FX v R; GX v R

1. [1]

   JOHNSON J: The Applicants, FX and GX, were tried jointly at the Campbelltown District Court in 2018 before her Honour Judge O’Rourke SC and a jury upon an indictment charging each of them with sexual offences committed against the same complainant in a period between 1998 and 2005.

2. [2]

   FX and GX are brothers. The complainant is their cousin. Section 578A Crimes Act 1900 prohibits the publication of any matter which is likely to lead to the identification of the complainant. I will refer to her as Sarah, which is not her real name. As the Applicants are related to the complainant, publication of their names would serve to identify the complainant. In addition, GX was under 18 years of age at the time of the incidents giving rise to the charges against him and FX was under 18 years at the time of some of the incidents for which he was charged so that each of them should not be identified: s.15A Children (Criminal Proceedings) Act 1987. Accordingly, pseudonyms are used in this judgment to describe the Applicants to guard against identification of Sarah and each of the Applicants. FX and GX are not the true initials of the Applicants.

3. [3]

   Sarah was born in June 1992. In the period of the alleged offending between 1998 and 2005, Sarah was aged about six to 12 years.

The Charges and Verdicts

1. [4]

   FX and GX stood trial together at Campbelltown District Court between 28 May 2018 and 13 June 2018 upon an indictment containing 21 offences of a sexual nature alleged to have been committed against the complainant. Counts 1-10 and 19-21 concerned offences allegedly committed by FX between 1998 and 2005 when he was aged between 15 and 21 years and Sarah was aged between six and 12 years. Counts 11 to 18 concerned offences allegedly committed by GX between 2002 and 2005 when he was aged between 15 and 17 years and Sarah was aged between 10 and 12 years.

2. [5]

   On 5 June 2018, at the close of the Crown case, the jury returned verdicts of not guilty (by direction) in relation to Counts 2, 6 and 21 against FX. On 13 June 2018, FX was found guilty of each of the remaining charges against him.

3. [6]

   On 13 June 2018, GX was found guilty of each of the offences charged against him.

4. [7]

   The following table sets out the counts in the indictment and the verdicts returned by the jury with respect to each of FX and GX:

Sentences Imposed on FX and GX

1. [8]

   FX and GX were each sentenced by her Honour Judge O’Rourke SC on 29 November 2018.

2. [9]

   FX was sentenced to an aggregate term of imprisonment of six years comprising a non-parole period of three years and six months commencing on 13 June 2018 and expiring on 12 December 2021 with a balance of term of two years and six months commencing on 13 December 2021 and expiring on 12 June 2024. The sentencing Judge nominated the following indicative sentences with respect to FX:

3. [10]

   GX was sentenced for each offence to a three-year community corrections order commencing on 29 November 2018.

Grounds of Appeal

1. [11]

   By Notices of Appeal filed on 30 August 2019, each of FX and GX appealed against conviction relying upon the following identical grounds of appeal:

2. [12]

   Neither FX nor GX sought leave to appeal with respect to sentence.

3. [13]

   FX and GX require leave to appeal in relation to each of the grounds as they involve mixed questions of law and fact: s.5(1)(b) Criminal Appeal Act 1912. Leave is also required under Rule 4 Criminal Appeal Rules with respect to Grounds 3, 4 and 5.

Evidence at the Trial

1. [14]

   The following narrative is drawn from the Crown submissions and trial summary which outlined the trial evidence in a manner which was not challenged before this Court. In addition, given the grounds of appeal, extracts from the cross-examination of each Applicant are included in this narrative.

The Crown Case Against FX and GX

1. [15]

   FX and GX are the first cousins of Sarah. As mentioned earlier, Sarah was born in June 1992. FX was born in October 1983 and GX was born in August 1987.

2. [16]

   When she was young, Sarah lived with her parents and older brother ("her immediate family") in western Sydney. For a time, they lived in a duplex house with the Applicants and their parents. In 1997, Sarah and her immediate family moved to another address in western Sydney. They continued to see the Applicants and their parents at least once a week.

3. [17]

   On 11 December 1998, Sarah's brother celebrated his 14th birthday at their home. The celebration was attended by Sarah's extended family including the Applicants. After the cake was cut, Sarah was in the lounge room watching television with FX. FX sat down next to her on the lounge, his leg was touching hers. He pulled his clothing down past his genital region, exposing his penis. He took Sarah’s hand, placed it on his penis and moved it back and forth (Count 1). When he had finished, FX told Sarah she should not tell anyone about what had happened or they would both be in trouble. Sarah was six years old.

4. [18]

   In April 1999, Sarah and her immediate family moved to another address in western Sydney. Sarah gave evidence that there were a number of occasions when FX would take her into another room of that house and abuse her. There was an occasion in the summer of 2000 when all of her cousins were at her home after going for a swim at a leisure centre. FX took her to the storage area of the house, which was also a wine cellar. The lights were off. FX turned her around so her back was to him. He took her hand and placed it on his penis, making Sarah rub it back and forth for some time before she heard noises upstairs and became panicked (Count 4).

5. [19]

   There was an occasion when Sarah's extended family, including the Applicants and their parents, came over to the western Sydney home for lunch. While everyone was in the kitchen having lunch, FX took Sarah upstairs to her room. He sat on the edge of her bed and removed his shorts or pants before taking Sarah's hand and making her rub his penis (Count 3). In cross-examination, Sarah agreed that the layout of the home was such that everyone seated in the kitchen would have seen her and FX go upstairs.

6. [20]

   Sarah's father owned a business in partnership with the Applicants' father which they operated from a factory in western Sydney. Sarah gave evidence that she thought the factory opened in 1999. There was an occasion when she and the two Applicants visited the factory. Their fathers were also present. GX was upstairs with Sarah's father and uncle. She and FX were alone on the ground floor of the factory. They were under a metal staircase. FX pulled down his shorts and made Sarah rub his penis (Count 5). Sarah said she recalled FX laughing but did not know why. She felt ashamed and guilty. In cross-examination, Sarah agreed that if someone had walked down the stairs they would have seen them.

7. [21]

   In 2001, Sarah would, on occasion, sleep over at the Applicants' home in the school holidays. She did so, in particular, in June of that year. Sarah slept in a bedroom adjacent to FX's bedroom and next to GX's bedroom. Sarah gave evidence that there were occasions, “too many times to count”, when she would be in FX's bedroom and he would have her stand next to his bed while he was lying down, and he would rub his hand back and forth on her vagina under her clothes. Sarah later said that on one occasion when such an incident occurred “it was school holidays and I remember it being cold” (Count 7).

8. [22]

   There was an occasion when Sarah was at the Applicants' home when she and FX were in his bedroom playing a computer game. He placed her on his lap. As she played the game, he held her by the hips and moved her back and forth over his lap. He kissed her on the neck (Count 8).

9. [23]

   When Sarah was seven or eight years old, there was an occasion when she was at the Applicants’ home. While everyone else was upstairs, FX took her downstairs to the laundry which was off the garage. He pulled his shorts down, exposing his penis. He took Sarah's hand, placed it on his erect penis and made her rub it back and forth. He tried to kiss Sarah and put his tongue in her mouth (Count 9).

10. [24]

    In October 2002, the Applicants and their parents moved to a coastal town in New South Wales. Several months before they moved, Sarah, the Applicants and their families were at the home of a client of Sarah's father and uncle. The adults were out on a balcony talking while Sarah, her brother and the two Applicants were in the lounge room watching television. Sarah and FX were sitting on a two-or-three-seater couch next to each other. Her brother and GX were each on a single seater couch on either side of the two or three-seater couch. Sarah was talking to FX about a book she was reading. He took a blanket or throw, placed it over their laps and put some cushions on top of it. He then put his hand under the blanket and rubbed her vagina back and forth (Count 10).

11. [25]

    The first incident with GX occurred in the Applicants’ home before the Applicants moved to the coastal town. Sarah said she thought it was several months before the move. She had been in FX's bedroom with him and her brother. GX was in his bedroom, which was across the corridor. He told Sarah to “Come here”. GX grabbed her hands, pulled her onto the bed and sat her on his hips before holding Sarah's hips and rocking her back and forth over his own hips. Sarah felt his penis against her body (Count 11). As to this occasion, Sarah said “I was very confused and surprised, and I didn't understand what was going on. I didn't know if he knew what [FX] was doing”.

12. [26]

    There was an occasion when Sarah, the Applicants and their parents went to the home of another family for a barbeque. In the afternoon, after they had eaten, Sarah was alone with GX at the back of the house. He took her by the hand and led her into an area of long grass. GX pulled his pants down past his waist exposing his penis. He took her hand and placed it on his penis, forcing her to rub it back and forth. He turned her around so that her back was towards him and moved his penis back and forth between her thighs (Count 12). In cross-examination, Sarah agreed that if someone had come into the backyard they would have seen what occurred.

13. [27]

    When she was 10 or 11 years old, Sarah went to visit the Applicants and their parents at their home in the coastal town. The main house was single storey. The Applicants' bedrooms were at one end of the house off a corridor. Sarah heard her aunt talking to her from the kitchen at the other end of the corridor. When she went to walk up the corridor, GX who was in his bedroom, told her to “Come here”. He was sitting on the edge of his bed facing the doorway. He lowered his shorts and began masturbating in front of her. She ran away (Count 13).

14. [28]

    On another occasion not long after, Sarah accompanied her brother to the coastal town where he was making a delivery. She and her brother stayed in a small caravan set up in the shed on the Applicants' property. Sarah woke one morning to find GX standing near her bed. The television was on and a music video by The Offspring performing the song “Hit That” was playing. GX took Sarah's hand, put it into his shorts and made her rub his penis back and forth (Count 14). She disputed the suggestion put to her in cross-examination that there was no television in the caravan.

15. [29]

    There was another occasion, during the same trip, when GX took Sarah to a smaller cabin on the property. He laid Sarah down on a couch in the living area, he then laid down on top of her and moved his body back and forth over her (Count 15). He kissed her and put his tongue in her mouth (Count 16). After a while, GX took Sarah to another part of the cabin where, having removed his shorts, he placed his penis between her thighs and moved it back and forth (Count 17). He then grabbed her hand and pulled her to the adjacent bathroom where he ejaculated into the toilet (Count 18).

16. [30]

    Sarah described an occasion at the coastal town when she was alone with FX in a shipping container that had been converted into an office. She was about 12 years old. FX was sitting in a chair and made Sarah sit on top of him, before moving her back and forth over his genital region (Count 19). He kissed her, putting his tongue in her mouth. The next thing Sarah remembered was being in front of FX who had pushed her down to a kneeling position and was attempting to put his penis in her mouth. She resisted and tried to move away from him. The tip of his penis went into her mouth for a few seconds (Count 20). FX then masturbated himself and ejaculated onto a tissue.

17. [31]

    Sarah was asked in cross-examination if she could describe FX's penis. She described it as “Uncircumcised. He had pubic hair. It was light-brown nude colour”. In re-examination, Sarah said that she was six years old when she first saw FX’s penis.

18. [32]

    Sarah's father and uncle (the Applicants' father) had a business-related falling out. As a result, the two families had no contact for a number of years. Contact between them resumed after Sarah's father later became ill.

19. [33]

    Sarah and her mother (SX) each gave evidence that in 2010, when Sarah was 18 years old, she told her mother that FX and GX had abused her. She did not provide further details. SX offered to take her to see a psychologist or psychiatrist, but told her not to tell her father.

20. [34]

    In November 2014, Sarah's father was diagnosed with pancreatic cancer. As a result of his illness, the Applicants and their parents visited her father and in the course of doing so Sarah would, on occasion, see FX and GX. She could not handle pretending to be friendly with the Applicants and would leave the room when they came to visit.

21. [35]

    Some time later, GX started attending the factory where Sarah and her brother both worked. Sarah would become distressed upon seeing him at her workplace.

22. [36]

    Sarah married a young man who had commenced working in the family factory in 2013. Sarah's husband and brother both commented on her behaviour around the Applicants. She told her husband and brother that she could not tell them why she behaved as she did. Not long after her father was diagnosed with cancer, Sarah disclosed the abuse to her husband, but did not discuss any details.

23. [37]

    Sarah’s mother, brother and husband each gave evidence that, after contact between the two families resumed, they had observed a change in Sarah's behaviour on occasions when one or both of the Applicants were in her presence.

24. [38]

    After her father's death in July 2015, Sarah told her mother that FX and GX had sexually abused her between the ages of six and 12 years old. Sarah later met with her mother, brother and husband where she told them the same thing. Sarah said she believed that the later meeting took place in about September 2015.

25. [39]

    The evidence of Sarah’s mother, brother and husband supported Sarah's evidence in relation to both the timing and content of the disclosures made to each of them. SX described Sarah as being very upset during the meeting with herself, her brother and her husband.

26. [40]

    On 11 October 2015, SX (Sarah’s mother) sent GX a text message asking that he and FX come to her house alone. At this time, FX was 32 years old and GX was 28 years old. The three persons had a conversation in the kitchen. Unbeknown to either of the Applicants, SX recorded the conversation on her iPad (“the iPad conversation”). The iPad conversation, edited by agreement between the parties, became Exhibit D (a CD of the audio recording) together with Exhibit E (the transcript of the recording). As will be seen, objection was taken before trial to the tender of the iPad conversation, but the trial Judge ruled that it should be admitted into evidence at the trial of the Applicants. That ruling is not challenged in this Court.

27. [41]

    During the iPad conversation, SX told the Applicants that she needed their complete honesty. She said that Sarah had revealed that they had each been involved in inappropriate sexual behaviour with her, that she was five years old when it started and 12 when it stopped and that it happened both “here” and in the coastal town.

28. [42]

    Each of the Applicants said that he did not know what SX was referring to, that he could not recall any such incidents. GX said “If I did maybe accidentally touch, not deliberately”. SX told them that Sarah had told her that it was deliberate and that it was “Serious stuff. That's worthy to go to the police with”. SX said that Sarah had been finding it hard to deal with having contact with them since her father's illness. FX said he had noticed that every time he came into the room, Sarah would walk away.

29. [43]

    Each of the Applicants made what the Crown alleged were admissions during the iPad conversation. Each of the admissions made by the Applicants was confined to his own conduct. The iPad conversation including the following (Exhibit E, pages 9-10):

30. [44]

    A little later, the following was said (Exhibit E, pages 12-13):

31. [45]

    Soon after, the following was said (Exhibit E, page 14):

32. [46]

    A little later, the conversation including the following (Exhibit E, page 17):

33. [47]

    A little later, FX said (Exhibit E, page 18):

34. [48]

    The Applicants said the following things during the balance of the iPad conversation (Exhibit E, pages 19-21):

35. [49]

    On 10 January 2016, Sarah reported the matters to police.

36. [50]

    On 14 September 2016, Sarah participated in two lawfully intercepted telephone calls - one with each Applicant. The recording of the telephone call with FX became Exhibit B at the trial (the transcript was MFI3). The recording of the telephone call with GX became Exhibit C (the transcript was MFI4).

37. [51]

    During the pretext call, Sarah called FX and told him that she had been seeing a psychiatrist to help her deal with the sexual abuse he perpetrated upon her and she wanted to talk to him for some closure. He replied “Ok. Yeah”. Sarah explained that she found it “weird” that FX abused her for several years and when he stopped, GX started abusing her and then when GX stopped FX started again. She asked if they were “in on it together”. FX replied “Ah to be honest. [Sarah] no. Absolutely, like here in my heart did I know that it was happening”. Sarah asked if he knew GX was abusing her and he replied “No, I did not know. I did not know, no. I did not know that”.

38. [52]

    FX told Sarah “I am so sorry because I am immensely – it makes me sick to my stomach that I could’ve done something like that”. Sarah cut him off and stated “… If it was a one off situation or maybe a few times, maybe what you’re saying would be plausible but you did this to me from when I was what 5, 6 years old until I was fucking 12 going on 13?”. FX replied:

39. [53]

    FX told Sarah he wanted “all of us to move on”. FX said that his depression started after he began abusing her. When Sarah asked if FX was depressed because he sexually abused her he answered “Yes, I was, I was immensely depressed…”. FX told Sarah “looking back at it I wish I … noticed what was happening and stopped it straight away. Like I wouldn’t allow anything like that to happen to my niece, my sons, I’ve got kids and a family”.

40. [54]

    Sarah asked FX if he recalled how everything started, but FX did not reply. Sarah told him “It was my brother’s birthday and I was sitting on the couch watching TV by myself in the dining room in [address]”. Later in that response, Sarah said “then you started touching me”. FX replied that he did not remember that and said “it makes me sick to my stomach to think that I would do such a thing. I’m not that person anymore”.

41. [55]

    Sarah told FX “it happened so many times …” and “… And every time I was there you abused me” and “not even just one occasion, every time, it would be like three times in one visit”. FX repeated he “feel[s] sick”.

42. [56]

    FX asked if Sarah had spoken to anyone else other than him, and she replied “No”.

43. [57]

    FX said that he had told his parents. Sarah said she had not spoken to his parents about this.

44. [58]

    Sarah commented that FX was saying he did not remember to which FX replied “[Sarah] I didn’t say I didn’t remember. I said that I’m not that person any more. And I was naïve and a stupid idiot OK and I don’t know what possessed me to do the things I did”. FX later stated “I understand that it was … wrong. And I’m telling you that I didn’t know that at the time. In my mind I was … I don’t know why I was doing those things. I honestly don’t know [Sarah]. I was a kid. As far as I can remember I was a naïve ignorant kid. I wasn’t taught much”.

45. [59]

    Sarah said “That point of you saying that you weren’t taught much as a kid, you think that partly excuses what you did?”. FX replied “It doesn’t. It does nothing to excuse what I did. I’m not saying, I’m not trying to come up with excuses. Don’t get me wrong. What I did was absolutely wrong. And disgusting. There is no excuse. I’m telling you that there is no excuse and if I had, if I had to go back in time knowing what I know, now, I would not have even – that stuff would not have happened. Honestly, I’m not that person”.

46. [60]

    FX told Sarah that his wife knew and it had ruined his life. Sarah said “Does she [his wife] know that you were 21 when you last sexually abused me?” and FX replied “She knows what I am today, [Sarah]”.

47. [61]

    Sarah asked how his parents reacted “when you told them that you sexually abused me?” and FX replied “They weren’t … the same, they were all the same. Because … disgusted in not … telling them. And they could hear the sincerity in my voice that the grief, how sorry I was and how disgusted I was in myself. Because I was crying my eyes out. I was extremely sick to my stomach telling them all of this. OK. I was … saddened with myself. And they were disgusted and … happened”.

48. [62]

    FX said “I’m so sorry. I’m so sorry” and “I’m disgusted in the way I acted and I’m extremely sorry”.

49. [63]

    Sarah told FX she thought at age nine she was pregnant because she did not know what sexual intercourse was and she thought what FX was doing to her was sexual intercourse and she might be pregnant because of it. She told FX that when she asked him when they were younger if she could be pregnant he laughed at her. FX replied “I don’t know what was wrong with me”.

50. [64]

    On the same day, Sarah called GX and told him she would like to speak to him about his sexual abuse of her. He replied “ah hmm”. Sarah asked if he and FX were in on it together. GX said “no”. Sarah said that he and FX took it in turns.

51. [65]

    GX told Sarah he spoke to her mother (SX). Sarah said she did not know about that. GX said “Yeah apparently she called us over and we, we spoke to your mum and I didn’t say anything too much because obviously your mum doesn’t know the full story”.

52. [66]

    GX told Sarah that “it started” when he was “laying down on the floor and you [Sarah] were massaging my back or rubbing my back or something and you kissed me first”. Sarah replied “really, fuck, really [GX], really … because you know what I remember, I remember you were in your room laying down on your bed and you called me and you pulled me by my arm to climb on top of you and then you moved my hips back and forth over your crotch. And I was 10, I was, or just about to turn 10, I think it was 2002 when you did that or maybe it was 2001” and then “But it was some time around then. And you made me move back and forth, I did not fucking instigate that”.

53. [67]

    GX told Sarah he would go on a lie detector. Sarah told him he took advantage of her and he replied “not necessarily”. GX asked Sarah “how is it that two brothers didn’t even know at all what was going on?”. Sarah said that that was not for her to answer and GX asked “what do you want from me?”.

54. [68]

    GX told Sarah his wife knew. They discussed briefly that GX told Sarah’s mother that they wanted to apologise to her, but Sarah’s mother would not let them. GX said when he met with Sarah’s mother “we were crying” and “we wanted to say sorry”.

55. [69]

    GX told Sarah that he “might have been older like physically … but mentally I would have [been] a whole lot younger than you. A whole lot so if anyone knew what was right or wrong it would have been you that would have known what was right and wrong”. Sarah said “… it doesn’t even matter that if, if you’re mentally immature in comparison to me, kids don’t do that to each other. And the fact that you were a few years older than me when this all started just make it all the more worse” and GX replied “Mmm”.

56. [70]

    Later in the call GX said “You’re accusing me as if I’m like fucking 30 now doing it now”. Sarah asked if it “doesn’t mean anything if you’re 15 and I’m 10” and GX replied “No I’m just saying the way, you’re, you’re, you’re making it out to be as if I’m fucken doing it now”.

57. [71]

    GX told Sarah she should feel guilty as well and that she was blaming him.

58. [72]

    A female family friend gave brief evidence relevant only to Count 12 (a charge against GX).

59. [73]

    Detective Senior Constable Russell Williams was the officer-in-charge of the investigation. He gave evidence about the circumstances in which Sarah participated in recorded telephone conversations with each Applicant (the pretext calls) on 14 September 2016.

60. [74]

    The Applicants were arrested on 18 December 2016 and taken to a police station where police lawfully recorded a conversation between them that took place while they were in a custody cell together. The recording and transcript of that conversation were admitted, without objection, as Exhibits F and G respectively.

61. [75]

    In the first clip of the recording, GX is recorded saying “history's happened you can't change it…”.

62. [76]

    Within the second clip of the recording, GX stated to FX “you know what, the strange thing is, I didn't know about you, you didn't know about me. And we've alleged to have done it, fucken together”.

63. [77]

    FX and GX became aware in the third clip that the iPad conversation with Sarah’s mother was recorded. GX commented “I didn't think you were allowed to be recorded unless you were made aware of it, basically saying you were twenty then stopped and I was like fourteen”.

64. [78]

    In the fourth clip, GX said:

65. [79]

    FX and GX discussed the iPad conversation, stating that it was taken around 12 months before and they only have Sarah’s side of the story. An uncle spoke to FX and GX and commented “surely youse weren't doing anything if she was five other than fucking around” and GX replied “That's what I'm saying is that, there's things that don't make sense to the questions, because, they haven't put them in you know what l mean, she ... so there's no doubt in my mind, she didn't like that, she kissed me first ... that she instigated… I'm not saying anything, just saying that”. GX commented that they were kids experimenting and Sarah kissed him first. He went on to say “The only reason it looks bad is we were older… my mental…mentally I was probably the same age as her. They people that know me…”.

66. [80]

    FX, GX and their uncle discussed speaking to their solicitor and not answering any of the police questions (Clip 8, page 4).

Evidence in the Defence Cases

1. [81]

   Each of the Applicants gave evidence at the trial, with GX giving evidence first.

2. [82]

   GX gave evidence-in-chief that he was born in August 1987. He was 30 years old when he gave evidence in June 2018.

3. [83]

   GX said that he thought he was going to his aunt’s (SX) house on 11 October 2015 because there were disputes between his other aunties and SX. He said that during the conversation, SX appeared “on edge” whereas she was normally “very placid, very kind, well mannered”.

4. [84]

   In relation to an incident described in the iPad conversation (see [43] above), GX gave evidence that the incident did not take place as he described and that he gave the description found there “because [SX] didn't want to hear that her daughter came to me. So I was trying to make something sort of believable to [SX] to try and calm her down”. GX said that what happened was that he was in his room on the floor playing with collectable motorbikes, Sarah came in, grabbed one and rolled it on his back and he told her “it can't happen”.

5. [85]

   GX said there was a further incident at the family home where Sarah pecked him on the lips as they unloaded shopping in the pantry. He said “as soon as it happened, I put a stop”.

6. [86]

   GX said that during the iPad conversation, he was scared because he had been threatened by SX. He explained a statement made by him in the iPad conversation saying that he was trying to tell SX in a respectful way that her daughter was “coming to me, not the other way around”.

7. [87]

   GX said with respect to the iPad conversation “I was trying to make something sort of believable to [SX] to try to calm her down” (T275).

8. [88]

   When he said “I should have known better”, he explained that he said this because everyone in his family knew he could not read and write properly, and that his IQ was a lot lower than that of Sarah.

9. [89]

   In relation to a further statement made by him in the iPad conversation, GX said “I'm trying to calm her down when I say, “No, no, no” because “obviously, she's got an image in her head. And I don't want to lie to my aunty, so when I say that she touched me I'm referring to the massage or when she was touching my back. So, yeah, trying to be honest with my aunty”.

10. [90]

    When asked why he had said he was “truly, truly sorry” and asked SX to convey that to Sarah, GX said that he had been threatened with going to the police, media and losing his family and was scared that he had admitted to something that he hadn't done. He said that he did so hopeful that Sarah would decide to go about it another way.

11. [91]

    GX said that there was an occasion when he attended the home of a family friend for a pizza party. He could not recall whether his cousins (Sarah and her brother) were present. He denied having abused Sarah (at the residence of the family friend) as she had described.

12. [92]

    GX agreed that there was a pop-up caravan on the property at the coastal town, but denied that he abused Sarah in it. He said that they would not have visited them at the coastal town any more than three times after they moved there. GX was asked, in examination-in-chief, to describe FX's penis.

13. [93]

    In cross-examination by the Crown, GX said that he did not know how old he was when Sarah rubbed his back with a toy motorcycle and kissed him at the family home. He said he could have been younger than 15 and said that he guessed he was between eight and 10 years old. He agreed that Sarah would have then been between three and five years old. Of the incident he had described that had taken place in the pantry at the family home, he said he guessed he was probably 10 years old. He agreed that at that time Sarah would have been five years of age.

14. [94]

    GX agreed that during the iPad conversation he told SX that the only incident he could think of was an occasion when he and Sarah were in his room playing hide and seek and she rolled on top of him and he told her that she “couldn't be on top of him because it wasn't allowed”. Of that passage, he said at trial “I was telling bits of the truth”. He said that when Sarah had come into his room, they were not playing hide and seek - rather he was playing with his motorbikes. He agreed that the reference to Sarah lying on him was made up.

15. [95]

    It was suggested to him by the Crown that he lied to SX. He answered “Not, not completely but a little bit”. GX denied that he made up that incident because he had been caught out by SX or that he “was making up his evidence today”. He was then asked (at T295.26):

16. [96]

    GX said that he remained at SX’s home and answered her questions “Out of respect”. He said that he did not leave because it was coming out in the open and he thought “Well, the truth has to come out”. The truth, he said, was that Sarah had kissed him. He later said that all the doors in the house were deadlocked. He said that he did not ask his aunt to open them “out of respect”.

17. [97]

    A little later, the Crown asked GX (T296):

18. [98]

    During cross-examination, GX was asked about the iPad conversation (T299):

19. [99]

    Later in cross-examination, GX was asked about the iPad conversation (T307-308):

20. [100]

    Near the end of the cross-examination by the Crown, GX was asked if he was saying that at the ages of 15 to 17 he did not know that behaving sexually inappropriately with a child was wrong, and he replied “No, I’m saying at 15 and 16, yes, more than likely, I would have known that it’s wrong. But I’m trying to say that I put a stop to it when it first happened” (T308).

21. [101]

    It was put to him that he continued to say on the recording “and I knew that it should never have happened in the very first place. I don’t know why it sort of carried on for”. When asked if it carried on as he stated he said “I don’t know why it carried on because I’m not the one that instigated it. I don’t know why [Sarah] c[a]me back for a second time”. GX denied that it carried on more than two times (T308). GX agreed he said to SX in the recording “Yes, yes” when asked if he was part of sexually inappropriate behaviour with Sarah, “the kind of behaviour that doesn’t happen between cousins” (T309).

22. [102]

    FX gave evidence after GX. FX said that he was born in October 1983. He was 34 years old when he gave evidence at the trial in June 2018. He said that during the iPad conversation, SX was mostly calm but at some points she was quite erratic - yelling and slamming her hand on the table which was out of character for her. When asked why he made admissions of sexual misconduct with Sarah, he said he had been threatened. FX said he felt scared and trapped, but did not leave because “She was our aunty. We had the utmost respect for her even as kids growing up. We always respected our, our aunty and felt we needed to be there to resolve the issue”.

23. [103]

    In relation to a statement made in the iPad conversation, FX said he was getting pressured from SX and at the same time his brother was telling him “We need to say something otherwise she will not let up or let them leave”.

24. [104]

    FX said that he could remember a couple of occasions of inappropriate behaviour. There was an occasion at the family home where Sarah touched him on his crotch on the outside of his clothing. He said “At the time, I didn't think much of it and pushed her hand away. Probably not quick enough pushing her hand away as I should have”.

25. [105]

    In later cross-examination by the Crown, FX said that he estimated that he was 14 or 15 years old at the time of this incident, and that Sarah was five or six years of age.

26. [106]

    There was one other occasion that FX said that he remembered. Sarah came into her father's office at the family home and sat on his lap as they watched Sarah’s brother play a computer game. Sarah moved her hand behind his lap and touched his crotch. FX pushed her hand away. In later cross-examination, FX said that he was “maybe 17 years old” at the time of this incident and said that Sarah was “grabbing” his penis. There were a few other times when he and others would be watching a movie and Sarah gave him a “peck on the lips”. FX said he did not think anything of it at the time.

27. [107]

    FX was asked about part of the iPad conversation (see [45] above) in which he said, amongst other things, “No, no, total honesty, there might have been more times when I've asked her to touch me basically where it's extremely inappropriate”. FX gave the following response (T323):

28. [108]

    In cross-examination by the Crown, FX agreed that his evidence was that he made admissions during the iPad conversation out of respect for his aunty. A significant issue in the appeal concerns the cross-examination of FX by the Crown concerning what were said to be similarities between the evidence of GX and FX. FX was asked by the Crown (T339-340) (emphasis added):

29. [109]

    FX denied that he was copying evidence he had heard GX give to explain why he had made admissions during the same conversation. The Crown had not cross-examined GX by suggesting that GX and FX were copying each other in their explanations for things said in the iPad conversation. Nor was there any application for GX to be recalled to the witness box to allow any propositions to be put to him by the Crown before the evidence concluded and closing addresses commenced. I will return to this issue when considering Grounds 5 and 6.

30. [110]

    FX agreed that, in the iPad conversation, he admitted to being sexually inappropriate with Sarah on many occasions and that his evidence was that those admissions were a lie. FX agreed that his evidence was that he lied to his aunt about molesting a child out of respect for SX. He said that he felt that he had no choice but to admit it.

31. [111]

    FX agreed that his evidence was that he admitted to being sexually inappropriate with Sarah on many occasions and apologised profusely, and that it was all a lie to get out of the room and pacify his aunt, to calm her down.

32. [112]

    FX agreed that he had heard GX say that he was doing the same - lying to pacify his aunt and calm her down. FX agreed that at the time of the iPad conversation he was 32 years old, married with children and had worked since he left school.

33. [113]

    On the way home from SX’s home, after the iPad conversation, FX said he and GX called their mother and told her that they had been accused of sexual behaviour with Sarah.

34. [114]

    FX gave evidence that he made admissions in the telephone call he received from Sarah on 14 September 2016 (the pretext call, Exhibit B) because he had been living with anxiety since leaving SX's house and it had a flow-on effect.

35. [115]

    FX said that he had not, as he told Sarah, had psychological issues related to his abuse of her for which he received treatment. Rather, he used a previous life experience unrelated to Sarah to try and defuse the situation. He said that during the call, his wife was telling him to say sorry and try and get Sarah off the phone.

36. [116]

    During cross-examination, FX was asked (T343-4) (emphasis added):

37. [117]

    Although the Crown put to FX that he had “rehearsed and practised” what he was going to say in evidence, this proposition was not put to GX when he gave evidence.

38. [118]

    Soon after, FX was asked (T344-345) (emphasis added):

39. [119]

    In cross-examination (T351-352), FX was taken to a portion of the call in which he had said “I am so sorry, because I am immensely - it makes me sick to my stomach that I could have done something like that”. FX agreed that Sarah didn't overbear his will or threaten him. He agreed that he said “I didn't say I didn't remember. I said that I'm not that person any more” and “I was naïve and stupid idiot, and I don't know what possessed me to do the things I did”, but gave evidence that he said these things because he was trying to defuse the situation. He did not hang up because it was a flow-on effect from the iPad conversation and he was worried.

40. [120]

    FX was asked in cross-examination (T353-355):

41. [121]

    The Applicants each relied on evidence from their first cousins. Each gave evidence that they spent time with the Applicants when they were young and nothing of a sexual nature had occurred when they were alone together with FX or GX.

42. [122]

    Evidence was given by the Applicants’ mother, XX, regarding operations FX had had on his penis and its appearance. From about September 1997, the Applicants’ family had installed a partition to separate the two parts of the duplex in the family home from which time XX occupied a bedroom in the main house near those of the Applicants and that, between 2 October 2002 and 2006, there were three or four times “max” that Sarah and her parents and brother had stayed on their farm in the coastal town. From late May 2004, the cabin on their coastal property was occupied by tenants. XX said that there was no television in the pop-up caravan on the property. XX said that she had spoken to both of the Applicants together on loudspeaker after their conversation with Sarah’s mother and after they came home she asked them whether there had been any inappropriate behaviour and they said “No”.

43. [123]

    In cross-examination by the Crown, the Applicants’ mother said that her sons told her that SX had threatened them and that “They had to agree to something otherwise she wouldn't let them out of the house”. XX said that each of the Applicants had told her they confessed to sexually inappropriate behaviour with Sarah. XX asked them what that included. When asked what they said in response, XX stated (T369):

44. [124]

    Further parts of the transcript and the summing up will be referred to when considering the grounds of appeal.

Hearing in the Court of Criminal Appeal

1. [125]

   It is appropriate to say something concerning the manner in which the hearing in this Court unfolded on 19 February 2020.

2. [126]

   Until the day of the hearing in this Court, the Applicants were represented by Mr Lange of counsel who furnished a single set of written submissions dated 30 August 2019 on behalf of his clients.

3. [127]

   At the commencement of the hearing in this Court, Mr Odgers SC announced his appearance for GX with Mr Lange continuing to appear for FX. Both were instructed by the same solicitor who had instructed different counsel at the sentencing proceedings concerning FX and GX but not at their trial. No written submissions had been furnished to the Court by Mr Odgers SC.

4. [128]

   The Crown later informed the Court that the Crown was unaware that there was to be a separate appearance for GX before Mr Odgers SC announced his appearance at the commencement of the hearing (T35, 19 February 2020).

5. [129]

   Mr Odgers SC informed the Court that he had been briefed some two weeks prior to the hearing and that he understood that his instructing solicitor had informed the Court that there would be a separate appearance by him for GX at the hearing. No communication had been made with the Court to this effect, and certainly the Judges who constituted the Court had no prior knowledge that there was to be separate representation for GX.

6. [130]

   The hearing proceeded upon the basis that Mr Odgers SC adopted Mr Lange’s written submissions with him addressing the Court in support of the grounds of appeal filed on behalf of each of the Applicants.

7. [131]

   Mr Lange addressed the Court first. At one point in his submissions, Mr Lange sought leave to add a further ground of appeal. This course was opposed by the Crown and the Court declined to allow the addition of a further ground of appeal (T19, 19 February 2020).

8. [132]

   When Mr Odgers SC addressed the Court, the Court formed the view that he was advancing submissions which appeared to address a ground of appeal which had not been filed. As a result, submissions were heard as to whether GX should have leave to rely upon an additional ground of appeal, a course opposed by the Crown which the Court declined to allow for reasons expressed in the transcript of the hearing (T34-36, 19 February 2020).

9. [133]

   As a matter of procedure, it is important that where there is to be separate representation of an applicant who has previously been represented jointly with another applicant, the Court should be informed promptly of this development. A written submission ought be provided by the new counsel which confirms that reliance is to be placed upon the existing grounds of appeal and the submissions already made by counsel for the Applicants, accompanied by any short additional written submissions which are intended to be made. Such additional written submissions should be provided to the Crown in advance of the hearing, and at the earliest opportunity, so that the Crown is aware that separate counsel is to appear for an applicant previously represented jointly by other counsel and that further submissions are to be made for that applicant.

10. [134]

    The way in which these matters unfolded at the hearing gave rise to practical difficulties which can be traced back to what was, in effect, the surprise appearance of Senior Counsel for GX previously not communicated to the Crown or the Court, and without any confirmation in writing of adherence to existing grounds and submissions, let alone provision of written submissions containing additional arguments to be advanced to the Court.

11. [135]

    This Court operates upon the basis that each counsel who is to appear at the hearing of an appeal (especially a conviction appeal) is identified with written submissions being furnished by that counsel to the Crown and the Court in a timely fashion in advance of the hearing.

12. [136]

    What occurred in these appeals should not be repeated in other proceedings.

Ground 2 - Alternatively, a Miscarriage of Justice Arose as a Result of the Applicants Being Tried Jointly

1. [137]

   In written submissions made on behalf of the Applicants, Mr Lange invited the Court to consider these grounds together. It is convenient to adopt that approach.

2. [138]

   Although no application for separate trials was made in the District Court, Mr Lange submitted that the joinder of counts concerning FX and GX was contrary to the requirements of s.29 Criminal Procedure Act 1986. He submitted that this case was unusual in that the Crown did not allege that each Applicant committed offences against Sarah jointly, but rather that FX and GX had committed offences against the same complainant on entirely different occasions.

3. [139]

   It was submitted that the joinder of the counts concerning FX and GX should not have occurred as the alleged offences did not constitute “part of a series of offences of the same or a similar character” under s.29(2)(c) Criminal Procedure Act 1986. In this respect, reliance was placed upon the decision in De Jesus v The Queen (1986) 61 ALJR 1 at 9; [1986] HCA 65.

4. [140]

   Whilst accepting that the offences with which each Applicant was charged formed part of a series, it was submitted that it could not be said that the offences committed by FX and the offences of GX constituted a single series. Instead, it was submitted that there were two series and that the counts relating to FX should not have been joined to those related to GX. It was submitted that, in the absence of consent by the Applicants, s.29(2) precluded the joinder of Counts 11 to 18 to the remaining counts.

5. [141]

   Mr Lange noted discussions before the commencement of the trial as to whether there would be an application for separate trials. He acknowledged that counsel for the Applicants at the trial informed the Court that he would not be pressing an application for separate trials. Mr Lange submitted that the decision not to pursue a separate trial application, or to consent to the joinder of the counts (if that was what occurred), rested upon the view of trial counsel concerning the admissibility of recordings of conversations including the iPad conversation, the pretext conversations between Sarah and each of the Applicants and the recording of the conversation between the Applicants whilst they were in police custody.

6. [142]

   Mr Lange submitted that the failure of counsel for the Applicants to object to their being tried on a joint indictment did not stand in the way of the first ground of appeal: De Jesus v The Queen at 3.

7. [143]

   Mr Lange submitted that the Applicants had not consented to joinder for the purpose of s.29(2)(a) Criminal Procedure Act 1986. He submitted that what occurred in the District Court in this case ought be characterised as acquiescence, and not consent to joinder, with this distinction (it was submitted) being important to the proper construction and application of s.29(2).

8. [144]

   Reliance was placed upon R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 at [43]-[46]. It was submitted that what the law requires is actual consent, and that submission or acquiescence will not be enough: Young, “The Law of Consent”, Law Book Company Limited, 1986, page 5. Mr Lange relied upon R v Sepulveda [2003] NSWCCA 131 at [33] in support of a submission that s.29(2)(a) requires express consent and that unexpressed consent will not suffice.

9. [145]

   With respect to the alternative complaint in Ground 2, Mr Lange submitted that Sarah’s credibility would have been significantly enhanced by the joinder because it would have been, practically speaking, impossible for the jury to limit its consideration of Sarah’s allegations in respect of one of the Applicants to the evidence properly admissible against him alone. Reliance was placed upon the judgment of R S Hulme J in R v Pham [2004] NSWCCA 190 at [8] in support of this proposition.

10. [146]

    Mr Lange submitted that the matters complained of in Grounds 3 to 6 supported a conclusion that a miscarriage of justice had resulted from the joint trial of the Applicants so that Ground 2 should be upheld upon this basis.

11. [147]

    Mr Odgers SC adopted the submissions of Mr Lange in support of the first and second grounds of appeal.

12. [148]

    The Crown submitted that counsel for the Applicants in the District Court consented to joinder for the purpose of s.29(2)(a) Criminal Procedure Act 1986. It was submitted that what occurred here involved consent and not submission or acquiescence. Counsel for the Applicants took instructions from his clients and what happened thereafter reflected a considered decision to not press an application for separate trials, a decision which constituted consent in the circumstances of the case.

13. [149]

    By the time that counsel for the Applicants informed the Court that there was to be no application pressed for separate trials, it was clear that rulings had been made allowing the various recordings into evidence which were capable of being treated as admissions by one or other of the Applicants of the offences charged against that Applicant. It was submitted that this supported the view that the Applicants had made a considered decision and had given instructions to their counsel that the trial should proceed as a joint trial.

14. [150]

    Putting the admissions to one side, the Crown submitted that it was not the case that all of the statements made by GX in the iPad conversation were inadmissible against FX. FX relied upon pressure he claimed was brought to bear on him by SX during the iPad conversation. Although there were bodies of evidence admissible against one Applicant that were not admissible against the other, none of the inadmissible evidence implicated the other Applicant or was otherwise prejudicial to him.

15. [151]

    The Crown submitted that R v Pham involved very different circumstances from the present case. It was submitted that, in the present case, the nature of the evidence admissible against each of the Applicants was very similar. Aside from the admissions made by each Applicant, which were confined to their own conduct and did not inculpate the other Applicant, the Crown submitted that there was no independent evidence corroborative of Sarah so that the present case was quite different to R v Pham.

16. [152]

    The Crown relied upon Decision Restricted [2019] NSWCCA 276 at [68] where the Court (Payne JA, Harrison and N Adams JJ) said that R v Pham did not establish an additional or different test to that described in R v Middis (Supreme Court, Hunt J, 27 March 1991, unreported). Further, what R S Hulme J said in R v Pham at [8] did not constitute a statement identifying a separate principle to be applied by a trial Judge. Rather, the decision in R v Pham was highly fact dependent.

17. [153]

    The Crown submitted that the present case is qualitatively different to R v Pham. It was submitted that the argument for the Applicants that Sarah’s credibility was significantly enhanced by the joinder of counts is without foundation. The jury were given a firm direction that they were to treat the case against each Applicant separately and the Court should proceed on the assumption that the jury acted in accordance with those directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31].

18. [154]

    The Crown submitted that the Applicants’ decision to consent to the joinder of counts should be considered in the context of the absence of prejudice occasioned to either of them by the joinder, as well as other common features in the evidence that drew the matters together. Some of the offences charged against each Applicant occurred in the same locations so that evidence about when and where each of the families lived was relevant to both cases. That evidence came from a number of sources, including Sarah and her mother, SX.

19. [155]

    Both Applicants were confronted at the same time and in the same circumstances during the iPad conversation recorded by SX. Further, the Applicants called their mother after the iPad conversation and together had a conversation with her about it on which they both relied. There were aspects of the evidence where one Applicant relied upon the evidence of the other at trial.

20. [156]

    The Crown submitted that it is important to observe that, even if the trials of the Applicants had been separated, the iPad conversation would likely have been admitted in the form in which it was admitted in this trial. Representations made by one Applicant could not have been excised without making the conversation unintelligible. Even if the admissions made by one Applicant or some of them were severable, the Crown submitted that it would scarcely have assisted the claims of both Applicants, that they only made admissions because of the pressure brought to bear upon them by SX to have his admissions alone included in a version of the conversation placed before the jury.

21. [157]

    Examined in that context, the Crown submitted that the Applicants had failed to demonstrate that their decision to consent to the joinder of counts was based upon a misunderstanding by trial counsel as to the correct principles to be applied, as distinct from a forensic decision taken in light of rulings regarding the admissibility of evidence. The Crown pointed to De Jesus v The Queen at page 3 where Gibbs CJ observed that, if counsel had deliberately refrained at the trial from submitting that joinder was impermissible in order to gain some tactical advantage, the position would be different. The Crown observed, in any event, that, unlike the present case, an application for separate trials had been made in De Jesus v The Queen.

22. [158]

    The Crown submitted that it was not to the point that others might consider the forensic decision made by the Applicants’ counsel to be imprudent or that they might now regret it. The decision to consent to the joinder of counts was a rational forensic decision made after the Applicants had been given an opportunity to discuss the issue with their counsel: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [16]-[17].

23. [159]

    The Crown submitted that neither of the Applicants had demonstrated that a miscarriage of justice had resulted from the joint trial of the Applicants. The Crown made further submissions concerning Grounds 3 to 6 which bear upon the question whether either Applicant has established that a miscarriage of justice resulted from their joint trial. I will refer to submissions made concerning Grounds 3 to 6 later in this judgment.

24. [160]

    The Crown submitted that the first and second grounds of appeal should be rejected.

25. [161]

    Section 29 Criminal Procedure Act 1986 is the focal point of the first ground of appeal. That section provides as follows:

26. [162]

    It is appropriate to note, as well, the terms of s.21 Criminal Procedure Act 1986:

27. [163]

    Section 21 Criminal Procedure Act 1986 is the successor to s.365 Crimes Act 1900. Section 365 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 and relocated (in an amended form) as s.64 Criminal Procedure Act 1986. Section 64 was renumbered as s.21 by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001.

28. [164]

    Section 29 Criminal Procedure Act 1986 is the successor to s.78A Justices Act 1902. Section 78A was repealed in 2001 and re-enacted (in an amended form) as s.29 Criminal Procedure Act 1986. Whereas s.78A Justices Act 1902 applied to summary hearings only in the Local Court, s.29 lies within Part 3 of Chapter 2 of the Criminal Procedure Act 1986 which is entitled “Criminal proceedings generally” and which Part applies, to the extent it is capable of being applied, to all offences, however arising (whether by statute or at common law), whenever committed and in whatever court dealt with: s.28(1) Criminal Procedure Act 1986.

29. [165]

    Accordingly, since 2001, ss.21 and 29 Criminal Procedure Act 1986 have been applied when issues of joinder of counts against one accused person and joinder of counts against two or more accused persons arise for consideration in trials on indictment.

30. [166]

    Decisions of single Judges and of this Court on separate trial applications have addressed both ss.21 and 29: see, for example, R v Qaumi and Ors (No. 3) (Severance and separate trial) [2016] NSWSC 15 at [83]-[97], [121]ff; Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 at [47]-[53].

31. [167]

    When giving judgment on a separate trial application in R v Darwiche & Ors [2006] NSWSC 929, Bell J (as her Honour then was) referred to a submission concerning the enactment of the previous s.78A Justices Act 1902 as s.29 Criminal Procedure Act 1986. Her Honour said at [116]-[120]:

32. [168]

    An unsuccessful appeal under s.5F Criminal Appeal Act 1912 was brought by one accused person against her Honour’s refusal to order a separate trial: Osman v R [2006] NSWCCA 196. McClellan CJ at CL (with the concurrence of Latham J and myself) said at [8]-[10]:

33. [169]

    Later, McClellan CJ at CL said at [17]:

34. [170]

    With respect to the “interests of justice” in s.29(3), McClellan CJ at CL said at [22]:

35. [171]

    The phrase “part of a series of offences [or crimes] of the same or a similar character” now in s.29(2)(c) Criminal Procedure Act 1986 had its origin in the Indictments Act 1915 (UK). The meaning of the word “series” in that context was described by Dixon J as “somewhat vague, but it connotes some connection between the crimes”: Packett v The King (1937) 58 CLR 190 at 207; [1937] HCA 53. In Sutton v The Queen (1983-1984) 152 CLR 528; [1984] HCA 5, Brennan J said at 540-541:

36. [172]

    In Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160, the Court (Bathurst CJ, Bell P and myself) said at [80]-[82]:

37. [173]

    The principles in Roach v R were considered recently in Allen v R [2020] NSWCCA 173 where it was noted (at [51]) that no challenge had been made at trial by the single accused to joinder of counts so that there was an implicit acceptance that the counts were properly joined.

38. [174]

    Although these principles are of assistance in understanding the operation of s.29, the real question in the present case concerns the concept of “consent” in s.29(2)(a) Criminal Procedure Act 1986.

39. [175]

    The capacity to “consent” to the joint hearing of informations alleging summary offences under s.78A Justices Act 1902 has been considered in a number of decisions: Ex parte Justelius; Re Lucas (1970) 92 WN (NSW) 455; Stevancevic v Milson (1986) Petty Sessions Review 3411 (Finlay J, Supreme Court of NSW, 21 May 1986). Authorities which considered s.78A have not suggested that a particular form or expression of consent was required before informations charging different offences or persons could be heard together.

40. [176]

    The Criminal Procedure Act 1986 does not specify a procedure whereby consent is to be given for the purpose of the provision. The question for consideration is whether the Applicants gave consent for the purpose of s.29(2)(a) Criminal Procedure Act 1986.

41. [177]

    It is appropriate now to consider what occurred in these proceedings which culminated in counsel for each Applicant announcing that a separate trial application would not be made. Pretrial applications were made on 28 and 29 May 2018 with the trial commencing before a jury on 30 May 2018.

42. [178]

    The same counsel appeared for each Applicant at the trial instructed by the same instructing solicitor. As noted earlier, the solicitor instructing counsel for each Applicant before this Court instructed different counsel at the sentencing proceedings but did not represent the Applicants at their trial.

43. [179]

    At the commencement of proceedings on 28 May 2018, the following discussion took place (T1, 28 May 2018):

44. [180]

    Her Honour was informed that a pretrial application was to be made for the Applicants seeking exclusion of the iPad conversation of 11 October 2015, the two pretext calls of 14 September 2016 and the conversation between the Applicants in a cell on 18 December 2016.

45. [181]

    After the Applicants were arraigned, but before the pretrial application commenced, the following was said (T6, 28 May 2018):

46. [182]

    The trial Judge then embarked upon a voir dire with respect to the admissibility of the two pretext calls and the iPad conversation with the objections being founded on ss.84, 85, 90 and 138 Evidence Act 1995. Objection was taken initially to the admissibility of the recorded conversation between the Applicants at the police station on 18 December 2016, but that objection was not pressed.

47. [183]

    SX gave evidence on the voir dire concerning the iPad conversation (T19-23, 28 May 2018).

48. [184]

    During the course of the pretrial hearing, the trial Judge asked counsel for the Applicants (T24-25, 28 May 2018):

49. [185]

    Shortly before the proceedings were adjourned for the day, her Honour said to counsel for the Applicants (T28, 28 May 2015):

50. [186]

    At the conclusion of submissions on the voir dire on 29 May 2018, the trial Judge enquired of defence counsel (T50, 29 May 2018):

51. [187]

    The Court took the luncheon adjournment and, upon resumption, her Honour delivered an ex tempore judgment admitting into evidence the pretext calls and the iPad conversation between the Applicants and SX. Her Honour’s ruling on those issues is not challenged in this Court.

52. [188]

    The trial Judge had listened to the recording of the iPad conversation. In the course of her judgment admitting the recording, her Honour said (judgment, page 9, 29 May 2018):

53. [189]

    After that judgment was delivered, the Applicants’ counsel said to the trial Judge (T51, 29 May 2018):

54. [190]

    The trial was adjourned to the next day when a jury was empanelled and the trial commenced.

55. [191]

    Defence counsel made a short opening address to the jury immediately after the Crown opening. Given the issues raised on appeal, it is appropriate to refer to what was said in the opening. It assists an understanding of trial counsel’s instructions concerning the way in which the trial of the Applicants was to be conducted. Counsel for the Applicants said (T87-88, 30 May 2018):

56. [192]

    In my view, the appropriate conclusion is that the rulings of the trial Judge concerning admissibility of evidence led to a forensic decision by each Applicant to consent to a joint trial to assist each of them to best meet the evidence in the trial. The question as to whether a separate trial application was to be made was the subject of discussion with counsel for the Applicants making clear to the Court that it was a matter for instructions. The appropriate conclusion is that the Applicants provided instructions to consent to a joint trial with those instructions taking into account the ruling of the trial Judge and the factors discussed with defence counsel by the trial Judge.

57. [193]

    There was an opportunity over two days for the Applicants to provide instructions concerning the question of a joint trial. There were overlapping issues as between the Applicants and a strategy whereby the Applicants adopted a common position as illustrated in the defence opening to the jury.

58. [194]

    There is no evidence before this Court from either Applicant or, for that matter, trial counsel or the solicitor for the Applicants which would support a different conclusion on this aspect.

59. [195]

    In my view, what occurred in this case constituted consent to a joint trial by each Applicant and the Crown for the purpose of s.29(2)(a) Criminal Procedure Act 1986. A considered decision was made with instructions being taken from each Applicant with respect to a joint trial. I would not characterise what occurred here as being submission or acquiescence on behalf of each Applicant.

60. [196]

    I do not think that the Applicants are assisted by anything said in R v Sepulveda or R v Halmi. In R v Sepulveda, the Court observed (at [33]) that “in many cases there is unexpressed consent to amendment [to an indictment under s.20 Criminal Procedure Act 1986], although proper practice would ensure that consent is expressed or leave is given”. In R v Halmi, Bell J (Simpson and Buddin JJ agreeing) said (concerning consent for the purpose of s.20) at [46]:

61. [197]

    In the present case, there was a course of considered conduct on the part of the Applicants and their counsel which constituted the giving of consent for the purpose of s.29 Criminal Procedure Act 1986. The circumstances in R v Sepulveda and R v Halmi concerned a failure to say anything at all regarding amendment to an indictment, with the Court in each case expressing concern as to whether this was capable of constituting consent. That scenario is far removed from events in the case of the Applicants.

62. [198]

    In advance of or during a criminal trial, counsel representing an accused person will make decisions, provide advice and take instructions on a wide range of issues including those identified in the case management provisions in Division 3 of Part 3 of the Criminal Procedure Act 1986 (ss.134-149F) and evidentiary issues under the Evidence Act 1995. As a general rule, an accused person is bound by the conduct of counsel on his or her behalf with respect to pretrial and trial issues: R v Birks (1990) 19 NSWLR 677 at 683; TKWJ v The Queen at [8].

63. [199]

    The Criminal Procedure Act 1986 does not prescribe any particular form or procedure for the giving of consent under s.29(2)(a) of that Act. Nor did cases which considered s.78A Justices Act 1902 require a particular form or procedure for the purpose of consent being given under that provision.

64. [200]

    Other statutory provisions, where an accused person may consent or agree to a particular course in the context of a criminal trial, require some formality. Section 184(1) Evidence Act 1995 permits an accused person to admit matters of fact and give any consent that a party to a civil proceeding may make or give. Section 184(2) requires legal advice to be given first to the accused person with the Court to be satisfied that the accused person understands the consequences of making the admission or giving the consent. It was not submitted that s.184 applied in this case, with that provision being based upon admissions or consent that may be given by a party to civil proceedings.

65. [201]

    Section 132(2) Criminal Procedure Act 1986 permits an accused person to agree to be tried by a Judge alone, but s.132(6) states that the Court must not make such an order unless satisfied that the accused person has sought and received legal advice in relation to the effect of the order.

66. [202]

    There is no similar provision in s.29 Criminal Procedure Act 1986 to those contained in s.184(1) Evidence Act 1995 and s.132(6) Criminal Procedure Act 1986. As it happens, in this case, there was an opportunity for the Applicants to take advice from counsel and to consent to a joint trial. This was not a case of bare submission or acquiescence. The very question of joint or separate trials was considered by the Applicants in the course of giving instructions to their counsel. There is no evidence before this Court that either Applicant did not agree with a joint trial. It may be noted, in any event, that even if the additional procedural measures specified in s.184 Evidence Act 1995 and s.132 Criminal Procedure Act 1986 had some application here, there was compliance given that each Applicant took advice from trial counsel concerning the issue.

67. [203]

    It is clear in the circumstances of this case that a considered decision was made by each Applicant in consultation with defence counsel with the position of each Applicant being communicated to the Court. No more was required to communicate the consent of the parties with respect to a joint trial.

68. [204]

    I do not consider that FX and GX are assisted by any part of the decision in De Jesus v The Queen. There, a separate trial application was in fact made. In the present case, the Applicants consented to a joint trial so that they are not assisted by the observations of Gibbs CJ in De Jesus v The Queen at 3. It is not necessary to consider s.29(2)(b) or (c) Criminal Procedure Act 1986 as consent was given by the Applicants to a joint trial in this case.

69. [205]

    If there is opposition to a joint trial of two or more accused persons, then both s.29(2) and (3) may arise for consideration (see [168]-[172] above). In circumstances where the Applicants consented to a joint trial, however, I do not consider that the interests of justice test in s.29(3) Criminal Procedure Act 1986 arose for separate consideration in this case. I should observe, however, that if an application for separate trials had been pressed in this case, it would have been open to the trial Judge to conclude that the requirements of s.29(2)(c) had been satisfied and that, for the purpose of s.29(3), the interests of justice did not require that the trials of FX and GX should proceed separately.

70. [206]

    The short answer to the first ground of appeal is that the requirements of s.29(2)(a) Criminal Procedure Act 1986 were satisfied in this case so that joinder of counts concerning FX and GX was open and did not give rise to a miscarriage of justice.

71. [207]

    The second and related ground of appeal asserts that a miscarriage of justice arose as a result of the Applicants being tried jointly. This ground picks up arguments advanced in support of Grounds 3 to 6. I do not consider that Ground 2 has further work to do in the context of this case unless the Applicants make good one or more of Grounds 3 to 6 upon which each of them relies.

72. [208]

    Mr Lange sought to rely upon Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [377]-[397] in support of the submission, based upon s.29 Criminal Procedure Act 1986, that a miscarriage of justice occurred as a result of the Applicants being tried together.

73. [209]

    I do not think the Applicants are assisted by Perish v R. In that case, a separate trial application was made and refused. The Court noted (at [393]) that R v Pham provided little assistance given the significant factual distinctions between the two cases. The Court emphasised as well (at [396]) the expectation that a jury would comply with judicial directions in accordance with what said in Gilbert v The Queen at [31]-[32].

74. [210]

    The contention in Ground 2 is that a miscarriage of justice occurred as a result of the Applicants being tried together. This involves a fact-dependent examination of what happened in this case which has given rise to complaint before this Court. I will return to this topic after considering Grounds 3 to 6, to which I now turn.

Ground 6 - A Miscarriage Of Justice Arose From The Crown Prosecutor’s Submissions To The Jury That Because Both Applicants Had Given Evidence That They Had Lied To SX To Pacify Her, Therefore They Must Have Lied When They Denied Having Committed The Offences

1. [211]

   Counsel for the Applicants invited the Court to deal with Grounds 3 to 6 together. It is appropriate to take that course. In the context of these appeals, Grounds 5 and 6 raise overlapping issues.

2. [212]

   When determining these grounds of appeal, I will set out extracts from the transcript and the summing up as well as referring back to parts of the evidence to which reference has already been made. For present purposes, it is sufficient to note shortly the submissions made with respect to the grounds of appeal.

3. [213]

   Counsel for the Applicants referred to discussions which took place between counsel and the trial Judge prior to closing addresses concerning the identification of evidence admissible against one Applicant only. Reference was made as well to directions given by the trial Judge to the jury concerning this aspect.

4. [214]

   Counsel for the Applicants submitted that the directions given to the jury were inadequate to explain the limitations which it was submitted ought properly to have been placed on the evidence. The Applicants submitted that the directions failed to make clear that, given the absence of any assertion that the Applicants had acted jointly, the evidence in relation to the counts charged against FX was inadmissible in relation to the counts against GX and vice versa.

5. [215]

   The Applicants submitted that the directions to the jury failed to explain that any admissions which the jury might find were made to SX during the iPad conversation were admissible only against that particular Applicant bearing in mind that there was no assertion of a joint enterprise. It was submitted that the trial Judge had stated that, apart from the nominated areas, the other evidence in the trial was admitted jointly against both Applicants. The Applicants submitted that this statement to the jury was erroneous.

6. [216]

   Insofar as the trial Judge directed the jury with respect to the evidence given in the trial by each Applicant, it was submitted that the direction in this case was misleading. Whilst accepting that, generally speaking, evidence of one Applicant was admissible in the trial of the other Applicant, that general proposition remains subject to the rule that any such evidence must be relevant as required by s.55 Evidence Act 1995.

7. [217]

   It was submitted that, in this case, neither Applicant implicated the other in his evidence-in-chief and neither Applicant was cross-examined to elicit evidence of the other’s commission of the offences charged against that Applicant.

8. [218]

   Whilst noting that it would be unobjectionable for the Crown to submit that FX had lied about the meaning of his representations to SX after having heard the evidence given by GX and having essentially adopted his account, counsel for the Applicants contended that the Crown submission did not rest there. Instead, the submission was grounded on what the Crown asserted was a coincidence in the explanations given by the Applicants. Reliance was placed upon part of the Crown closing address in this respect.

9. [219]

   It was submitted that the Crown’s invitation to the jury was improper. It was submitted that it invited the jury to consider the cases against the Applicants collectively by referring to them as “they” on a number of occasions. It was submitted, as well, that particularly in light of the Crown’s invitation to look at the cases against the two Applicants together, the submission that “those private conversations, all three of them … support the version given by [Sarah] and they bolstered her evidence” would have been understood by the jury as inviting a comparison of all three recordings when assessing the credibility and reliability of Sarah. It was emphasised that the three conversations referred to were the iPad conversation involving the Applicants and SX as well as the two pretext conversations, each of which involved only one Applicant.

10. [220]

    It was submitted that it was improper for the Crown to suggest to the jury that they ought to have regard to the “parallels” between GX’s explanation of the representations made during the two recordings involving him and the explanations given by FX in relation to his representations. It was submitted that any representations made by one of the Applicants were admissible only against that Applicant and that any explanation given by one Applicant in evidence at the trial as to his state of mind when making those representations must logically be relevant only in that Applicant’s case.

11. [221]

    It was submitted that it was improper for the Crown to suggest that the evidence of the two Applicants had been “rehearsed” (T385) in the absence of that proposition being put to either of the Applicants in cross-examination. Whilst the Crown had suggested to FX that his evidence was the same as that which had previously been given by GX, it was submitted that it had not been suggested to him that the evidence had been rehearsed, that is that the Applicants had concocted their accounts together. Nor was there any question directed to GX in cross-examination which might give rise to an inference of joint concoction.

12. [222]

    Reference was made to parts of the Crown closing address where it was said that it defied belief to say that one had made “up a story about … interfering with a child … out of respect for [SX]” (T384) and that there were “parallels between what [FX] said and what [GX] said” (T385). It was submitted that the Crown Prosecutor here was inviting the jury to employ a form of coincidence reasoning that, because both Applicants gave the same explanation of their respective representations, therefore they could be disbelieved. It was submitted that such a process of reasoning was not available where the Applicants had not been charged with having jointly committed the offences and there was no evidence that the Applicants had jointly concocted their evidence.

13. [223]

    It was submitted that, rather than dissuading the jury from the approach advocated by the Crown, the trial Judge repeated the Crown submission without qualification (SU67-68). By repeating the Crown submission, it was submitted that the trial Judge had sanctioned that line of reasoning. Whilst accepting that the question whether the jury accepted the argument or not was a matter for the jury, it was submitted that, by reminding the jury of the content of the argument, the trial Judge did not foreclose what was said to be the erroneous approach advocated by the Crown.

14. [224]

    Mr Odgers SC made further oral submissions for GX. He relied, in particular, upon Grounds 5 and 6, contending that what occurred was unfair to GX against whom the Crown case was not as strong. It was submitted that FX had been cross-examined concerning admissions allegedly made by him in the pretext call with Sarah on 14 September 2016 and that directions given to the jury did not make clear that what FX said in this respect was not to be used against GX.

15. [225]

    Mr Odgers SC submitted, as well, that the Crown submission that the Applicants had concocted an approach to explain the iPad conversation operated unfairly to GX who gave evidence first and was not cross-examined by the Crown on this issue. It was argued that what was a Crown attack upon FX for his evidence, and its similarity to that given earlier by GX, operated unfairly to GX and should have given rise to clear directions from the trial Judge which were not given.

16. [226]

    Senior counsel for GX submitted that there was a weaker Crown case against GX in that what he said in the iPad conversation with SX and in his pretext call with Sarah did not involve direct admissions as seen on FX’s part in the iPad conversation and in his pretext call with Sarah. A joint attack by the Crown on FX and GX operated unfairly against GX in these circumstances.

17. [227]

    In these various ways, it was submitted for the Applicants that a miscarriage of justice had resulted and that leave should be granted to the Applicants under Rule 4 to rely upon Grounds 3, 4 and 5.

18. [228]

    With respect to the matters raised in Grounds 3, 4 and 5, the Crown noted that no complaint was made by counsel for the Applicants concerning the parts of the summing up which now give rise to complaint. No application was made to the trial Judge for further directions on these matters. Concerning Ground 6, no complaint was made by counsel for the Applicants concerning the Crown closing address nor was any application made to the trial Judge for any further directions in this regard.

19. [229]

    As no request for such directions was made, the Crown submitted that Rule 4 Criminal Appeal Rules applies. It was submitted that the absence of a request for a direction is a strong indication that no miscarriage of justice was occasioned in the atmosphere of the trial: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37]; Greenhalgh v R [2017] NSWCCA 94 at [42].

20. [230]

    With respect to the complaint by the Applicants that the trial Judge’s directions failed to make clear evidence which was inadmissible against a particular Applicant, the Crown submitted that close attention is required to be given to the directions of the trial Judge and that, after such an examination, the Court should conclude that the directions were adequate.

21. [231]

    The Crown pointed to directions given at various points during the trial which indicated evidence which was admissible against one Applicant only.

22. [232]

    The Crown submitted that the jury was directed in relation to the use that could be made of statements relied upon as admissions in the iPad conversation, the two pretext calls and the conversation that took place between the Applicants at the police station. It was submitted that the jury could have been in no doubt, in applying the directions given by the trial Judge, that they needed to consider each statement relied upon as an admission individually.

23. [233]

    The Crown submitted that the jury must have understood that any admissions made by each Applicant in the iPad conversation, if they found them to be admissions, were admissible only against that Applicant.

24. [234]

    The Crown emphasised that the summing up included an exhortation by the trial Judge to consider the case against each Applicant separately.

25. [235]

    With respect to the complaint in Ground 5, the Crown noted that the Applicants accepted that the trial Judge could direct the jury that they could use the evidence of one Applicant in considering the case against the other Applicant. However, the Applicants’ complaint was that the trial Judge did not make it clear that that did not apply to answers by each Applicant in response to Sarah’s allegations. The Crown submitted that no request was made for such a direction at the trial.

26. [236]

    With respect to the complaint by the Applicants that FX was cross-examined upon the basis that he had effectively copied the explanation he heard GX give (concerning the iPad conversation with SX and things said to her “out of respect”), the Crown submitted that what was said went no further than that which the submissions for the Applicants acknowledged would be unobjectionable.

27. [237]

    Concerning complaints made about the Crown Prosecutor’s closing address (including the use of the word “they” to describe the Applicants), the Crown submitted that it was for the Applicants to demonstrate that there was a risk that the Crown’s closing address distracted the jury from their task of considering the cases of the Applicants separately in light of the evidence admissible against each of them: GDD v R [2010] NSWCCA 62 at [129]. The Crown submitted that the Applicants had failed to do so.

28. [238]

    It was submitted that the Crown closing address did not make submissions in the terms contended by the Applicants in Ground 6. The word “they” was used to refer to common features in the evidence given by each Applicant. The Crown pointed out that the same approach had been taken by counsel for the Applicants in his closing address at the trial (T397-398).

29. [239]

    The essence of the Crown submission was that the jury would reject the evidence given by each Applicant because the explanation given by each was unworthy of belief and an affront to common sense. The Crown submitted that this argument related to the content of the explanations that each Applicant gave and not the fact that they both gave the same explanation that made it unworthy of belief.

30. [240]

    To the extent that there was any risk that the Crown closing address would have distracted the jury from their task of considering the cases for each of the Applicants separately in light of the admissible evidence against each, it was submitted that this was cured by directions given by the trial Judge.

31. [241]

    With respect to the complaint concerning the Crown submission about FX’s evidence, the Crown submitted that what was said to the jury in that respect by the Crown is to be understood as following on from the cross-examination of FX, where it had been put to him that he had copied aspects of the evidence of his brother in the explanations he gave for admissions he made to SX. It was submitted that this did not involve a suggestion of joint concoction between the Applicants. The Crown noted that the Applicants’ written submissions had accepted that this was an available submission to be made by the Crown.

32. [242]

    Concerning the Crown submission at trial that “the private conversations, all three of them” support the versions given by Sarah, the Crown acknowledged that it was not entirely clear what private conversations the Crown was referring to in that submission. There were in fact four private recorded conversations, involving one or both of the Applicants - the iPad conversation, the two pretext calls and the conversation at the police station. The Crown had referred to each of them by that stage of the Crown closing address at trial.

33. [243]

    The Crown accepted that there is a risk that the jury may have understood the Crown at trial to be referring to the iPad conversation and the two pretext calls as supporting the version given by Sarah. Plainly enough, the Crown acknowledged that the pretext calls made by each of the Applicants were not cross-admissible, and therefore not properly available to the jury in assessing the reliability and credibility of the evidence of Sarah in relation to offences committed by the other Applicant. The Crown submitted, however, that this risk did not contribute to a miscarriage of justice in the trial of either Applicant.

34. [244]

    In this respect, the Crown submitted that the trial Judge gave clear directions that the pretext call made by Sarah to each Applicant was evidence only against the Applicant who was involved in the call. Whilst the trial Judge’s repetition of the Crown submissions to the jury without clarification was unfortunate, it was submitted that this would not have prevailed over the clear directions given by the trial Judge. The jury would not have understood the repetition of the Crown submission as bringing with it the imprimatur of the trial Judge.

35. [245]

    The Crown submitted, as well, that the admissions made by each of the Applicants were confined to their own respective conduct. Neither Applicant said anything that implicated his brother.

36. [246]

    The Crown submitted that the Applicants have not demonstrated that the trial Judge erred in the manner contended for in Grounds 3, 4 or 5. It was submitted that each Applicant should be refused leave under Rule 4 to rely upon any of these grounds of appeal.

37. [247]

    The Crown noted that Ground 6 appears to relate to a portion of the Crown closing address which included the submission “So they either lied to [SX] or they’re lying to you today and that’s what you have to resolve, that’s a matter for you. They would have you believe they lied to [SX]. But ask yourself this members of the jury, who makes up a lie and says ‘I’m a child molester’ just to get out of a room? Who says that? Is that logical? Is it rational?” (T384).

38. [248]

    It was submitted that the Crown argument to the jury was proper and uncontroversial in the context of the evidence given at the trial. The submission was directed to admissions made by each Applicant to SX during the iPad conversation. Each of the Applicants had given evidence about things that they had said during that conversation and each of the Applicants said they had been untruthful in some of what was said to their aunt.

39. [249]

    The Crown submitted that an issue in the trial was whether one or both of the Applicants had lied when each spoke to SX (as they claimed) or whether each had, as the Crown argued, made salient admissions unaware that they were being recorded in an attempt to persuade SX from reporting their alleged conduct to the police. In circumstances where each Applicant gave evidence denying that he committed each of the offences described by Sarah, the Crown submitted that an argument to the jury that one of the issues that merited their consideration was whether either Applicant had lied to SX, or had lied in their evidence at trial, was an appropriate one.

40. [250]

    The Crown submitted that each of Grounds 3 to 6 should be rejected.

41. [251]

    To understand and analyse these overlapping grounds of appeal, it is necessary to refer to parts of the trial and the trial Judge’s summing up.

42. [252]

    In her opening remarks to the jury, the trial Judge said that they were required to give separate consideration to each of the counts charged against the Applicants (T67):

43. [253]

    Parts of the evidence at the trial, including cross-examination of GX and FX, have been set out earlier in this judgment.

44. [254]

    Before the commencement of the closing addresses, discussion took place between the trial Judge and counsel concerning evidence admissible against one or other of the Applicants only (T377-380). The Crown had prepared a document in this respect which had been provided to counsel for the Applicants who agreed with its contents and stated that it “helpfully particularise[d]” that evidence (T378). It is clear from that discussion that there was agreement on this aspect with no area of controversy or concern so far as counsel for the Applicants was concerned.

45. [255]

    The Crown closing address commenced with the recording of the iPad conversation (Exhibit D) being played to the jury (T383). The Crown submitted with respect to the iPad conversation and the pretext calls (T383) (emphasis added):

46. [256]

    The Crown continued (T383-385) (emphasis added):

47. [257]

    It may be seen that in these extracts from the Crown closing address, which came under significant challenge in this Court, the Crown was seeking to juxtapose what each Applicant had said at unguarded moments in the iPad conversation and in the pretext calls (see [255] above) with what each Applicant had said in evidence before the jury (see [256] above). From what had been said since the defence opening early in the trial (see [191] above), there was a common defence being addressed by each Applicant in answer to those parts of the Crown case which served to incriminate that Applicant.

48. [258]

    What the Crown had done, however, was to attack each Applicant in closing to the jury as having “rehearsed” or “prepared” their accounts to be given in evidence. FX had been cross-examined by the Crown to this effect by reference to evidence which GX had given earlier to the jury (see [108], [116] and [118] above). However, GX was not cross-examined by the Crown in a manner which would lay a foundation for such an attack upon GX that he had “rehearsed” and “prepared” his evidence in conjunction with FX. Nor was there a suggestion that GX should be recalled to the witness box to allow that proposition to be put to him by the Crown. What was a joint attack upon FX and GX by the Crown was capable of operating unfairly to GX in the context of this trial. What were said to be contrivances in the evidence of FX were relied upon to attack GX by the Crown. There was no complaint by counsel for the Applicants concerning this part of the Crown address nor any application to the trial Judge to remedy what was said by directions in the summing up. The question remains, however, whether this aspect of the trial gave rise to unfairness to GX without those matters having been put to GX so that a miscarriage of justice resulted for him. I will return to this issue.

49. [259]

    The Crown then took the jury through the various counts, making submissions with respect to the counts against FX (T385-388) and GX (T388-390) before turning to the remaining counts against FX (T390-391).

50. [260]

    Counsel for the Applicants also commenced his closing address by playing part of the iPad conversation recording to the jury (T397).

51. [261]

    It is noteworthy that counsel for the Applicants also referred to the Applicants in a plural sense concerning the iPad conversation (T397) (emphasis added):

52. [262]

    Later in the defence closing address, counsel for the Applicants relied upon the evidence of each Applicant in support of the argument that Sarah was wrong when saying that FX was uncircumcised (T401).

53. [263]

    It is appropriate to refer to aspects of the summing up given the matters of complaint raised, for the first time, in this Court.

54. [264]

    In the course of the summing up, the trial Judge gave the jury directions including directions concerning evidence which was admissible against one or other or both of the Applicants (SU18-20) (emphasis added):

55. [265]

    The trial Judge gave the jury directions concerning separate consideration of each count against each Applicant (SU26):

56. [266]

    Directions were given to the jury concerning what the Crown said were admissions made by one or other of the Applicants concerning the offences charged (SU34-36):

57. [267]

    When reminding the jury of submissions made in the Crown closing address, the trial Judge said (SU67-68) (emphasis added):

58. [268]

    It will be observed that the trial Judge here repeated the Crown submission concerning the evidence of FX and GX being “rehearsed” without any further direction which confined the use of such criticism to FX (who had been cross-examined to that effect), but not GX (who had not been cross-examined on these issues by the Crown). This aspect of the trial bears upon the merits of Grounds 5 and 6 with respect to GX.

59. [269]

    At the conclusion of the summing up, neither counsel for the Applicants nor the Crown sought any further directions and the trial Judge invited the jury to retire to consider their verdicts at 12.47 pm on 7 June 2018 (SU75).

60. [270]

    After lunch, the jury sent a note requesting the transcript for all witnesses and a copy of the complainant’s police statement. The trial Judge provided the jury with the trial transcript but, in accordance with usual practice, declined to provide the complainant’s police statement which was not in evidence (SU76-77). The jury continued their deliberations for the balance of the day.

61. [271]

    On the morning of Friday, 8 June 2018, the jury sent a note seeking further assistance on the meaning of “sexual intercourse” in the context of oral contact and penetration. Her Honour gave further directions in response to this request (SU83-85). Jury deliberations continued until 3.51 pm when the jury were released for the day to return on Tuesday, 12 June 2018 (Monday, 11 June 2018 being the Queen’s birthday public holiday).

62. [272]

    On the afternoon of 12 June 2018, the jury sent a further note seeking assistance in the event of disagreement. Her Honour noted that the jury had been deliberating for some 11 hours by that time and decided to give a Black direction (Black v The Queen (1993) 179 CLR 44; [1993] HCA 71). The Black direction was given to the jury at 3.23 pm on that day (SU88-90).

63. [273]

    On the morning of 13 June 2018, the jury returned the verdicts set out earlier in this judgment.

64. [274]

    In support of Grounds 3, 4, 5 and 6, the Applicants submitted that, despite the absence of any application for further directions being made to the trial Judge, a number of directions given to the jury operated unfairly to the Applicants so as to give rise to a miscarriage of justice.

65. [275]

    To assist the Court to better understand what counsel for the Applicants submitted that the jury ought to have been told by the trial Judge, counsel were requested to furnish a document after the hearing which set out directions now said to have been required in this case. The document was furnished jointly by Mr Odgers SC for GX and Mr Lange for FX.

66. [276]

    Counsel were requested to identify, with respect to each of Grounds 3, 4, 5 and 6, what it is that counsel contend the trial Judge ought to have said to the jury.

67. [277]

    With respect to Ground 3, it was submitted that, in place of what was said in the final paragraph of the quotation at [264] above, the trial Judge ought to have said to the jury:

68. [278]

    With respect to Ground 4, the Applicants submitted that the following additional direction should have been given at the end of the third paragraph of the quotation at [264] above:

69. [279]

    Also in connection with Ground 4, the Applicants submitted that the following additional words (underlined) should have been used as part of the fourth paragraph of the quotation at [266] above:

70. [280]

    With respect to Ground 5, the Applicants submitted that the following words should have been included immediately after the formula of words relating to Ground 3 (see [264] above):

71. [281]

    In the alternative, if the direction was retained, it was submitted by the Applicants that the following further direction ought to have been given:

72. [282]

    With respect to Ground 6, the Applicants submitted that, when the trial Judge was reminding the jury of the Crown submissions, the following should have been said immediately after the extract from the Crown closing address at SU68 (see [267] above):

73. [283]

    As noted earlier (at [258]), the Crown had put to FX in cross-examination that his evidence was “rehearsed” and “prepared” after hearing the evidence of GX, but GX had not been cross-examined as having constructed with FX a “rehearsed” or “prepared” account to be given in evidence. Nor was it proposed that GX be recalled to allow these propositions to be put to him before closing addresses.

74. [284]

    With respect to the proposed directions contained in the document provided after the hearing, the Crown did not submit that the directions now proposed by the Applicants in respect of Grounds 3, 4 and 5 are wrong or that it would not have been appropriate for the trial Judge to give them had they been requested. However, the Crown submitted that it was not necessary for the trial Judge to direct the jury in the manner suggested under Ground 6 having regard to the submission made by the Crown Prosecutor.

75. [285]

    The Crown submitted that discussion of these draft directions did not advance the ultimate issue before this Court, namely whether the trial Judge erred in failing to give any one or more of the directions now suggested on behalf of the Applicants and, if so, whether the failure to give the direction or directions gave rise to a miscarriage of justice as against either Applicant.

76. [286]

    The Crown submitted that it is not to the point that counsel who now appear for the Applicants would, if they had been appearing for the Applicants at the trial, have conducted the trial differently or sought further directions or that, with the advantage of time, it might be possible to perfect the directions that were given.

77. [287]

    The Crown submitted that the failure to give the directions now sought did not, either individually or in combination, give rise to a miscarriage of justice as against either Applicant.

78. [288]

    With respect to the proposed directions under Ground 5, said to be in the alternative, the Crown submitted that they cannot be properly characterised as being alternative submissions. The Crown submitted that they raise different aspects of the evidence given by the Applicants at trial and that the second alternative formulation now suggested does not fall within Ground 5.

79. [289]

    Rule 4 Criminal Appeal Rules applies to Grounds 3, 4 and 5.

80. [290]

    In Roach v R, the relevant principles concerning Rule 4 were set out at [40]-[42]:

81. [291]

    The matters raised by Grounds 3, 4, 5 and 6 involve overlapping issues. They concern the way in which aspects of the evidence at the joint trial of the Applicants are now said to have given rise to error and unfairness to one or other of the Applicants so as to constitute a miscarriage of justice for one or both of them.

82. [292]

    With respect to Ground 3, there is some force in the submission made for the Applicants that a clear and direct statement ought to have been made to the jury by the trial Judge that allegations against FX were inadmissible against GX and vice versa and that the absence of a clear statement to this effect raises for consideration the question whether a miscarriage of justice has resulted.

83. [293]

    A related ground is contained in Ground 4 where complaint is made that there was no express statement by the trial Judge to the jury that statements made by one Applicant during the iPad conversation were not admissible against the other Applicant. Once again, the preferable course would have been for such a direction to have been given. However, the question is whether unfairness has been demonstrated to one or other or both of the Applicants in this respect and whether a miscarriage of justice has resulted in the sense that either Applicant has lost a real chance (or a chance fairly open) of acquittal.

84. [294]

    With respect to Ground 5, there is force in the Crown submission that the second allegedly alternative limb of the direction sought by counsel for the Applicants in truth sought to raise a fresh ground of appeal.

85. [295]

    The remaining complaint contained in Ground 5 once again gives rise to concern with respect to the blurring in the trial of the limitations upon the use of evidence of what one Applicant said and the need to ensure that the jury considered only evidence admissible against one Applicant in reaching verdicts concerning that Applicant.

86. [296]

    There were some unusual features of this trial which rendered it difficult to untangle aspects of the evidence. The iPad conversation involved a three-way conversation between SX, FX and GX and, once it was held to be admissible, it would have been virtually impossible to edit it in a manner which would leave it intelligible. Further, the recording of the iPad conversation and the evidence of each of FX and GX concerning that conversation suggest that each Applicant took into account what the other said, and why he had said it, in a manner which would make it difficult to redact the iPad conversation and any transcript of it in a meaningful way.

87. [297]

    Although the Applicants were not alleged to have committed any offences jointly, it was the case that each of them were brothers and that Sarah alleged that offences were committed in the same premises at different times. There was common evidence which affected the allegations in that way. Further, part of the evidence was the recording of a conversation between the Applicants when they were both located in a police cell after they had been arrested.

88. [298]

    Although it is possible to identify what would have been, in several respects, preferable directions to be given to the jury in the context of this trial, the question is whether the failure to give the directions advanced in this Court has given rise to a miscarriage of justice for either Applicant in the manner explained in Roach v R at [290] above. I keep in mind that a fair trial does not mean a perfect trial: ML v R [2015] NSWCCA 27 at [69].

89. [299]

    The following features are of particular relevance in the unusual circumstances of this trial.

90. [300]

    Firstly, the iPad conversation was admitted at trial and that ruling is not challenged in this Court. The iPad conversation involved a discussion in which each Applicant made damaging admissions concerning his conduct towards the complainant with respect to events which did not take place in the presence of the other Applicant. It was clear that admissions made by one Applicant related to him alone. The three-way conversation between FX, GX and SX during the iPad conversation entangled the accounts given by FX and GX in a way that served to explain why a joint trial was sought by the Crown and consented to by the Applicants. This is confirmed by the opening address to the jury by counsel for the Applicants and the manner in which the trial was conducted on behalf of each Applicant.

91. [301]

    Secondly, each Applicant gave evidence at the trial and gave similar explanations to the jury for admissions made by each of them to SX during the iPad conversation. It was open to the Crown to cross-examine FX (who gave evidence after GX) and to suggest that there was a desire on the part of FX to adopt the same line of defence or explanation concerning what had been said by each of them to SX in the iPad conversation. It was put to FX that his answers in evidence had been “rehearsed” (see [116] above). However, a problem arose for GX in the way in which FX was cross-examined about this in a manner which was damaging to GX without GX having been cross-examined on these matters. This was compounded by the Crown closing address which attacked GX as well as FX in this respect. The trial Judge repeated the Crown submission on this issue to the jury without qualification or further direction. Of course, her Honour was not asked to give a further direction. Thus, Rule 4 is raised and it is necessary to consider whether GX should be granted leave in this respect.

92. [302]

    Thirdly, admissions had been made by each Applicant as well during the separate pretext conversations with Sarah so that it was necessary for each Applicant to seek to explain why those things had been said. It is the case that FX made clearer and more damaging admissions to Sarah than did GX in his separate telephone conversation. This was a notable area of difference between the Crown cases against each Applicant.

93. [303]

    Fourthly, each Applicant sought to explain what appeared to be cogent admissions asserting sexual interest on the part of the very young complainant - there were overlapping lines of defence adopted by each Applicant which the jury was well entitled to reject.

94. [304]

    Fifthly, in these ways, the trials of each Applicant were intertwined, largely by their own words in recorded conversations and in evidence at trial, so that this provides the context or setting in which the Court must consider the claim that one or both of the Applicants lost a real chance (or a chance fairly open) of being acquitted because trial counsel did not seek directions as now sought under Grounds 3, 4 and 5.

95. [305]

    It is necessary to consider the position of each Applicant separately. I have considered the submissions made for each Applicant. Mr Odgers SC submitted that GX suffered unfairness through the failure of the trial Judge to give directions to the jury, in particular to remedy the matters complained of in Grounds 5 and 6.

96. [306]

    In the atmosphere of this trial, the fact that counsel appearing for each Applicant made no application for any further direction is significant. It indicated that counsel did not consider there was unfairness for either Applicant as a result of the directions given to the jury. I observe that no ground or submission asserted that trial counsel for the Applicants was incompetent: TKWJ v The Queen at [79]; Davis v R [2017] NSWCCA 257 at [59]; Roach v R at [154]-[158].

97. [307]

    A real area of concern and unfairness to GX arises from the cross-examining of FX in a manner adverse to GX and the Crown submission which was critical of GX, advanced in the absence of cross-examination of GX on those matters. The trial Judge repeated the Crown submission to the jury (see [267] above). I am satisfied that this combination of events gave rise to unfairness to GX in the context of this trial. GX lost a real chance of acquittal as a result so that he should be granted leave under Rule 4 to rely upon Ground 5 in this respect as a miscarriage of justice has been demonstrated. I would uphold Grounds 5 and 6 with respect to GX as a result.

98. [308]

    I am not persuaded that FX lost a real chance of acquittal as a result of the matters complained of in Grounds 3, 4 and 5. FX has not demonstrated unfairness in the trial nor a basis upon which he should be granted leave to rely upon Grounds 3, 4 or 5.

99. [309]

    Nor am I persuaded that FX has made good Ground 6 insofar as it relates to him. Any unfairness arising from the Crown closing address affected GX only.

Returning to Ground 2

1. [310]

   It is appropriate to return at this point to Ground 2 which asserted that a miscarriage of justice arose as a result of the Applicants being tried jointly. I noted earlier (at [210]) that I would return to this ground after Grounds 3 to 6 had been considered.

2. [311]

   The Applicants consented to a joint trial for the purpose of s.29(2)(a) Criminal Procedure Act 1986. For the purpose of considering Ground 2, I am prepared to assume (without deciding) that it is open to a convicted person to seek to appeal against conviction asserting a miscarriage of justice as a result of being tried jointly with another person, even where an application for a separate trial was not made.

3. [312]

   It is appropriate to consider after the event whether a miscarriage of justice has occurred as a result of the Applicants being tried jointly: R v Pham; DR v R [2019] NSWCCA 320 at [18]ff.

4. [313]

   This was an unusual trial where the evidence to be adduced by the Crown (in particular the iPad conversation and the conversation between the Applicants whilst in custody) and the response of each Applicant to the charges brought against him were such that a joint trial was considered appropriate by the parties. Having considered the areas of evidence which bore upon this approach, this was an understandable position so that the holding of a joint trial itself was not contrary to law nor did it give rise to any inevitable injustice.

5. [314]

   The evidence of each Applicant before the jury, and the common approach of each of them in response to the charges, tended to fortify the approach that a joint trial was appropriate. Each Applicant sought to explain what he had said in the iPad conversation in a similar way.

6. [315]

   However, for reasons expressed (at [300]-[307] above), I am satisfied that GX has demonstrated a miscarriage of justice arising from his joint trial with FX in the particular and confined respect arising from the cross-examination of FX, the Crown closing address and the trial Judge’s summary of the Crown closing which operated unfairly to GX so that he lost a real chance of acquittal. The Crown case against GX was not as strong as the case against FX which contained telling and repeated admissions made by him to SX and (importantly) to Sarah in the pretext call.

7. [316]

   Apart from that aspect of the trial, however, I am not satisfied that any other feature of the joint trial of the Applicants resulted in a miscarriage of justice for either of them.

8. [317]

   I would uphold Ground 2 in this confined respect concerning GX, but otherwise dismiss the ground with respect to GX and FX.

Ground 7 - A Miscarriage of Justice Arose as a Result of Aspects of the Crown Prosecutor’s Closing Address to the Jury

1. [318]

   Counsel for the Applicants submitted that aspects of the Crown closing address to the jury gave rise to a miscarriage of justice in accordance with the principles in Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31].

2. [319]

   Firstly, it was submitted that the Crown had contrasted the demeanour of Sarah with that of the Applicants and in doing so, expressed her personal opinion.

3. [320]

   Secondly, it was submitted that the Crown improperly attempted to appeal to the jury’s emotions.

4. [321]

   Thirdly, it was submitted that the Crown sought to appeal to the individual experiences of each member of the jury.

5. [322]

   Fourthly, it was submitted that the Crown Prosecutor had referred to the evidence of the Applicants in a belittling fashion.

6. [323]

   It was submitted for the Applicants that the cumulative effect of these Crown submissions gave rise to a miscarriage of justice, especially when this ground is considered in combination with the sixth ground of appeal.

7. [324]

   The Crown submitted that the matters which are the subject of complaint in Ground 7 were not the subject of any complaint or application by counsel who appeared for the Applicants at trial, and that this was a strong indication that defence counsel did not regard what was said by the Crown as being improper, much less productive of a miscarriage of justice.

8. [325]

   The Crown submitted that the aspects of the closing address about which complaint is made involved submissions which were open to the Crown in the context of the trial and which did not disclose a foundation for a finding that a miscarriage of justice occurred.

9. [326]

   Before moving to consider the areas of complaint in the Crown closing address, it is appropriate to commence with some basic principles relevant to determination of a ground such as this. In Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330, this Court (Beazley P, Schmidt and Button JJ) said at [265]-[275]:

10. [327]

    This statement of principles is not affected by the decision of the High Court of Australia in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20.

11. [328]

    The first area of complaint was that the Crown Prosecutor expressed her personal opinion during the closing address to the jury. Reference was made to the emphasised words appearing in the following passage (T392):

12. [329]

    Complaint was made about the Crown closing address which referred to Sarah’s evidence in the following way (T393):

13. [330]

    Counsel for the Applicants sought to contrast submissions made concerning the credibility of Sarah with submissions which described the evidence as the Applicants as being “rehearsed, staged, acted in my submission to you. That’s what we saw from the two … men in the witness box” (T385) (the full passage appears at [256] above).

14. [331]

    It was submitted that the Crown had placed her personal opinion before the jury contrary to what was said in Hughes v R at [273].

15. [332]

    The Crown in this appeal accepted that the opening words of the Crown at trial at [328] above constituted an unorthodox way of suggesting a view that might be taken by the jury, but noted that the Crown had immediately corrected herself reminding the jury that “this is a matter for you”.

16. [333]

    I accept the Crown submission concerning this aspect. To the extent that the Crown introduced her own opinion, it was immediately qualified in an appropriate way so that there was no maintenance of a position which operated contrary to the principles in Hughes v R concerning a Crown address.

17. [334]

    With respect to the other complaints made under the first heading advanced by the Applicants, I see no difficulty with the Crown submissions which sought to contrast the evidence of Sarah with the evidence of the Applicants. The Crown Prosecutor was entitled to forcefully and firmly put the prosecution case to the jury: Hughes v R at [269].

18. [335]

    The second area of complaint under this ground contended that the Crown had improperly attempted to appeal to the jury’s emotions. In this regard, reliance was placed upon the following part of the Crown closing address (T391):

19. [336]

    It was submitted for the Applicants that the appearance of Sarah when she was five or eight years of age could have no logical bearing on the likelihood or otherwise of her capacity to recall events said to have taken place when she was aged between six and 12 years. It was submitted that this comment must have been intended to rouse revulsion in the minds of the jury in a manner which contravened the principle referred to in Hughes v R at [268].

20. [337]

    The Crown submitted with respect to this complaint that the effect of the Crown submission was to remind the jury that the young woman they saw give evidence was not the young girl who had been allegedly indecently and sexually assaulted by one or other of the Applicants. The submission drew the jury’s attention to the need to have regard to the delay between the time when the offences were alleged to have been committed and the time when Sarah gave evidence and the impact of that delay on her memory. It was submitted that the fact that the Crown did so by reference to photographs did not alter the position. The use of photographs reinforced the point that Sarah was much younger when the offences were allegedly committed than when she gave evidence. A similar submission that included reference to photographs of complainants was considered in Hughes v R at [297], and was regarded as uncontroversial.

21. [338]

    It is necessary to keep in mind that the Crown is entitled to advance the prosecution case forcefully and firmly using adversarial skills in that respect. In this trial, the jury had photographs of Sarah in evidence. The Crown was entitled to remind the jury of the age of Sarah at the time of the alleged offences and the passage of time between then and the occasion when she was giving evidence at the trial. It was open to the Crown to make submissions challenged under this heading.

22. [339]

    The third area of complaint by the Applicants concerns the Crown submission (T391-392) which invited the jury to consider what they were doing on their sixth, eighth or 15th birthday as a means of assessing the evidence of Sarah who was relaying information which had occurred some 14 to 20 years before. It was submitted that this distracted the jury from a proper collective approach to the consideration of issues of that type: GDD v R at [105], [121].

23. [340]

    The Crown submitted that it was open to the Crown to address the jury in these terms to draw upon their own experience of memory in assessing any perceived deficiencies in Sarah’s memory of events which she said had occurred. In this way, it was submitted that the Crown was inviting the jury to bring to bear their collective experience in life in the sense of it being an experience that each of them had. The Crown submitted that what was said in this case was readily distinguishable from the submission which was criticised in GDD v R.

24. [341]

    I accept the Crown submission on this issue. What occurred in this case is distinguishable from that which was criticised in GDD v R. It was open to the Crown to advance submissions to the tribunal of fact which invited them to consider the issue of memory of past events by reference to their own experience.

25. [342]

    This was not an invitation to the jury to consider their own idiosyncratic experiences or memories singularly or on their own. Rather, the jury was being addressed as a group and were invited to consider the issue of memory, and the passage of years from childhood to adulthood, as part of the process of assessing the evidence of Sarah.

26. [343]

    Nothing said in this part of the Crown closing contravened any rule or principle applicable to the conduct of the Crown at a criminal trial.

27. [344]

    The fourth area of complaint concerns submissions made by the Crown to the jury with respect to the evidence of the Applicants. The Crown Prosecutor referred to the evidence of the Applicants as “simply ludicrous, it borders on the absolute ridiculous” (T383) and as “defying belief” (T384). It was submitted for the Applicants that this submission belittled or ridiculed the evidence of the Applicants in a manner which contravened what was said in Hughes v R at [270] and that the comments were improper in a similar manner to the Crown submission criticised in Hughes v R at [300].

28. [345]

    The Crown submitted that what was said to the jury in this respect must be considered in context, the Crown having submitted shortly before that “They confessed to sexually inappropriate behaviour with the complainant to calm [SX] down to resolve the matter, to pacify her” with this evidence being submitted by the Crown to be “simply ludicrous” or bordering on the “absolute ridiculous”. It was submitted that the Crown was entitled to use strong language in a submission with respect to a feature of the case which was reasonably open to strong challenge.

29. [346]

    The Crown submitted that the prosecutor in a criminal trial is not prohibited from firmly calling upon the jury to reject a defence case as being inherently unbelievable: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; Hughes v R at [269]. In Hughes v R, the Court held that it was not inappropriate for a Crown Prosecutor to describe a defence case or evidence as “inherently unreliable” or “incredible”: Hughes v R at [283].

30. [347]

    It is necessary to consider this complaint with respect to the Crown closing address in context. There had been a strong challenge in cross-examination of each Applicant with respect to this part of the evidence of each of them. Having cross-examined each Applicant in that way, it was equally open to the Crown to make a forceful submission to the jury with respect to the credibility or otherwise of the evidence of each Applicant. The Crown was submitting that the evidence of each Applicant was inherently unbelievable: Hughes v R at [269]. In reaching this conclusion, I put to one side the aspect of GX’s appeal which I propose to uphold.

31. [348]

    The submission made to the jury in this respect was open to the Crown and does not attract reasonable criticism.

32. [349]

    I have considered the cumulative effect of the matters complained of under the seventh ground of appeal. I do not consider that the cumulative effect of these matters assists the Applicants in this case. Neither the individual nor cumulative effect of these aspects of the Crown closing address gave rise to a miscarriage of justice for either Applicant in this case.

33. [350]

    I would reject the seventh ground of appeal.

Conclusion

1. [351]

   I would grant GX leave under Rule 4 Criminal Appeal Rules to rely upon Ground 5 and would uphold Grounds 2, 5 and 6 arising from the particular features of the trial addressed in this judgment (at [300]-[307] above).

2. [352]

   I note that the Crown did not seek to rely upon the proviso in s.6(1) Criminal Appeal Act 1912 (T56, 19 February 2020).

3. [353]

   I would allow GX’s appeal and order that his convictions be quashed and that a new trial be ordered.

4. [354]

   FX has not made good any grounds of appeal. Leave to rely upon Grounds 3, 4 and 5 should be refused. I would grant FX leave to appeal, but dismiss his appeal.

5. [355]

   I propose the following orders:

6. [356]

   PRICE J: I agree with Johnson J and the orders he proposes.

7. [357]

   DAVIES J: I agree with Johnson J.