CLJ v R

1. [1]

   HOEBEN CJ at CL: I agree with Latham J and the orders which she proposes.

2. [2]

   LATHAM J: The appellant was tried before Madgwick ADCJ without a jury between 25 August 2015 and 26 August 2015 for three sexual offences committed against his stepdaughter between January 2005 and September 2007.

3. [3]

   Count one alleged an act of penile vaginal intercourse without consent when the complainant was 13 years of age, between 4 January 2005 and 31 December 2006 (s 61J(1)). Counts two (between 1 January 2007 and 11 May 2007) and three (between 11 May 2007 and 16 September 2007) were based on two occasions when the appellant exposed his genitalia to the complainant, who was aged 13 and 14 at the relevant times (s 61O(1)).

4. [4]

   The appellant was found guilty on all counts on 27 August 2015.

The Grounds of Appeal

1. [5]

   There are three grounds of appeal against the conviction only:

   1. (1)

      The trial judge erred in failing to observe the requirements of s 133 of the Criminal Procedure Act 1986.

   2. (2)

      The trial judge erred in taking into account the demeanour of the complainant while giving evidence in support of her credibility.

   3. (3)

      The verdict was unreasonable or cannot be supported having regard to the evidence.

2. [6]

   Grounds One and Two allege errors of law alone, whilst leave is required to rely upon Ground Three. For ease of reference, the term appellant is used throughout.

The Evidence at Trial

1. [7]

   The complainant was born in January 1993. She had an older sister K and a younger brother. She also had an older half sister E who did not live with them. In 1998 and 1999 the complainant was living in Mullaway with her mother and the appellant. K, the complainant's brother, and J, the appellant's biological son, also lived with them. At some stage while the family lived at Mullaway, K ran away and had no contact with the complainant for several years.

2. [8]

   When the complainant was about 13 years of age and living in Kurnell, E and E's boyfriend came to stay with the family. The premises only had one bedroom, so the complainant and her two brothers slept in bunk beds in the loungeroom. During E’s visit, the complainant and E’s boyfriend developed a sister/brother relationship.

3. [9]

   During this period of time, the appellant stood by the complainant's bunk bed during the night and said that he wished the complainant would “play and muck around” with him in the same way that the complainant interacted with E’s boyfriend. The appellant also said on other occasions whilst standing next to the complainant’s bed that he wanted to “do things to [her] if [she] was older”. This evidence was relied upon by the Crown as context evidence. It was not objected to, no doubt because the appellant ultimately sought to obtain some forensic advantage by submitting that such conduct in the presence of the complainant’s brothers was inherently unlikely. Neither of the brothers gave evidence at trial.

4. [10]

   During 2006 the family moved into larger premises where the complainant had her own room. In the early hours of one morning, the complainant heard the appellant walking up the stairs, entering her room and asking if she was awake. The complainant pretended to be asleep because she was scared. The appellant got into her bed, placed his hand over her mouth and said "I love you, if I didn't love you I wouldn't be doing this". He threatened to kill her if she told anyone. The appellant placed his penis into her vagina after he had pulled down her pants and underwear. This was the subject of count one in the indictment.

5. [11]

   The next day, the complainant failed to attend school. On returning home the complainant went to her room and placed a chair behind the door. She continued to take steps to prevent the appellant from entering her room.

6. [12]

   According to the complainant, the appellant made other sexually suggestive comments to her on an occasion when she was going to the bathroom. There was another occasion when the appellant stood in the doorway of the complainant’s room at night and said that he wished to have sex with her again.

7. [13]

   On an occasion in 2007, whilst the complainant was using the computer in the dining room, the appellant sat at the dining table while wearing a towel around his waist and placed his hand on his penis within sight of the complainant. This was the subject of count two in the indictment. After this incident, the complainant told her mother that the appellant had done "sexual things" to her.

8. [14]

   A few days after making this generalised complaint to her mother, the complainant, her mother and her brother left the family home and travelled to South Australia. Before leaving, the appellant confronted the complainant's mother. According to the complainant, the appellant said to her mother, "If I ever did anything to her I thought it was you". It was put to the complainant that this was never said. The complainant’s mother gave evidence that when she spoke to the appellant about the complainant, the appellant generally replied in those terms.

9. [15]

   The complainant, her mother and her brother stayed in Waikerie in South Australia with E, E’s boyfriend and E’s father. According to E’s boyfriend, it was during this period that the complainant told him of sexually suggestive comments that the appellant was making towards her. After a couple of weeks the complainant's mother decided to return to New South Wales to live with the appellant. The complainant did not want to go and felt scared when she saw the appellant. The family moved into a house in Penrith where the complainant occupied her own room.

10. [16]

    On an occasion during this period of time when the complainant was using the computer in the dining room, the appellant seated himself at the table and commenced to fondle his penis. This was the subject of count three on the indictment. The complainant told him to "stop it" and went to her room. The complainant thought that this incident occurred when she was in year nine in about 2008, however the school records established that the complainant entered Year Nine at Jamison High School in May 2007.

11. [17]

    The following day the complainant spoke to E’s boyfriend on the phone. According to the complainant, she used the term “sexual harassment”, to convey that the appellant sexually abused her. The complainant maintained that she had told E’s boyfriend that the appellant had sexual intercourse with her and that E’s boyfriend told the complainant not to do anything or tell anyone. He said he would try to arrange for the complainant to move to South Australia. The evidence of E’s boyfriend was that the complainant was asking him to get her out of NSW and that she appeared frightened. He assumed that the complainant was frightened of the appellant, but was not given any details.

12. [18]

    E gave evidence of receiving a number of phone calls from the complainant during this period. The complainant repeated several times to E that she felt unsafe and fearful of the appellant and that she wanted to come and live with E. Despite pressing the complainant for a reason, E was not given any details of the appellant’s conduct towards the complainant.

13. [19]

    The following day, after an argument with the complainant's mother, the complainant spoke to the counsellor at her school, in the same terms that she had used when speaking to E’s boyfriend, in other words that the appellant had sexually harassed her by way of sexually suggestive comments. The complainant also referred to the appellant exposing himself to her. That same afternoon the complainant went to the Penrith police station and disclosed to the police that the appellant had sexually harassed her. In cross-examination the complainant conceded that she did not tell the police the detail of the sexual contact between herself and the appellant. She did not tell them that she was raped or that the appellant had exposed himself to her. She gave no further details out of fear of the appellant. The complainant did not return home. On 16 December 2007 the complainant flew to Adelaide to live with E.

14. [20]

    During the time that the complainant lived in Adelaide, the complainant made contact through Facebook with K. In about 2008, the complainant spent the school holidays with K in Sydney. According to K, the complainant told her during this visit that the appellant had “raped” her when she was twelve. In November 2010 K came to live with the complainant and they shared a bedroom. According to the complainant, in about mid 2011, the complainant told K for the first time that the appellant had raped her when she was 12 years of age. This gave rise to a conflict in the evidence that assumed some importance in the trial.

15. [21]

    Between 31 March 2011 and February 2012 the complainant corresponded via Facebook with X. Under cross-examination, the complainant conceded that she may have commenced corresponding with X on Facebook before she told K that she was raped by the appellant.

16. [22]

    The significance of the correspondence between the complainant and X lay in the fact that in April 2011, X disclosed to the complainant that the appellant had "sexually harassed" X and that she wanted "to get him locked up". She asked for the complainant's assistance. On 7 April 2011, the complainant told X that the appellant had sexually harassed her. On 15 April 2011, the complainant agreed to help X. It is relevant to note that X did not give evidence at trial.

17. [23]

    On 10 August 2012, the complainant made a detailed statement to the South Australian police, wherein the details of the appellant’s sexual offending were set out for the first time. On 18 November 2014, the complainant signed a statement that conformed to the requirements of NSW which was in almost identical terms to the South Australian statement.

18. [24]

    The appellant did not give evidence. The appellant’s case was that the allegations were false, having been initially fabricated by the complainant in order to promote her desire to live in South Australia with her sister, and then supplemented with false details of specific sexual assaults in order to assist X to pursue the imprisonment of the appellant. It was submitted that, to the extent that the complainant might be accepted in relation to the appellant’s sexually suggestive comments to her from time to time, that conduct was entirely consistent with a form of “sexual harassment”, but did not contribute towards proof of the counts in the indictment. Particular emphasis was placed on the fact that the detail of the assaults constituting the charges was not disclosed to police until August 2012, after the complainant had agreed to assist X.

19. [25]

    Given the existence of a motive to lie, which the appellant positively advanced at trial, the delay in any meaningful complaint, and the communications between the complainant and X, the appellant’s attack upon the complainant’s credibility had some force. Of particular significance was the conflict in the evidence on the subject of the complaint to K. If K was accepted, the contention that the complainant was only acting as the agent of X in accusing the appellant of “rape” and acts of indecency lacked cogency. If the complainant’s evidence on the subject of this complaint was preferred to that of K, the alleged mala fides of the complainant remained a live issue.

The Closing Addresses

1. [26]

   Whilst the focus of Ground One of the appeal is necessarily on the judgment for the purposes of assessing compliance with s 133 of the Criminal Procedure Act 1986 (NSW), there were a series of exchanges between the judge and counsel during closing addresses that are relied upon by the appellant in support of this Ground.

2. [27]

   In the course of the trial advocate’s closing address, when recounting the circumstances under which the complainant left for South Australia with her mother on the first occasion, his Honour commented:

3. [28]

   Later, while the trial advocate was addressing the complainant’s evidence in relation to what she told the school counsellor, his Honour said “now we know she complained of sexual misbehaviour long before [X] was on the scene.” That was not in dispute, rather it was the significant escalation in the gravity of the complaint after the complainant’s contact with X upon which the appellant relied.

4. [29]

   Shortly thereafter, the trial advocate addressed the conflict in the evidence relating to the complaint of “rape” to K. The trial advocate noted that K had made a statement in relation to the complaint only two days before the trial and was thus recalling events that occurred some years before. He went on to note that the same was true of the complainant. She had only recently given a statement about that complaint and had said nothing about it in her original police statement. His Honour immediately commented “well K must be wrong.”

5. [30]

   Comments of a similar nature, that is, that it was difficult to imagine that the complainant would invent such details, that she had said that she felt dirty and ashamed and that such a reaction was within the range of reactions for victims of sexual assault at any age, were made during the balance of the trial advocate’s address.

6. [31]

   The appellant’s counsel commenced her address by noting that there were five areas of the evidence that would cause the judge to have a reasonable doubt about the guilt of the appellant. Those five areas were the complaint evidence, inconsistency and asserted exaggerations by the complainant in the course of her evidence, the implausibility of the appellant making sexually suggestive comments to the complainant in the presence of her brothers at night and the absence of evidence from either of them, the complainant’s motive to lie and the forensic disadvantage occasioned to the appellant by the delay in complaint.

7. [32]

   His Honour agreed that E’s boyfriend was to be preferred to the complainant on the subject of the complaint to him over the phone. However, his Honour indicated that he regarded the discrepancy in the evidence of complaint on this occasion as a mistake on the part of the complainant.

8. [33]

   While the appellant’s counsel was dealing with the complainant’s willingness to assist X, his Honour said:

9. [34]

   The appellant’s counsel then asked his Honour to give himself a Crofts direction (Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22) and a Murray direction (R v Murray (1987) 11 NSWLR 12; (1987) 30 A Crim R 315). Immediately, after counsel concluded her address, his Honour said “It does seem to me to be appropriate to give it (sic) very close scrutiny to the evidence of the complainant and it’s a very serious offence charged.” This was a reference to the need for a Murray direction (that the evidence of the one witness upon whom proof of the Crown case depends should be scrutinised carefully before proceeding to conviction). A Crofts direction relates to delay in complaint and is to some extent codified by s 294 of the Criminal Procedure Act.

10. [35]

    There was a further exchange between the judge and both the trial advocate and counsel for the appellant on the subject of the context evidence. The trial advocate drew his Honour’s attention to the requirements of s 294 of the Criminal Procedure Act. In response, his Honour said:

11. [36]

    The appellant submits that this is the first indication that the requirements of s 133 of the Criminal Procedure Act were not being observed, in that his Honour made a finding of guilt before the delivery of reasons. In fact, his Honour expressed himself in terms of what his future inclination was. His Honour did not make a positive finding of guilt until the end of the judgment.

12. [37]

    However, the salient parts of the exchange between the judge and the legal representatives set out above demonstrate that his Honour formed a strong view almost immediately after the close of the evidence that the complainant was a witness of truth. His Honour discounted the possibility that the complainant had invented the details of the sexual assaults, his Honour summarily rejected K’s evidence of the timing of the complaint (which left the spectre of invention by the complainant in order to assist X), and his Honour accepted the complainant’s explanation for the delay in her complaint, all before he had heard from the appellant’s counsel and before taking into account the appropriate directions of law. It is difficult to accept that his Honour gave the evidence of the complainant “very close scrutiny” or that he considered the matter closely between making those comments and arriving at a pre-emptive view of the appellant’s guilt.

13. [38]

    The appellant was entitled to the benefit of the presumption of innocence throughout the trial (which is an adjunct of the requirement to prove the offences beyond a reasonable doubt), including during the judge’s formal deliberations leading to the delivery of the verdict. The conclusive nature of the comments during the closing addresses suggests that this did not occur.

14. [39]

    I do not overlook the fact that comments by a trial judge are permissible, even during a trial before a jury and that:

15. [40]

    Nevertheless, the judge’s comments at this stage of the trial suggest that his Honour fell “into the perils of self-persuasion” and closed his mind to the directions that he was bound to apply: Sir Robert Megarry, Temptations of the Bench (1978) 16 Alta L Rev 406 at 409, cited at 281 in Galea.

16. [41]

    More importantly, if the appellant makes good his contention that the judgment did not meet the requirements of s 133 of the Criminal Procedure Act, the fact that his Honour may have made certain findings of fact and adverted to certain directions of law, either explicitly or by implication, during argument does not remedy the defects.

17. [42]

    In AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8, Gleeson CJ and Kiefel J noted at [16] that exchanges with counsel in the course of address do not form part of a statement of reasons. Justice Heydon made the point more forcefully at [85] and [111]:

18. [43]

    It is against this background, having regard to the obligations imposed by s 133 of the Criminal Procedure Act, that the adequacy of the judgment must be assessed.

The Requirements of a Judge Alone Trial

1. [44]

   Section 133 of the Criminal Procedure Act provides that:

2. [45]

   The requirements of a judge alone trial have been the subject of a number of judicial pronouncements. The previous incarnation of s 133, which was in identical terms, was considered by the High Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27] to [33]:

3. [46]

   These principles were revisited in AK v The State of Western Australia in relation to the equivalent provision in that State.

4. [47]

   In Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544 this Court applied those principles in dismissing an appeal against conviction from a judge alone trial. The Court (Basten JA, Simpson J and Davies J) held that there was no requirement to direct on the presumption of innocence provided that express directions were given on the onus and standard of proof (per Simpson J at [88] and [89], Basten JA and Davies J agreeing).

5. [48]

   Of relevance to the present appeal, Simpson J in Ewen also considered at length whether, in the circumstances of that case, a Murray direction was required. Following a review of the authorities, Simpson J concluded that there was no support for the proposition that a warning, to the effect that the evidence of the complainant must be scrutinised with care before acting upon it to convict the accused, was required solely on the basis that the complainant’s evidence was uncorroborated (at [132]). Simpson J went on to say at [143] and [144]:

The Judgment

1. [49]

   His Honour commenced the judgment by setting out the nature of the charges against the appellant.

2. [50]

   His Honour then went on to summarise the evidence at trial. In the course of that summary, the judge referred to the complainant’s evidence in relation to the complaint to K having occurred in about mid 2011.

3. [51]

   The judge then referred to the complainant’s contact with X on Facebook, noting that X had told the complainant that “the accused had sexually harassed her.” His Honour then made this comment:

4. [52]

   His Honour then referred to the evidence of K, namely that the complainant told her during a visit by the complainant to Sydney that she was raped by the appellant at the age of 12.

5. [53]

   At the end of the summary of the evidence, his Honour said:

6. [54]

   His Honour then continued by summarising the Crown submissions, followed by a summary of the submissions on behalf of the appellant. In the course of that summary, there were two apparent findings, one that impacted favourably upon the complainant’s credibility, and one that impacted adversely. The first arises out of a passage wherein his Honour states that if the complainant was inventing things to help X:

7. [55]

   The second related to a submission from the appellant's counsel that the evidence given by E’s boyfriend was to be preferred to that of the complainant in respect of her complaint to him. His Honour did prefer his account of what was said and noted that "in consequence, she had not complained of any of the charged acts before contact with [X] and the earlier complaint evidence, limited as it was, is not consistent with the claims now made."

8. [56]

   After summarising the submissions of both legal representatives, the judgment concluded with the following passage:

9. [57]

   His Honour then proceeded to convict the appellant of each charge.

Deficiencies in the Judgment

1. [58]

   The italicised statements in this concluding passage are problematic. It is erroneous to place any greater evidential weight upon the complainant’s testimony because it was given in open court rather than from a remote location pursuant to s 294B of the Criminal Procedure Act. Section 294B(7) provides that, where a complainant gives evidence from a remote location, the judge must warn the jury against giving that evidence any greater or lesser weight because it is given in that manner. It follows that evidence given by a complainant, whether in open court or from a remote location, is to be accorded the same weight. Neither manner of giving evidence allows a tribunal of fact to discount or enhance the weight to be attributed to it. This is the subject of Ground Two of the appeal.

2. [59]

   In the absence of X as a witness, and in the absence of any evidence from the complainant that she perceived X as a person of “courage and determination who was wanting to see justice done”, the judge’s reliance upon this assessment of X for the purposes of rejecting the asserted “motive to lie” raises another issue. The judge had already accepted the appellant’s claim to limited prior good character, that is, that he had no previous convictions for sexual assault. The comment regarding X assumes the truth of X’s representations to the complainant. To that extent, it undermines the benefit of that claim.

3. [60]

   The appellant’s principal submission is that s 133 was not observed in two ways, namely, that the bare reference to “standard directions” did not satisfy the test explained in Fleming and that no real effect was given to the Murray direction, which his Honour recognised was appropriate to the circumstances of the case.

4. [61]

   Apart from a finding that the complainant’s evidence was accepted beyond reasonable doubt, there was no express reference to the onus and standard of proof of the offences and the ingredients of those offences. It is insufficient to refer to “the standard directions in any criminal trial”, not only because it does not allow this Court to determine what those directions were, how they were framed and how they were applied, but also because it offends against the principle that justice must be seen to be done.

5. [62]

   Apart from this global direction which was devoid of content, the only other “direction” his Honour gave was to note that he scrutinised the complainant’s evidence “with special care”, that the delay in complaint gave rise to forensic disadvantage to the appellant, that the complainant’s evidence was unsupported and that the appellant was of limited prior good character.

6. [63]

   The substance of the direction that applies where an accused relies upon a delay in complaint is described in s 294 of the Criminal Procedure Act. The judge must warn the tribunal of fact that a delay in complaint does not necessarily indicate that the allegations are false (s 294(2)(a)), must inform the tribunal of fact that there may be good reasons why a victim of sexual assault hesitates in making a complaint (s 294(2)(b)) and, in an appropriate case, may warn the tribunal of fact that a delay in complaint is relevant to an assessment of the complainant’s credibility (s 294(2)(c)). I am of the view that there was sufficient evidence in this case to justify a warning in terms of s 294(2)(c). That evidence concerned the absence of the complainant’s brothers as witnesses (who might have been expected to give relevant evidence of the appellant’s presence in their bedroom at night), the indeterminate nature of the complaints leading up to the detailed complaint in August 2012 and the circumstances of the complainant’s contact with X. A direction ought to have been given that drew attention to these matters as relevant considerations in an assessment of the complainant’s credibility. The judge’s brief references to delay in complaint, forensic disadvantage and the absence of supportive evidence fail to demonstrate that his Honour gave sufficient recognition to the matters that affected the complainant’s credibility.

7. [64]

   The judge gave no reasons for preferring the evidence of the complainant with respect to the timing of the complaint to K. However, having made that finding, it was incumbent upon the judge to articulate the basis of his acceptance of the complainant as a witness of truth and reliability, notwithstanding the factors supporting the s 294(2)(c) direction. The extent of that articulation was that “her demeanour was that of an honest, distressed witness”, that she was “encouraged and empowered” by X and that she had “no reason to put herself in the difficult position of telling police” and undergoing the rigours of a criminal trial.

8. [65]

   His Honour was entitled to take the demeanour of the complainant whilst giving evidence into account on the issue of her credit. Despite the way in which Ground Two is framed, the appellant does not contend otherwise, rather he relies upon the additional comments with respect to the complainant’s choice to give evidence in open court. For the reasons outlined above, those comments were unjustified and demonstrate an error of law.

9. [66]

   The remaining factors underlying his Honour’s acceptance of the complainant were his rejection of the alleged motive to lie and the absence of any other motive. It is true that his Honour reminds himself that there may be other motives, not known to the appellant, but nowhere does his Honour give the “full, firm and clear directions on the onus of proof, including a direction that the [appellant] bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the [complainant] is truthful.”: Doe v R [2008] NSWCCA 203 at [58]; (2008) 107 A Crim R 328 at 343. On the contrary, his Honour appears to rely heavily upon his rejection of the asserted motive in support of his acceptance of the complainant as a witness of truth.

10. [67]

    In summary, his Honour failed to observe the requirements of s 133 in a number of ways:

    1. (1)

       There was no comprehensive statement of the principles of law that the judge was bound to apply.

    2. (2)

       There was inadequate exposure of the reasoning process linking the principles of law to the findings of fact.

    3. (3)

       The judge erred in his assessment of the complainant’s credibility, in that he erroneously attributed undue weight to the complainant’s evidence and failed to take account of the required approach set out in Doe.

    4. (4)

       The combination of these errors deprived the application of a Murray warning of any force or effect.

11. [68]

    For these reasons, Ground One and Ground Two are made out.

12. [69]

    I am satisfied that the errors of law identified in these reasons were productive of a miscarriage of justice and that the Crown has not demonstrated that the appellant has not lost a chance of acquittal that was fairly open to him: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29.

13. [70]

    Whilst the convictions must be set aside on these grounds, it remains to be decided whether there should be a retrial.

Whether the Verdict was Unreasonable or Cannot be Supported.

1. [71]

   The appellant’s argument in relation to this ground of the appeal may be summarised as follows:

2. [72]

   All of these factors are not unusual features of a trial of this nature. Intra-familial allegations of sexual abuse invariably surface years after the relevant events, often when the complainant is mature enough and secure enough to confront the accused publicly for the first time. Such offences are invariably committed in private. Secrecy is often obtained by the use of threats which children are ill-equipped to resist, and the fear engendered by such threats often persists for years after the abuse has stopped. It is not uncommon for child complainants to make faltering attempts at communicating their predicament to other adults and/or persons in authority. When those attempts are met with inaction, children understandably withdraw and lose their faith in the ability of others to protect them. The details of extremely unpleasant and frightening experiences of a sexual nature are not perfectly remembered years after they have taken place. The absence of admissions by accused persons is hardly surprising in this context.

3. [73]

   It is not sufficient that a review of the evidence demonstrates that the tribunal of fact may have reached a different conclusion. In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], Hayne J said (Gleeson CJ and Heydon J agreeing):

4. [74]

   I am unpersuaded that a tribunal of fact, properly instructed, would necessarily fail to be satisfied beyond reasonable doubt of the complainant’s allegations. Having undertaken a complete review of all the evidence before his Honour, and taking into account the advantage afforded to his Honour by seeing and hearing the complainant’s evidence, I am not persuaded that there is a significant possibility that an innocent person has been convicted.

5. [75]

   It follows that this ground has not been made out. I would grant leave to rely upon this ground, but dismiss this ground of the appeal.

Other Matters

1. [76]

   The appellant was sentenced in relation to other unrelated matters in December 2016, resulting in an aggregate sentence commencing 26 August 2019 and expiring 25 August 2029. Those sentences were premised upon the sentences imposed by Madgwick ADCJ following the appellant’s conviction of the offences the subject of this appeal. The outcome of this appeal will require the commencement date of the later sentences to be varied pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sensible approach would be to commence the later sentences from the date of the sentences that will be set aside.

2. [77]

   In the light of the fact that the appellant will be retried, it is appropriate that this judgment be suppressed from publication.

3. [78]

   The orders I propose are:

   1. (1)

      Appeal against conviction allowed.

   2. (2)

      The convictions of 27 August 2015 are quashed

   3. (3)

      That there be a new trial.

   4. (4)

      That the matter be listed at the Campbelltown District Court on Monday 27 March 2017 to fix a date for trial.

   5. (5)

      The commencement date of the sentence imposed on the appellant on 16 December 2016 is varied pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 in the following respect:

   6. (6)

      Pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010, publication of this judgment is prohibited pending the appellant’s retrial.

4. [79]

   PRICE J: I agree with Latham J.