JC v R

1. [1]

   ADAMSON JA: JC (the applicant) seeks leave to appeal against his convictions entered on 29 October 2021, following a trial by judge alone before Arnott SC DCJ (the trial judge), for the following offences:

2. [2]

   On 19 October 2021, following a no case to answer application, the applicant was acquitted of count 1 on the indictment, which charged the following offence:

3. [3]

   The applicant seeks leave to appeal against his convictions on counts 2 and 3 on the following grounds:

4. [4]

   On 18 November 2022, the trial judge imposed a sentence for count 2 of 4 years’ imprisonment, commencing 23 June 2022, expiring on 22 June 2026, with a non-parole period of 2 years and 7 months, expiring on 22 January 2025. The trial judge imposed a sentence for count 3 of a fixed term of imprisonment of 6 months’ to be served concurrently. The applicant has foreshadowed an application for leave to appeal against sentence, if the conviction appeal is unsuccessful, but has not yet brought such an application.

5. [5]

   Appeal bail was granted by a single judge on 14 February 2023: R v JC [2023] NSWSC 111. It was granted on the erroneous assumption that the applicant would, if bail were not granted, spend up to 18 months in custody pending determination of the appeal.

6. [6]

   By reason of the breadth of the grounds, and in particular the unreasonable verdict ground (ground 5), it is necessary to set out in some detail the course of the trial, including the evidence adduced, as well as the primary judge’s reasons for verdict, which were delivered on 29 October 2021.

7. [7]

   It was accepted that leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules) was required in respect of grounds 1 and 2 and that leave to appeal was required in respect of all grounds.

The trial

1. [8]

   The indictment which charged the applicant with three offences (including counts 2 and 3) was presented on 6 October 2021. He pleaded not guilty to all three counts. As he was found not guilty of count 1, it is not necessary to address it further.

2. [9]

   The offence created by s 91H of the Crimes Act 1900 (NSW) is subject to a “defence” in s 91HA, which relevantly provides:

3. [10]

   The question whether, in order to prove a charge under s 91H, the prosecution must negative s 91HA beyond reasonable doubt or whether an accused person must establish s 91HA on the balance of probabilities has not been determined authoritatively. It was common ground that the trial of the applicant on count 3 was conducted on the basis that the prosecution was obliged to negative s 91HA beyond reasonable doubt. This was the construction of the provision which was most favourable to the applicant. Accordingly, it is not necessary to resolve the question of statutory construction as it does not presently arise.

4. [11]

   The Crown called AS (the applicant’s wife), BH (a former sexual partner who lived with AS and the applicant), LO and ZZ (who gave evidence of complaint) and Detective Senior Constables Carland and Francis (investigating police officers). It tendered text messages between the applicant, AS and BH; the video of the search warrant of the applicant’s home and evidence about the computers found in the applicant’s home.

5. [12]

   AS gave evidence that she commenced a relationship with the applicant in 2011, just before she turned 19 and when the applicant was about 22. In December 2012, they started living together in a de facto relationship. Their sexual relationship involved role playing, including “incestual power dynamics”, during which AS would call the applicant “Daddy” and she would, in response to his requests, portray herself as a young girl who wanted to have sex with a father figure. AS searched online for incest fiction, which she would read to the applicant or use the story lines when they were having sex. The applicant pressured AS to discuss her “deepest, darkest fantasies”.

6. [13]

   The applicant introduced AS to a website called “Rule 31” or “Rule 35”, which allowed users to search a character’s name or image and find pornographic cartoons or illustrations of that character.

7. [14]

   In June 2014, the applicant and AS moved to a house in Brisbane. At about this time she became pregnant with their child, RC (who is the alleged victim in count 2). Once during August and October 2014 (when AS was pregnant), the applicant had sex with AS while he was looking at photographs which depicted naked people, including children.

8. [15]

   After this occasion, AS suggested that they look at hentai pornography (which comprised cartoons rather than photographs) to direct the applicant away from real life pictures. The hentai that she looked at comprised cartoons of (adult) women who appeared young and innocent, sometimes provocatively posed or having sex with a male authority figure, typically a teacher or father. AS and the applicant would watch it together on a laptop in the living room or on the computers in the house. They also sent pictures to each other’s phone while the applicant was at work. AS believed that it was “safer” for the applicant to look at these pictures rather than looking at images of children.

9. [16]

   AS gave evidence about a discussion they had about the age of the female which AS was to role-play during sexual activity as follows:

10. [17]

    While they were having sex following this discussion, the applicant told her that he wanted to put their daughter (who was then in utero) on top of AS and ejaculate on her.

11. [18]

    The applicant and AS married in Queensland in February 2015. RC was born in March 2015. After RC’s birth, AS told the applicant that she did not always want to role play and sometimes wanted to have “normal sex”. Because the applicant rejected AS sexually and emotionally when she refused to engage in role play, she continued to engage in it when having sex with the applicant.

12. [19]

    The applicant became sexually aroused when AS was breastfeeding RC, which would lead to sexual intercourse. He began to want sexual intercourse more frequently than AS did and complained that she was not fulfilling her “duty as a wife”.

13. [20]

    In late 2015, the applicant began asking AS about her “darker fantasies” while she was performing fellatio on him. She recounted the plots of some of the erotic incest fiction which she had read. She also told him that when RC was older, she could teach her how to touch the applicant’s penis to please him. This caused the applicant to become more aroused. AS heard RC waking from her sleep. AS went to the living room, picked RC up and carried her into the bedroom. AS sat on the floor and breastfed RC, who was about 8 months old and resumed her stimulation of the applicant. The applicant told AS to lie on the bed. The applicant picked up RC and placed her on AS’s stomach. The applicant then had sexual intercourse with AS, afterwards ejaculating on top of AS and RC (the 2015 uncharged act).

14. [21]

    In January 2016, AS expressed her discomfort to the applicant about the 2015 uncharged act and said that she did not want anything like that to happen again. She explained that it was triggering for her as she had been the victim of sexual assault as a child. The applicant responded by arguing that the 2015 uncharged act was different because he and AS loved RC.

15. [22]

    The applicant’s sex drive was greater than AS’s during this period, which led to a discussion about the applicant finding a third person to have sex with. They made a profile on the Tinder dating application, to which BH responded.

16. [23]

    In about 2016, AS saw on the applicant’s phone photographs depicting young girls aged around 12 years old, posing provocatively.

17. [24]

    In about July 2016, the applicant and AS met BH, who was then 29 years old, on Tinder. She spent the weekend with them in the course of which they engaged in sexual activities. About a month or two later, BH moved into their house.

18. [25]

    BH’s evidence was that the applicant asked her to call him “Daddy” fairly early on. She asked him about “sir or master” but he “definitely wanted daddy”. BH said that the applicant used to try to make her “physically small”. He would also “tuck” her arms and legs “just to make [her] more compact”. He also asked her to play the role of RC. She “was worried that he was thinking of actually seriously doing something.” He used to say that “he was doing it for [BH’s] sake, because [BH] was the one that had the fetishes”.

19. [26]

    BH’s evidence was that in the course of her sexual relationship with the applicant, he had asked her to pretend to be RC, to be a child and that she was teaching RC how to please him in a sexual way. If she did not call the applicant “Daddy” he would have tantrums, which lasted for days.

20. [27]

    BH also gave evidence that sexual intercourse with the applicant would go on for hours until it hurt and “usually the only way to stop it was by calling him daddy and that was when he would come [ejaculate]”. The applicant would send her messages on her phone, including one of a children’s beauty contestant who “looked like she was covered in cum”. BH also found images on his computer of teenagers having sex with fathers or uncles. She recalled seeing images of “loli porn” (hentai pornography depicting children) on either the applicant’s or AS’s computer, which depicted “very small children”, but she could not remember the sexual acts which they were performing.

21. [28]

    BH gave evidence that through her discussions with AS about AS’s sexual interests, BH learned that AS had read incest fiction online. However, BH’s evidence was that AS had never said anything that suggested that AS had a sexual interest in children or in sexual conduct between children.

22. [29]

    On an occasion after August 2016, AS wanted to reassure the applicant, who was complaining that she was not giving him sufficient love and attention. They were both naked and being intimate, when RC came into the room. AS picked the child up and put her on her lap. The applicant started undressing RC, alleging that her nappy was wet. AS told him that it did not matter but the applicant continued to undress RC, removing all of RC’s clothes as well as her nappy. The applicant said, “this is our child, she’s ours, we love her, we made her”, while he masturbated. At that time, AS, who was holding RC, told her that she loved her and it was okay. The applicant pushed AS, which caused her to lie down. He placed RC on top of her, in a similar way to the 2015 uncharged act. The applicant said he loved them. He applicant put his penis on RC’s vagina and ejaculated.

23. [30]

    Another occasion of uncharged conduct took place when the applicant used RC’s hand to grasp AS’s hand and then guide both hands to touch his penis. AS pulled her hand away “because [she] didn’t want to feel it”.

24. [31]

    In January 2017, the applicant was transferred from Brisbane to Army Barracks in Sydney. He, AS, RC and BH moved to a residence nearby (the Sydney residence).

25. [32]

    In February 2017, AS was checking on RC who was asleep on their bed. The applicant followed her into the room and tried to push AS’s head towards RC’s vagina. AS understood that the applicant wanted her to lick RC’s vagina. She pushed the applicant away and left the room.

26. [33]

    In March or April 2017, the applicant and AS were in the Sydney residence having sexual intercourse. RC was sleeping next to AS. When RC woke up, AS tried to breastfeed her. The applicant continued having sex with AS throughout. The applicant moved RC so that the child’s vagina was above AS’s face. AS pushed RC back down into a better position for breastfeeding and told the applicant “No, it’s very uncomfortable.” AS pushed the applicant off her and turned herself around so that she was on her hands and knees with RC beneath her so she could still breastfeed. The applicant was having penile-vaginal sexual intercourse with AS from behind. AS stopped him as she was still uncomfortable. The applicant appeared to be hurt or rejected. AS laid on her back so that she could be in a better position to breastfeed.

27. [34]

    AS initially gave evidence that she could not recall how RC was positioned and whether she or the applicant had placed RC on her stomach. She expressed some uncertainty about where the applicant’s penis was. However, she recalled that the applicant was masturbating before he “ejaculated on [them] again”. The relevant passages are as follows:

28. [35]

    AS later gave evidence that the applicant had placed his penis on RC’s vagina and ejaculated on her.

29. [36]

    Afterwards, the applicant apologised to AS and promised never to do anything to hurt RC. AS refrained from telling him that what he had done was wrong because he already seemed very sad and appeared to feel guilty. She said:

30. [37]

    However, this incident caused AS to feel guilty and scared. She asked BH whether BH had experienced anything “weird” in her sexual relationship with the applicant. AS told BH of her concern about the applicant’s sexual fantasies about playing “Daddy” but did not tell her of the incidents which had involved RC as she was “ashamed”. BH confirmed to AS that her sexual relationship with the applicant involved similar role play in a sexual context but that she did not think that the applicant would harm RC.

31. [38]

    After speaking with BH, AS told the applicant that she did not like what was happening (involving RC) and that she wanted it to stop. She imparted her concern that that recent conduct was having the effect of reinforcing his sexual interest in children. This conversation caused their relationship to break down.

32. [39]

    During the first half of 2017, after the conduct that comprised count 2, AS observed that the applicant had an application called Kik on his phone. In his absence, she checked his phone and clicked on an unread message on the Kik application which depicted a video of a penis about to be inserted into the mouth of a child of about five years of age.

33. [40]

    In about May 2017, AS and BH ended their relationship. In about June 2017, AS decided to end her relationship with the applicant but it was not until November 2017 that AS was able to find alternative accommodation. During November 2017, she ended her sexual relationship with the applicant and moved out of the Sydney residence to a unit in Liverpool, taking RC with her. The agreement between AS and the applicant at that time was that they would have joint custody of RC, who would spend equal time with each of them. AS gave evidence that she believed that RC would be all right because BH was still living in the Sydney residence with the applicant.

34. [41]

    In January 2018, the relationship between BH and the applicant ended and BH moved out of the Sydney residence.

35. [42]

    In about January 2018, AS met LO and ZZ (a couple). ZZ gave evidence that he met AS on Facebook. In March 2018, ZZ introduced LO to AS, which led to a polyamorous triad. LO’s evidence was that AS commented that she enjoyed having “normal sex”, as sex with the applicant had always involved role play which met his “deep, dark” fantasies and that he enjoyed having sex with RC in the room, particularly when AS was breastfeeding RC. LO’s response was that that was “really messed up”, which caused AS to start crying.

36. [43]

    ZZ gave evidence that AS told him that the applicant verbally abused her and that he used discussions about RC as an excuse to question her.

37. [44]

    ZZ gave evidence that he met BH through AS. When they met, BH was still in a relationship with the applicant. AS gave evidence that, on 5 May 2018, she spoke, in the presence of BH, to LO and ZZ about her fears for RC while RC was in the applicant’s custody.

38. [45]

    BH’s evidence of this conversation was that they spoke about the applicant and about AS’s fears that he might be a paedophile. BH recalled that AS said that the applicant wanted to have sex with her while RC was in the bedroom and that she had also said something about “him trying to get her to have sex … with [RC]”. BH said that AS was “very, very teary [and] very, very emotional”. BH told her that she should report it. Later, AS sent her a text to say that she had reported it.

39. [46]

    BH also gave evidence of AS’s previous conversation with her in which AS told her that the applicant had been wanting to have sex with her while RC was in the room and that he had had sex with her while she was breastfeeding RC. BH described AS as being “[a]ll over the place … really shaky, crying a bit … very, very anxious, very teary”.

40. [47]

    LO gave evidence that she witnessed a conversation between AS and BH as follows:

41. [48]

    LO’s evidence was that both AS and BH were “[q]uite emotional and upset” during the conversation. LO also gave evidence that AS told her that she was seeing a psychologist, who had told her that she was required to report what AS had told her. When AS told LO this, AS was, according to LO, “upset”. LO’s relationship with AS ended in July 2018.

42. [49]

    On 7 May 2018, AS also told a female counsellor at Headspace about what had happened. As a result of the discussions with the counsellor, AS realised that the applicant’s conduct amounted to child abuse. AS explained that sexual abuse had been normalised in her background and that, although she did not like the applicant’s behaviour, she only realised that it was wrong when she spoke to a counsellor. The counsellor told AS that she was obliged to report it and suggested that AS also report it. As a consequence, AS reported the incidents to Child Services on the same day (AB 198). On 8 May 2018 NSW Police contacted AS who made a statement. On 9 May 2018 the applicant was arrested and charged with counts 1 and 2 on the indictment.

43. [50]

    The prosecutor alleged that the applicant had the following tendencies: to have a sexual interest in, be sexually aroused by, and engage in sexual acts with or involving, his daughter RC; to have a sexual interest in incest between a father and a young daughter; to obtain sexual gratification from sexualised role play in which a woman plays the role of a young child; and to have a sexual interest in young female children depicted in images. Much of the evidence in support of these tendencies has been referred to above.

44. [51]

    The applicant’s trial counsel challenged BH on the evidence she had given in chief that she had called the applicant “Daddy” because he wanted her to and not because she became sexually aroused by it. He put to her the profile which she had posted on a fetish website (the Fetish Website), in which she set out her sexual fetishes, including that she described herself as a “brat”, a submissive person who wanted to be forced to do things in sex and indicated that she had an interest in “daddy/mummy” and “age play”.

45. [52]

    BH’s profile had been created after she had ended her relationship with the applicant and AS. The following exchange occurred in her cross-examination:

46. [53]

    However, later in her cross-examination, BH said:

47. [54]

    In re-examination, BH confirmed that when she was seeing the applicant, she did not belong to the BDSM (bondage-discipline-submission-masochism) community and did not understand about having conversations about drawing boundaries. At the conclusion of BH’s re-examination, the trial judge asked the following questions and received the following answers:

48. [55]

    On 10 May 2018, NSW Police executed a search warrant of the Sydney residence, which continued to be the applicant’s home. As referred to above, both AS and BH had moved out by then. A Western Digital external hard drive was found under the applicant’s computer desk. On examination, the hard drive was found to contain 1,334 images classified as child abuse material. This led to the applicant being charged with count 3 on the indictment.

49. [56]

    Detective Sergeant Carland gave evidence that AS gave police her username and password which police used to access her Facebook account and download the archive of all the messages that were contained in the account under that username.

50. [57]

    Detective Senior Constable Francis, the officer in charge of the matter, first met AS on 8 May 2018. On that day he took a statement from her. He took a further statement from her on 14 May 2018, which contained further detail about the events she had described in her first statement. On 23 January 2019, AS participated in a recorded interview. The interview was paused in order to place AS under arrest. AS was not ultimately charged with any offence.

51. [58]

    In October 2020, the applicant, through his solicitor, provided messages between himself and AS to the prosecutor. The messages included discussions about incest. Detective Francis gave evidence that she had not seen these messages before, or any about incest, as they were not included in the earlier material to which AS had allowed police access. When police asked AS to make a further statement about these messages, AS said that, following legal advice, she would not do so unless it was by way of an induced statement.

52. [59]

    The Crown case closed on 18 October 2021, the ninth day of the trial.

53. [60]

    The applicant denied all three counts as well as the alleged tendency. His case at trial was that he did not have a sexual interest in children or incest and that there had been no sexual conduct with or involving RC and that there was no role-playing in which either AS or BH had presented to be a child in their sexual relationships with him. He said that both women called him “Daddy”, which was a pet name which each of them preferred to use for him. In effect, his case was that AS and BH’s accounts were entirely fabricated.

54. [61]

    In respect of count 3, the applicant did not dispute that the hard drive was located in the Sydney residence. However, he said that he was not aware that any child abuse material was stored on it.

55. [62]

    The defence case closed on 19 October 2021, the tenth day of the trial, after the applicant had given evidence. Defence counsel made a no case submission which resulted in a finding of not guilty in relation to count 1.

56. [63]

    The prosecutor submitted that a direction under s 165(1)(d) of the Evidence Act (a s 165 direction) was appropriate in relation to AS and identified incidents which were said to give rise to the need for the direction. The matter was debated with the trial judge at some length. In particular, the prosecutor identified AS’s conduct in breast-feeding RC while stimulating the applicant as potentially amounting to complicity in his ejaculation over RC’s body. The prosecutor also identified the incident in Queensland when the applicant undressed RC, including removing her nappy, as further potentially complicit conduct. The prosecutor submitted that it could be said that AS was directly complicit in the count 2 behaviour because she had participated in similar incidents previously.

57. [64]

    When the trial judge pressed the prosecutor on the content of the warning for which the prosecutor contended, the prosecutor said:

58. [65]

    At the conclusion of the Crown address, the trial judge asked defence counsel whether there were any s 165 warnings which he ought give himself, to which defence counsel responded in the negative. He also said:

59. [66]

    The trial judge’s omission to give a s 165 direction is the subject of ground 1 of appeal.

The verdict judgment

1. [67]

   The trial judge summarised the evidence and the parties’ submissions and identified the elements of the offences charged as counts 2 and 3. As no challenge has been made to these aspects, it is not necessary to address them, except to refer to what his Honour said of the applicant’s evidence as follows:

2. [68]

   The trial judge also gave himself what was accepted to be a direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, as follows:

3. [69]

   In substance, the trial judge accepted the evidence of the prosecution witnesses and did not accept the applicant’s evidence. The trial judge’s reasons included the following:

4. [70]

   The trial judge said:

5. [71]

   Findings (f), (g) and (k) are the subject of ground 4, which is considered below.

6. [72]

   The trial judge set out the tendency evidence and continued:

The grounds of appeal

1. [73]

   Ms Lewer, who appeared with Ms Akthar on behalf of the applicant, submitted that AS’s evidence was such as to require a warning under s 165 of the Evidence Act (a s 165 warning). She submitted that the trial judge should have decided that, if, contrary to the defence case, he was minded to accept AS’s evidence, he should first warn himself in accordance with s 165(1)(d) that AS’s evidence was of a kind that may have been unreliable.

2. [74]

   Section 165 of the Evidence Act relevantly provides:

3. [75]

   Section 133(3) of the Criminal Procedure Act 1986 (NSW) requires a judge trying criminal proceedings without a jury to take into account a warning which the law would require be given to a jury in such a trial. Thus, even though a warning such as the one pursuant to s 165 of the Evidence Act is given to juries because they are taken to lack the expertise of judges as to the potential unreliability of those who are criminally concerned in the charged conduct, the warning is still required to be given when the accused is tried by judge alone. Such a warning would also fall within s 133(2) of the Criminal Procedure Act, which would require a trial judge, sitting without a jury, to identify the warnings given.

4. [76]

   It is evident from the wording of s 165(2) that the obligation to give a warning arises only when a party requests that the warning be given: Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [232] (Heydon J), which has been followed by this Court, for example, in Quarta v R [2023] NSWCCA 173 at [74] (Mitchelmore JA, Walton and N Adams JJ agreeing).

5. [77]

   As is evident from the narrative of the trial set out above, defence counsel expressly eschewed the giving of such a warning. Although the prosecutor raised it (apparently on the basis that he expected that defence counsel would seek such a warning), he ultimately, as demonstrated by the extract set out above, acknowledged, and submitted that such a warning was not required because AS’s account was self-incriminating. Accordingly, even if the prosecutor’s foreshadowing of the possibility of a warning could be construed as a request for a warning, any such request was thereby withdrawn. In these circumstances, no s 165 warning was required.

6. [78]

   In any event, it is plain from AS’s evidence about count 1 that she was not participating in criminal activity jointly with the applicant. Rather, she was trying to breastfeed RC while simultaneously continuing the sexual intercourse with the applicant, because he seemed hurt when she wanted to stop and she did not want him to feel rejected by her. Nor was AS complicit in count 3. Her evidence was that she looked at hentai pornography with the applicant, which involved petite women, who dressed up as younger females or children but who were not themselves children. AS’s evidence that she had seen the hard drive at the applicant’s house and used it at times when she was saving files on it for the applicant did not amount to evidence that AS was reasonably supposed to be involved in possessing child abuse material.

7. [79]

   Further, I do not consider that there was a real possibility that the reliability of AS’s evidence was affected by the matter which (putatively) brought her within the category requiring a warning (being criminally involved). Her report of the applicant’s conduct served to bring any legal or moral wrongdoing for which she was responsible to the attention of the authorities. While her purpose in reporting the matters was to ensure RC’s safety, the reporting carried with it the real risk that she would lose the care of RC, either because of her failure to bring these matters to the attention of the authorities earlier (when the uncharged acts occurred in Queensland) or because she might otherwise be found to be unfit to care for RC. Viewed in this way, AS’s reporting of what had occurred was a selfless act done for the benefit of RC, without any particular regard for her own interests.

8. [80]

   Because the ground has been considered, as set out above, leave under r 4.15 of the Rules ought be granted as well as leave to appeal. For the reasons given above, ground 1 has not been made out.

9. [81]

   Ms Lewer submitted that as AS was the only witness to the count 2 conduct (as RC was too young to give evidence about it), acceptance of her evidence was essential to the conviction of the applicant on this count. She submitted that, in those circumstances, unless the trial judge was satisfied that AS was both an honest and reliable witness, the accused could not be convicted and that a direction in accordance with R v Murray (1987) 11 NSWLR 12 (a Murray direction) was appropriate.

10. [82]

    She submitted that the trial judge made no positive credit finding concerning AS’s evidence (although one was made in respect of BH who was found to be “credible”) which ought be taken as an indication that the trial judge did not find AS to be reliable and that this had occasioned a miscarriage of justice. For the following reasons, this submission must be rejected.

11. [83]

    It is significant that the applicant relies on the absence of the direction as causing a miscarriage of justice (the third limb in s 6(1) of the Criminal Appeal Act 1912 (NSW)) rather than submitting that it amounted to an error of law in contravention of s 133(3) of the Criminal Procedure Act.

12. [84]

    A Murray direction derives from the following statement in R v Murray, where Lee J said, at 19E:

13. [85]

    The statutory qualification to the Murray direction in s 294AA of the Criminal Procedure Act does not apply in the present case as AS was not the complainant.

14. [86]

    While AS was the only witness to count 2, there was a wealth of other evidence in the trial which supported her account, including BH’s evidence. The evidence included the applicant’s request that both AS and BH call him “Daddy” (and that he could usually only be brought to ejaculation if addressed in that way); his tendency to have a sexual interest in his child (by suggesting that AS and BH pretend to be RC when he was engaging in sexual activity with each of them); his tendency to be sexually aroused by the thought of sexual activity with RC; and his desire to engage in sexual acts with, or involving, RC.

15. [87]

    In addition, evidence of AS’s complaints to BH included that the applicant wanted to have sexual intercourse with her when she was breastfeeding RC.

16. [88]

    AS’s evidence of count 3 was supported by evidence obtained in the execution of the search warrant at the Sydney residence and the discovery of the Western Digital hard drive under the applicant’s desk.

17. [89]

    In Wade v R [2018] NSWCCA 85 (Wade), the trial judge, in a judge-alone trial, had given extensive reasons for accepting the complainant’s evidence over the appellant’s. This Court considered whether it was necessary for the trial judge to clearly state that he rejected the appellant’s denial that the offences occurred.

18. [90]

    R A Hulme J said:

19. [91]

    Hamill J, agreeing, said at [247]:

20. [92]

    No Murray direction was required in the present case. Further, the trial judge’s reasons were sufficient to explain why his Honour accepted the evidence of AS and BH and rejected the applicant’s evidence. In the present case, unlike in Wade, the trial judge not only expressly accepted AS and BH’s evidence but his Honour also expressly rejected the applicant’s evidence.

21. [93]

    I reject Ms Lewer’s submission that the trial judge made no finding of credit with respect to AS. The trial judge’s reasons are to be read fairly as a whole: Hopgood v R [2019] NSWCCA 246 at [47] (Johnson J, Price and Lonergan JJ agreeing). His Honour’s finding that he accepted the evidence of AS plainly amounted to a finding that he accepted her evidence as reliable and credible. Indeed, it could not reasonably be read in any other way. I discern no want of care in the trial judge’s careful reasons for accepting the evidence of AS and BH (and other prosecution witnesses) and rejection of the applicant’s evidence. The present is not a case where an accused accepted that aspects of the conduct had occurred but sought to put a different gloss on it. Rather, the applicant effectively denied each of the principal tenets of the prosecution case.

22. [94]

    As this ground has been addressed, I propose that leave under r 4.15 of the Rules and leave to appeal be granted. However, for the reasons given, ground 2 has not been made out.

23. [95]

    As noted, above, Ms Lewer accepted that the trial judge had given himself a Liberato direction but submitted that his Honour had failed to apply it correctly. She submitted that it was insufficient for the trial judge simply to state that he “rejected” the evidence of the applicant since his Honour was required to elucidate his reasons for the rejection. Further, she submitted that the trial judge’s reasons (extracted above), to the effect that it “followed” from his Honour’s acceptance of the evidence of AS and BH that he rejected the applicant’s evidence, revealed error. She argued that the trial judge’s reasons did not “expose any meaningful engagement with the [applicant’s] evidence” and demonstrated that his Honour’s rejection of the applicant’s evidence was regarded a consequence of his acceptance of the prosecution evidence.

24. [96]

    As referred to above, the evidence of the prosecution witnesses was diametrically opposed to that of the applicant. The trial judge was obliged to consider all of the evidence as a whole before making findings. The trial judge must be taken to have found that the applicant’s evidence could not possibly be true and that, when taken together with the whole of the evidence, including the tendency evidence, counts 2 and 3 had been established beyond reasonable doubt. Acceptance of the evidence of AS and BH required rejection of the applicant’s account since they could not stand together. Like Wade, the present was a case where the applicant denied the Crown case, effectively in its entirety. In these circumstances, the trial judge’s reasons were, for the reasons given in Wade, sufficient.

25. [97]

    As this ground has been addressed, I propose that leave under r 4.15 of the Rules and leave to appeal be granted. However, for the reasons given, ground 3 has not been made out.

26. [98]

    Ms Lewer accepted that the verdict judgment contains several references to the onus of proof being on the prosecution to prove the elements of each offence beyond reasonable doubt. However, she submitted that, in setting out his reasons for finding the applicant guilty of counts 2 and 3 (extracted above), the trial judge erred in failing to refer to AS’s evidence that she “may have” used the drive; failed to give reasons for accepting AS’s evidence as to counts 2 and 3; and did not refer to the applicant’s evidence.

27. [99]

    Further, Ms Lewer submitted that finding (f) (that both AS and the applicant had an interest in incest) and (g) (that both AS and the applicant viewed pornography featuring children and authority figures having sex) implicated both AS and the applicant in the possession of the material. She noted that the trial judge accepted AS’s evidence about sharing an interest with the applicant in incest and sex between children and adult authority figures but made no reference to the applicant’s evidence denying these interests. Ms Lewer also pointed to the trial judge’s finding at (k) which “did not exclude the applicant” as having possessed the material.

28. [100]

    Ms Lewer argued that the reasoning in (f), (g), and (k) demonstrated that the trial judge approached the question of whether the evidence proved the applicant was guilty by considering whether it disproved the applicant’s guilt, as opposed to excluding the reasonable possibility that AS alone possessed the material. She argued that this approach was erroneous, because it commenced with a presumption that the accused was guilty, and then considered whether evidence rebutted that presumption by excluding this possibility.

29. [101]

    As referred to above, the offence in count 3 was an offence contrary to s 91H of the Crimes Act.

30. [102]

    The prosecution was required to prove that the applicant intended to possess the hard drive which contained the child abuse material: s 91H of the Crimes Act. Thus, whether AS had been involved in the downloading or viewing of the material at any time during her relationship with the applicant was peripheral to the charge against the applicant. As referred to above, the prosecution ran the case on the basis, most favourable to the applicant, that it was required to negative the “defence” in s 91HA(1) that the applicant did not know, and could not reasonably be expected to know, that the hard drive contained child abuse material.

31. [103]

    I reject the submission that findings (f), (g) and (k) reveal any error by the trial judge. His Honour, by making these findings, was addressing the applicant’s submission in respect of count 3 that AS’s sexual interest in incest, cartoon pornography and the timing of various messages to the applicant raised a reasonable doubt. The trial judge’s findings (f) and (g) amount to a rejection of the applicant’s submission that it was AS who had the interest in incest and that the cartoon imagery involving children and authority figures was the kind of pornography preferred by AS.

32. [104]

    Ms Lewer’s criticism of the trial judge’s use of the word “exclude” in finding (g) is misplaced. The trial judge was, in (g), addressing the applicant’s submission that the timing suggested AS’s involvement. The trial judge rejected this submission on the basis that AS’s involvement (or otherwise) did not exclude “[AS] and the accused both being aware of the existence of the material” (emphasis added). As long as the applicant was aware of the existence of the material on his hard drive, this was sufficient to prove that he knew that the material was child abuse material. Whether or not AS also knew that the material was on the applicant’s hard drive (which she denied) did not exculpate the applicant. The prosecution was not required to prove that the applicant was the only person to access, view or download the material, although it did prove that AS did not access, view or download the material (since the trial judge accepted AS’s evidence to that effect).

33. [105]

    The significance of the finding in (k) was that the applicant’s access to the hard drive at a time after the child abuse material was saved on the drive was relevant to his opportunity to be aware of the contents of the hard drive. This answered the applicant’s submissions that AS was involved. Further, the trial judge found that both the applicant and AS had an interest in incest material and that the child abuse material was “the type of material” viewed by the applicant and AS together. However, AS’s evidence, which the trial judge accepted, was that the hentai pornography which she looked at with the applicant depicted women who were drawn to look young and innocent, having sex with a teacher or father, rather than children having sex with a teacher or father. In this context the finding in (g) referring to “the type of material” ought be understood as being a reference to hentai pornography generally, rather than the subset of that category which meets the description of child abuse material. While AS was interested in incest (sexual intercourse between family members), she was not interested in sex between children and adults.

34. [106]

    The trial judge also addressed the significance of the naming of the back-up folders in circumstances where neither AS nor BH was permitted to have passwords on their computers and both denied knowledge of creating those folders themselves.

35. [107]

    When the trial judge’s reasons are read fairly as a whole, there was no reversal of the onus of proof. Further, although the applicant seeks to challenge his conviction on count 2 by reference to the matters raised above in connection with count 3, I do not understand a separate submission to have been made which could rationally affect his conviction on count 2.

36. [108]

    For the reasons given above, ground 4 has not been made out.

37. [109]

    In Crickitt v R [2018] NSWCCA 240, this Court (Bathurst CJ, R A Hulme and Davies JJ) summarised the principles that apply to an unreasonable verdict ground at [12]:

38. [110]

    Accordingly, this Court’s task is determine whether it was “open” to the tribunal of fact (in this case, the trial judge) to find the applicant guilty or whether the tribunal of fact “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 (Dansie). In other words, the question is whether it was “not reasonably open” to the tribunal of fact to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

39. [111]

    The weight to be given to a witness’ evidence by reference to the manner in which it was given by the witness is a matter for the tribunal of fact. In determining an unreasonable verdict ground, this Court must proceed upon the assumption that the evidence relied on in reasoning to verdict was assessed by the tribunal of fact to be credible and reliable: Pell at [38]. Thus, this Court must examine the record to see whether, notwithstanding that assessment, the tribunal of fact, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt either by reason of inconsistencies, discrepancies or other inadequacy; or in the light of other evidence: Pell at [39]. There are limits to the extent to which this Court is entitled to disbelieve a witness whose evidence the tribunal of fact must have accepted, at least in so far as it established the elements of the offence/s which resulted in the conviction or convictions. This will occur only in an unusual case: Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing).

40. [112]

    Where, as here, an unreasonable verdict ground is raised in a judge-alone trial, the principles are, as confirmed in Dansie:

41. [113]

    Ms Lewer submitted that the conviction of the applicant on either count 2 or 3 required rejection of the applicant’s evidence and acceptance of AS’s evidence as to the elements beyond reasonable doubt. She submitted that AS had “a clear motive to exculpate herself in the face of overwhelming evidence that she engaged in fantasies involving incestual child abuse” and that, since she had told a psychologist who was required to report the matter to the authorities, AS had a motive to report the alleged offending in order to put herself in the most favourable light.

42. [114]

    Ms Lewer relied on the following matters which she contended made the verdicts unreasonable:

    1. (1)

       the trial judge’s finding that AS had an interest in stories about incest, notwithstanding her denial of such an interest and her allegation that she had researched such stories because of the applicant’s interest;

    2. (2)

       AS gave evidence that she introduced hentai (Japanese cartoon) pornography into the relationship but that the applicant was not interested in it; yet the only child abuse material found on the applicant’s hard drive was hentai or “loli” pornography;

    3. (3)

       AS did not disclose her sexual preferences during the police investigation which, when revealed to police by the applicant’s provision of text messages between him and AS, caused her to refuse to answer any further questions except by way of an induced statement;

    4. (4)

       AS’s memory of the conduct which formed the basis of count 2 was compromised (as set out in the narrative above, where AS could not remember particular details, allegedly because of her distress);

    5. (5)

       AS could reasonably be supposed to be criminally concerned, which gave rise to a risk that she might seek to minimise her role; and

    6. (6)

       when confronted in cross-examination with the inconsistency between her telling police that she could not remember who had downloaded pornography and her evidence that she had downloaded hentai pornography, she asserted that she had been “having a panic attack” (in the police interview) and “literally thought [she] was going to die”.

    7. (1)

       AS gave evidence that she had taken her computer with her when she left the applicant but that the applicant had later collected it from her, at her request, to fix it and that AS’s computer was still in the applicant’s home, at least until 27 April 2018, 11 days before she first spoke to police. This evidence was said to be inconsistent with the trial judge’s finding that the USB connection history of AS’s computer and the connection history of the Western Digital hard drive pointed to activity that occurred after AS and BH had left the Sydney residence (which was relevant to the finding of guilt for count 3).

    8. (1)

       Ms Lewer relied on what she contended to be the absence of findings about the applicant’s “credibility or demeanour” to explain why the trial judge rejected his evidence.

43. [115]

    In summary, Ms Lewer submitted, in respect of count 2, that the nature and quality of AS’s evidence was insufficient to support a conviction on that count. She contended that not only did AS have a reason to minimise her own conduct but that she was evasive in the investigation and in giving evidence. She submitted that the sexual conduct of which she gave evidence was similar to the stories of incest in which she had a sexual interest as well as being consistent with AS’s suggestion to the applicant that RC ought be involved in their sexual activity (that AS could teach RC how to touch the applicant’s penis).

44. [116]

    In summary, Ms Lewer submitted, in respect of count 3, that the tribunal of fact ought to have had a reasonable doubt because:

    1. (1)

       the child abuse material was hentai pornography in which AS had an interest but the applicant did not;

    2. (2)

       the “last modified” date of the material corresponded with the date of AS’s messages to the applicant while he was at work, which was years before the material was discovered in the Sydney residence; and

    3. (3)

       the evidence did not exclude the possibility that AS had downloaded and possessed the material without the applicant knowing about it.

45. [117]

    The starting point, as confirmed in Pell at [38]-[39], is that this Court must proceed on the basis that the trial judge accepted AS and BH's evidence as credible and reliable.

46. [118]

    It was open to the tribunal of fact to regard AS’s difficulty remembering peripheral details (such as whether she or the applicant placed RC on her stomach or exactly where the applicant’s penis was) as hardly surprising. First, her evidence related to events which were alleged to have occurred in 2014-2017. Secondly, the evidence related to events which were deeply distressing to her, as was evident from the evidence concerning her demeanour when discussing them with BH in the presence of LO and ZZ in 2018. It was, however, significant that she had no doubt, or difficulty remembering, that the applicant had ejaculated on RC. Inability to provide tangential details is not uncommon when witnesses are asked to recall traumatic events: JL v R [2023] NSWCCA 99 at [96] (Adamson JA, Ierace and Sweeney JJ agreeing), citing Reed v R [2006] NSWCCA 314 at [64] Spigelman CJ (McClellan CJ at CL and Sully J agreeing).

47. [119]

    Ms Lewer’s submission concerning AS’s sexual preference erroneously elides the distinction between incest (sex between family members) and child sexual abuse (sex involving children). AS’s sexual interest in incest centred on a fantasy of having an authority figure looking after her (as a vulnerable, submissive person). There was no evidence (apart from the applicant’s, which was rejected) that she had any sexual interest in children or in sex between children and adults. Her preparedness to pretend to be a child (including pretending to be RC) at the applicant’s request does not establish that it was her sexual preference. Rather, it is consistent with AS’s understanding that she understood it to be his sexual interest, which she was prepared to accommodate in the context of a fantasy or role play. Indeed, her suggestion that she could teach RC to please him sexually was qualified by the rider that this might occur when RC “was older” was made in the context of sexual role play. It was open to the trial judge to infer that this statement did not indicate that AS had any actual intention of involving RC in sexual activities with respect to the applicant, particularly in circumstances where AS pulled her hand away when the applicant guided AS’s hand and RC’s hand towards his penis.

48. [120]

    As referred to above, the evidence of Detective Sergeant Carland was that AS gave police her username and password to her Facebook account, which enabled them to access and download all the messages archived under that username. None of those messages concerned the topic of incest. The messages which were subsequently disclosed by the applicant, which did concern incest, were not inconsistent with AS’s evidence about sharing incest stories with the applicant. In these circumstances, it was open to the tribunal of fact not to regard this circumstance as adversely affecting AS’s credit, in circumstances where she was prepared to give her username and password to the police at the outset. It did not follow from the fact that the applicant had messages between himself and AS which had not been archived to the Facebook account to which she gave the police access that she had deliberately withheld such messages.

49. [121]

    I do not accept Ms Lewer’s submission that AS was only motivated to report the applicant’s conduct because the psychologist (to whom AS disclosed the conduct) was obliged to report it. For the reasons given above, AS had much to lose (including damage to her reputation as a mother and the right to care for RC) from the disclosure and from the reporting. As the Crown correctly submitted before the trial judge, her account was self-incriminating and did not bear any indication that AS was minimising her own role. Her evidence (in support of count 2) that she was stimulating the applicant to ejaculate on the occasion of count 2 in circumstances where the applicant had earlier (when AS was pregnant with RC) told her that he wanted to ejaculate over RC and had, in the course of uncharged conduct, actually ejaculated over RC indicated her involvement in the events which, although not necessarily criminal was, at the least, depraved and immoral. For these reasons, the possibility that AS’s evidence about count 2 was other than reliable might be regarded as fanciful.

50. [122]

    For the reasons given above, it was open to the tribunal of fact to infer that AS’s disclosure of the applicant’s conduct was motivated by her concern for RC which overrode any concern she might have for herself or for the moral or legal judgment which might be made against her for allowing such conduct to occur (to the extent to which she did).

51. [123]

    This matter has been addressed above. The trial judge was entitled to reject the applicant’s evidence because of the considerable weight of credible evidence against his denials. It was open to the trial judge as tribunal of fact to reject the account of the applicant, which was directly contradicted by the evidence of AS and BH.

52. [124]

    Further, the trial judge had the distinct advantage of seeing and hearing the witnesses, particularly AS, BH and the applicant, give evidence: Dansie at [14]-[17]. The scope of the advantage that the trial judge enjoyed was relatively wide: Wentworth v R [2023] NSWCCA 143 at [48], [52] per Beech-Jones CJ at CL (McNaughton J and R A Hulme AJ agreeing).

53. [125]

    The specific matters raised on behalf of the applicant as reasons why the verdict of guilty on count 2 was unreasonable have been addressed above. Having reviewed all of the evidence, I consider that it was open to the trial judge to be satisfied of the applicant’s guilt in respect of count 2. I confirm that I do not have any doubt of the applicant’s guilt of count 2.

54. [126]

    On the basis of the authorities cited above, this Court is entitled to approach its task in assessing whether the verdict on count 3 was unreasonable on the basis that the tribunal of fact accepted the direct evidence of AS and BH denying knowledge of the child abuse material which was the subject of count 3. Further, there was substantial circumstantial evidence (referred to above) which implicated the applicant, including that the hard drive was located in the Sydney residence of which he was the sole occupant at the time of the execution of the search warrant. The evidence referred to by the applicant is not such as to raise a reasonable doubt.

55. [127]

    Having reviewed all of the evidence, I consider that it was open to the trial judge to be satisfied of the applicant’s guilt in respect of count 3. I confirm that I do not have any doubt of the applicant’s guilt of count 3.

56. [128]

    The applicant relied on evidence (which was accepted to be fresh on the basis that it was not available at trial) as follows.

57. [129]

    On 15 December 2022, the applicant’s solicitor accessed material from BH’s account on the Fetish Website which included the following:

    1. (1)

       BH’s profile indicating she is a member of the group ‘Littles kik Group DDLG [Daddy Dom/Little Girl]’;

    2. (2)

       a photograph of BH, posted on 15 January 2023, with the words “owned by Daddy” and “am his fav[e]” written on her upper thighs;

    3. (3)

       a photograph, apparently of BH, posted on 28 February 2022, wrapped in plastic film, with a dummy or pacifier in her mouth; and

    4. (4)

       a photograph of BH, posted on 2 November 2022, wrapped in plastic wrap, with the caption “that time my mistress made me crawl around the party on my ‘stumps’.”

58. [130]

    The term ‘DDLG’ was said to be an acronym commonly used to refer to ‘Daddy Dom/Little Girl’, a sexual relationship or fetish involving roleplay of a dominant daddy figure and submissive young girl figure, which is a sub-genre of BDSM. Although the Crown objected to evidence downloaded from the internet explaining the acronym on the basis that it was inadmissible hearsay and opinion evidence from an unidentified and unspecified source, I understood the words which comprise the acronym to be common ground.

59. [131]

    In response to the fresh evidence relied on by the applicant in support of ground 6, the Crown tendered a further statement of BH in which she explained that the use of the dummy, the tape and the doubling up of her limbs to shorten them was intended to be degrading in keeping with her role as a “submissive”, rather than to transform her into a child. She said that she allowed the message to be written on her thighs because “one of [her] Doms [dominant partners] requested it”.

60. [132]

    The Crown accepted that the evidence was fresh in that it was posted after the trial had concluded and was therefore not available at the time of the trial. However, it objected to the fresh evidence on the basis that it did not support the inference that BH’s evidence at the trial was untruthful and there was no possibility that the jury acting reasonably would have acquitted the applicant on the basis of the fresh evidence. It did not object to this Court receiving the evidence for the purposes of determining whether ground 6 was made out: Fuller v R [2021] NSWCCA 194 at [20] (Johnson J, Price and Davies JJ agreeing). It was only on that basis that the fresh evidence was admitted by this Court.

61. [133]

    Ms Lewer submitted that the fresh evidence “strongly support[ed] an inference that BH did not give truthful evidence when she denied any sexual interest in age play, calling the applicant ‘daddy,’ or in physically constricting her body.” She also submitted that “[g]iven the nature of the evidence at trial, [the fresh evidence] strongly supports a conclusion that [BH’s] evidence on these topics was intentionally false.”

62. [134]

    Ms Lewer contended that there was an inconsistency between BH’s evidence that she did not have an interest in calling the applicant “daddy”, or in role plays about him being a father and her being a child, and the contents of her account on the Fetish Website (extracts of which were marked Exhibit 6, as referred to above) which included the results of a quiz which implied that she had an interest in “age play”.

63. [135]

    Ms Lewer contended that the trial judge’s finding that BH was a credible witness was central to his finding that she did not have a sexual interest in “age play”, notwithstanding her account on the Fetish Website and that it was the applicant who insisted on being called “Daddy” which was crucial to his sexual gratification. Ms Lewer also pointed to the trial judge’s findings that the applicant was “preoccupied and pushy” about having BH tell him her “deepest, darkest fantasies”, including whether she wanted to role-play a child, would hold her in such a way as to make her physically small, taped her legs together to create the effect that she was physically smaller, and asked her to imagine she was little in age when having sex with him; and to try to “please Daddy”. Ms Lewer referred to the trial judge’s finding that BH spoke to the applicant about this a couple of times when she did not want to go along with the request because it made her feel uncomfortable, which resulted in him having tantrums for days. Ms Lewer contrasted BH’s evidence with the applicant’s evidence, which was that it was BH who wanted to call him “Daddy” and that he never asked her to do this.

64. [136]

    Further, Ms Lewer referred to the trial judge’s finding that the applicant had asked BH to pretend that she was his actual daughter (RC) and to teach RC to please her father sexually and the use of these findings in tendency reasoning.

65. [137]

    Ms Lewer also relied on the importance of BH’s evidence that she did not establish or open any of the folders which contained the child abuse material which was the subject of count 3 and that she had seen child abuse material on the phone as proof of count 3.

66. [138]

    On these bases set out above, Ms Lewer submitted that the fresh evidence had the capacity to substantially undermine the assessment of BH’s credibility and, in turn, the tendency evidence. She submitted further that the evidence of BH’s sexual interest, as reflected on her account on the Fetish Website, supported the applicant’s evidence that it was BH, and not the applicant, who held the relevant sexual interest and undermined the prosecution case that he was the person with the knowledge of the existence of the material the subject of count 3.

67. [139]

    Where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, three questions arise: first, is the evidence fresh in the sense of not being available at the time of trial (Ratten v The Queen (1974) 131 CLR 510 at 512; [1974] HCA 35); second, was the fresh evidence credible or capable of belief; and, third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant: MRW v R [2011] NSWCCA 260 at [46] (Bathurst CJ).

68. [140]

    The unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that, if the fresh evidence had been before the tribunal of fact, it would have been “likely” (Gallagher v The Queen (1986) 160 CLR 392 at 410 (Brennan J); [1986] HCA 26 (Gallagher)) or there is a “significant possibility” (Gallagher at 399 (Gibbs CJ) and 402 (Mason and Deane JJ) that the tribunal of fact would have entertained a reasonable doubt about the guilt of the accused and would have acquitted the appellant.

69. [141]

    In the context of an allegation that the absence of the fresh evidence from the trial occasioned a miscarriage of justice, the fresh evidence must be examined in the context of the evidence given at the trial: Mickelberg v The Queen (1989) 167 CLR 259 at 301 (Toohey and Gaudron JJ); [1989] HCA 35; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63].

70. [142]

    The context was as follows. BH gave extensive evidence at trial about her sexual interests, including that she had an interest in BDSM, that she had an interest in “exploring the fullest depths of her own perversity and depravity” as outlined on her profile on the Fetish Website and exploring “dark fantasies” in her sexual relationship with the applicant, including sexual fetishes, being tied up with ropes and being sexually submissive. She was cross-examined at length about her Fetish Website profile, including the results of a quiz that she had uploaded which suggested that she had an interest in “daddy/mummy” and “age-play”. BH’s evidence was that she did not have a sexual interest in playing the role of a child, with someone else playing the role of being a daddy or mummy during sexual intercourse. She said that, as at the time of trial (October 2021), pretending to be a child was a clear boundary for her but that she had not enforced her boundaries well in her relationship with the applicant.

71. [143]

    The photographs which form part of the fresh evidence show BH with a dummy in her mouth with her body encased in plastic and her arms and her legs bound to make her limbs shorter. In one photograph it appears that she is being choked. This evidence supports her evidence at trial that she was interested in being dominated. The photograph which depicted the words “owned by Daddy” and “am his fav[e]” written on BH’s upper thighs is consistent with her evidence at trial that, although she did not have a sexual interest in calling her dominant partner “Daddy”, she was prepared to do so if it was his sexual interest.

72. [144]

    BH was extensively cross-examined at trial about the potential inconsistency between, on the one hand, her evidence that she was not sexually interested in “age play”, in being the child of her dominator or in calling her dominator, “Daddy” and, on the other, her evidence that she in fact did each of those things in the course of sexual activity with the applicant. Indeed, the trial judge’s questions following her re-examination, in answer to which she agreed that she had pretended to be RC (who was then a young child) when they were having sex and had called the applicant “Daddy”, notwithstanding her evidence that age play was a “hard boundary”, indicated the extent to which she was prepared, on her evidence, to accommodate the sexual interests of the applicant, who was her then partner, or dominator, in order to fulfil her own sexual interest in being dominated, particularly in a degrading way. The apparent inconsistency between her own description of her sexual interests and her actual conduct arose at the trial and could be resolved by the tribunal of fact, if it needed to be, either by inferring that her sexual interests in being dominated included being a child; or that she was prepared to do things which she did not particularly enjoy, in order to obtain what she wanted from her partner, as part of the give-and-take of sexual activity.

73. [145]

    It is also significant that the applicant did not give any evidence that BH had a sexual interest in being a child or role playing a daddy-child situation. His evidence was that she called him ‘daddy’ as a pet name, having heard AS do so, rather than on the basis she was sexually interested in role playing that dynamic. His evidence was that his sexual relationship with BH did not involve role play and was normal, apart from choking and the use of razor blades, which he said were suggested by BH. In these circumstances, it is difficult to discern how the fresh evidence could affect the tribunal of fact’s assessment of the applicant’s evidence in any material way.

74. [146]

    Further, the precise identification of BH’s sexual interests was not particularly significant in the context of the trial. Her evidence on count 2 corroborated AS’s evidence as to the applicant’s conduct, sexual interests and tendency. She also gave evidence of AS’s complaints (which were also supported by LO and ZZ). Her evidence on count 3 was peripheral in circumstances where the evidence at trial indicated that all of the folders and files on the Western Digital hard drive appeared to be linked with either the applicant or AS, other than a single folder titled “[B’s] back up”, which she denied having anything to do with.

75. [147]

    I am not satisfied that there is a “significant possibility” that the tribunal of fact, acting reasonably, would have acquitted the applicant if the fresh evidence had been available. Accordingly, the applicant has not established a miscarriage of justice. Ground 6 has not been made out.

76. [148]

    It is not necessary in these circumstances to consider the operation of the proviso, which would, in my view, have applied had any of the grounds been made out.

Adjustment of the sentence in light of appeal bail

1. [149]

   As referred to above, appeal bail was granted on 14 February 2023. As the appeal is to be dismissed, the sentence must be adjusted to take account of the period of conditional liberty (with the effect that it will expire at a later date) and the applicant must be returned to custody forthwith.

2. [150]

   As was confirmed in United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [39] (Gleeson CJ, McHugh and Gummow JJ), the grant of appeal bail “is a serious interference with the due administration of criminal justice”. Such a grant “makes the conviction appear contingent until confirmed; … places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail; … encourages unmeritorious appeals; … undermines respect for the judicial system in having a ‘recently sentenced man walking free’; [and] undermines the public interest in having convicted persons serve their sentences as soon as is practicable.” In the present case, at least the first and last-mentioned consequences have ensued. This is regrettable.

Proposed orders

1. [151]

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

   1. (1)

      Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1 and 2.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

   4. (4)

      Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), the applicant’s sentence is to recommence on 20 September 2023.

   5. (5)

      The Court notes for the purposes of s 18(2) of the Criminal Appeal Act that the period of 217 days, being from 15 February 2023 to 19 September 2023 (inclusive of both dates), does not count as part of the sentence of imprisonment imposed in the District Court on 18 November 2022.

   6. (6)

      The Court notes for the purpose of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that:

2. [152]

   HARRISON J: I have had the advantage of reading in draft the thorough and comprehensive reasons for judgment of Adamson JA with which I agree. I also agree with the orders that she proposes.

3. [153]

   Counsel for the applicant presented her arguments in support of this appeal with clarity and skill, not to say considerable ingenuity. However, I am not persuaded that any of the grounds of appeal has merit.

4. [154]

   I have reviewed the evidence in the trial with a view to understanding the way in which the applicant asserts in Ground 5 that the verdicts in respect of the two counts upon which he was found guilty are unreasonable and cannot be supported by the evidence. Far from being either unreasonable or unsupported, his Honour’s conclusions were plainly open. I am particularly satisfied that his conclusions with respect to Count 3 are well supported by the evidence in the circumstances, including the fact that the hard drive was in the applicant’s Sydney residence, where he lived alone, and that the rejection of his evidence about that is entirely unexceptionable. It goes without saying that his Honour had the distinct advantage of seeing and hearing AS and BH, as well as the applicant, and no basis has been shown for discarding or devaluing the importance of that advantage in this case.

5. [155]

   CHEN J: I have had the considerable benefit of reading the draft judgment of Adamson JA.

6. [156]

   In relation to grounds 1-4 and 6, I agree with Adamson JA. In relation to ground 5, I am satisfied, having made an assessment of the whole of the evidence, that it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty of counts 2 and 3. I agree with the orders proposed by Adamson JA.