BJ v R

1. [1]

   HARRISON J: I have had the considerable advantage of reading the draft judgment of Fagan J. Having reviewed the evidence from the trial for myself, I am unable to accept the applicant’s submission that the verdicts are, or that any of them is, unreasonable. It is in the nature of cases such as the present that there may be occasional inconsistencies, discrepancies and contradictions in articulating a recollection of events that occurred 20 or so years ago. None of the so-called inconsistencies, discrepancies and contradictions identified by the applicant appears to me in this case to be anything other than an inconsequential artefact of the complainant’s evidence of the charged acts, evidence that is otherwise plausible and credible. I otherwise agree with his Honour’s conclusions with respect to the other two grounds and with the orders he proposes.

2. [2]

   FAGAN J: The applicant seeks leave to appeal against his conviction and sentence for seven counts of sexual offending against his niece. He was charged with having committed the offences in late 1999 when the complainant, AS, was aged between eight and nine years and the applicant was 34. The applicant is the brother of AS’ mother. The offences were first reported to police in October 2018. The applicant was arrested on 8 May 2019 and tried in the District Court before Huggett DCJ in the District Court commencing on 18 February 2021. Verdicts of guilty were returned for all seven counts on the indictment on 8 March 2021.

3. [3]

   The particulars of each count may be summarised as follows. The indicative terms of imprisonment nominated by the learned trial judge when passing sentence are as indicated in brackets:

4. [4]

   Her Honour imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years, backdated to commence from 29 January 2021, to allow for a period before trial during which the applicant was bail refused.

5. [5]

   The grounds of appeal for which leave is sought are as follows:

6. [6]

   The complainant was the sole Crown witness who could give evidence of the alleged offending. The jury were properly directed that, for each count, in order to find the applicant guilty they would have to be satisfied beyond reasonable doubt that the complainant’s account of his actions was truthful and accurate. The unreasonable verdict ground is advanced on the basis that the jury ought to have had a reasonable doubt about the complainant’s evidence of counts 2 and 3 because, so it is argued, independent and objective evidence showed that those offences could not have been committed at the times and in the circumstances described by the complainant. The applicant submits that reasonable doubt concerning counts 2 and 3 should have given rise to reasonable doubt concerning the complainant’s evidence of the other five counts as well.

Evidence of significant dates

1. [7]

   The complainant related the offending conduct to the date of her birthday, the term dates for the 1999 school year and the wearing of seasonal uniforms at her school. She referred to the configuration of the Church premises at Unit 3,3 Salisbury Road, Castle Hill and to aspects of its fit out and equipment that she said were present at the time of the offending. It is necessary to refer to the independent evidence of dates in the 1999 school year and the evidence of when the Church commenced occupation of the subject premises, in order to assess the applicant’s arguments about impossibility.

2. [8]

   The complainant was born on 30 September 1990 and therefore turned nine on 30 September 1999. She commenced attendance at Pacific Hills Christian School at Dural on the first day of Term 3, Thursday 22 July 1999. Term 3 ended on Friday 24 September 1999. Students at the school wore winter uniform in Term 3 and changed to summer uniform from the commencement of Term 4, which was on Monday 11 October in 1999. Term 4 ended on Thursday 9 December that year.

3. [9]

   On 1 September 1999 the applicant returned to Sydney from the United States of America, where he had resided for several years. The applicant’s wife, whom he married in the United States in 1992, came to Sydney with him. He commenced his work as a youth minister with the Church immediately upon arriving in Sydney and he continued in that position until about mid-2001, when he and his wife moved to Brisbane.

4. [10]

   The complainant’s father gave evidence that in September 1992 he had joined with another family to establish the Northwest Church as an independent Christian church. He said that initially he and other Church members rented buildings in Castle Hill and Baulkham Hills for the purpose of carrying on Church activities but eventually the Church became an incorporated association and it purchased a property. In his evidence in chief the complainant’s father displayed very uncertain recollection of the premises used by the Church and of the dates of occupancy, leasing and, ultimately, purchase of the Salisbury Road building.

5. [11]

   In cross examination the complainant’s father was shown a lease of Unit 3,3 Salisbury Road (Ex 10). The term of the lease was four years with a commencement date of 1 October 1999. The lessor was The Hills Lodge Pty Ltd and the lessee was Northwest Church Incorporated, on whose behalf the complainant’s father had signed the document. It was put to him in cross-examination that the Church did not move into the Salisbury Road premises until after 1 October 1999. He responded as follows:

6. [12]

   The complainant’s father explained that The Hills Lodge was a hotel on Windsor Road and that the Church had used the hotel’s auditorium and meeting rooms at times. After some intervening cross-examination, the subject of whether the Church occupied the premises at 3 Salisbury Road prior to the commencement of the lease was returned to, in the following questions and answers:

7. [13]

   The complainant’s father was unable to recall whether the first service held by the Northwest Church in the premises at 3 Salisbury Road was on Sunday 3 October 1999. It was put to him that the Church conducted a service in the council chambers on 26 September 1999. He said he had no memory of that but no reason to doubt it. He said that the Church did use the Baulkham Hills council chambers for its services during “chunks” of time and that it was possible, although he could not remember, that use of the council chambers overlapped with use of the premises at 3 Salisbury Road.

8. [14]

   The applicant gave evidence. He said that when he commenced working with the Church in early September 1999 it had no settled place at which to conduct services and that these took place at The Hills Lodge, in the council chambers and in the homes of Church members. He later corrected this to exclude The Hills Lodge. The applicant said that the first service conducted at 3 Salisbury Road took place on Sunday, 3 October 1999. He said he did not attend on that day because he travelled by car to Gympie, Queensland with members of the Church youth group on a five day trip commencing on Thursday 30 September 1999. He said that he was not involved in administrative and business aspects of the Church’s affairs, such as securing the lease of the Salisbury Road property, however, he did assist with physical set up of the premises. That included transporting chairs and placing them in the building. The applicant agreed that he had entered the building for that purpose prior to 30 September 1999, in order to have chairs available for the congregation at the first service.

Complainant’s evidence

1. [15]

   The complainant’s evidence in respect of count 1 was to the effect summarised at [3] above. There was nothing inherently implausible about that evidence. Subject to consideration of the applicant’s arguments concerning unreliability that is said to have been demonstrated in relation to counts 2 and 3, it was reasonably open to the jury to accept the complainant on count 1 and to reject the applicant’s denial.

2. [16]

   With respect to counts 2-7, the complainant said that her father worked full-time for the Church in 1999 and that her mother did not work outside the home. During the latter part of 1999 the complainant’s mother would collect her and her brother, two years old, from school at about 3:00pm. On one or two days per week, usually Thursday and Friday, her brother had to be taken to an after-school activity. On those days the complainant’s mother would drop her at the Church premises at about 3:30pm, “for Dad to babysit”. She would remain there for one or two hours before being driven home by her father or picked up again by her mother.

3. [17]

   On the days when the complainant went to the Church premises after-school, she said that the applicant would “usually be there” and that as far as she knew he would be “just getting stuff prepared for the youth group that would happen on Friday nights”. The complainant gave the following evidence about her time at the Church on these afternoons:

4. [18]

   It was uncontroversial that the Church offices at 3 Salisbury Road were on Level 1. Two sets of stairs lead down to the ground level, one towards the front of the building and one towards the rear. At ground level there is car park in front of the building with a roller door opening onto a multipurpose room. Adjoining that further towards the rear of the building is a large auditorium with a kitchenette in the front left corner. To the left of the multipurpose room is the front stairwell, in which the stairs proceed upwards toward the rear, to a landing, and then from the landing upwards toward the front of the building to arrive at Level 1. On the ground level immediately adjoining the stairwell, behind it, there are two single toilet cubicles side-by-side, marked Men and Ladies. There is a narrow passageway outside the doors of the two toilets, to which access is through a door.

5. [19]

   The complainant said that on an afternoon in Term 3 of 1999, when her mother dropped her at 3 Salisbury Road after-school, the applicant approached her on Level 1 and offered to take her downstairs to get a snack. She said she was wearing her winter school uniform. The applicant took down the front stairs and then said, “We’re going to play a game”. The complainant described the offence as follows:

6. [20]

   The complainant said that during the sexual touching she sat cross-legged and the applicant knelt. She said that immediately after the event he threatened to hurt her brother and other members of her family if she told them what had occurred. She went to the kitchenette and got a snack, then returned upstairs. She did not tell her father what had happened because she “didn’t want to get into trouble”.

7. [21]

   The complainant said that on another occasion when she was dropped at the Church premises after-school, wearing the winter school uniform, the applicant was present and said he “wanted to take me downstairs for a snack”. They proceeded down the front stairs and upon reaching ground level the following took place:

8. [22]

   The complainant said that she and the applicant were in the same positions under the stairs as they had been for the events described in relation to count 2. She said that the indecent assault “wasn’t very long, because he heard a noise”. He then told her to run and get a snack. She said that he threatened to harm her brother if she said anything. She returned to Level 1 via the rear stairway. She saw her father there but did not say anything to him because she was “trying to protect [her] brother”. The complainant said that there were only two occasions when sexual touching took place under the front stairs. On the occasion of count 3 she was eight years old, close to her ninth birthday.

9. [23]

   The complainant said that count 4, as described at [3] above, occurred when she was at the Church premises after school one afternoon and the applicant “cornered” her as she came out of the female toilet cubicle on the ground level. She said that on this occasion she was wearing her summer school uniform. She had just turned nine and the event took place in Term 4. The complainant said that, having taken her into the male toilet cubicle and lowered his jeans and underpants, the applicant held the back of her head and moved his penis back and forth in her mouth, groaning. He did not ejaculate. She was terrified. When he stopped he said that if she told anybody he would hurt her father. He told her to go back into the female cubicle and count to 50 before returning upstairs. She followed that instruction. She did not say anything to her father because of the threat, nor to anyone else because she was “ashamed and embarrassed”.

10. [24]

    The complainant said that count 7, the second instance of oral intercourse, ended with the applicant ejaculating and, like count 5, occurred in Term 4 of 1999. She gave evidence, for the limited purpose of establishing the nature of the relationship, that there were five or six further occasions of oral intercourse that occurred during 2000.

11. [25]

    The complainant said that the two instances of digital penetration alleged in counts 5 and 6 occurred when the applicant took her forcibly into the male toilet cubicle. Both events occurred during Term 4 of 1999. On each occasion the applicant made threats to harm her brother if she told anybody what he had done. The applicant gave evidence, again limited to establishing the sexual relationship that the applicant maintained with her, that he digitally penetrated her with one finger about three or four times in total and with two fingers about five or six times in total. All of his sexual contact with her had ceased by the end of 2000.

12. [26]

    The complainant said that on the occasion when the applicant digitally penetrated her with two fingers in count 6, she was wearing a sports uniform. When the applicant left the toilet cubicle he told her to count to 20 before leaving herself. When he had gone she went into the female cubicle, cried for some time then washed her face and “went behind the stage in the auditorium and curled up in a ball and just lay there curled a while until my mum came to get me”. In cross-examination she said that musical instruments were kept behind the stage.

13. [27]

    The complainant first told her parents of the applicant’s conduct in about December 2009 or January 2010. She only said that the applicant had “touched her there” but did not give any details.

14. [28]

    It was put to the complainant that none of the sexual acts that she described had taken place. With respect to the fit out and equipment of the auditorium at 3 Salisbury Road, it was put that there was no stage behind which she could have “curled up” after the offence alleged in count 6. She said that there was a stage, made of timber and painted black, the surface of which was raised up above the general level of the floor in the auditorium. It was also put to the complainant that there were no musical instruments owned by the Church and stored behind the stage, as she described, in 1999. It was suggested that in that year the singing of the congregation was solely “a cappella”, that is, unaccompanied. The complainant maintained that there were guitars, drums and a keyboard kept behind the stage.

Ground 2 – unreasonable verdict

1. [29]

   I will consider ground 2 first because the applicant submits that if it should be upheld he would be entitled to have the verdicts of guilty quashed and verdicts of acquittal substituted, irrespective of the Court’s view on ground 1. In support of ground 2 the applicant submits that the jury ought to have identified the following discrepancies and/or contradictions in the complainant’s evidence, which should have caused them to have a reasonable doubt about her evidence on all counts. First, it is submitted that on the evidence of the complainant’s father and of the applicant, the jury should have been satisfied that the Church was not in occupation of 3 Salisbury Road before 1 October 1999, the date of the lease. As Term 3 at the complainant’s school ended on Friday, 24 September 1999, it was submitted that during that term, when she would have been wearing her winter uniform, there could not have been any occasion when she would have been dropped off at 3 Salisbury Road after school and stayed there while her father, other Church employees and the applicant were present.

2. [30]

   That contention is insubstantial. The complainant’s father did not exclude the possibility that he and other Church personnel commenced occupancy of the premises prior to the date on which lease was signed and from which the term of the lease ran. He described an anterior, enduring relationship with the landlord, arising from the Church’s use of other premises owned by The Hills Lodge. The complainant’s father thought it possible that, consistent with that long-term relationship, the Church may have been allowed to occupy 3 Salisbury Road before the lease was signed and before the term commenced. He said that rent would have been paid for such occupancy. There was nothing far-fetched about that evidence. There is no reason why the jury should have thought that a landlord would not allow occupation to be taken up before execution of the lease, by a prospective lessee with whom the landlord had an existing relationship.

3. [31]

   The fact that the applicant’s father was unable to produce documents recording any such pre-lease occupancy need not have been treated by the jury as making it improbable. The jury would have perceived that the complainant’s father was pressed about his inability to produce such documents in circumstances where he had been given no notice of the issue, which related to a transaction that had taken place more than 20 years earlier. Further, the jury might well have considered that an informal occupancy, in anticipation of the execution of a lease, may not have been separately documented.

4. [32]

   Secondly, the applicant submits that photographs of the auditorium at 3 Salisbury Road taken in late 1999 showed that there was no stage behind which the complainant could have “curled up”, as she alleged in connection with count 6. The complainant described the events of that count as having occurred in Term 4, that is, on some date between 11 October and 9 December 1999. The complainant’s father said that the stage comprised a number of box-like units that could be moved around. He could not recall if the stage units were in the auditorium in 1999. He was shown a photograph of the auditorium (Ex 11) in which no stage was depicted. The date of this photograph was not clearly established. The applicant said that was taken in 1999. The complainant’s father said that the stage units may have been in another part of the auditorium, out of view of the camera, when this shot was taken.

5. [33]

   The complainant’s father was shown another photograph (Ex 12) that he said was taken “probably just as we moved in”, which was before 3 October 1999, on any view. The photograph in Ex 12 showed substantially the whole of the auditorium floor and no stage units appeared to be present. On the father’s evidence, the photograph is not inconsistent with the complainant’s account that the stage was present on a date during Term 4, between 11 October and 9 December 1999, when the sexual assault alleged in count 6 took place.

6. [34]

   The applicant said that from his memory and from the photographs there was no stage in the auditorium in 1999. It would have been apparent to the jury from his answers that in this respect he relied upon the absence of depiction of a stage in any of what he understood to be contemporaneous photographs. He said that he could not “rule it out, 100%” that there was some form of stage there from about mid-October 1999. Thus, neither the photographs nor the evidence of the complainant’s father nor that of the applicant contradicted the complainant’s evidence about curling up behind the stage after the sexual assault alleged in count 6, on a day during Term 4 in 1999.

7. [35]

   The applicant said that the Church did not use musical instruments and did not remember there being any in the Church building in 1999. The complainant’s father said that the singing of the congregation at Sunday morning services was unaccompanied but that the Church had guitars, keyboards and an amplification system that were used at other times. He was not able to recall specifically whether such instruments were in the premises in 1999. He did not recall there having been a drum kit. The complainant’s father did not recall musical instruments having been stored on or near the stage. He said they might have been stored under the rear stairway or on the upper level. He had no recollection about this specifically in relation to 1999. The evidence of the applicant and of the complainant’s father did not incontrovertibly refute the complaint’s recollection that the space behind the stage, in which she recalled having concealed herself after she was assaulted in the manner alleged in count 6, was a place where musical instruments were stored.

8. [36]

   The jury saw and heard the complainant give evidence, by audio visual connection to a location separate from the courtroom, over three days. Their opportunity to assess her credibility and accuracy in those circumstances gave them a distinct advantage over this Court, reviewing the evidence on transcript. All of the points made by the applicant about whether the complainant’s evidence ought not to have been accepted concern matters that the jury was well able to resolve, in the exercise of their proper function. No matter of fact was overwhelmingly established by evidence in contradiction of her. It was open to the jury to regard some of the matters raised by the applicant on appeal as peripheral, so that even if they felt a doubt about the detail it would not have caused them to doubt the substance of the experiences that she described, graphically, as constituting the commission of each offence. Examples of peripheral details are whether there was a stage behind which the complainant could have curled up after count 6 and whether musical instruments were located there.

9. [37]

   The applicant has not shown that the verdict was unreasonable, or unsupported, having regard to the evidence, according to the familiar test and principles stated in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. Leave to appeal should be granted in respect of ground 2 but that ground should be rejected.

Ground 1 – refusal to discharge jury

1. [38]

   The chronology of events upon which the applicant has argued ground 2 is as follows:

2. [39]

   Sections 53B and 53C of the Jury Act 1977 (NSW) provide as follows, so far as presently relevant:

3. [40]

   Her Honour stated that her initial view of the situation was that par (d) of s 53B was engaged and that it was necessary to determine whether to discharge that juror or to stand the proceedings down until Wednesday 10 March when all 12 jurors would be available to continue their deliberations. Her Honour recognised that if the individual juror should be discharged, the discretion to continue with 11 under s 53C or to discharge the whole would be enlivened. The Crown took no position on any of these alternatives. Defence counsel argued strongly, from the outset, that the whole jury should be discharged. There is nothing in the trial record from which it could have been inferred that the juror who had commitments for the following Monday and Tuesday was inclined to acquittal. If the applicant or his legal representatives had perceived such an inclination it would be expected that the alternative of retaining the juror and adjourning deliberations until the following Wednesday would have been supported. Similarly, it would be expected that such an adjournment would have been sought if the concern of the defence was to retain a full complement of 12 jurors. There was no application for adjournment. For reasons known only to themselves, the applicant and his advisers sought only one outcome from the situation, namely, discharge the whole jury to terminate the trial without verdict.

4. [41]

   Shortly before 4:00pm on Friday 5 March, her Honour determined the issue arising under s 53B(d) and ordered, in the absence of any opposing submission, that the individual juror be discharged. In her reasons for the individual discharge, her Honour said this:

5. [42]

   Her Honour then exercised her discretion under s 53C by ordering that the trial continue with 11 jurors. Her reasons for doing so were as follows:

6. [43]

   The individual juror who was unavailable for 8 and 9 March was recalled to court, thanked for his service and discharged. The remaining 11 jurors were permitted to separate at 4:04pm. They resumed deliberations on Monday 8 March by about 10:00am. They returned verdicts of guilty on all counts at 11:04am.

7. [44]

   In ground 1 the applicant does not challenge the learned trial judge’s decision under s 53B(d) to discharge the individual juror. He could hardly do so given that, at trial, defence counsel had not asked her Honour to adopt the only alternative to the individual discharge, which would have been to adjourn the jury’s deliberations for two days. Ground 1 is confined to an attack upon her Honour’s decision under s 53C to continue to verdict with 11 jurors. Although that decision clearly involves the exercise of discretion, it is established that the duty of this Court is not merely to examine the trial judge’s reasons, to verify that correct principles were applied, but to determine for itself whether, in the circumstances, the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice: BG v R [2012] NSWCCA 139 at [101].

8. [45]

   The principles upon which a trial judge is required to exercise the discretion to continue a trial with a reduced number of jurors were considered in Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52. When that case was decided, the issue arose under s 22 of the Jury Act. McHugh J identified the following considerations as relevant at [29]:

9. [46]

   In the same case, Kirby J said this at [66]:

10. [47]

    The applicant’s first submission concerning alleged error in the trial judge’s exercise of the s 53C discretion on the information that was before her is as follows:

11. [48]

    It is inaccurate to characterise the state of affairs on the afternoon of Friday, 5 March 2021, after approximately 13 hours of deliberations, as conveying the appearance “of some dissent within the jury room”. All that could be said is that the jurors had not at that stage reached unanimity. That is always the case when the question of whether to continue with a reduced number of jurors arises during the course of deliberations. The fact that the jury were not yet in agreement was neutral. It could not weigh one way or the other upon whether the order for continuance should be made. It was nothing more than one of the circumstances that called for the judge to make a decision under s 53C

12. [49]

    The submission that “the extent of the dissent was not known” is presumably intended to mean that neither the judge nor the parties knew whether jurors held opposing views with any particular degree of determination or whether individual jurors’ positions were entrenched to the point where it could be said that there was a division of “votes”, in some unknown proportion. That describes the confidentiality of jury deliberations throughout any trial. Lack of knowledge of the stage of discussion in the jury room is a given of any case in which the discretion under s 53C has to be exercised after the jury have retired. It is another neutral factor, not one that could be balanced for or against an order to continue with a reduced number of jurors.

13. [50]

    The applicant’s second argument as to error in the exercise of the discretion is as follows:

14. [51]

    It may reasonably be assumed that most members of the community and hence most jurors would have strong feelings of revulsion towards forced oral intercourse by an adult male with a nine-year-old girl, or forced digital penetration – where proved. Jury trial proceeds on the basis that jurors will follow the trial judge’s directions to determine, on the evidence, whether it has been proved beyond reasonable doubt that the alleged crime, however revolting or horrific, was committed by the accused who is in their charge. It is a premise of the procedure that jurors will likewise heed the customary direction not to allow emotions or feelings of disgust to deflect them from detached and reasoned assessment of the evidence and arguments. There is no basis for imputing that those directions would have been any less likely to be followed in this case by the remaining 11 jurors than would be the case if all 12 had been retained. If this had been a significant concern in the applicant’s perception, one would have expected his primary application to the trial judge to have been for an adjournment of two days in order to retain the 12th juror, rather than for all to be discharged and the trial aborted.

15. [52]

    There is no substance in the applicant’s criticisms of the learned judge’s decision to order that the trial continue to verdict with 11 jurors. The procedural circumstances in which the decision was made and the reasons given by her Honour show that this was a sound exercise of discretion, considered, practical and fair.

16. [53]

    In BG v R a jury deliberating upon three counts sent messages to the trial judge, over the course of the first full day of their discussions, to the effect that that they were unable to reach a unanimous verdict. At the end of that day the trial judge discharged one juror who said that he was under considerable stress about having to continue with deliberations the next day because of the demands of a business in which he was self-employed. The trial judge ordered that the trial continue with 11 jurors. During the second day of deliberations the jury again informed the judge that they were unable to reach a unanimous verdict. After they had been in deliberation for a total of eight hours, the trial judge gave a majority verdict direction. About half an hour later they returned verdicts of guilty by majority of 10 to 1.

17. [54]

    Adamson J (McClellan CJ at CL and McDougall J agreeing) held in BG v R as follows:

18. [55]

    Adamson J held that there was no basis for inferring that the single juror who had been discharged had been disingenuous in the reasons he had given for seeking his release, or that the jury as a whole or its foreperson had collaborated in misleading the trial judge about his reasons. There was no disclosure of the split in voting at the time of the decision to continue with 11 jurors, nor any disclosure of the views of the discharged juror. Neither the timing of the majority verdict nor its composition supported an inference as to how the discharged juror would have voted. The case fell within the first of the three categories listed by her Honour at [103]. The only matter that had been raised as giving rise to a risk of miscarriage of justice was that the discharged juror may have been a dissentient. There was no basis for such an inference.

19. [56]

    In the present case the applicant submits as follows:

20. [57]

    I reject that submission. The suggested inference of how the discharged juror would have voted cannot reasonably be drawn. It is not uncommon in the experience of criminal trial courts that unanimity is achieved quite quickly upon resumption of deliberations after a jury have been permitted to separate over a weekend, or for a public holiday or during some other forced interruption. It may be that when jurors have been unable to agree after some hours of discussions, the opportunity for individual reflection, away from the intensity of debate in the jury room, facilitates reconsideration of views and formation of consensus. The fact that juries not uncommonly make quick decisions on Monday mornings, without any change in composition at the point of separating on the preceding Friday, shows that there is no justification for imputing that in the present case the individual juror who was discharged must have been an opponent of the verdicts that were returned.

21. [58]

    The applicant advanced the following further argument (emphasis added):

22. [59]

    This is a repetition of the first submission but with intrusion of the concept of “a fair-minded observer”. There is no occasion to introduce any such concept or test. The question is whether this Court, not a fair-minded observer, can infer that the discharged juror would have had and maintained a view contrary to that which the jury agreed upon after his departure. In determining whether that inference should be drawn, the Court must draw upon its experience and understanding of jury trial procedure. The only relevant fair-minded observer would be one who had the same knowledge and experience of criminal trials as the Court, making the whole concept of such an observer superfluous.

23. [60]

    This case falls within the first of the three categories identified by Adamson J in BG v R. It has not been shown, in retrospect, that any risk of a miscarriage of justice has arisen from the learned trial judge’s order that the jury of 11 continue with their deliberations to verdict. Ground 1 should be rejected.

Ground 3 – sentence

1. [61]

   Count 1 was the least serious offence. Prior to that offence the applicant had learned that the complainant was having social difficulties with her peers at school and that this was undermining her self-esteem and confidence. It is an inescapable inference that the applicant saw in her a child upon whom he could prey for the depraved form of sexual gratification that he apparently craved and whom he could intimidate to keep her silence.

2. [62]

   The learned trial judge found, incontrovertibly, that in committing the offences the applicant “grossly abused and exploited the familial trust” of the complainant’s parents, who were his sister and brother-in-law as well as being closely associated with him in the same church. The objective gravity of the offending in each of counts 2-7 was very considerable. Her Honour made this finding:

3. [63]

   That conclusion could not be controversial. Although the offences all occurred within a period of only about four months in late 1999, as her Honour held, they could not be regarded as isolated. Counts 2-7 in combination amounted to concerted and concentrated sexual abuse of the complainant, causing her acute degradation at the time and long lasting psychological harm thereafter. To the complainant, the four months must have seemed a lifetime of misuse and insecurity.

4. [64]

   As her Honour recorded, all of counts 2-7 were terrifying to the complainant. The instances of digital penetration were excruciatingly and lastingly painful. The oral intercourse disgusted her. Each event was preceded by fear and revulsion for what was to come. Each was accompanied by forceful restraint and each was followed by threats of harm to the complainant’s loved ones, causing persistent anxiety.

5. [65]

   The learned judge gave full weight to the complainant’s compelling victim impact statement, in the following passage:

6. [66]

   The applicant’s subjective circumstances, as found by her Honour, were unremarkable. His wife and his son, who was in his late teens at the date of sentencing, remain resident in Queensland. The applicant has no prior criminal convictions and her Honour accepted that he was entitled to some lenience on account of good character, although limited weight could be accorded to that “in light of the nature and circumstances of the offences he committed”. The applicant continued to deny his guilt in the sentence proceedings. He exhibited no remorse or insight into the consequences of his offending. Her Honour accepted that he had not offended again over the 20 years since his abuse of the complainant and that “his risk of reoffending is low and his prospects of rehabilitation reasonable”.

7. [67]

   The last mentioned findings were generous to the applicant. His exploitation of the complainant, accompanied by physical force and intimidation, was merciless. Any human being in his position would understand that such acts would cause fear, bodily harm and psychological disturbance to a child of the complainant’s tender years. Inducement of fear was evidently a conscious objective. The depravity of overpowering and forcing himself upon a defenceless young person for sexual pleasure was compounded by the disgraceful betrayal of his own sister and brother-in-law, that he would do this to their precious child. Added to all these considerations was the applicant’s remarkable hypocrisy. Having forced his penis into the mouth of a nine year old girl in a toilet cubicle and threatened violence if she spoke, he was able to button up his trousers, step out of the lavatory into the auditorium, and minister to the youth of his church on the observance of Christian faith. It would have been open to the learned judge to have had greater reservations about the applicant’s future prospects and the danger that he represents to people who may think they know him, in view of what his posture of piety has concealed in the past.

8. [68]

   The applicant’s submissions on the manifest excess ground rested almost entirely upon comparison with this Court’s decision in R v Neville [2018] NSWCCA 125. In that case a Crown inadequacy appeal was upheld in respect of a respondent who had been sentenced after trial on three counts of sexual intercourse with his daughter aged 3-4 years and three counts relating to pornography of very young children. Two of the counts of sexual intercourse were particularised as anal penetration of his daughter while she was restrained, for which the indicative sentence at first instance was 8 years imprisonment in each case. The third such count concerned oral intercourse, for which the sentencing judge had indicated 7 years imprisonment. An aggregate for all offences of 13 years with a non-parole period of 8 years and 6 months was fixed in the District Court. In this Court indicative sentences of 11 years for each of the counts of anal intercourse were nominated and 9 years and 6 months for the oral intercourse. The inadequacy appeal was allowed and an aggregate sentence of 15 years with a non-parole period of 10 years was substituted.

9. [69]

   The applicant’s argument is that the offending in R v Neville was more objectively serious than in the present case, that in other respects the two cases are comparable and that therefore the sentence under appeal, of 14 years with a non-parole period of 10, should be regarded as excessive. This comparison is unpersuasive. Without descending to detail, there are a number of differences between the combination of sentencing considerations in the two cases respectively. Further, an argument from a single sentencing precedent is of little weight. Having regard to a much wider range of sentencing decisions in this Court, concerning offences against both s 61M(2) and s 66A, it cannot be said that the aggregate sentence under appeal is shown to be manifestly excessive by reason of discordance with the outcomes in other cases.

10. [70]

    For the purpose of determining this ground it is not necessary to cite any authoritative statement of principle beyond that of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, at [6] as follows:

11. [71]

    Taking into account all relevant factors, the aggregate sentence imposed by Huggett DCJ was not manifestly excessive. Full-time custody was undoubtedly called for and the length of the term imposed is not unreasonable or plainly unjust. Ground 3 should be rejected.

Orders

1. [72]

   I propose the following orders:

   1. (1)

      Grant leave to appeal against conviction and sentence.

   2. (2)

      Dismiss the appeal.

2. [73]

   YEHIA J: I have had the advantage of reading the draft judgment of Fagan J. Having conducted an independent assessment of the trial evidence for myself, I do not accept that the verdicts are unreasonable. I agree with his Honour’s conclusion that ground 2 should be rejected. I also agree with the proposed orders with respect to grounds 1 and 3 and with his Honour’s reasons.