he was going to kill me.”

64. [69]

    The Crown called Dean Swift, a handwriting expert, who could not say conclusively whether the drawings and writings in the drawing book had been done by F, having regard to the other samples of F’s handwriting which had been provided.

65. [70]

    The applicant’s trial counsel interposed his handwriting expert, Stephen Dubedat, who could not conclusively determine whether the writing in the drawing book was F’s handwriting. He also opined that there was “strong support for the proposition that two writers have written [a particular page]” and that certain entries appeared to be synchronous (having been done at about the same time).

66. [71]

    Mr Moutasallem, who appeared for the applicant in this Court, accepted that the evidence of the handwriting experts “didn’t seem to take anyone anywhere.” He did not rely on it in support of the unreasonable verdict ground.

67. [72]

    G told the police in his recorded interview that F had told him that the applicant had taken F into the bathroom and made F stand there while the applicant touched and played with his “doodle” while he was “on the phone.”

68. [73]

    G was interviewed by police on 14 September 2017 when he was 13 years old. Initially, he was asked about F and the applicant. G could not recall the applicant living with his family at R’s house but recalled that “he’d come whenever he wanted to” and only “sometimes” stayed the night because “he wasn’t welcome to stay at night”. In his pre-recorded evidence, G said that what he had said in his police interview on this topic was not correct as the applicant “stayed whenever he wanted to … [and] was welcome to stay whenever he wanted.”

69. [74]

    In his police interview, G recalled that the applicant “worked most days” but in his pre-recorded evidence, G said that sometimes the applicant worked at night. G said that the applicant would come and look after the children during the day if their mother “went out to do something” and would sometimes take them to school.

70. [75]

    G told police in his recorded interview that he and the applicant generally got on well but that (as referred to above), the applicant did not get on with F and would swear at him and punish him.

71. [76]

    After this topic was concluded the police asked G, at Q241, whether the applicant would do or say things and then ask G not to tell anyone. At that point, G became visibly upset and said:

72. [77]

    The questioning continued as follows:

73. [78]

    In the course of the questioning by police in September 2017, G told them about the conduct which constituted the charges referred to below. G said in his interview that it was the first occasion on which he had ever told anyone about any of the conduct which was the subject of counts 3, 4, 5, 6 or 7.

74. [79]

    R’s evidence was that 12 May 2013 was Mother’s Day and that F had brought home a “Yogi bear” from preschool, having been instructed that he was to bring back photos of the bear while it was in his family’s care. The family, including the applicant, attended a Mother’s Day barbecue in the area next to the Dixon Park Surf Club. When the family returned home from the barbecue, the applicant accompanied them.

75. [80]

    G told police in his recorded interview that one day the whole family (including A, the male foster child) went to the park because F had to have pictures taken in the park with a yogi bear that F received at pre-school. That evening, the applicant was showering G (who was then aged 8) in the upstairs bathroom. It was usual for someone to shower G because he could not see without his glasses as his vision became “all blurry”.

76. [81]

    G said:

77. [82]

    G’s mother, R, confirmed in her evidence that G needed assistance showering in 2012 and 2013 because he had problems with his vision.

78. [83]

    G recalled in his police interview that on that day, the applicant “refused to shower [F].” G could not recall where the rest of the family was when he was in the shower but said that he thought that they were downstairs, although he did not remember.

79. [84]

    In cross-examination in his pre-recorded interview, G could not recall whether he only needed assistance with showering when his hair was being washed. G denied that the applicant got into the shower with him and said that the applicant masturbated while he was outside the shower, near the door of the shower where the drain was.

80. [85]

    G told police when interviewed in September 2017 that one night, when his grandfather came back from having stitches near his shoulder and G was sleeping in a bunk bed (A was on the top bunk) and the applicant was to sleep on the trundle bed in the same room, the applicant did the acts which constituted count 5. G said:

81. [86]

    G could not recall whether he had been asleep or not when the applicant came to him. At the time of the incident, it was dark but G could see the applicant lick his fingers because the moonlight was coming through the “glass”. In his pre-recorded evidence, G also said that there was “a little lamp that I got from mum, [which] had like fish and like animals and that on it.”

82. [87]

    G also saw that the applicant was “on his phone” but turned off the phone before touching G. After the applicant rolled G over, G was facing the wall and the back of his pants (blue boxers with yellow stars on them) were down. When G was cross-examined in his pre-recorded evidence about how he knew that the applicant had licked his fingers, G said “[b]ecause you could hear it and I could feel it.” He said that he knew that the applicant’s phone was on because he could see the light from the phone “coming onto the wall.”

83. [88]

    G did not “really remember” what had made the applicant stop but he thought that it was because his mother was coming upstairs but could not recall whether she had to go to work.

84. [89]

    G explained in his police interview that he had not told anyone before about what had happened because the applicant had told him that if he did, he would not be his dad anymore and, at the time, G thought that he was his “real dad.” G learned in 2017, when F came home from school and told him, that the applicant was not G’s “real dad” although he was F’s “real dad”. G then asked his mother whether it was true.

85. [90]

    G also said in his police interview:

86. [91]

    G could not recall whether this had occurred before or after either of the two earlier incidents. He said that this incident had occurred in the downstairs laundry where there was also a toilet.

87. [92]

    In his pre-recorded evidence in chief, G was not asked about the conduct which comprised counts 6 and 7. The cross-examination of G regarding these counts in his pre-recorded evidence did no more than put to G that the conduct comprising counts 6 and 7 (which the cross-examiner described from G’s police interview) did not occur, which G denied.

88. [93]

    As referred to above, after R and the applicant separated, there were Family Law proceedings, following which the applicant spent time with F at McDonalds. At the time, G wondered why the applicant was not asking the Court for permission to have time with G, a matter which made G “a little bit” angry.

89. [94]

    The applicant was arrested on 23 August 2017. He participated in a recorded interview. He said that he lived with R “formally” and was not just staying overnight. He agreed that he babysat the children many times when R was out. He denied all the allegations put to him about sexual contact with F and G. The applicant said that he commenced Family Court proceedings to see F. He denied that he ever threatened F or swore at him. He also denied that he had ever locked F out of the house. He admitted that he yelled at G from time to time, including when he was acting as the coach of the soccer team in which G played.

90. [95]

    The applicant said that after the first round of supervised visits with F, he suggested that F ought see a counsellor. This arose in the context of the following passage in the questioning:

91. [96]

    The applicant admitted that he sometimes watched pornography on his phone but said he did so in the bathroom with the door shut and denied that there was ever an occasion on which the children might have seen him watch it.

92. [97]

    The applicant was invited to participate in a further interview so that the allegations made by G (which G had disclosed to police in his interview which occurred after F’s interview) could be put to him. The applicant agreed to participate. He told police that, although he was not G’s father, G called him “Dad”.

93. [98]

    The applicant said that he occasionally slept in the boys’ bedroom but mostly he slept downstairs in a single bed or on the lounge. The applicant denied the allegations which comprised counts 3-7 on the indictment.

94. [99]

    It was accepted that, apart from one drink driving offence, the applicant had no other criminal record and was of good character.

Consideration

1. [100]

   Ground 1 invokes the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW):

2. [101]

   The relevant principles which govern how an unreasonable verdict ground should be addressed were summarised in Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ):

3. [102]

   Thus, this Court must determine whether it was “open” to the jury to find the applicant guilty or whether a jury “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21. In other words, this Court must determine whether it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

4. [103]

   In Pell, the High Court said further, at [53]:

5. [104]

   The jury is the body which is entrusted with the primary responsibility of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). This constitutional principle has certain consequences.

6. [105]

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

7. [106]

   Secondly, in an appeal such as the present one, the function of this Court must proceed on the assumption that the evidence of the complainants was accepted by the jury as credible and reliable: Pell at [39].

8. [107]

   Thirdly, there are consequential constraints on the extent to which an appellate court is entitled to disbelieve a witness whose evidence a jury may be taken to have accepted, including to establish the offence beyond reasonable doubt. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

9. [108]

   Further, in assessing evidence of particular witnesses, particularly complainants, for the purposes of determining an unreasonable verdict ground, the experience of courts can be taken into account. This experience includes that it is not uncommon for victims to remember specific details about the assaults but not tangential details. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClelland CJ at CL and Sully J agreeing):

10. [109]

    The experience of courts is also that it is not uncommon for children to be imprecise about time. Apart from their immature minds, they often lack the markers, such as diaries, and dated written records to assemble a chronology in their minds as to events. In BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387, the applicant argued that E’s (the complainant) failure to recall a particular detail and error about another detail resulted in an unreasonable verdict. The High Court said as follows:

11. [110]

    It does not follow from the court’s experience with respect to recollection of trauma and a child’s compromised ability to be precise about time that there is anything inappropriate about a cross-examiner testing a complainant on these matters. Indeed, Sully J, when agreeing with Spigelman CJ in Reed v R, said at [85]:

12. [111]

    However, when assessing the evidence of such witnesses for the purposes of determining an unreasonable verdict ground, it is incumbent on this Court to take account of such experience as courts have gained through regularly hearing and assessing such testimony (and which may have been applied by the jury, using its collective wisdom and experience of life). To bring to bear the same considerations as might apply to assess the evidence of a witness to a non-fatal car accident or work accident (such as inability to recall tangential details, imprecision about time and delay in coming forward to give a version), in the context of evidence of a child complainant of sexual assault would be not only misguided but also inappropriate.

13. [112]

    Further, while courts may have experience in particular areas (evidence of complainants in sexual assault trials or trials where a prosecution witness is criminally involved in the events the subject of the charge), this is not to say that judges have any particular wisdom above that of jurors in fact-finding (indeed, judges may not be as good at it and lack the collective wisdom that comes from the cumulative experience of twelve jurors). What to a judge may seem “implausible”, may be commonplace in the world but simply be outside the experience of that particular judge. It is important for an intermediate appellate court, when reviewing evidence following a conviction, not to discount it simply on the grounds of apparent implausibility, when a jury can be taken to have been satisfied that the evidence, whether plausible or not, was true and correct.

14. [113]

    For example, it used to be thought that delay in complaint reflected adversely on a complainant’s credibility. This view was rejected by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362 at 367, where his Honour said:

15. [114]

    Having set out the applicable principles, it is necessary to address the particulars of the unreasonable verdict ground.

16. [115]

    An allegation of unreasonable verdict such as is made against the guilty verdicts in respect of counts 1 and 2 requires the Court to review the whole of the evidence (as I have done), which I have summarised above.

17. [116]

    In substance, the reasonableness of the verdicts of guilty returned by the jury in respect of counts 1 and 2 depends on whether it was open to the jury to accept the evidence of F beyond reasonable doubt as to the conduct which comprised counts 1 and 2.

18. [117]

    It was submitted on behalf of the applicant that F’s evidence in relation to the drawing book “contained discrepancies, displayed inadequacies, was tainted and otherwise lacked probative force” which meant that his evidence could not provide a sufficient foundation for proof of counts 1 and 2 beyond reasonable doubt. The applicant relied on the discrepancy between F’s evidence that he drew the toilet drawing when he was in pre-school; the uncontroverted evidence that the drawing book was first available for sale on 11 October 2016; and the evidence that Ms Gilmour had suggested that he draw his troubles in the course of the session on 5 May 2017. The applicant also relied on alleged discrepancies in F’s evidence concerning the storage of the drawing book.

19. [118]

    Mr Moutasallem relied on the implausibility of the drawings in the drawing book having been done by a pre-school child, having regard to their relative sophistication. He submitted that F’s evidence about the toilet drawing was particularly significant because it depicted conduct which corresponded with the conduct comprising counts 1 and 2. He submitted that:

20. [119]

    Mr Moutasallem submitted in this Court that F’s error about the time could not be regarded as either “innocent or honest” in circumstances where F was giving evidence in 2018, the following year after he had done the drawings. Thus, Mr Moutasallem submitted that the jury (and this Court) could not exclude as a reasonable possibility that F was lying when giving his evidence about the drawing book and thus, that he was an unreliable witness whose evidence could not be accepted beyond reasonable doubt. Mr Moutasallem accepted that F’s statement that the toilet drawing was done in pre-school (at around the time of the conduct) “wouldn’t have been an idea that [F] probably came up with by himself.” It was not suggested on behalf of the applicant that anyone other than R (or R and Aunty) could or would have got F to say that he had done the toilet drawing in pre-school. The suggested motive attributed to R was that she bore the applicant considerable animus and did not want F to see his father.

21. [120]

    As is evident from the extracts below, all of the submissions made to this Court by Mr Moutasallem about why F ought not be believed (and the corresponding acceptance by the Crown that F’s evidence about when he received the drawing book and when he did the drawings was wrong) were made to the jury at trial. Thus, the jury could consider, when determining whether they believed F to the requisite standard, the effect on his credibility of his error in saying when he drew the toilet drawing and for how long he had had the drawing book in which the pictures were contained.

22. [121]

    The Crown said in closing:

23. [122]

    In closing, the applicant’s trial counsel relied on the evidence of J that R and Aunty were badmouthing the applicant. He then reminded the jury of the progress of the Family Law proceedings and the circumstances that agreed access orders had been made on 7 August 2017. A substantial challenge to F’s credit was made as a result of his evidence about the drawing book in the following passage in the applicant’s closing address:

24. [123]

    One of the directions given to juries is that they may accept part of the evidence of a witness and not accept other parts of that witness’s evidence. Thus, it was open to the jury to accept F’s evidence as to the offending conduct and not accept his evidence (which the Crown case proved to be incorrect) of when he did the toilet drawing in the drawing book. It can be taken from the jury’s verdict that the jury accepted F’s evidence of counts 1 and 2 beyond reasonable doubt although it was common ground that his evidence about the timing of the drawings and, in particular, the toilet drawing could not be correct.

25. [124]

    It was open to the jury to reason, from their experience of life, that children can be imprecise about time. As referred to by the High Court in BCM v The Queen in the passage cited above, the jury, taking into account its collective experience of life, could regard F’s evidence about the timing of the drawing as neither affecting the credibility nor reliability of his evidence of the conduct which comprised the offences charged.

26. [125]

    It was also open to the jury to reason that F’s incorrect evidence was immaterial since the overwhelming likelihood was that F only started doing the drawings after 5 May 2017 when Ms Gilmour suggested that he do so and provided him with a drawing book (although it was open to the jury to infer that he had done at least one of the drawings in the drawing book at some time between October 2016 and 17 August 2017). The relative sophistication of the drawings also implied that they were done at that time since it would have been unlikely for F to have the manual dexterity and word comprehension to be able to create such an image with words at pre-school age.

27. [126]

    It was, in substance, submitted by the applicant to the jury and in this Court that F had a motive to lie arising from his desire to derail the access arrangements to which his parents had recently agreed and that he had picked up the animus expressed by R and Aunty towards the applicant. At trial, and in this Court, the Crown submitted that it was illogical to suppose that R would denigrate the applicant in the presence of F while at the same time agreeing (as she did on 7 August 2017) that he could have access to F. The Crown further submitted that it was open to the jury to infer that F had found out that the access arrangements with the applicant were about to be reinstated, which may have given him the courage to disclose the events which were the subject of counts 1 and 2 to Ms Gilmour when he next saw her on 17 August 2017.

28. [127]

    It was open to the jury to reject the evidence of J that there was any such animus between R and the applicant (and accept the evidence of all other witnesses on the topic that neither R nor Aunty denigrated the applicant in the presence of F). Further, even if the jury accepted that F wanted to derail the access arrangements, it was open to the jury to regard this matter as strengthening the Crown case that F was fearful of his father because of the conduct in counts 1 and 2 and was very scared that his father would kill him if he thought that he had disclosed the conduct to anyone else. That the applicant had, on a recent contact visit, asked him whether he remembered the whizzle game may have reinforced F’s fear and the presence of the continuing threat. Further, it was open to the jury to accept the Crown’s submission that R would hardly denigrate the applicant to F while at the same time consent to access arrangements.

29. [128]

    It was also open to the jury to accept F’s evidence that he had not told his mother about the conduct which comprised counts 1 and 2 and that F had to be persuaded by Ms Gilmour to tell his mother as Ms Gilmour would have to tell police.

30. [129]

    Further, it was open to the jury to reject the defence case that R had, in effect, put up F to say that he had drawn the toilet drawing in pre-school and that he had lied in his evidence about that matter in order to give his evidence about the applicant’s conduct greater weight. It was also open to the jury to consider that, if the applicant had initiated the referral to the psychologist in the first place (as he said he had in his recorded interview), the applicant had suggested the referral only because he was confident that his threats to F would be sufficient to ensure that F would not disclose the real reason for his distress (the conduct which comprised counts 1 and 2) to a psychologist or to anyone else, including R.

31. [130]

    The incorrect evidence given by F about the timing of the toilet drawing and other matters associated with the drawing book, including its storage, did not cause the jury to have a doubt about the applicant’s guilt of counts 1 and 2. It does not cause me to doubt his guilt of those offences. F’s evidence was corroborated in a number of respects, including by his own conduct in becoming disturbed and not wanting to see his father. That it took the considerable skill of Ms Gilmour to persuade him to disclose the reason for his fears at the fifth session is a powerful indication (which was open to the jury to accept) that he believed the threats which the applicant made to him that he would be killed if he disclosed the offences.

32. [131]

    I am not persuaded that the verdicts of guilty for counts 1 and 2 were unreasonable.

33. [132]

    The applicant submitted that the verdict of guilty for count 5 was unreasonable because the conduct was said to have occurred between 31 October 2013 and 1 December 2013 and was linked, in F’s evidence, to the procedure which R’s father underwent on 6 November 2013. Further, F’s evidence was that it occurred on a night when the applicant slept over at R’s house. The applicant contended that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant stayed overnight on 6 November 2013, and therefore that the verdict of guilty was unreasonable.

34. [133]

    Mr Moutasallem contended that there was a “wealth of evidence” that the applicant had not stayed overnight after October 2013 and that, accordingly, even if the jury was satisfied that the acts which comprised count 5 occurred, it could not be satisfied that they occurred within the date range in the indictment. He submitted that, as the Crown had put its case on the basis that count 5 was committed on 6 November 2013, the verdict of guilty on that count was unreasonable, having regard to the preponderance of evidence against the applicant staying overnight at R’s house at that time.

35. [134]

    The applicant highlighted R’s evidence in her affidavit in the Family Law proceedings that the applicant had not stayed overnight after October 2013. As referred to above, R said that this evidence was incorrect and that the applicant had, in fact, stayed overnight after that time. Thus, it was open to the jury to accept R’s evidence that the applicant had stayed overnight after October 2013.

36. [135]

    It was not crucial to the Crown case that the applicant actually slept overnight on 6 November 2013 as long as the jury was satisfied that he had the opportunity to commit the offence (and did commit the offence) on 6 November 2013. Although the applicant no longer lived with his father after October 2013 as he had moved in with J, R’s brother, the evidence of R, Aunty, G’s sisters, and G was that the applicant nonetheless continued to visit R’s house whenever he wanted to up until the time R’s father died, including on the day of his death (and visited afterwards on Christmas Day and for the funeral). Aunty’s evidence was that, after she moved in (on 28 September 2013), the applicant continued to visit and stay overnight three to four times a week.

37. [136]

    There was, thus, evidence on the basis of which the jury could have been satisfied that the applicant either slept overnight at R’s house in November 2013 or visited in the evening when G was already in bed, at the time of the alleged commission of the offence in count 5. In these circumstances, the jury’s verdict of guilty of count 5 is not unreasonable.

38. [137]

    The allegation that counts 3 and 4 were unreasonable depended on a finding that the verdict for count 5 was unreasonable. Accordingly, they need not be separately addressed in detail. Any inconsistencies or inaccuracies in G’s evidence about the counts concerning him are readily explicable by reference to the experience of courts referred to above by reference to Reed v R. Juries appreciate, as does this Court, that recollection of an assault or other traumatic incident may be vivid but that tangential details may be forgotten or not even recorded in the complainant’s memory. Thus, a witness’s evidence about an assault may reasonably be accepted as reliable and credible notwithstanding that tangential details are missing or incorrect.

39. [138]

    It is sufficient to observe that, having reviewed the evidence as a whole, I am persuaded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of counts 3, 4 and 5.

40. [139]

    Where a guilty verdict is alleged to be unreasonable, having regard to a verdict of not guilty which has been returned (particular c)), the focus of the appellate court is upon any explanation for the acquittal. The relevant test was stated authoritatively in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 where Simpson J (McClellan CJ at CL and Latham J agreeing) said:

41. [140]

    There is no presumption of inconsistency where a jury reaches a different verdict with respect to different counts. Where an accused is acquitted of a charge of sexual offence, it ought not be assumed that the jury did not find the complainant credible, particularly where a guilty verdict has been returned on another count.

42. [141]

    In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said at [34]:

43. [142]

    G’s description of the conduct that was charged as counts 6 and 7 was considerably less detailed than his description of the conduct which comprised counts 3, 4 and 5 (as is apparent from the narrative set out above). G described it in general terms in his police interview but gave no further evidence about it in his pre-recorded interview (except to refute the cross-examiner putting to him that it had not occurred). The not guilty verdicts returned in respect of counts 6 and 7 are consistent with the jury adopting an appropriately cautious approach to its determination whether the Crown had proved its case with respect to counts 6 and 7 beyond reasonable doubt, in accordance with her Honour’s directions. The jury may have, appropriately, regarded G’s evidence as insufficiently clear and detailed for them to be satisfied beyond reasonable doubt of the applicant’s guilt of counts 6 and 7.

44. [143]

    I regard this explanation for the not guilty verdicts as sufficient to explain why the jury returned not guilty verdicts for counts 6 and 7 and guilty verdicts on counts 3, 4 and 5. For these reasons, particular c) has not been made out.

Proposed orders

1. [144]

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

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [145]

   HAMILL J: I have the advantage of reading the draft reasons for judgment of both Adamson J and Cavanagh J. Their Honours have both summarised the facts and evidence in detail, albeit in different ways and from somewhat different perspectives. Their Honours’ thorough analyses relieve me of the need to set out the evidence in detail although there may be some repetition of aspects of the evidence in order to explain my reasons.

3. [146]

   The jurisdiction vested in an intermediate appellate court to overturn the verdict of a jury on the ground that it is unreasonable and cannot be supported has been considered by the High Court on many occasions, including quite recently: see, for example, Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (“M”), SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 (“SKA”), The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”) and Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 (“Dansie”).

4. [147]

   The presiding Judge has emphasised, quite correctly, the “constitutional” role of the jury and the advantages it enjoys. That role, and those advantages were explained in M and, more recently, in Pell. These advantages include more than the jury’s opportunity to see and hear the witnesses give evidence:

5. [148]

   To highlight the importance of the constitutional function of the jury is not to abdicate the responsibility this Court has in determining an appeal based on the ground that it is unreasonable or unable to be supported having regard to the evidence. [2]

6. [149]

   In SKA the High Court found error in the approach taken in this Court:

7. [150]

   In M the High Court considered the typically transparent reasoning of Sully J where his Honour explained that he had a “feeling of anxiety and discomfort about the verdicts of guilty that were returned against the present appellant.” [4] However, his Honour deferred to the role of the jury and its “special advantage” in seeing the complainant give evidence. [5] Mason CJ, Deane, Dawson and Toohey JJ said at 494-495:

8. [151]

   Dansie concerned an appeal against a verdict by a Judge sitting alone, but the critical nature of this Court’s independent review of the record of trial was again emphasised at [7]:

9. [152]

   In Pell, the Court emphasised at [39] that this assessment is made “upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable,” but:

10. [153]

    The High Court in Pell proceeded on the assumption referred in the last paragraph but concluded that a majority of the Court of Appeal fell into error in finding that it was open to the jury to convict in spite of uncontested evidence that cast a doubt on the appellant’s opportunity to commit the offences, and the “compounding improbabilities” of the offence being committed in the manner alleged by the (credible and reliable) complainant.

11. [154]

    It is axiomatic that the outcome of a ground in these terms will turn on the particular facts and circumstances of the case.

Ground 1(a), counts 1 and 2, and F’s evidence regarding the drawings in the scrapbook

1. [155]

   I have little to add to the careful analysis undertaken by Cavanagh J in relation to F’s evidence regarding the drawings in the scrapbook. To be blunt about it, some of F’s evidence about the drawings was more likely to have been dishonest than simply mistaken or inaccurate. This has caused me considerable disquiet as to the acceptance of the child’s evidence (beyond reasonable doubt) in relation to the allegations of sexual misconduct he levelled against the applicant.

2. [156]

   Both Adamson and Cavanagh JJ have described the pictures, but to understand the submissions on appeal and the significance of the evidence at the trial, it is appropriate to reproduce (with redactions of the names) two of the pages of the scrapbook.

3. [157]

   The first drawing was this:

4. [158]

   The second drawing was this:

5. [159]

   These drawings were produced to the child psychologist Jennifer Gilmour in her fifth session with F. Until that time, 17 August 2017, F had not alleged any sexual misconduct against the applicant. However, in earlier sessions – specifically the fourth session on 5 May 2017 – F expressed fears that the applicant would “kill him” and that he would be taken away from his mother. He was exhibiting various symptoms such as loss of appetite, losing weight and not performing at school. In this context, Ms Gilmour gave him an “art book” and told him he could “write or draw his worries” and that they could talk about the worries that he had drawn in the book or written down. She agreed this was a “fairly common therapeutic strategy for children.” It was only after that discussion F disclosed the sexual allegations to his mother:

6. [160]

   The problems with F’s evidence as to when he drew these pictures and important surrounding details were articulated clearly by counsel at first instance and by Mr Moutasallem on the appeal. Cavanagh J has set those problems out in some detail in his draft judgment. Most starkly, F gave pre-recorded evidence on 27 June 2018 that that he did the two drawings, reproduced above, when he was at pre-school. He finished pre-school in late 2014. The book in which the drawings were made was not in circulation until October 2016. That provided incontestable proof that F’s evidence on this issue was, at least, inaccurate. However, he went on to provide a detailed account of storing the book over the following years. Again, the detail is set out in the judgment of Cavanagh J. Even making due allowance for F’s age, the more likely explanation for this part of his evidence is that it was reconstructed or somehow fabricated.

7. [161]

   This finding, which is inevitable given the clear evidence as to the date the book became available, is a significant matter to be considered in assessing the evidence of the complainant. It also has a capacity to undermine the assumption of which the High Court spoke in Pell, that the independent review of the evidence is to be undertaken in light of the jury’s finding that F’s evidence was credible and reliable. In this respect, it clearly was not.

8. [162]

   Before leaving the subject of the scrapbooks, the evidence in F’s JIRT interview provided further inconsistency in, and nuance to, this part of the evidence. He told the investigators that he drew the pictures “after I saw, not Jenny at the Jackaroo Centre, um, the Court Jenny”. He saw the “Court Jenny” on 6 July 2017. That timing was possible because the scrapbook was available at that time. However, F said later in the same interview, he was given the book “before [he] started school – in pre-school”. That could not have been the case because the book was not then available.

9. [163]

   As Cavanagh J demonstrates, there were other issues with F’s evidence. His relationship with the applicant was fraught with difficulties. Other witnesses said that the applicant was cruel to F – sending him outside or to his room, hitting him with a belt, berating him for his perceived shortcomings. This evidence was capable of explaining F’s fears of his father and of being taken away from his mother, as well as his steadfast refusal to have contact with him. Further, the allegations surfaced in the course of family law proceedings in which the applicant was seeking access to his children, and specifically F.

10. [164]

    It might also be thought that it was odd, in those circumstances, that the applicant would refer to the “wizzle game” in his first access visit and that F’s mother would not have been aware of the issues that arose at that visit. The possibility of concoction between the children and contamination by other family members, in the context of a bitter family dispute, were raised at the trial. There was also the suggestion that others may have been involved in the drawing of the pictures or the words. Those were powerful arguments albeit some were without direct evidentiary support.

11. [165]

    All of these issues, and more, were drawn out at the trial and explored by counsel then appearing for the applicant.

12. [166]

    The jury was reminded of these issues and the defence submissions in the summing up. The trial Judge directed the jury that it “must exercise caution” before convicting the accused because each charge “very much depends on you accepting the truthfulness and reliability of a single witness.” Her Honour instructed the jury it must examine the evidence closely. The jury was reminded of the onus and standard of proof.

13. [167]

    Against the problems with the evidence, the prosecution relied on evidence that could provide some indirect support for F’s account. This included the drawings themselves and F’s conduct as described by the child psychiatrist.

14. [168]

    The prosecution was also able to point to the tendency evidence which, in the case of F’s allegations in counts 1 and 2, came from G. If the jury accepted that the applicant had the tendencies alleged by the prosecution, that was powerful circumstantial evidence supporting F’s allegations. Again, the possibility of collusion existed and must be considered particularly in the context of the family issues explored at the trial. But that suggestion was denied by all concerned. There were significant similarities in the evidence of the two complainants. Each referred to threats made by the applicant, although they were threats of a different kind, and each child referred to a similar game (the “wizzle” or “wiggle” game) which was used as a euphemism for the inappropriate sexual touching.

15. [169]

    My independent review of the evidence in relation to F’s allegations causes me considerable concern. I am satisfied that he probably told lies about the pictures and was unreliable in relation to some details. I have taken those matters into account. On the other hand, the way the allegations emerged and F’s symptoms and distress appear to be consistent with a child who was abused in the way he alleged. If it is accepted that F drew those pictures, especially the picture of the bathroom, it is a powerful piece of evidence.

16. [170]

    I would add that some of the things G said in his JIRT interview about the applicant’s treatment of F provided significant support to F’s evidence of the abusive (although not sexually abusive) nature of the relationship between the applicant and F. Some of the conduct of which G gave evidence was reflected in the pictures drawn by F. Examples include the use of a belt and “saying he is a F-word” and a “C-word”. It is obvious that such physical and verbal abuse is not the same as sexual abuse, but it tends to suggest that at least some of the things in the pictures that F showed to the counsellor reflected F’s actual experiences.

17. [171]

    I accept that a child of F’s age may give unreliable evidence about those pictures and the writing in the scrapbook and perhaps tell lies about surrounding details (such as its storage), and yet be entirely honest in his account of the sexual abuse.

18. [172]

    On the whole of the evidence, any doubts I entertained are resolved by the advantages enjoyed by a jury of twelve people, properly instructed in the law, properly cautioned to examine the evidence closely, and reaching unanimity following an exchange of views in the jury room.

19. [173]

    For those reasons, I would not uphold ground 1(a).

Ground 1(b) and G’s allegations in counts 3-5

1. [174]

   I have considered the evidence given by G in the context of the whole of the evidence and record of the trial. His allegations emerged in a JIRT interview in an apparently spontaneous way even though G said it was “a bit embarrassing” and that “I don’t really want to talk about it”. G gave unguarded and seemingly truthful evidence about the problems in the family relationships and of the applicant’s treatment of F. By contrast he said that he (G) and the applicant got on well; “he treated me OK. Like he would mainly hang out with me”. My impression of this interview, at this distance and without the benefit of watching the recording, is that it rings true. The same applies to the transcript of G’s pre-recorded evidence (mostly in the form of cross-examination) which was taken on 27 June 2018.

2. [175]

   G was asked at the end of his interview, “is there anything else you know or anyone else that you know that anything like this has happened between [AS] and anyone else?” He said, “Ah, I did, [F] did tell one time like that he did this to [F] as well.” Two countervailing observations can be made about this. First, it demonstrated a degree of honestly in G’s response – he did not try to hide his knowledge of F’s allegations. The second observation is that it demonstrated that which is obvious in the circumstances of this case; that is, there was clearly a risk of contamination of the evidence of the two children and an opportunity of joint concoction.

3. [176]

   I have considered the substantial arguments made both at trial and by Mr Moutasallem in his cogent and quietly forceful submissions on the appeal. The inconsistencies in the evidence, especially concerning the timing of the events alleged in count 5 and what I will call the “opportunity” evidence have been catalogued and analysed by Cavanagh J. I will not repeat his Honour’s thoughtful and thorough analysis.

4. [177]

   I have given significant weight to the fact that these allegations emerged in the course of a family dispute both between the applicant and R, but also other members of the family. There were substantial contradictions between the evidence of R, “Aunty” and R’s other children on the one hand, and the evidence of her brother (“J’) and what R said in her Family Court affidavit on the other.

5. [178]

   The applicant voluntarily participated in a recorded interview with police and denied the accusations. He was a person of prior good character.

6. [179]

   I have considered the evidence relating to the timing of count 5 and the objective “markers” in time that placed those events in context. Those markers included R’s father’s illness and death, the dates that various people lived in the house, and the evidence of when the applicant stopped staying over at the premises.

7. [180]

   Even taking those matters into account, I am not persuaded that they were of such significance that the jury ought to have entertained a reasonable doubt about the applicant having the opportunity to commit the offence and, therefore, a doubt about the applicant’s guilt. Inconsistencies of this nature are not uncommon in cases where witnesses, especially children, are providing evidence of things that occurred some years earlier.

8. [181]

   Again, the trial Judge provided the jury with careful directions concerning the onus and standard of proof and the fact that the case against the applicant on counts 3-7 was reliant on an acceptance of G’s evidence. In that context the jury was directed that G’s evidence must be carefully examined before verdicts of guilty could be returned on counts 3 through 7. The acquittals on counts 6 and 7, to which I will return briefly, suggest that the jury understood those directions and applied them.

9. [182]

   I would not uphold ground 1(b).

The tendency case and the character case

1. [183]

   Before turning to ground 1(c), I should record that in reaching my conclusions under grounds 1(a) and 1(b), I considered the evidence of the applicant’s good character and lack of a criminal record and also the cross-admissibility, by way of tendency reasoning, of the evidence of the two boys.

2. [184]

   I have taken into account the evidence of good character and that it is a matter to be taken into account (by a tribunal of fact) in two ways. First, it may be that a person of prior good character is less likely to have committed offences such as those charged against the present applicant. Secondly, the evidence may be relevant to the credibility of the applicant’s denials. The jury was directed to that effect and reminded that the prosecution did not dispute that the applicant was a person of previous good character.

3. [185]

   I have also considered the tendency case relied on by the prosecution. That case involved inviting the jury to reason that the evidence of the complainants established that the applicant had a tendency to have a sexual interest in children and to act on that interest. If that conclusion was reached, it provided indirect and circumstantial support for the evidence relating to the particular counts in the indictment.

4. [186]

   The jury was given careful and cautious directions as to the use of the tendency evidence. Based on the submissions of the Prosecutor, the trial Judge directed the jury that, before it could engage in tendency reasoning, the jury must be “satisfied beyond reasonable doubt that the [prosecution] has demonstrated the tendency it so asserts”. The jury was further directed that it could only engage in tendency reasoning if it was satisfied beyond reasonable doubt of one (or other) of the complainants’ allegations. It was directed that:

5. [187]

   The jury was also reminded that the defence case was that there was an opportunity for joint concoction and contamination of the evidence of the two complainants. That possibility meant that the similarities between the allegations made respectively by F and G may have been explained other than by the fact that the allegations of each were true.

6. [188]

   Unsurprisingly, the directions on the way in which tendency reasoning could be employed were not subject to complaint on appeal. They were, if anything, favourable to the applicant once it was accepted that the evidence was capable of being used as tendency evidence.

7. [189]

   I have taken into account the possible use of the evidence of each complainant as proof of the allegations against the other. However, I have balanced that against the uncontested evidence of good character and the possibility of joint concoction. I have not afforded great weight to the tendency case.

Ground 1(c) and inconsistent verdicts

1. [190]

   I agree with Adamson J that the acquittals on counts 6 and 7 did not diminish the credibility of G in respect of counts 3, 4 and 5. I agree with her Honour that the allegations giving rise to those counts, as expressed in the JIRT interview, were, relative to the detail provided in relation to the other counts, somewhat vague.

2. [191]

   Further, the jury was given repeated directions in the summing up that each count must be considered separately. Such directions were given firmly and on at least three occasions.

3. [192]

   Otherwise, I would adopt the reasoning of the presiding Judge in concluding that ground 1(c) cannot be upheld.

Orders

1. [193]

   For the foregoing reasons, I agree with the orders proposed by Adamson J.

2. [194]

   CAVANAGH J: I have had the benefit of reviewing the judgment of Adamson J. I am grateful for her Honour’s extensive analysis. However, for the reasons set out in this judgment, I have come to a different view as to the outcome of this appeal.

3. [195]

   The applicant appeals against his conviction in respect of 5 counts of sexual offending against two young children, being his son (“F”), and (“G”), the son of his former partner (“R”). At the time of the offending, F was three and G was eight or nine.

4. [196]

   The applicant was acquitted of two counts of alleged offending against G which was also said to have occurred within the same general period.

5. [197]

   The applicant appeals on the basis that the verdicts against him are unreasonable.

6. [198]

   On an appeal such as this, it is the function of this Court to carry out its own independent assessment of the whole of the record so as to determine whether the jury ought to have had a doubt about the guilt of the accused (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494 (Mason CJ, Deane, Dawson and Toohey JJ); affirmed in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59] (Gleeson CJ, Hayne and Callinan JJ)). It is not sufficient for the applicant merely to establish that the jury might have had a doubt about the guilt of the accused. Put another way, the question is whether it was open to the jury to be satisfied beyond a reasonable doubt of the guilt of the accused.

7. [199]

   The jury was instructed, as all juries are, to apply their wisdom, common sense and experience to their task. In the same way, I must apply common sense and have regard to matters of common knowledge and common experience in assessing whether it was open to the jury to be satisfied beyond a reasonable doubt that the applicant was guilty.

8. [200]

   In making my own independent assessment, I must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 494; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)) but, as was said most recently in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [16] (Gageler, Keane, Gordon, Steward and Gleeson JJ), the question for this Court remains whether the Court’s assessment of the totality of the evidence leaves the Court with a reasonable doubt as to guilt which the Court cannot assuage having regard to any advantage that the jury may have had by reason of having seen and heard the evidence at trial.

9. [201]

   As the Court said in M v The Queen at 494:

10. [202]

    A relevant matter about the way in which the evidence was adduced in this case is that F and G were interviewed by the Police and then cross-examined in their recorded evidence in a manner appropriate to their age and with appropriate protections in place. That is, they were cross-examined in a non-adversarial way and often were simply asked whether statements they made to the Police were true of false. The trial judge cautioned counsel for the applicant against repetition or exploration of the details of the offending. Indeed, the trial judge made mention of this in directing the jury.

11. [203]

    In this case, the conviction of the applicant depended substantially on the evidence of the complainants, being F and G. F turned four on 28 September 2013, which is a significant date in this case as it is the date that both R’s father (“Pop”) and Aunty moved in. For the reasons which I will set out it is unlikely that the offending against him occurred after that date.

12. [204]

    At the time that F first revealed the events which give rise to the charges, he was in Year 2 at school and aged seven. G was 13 when he first revealed the events to the Police.

13. [205]

    According to F, he told no-one about the relevant events until he disclosed them to a psychologist, Jenni Gilmour, on 17 August 2017. According to G, he told no-one about the conduct involving him (being three separate acts at differing times) until he disclosed them to the Police during a JIRT interview (in connection with the conduct towards F) on 14 September 2017.

14. [206]

    Although there were a number of other people living at the house and likely to have been in the house at the time of the offending, including G’s two older sisters (aged around 17 and 13 in 2013) (“M” and “S”) and two foster children (aged around 17 and 15 in 2013) (“AF” and “RF”), none gave evidence of knowing anything about any of the sexual offending of which F and G spoke. They gave differing evidence about other matters referred to by F, such as the applicant hitting him with the belt (only G gave evidence of observing that).

15. [207]

    Their mother, R, knew nothing of the conduct. Indeed, she did not give evidence about having any knowledge of any of the other conduct referred to by F such as the applicant hitting F with a belt when he was three or locking him outside. In cross-examination she referred to the father of M and G being violent and the Police telling her to keep him away from the children. She did not give evidence of being aware of any violence by the applicant towards F, although G said he told her about it and F said it happened every time the applicant came over (when R was out).

16. [208]

    It may be unsurprising that no-one else observed such sexual offending against such young boys. Further, it may also be unsurprising that F and G did not reveal the conduct to anyone if it was accompanied by threats. F stated that the applicant said he would kill him and G stated that the applicant said he would not be his Dad anymore (if the conduct was revealed).

17. [209]

    However, as the Crown case depended substantially on the evidence of the complainants, it was necessary for the jury to consider their evidence carefully and with caution, assessing their evidence to determine whether it was both accurate and reliable.

18. [210]

    In undertaking this independent review of the whole of the record it is necessary to consider their evidence along with all of the other evidence but, in my view, a doubt about the reliability of the evidence of a complainant in this case leads to a doubt about the guilt of the applicant because there is simply no other evidence on which the applicant could have been convicted on each count other than the evidence of each complainant.

19. [211]

    Further, as the trial judge directed the jury, it is important not to use evidence of what the trial judge described as other acts, such as the evidence that the applicant would hit F with a belt and lock him outside, as evidence of the offences with which the applicant was charged. That evidence is context evidence. Corroboration of F’s evidence that the applicant used to lock him outside is not corroboration of F’s evidence that the applicant used to force him into the upstairs bathroom and play ‘The Wizzle Game’.

20. [212]

    Further, the Crown relied on tendency evidence, that is, F’s evidence about what happened to him, if accepted, could be used by the jury as making it more likely that the applicant engaged in the sexual conduct against G (and vice versa).

21. [213]

    The trial judge gave the jury a tendency direction to that effect, specifying the tendency of the applicant as being to have a particular state of mind, that is a sexual interest in children aged between 3 and 9, and to act on that interest by engaging in sexual acts with children.

22. [214]

    The applicant submits that that is of some significance in terms of the outcome of the appeal as, if the Court is satisfied, for example, that the verdicts against F are unreasonable but not the other counts (or vice versa), the applicant should be entitled to a new trial in respect of the other counts (should there be a finding that those verdicts are not unreasonable).

23. [215]

    The applicant denies all of the conduct referred to by F and G. He said so in his ERISP interviews which were admitted into evidence.

24. [216]

    The jury must be taken to have rejected that evidence. Of course, it was the function of the jury to resolve such conflicts but the jury was warned against using any such rejection as proof of the offending. The jury was required to consider whether the Crown had proved its case beyond a reasonable doubt.

25. [217]

    The applicant points to aspects of the evidence of both F and G which, having regard to all of their evidence and the evidence as a whole, could not be correct.

26. [218]

    In respect of F’s evidence, the applicant points particularly to F’s evidence about the scrapbook which F used as part of the process of disclosing the events to the psychologist, Ms Gilmour, on 17 August 2017.

27. [219]

    In respect of G’s evidence, the applicant points to inconsistencies in some of G’s evidence and contradictions with other evidence which the applicant says ought to have caused the jury to have a doubt as to the reliability of G’s evidence.

28. [220]

    The applicant also submits that the timing of the disclosures is important and that the disclosures should be viewed in the context in which they were made. The disclosures by F occurred immediately after the applicant obtained interim orders for access in the Family Court.

29. [221]

    The Crown accepts that there were inaccuracies in F’s evidence, in particular, relating to the scrapbook. However, the Crown submits that it was a matter for the jury to resolve the conflicts between the witnesses and assess the evidence of both F and G carefully, as they were instructed to do. The Crown says that the inaccuracies are inaccuracies as to the detail and timing of events which might be expected of a child or might happen when a child is attempting to recall events that happened some years earlier (see BCM v The Queen (2013) 303 ALR 387; [2013] HCA 48) (“BCM”).

30. [222]

    On the Crown case, it was open to the jury to consider the inaccuracies as errors in a young child’s memory or recollection of things which do not impact on the essential integrity of his evidence as to the offending conduct.

31. [223]

    For reasons which I will consider in further detail in this judgment, the applicant says that, when viewed as a whole, the so-called inaccuracies could not be merely inaccuracies. They reflect F making up a story about the scrapbook and giving evidence of things which he (F) could not have done (i.e., in general, doing the drawings in pre-school and storing the book in his mother’s bedroom when he was sharing the bedroom with his mother). On the applicant’s case, that is not merely an inconsequential error in recollection but a reflection of something more.

32. [224]

    In assessing the whole of the evidence and considering the applicant’s appeal grounds, it is important to understand not only the context to which the applicant refers but all of the circumstances and the situation in the household at the times relevant to this appeal.

Background circumstances

1. [225]

   In 2007, the applicant commenced a relationship with R. The applicant moved in with R and her three children, M, S and G. On 28 September 2009, F was born. In December 2010, the applicant’s relationship with R broke down. According to the applicant and R’s brother J, at some stage R entered into a relationship with “Aunty”. The applicant identified this as a factor in the breakdown of his relationship with R.

2. [226]

   Until some point towards the end of 2013, the applicant used to visit the house where R and the children resided, sometimes staying the night. There is differing accounts of how often that occurred, but it was on a regular basis up to the time that Pop and Aunty moved in on 28 September 2013. In particular, he helped out with looking after the children when R was not there. R said in her evidence that he used to come whenever he wanted. There appeared to be no restriction on him coming over although that changed at some point later in 2013 in the sense that he no longer attended. The applicant says that he was no longer welcome. That was corroborated in part by J, who said he thought the applicant “was told not to sort of come around” at some time after Pop moved in. This is disputed by R.

3. [227]

   During the period 2012 to 2014, F attended preschool at Mayfield. He commenced school in 2015. In 2017 he was in Year 2 and in 2018 he was in Year 3.

4. [228]

   In 2011, R became a foster parent to two other children, RF and AF, who remained living in the house until 2014. Both gave evidence.

5. [229]

   During the period until Aunty moved in, F shared a bedroom with his mother, R. F said:

6. [230]

   In 2012, R’s father (“Pop”) became ill. In June 2013 he was hospitalised with a knee injury.

7. [231]

   On 28 September 2013 (F’s fourth birthday), Pop came to live at the house with R and the family. He remained there until he died on 23 December 2013.

8. [232]

   At the same time as Pop moved in, Aunty moved into the house. Aunty moved into the house to help care for Pop. She had previously stayed the night on regular occasions. When Aunty moved into the house, F moved out of his mother’s bedroom and into the boys’ bedroom (with A and G).

9. [233]

   During that same period, that is after 28 September 2013, J used to come to the house, perhaps on a daily basis, as he said, to care for and sit with his father, Pop.

10. [234]

    It was during that same period that the applicant moved in with another brother of R (JO). There was a time in October 2013 when all of the six children spent the weekend at JO’s house with the applicant. This time has some significance as it is said in the applicant’s case that he did not spend any overnight time with the children after that time. Indeed, both R and Aunty said the same thing in an affidavit and statement prior to giving different evidence at trial.

11. [235]

    Between the time of Pop’s funeral on 31 December 2013 and 17 December 2016 (the first access visit), the applicant did not see F or G.

12. [236]

    The reasons why he did not see F are unclear. Differing reasons are identified by R and the applicant. There is evidence in the form of text messages between the applicant and R adduced through cross-examination of R that the applicant was trying to reconnect with F and G in 2014. There were text exchanges to the effect of the applicant asking to see the kids. As put to R, she responded in a text message:

13. [237]

    R further said via text message:

14. [238]

    According to G things “went downhill” in the family situation in 2013. However, there is no suggestion in R’s evidence that she had any suspicion or knowledge of any sexual or violent conduct towards F or G at any time before 17 August 2017.

15. [239]

    On 22 July 2016, the applicant commenced taking formal steps to have access to F. This resulted in the applicant and R attending a mediation on 7 December 2016 at which time there was an informal agreement that the applicant could have access visits with F at McDonald’s at Warners Bay. Those access visits commenced on 17 December 2016 (the first access visit). R described these access visits as the applicant having access to F under her supervision.

16. [240]

    On 12 January 2017, the applicant had another access visit with F. The applicant raised concerns with R about F’s behaviour. The applicant was concerned that F did not want to see him and was concerned about his behaviour towards him. The applicant suggested that F see a psychologist. As R said, it was the applicant’s idea and she complied with his request and organised it.

17. [241]

    On 17 January 2017, R took F to her General Practitioner. F was referred to a psychologist, Ms Gilmour, at the Jacaranda Centre.

18. [242]

    On 18 January 2017, the applicant had a further access visit with F at McDonald’s at Warners Bay. There was an incident during the visit and the applicant did not have any further access to him thereafter. According to the applicant the incident was between him and R, not the applicant and F. R did not describe the incident in her evidence.

19. [243]

    F first saw Ms Gilmour on 31 January 2017. F saw Ms Gilmour again on three occasions during the period January to May 2017. According to Ms Gilmour, F was distressed, seemed scared of the applicant and did not want to see the applicant. He did not disclose any of the events which he disclosed subsequently.

20. [244]

    At the visit on 5 May 2017, Ms Gilmour provided F with a scrapbook suggesting that he use it to write and draw in it about any concerns or worries that he might have. According to Ms Gilmour this was a standard technique. At least on the Crown case, it proved to be successful in terms of causing or allowing F to reveal the conduct which led to the charges against the applicant.

21. [245]

    On 30 March 2017, the applicant commenced family law proceedings for access visits to F.

22. [246]

    On 6 July 2017, F saw Jenny Richards, a family consultant, in connection with those proceedings.

23. [247]

    On 7 August 2017, interim orders were made by consent for the applicant to have access to F.

24. [248]

    On 17 August 2017, R took F to see Ms Gilmour. On this occasion he brought with him a scrapbook. It was a different scrapbook to the one which Ms Gilmour had given to him on the last occasion that she had seen him three months earlier. There is no evidence as to what happened with the scrapbook that Ms Gilmour provided to F.

25. [249]

    According to F, he had asked R whether he could bring the scrapbook to the appointment with Ms Gilmour and she had said “Okay”. R agreed that she had bought the scrapbook for F and G to do drawings and Minecraft. However, she said that she could not recall when she had bought it.

26. [250]

    R said that she did not know what was in the scrapbook, presumably not having looked at it or asked any questions of F about it whilst she was taking F to the psychologist. Investigations undertaken after the interview with F established that it was particular type of scrapbook distributed nationally by Big W and that Big W did not commence to sell the scrapbook until October 2016. R must have purchased the scrapbook after this time.

27. [251]

    The scrapbook is of some significance because it was only through use of the scrapbook that F was able to reveal all those things that he said had happened to him at the hands of the applicant. Indeed, in her Honour’s summing up, the trial judge described F as having revealed the things through the scrapbook. Ms Gilmour explained the way he revealed the secret to her through the pictures in the scrapbook.

28. [252]

    The scrapbook is of a type where the top half of the page is blank and there are some lines on the bottom half, presumably designed for children to draw on the top half and write on the bottom half. When presented to Ms Gilmour, there were four pages with drawings and/or writing on it. There was a gap between the third and fourth drawings.

29. [253]

    F said he did the first three drawings and the accompanying writing, although he was uncertain about the fourth drawing.

30. [254]

    The first drawing (that is, the first page of the book of which there is a drawing) is a drawing of a stick figure of a man and a stick figure of a smaller person. The man is identified by his name (the applicant) and he is holding in his hand something which is drawn which is described with the word “belt”. There is a chest of drawers also in the drawing. There is a form of speech bubble coming out of the man’s head with the words “I’ll kill you your [sic] a little cunt, I fucking hate you!”.

31. [255]

    On the Crown case, this drawing represents F drawing and writing what he recalled about the applicant’s conduct towards him, that is, recalling when he was 7 what happened to him when he was 3, being the applicant hitting him with a belt and threatening to kill him.

32. [256]

    There were three speech bubbles coming out of the smaller figure, each having the words:

    1. (1)

       “please”

    2. (2)

       “please God help me!”

    3. (3)

       “He’s hurting me!!”

33. [257]

    On the bottom half of the page of the first drawing are the following words which F said he wrote (quoted as per original):

34. [258]

    The second drawing contains two stick figures with speech bubbles again attached to each and a drawing which is of a toilet with a person appearing to sit on the toilet masturbating (the toilet drawing). Again, there is a speech bubble to each.

35. [259]

    The speech bubble attached to the first stick figure is:

36. [260]

    The speech bubble attached to the second stick figure is as follows:

37. [261]

    The speech bubble attached to the third stick figure and toilet is as follows:

38. [262]

    On the bottom half of that page is the following writing:

39. [263]

    F says that he alone did the drawing and composed and wrote the words. On the Crown case this drawing depicts the sexual offending towards F which F drew in response to Ms Gilmour’s suggestion that the use the book to draw and write about what was worrying him.

40. [264]

    The third drawing is said by F to have been of the applicant trying to kill him. There is a speech bubble with the word “run!”.

41. [265]

    On the next page, the top half is blank but there is the following writing:

42. [266]

    As I have said, F was uncertain whether he did the fourth drawing. G said he did not do it.

43. [267]

    When he attended on Ms Gilmour on 17 August 2017, F showed Ms Gilmour the pages of his scrapbook and then told Ms Gilmour what the applicant did to him with reference to the drawings. Ms Gilmour described what happened in her evidence as follows:

44. [268]

    It did not concern her that the book that F presented to her was not the scrapbook she had provided to him on the last occasion, as she said that sometimes children bring in their own books. She did not ask F when he got the book, when he did the drawings or when he did the writing.

45. [269]

    Ms Gilmour reported the matter to the Police.

46. [270]

    On the next day, 18 August 2017, F was interviewed by the Joint Investigative Response Team (JIRT). R said that she did not tell F why he had to speak to the Police.

47. [271]

    As part of the Police investigation, G was also interviewed by the JIRT. On 14 September 2017, he was 13.

48. [272]

    Both F and G made a number of statements to the Police about that which the applicant had done.

49. [273]

    Thereafter the applicant was charged with two offences in respect of conduct relating to F being the offences of assault with an act of indecency contrary to s 61M(2) of the Crimes Act 1900 (NSW) (the pulling of F’s penis) and committing an act of indecency towards F contrary to s 61O(2) of the Crimes Act (masturbating in front of him).

50. [274]

    On the indictment, both offences are alleged to have occurred between 27 September 2012 and 25 December 2013. As it is unlikely that they could have occurred after 28 September 2013, it follows that they occurred when F was 3.

51. [275]

    However, as the trial judge emphasised to the jury, both offences relate to the same specific occasion, being an occasion when the applicant is said to have forced F into the upstairs bathroom, masturbated in front of him and then grabbed F’s penis, pulling it in ways described by F.

52. [276]

    Although according to F, the applicant engaged in the same conduct towards him on many occasions, the actual charges (Counts 1 and 2) related to the one event at some indeterminate time between 27 September 2012 and 25 December 2013.

53. [277]

    Counts 3, 4, 5, 6 and 7 on the indictment relate to conduct towards G. Counts 3 and 4 relate to an event after a Mother’s Day party in the park. G is said to have suffered with some visual impairment and according to R he required assistance in the shower with washing his hair. The applicant denied ever assisting him in the shower (saying he didn’t assist with showering after they turned 2 other than opening the door on occasion and checking he was okay).

54. [278]

    Count 3 reflected G’s statement that the applicant touched or wiggled his penis in the shower on the occasion he was assisting him with the shower.

55. [279]

    Count 4 reflected G’s statement that when the applicant was showering him the applicant masturbated over the shower drain in the presence of G, described by G as using the conditioner in the process.

56. [280]

    Count 5 is in respect of G’s statement that, on one occasion (specified in the indictment to be between 31 October 2013 and 1 December 2013, but on the evidence is said to have occurred on 6 November 2013), the applicant placed his fingers in G’s anus. That is, the applicant laid down beside G one night (according to G the applicant was sleeping in the boys’ bedroom that night) whilst he was in his bed in the boys’ bedroom at night and placed his fingers in his anus underneath his boxer shorts.

57. [281]

    Counts 6 and 7 (of which the applicant was acquitted) were in respect of the statement by G that the applicant would do something called like “a wiggle game or something like that” wherein he would make G go to the toilet with him and the applicant would be pulling his own penis and then start grabbing and pulling G’s penis. G said this occurred in the downstairs laundry.

58. [282]

    G participated in a JIRT interview on 14 September 2017. G’s evidence was pre-recorded on 27 June 2018.

59. [283]

    F’s evidence was also pre-recorded on 27 June 2018.

Evidence at trial

1. [284]

   Both the transcript of the JIRT interviews and the pre-recorded evidence of both F and G were admitted at trial. R gave evidence, as did M, S, Aunty, J, RF and AF, that is everyone who was living or came to stay in the house in 2013 other than Pop. The applicant’s ERISP interviews were admitted.

2. [285]

   In his ERISP interviews, the applicant denied all of the conduct alleged against him. He denied any sexual conduct towards F or G. He denied all of the matters raised about him by G. He said that R was in a relationship with Aunty and that his relationship with R deteriorated after that. He said that when Aunty moved in, he was no longer welcome. His evidence on this issue was supported by J, R’s brother, who attended the house on an almost daily basis when his father was staying there in the period before he died.

3. [286]

   The applicant denied hitting F with a belt or locking him outside. He admitted that he raised his voice at G but only when he was on the soccer field. He admitted that he watched pornography on his phone in the bathroom but denied that that was ever in the presence of any of the children.

4. [287]

   He denied that he slept over at the time of Count 5. He said he was working night shifts at that time and living with JO, another of R’s brothers.

5. [288]

   G’s evidence is also relevant to Counts 1 and 2 as G was interviewed in connection with the offending against F on 14 September 2017. He revealed the applicant’s conduct towards him during that interview. He said relevantly, in respect of the applicant, that he got on well with the applicant but that he was cruel to F, saying that the applicant did not really like him. He said that the applicant would sometimes lock F outside until R came home.

6. [289]

   G also referred to the applicant using the belt on F and that he told R about this, saying that R told the applicant to stop but the applicant did not. R did not give evidence of this.

7. [290]

   He said:

8. [291]

   G was asked about what the applicant did when he came to look after them. He said:

9. [292]

   G never saw the applicant go upstairs with F when the applicant sent F upstairs, but G referred to the applicant being cruel and striking F with a belt. G did not say that the applicant ever hit him with the belt.

10. [293]

    Prior to 28 September 2013, there were 7 people living in the house. After that date there were 9. The oldest child (M) was around 17 at the time. RF and AF were around 17 and 15.

11. [294]

    R did not give evidence of knowing of any of the conduct spoken of by F or G. No other person such as the older siblings or foster children gave evidence of observing the applicant use the belt on F when he was 2 or 3 but both M and S spoke of the applicant locking G outside and them bringing him food.

12. [295]

    M said that she saw the applicant dragging F down the stairs by the wrist and chucking him outside.

13. [296]

    There was conflicting evidence on sleeping arrangements in the house at various times. Where people were sleeping may be particularly relevant to Count 5, although there is no dispute that A, G and F were sleeping in the boys’ bedroom when the conduct giving rise to Count 5 happened.

14. [297]

    R said that when Aunty moved in she slept on the lounge downstairs for a month before she swapped with Aunty as she (R) wanted to be closer to her father.

15. [298]

    F said that he moved out of R’s bedroom when Aunty moved in. The other children gave differing evidence as to the sleeping arrangements and where the applicant slept when he slept over, either on the lounge or the trundle bed in the boys’ room.

16. [299]

    J is R’s brother. He was a friend of the applicant. He used to go around to the house long before Pop moved in. He has known Aunty since she and R were together in a relationship.

17. [300]

    He was aware that the applicant used to go and see the kids on occasions but had stopped, suggesting he was told not to come around. He said that on occasions when he was around F and G would ask about Dad, wondering if he was going to come around and see them. He said that both R and M responded saying, “Oh it doesn’t matter anyway. He doesn’t give a flying fuck about you anyway”, describing him as a “no-hoper”. He said after a while the topic faded out.

18. [301]

    Aunty said she moved into the house full-time when Pop moved in. She said that happened because R needed help with the children and her father. She said that the applicant was still coming to the house at that time, three to four times a week, picking up the children from school.

19. [302]

    She was taken to her statement in which she said that the children went to JO’s house (the occasion of the six children visiting) and that after that there did not seem to be any other attempts by the applicant to see the children. She said she could not recall in cross-examination, saying she was being asked to recall things that happened four years earlier.

20. [303]

    She denied that she ever put the applicant down in the presence of the children. She rejected the proposition that R was not happy about the applicant resuming his relationship with the children, suggesting it was the boys that did not want to see the applicant.

21. [304]

    RF gave evidence. She said that the applicant was living there while she lived there, suggesting that he had left not before she did. She must be mistaken about that as she only left in 2014. She shared a bedroom with S and M and her brother was downstairs in a part of the lounge room that had been turned into a bedroom. When asked about her knowledge of the applicant and R’s relationship breaking down, she said that she wasn’t aware they had split up and of R and M’s relationship until she moved into the house.

22. [305]

    AF gave evidence about the sleeping arrangements and his knowledge of the applicant staying over. He said that he last time the children spent any overnight time with the applicant was when they went to JO’s house.

23. [306]

    There was expert handwriting evidence but it was agreed on appeal that it did not establish really anything of significance.

Counts 1 and 2

1. [307]

   Ground 1(a) relates to the offending conduct as against F.

2. [308]

   As the finding of guilt depended substantially on the evidence of F, this leads inevitably to the question of whether the jury ought to have had a doubt about F’s reliability.

3. [309]

   In my view, the critical question is whether any inaccuracies or statements that could not be correct in F’s evidence were:

   1. (1)

      a reflection of his age, the length of time between the events about which he was asked and the making of his statements, the potential for children to inaccurately remember some detail, and the capacity for children to exaggerate things that happened, without undermining the essential integrity of what they are saying; or

   2. (2)

      alternatively, a reflection of something else.

4. [310]

   Having reviewed all of the evidence, I have come to the view that there were statements made by F which were not just inaccurate but which were plainly wrong.

5. [311]

   On 18 August 2017, F participated in a JIRT interview conducted by two Police officers in the presence of a witness intermediary and an officer from Family & Community Services.

6. [312]

   R said she did not tell him why he had to speak to the Police before she took him to see the Police. At the time he was 7 and in Year 2. He identified his birth date and volunteered that his birthday was 1 month and 10 days away. He must be taken to have been aware of the markers of time such as days, months and years.

7. [313]

   F must have known why he was there as, at the commencement of the interview, he said that he was there to talk about the applicant and spoke about his conduct immediately as follows:

8. [314]

   A number of things stand out about F’s description of the offending conduct:

   1. (1)

      His statement that he did it to him when he was three, four and five cannot be correct because he only turned 4 on 28 September 2013;

   2. (2)

      He described in detail what had happened to him when he was three, including his observations as to the noises coming from the phone “like girls running” and what the applicant did; and

   3. (3)

      The Wizzle Game involved him, at the age of three, being required to urinate into the toilet bowl as demanded by the applicant as they were standing there doing it together;

   4. (4)

      Either F was reconstructing or F at the age of three had an understanding or had reached a conclusion as to what the applicant was trying to do, that is “he tried to do it to me and if it wasn’t working he used to keep flicking it”. He said in the same interview that his “doodle wasn’t doing it. It was staying straight” but the applicant kept doing it to him to get it to do the same thing as his doodle (which must be a reference to trying to make his penis erect).

9. [315]

   F was then asked about his relationship with the applicant. He said he didn’t have a relationship with him. When asked whether he was his Dad, he said he was his Dad but he didn’t allow him to be anymore after all the stuff he had done to him.

10. [316]

    The interviewer then returned to the subject of The Wizzle Game as follows:

11. [317]

    Three things of importance emerged from those questions and answers being:

    1. (1)

       According to F, the applicant “did it” every time his mother was gone.

    2. (2)

       He was in preschool when the applicant did it. He was in preschool between 6 July 2012 and 21 December 2014, starting school in 2015. As these things must have happened before 28 September 2013, then F was either 2 or 3 at the relevant time. When being asked questions, he was able to recall with specific detail not only the actions of the applicant but also the words used by him towards F when he was 3. When depicting the applicant’s actions and words when he did the drawings, he was able to recall what the applicant did but also what he said, as he put the words used in speech bubbles including:

12. [318]

    Thereafter, F was further asked specifically about The Wizzle Game and again said that he did it every time his mother left. He said on two further occasions that he did it every time his mother left the house.

13. [319]

    He was then asked about where the other children were at the time and the following exchange occurred:

14. [320]

    Again, F was able to recall the precise sequence and words used by the applicant at least four years earlier and where other people in the house were. Indeed, on the Crown case he wrote those words in the speech bubbles in his drawings. It may be that the jury considered that F was really recalling the effect of what the applicant said.

15. [321]

    He was asked about telling Ms Gilmour about her as follows:

16. [322]

    According to F, the applicant had reminded F about The Wizzle Game at McDonald’s during the first access visit whilst they were in the playground at McDonald’s before walking out. It is common ground that the applicant had not seen F between 31 December 2013 and the first access visit which took place at McDonald’s on 16 December 2016 under the supervision of R.

17. [323]

    There followed an exchange about when F told R about it as follows:

18. [324]

    The effect of these statements was that the applicant threatened to kill F every time he saw him, even during access visits at McDonald’s. F said he did not tell anyone about it because of those threats.

19. [325]

    However, G said in his interview, in the context of his statement about what he described as ‘The Wiggle Game’ in the downstairs laundry, that F told him about what had happened to F around the same time that it happened to G, saying when asked, “It was ages ago probably when this happened to me”.

20. [326]

    F was then shown two drawings. He said he drew them. He was asked where he was when he did the drawings and the following exchange ensued:

21. [327]

    He was then asked again about the book as follows:

22. [328]

    Plainly, F was saying that R had bought him the book whilst he was in pre‑school and that he did the drawing even before Pop came to live with them, that is, when he was three. Further he was not led into that suggestion as the questioner put the first question at the time when he got the book with reference to his current school.

23. [329]

    At the end of the interview, he was asked whether there anything else he hadn’t told him. He was asked:

24. [330]

    The DVD of F’s pre-recorded evidence was played in Court. At the time of the recording, F was (as he said) “eight turning nine”. He was in Year 3 at school.

25. [331]

    He was asked limited questions in-chief relating to some minor things arising from the first interview such as the colour of the tiles and the identification of Jenni (from the Jacaranda Centre). He was also asked about who he had told about The Wizzle Game after telling Jenni. He said he told his mother and G both after he told Jenni.

26. [332]

    In cross-examination he was asked about the scrapbook as follows:

27. [333]

    He was then asked further questions as follows:

28. [334]

    F thus identified both that R gave him the scrapbook whist he was in preschool and that he did the first drawing (the drawers drawing) whilst at preschool.

29. [335]

    He was then taken to the second drawing (the toilet drawing) and questioned as follows:

30. [336]

    He was then taken to the third drawing:

31. [337]

    According to F, he did the first three drawings in the scrapbook. He was uncertain about the fourth. He said (as he had said to the Police) that he did the drawers drawing and toilet drawing (including the speech bubbles) whilst in preschool. Plainly, this could not be correct and the Crown does not suggest that it is.

32. [338]

    He was asked about what he did with the book:

33. [339]

    In this exchange, F identified where he kept the scrapbook and related it to the period before he moved out of the bedroom he shared with R, again relating that to when Aunty moved in. Again, that could not be correct.

34. [340]

    As the trial judge said to the jury and as Ms Gilmour identified, the applicant’s conduct towards F was revealed through the scrapbook. Evidence about the scrapbook, including when F got it, where he got it from, what he did with it, when he did the drawings and when he did the writing was thus an important aspect of F’s evidence.

35. [341]

    At least, on the Crown case, that which caused F to reveal the conduct of the applicant towards him was the technique of Ms Gilmour in providing F with a scrapbook and urging him to write and draw things in it about which he was concerned. According to Ms Gilmour, this appears to be a recognised technique.

36. [342]

    Further, it is important to observe that on the Crown case, the drawings in the scrapbook were most likely done during the period May to August 2017, although it is possible that they could have been done any time after October 2016.

37. [343]

    Accordingly, when he was being asked on 18 August 2017 questions about the scrapbook, he was being asked about a scrapbook which he could only have received in the months before he was being asked the questions and being asked about a scrapbook in which he could only have done the drawings in the weeks or months before he was being asked the questions, and possibly a very short period before he spoke to the Police.

38. [344]

    F was being asked questions about something he did (on the Crown case) within three months, not years prior to being asked. The offending conduct happened years earlier. F doing the drawings could not have happened years earlier.

39. [345]

    This case is different from BCM because it does not merely involve a child being wrong about something that happened years earlier when asked to estimate a time or forgetting when something had occurred. F gave specific evidence as to what he did with the book and where it was kept, directly referable to when he was sharing a bedroom with his mother, that is, prior to October 2013. F related the time when things happened to other events such as being in pre-school and before Pop came to live with them.

40. [346]

    Of course, he also said that the conduct the subject of the charges happened whilst he was in pre-school. Thus, he was identifying doing the drawings around the time of the terrible conduct by the applicant towards him. F’s statements to the Police when first made were not vague or non-specific. He was able to recall actual words spoken by the applicant to him when he was 2 or 3 and sequences of events, that is the sequence starting with him saying he did not want to play The Wizzle Game, to then being pulled upstairs into the bathroom and then the acts of the applicant in looking at his phone, the sounds of girls on the phone, the applicant doing things to his own penis until white stuff came out and then the applicant wiping it with a paper towel and then pulling F’s penis and then him being dragged down the stairs.

41. [347]

    F was in Year 2 when he participated in the Police interview. He was in Year 3 when he recorded his evidence. He must have known that he was in preschool before he started school and that he was last in preschool three years earlier.

42. [348]

    F’s evidence about the scrapbook could not be true in a number of respects, including:

    1. (1)

       The applicant made him play The Wizzle Game when he was four and five;

    2. (2)

       When he got the scrapbook;

    3. (3)

       When he did the first two drawings; and

    4. (4)

       What he did with the scrapbook after he did the drawings.

43. [349]

    Even if F might have been confused as to precise years and dates, he identified a time with reference to an important event, being when Pop came to live with them. This evidence could not have been correct. In respect of the toilet drawing, his statements changed between the interview and the recorded evidence as on the first occasion he said it was before Pop died and on the second occasion after Pop died but still whilst he was in preschool.

44. [350]

    He was asked whether R bought him the book whilst he was at school “like where you are now”. That might have been viewed as leading him in a certain direction, but he responded saying “No it was before that”, again specifically saying that he was in pre-school when R bought him the book. That evidence could not be correct.

45. [351]

    He was asked what he did with the book. He said he kept it at home. He said he did not take it to preschool. He kept it on a bookshelf in one of the cupboards in his bedroom being the bedroom he was sharing with his mother at the time. He described where the cupboard was in the bedroom. He said he had a chest of drawers in the bedroom. He said it was before Aunty moved into the house. Again, he must have been referring to a date prior to October 2013, as he stated that he moved out of his mother’s bedroom when Aunty moved into the house. Again, this evidence could not have been correct.

46. [352]

    He also referred to S being in the house when he did the drawings. S moved out of the house in 2016. That evidence could not have been correct.

47. [353]

    It is difficult to accept that all of this evidence could be reflective of a confused memory. A child in Year 3 knows that he is in Year 3 and knows when he has been in Year 2, Year 1 and Kindergarten. He knew when he was in preschool and when he had been at preschool. He knew when Aunty had moved in and when Pop moved in. He knew when he had moved out of R’s bedroom.

48. [354]

    Further, it must be that, on the Crown case, the revealing of the applicant’s conduct by F was something that F must have thought a lot about because not only did he do the drawings, but he composed and wrote the sentences underneath the drawings indicating his feelings and attitude towards the applicant and identifying that he was only revealing it at that time through the scrapbook because Jenni made him feel safe.

49. [355]

    It is one thing to forget or be wrong about a timeframe. It is another to make a statement about doing something which could not possibly have occurred. That is, he could not have kept the scrapbook in the bookshelf in R’s bedroom whilst he was sleeping in R’s bedroom because the scrapbook was not in existence at that time. He could not have done the drawings while S was in her room as S had moved out before he got the scrapbook.

50. [356]

    Further, regard should be had to other aspects of F’s evidence which, to say the least, is unlikely to be accurate. During the JIRT interview, he went from starting with one occasion of The Wizzle Game to specifically saying that it happened when he was three, four and five and happened every time that the applicant was there, that is, when he was in the home and R was out, the applicant would do all of the following:

    1. (1)

       Engage in the conduct said to be The Wizzle Game;

    2. (2)

       Hit him with a belt; and

    3. (3)

       Lock him outside.

51. [357]

    Children may tend to exaggerate. Some exaggeration may be of the type that does not impact upon the truthfulness of the critical evidence. The things that F said the applicant did to him (that is, he did it every time he saw him) might have grown in his mind over time. Further, the jury would not have considered that F’s recollection about the things the applicant said to him and the words he used when threatening him would be as precise as F seemed to recall. F’s statements as to what the applicant said must be treated as words to that effect or type. It was open to the jury to have treated them so but it is also important to observe that the applicant has been convicted based on the statements made by F when he was 7 and 8 about what happened to him when he was three. That is why it was necessary to approach F’s evidence with care assessing it for reliability and accuracy.

52. [358]

    Perhaps some exaggeration by a child about such conduct might be disregarded in assessing the overall reliability of the evidence, but in my assessment, it is a factor that the jury ought to have taken account of in assessing the reliability of his evidence.

53. [359]

    There are aspects of F’s evidence which, on an examination of the whole of the record, could not be correct. F said that the applicant said during his first access visit at McDonald’s (a public place) “Remember The Wizzle Game”. According to F, the applicant also threatened to kill him whilst they were at McDonald’s.

54. [360]

    The arrangement was obviously that the applicant could have access in a public place, that is, McDonald’s in the playground. The applicant had initiated the process to have access, yet on the very first occasion that he had access in a public place, according to F, the applicant reminded him of The Wizzle Game and threatened to kill him before just leaving and slamming the door behind him. R said that she was there supervising her son, yet she made no mention of this incident on the first access visit during her evidence.

55. [361]

    Further, when asked if he wanted to say anything else he said:

56. [362]

    When talking about the use of the belt, F initially said he kept the belt in his drawers and then changed, saying the applicant would bring the belts. Again, when viewed in isolation, this may not be significant, but it is another statement by F which required close examination. It is notable that the first drawing in the book, being the drawers drawing, is of the applicant with a belt and includes a chest of drawers. This rather emphasises the importance of the scrapbook in the process of F revealing the conduct. There was no evidence from either M or S, who were teenagers at the time and F said were in the house at the time, of witnessing the applicant strike F with a belt, despite the frequency with which F said it occurred.

57. [363]

    The matters to which I have referred are all aspects of F’s evidence which the jury was required to consider, along with all of the other evidence in assessing the reliability of F’s evidence.

58. [364]

    In my view, they are matters of some significance and not matters which can be explained by F’s young age and inaccurate recollection of things that happened years earlier. The offending happened approximately four years earlier, that is when F was three. He maintained when asked by the Police and in cross-examination that he did the drawings in pre-school, being within the same timeframe as when he said the offending conduct occurred. The Police did not lead him down that path and he expressed no uncertainty about it. He could have said he did not remember.

59. [365]

    The problem is that his evidence about the scrapbook could not be true. That could not have been an error in recollection as he was talking about things he actually did (on the Crown case) a short time before he was being asked about them.

60. [366]

    In my view, the matters to which I have referred ought to have caused the jury to have a doubt about the reliability of his evidence.

61. [367]

    In circumstances in which the Crown relied substantially on F’s evidence to establish Counts 1 and 2, the jury ought to have had a doubt about the guilt of the applicant and in my view the applicant is entitled to succeed in respect of Counts 1 and 2.

Counts 3, 4 and 5

1. [368]

   Each of Counts 3, 4, 5, 6 and 7 related to conduct involving G when he was either eight or nine. G first disclosed the conduct during the course of the JIRT interview with the Police on 14 September 2017 as part of the Police investigation into the matters revealed by F on 18 August 2017.

2. [369]

   Having answered questions about matters relating to the applicant’s general behaviour and what he observed in respect of F (to which I have already referred), G was then asked whether there were any other matters he wanted to talk about. He then disclosed each of the three separate events which gave rise to Counts 3 to 7 in a sequence or narrative. When asked whether there were any more matters, he said, “No just those three.”

3. [370]

   The only evidence relied upon by the Crown in support of Counts 3, 4 and 5 (other than the tendency evidence) was the evidence of G. There was no evidence of any other person in the house witnessing or hearing about it.

4. [371]

   G said that he was threatened by the applicant to the effect that he said he would not be his Dad anymore if he told anyone. G said that at the time he believed that the applicant was his Dad, not finding out that he was not his Dad until 2017. G agreed that the applicant not seeking to see him made him angry.

5. [372]

   G’s evidence at trial thus consisted of the JIRT interview of 14 September 2017 and his pre-recorded evidence taken on 27 June 2018.

6. [373]

   Like F, G was cross-examined in an age-appropriate manner as is apparent from the transcript. There had been agreement as to how this would happen. Cross-examination thus proceeded along the lines of G being reminded of that which he said to the Police, being asked limited questions about it and then being asked to state in respect of each statement whether it was true or false. The trial judge directed the jury to the effect that they should not infer or think that the statements made by G (and F) were not the subject of strenuous challenge by the applicant because of the way in which F and G were cross-examined.

7. [374]

   The evidence of G as to Counts 3, 4, 5, 6 and 7 first emerged during the Police interview. I will include it all as it is important to consider everything that he said:

8. [375]

   The first event described by G was that which led to Count 5. G identified that the time that it occurred was when Pop came back from having a procedure involving stitches. That night he was in bed and the applicant was on the trundle bed. The applicant told G to roll over, pulled down G’s pants, licked his fingers and put them in his “butt”. When G told the applicant to stop, he put his hand over his mouth and said, “If you tell anyone I’m not going to be your father anymore”.

9. [376]

   G then went on to describe Counts 3 and 4 with reference to the time that F was in preschool and had the Yogi Bear and they went to the park. This appears to have been a Mother’s Day picnic. G said that later that night, the applicant was showering him and he had to get the conditioner and was washing his hair. The applicant pulled down his pants and squatted. The applicant then used the hand that was covered in the conditioner and “started to like wank” in the shower over the shower drain. G then said that after he was done he washed his hands and used G’s towel and dried his penis off. He then got out of the shower and the applicant dressed him and also watched him while G got dressed.

10. [377]

    G was asked whether the applicant touched him at that time and G said he touched his penis in the shower like he was “wiggling and like feeling it”.

11. [378]

    After describing the conduct leading to Count 6, G said there were no other incidents of a sexual nature towards him.

12. [379]

    In cross-examination, G was taken to what he had said in the Police interview. When he was reminded of things he said in the Police interview, such that he saw the applicant lock F outside a couple of times or that he saw the applicant slap F or that the applicant was cruel to F, he agreed with those things. The cross-examiner then went further through G’s statement, putting a series of statements to G and asking him to say whether they were true or false. He was asked questions about the need to be showered as follows:

13. [380]

    When asked why he needed assistance, G said he could not remember but then when reminded of his problems with his vision he said, “that was some of it”. He did not remember whether it was just his hair with which he needed assistance.

14. [381]

    He was then asked about the events he had described as happening in the shower. He agreed that the applicant had pulled down his pants in the shower while the shower was still running and whilst he (G) was still in the shower.

15. [382]

    His evidence was as follows:

16. [383]

    R said that G needed assistance with washing his hair. There was no explanation of why this would have been such that the jury was left with the evidence that G must have had some visual impairment and, as he said, things became blurry in the shower, although he initially said that he did not know why he needed assistance showering.

17. [384]

    It would be unusual for a boy of that age to require assistance with showering, but G said that the applicant normally showered him and, if the applicant was not there, it was either R or Aunty.

18. [385]

    G said the applicant dressed him after showering him on this occasion.

19. [386]

    On G’s description of what happened in the shower that night, things could not have been blurry because G gave a precise description of what happened, including stating that he saw the applicant with the conditioner and that his hand was covered in the conditioner.

20. [387]

    These are all matters which the jury was required to consider, assessing G’s evidence cautiously for its reliability and accuracy.

21. [388]

    The applicant said he had not showered G or F since they were toddlers (about the age of two). He said it was not his area. He left that to R. At most, when he was looking after the kids, he would open the door and pop his head in and just ask if they were okay. Plainly, the jury must have rejected the applicant’s evidence.

22. [389]

    The jury may have had a concern about G’s statement in cross-examination that he could not remember telling the Police that the applicant touched his penis (which is the subject of Count 4), bearing in mind that he was asked about it in his pre-recorded evidence only nine months after he told the Police about it. The jury must have accepted, that although G could not recall telling the Police that the applicant touched his penis, what he said to the Police nine months earlier must have been correct.

23. [390]

    Further, although he could not recall telling the Police about it, when he was asked as part of a series of questions and answers whether the statements were true or false, he maintained that it was true that the applicant had touched his penis whilst in the shower.

24. [391]

    In my view, there could be an inconsistency between being unable to recall and then stating it was true but, it may be that the jury reasoned that he was only saying that he could not recall telling the Police about it as opposed to not recalling it happening. The jury might have reasoned that G’s evidence that he could not remember saying it to the Police did not mean that he could not remember the applicant actually doing it.

25. [392]

    G’s evidence that he needed assistance with washing his hair because of vision problems at the age of 8 and his evidence that he was able to see the conditioner (and that he could identify that it was not shampoo or anything else), on the applicant’s hand is difficult to reconcile.

26. [393]

    In considering Counts 3 and 4, these are matters which might (not necessarily ought) have caused the jury to have a doubt, but it was a matter for the jury to assess the evidence, in circumstances in which there is no surrounding evidence, objective facts or evidence of other persons which might bear upon any inconsistencies in G’s evidence and the conflict between G’s evidence and that of the applicant.

27. [394]

    Having said that, the reliability of G’s evidence must be considered also in the context of Count 5.

28. [395]

    Count 5 is different because the applicant points to evidence of other persons and matters in support of his contention that he did not sleep over at the house at the time the offending is said to have occurred. According to G, on the night that Pop had a procedure done involving stitches (which is agreed as 6 November 2013) the applicant was sleeping in the trundle bed in the boys’ bedroom. At some stage during the night, the applicant told him to roll over, pulled down his boxer shorts, placed his fingers in his “butt” and placed his hand over his mouth and threatened him that he would not be his Dad anymore if he told anyone. When asked about how he knew that the applicant had licked his fingers before placing them in his butt, G said that he could see it in the moonlight through the window and could feel it.

29. [396]

    The applicant’s main contention in respect of Count 5 is that he did not and could not have done it because he did not and could not have been staying the night on that night.

30. [397]

    The applicant’s contention that he did not stay the night at that time is consistent with both what R and Aunty said prior to giving evidence in these proceedings. As emerged during cross-examination, R had prepared an affidavit for the Family Law Court proceedings in 2017. She stated that the applicant did not stay overnight after October 2013 (again, this is a general reference to when the arrangements in the house changed with the arrival of Aunty and Pop).

31. [398]

    When this was put to R in cross-examination, she said she was mistaken in her affidavit. The jury must have accepted that, although it is difficult to understand why she would have had a clearer recollection of when the applicant stayed over when giving evidence in 2021 as opposed to when she prepared an affidavit for the purposes of the dispute over access in 2017.

32. [399]

    In her evidence-in-chief, Aunty said that, during this period, that is after she moved in, the applicant used to come over two or three times a week, often picking up the kids from school and bringing them home. However, although her statement prepared for these proceedings was not in evidence, she was taken to what she said in her statement in cross-examination. She had said in her statement that after the six children had gone to stay at JO’s house, there were no more overnight visits. That is, the applicant did not stay overnight at the house. Her response to being reminded of that was to say she could not recall as it was four years earlier.

33. [400]

    Her statement cannot be reconciled with her evidence-in-chief about her recollection of how often the applicant was coming over during that very same period.

34. [401]

    Further, AF agreed in cross-examination that the applicant did not stay over at the house after October 2013. The applicant’s contention is thus consistent with AF’s evidence as well. His contention is also consistent with the general observations of J as to what was happening in the house and the attitude of R and Aunty towards the applicant.

35. [402]

    By that time, that is, November 2013, there were three boys sleeping in the boys’ bedroom as F had moved out of his mother’s room and into that room. F said he slept on the bottom bunk and G slept on the top bunk, whilst AF slept on a mattress on the floor. F gave evidence as to the sleeping arrangements as follows:

36. [403]

    Evidence of the older children such as M, S and RF did not have any bearing on the issue. They were not directed to the time after Aunty and Pop moved in, the questions being directed broadly to the whole period.

37. [404]

    There is another matter which, in my view, is significant, being that the applicant said he was working night-shift during this period for a transport company. He worked night-shift Monday to Friday. He occasionally worked Saturdays but did not work Sundays. He said he finished work at 8.30pm. It is not clear on the evidence where he would actually finish work but, by this time, he had moved into JO’s house.

38. [405]

    That is, unlike earlier in the year, when it might have been convenient and of assistance for him to have stayed the night, there was no reason for him to have travelled to the house after finishing work at 8.30pm to stay the night. At this time, that is after 28 September 2013, things in the house had changed. Both Pop and Aunty had moved in. F had moved into the boys’ bedroom.

39. [406]

    Further, during this period, J was attending the house on a daily basis. J said he attended to sit with his father. Whilst J was R’s brother, he was also a friend of the applicant.

40. [407]

    It was open to the jury to accept or reject a witness’s evidence or part of the witness’s evidence. It was a matter for the jury to resolve conflicts. However, in circumstances in which there was no evidence contrary to the applicant’s statement that he was working night-shift during this period, the jury was not entitled to merely reject it without a proper reason for doing so. It was not inherently unlikely. The Crown adduced no evidence contrary to the applicant’s statement that he was working night-shift.

41. [408]

    Further, the fact that he was working night-shift during this period impacted not only on G’s statement that the applicant was sleeping in the boys’ bedroom that night, but also on Aunt’s evidence, that during this period the applicant was coming over two or three times a week picking up the boys from school. He could not have been.

42. [409]

    There was, in my view, significant evidence that ought to have caused the jury to have a doubt as to whether the applicant would have stayed overnight on the evening of the conduct leading to Count 5.

43. [410]

    In my view, this is again not an insignificant matter as it was necessary for the jury to be satisfied beyond a reasonable doubt that the conduct happened during the timeframe specified in the indictment. The timeframe is after Pop and Aunty moved in.

44. [411]

    Indeed, as is evident from the jury note, the jury was aware of the importance of the time specified in the indictment. One explanation for the acquittal could be that the jury was not satisfied that the Crown has established when Counts 6 and 7 happened, although that is only one explanation.

45. [412]

    The applicant’s contention is consistent with what the two adults said (who were living in the house) said at earlier stages (that is prior to giving evidence).

46. [413]

    In my view, all of these matters ought to have caused the jury to have a doubt about the accuracy and reliability of R’s evidence in respect of Count 5.

47. [414]

    The indictment specified that the offending occurred during the period 27 September 2012 and 25 December 2013 and was identified by G as occurring at a particular time with reference to what must have been a significant event, having regard to Pop’s illness and the care that he required, that is, some sort of procedure.

48. [415]

    Further, the doubt the jury ought to have had as to G’s reliability in respect of Count 5 impacts upon whether the jury ought to have had a doubt about Counts 3 and 4. This is because the conviction of the applicant was dependent entirely upon the reliability and accuracy of G’s evidence.

49. [416]

    I have referred to a number of matters about the conduct alleged in respect of Counts 3 and 4.

50. [417]

    In my view, any doubt as to G’s reliability and accuracy in his evidence must impact upon the assessment of his evidence generally. By this, I mean that, having regard to all of the matters to which I have referred in respect of Counts 3 and 4 and on the basis that the jury ought to have had a doubt about his reliability and accuracy in respect of his evidence in respect of Count 5, in my view, the jury ought to have had a doubt about G’s general reliability such as that which impacts upon the conviction in respect of Counts 3 and 4.

51. [418]

    For all these reasons, having regard to all of the factors and evidence to which I have referred, I consider that the jury ought to have had a doubt about the guilt of the applicant in respect of Counts 3, 4 and 5.

52. [419]

    In my view, the applicant is entitled to have those convictions quashed.

53. [420]

    The orders I propose are as follows:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the applicant’s conviction in respect of all counts and enter verdicts of acquittal.