TB v R

1. [1]

   WHITE JA: This is an appeal and application for leave to appeal against conviction and sentence. The names of the accused, the complainants and witnesses are anonymised to prevent identification of the complainants.

2. [2]

   On 21 June 2017 the applicant stood trial in the District Court before his Honour Judge Bozic SC and a jury of 12 charged with five offences.

3. [3]

   The first charge on the indictment was that between 1 January 1997 and 31 December 1998 at a place that need not be specified the applicant had sexual intercourse with ST, a person then above the age of 10 years and under the age of 16 years, contrary to the then s 66C(1) of the Crimes Act 1900 (NSW) (“the Crimes Act”).

4. [4]

   ST’s complaint that gave rise to that charge was that in 1997 or 1998 when she was 12 or 13 she was visiting the house of her friend, the applicant’s sister, MH. She said that MH left the room and she was sitting against the wall facing the applicant’s bed with her legs flat forward and crossed. She alleged that the applicant moved his hands down her skirt into her underwear, moved her underwear to the side and inserted his fingers into her vagina, moving them around for a few minutes. At the time of the alleged offence, that is, at some time in 1997 or 1998, the applicant was aged between 19 and 21 (depending upon when in those years the offence occurred). ST was the applicant’s cousin.

5. [5]

   The other offences with which the applicant was charged were alleged to have taken place between 1 January and 31 December 2011. They concerned the applicant’s step-daughter, AM. In 2011 she was 10 or 11 years old. The applicant was 34 or 35. In 2002 the applicant had commenced a relationship with AM’s mother who had two children of a prior relationship, one of them being AM. The applicant and AM’s mother subsequently married and have had three children together.

6. [6]

   The second count on the indictment was that in 2011 the applicant assaulted AM, a person then under the age of 16 years, namely 10 or 11 years of age, and at the time of such assault did commit an act of indecency on her, contrary to then s 61M(2) of the Crimes Act, being the former sexual offence of aggravated indecent assault.

7. [7]

   The complaint by AM giving rise to this charge was that when she was in year 6 on a day that she thought was a Wednesday or Thursday, her mother took her younger brother to a school disco and she was in the bath. She said that the applicant came in and took her into her parents’ bedroom. She was in a towel. She said that the applicant rubbed the outside of her vagina with his fingers. The towel, by then, was off her body.

8. [8]

   The third count on the indictment was that in 2011 the applicant committed an act of indecency towards AM in circumstances of aggravation, namely that at the time of the offence that she was under his authority. The offence charged was an offence against then s 61O(1) of the Crimes Act, being the former sexual offence of aggravated act of indecency.

9. [9]

   The complaint of AM that gave rise to the third count on the indictment was that one morning when AM was in year 6 and no-one except her and the applicant were home, the applicant told her to lie down with him on a mattress in the lounge room and to watch a pornographic video that he was playing. The Crown contended that count 3 was established if the jury were satisfied beyond reasonable doubt that the applicant showed AM a pornographic video in 2011 while he had parental care of her.

10. [10]

    The fourth count was that the applicant indecently assaulted AM, being a person under the age of 16, contrary to then s 61M(2) of the Crimes Act. This offence was charged as having taken place at the same time as the third count, when she and the applicant were on a mattress in the loungeroom. AM said that the applicant said to her that he hoped she was not with any boys and said that when she was older not to have sex with boys in high school. AM said that the applicant grabbed her hand and put it on his penis which was erect and said to her “this is why, it will hurt”. The conduct the subject of count 4 was the applicant’s placing AM’s hand on his penis as she described.

11. [11]

    AM said that the reason there was a mattress in the lounge room was that carpet was getting ripped out of the room so that the applicant and her mother had to sleep in the lounge room.

12. [12]

    The applicant was acquitted of counts 3 and 4.

13. [13]

    Count 5 was that in 2011 the applicant had sexual intercourse with AM, a person above the age of 10 years and under the age of 14 years, namely 10 or 11 years, in circumstances of aggravation, namely that she was under the applicant’s authority. This was charged as an offence under then s 66C(2) of the Crimes Act, being the former sexual offence of sexual intercourse with a person over the age of 10 and under the age of 14 in circumstances of aggravation.

14. [14]

    The complaint by AM giving rise to this charge was that at the end of year 6, in 2011, she was in her parents’ room trying to watch a video and she thought the applicant was asleep, but he told her to give him tickles. This was in the morning. She thought that she was sick that day and went into the room to watch a movie. She said that after giving the applicant tickles down his spine her arm felt heavy and she started pressing down more which the applicant did not like. She said that she was wearing pyjama pants “maybe” and the applicant pulled her pants down and said to her “this is gunna hurt a little”. He then stuck a finger inside her. She said that the applicant spread her legs and she was pretty sure he pulled her pyjama pants down her legs. AM also said in her Joint Investigative Response Team (“JIRT”) interview that the applicant put his fingers inside her. She said that he had really long nails and she screamed because it hurt and she bled.

15. [15]

    The applicant was convicted on counts 1, 2 and 5.

16. [16]

    The applicant denied that any of the conduct described by ST or AM occurred.

17. [17]

    The Crown had sought to charge the applicant on the same indictment not only with the counts concerning ST and AM, but also with additional counts concerning the applicant’s younger sister, MH. The indictment as originally framed was that between 1 March 1992 and 31 July 1993, the applicant indecently assaulted MH when she was aged between eight and 10 and had sexual intercourse with her when she was under the authority of the applicant and alleged a further count of sexual intercourse with a person under the age of 16. The applicant sought a separate trial in relation to each complainant. The Crown submitted that the evidence of each complainant was admissible in respect of the counts concerning the other complainants as showing that the applicant had a tendency that was particularised as follows:

18. [18]

    The primary judge recorded that the outcome of the application for separate trials in relation to each complainant was to be determined by reference to the admissibility of tendency evidence upon which the Crown sought to rely. The evidence of the applicant’s sister, MH, upon which the Crown sought to rely as tendency evidence supporting the complaints of ST and AM was to the effect that he committed sexual assaults on her. In relation to the first two of the counts in relation to MH the primary judge observed that they were alleged to have taken place during what was essentially a playing of hide and seek by children. The primary judge considered that there was a very significant difference between the acts alleged in relation to ST and AM on the one hand, and the acts alleged in relation to MH on the other. For this and other reasons, the trial judge concluded that MH’s evidence lacked the necessary probative value and, in any event, was significantly prejudicial. The result was that the trial judge ordered that the counts against MH be tried separately from the trial of the counts arising from the complaints of ST and AM.

19. [19]

    In relation to the evidence of ST and AM, the trial judge concluded as follows:

20. [20]

    The decision of the trial judge to allow the evidence of ST to be adduced as tendency evidence supporting the complaint of AM, and to allow the evidence of AM to be used as tendency evidence supporting the evidence of ST is the subject of the second ground of appeal.

21. [21]

    The trial of the charges based on the complaints of MH proceeded. The applicant was acquitted.

Summary of evidence adduced by the Crown

1. [22]

   After the applicant was acquitted of the charges in relation to MH, a jury was empanelled to hear the charges in relation to ST and AM. ST gave evidence that she was in frequent contact with her cousin MH, probably three or four times a week and also on the weekend. She said that they would just “hang out, watch TV, DVDs, just hang out really.” This was sometimes done in MH’s bedroom or in the lounge room. She gave evidence that on one occasion MH, the applicant, and she were in the applicant’s room and:

2. [23]

   She provided a description of the applicant’s bedroom. She said that she did not tell anyone what happened because she was terrified and thought no-one would believe her anyway. She said that in 2001 (that is, three or four years later) she told MH that the applicant had done something to her.

3. [24]

   MH gave evidence that in 1997 and 1998 she and ST had quite a good relationship, that they used to see each other, and that ST used to come to visit her more than she would go to ST’s house. MH gave evidence that at the end of 2001, ST said to her that the applicant had done something to her. MH also said that in February 2016 she received a call from the police notifying her that there was an investigation into the applicant. MH said that she had a conversation with ST to the following effect:

4. [25]

   MH was not cross-examined.

5. [26]

   AM’s evidence-in-chief was her JIRT interview, the critical parts of which have been summarised above. The Crown also adduced evidence from a maternal aunt of AM that in early 2016 AM said to her:

6. [27]

   AM’s aunt was not cross-examined.

Summary of evidence adduced by the applicant

1. [28]

   The applicant gave evidence. He denied ever having sexually assaulted ST or having committed any of the acts of which AM complained. He also said that in 1998 his bedroom had been relocated to a garage which had been converted into a liveable bedroom, that he had no DVDs in 1997 or 1998 and that DVDs were not released in Australia until 1999. He said that there was no occasion on which he was at home alone with AM and a disco was being conducted at the school, that in 2011 there was no mattress on the lounge room floor and carpets had not been removed. He said that carpets were removed in 2009. He had never had long fingernails, but was an habitual severe nail biter.

2. [29]

   The complaints were such that the only people who could give evidence as to whether the alleged assaults occurred were the complainants and the applicant. But the complainants’ accounts contained details about which not only the applicant, but others, could give evidence. Thus, ST said that she and MH were picking DVDs to watch that were in the applicant’s room. The applicant said that he had no DVDs in 1997 or 1998, and added that no DVDs were available in Australia until 1999.

3. [30]

   I would not expect there to be any dispute between the Crown and the accused as to when DVDs were first available in Australia, but there was evidently no agreement on that question at the trial, nor on appeal. The applicant’s brother, JB, gave evidence that the applicant did not have any DVDs in the period from 1997 to 1998. He said that the applicant owned VHS movies.

4. [31]

   AM said that the reason she did not go to the school disco on the night the subject of the complaint in count 2 (see [7] above) was because she was in trouble and was not allowed to go.

5. [32]

   In the JIRT interview, AM said that on the occasion of the first assault (count 2), what made the applicant stop was that her mother came home. AM said that her mother had a pram with her younger sister in it and that she could hear her coming. She heard her mother taking off her shoes and unlocking the door and the applicant told her not to tell her mother anything or she would be in big trouble. She confirmed this evidence in cross-examination. In cross-examination she said that everyone took their shoes off before they walked into the house.

6. [33]

   AM’s mother, AB, said that she never stopped AM from attending a disco. She also said that in 2011 she never left AM at home alone when she was sick. She said that AM was not often sick. In cross-examination AB said that she did not have a pram in 2011 because the pram had broken in 2010 at an athletics carnival. The youngest sister had been born in 2007 so that she would have been four in 2011. AB said that the youngest sister, whom she called “Little Miss Independent”, wanted to walk everywhere with her brothers and sisters. AB also said that she always wore her shoes in the house because her shoes had previously been stolen from the veranda.

7. [34]

   In relation to the third and fourth counts, AM said that the applicant had shown her the pornographic video and had placed her hand on his erect penis when they were on a mattress in the lounge room because that was when the carpet was getting ripped off out of the room. The applicant said that carpets were not removed from the floor in 2011 but they were removed in 2009. AB also said that the carpets were removed from the house in November or December 2009. She produced photos of some rooms in which carpets had been removed. She said that that was the only time when carpets had been removed.

8. [35]

   The photos tendered through AB were dated 11 November 2009. In cross-examination she said that in addition to the photographs that had been tendered she had taken other photographs including one of the lounge room. When asked whether she had brought those photos to Court she said that they were on her phone because they were accessible from Apple iCloud. She agreed that there was no problem for her to produce the photos, but the Crown did not ask her to do so. She rejected the suggestion that there was a time in 2011 when a mattress was set up in the lounge room.

9. [36]

   In relation to the fifth count AB gave evidence that she had never seen AM tickle the applicant’s back. She corroborated the applicant’s evidence that he never had long nails.

10. [37]

    As noted above, in relation to the second count on the indictment, AM said that the assault occurred when her mother was at a disco and she thought that that was on a Wednesday or Thursday. In her examination-in-chief AB said that discos were “mainly on a Tuesday”. When asked in chief how she remembered that she said “I’ve been a parent at that school since the early 2000s. My son started, my oldest son started year 1 there and they have always been on a Tuesday.”

11. [38]

    In cross-examination the trial advocate for the Crown closed the gates on that evidence. In evidence-in-chief AB had initially said that discos were “mainly on a Tuesday”, but then said that they had “always been on a Tuesday”. In closing the gates the trial advocate adduced the following evidence:

12. [39]

    At the conclusion of AB’s cross-examination, she gave the following evidence:

13. [40]

    In his address to the jury the trial advocate said:

Directions to the jury

1. [41]

   The jury sent a note to the trial judge relating to counts three and four as follows:

2. [42]

   The jury was directed that:

3. [43]

   The jury was given both written and oral directions from the trial judge in relation to tendency evidence. The written direction was in the following terms:

4. [44]

   The primary judge gave oral direction in relation to the use of tendency evidence as follows:

5. [45]

   No challenge is made to the directions given to the jury on the use of tendency evidence.

6. [46]

   The trial judge gave a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) as follows:

7. [47]

   As noted above, the applicant was convicted on count 1 (relating to the sexual assault of ST) and counts 2 and 5 (relating to his step-daughter AM). He was acquitted on counts 3 and 4. The trial judge imposed an aggregate sentence. For the offence in count 1 of the indictment relating to ST, the trial judge said that he bore in mind sentencing patterns and principles at the time the offence was committed. The indicative sentence for that offence was two years’ imprisonment. In relation to count 2 concerning AM, the trial judge specified an indicative sentence of six years and an indicative non-parole period of three years and nine months. In relation to count 5, his Honour specified an indicative sentence of six years. He imposed an aggregate sentence of eight years’ imprisonment with a non-parole period of five years.

8. [48]

   To the extent required the applicant seeks leave to appeal against his convictions and he seeks leave to appeal against sentence.

Grounds of Appeal

1. [49]

   The proposed grounds of appeal, if leave is given, are as follows:

2. [50]

   Some of the applicant’s grounds of appeal involve questions of law alone. Some involve questions of mixed fact and law for which leave is required. Leave is required for the appeal against sentence. The grounds upon which the applicant relies are not without substance. To the extent leave is required it should be given.

First ground of appeal: unreasonable verdicts

1. [51]

   For his first ground of appeal the applicant relies upon s 6(1) of the Criminal Appeal Act 1912 (NSW) which provides:

2. [52]

   In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said (at 492) that s 6(1) allows a verdict to be set aside if the verdict is unsafe or unsatisfactory, even though there is evidence sufficient to sustain a verdict. Where a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the court must ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (at 493). The plurality said:

3. [53]

   The plurality added (at 494-495):

4. [54]

   In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 French CJ, Gummow and Kiefel JJ said:

5. [55]

   In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court did not depart from the “authoritative guidance” given to courts of criminal appeal in M v The Queen in the passage quoted above, but did emphasise that the jury is “the constitutional tribunal for deciding issues of fact”, the “abiding importance of the role of the jury as representative of the community in that respect”, that the setting aside of a jury’s verdict “... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”, and that “... a court of criminal appeal is not to substitute trial by an appeal court for trial by a jury” (at [65], [66]). Citing M v The Queen at 494-5, the High Court repeated that:

6. [56]

   In relation to the first count, ST’s evidence is summarised at [4] and [22]-[23] above.

7. [57]

   The only persons present when the sexual assault alleged by ST occurred were her and the applicant. The jury had the advantage over this Court of seeing ST and the applicant give evidence.

8. [58]

   The events that ST described took place 19 or 20 years before the trial. The jury was directed of the need to appreciate fully the effects of that delay on the applicant’s ability to defend himself by testing the prosecution’s evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. The jury was directed as to specific respects in which that prejudice arose and was directed that the delay meant that evidence in the Crown case could not be tested as fully as it otherwise might have been. The jury was directed to take the delay in the complaint into account in deciding whether it was satisfied beyond reasonable doubt of the charge. It must be assumed that the jury did so.

9. [59]

   Apart from denying ST’s allegations, the applicant gave evidence and adduced evidence from witnesses called in his defence that challenged the peripheral detail of ST’s description of events.

10. [60]

    Thus, as noted above (at [23]), ST described the applicant’s bedroom in which the sexual assault was said to have taken place. The applicant gave evidence that in 1997 his bedroom was located within the house but in 1998 the garage was converted into a liveable bedroom and he moved to the converted bedroom in the garage in February or March 1998. This evidence was corroborated by his mother and brother. The fact that there was unchallenged evidence that the applicant changed his bedroom in 1998 to the garage did not contradict the ST’s evidence that the assault occurred within the timeframe of 1997 or 1998.

11. [61]

    The applicant described his bedroom when it was located in the house as follows:

12. [62]

    ST’s evidence was that the applicant’s bedroom where the offence occurred was down the hallway in the house. She provided a diagram of his bedroom that showed that there was space adjacent to a wall where she said that she and the applicant sat when the offence occurred.

13. [63]

    Neither the applicant’s brother (JB) nor mother (DB) gave evidence corroborating the applicant’s evidence that the layout of his bedroom in 1997 was such that it would not have been possible for ST to have been sitting on the floor against a wall of the bedroom with the applicant sitting beside her.

14. [64]

    ST gave evidence that she was a regular visitor to the house in which the applicant lived because she was in close contact with the applicant’s sister, MH. She gave the following evidence:

15. [65]

    The applicant said that he only saw ST rarely at family events.

16. [66]

    The applicant’s brother, JB, denied that ST regularly visited his sister at the house. He said that during 1997 and 1998 he could say that she would have visited on no more than three occasions. In cross-examination he was asked when was the first time he was asked to recall back to 1997 and 1998 and said that it was that morning when he was giving evidence. The applicant’s mother said that ST only came around for special occasions with her mother and her sister and that there was a rule in the house that on a weekend no-one was allowed to come in before 10 o’clock and only family members were allowed down to the back section of the house unless they needed to use the bathroom. She said that ST did not regularly come to the house and did not visit MH unless she came with her mother and sister.

17. [67]

    However, MH gave evidence, on which she was not cross-examined, that ST was a regular visitor.

18. [68]

    The only detail of ST’s complaint about which the jury should have had a reasonable doubt was her evidence that she and the applicant were picking DVDs to watch in his room. The applicant said that DVDs were not introduced into Australia at the time of the alleged offence in 1997 or 1998. That evidence was not contradicted by the Crown.

19. [69]

    The applicant gave evidence in cross-examination that his father bought a DVD player in what he thought was the year 2000 and that was the first DVD player in the house. He gave the following evidence:

20. [70]

    The applicant’s brother when asked to recall the events of 1997 and 1998 (which he had been first asked to recall on the morning on which he gave evidence) said that in 1997 to 1998 the applicant had no DVDs, but also said that at that time he owned VHS movies.

21. [71]

    Although the jury could, and in my view, should, have had doubt as to the accuracy of ST’s evidence that at the time of the alleged assault she and the applicant were picking DVDs to watch, that does not mean that the jury should have had a reasonable doubt about the essential details of her evidence. Whether they were selecting a movie on VHS or DVD would make no difference to the substance of the complaint.

22. [72]

    Without any regard to the tendency evidence of AM, the jury could be satisfied beyond reasonable doubt of the applicant’s guilt on count 1.

23. [73]

    AM’s JIRT interview took place on 5 February 2016. A video recording of the interview was played to the jury as AM’s evidence-in-chief. At the time of the interview AM was 16 years old. She said that she had come to talk to the police about her step-father and what had happened at her house when she was younger. The interviewing officer said:

24. [74]

    Counsel for the applicant submitted that evidence of a memory that the complainant said she had recovered was not reliable and that the Crown did not adduce any expert evidence to suggest that such an asserted recovered memory of something the complainant said she had “... always used to block out a lot” could be reliable. Counsel submitted that in the absence of some expert evidence as to the reliability of such a recovered memory, the “soundness of that evidence is on shaky ground”.

25. [75]

    AM’s evidence that her memory started coming back was not affected by any suggestion that her memory was recovered as a result of therapy involving hypnosis or any analogous procedure where there was a risk that her memory might have been tainted by a suggestion from the therapist (R v Tillott (1995) 38 NSWLR 1; Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222). The reliability of AM’s evidence was quintessentially a matter for the jury.

26. [76]

    When asked at Christmas 2014 by the applicant’s sister, AM denied that the applicant had ever touched her. In October 2015 AM left the house of her mother and stepfather to go to live with her maternal aunt. In early 2016 she made the complaint to her maternal aunt referred to at [26] above.

27. [77]

    As described above at [31]-[39] the peripheral details of AM’s description of the assaults she alleged were challenged and contradicted by her mother. In one important respect, namely the year in which the applicant was said to have committed an act of indecency towards AM and indecently assaulted her on a mattress in the loungeroom, there was objective evidence indicating that the carpet in the loungeroom had been taken up not in 2011, but in 2009. The jury’s question quoted at [41] above and the jury’s acquittal of the applicant on counts 3 and 4 suggest that at least some members of the jury may not have been satisfied that the events AM said took place on a mattress in the loungeroom in 2011 occurred in that year, as distinct from not having occurred at all.

28. [78]

    The conduct the subject of the second and fifth counts on the indictment was also charged as having taken place in 2011. In her JIRT interview AM said that the very first thing that she could remember was:

29. [79]

    She was asked when that occurred and she said “I think I was in Year 6, maybe.” She was asked:

30. [80]

    In AM’s JIRT interview, the interviewer returned to the year in which the first complaint occurred and AM reaffirmed that it took place when she was in year 6 which was in 2011. The interviewer then switched to asking AM when was “the last time that it happened?”. AM recounted the assault the subject of count 5 (para [14] above). She said she thought it was at the end of Year 6 in 2011.

31. [81]

    AM’s evidence in the JIRT interview in relation to the conduct the subject of counts 3 and 4 was introduced by the following question:

32. [82]

    After AM described the alleged assault as set out at [6]-[10], the interviewer sought to put a timeframe on the conduct as follows:

33. [83]

    In cross-examination AM accepted that the first time she said something had happened was on a school disco night in 2011. When asked about the conduct the subject of counts 3 and 4 in the indictment AM asserted that in 2011 there was a mattress on the loungeroom floor and asserted that the carpets had been ripped out of the house in 2011. This evidence was apparently doubted by one or more jurors. It was put to AM that “the incident around the mattress ... didn’t happen at all”. AM said that it did happen. It is a possible inference from the note the jury addressed to the judge that at least some members of the jury were satisfied that the incident did happen, but not in 2011.

34. [84]

    Having regard to the way in which the evidence as to the third and fourth counts on the indictment was elicited in the JIRT interview, I do not consider that because the jury evidently had a doubt as to whether the conduct the subject of counts 3 and 4 on the indictment occurred, or if it did, that it occurred in 2011, that the jury should have had a doubt as to whether the conduct the subject of counts 2 and 5 on the indictment occurred in that year. It is true that in cross-examination AM said that she was “... sure about 2011 and a mattress being on the floor”, but when earlier asked in cross-examination she showed hesitancy as to whether the carpets had been ripped out of the house in 2011. AM’s evidence that the conduct the subject of counts 2 and 5 occurred when she was in year 6 and commencing or approaching puberty could be accepted even if her evidence that the other conduct she described that was the subject of counts 3 and 4 as having occurred in 2011 was rejected.

35. [85]

    The contradictions between the evidence of AM and her mother as to the peripheral details of the alleged offending are not such as that the jury should have had a reasonable doubt about the essential details of AM’s complaints. The jury had the advantage of seeing AM and her mother give evidence that is denied to this Court. The record of AM’s evidence does not itself contain discrepancies or inadequacies or otherwise lack probative force (R v M at 494 quoted at [53] above). The fact that it is contradicted by AM’s mother in respects in which AM’s mother is able to give evidence does not mean that the jury’s advantage in seeing and hearing the evidence can be put aside. Nor can it be said that the jury should have had a reasonable doubt because the applicant denied the conduct alleged by AM and it was word against word.

36. [86]

    For these reasons I would reject the first ground of appeal.

Second ground of appeal: admission of tendency evidence

1. [87]

   Section 97 of the Evidence Act 1995 (NSW) relevantly provides:

2. [88]

   As noted above at [17] the Crown alleged that the evidence of each complainant showed that the applicant had a tendency to have a particular state of mind, namely a sexual interest in female children in the age range of eight to 13 years and to act on that sexual interest by engaging in indecent touching, including digital penetration, and other sexual conduct towards female children in that age range to whom he had access by virtue of their being members of his immediate or extended family and their residing or being present in the family home.

3. [89]

   The primary judge’s reasons for accepting that the evidence of ST and AM could be relied upon by the Crown as tendency evidence in the charges relating to AM and ST are quoted at [19] above.

4. [90]

   The applicant submitted that it was not logical to consider that the later acts involving AM occurring in 2011 showed a retrospective tendency as to behaviour alleged to have occurred in 1997 or 1998. Counsel for the applicant submitted that the only way tendency could possibly be considered was prospectively. That submission is contrary to the decision of this Court in RH v R [2014] NSWCCA 71 referred to below at [102].

5. [91]

   Counsel also submitted that if the evidence of ST could show a tendency as alleged by the Crown in 1997 or 1998, the Crown must nonetheless show that that tendency still existed in 2011 after a gap of 14 years. He submitted that a tendency that existed 14 years after it were first manifested would be of very low probative value.

6. [92]

   The applicant also submitted that at the time of the alleged offence concerning ST she was 12 or 13 years of age, whereas at the time of the alleged offences concerning AM she was 11 years of age. The applicant submitted there was no “automatic correlation of physical appearance or other features”. However, AM’s statements in her JIRT interview quoted at [79] above shows that the offences alleged in 2011 occurred when she had commenced or was approaching puberty. At age 12 or 13 ST would have commenced or been approaching puberty.

7. [93]

   The applicant also pointed to differences in the alleged offending. Counsel submitted that in the case of ST the occasion was opportunistic because ST said that she and the applicant were unexpectedly alone in his room when MH left the room. In the case of the offences against AM, AM’s mother had left the house and there was opportunity for planning. It was also said that there was a significant difference in the alleged offendings in that the allegation in count 2 related to external rubbing and the allegation in count 5 related to the insertion of a single finger into AM’s vagina, whereas the allegation in relation to ST was that the applicant inserted more than one finger into her vagina.

8. [94]

   In oral submissions counsel for the applicant raised as an additional ground, either for disputing the asserted tendency, or its probative value, that at the time of the alleged offending against ST the applicant was about 20 or 21 years of age, whereas at the time of the alleged offending against AM he was 33 or 34. Counsel also relied upon the very different domestic situation in which the applicant was placed at the time of the first alleged offending and the later alleged offending. In the first case he was a young man living at his parents’ home. In the second case he was married, and the father and stepfather of children.

9. [95]

   In Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 the majority of the High Court rejected a line of Victorian authority culminating in Velkoski v The Queen (2014) 45 VR 680 to the effect that to be admissible, tendency evidence must possess sufficient commonality or similar features with the conduct in issue so as to be capable of demonstrating a pattern that increases the likelihood of the conduct in issue (at [12]). In doing so the majority (Kiefel CJ, Bell, Keane and Edelman JJ) said (at [40]):

10. [96]

    In R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451, approved by the High Court in Hughes, Campbell JA said (at [125]) that:

11. [97]

    In McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 the High Court said (at [26]):

12. [98]

    In this case the Crown sought to use the evidence of ST and AM in the charges relating to AM and ST, to prove both that the applicant had a certain state of mind, namely a sexual interest in girls related by family who were approaching or commencing puberty, and to prove a tendency to act in a particular way. In this case, unlike McPhillamy, an issue is raised as to whether the Crown established that such a tendency was likely to be enduring, given the substantially different ages of the applicant at the time of the alleged offending concerning ST and that concerning AM and his different domestic situation. However, the majority judgment in Hughes warns against a need for a high degree of commonality of circumstances before evidence is admissible under s 97.

13. [99]

    The relevance of the evidence of ST in relation to the charges concerning AM, and the evidence of AM in relation to the charge concerning ST, is not in dispute. The evidence of each was of conduct of the applicant evidencing a particular state of mind, namely a sexual interest in girls to which the applicant was familially related who were approaching or commencing puberty. The evidence could also establish a tendency on the part of the applicant to act in a particular way on that interest, namely by fondling or digitally penetrating them. The question for the primary judge was whether the evidence had significant probative value.

14. [100]

    The present case bears similarities to R v SK [2011] NSWCCA 292, which was applied in RH v R. In R v SK three complainants alleged sexual offences against the accused when they were aged between six and 13. The offences were linked by the location at which they took place, an allegation that the children were groomed by the accused, and that the offences occurred during regular family gatherings. There was a temporal gap of eight years between the first and second of the alleged offences. Dealing with that lapse of time, Latham J, with whom Giles JA and Rothman J agreed, said (at [26]):

15. [101]

    In RH v R the accused was charged with sexual assault offences against two children in his foster care. The first six of the charges related to conduct alleged to have occurred against one foster child between 1989 and 1993 when the child was between nine and 12 years of age. The final count related to conduct in 2003 against a different foster child when she was 12 or 13 years of age. The alleged sexual behaviour was similar to that in the present case. Evidence was also adduced in relation to sexual conduct against another complainant that post-dated these charges, and charges in relation to which the accused pleaded guilty in different proceedings. The applicant argued that it was impermissible to use the evidence of the separate complainant retrospectively to establish a prior tendency.

16. [102]

    In relation to the effect of temporal gaps between misconduct and the assertion that evidence could not establish a retrospective tendency, Ward JA said:

17. [103]

    There is no reason in principle that evidence of AM could not be used to establish that when the applicant was younger he had a particular state of mind as identified above and a tendency to act on that state of mind. The lapse of years between the offending alleged in relation to ST and the offending in relation to AM neither detracts from the probative value of their evidence as to the applicant’s state of mind, nor as to their evidence as to his tendency to act on that state of mind.

18. [104]

    The different domestic situation of the applicant at the time of the alleged offending concerning ST and the alleged offending concerning AM was raised before the primary judge as a reason for excluding the evidence of each in the trial of the other. Although the difference weakened the probative value of the evidence to some extent, that value remained significant, and consistently with Hughes, close similarity of circumstances is not required. The primary judge did not err in concluding that the evidence of both ST and AM had significant probative value in relation to the other’s trial.

19. [105]

    For these reasons I would reject the second ground of appeal.

Third ground of appeal: inconsistency of verdicts

1. [106]

   This ground has been dealt with above in addressing ground 1. The applicant’s acquittal on counts 3 and 4 is not inconsistent with the jury’s accepting that the conduct the subject of counts 3 and 4 occurred, albeit not in 2011. The acquittal does not indicate that the jury should have had doubt about AM’s credibility generally. The reasons of Gleeson JA in Roos v R [2019] NSWCCA 67 are apposite:

2. [107]

   For the reasons above, there was no inconsistency in the jury’s finding that the conduct the subject of counts 2 and 5 occurred in 2011, and the applicant’s acquittal on counts 3 and 4.

Count 4: inadequate Markuleski direction

1. [108]

   The primary judge’s Markuleski direction is quoted at [46] above.

2. [109]

   The direction given was in accordance with that proposed by Spigelman CJ in R v Markuleski at [188].

3. [110]

   Counsel for the applicant submitted that the direction did not specify that the jury could take into account doubts that it might hold about the honesty or reliability of the complainant that adversely affected the complainant’s credibility in relation to some counts when the jury came to consider the honesty and reliability of the complainant’s evidence in relation to other counts. Counsel submitted that the requirement in a Markuleski direction is to point to the effect on the credit of the complainant, not merely a general consideration of the evidence globally. The emphasis must be on credibility.

4. [111]

   In his written submissions counsel for the applicant submitted that the direction might be interpreted as an exhortation that the jury should balance a harsh judgment on one or more counts against a benign judgment on others so that it would only be fair to a complainant to be even-handed in the consideration of her evidence so that if the jury rejected her evidence on one count, it should accept her evidence on the other.

5. [112]

   This last submission is untenable. Nor was it suggested to the primary judge that this could be a possible interpretation of the direction his Honour proposed to give. Nor was it advanced in oral submissions.

6. [113]

   In R v Markuleski, Wood CJ at CL said (at [263]):

7. [114]

   A stronger comment than that made by the primary judge was not called for.

8. [115]

   For these reasons I would reject this ground of appeal.

Fifth ground: cross-examination contrary to s 44 of the Evidence Act

1. [116]

   The cross-examination the subject of this ground of appeal is quoted at [39] above. Counsel for the applicant submitted that the trial miscarried by reason of the applicant’s mother being cross-examined contrary to s 44 of the Evidence Act 1995 (NSW). Counsel submitted that the effect of her cross-examination was to cast doubt upon the reliability of her assertion that every disco had been on a Tuesday and hence cast doubt as to the reliability of her evidence that AM had attended every disco in 2011. Counsel submitted that the effect of the cross-examination was to cast doubt on her general credibility.

2. [117]

   No objection was taken to the cross-examination at trial. On appeal, counsel submitted that the admission of the evidence had deprived the applicant of a reasonable possibility of acquittal and that consequently there had been a miscarriage of justice.

3. [118]

   Section 44 of the Evidence Act provides:

4. [119]

   The newsletter on which AM’s mother was cross-examined was marked for identification 2. It referred to a school disco to take place on a Thursday.

5. [120]

   The newsletter was not tendered by the Crown.

6. [121]

   The third question quoted at [39] above suggests that the trial advocate for the Crown may have had s 44(3) in mind. But the next question, namely “Q. Just to be clear, that is a school newsletter advertising a disco on a Thursday?” was a departure from s 44(3). If objection had been taken to that question, an issue would have arisen as to whether the Court should have been satisfied that the newsletter would be admitted into evidence. No objection was taken to the question. That did not cause a miscarriage of justice because if objection had been taken, the newsletter should have been admitted into evidence. The newsletter was a business record of the school that contained a previous representation made or recorded in the document for the purposes of the business of the school (Evidence Act, s 69(1)). It might reasonably be supposed that the author of the newsletter had personal knowledge of the asserted fact that the disco was to be held on a Thursday. Pursuant to s 69(2) of the Evidence Act, the newsletter, if tendered, would have been admissible, and the Court would easily have satisfied itself that it would have been admitted.

7. [122]

   There was good reason for counsel for the applicant not to have objected to the questioning where it was likely that an objection would have led to the tender of the newsletter, and the newsletter’s being before the jury as concrete evidence inconsistent with AM’s evidence.

8. [123]

   There was no miscarriage of justice by reason of this questioning. I would reject this ground of appeal.

9. [124]

   For these reasons the grounds of appeal against conviction should be rejected.

Appeal against sentence

1. [125]

   The first count on which the applicant was convicted, namely the offence concerning ST against s 66C(1) of the Crimes Act at the relevant time carried a maximum penalty of imprisonment for eight years. The count on the second charge of the indictment concerning AM contrary to s 61M(2) of the Crimes Act carried a maximum penalty of imprisonment for 10 years. The offence the subject of count 5 of the indictment concerning AM against s 66C(2) of the Crimes Act carried a maximum penalty of 20 years’ imprisonment.

2. [126]

   At the relevant time the offence against s 61M(2) attracted a standard non-parole period of eight years.

3. [127]

   As noted above the primary judge imposed an aggregate sentence of eight years’ imprisonment with a non-parole period of five years. His Honour’s indicative sentences are set out at [47] above.

4. [128]

   In his Remarks on Sentence, after reciting the facts alleged by each complainant that were established by the jury’s verdicts, the primary judge found for the purposes of sentencing that he was satisfied that the applicant had the tendency alleged by the Crown to have a sexual interest in female children in the age range of nine to 12 and to act on that sexual interest by engaging in indecent touching, including digital penetration and other sexual conduct towards female children in that age range to whom he had access by virtue of their being members of his immediate or extended family and residing in or being present in his family home. This finding on the sentencing hearing was relevant to the prospects of the applicant’s reoffending. However, the primary judge found that he was unpersuaded that the applicant was likely to reoffend.

5. [129]

   The primary judge referred to the applicant’s subjective circumstances. On appeal counsel for the applicant accepted that the primary judge properly took into account the applicant’s subjective circumstances and submitted that the applicant would properly have been seen as a person with good prospects of rehabilitation. The primary judge found that he was satisfied that the applicant had reasonable prospects of rehabilitation.

6. [130]

   The applicant’s subjective circumstances were fully described by the primary judge. His Honour referred to the difficulties that the applicant suffered following his arrest and incarceration before trial, the effect of his arrest and the charges on his relations with his family, including his sons, the evidence of a psychologist that the applicant had become suspicious, defensive, fearful and vigilant to deception, criticism or physical attack, and felt extremely vulnerable with serious problems with self-esteem. The psychologist concluded that the applicant was suffering symptoms of post-traumatic stress disorder, social anxiety and a major depressive order in response to his current circumstances. The primary judge referred to references provided on sentencing for the applicant. He observed that the applicant was:

7. [131]

   The applicant was for many years a volunteer fire-fighter and received medals, including the National Service Medal in that work. The primary judge said that:

8. [132]

   The primary judge concluded that the applicant was entitled to “... some leniency on account of the fact that he does not have a criminal record and is a person of prior good character.”

9. [133]

   The primary judge described, in a way not criticised on appeal, the hardship that the applicant and his family were suffering as a result of his incarceration.

10. [134]

    The primary judge referred to ST’s and AM’s victim’s impact statement and found that the offences had had a significant impact upon each victim. ST said that when the assault occurred she felt shocked, uncomfortable, scared, violated and that afterwards she felt lost and confused and kept asking herself whether what had happened was normal or whether it was something that “females were for”. She felt unable to talk about what had happened with anyone. She did not want to go back to the house because she did not feel safe. She felt obliged to put on a smiling face at family gatherings. She said that the offence had had a lasting impact on her, and on her feelings about herself and her body. She felt sad that she had not disclosed her experiences earlier because she believed that had she done so she might have prevented subsequent harm to others. She had feelings of stress, anxiety, depression, flashbacks and disturbed sleep resulting in her admission to hospital in 2016 for two weeks.

11. [135]

    The primary judge summarised AM’s victim impact statement as follows:

12. [136]

    The primary judge said that:

13. [137]

    On appeal, the applicant challenged the primary judge’s assessment of the objective seriousness of the offences. In relation to the offence against ST the primary judge found that:

14. [138]

    In relation to count 2 concerning AM the primary judge found that the offence was at the upper end of the mid-range of objective seriousness. In relation to count 5 the primary judge concluded that although of relatively short duration the offence was very serious.

15. [139]

    After referring to the high maximum penalties and the high standard non-parole period for the offence the subject of count 2 as an indication of the seriousness with which the community viewed such offences, his Honour said that general deterrence, denunciation and punishment were matters of particular importance. He also said that “specific deterrence is also important in this case, given my findings regarding the tendency evidence at the trial”, although his Honour had also said that the applicant had reasonable prospects of rehabilitation and was ultimately unpersuaded that he was likely to reoffend.

16. [140]

    The primary judge also referred to the need for the sentence to vindicate the dignity of both victims and express the community’s disapproval of the offending.

17. [141]

    The primary judge found that special circumstances existed as the applicant would require a lengthy period on parole. He said that a high degree of concurrency between sentences would not be appropriate because it would fail to recognise that the offences were discrete in nature and concerned two victims. The primary judge referred to the need for a sentencing court to give proper attention to the standard non-parole period, particularly when the term of that period approaches the maximum term provided for the offence. In the case of count 2, the maximum penalty for the offence was imprisonment for 10 years and the standard non-parole period was eight years. The primary judge said that in relation to ST it was necessary that he bear in mind sentencing patterns and principles at the time that the offence against ST was committed. He did not make the same statement in relation to the offences that occurred in 2011 concerning AM.

18. [142]

    The indicative sentence for the offence concerning ST was two years. The indicative sentence for count 2 in which the victim was AM was six years with an indicative non-parole period of three years and nine months, in relation to count 5 concerning AM the indicative sentence was six years. As noted above the primary judge imposed an aggregate sentence of eight years with a non-parole period of five years.

19. [143]

    Counsel for the applicant submitted that the primary judge’s view of the seriousness of the three offences was “to some degree exaggerated”. In relation to the first offence concerning ST counsel submitted that in saying that the offence was not at the bottom of the range of objective seriousness, the offence could notionally be at some indeterminate higher point. In relation to count 2, it was submitted that the judge was wrong to say that it was “objectively a very serious offence”. In fact, those words were used to describe the offence the subject of count 5. In relation to the offence the subject of count 2 the primary judge found that the offence was at the “upper end of the mid-range of objective seriousness”.

20. [144]

    The judge was clearly right in saying that the offence against ST was serious and not at the bottom of the range of objective seriousness. He was not required to be more specific.

21. [145]

    Counsel submitted that because the duration of the assault the subject of count 2 was short, opportunistic, and ceased without any apparent protest on the part of the complainant, it should not have been assessed as rising to the upper end of the middle range of seriousness. In fact the complainant’s evidence was that the assault stopped when AM’s mother could be heard returning to the house. It was that that brought the conduct to an end.

22. [146]

    The judge was entitled to consider the offence the subject of count 5 to be very serious.

23. [147]

    The assessment of the objective seriousness of the offences was quintessentially a matter for the judge involving as it does a broadly based evaluation (Mulato v R [2006] NSWCCA 282 at [37] and [46]; R v JJ [2019] NSWCCA 148 at [40]). The primary judge’s assessment of the objective seriousness of the offences was well open to him.

24. [148]

    In the applicant’s written submissions, counsel contended that the sentencing judge did not take into account patterns of sentencing applicable to the offences against AM, being the sentencing pattern in 2011.

25. [149]

    Counsel did not provide any material to show that sentencing patterns for the offences in question in 2011 were materially different from those in 2017 when the applicant was sentenced. The Crown correctly submits that this contention was not advanced at the sentencing hearing before the primary judge where submissions on sentencing patterns focused on count 1 rather than counts 2 and 5.

26. [150]

    The applicant also submitted that the “commonality and proximity in time of the conduct [the subject of counts 2 and 5] calls for a high degree of concurrency in the sentences.” As the Crown submits, each offence relating to AM was a discrete episode, such that some accumulation was necessary. Questions of accumulation and concurrency involve “a significant measure of discretionary moderation” where, up to a point, sentencing judges may take different views of which neither can be said to be wrong (Nguyen v R (2016) 256 CLR 656; [2016] HCA 17 at [64]).

27. [151]

    The sentence imposed was not so severe as to lie outside the proper bounds of the exercise of the sentencing discretion. That is, it was not manifestly excessive. No error of principle has been identified. The sentence was one open to the primary judge and should not be disturbed.

Conclusion and orders

1. [152]

   For these reasons I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal against conviction and sentence.

   2. (2)

      Appeal dismissed.

2. [153]

   HARRISON J: I agree with White JA.

3. [154]

   R A HULME J: On my assessment of the whole of the evidence relevant to Counts 1, 2 and 5 it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. The acquittal of the applicant in respect of Counts 3 and 4 did not warrant a different conclusion in respect of Counts 2 and 5.

4. [155]

   I agree with the reasons provided by White JA and with the orders he has proposed.