Al Bayati v R

1. [1]

   THE COURT: Mohammad Hassan Al-Bayati appeals against his conviction following a jury trial in relation to three charges that arose out of his interaction with a three year old child (“OZ”) [1] during the course of his employment at a shopping centre known as the Direct Factory Outlet (DFO) at Homebush on 18 December 2016. Because (at least some of) the grounds of appeal require leave to appeal, we will refer to Mr Al-Bayati as “the applicant” or by his name. OZ and her sibling (“AZ”) were separated from their mother; the latter was shopping while the two children were in a play area situated within the mall. Mr Al-Bayati received a call to assist with a “lost child”. He found OZ and, contrary to the shopping centre’s security procedures and protocols, he did not take her “immediately to the Centre Management Office”. Rather, he took her by the hand, via a “back of house” service corridor and staircase, until her mother was located. After the child was reunited with her mother she made a number of complaints. The matter was reported to police and the applicant was interviewed on 21 December 2016. He was later charged by police and put to trial in 2018 and 2019.

2. [2]

   The applicant faced trial twice. The jury in the first trial was unable to agree upon its verdicts in relation to one charge of taking and detaining a child for advantage and two charges of committing an act of indecency towards the child. That jury was discharged on 13 June 2018. The applicant was called for trial again on 6 May 2019, this time before Judge Pickering SC. On 17 May 2019, the jury returned verdicts of guilty in relation to the following counts: [2]

   1. (1)

      Take OZ, a child under the age of 16 years, with the intention to obtain an advantage, namely sexual gratification (s86(1)(b) of the Crimes Act 1900 (NSW));

   2. (2)

      Aggravated commit an act of indecency towards OZ, a child under the age of ten years (s61O(2) Crimes Act);

   3. (3)

      Aggravated indecent assault of OZ, a child under the age of 16 years (s61M(2) Crimes Act).

3. [3]

   On 27 August 2019, the applicant was sentenced to an aggregate sentence of four years and six months with a non-parole period of two years and six months. He was eligible for release to parole on 14 July 2021. The Court was informed at the hearing of the appeal that Mr Al-Bayati was not released at the expiration of the non-parole period and that his status as a permanent resident has been cancelled. There is no application for leave to appeal against the sentence.

4. [4]

   The indecent assault offence charged in the third count was not charged against the applicant until 8 May 2019, when a pre-trial argument at the re-trial relating to the admissibility of certain evidence took an unusual turn. The investigating police did not allege that offence when the applicant was charged on 21 December 2016. No such charge was added during the committal process in the Local Court and the applicant was not committed for trial on that count. He did not face that charge at his first trial and, when the re-trial was called on for hearing almost a year later, the indictment did not contain a count alleging an indecent assault. He was arraigned before Judge Pickering SC on 6 May 2019 on the same counts upon which the first jury was unable to agree in June 2018.

5. [5]

   Part-way through the admissibility argument, and in response to various observations made by the trial Judge, the Prosecutor made an application to amend the indictment by adding an ex officio count of indecent assault. The application was opposed but the Prosecutor’s application was granted. In the result, the impugned evidence became admissible. It was admissible in proof of the newly added indecent assault charge, and, once admitted, the jury was directed that it could also be used as circumstantial evidence of the applicant’s intention in relation to the first count of taking the child for advantage.

6. [6]

   The circumstances surrounding the inclusion of the indecent assault charge on the amended indictment lie at the heart of the present appeal and the applicant’s contention that his trial miscarried. His grounds of appeal are as follows:

   1. (1)

      A miscarriage of justice was occasioned by allowing the Crown to add an additional count (count 3) at the commencement of the trial in response to the applicant’s objection to certain evidence.

   2. (2)

      The verdict of guilty on count 3 is unreasonable, or cannot be supported, having regard to the evidence.

   3. (3)

      It was an error of law to direct the jury that it was permissible to use the absence of a satisfactory explanation for the 11 minutes off camera as a path to concluding the applicant’s guilt.

   4. (4)

      The verdict of guilty on count 1 is unreasonable, or cannot be supported, having regard to the evidence.

7. [7]

   We have concluded that grounds 1 and 2 must be upheld. The conclusion in relation to ground 2 involves a finding that the verdict on count 3 was not reasonable and an acquittal on that count must be entered. We would not uphold grounds 3 and 4. In the result, we would allow the appeal and order a re-trial on counts 1 and 2. It will be a matter for the Director of Public Prosecutions to decide whether the applicant should be tried for a third time given the unusual history of the matter and the fact that the custodial component of the aggregate sentence, and most of the total sentence, has expired.

8. [8]

   These are our reasons for those conclusions.

The facts and evidence

1. [9]

   A good deal of the evidence of the surrounding circumstances and police investigation was not in dispute.

2. [10]

   It was not in dispute that the applicant was the head of security at DFO Homebush at the time of the alleged offences and that he and one of his colleagues (Mohammad Sediqi) received a “Code Grey” from “customer service”. There was no dispute that a Code Grey was a notification that a child was lost or missing at the shopping centre. Mr Sediqi said there was a second Code Grey call a few minutes (perhaps 5-10 minutes) later and this second call referred to the “play pod”. He thought the two Code Grey notifications were likely related to each other. He attended the play pod area where he found a child crying and distressed and in the company of another customer. Mr Sediqi called the applicant who had responded to the first Code Grey call. A short while later the children’s mother arrived at the play pod area, as did the applicant who brought OZ with him. There was CCTV footage showing the applicant holding the little girl’s hand.

3. [11]

   The General Manager of SecureCorp (Joshua Chakoush) gave evidence of the company’s procedures and part of its security manual was tendered. Relevantly, the document included:

4. [12]

   An acknowledgment form signed by the applicant, in which he agreed to abide by the contents of the manual, was also tendered.

5. [13]

   The duty manager of DFO Homebush (Mark Guerin) also gave evidence of the procedures in the case of a lost child. He said “the person who found the lost child was to take them to the customer service desk and that person or any other available staff would go through the centre to find the parents” and “the child would stay at the customer service desk”. [3]

6. [14]

   Still images of CCTV footage recorded on 18 December 2016 were tendered. This evidence established the following timeline of non-controversial events:

7. [15]

   Investigating police conducted a “walk through” interview and inspected the relevant parts of the shopping centre with Benjamin John, the DFO Homebush centre manager, on 23 December 2016. The objective was to recreate the route followed by the applicant and OZ on 18 December. The inspection was recorded and tendered, and both Mr John and Detective Houldin gave evidence. The inspection showed that the fire door on Level 2 could not be opened from inside to gain access to the shopping centre. Following the path said to be taken by the applicant and OZ - entering the internal passage from the Level 1 fire door, ascending three flights of stairs, approaching the door onto Level 2 and returning - took a little under 1½ minutes.

8. [16]

   A senior forensic biologist, Virginia Friedman, gave evidence that a tape lift of OZ’s underpants produced a biological sample that was consistent with the applicant’s “Y profiler” DNA profile. She explained that “one in 750 unrelated males are expected to have that profile” and that “you cannot get a better figure for Yfiler testing in New South Wales better than one in 750”. Another tape lift was unable to be tested because “the DNA recovered was a mixture that originates from at least three individuals”. The expert agreed that DNA could have been transferred to the child’s hand when the applicant was holding her hand for an extended period and that his DNA could have been located on the child’s clothing (“secondary transfer”) if she subsequently touched her garments. The possibility of “tertiary transfer” (from the applicant to the child to the mother to the underpants) was considered to be less likely.

9. [17]

   OZ’s mother gave evidence that she attended the shopping centre and that it was very busy due to the Christmas period. She left the children at the “playground” where there were other children and adults. She then went shopping. She went back to the playground “at some point” and saw both children. At “some point” later, she went back and AZ was crying and said OZ “was lost”. There was a security guard, presumably Mr Sediqi, talking on a radio. She then saw OZ coming towards her with another security guard (the applicant) walking behind her. She thanked [the applicant] who asked her why she left the children unattended. She identified the clothing worn by OZ through photographs. She said she “noticed that her underlay of her skirt was - sort of attached to her pants” but thought “absolutely nothing of it” at the time.

10. [18]

    OZ’s mother did not tell her husband that OZ was missing at the shopping centre, but later overheard a conversation between OZ and her husband where the child said “I wasn’t lost, I was with the man.” She then told her husband that OZ was “lost in the Homebush DFO and the security guard bring her back to me”. She gave evidence that her husband told her that the security guard “was touching OZ’s bum and was moving his hips in a sexual way.” OZ’s parents then contacted the police.

11. [19]

    Two days later, on Tuesday 20 December 2016, OZ was interviewed by police. That night the mother spoke with OZ. OZ told her the man “was rude to me” and “he touch my bum”. When asked if OZ touched the man, she replied “he ask, but I didn’t” and “he take me to, to the door with no handle.”

12. [20]

    There was cross-examination as to what OZ’s mother said in her police statement including that OZ told her husband that the man was “trying to kiss her bum” and was “thrusting his body back and forth in a sexual way”. The witness agreed the Court should act on what she told police on 28 December 2016, which was that her husband told her OZ was saying the policeman “wanted to kiss her bum” and then “did the gesture”. This cross-examination undermined the suggestion that the complainant told her mother (directly or otherwise) that the applicant had physically touched her in an indecent way.

13. [21]

    As will be seen from the foregoing summary of the mother’s evidence, the first complaint of indecent conduct was made to OZ’s father. His evidence was as follows:

14. [22]

    In light of the applicant’s arguments under grounds 1 and 2, it should be noted the parents’ evidence of what OZ told her father was not consistent and the only evidence that OZ asserted the applicant touched her on or near her pants came from OZ’s mother.

15. [23]

    OZ was interviewed by police on 20 December 2016 and this interview became the basis of her evidence in chief at the trial (which was recorded in advance of the trial itself). She was three years old, and was to turn four a few weeks later. The interview demonstrated just how young she was. She spoke about having a butterfly with her and a “naughty shoe” and when asked what “a truth was” she said “saying sorry”. However, she did demonstrate a capacity to differentiate between the truth and a lie when asked about how she travelled to the police station.

16. [24]

    OZ showed an initial reluctance to discuss anything beyond the fact that she got lost and the “policeman” took her to the stairs and then “found my mum”. However, she went on to make the following allegations:

    1. (1)

       “… he said I have to kiss his bottom but I didn’t want to”.

    2. (2)

       He was touching his bottom.

    3. (3)

       He was touching “his needle” under his clothes and that she could see his needle (Q 118) but not his bottom (Q 141). It was clear from other evidence that the reference to the applicant’s “needle” was a reference to his penis.

    4. (4)

       The needle was squishy (Q 186).

    5. (5)

       He rubbed his needle for two minutes. At another stage in the interview (Q 131) OZ said he touched his needle for “two hours”.

17. [25]

    On several occasions during the interview, the complainant said the “policeman” (referring to the applicant) did not physically touch her:

18. [26]

    On 6 November 2017, the complainant’s evidence was pre-recorded before a different judge. By that time she was 4 years old. The transcript and recording of this evidence became MFI 2 at the trial.

19. [27]

    OZ said she had watched the interview she made with police and this became the evidence in chief, supplemented by a few questions in the nature of clarification and identifying of documents and pictures referred to in her police (or “JIRT”) interview. Her account was generally consistent as to what occurred in the stairwell. That is, she said the applicant touched himself and asked her to touch or “kiss” his genital region or bottom but she refused to do so. She said that he did not touch her on the “bottom”.

20. [28]

    There were some relatively minor inconsistences. For example,

    1. (1)

       The complainant said the policeman (that is, the applicant) took his pants down and that she saw the “needle”, [5] whereas previously her answers suggested that he did not remove his trousers. [6]

    2. (2)

       The complainant said the policeman said things to her in the stairwell about her bottom, but that she did not want to tell the defence lawyer. [7] In re-examination the complainant said she did not answer the question in the cross-examination because she forgot. In the JIRT interview the complainant replied “no” when asked whether the “policeman” said anything else to her. [8]

    3. (3)

       The complainant said the policeman was wearing a blue and silver t-shirt. [9]

21. [29]

    There was some new evidence elicited during the cross examination. Most notably, the complainant said she did not tell the “policeman” her mother was at a toy shop. [10] The complainant also denied holding the security guard’s hand as they walked. [11] Neither of these things were raised by or with the child in the earlier interview. The CCTV footage made it clear beyond doubt that the applicant and the child were holding hands as they walked along the corridor.

22. [30]

    The applicant voluntarily participated in an interview with the police in which he denied any sexual or indecent conduct towards OZ.

23. [31]

    The applicant denied the alleged offending and maintained that his intention was to find the complainant’s mother by using a short-cut. [12] When asked if he believed the complainant “made it up”, he replied “yes”. [13] He conceded that to go in search of the parent with the child breached the protocol. However, he said that this practice was not out of the ordinary when the lost child could identify the whereabouts of their parent. [14] The applicant estimated that there were approximately 2-3 minutes in between the time he picked up the complainant to when he received the radio transmission informing him that the mother had been found. [15] The applicant said that they never exited the door on Level 2 as they were taking each step slowly due to the complainant being talkative, inquisitive and distracted by various encounters such as the dirty wall and a cockroach. [16] The applicant was unable to explain why the CCTV footage suggested that he was in the stairwell for around 12 minutes and maintained that he felt the time passed by quickly as they only went up and down the stairs before the second radio transmission was received shortly after. [17] The applicant was adamant that he did not touch the complainant aside from holding her hand. [18]

24. [32]

    The police officer in charge of the investigation agreed that the applicant had no previous criminal history. [19]

25. [33]

    The applicant called two witnesses to establish that he was a person of good character. The first was his fiancée, Bela Levedzeva. Ms Levedzeva had known the applicant for seven years and she knew him to be a “very humble, nice and kind person” and someone she regarded as honest. [20] She considered the offences alleged were not in keeping with his character “at all” and expressed an intention to marry the applicant and start a family with him. [21] The second character witness was Neda Ali Muhammad, a close friend of the applicant who had known him for a similar period of time and worked with him at DFO Homebush. In addition to the evidence she gave regarding the practices of security and the issues surrounding fire exit doors being propped open from time to time, Ms Muhammad said the applicant was “kind, respectful, responsible”, a helper, and a “godly person”. [22] Ms Muhammad said she did not believe the applicant was capable of committing the offences alleged against him. [23]

26. [34]

    The trial Judge referred to the character evidence in the summing up, adding that Ms Levedzeva also gave evidence that the applicant did not have much exposure to children in their social circle and she would not describe him as a “kids person”. His Honour also noted the applicant’s lack of criminal history and his maintenance of two different jobs after emigrating from Iran in 2010. [24] His Honour directed the jury on the relevance of the character evidence. The jury were told they can accept the applicant is a person of good character as no evidence was led to the contrary. [25] His Honour directed the jury they were entitled to use this undisputed evidence, to consider whether the applicant is the type of person who would commit these offences. The jury were instructed that the weight they gave to this evidence, in light of the applicant’s denials, was a matter for them. [26]

Ground 1: A miscarriage of justice was occasioned by allowing the Crown to add an additional count (count 3) at the commencement of the trial in response to the applicant’s objection to certain evidence

1. [35]

   The applicant’s submissions under this ground had two distinct, but in a sense related, themes. First, it was submitted that the trial Judge was disqualified from determining the application to amend the indictment because any decision on that application was vitiated by an apprehension of bias arising from his Honour’s conduct during the course of the argument concerning the admissibility of evidence. Second, the applicant argued that the trial Judge erred in taking into account his own opinion, conclusion or finding that that original indictment resulted from “incompetent bill finding” on the part of the prosecuting authority. The second argument encompassed both that the finding was not open on the material before the Court and that it was an irrelevant consideration. These two themes are related because each involves the suggestion that the trial Judge entered the arena by conflating or blurring the distinct roles of the presiding judge and the Prosecutor. We have concluded that both submissions must be accepted.

2. [36]

   As we have noted in paragraph [4] above, the applicant was initially arraigned before the pre-trial argument commenced on an indictment containing the same three counts upon which he previously stood trial. None of those counts involved an allegation of indecent assault. The parties notified the trial Judge that there was a dispute as to the admissibility of evidence that may suggest that the applicant touched OZ on or near her bottom. The evidence included:

   1. (1)

      Hearsay evidence from OZ’s mother that the complainant said “he touch my bum”.

   2. (2)

      The evidence concerning the applicant’s Y profiler DNA sample being consistent with a profile identified on a tape lift from the child’s underpants.

   3. (3)

      OZ’s mother’s observation that the underlay of the child’s skirt was tucked into her underpants shortly after the alleged incident.

3. [37]

   Trial counsel for the applicant (who did not appear on the appeal) argued that the evidence was inadmissible, irrelevant and prejudicial because the charges did not encompass or allege, and the child specifically denied, that the applicant touched her. The following exchange occurred:

4. [38]

   However, his Honour then went on to say:

5. [39]

   As Ms Cook, counsel for the applicant on the appeal, submitted “this was the first time the notion of amending the indictment was raised”. [29]

6. [40]

   The trial Judge then asked the Prosecutor to identify how the evidence was otherwise relevant. In the course of that exchange, his Honour said:

7. [41]

   As Ms Cook submitted, “this was the second time the notion of amending the indictment was raised by his Honour”. [31]

8. [42]

   After the Prosecutor made her submissions, and during the applicant’s response, the trial Judge said:

9. [43]

   Further debate ensued and his Honour “alluded to the notion of amending the indictment” for a third time (on Ms Cook’s count) [32] and a fourth time if one considers the comment (reproduced in the last preceding paragraph) that the absence of such a charge was “weird” or “seems bizarre”. On the third occasion enumerated by Ms Cook, the trial Judge referred to the difficulty of directing the jury about the relevance of the evidence under consideration:

10. [44]

    The Prosecutor indicated that she intended to put together some material, such as “the JIRT interview and the father’s statement”, to provide to the trial Judge. However, after an unrelated case was interposed, the Prosecutor said:

11. [45]

    The following day (7 May 2019), the Prosecutor applied for leave to amend the indictment. Two of the amendments were matters of form and not the subject of objection. [35] The third amendment involved laying a new charge of indecent assault. The applicant objected to the third amendment and identified the unfairness in what had occurred and what was proposed:

12. [46]

    No application was made based on the asserted apprehension of bias arising from the fact that his Honour had on three or four occasions raised the possibility of the Prosecutor amending the indictment by adding the charge, or his Honour’s comments that the DPP could “shove on” an indecent assault charge, or that such amendments were common place no matter that the case was “three or four years” down the track. However, the background to the application for leave to amend, and the fact that it came when the prosecution were faced with a legitimate objection to the evidence, was at the forefront of the objection to leave being granted to add the indecent assault charge.

13. [47]

    The role that the trial Judge played in the events that unfolded was acknowledged frankly in the judgment granting leave to amend. His Honour said:

14. [48]

    A review of the record leaves no room for doubt that his Honour’s interactions with the parties led to the Prosecutor’s application to amend the indictment and seek a direction from the Director for an ex officio charge of indecent assault.

15. [49]

    His Honour said that he took into account the unfairness in the “significant delay” and the fact that the matter was a re-trial and the difficulties arising in the possible need to recall the child witness or adjourning the applicant’s trial yet again.

16. [50]

    However, his Honour came to the view that “at the end of the day, it is a question of the interests of justice.” As to this, his Honour adopted the following reasoning:

17. [51]

    It is clear beyond dispute that the choice of charges to be laid against an accused person lies with the prosecuting authority and not with the court. It is open to a Judge to express an opinion as to the appropriate charges although to do so is fraught with danger. All of this is clear from the following observations of Dawson and McHugh JJ in Maxwell v The Queen:

18. [52]

    Equally clear is the following observation in Chow v Director of Public Prosecutions:

19. [53]

    The applicant does not assert that Pickering SC DCJ fell afoul of these principles in the present case. While his Honour made strong, deprecating and repeated comments encouraging an amendment to the indictment, the ultimate decision was made by the Director. Even so, the final observations of the High Court in the passage from Maxwell v The Queen quoted at [51] above resonate in the present case.

20. [54]

    Further, the applicant submitted that his Honour “trespassed into the role of the prosecutor”. [41] Reliance was placed on the nature of the adversarial system as it was explained, for example, by Simpson J (as her Honour then was) in Madden v R [2011] NSWCCA 254 at [29]:

21. [55]

    Again, in Ellis v R [2015] NSWCCA 262, the Court (Bathurst CJ, RA Hulme and Garling JJ) warned against the intrusion of a trial Judge into the adversarial process:

22. [56]

    The applicant relied on these authorities emphasising the distinct and separate roles of the trial Judge and counsel appearing for the prosecution in submitting that the circumstances that unfolded in the applicant’s trial gave rise to a reasonable apprehension of bias in Judge Pickering SC when it came to determining the application for leave to amend the indictment.

23. [57]

    The enquiry required when an assertion of apprehension of bias is made was enunciated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy: [42]

24. [58]

    The test emphasised that “the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification”. [43]

25. [59]

    The hypothetical fair-minded observer is attributed with the actual knowledge of the circumstances of the case, [44] and the assessment involves an objective examination of the judge’s conduct from the perspective of the public confidence in the administration of justice, rather than a consideration of the judge’s state of mind or the suggestion of actual bias. [45]

26. [60]

    In Potier v R [2015] NSWCCA 130 Ward JA summarised the principles in the following passage (citations omitted):

27. [61]

    In view of the way in which the trial Judge urged the Prosecutor, at least by necessary implication, to add a count of indecent assault, the reasonable observer seized of the facts, circumstances and background of the case, might have apprehended that his Honour might not bring an impartial mind to bear upon the issue of whether leave should be granted to allow that course. While the Judge made observations to the effect that he would consider the matter on its merits, it is important to recall that a person, even a Judge, who is pre-disposed to a certain course, may not recognise that bias in themselves. As North J said in Sun Zhan Qui v Minister for Ethnic Affairs (1997) 1 FCR 71 at 135:

28. [62]

    As to unconscious bias, see also GetSwift Ltd v Webb [2021] FCAFC 26; (2021) 388 ALR 75 at [39] and the references to Public Utilities Commission of the District of Columbia v Pollak (1952) 343 US 451 at 466–467 and CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [27]–[28] (Kiefel CJ and Gageler); [51], [92], [97] (Nettle and Gordon JJ); [111] (Edelman J).

29. [63]

    In Chow v Director of Public Prosecutions, Kirby P came to the following conclusion as to the conduct of the primary Judge in sentencing proceedings:

30. [64]

    Similarly, in the applicant’s case, the interventions of the trial Judge “crossed the line” and departed from his role to adjudicate impartially upon the evidentiary dispute that was presented by the adversaries to the litigation. He provided advice to the Prosecutor as to what his Honour perceived to be an easy remedy to the valid and well-founded objection taken to the evidence. The result was that the decision to grant leave to amend the indictment, and to add the indecent assault charge on the applicant’s re-trial, many years after the proceedings were commenced, was tainted by an apprehension of bias on the part of the decision maker.

31. [65]

    To take one aspect of the applicant’s objection at trial as an example, counsel relied on the delay between the original charging of the applicant in December 2016 and the application to amend in May 2019. The trial Judge said he took the delay into account. However, the objective observer of the process would be aware that the Judge said just a day earlier that “the DPP changes indictments day in and day out, last second, three years later, four years later.” To take another example, the trial Judge acknowledged there was unfairness in the fact that the Prosecutor’s application resulted from his Honour’s conduct of the case in argument. The objective observer would be aware that the instigator or author of that unfairness was making the very decision as to whether that unfairness could be cured or was outweighed by other relevant considerations.

32. [66]

    In addition to the appearance of injustice (apprehended bias) based on the role the Judge played in the belated decision to seek leave to amend the indictment, his Honour also erred in taking into account his opinion - formed quickly and expressed strongly - that whoever found “the bill” (that is, drafted the indictment and formulated the counts it alleged) did so incompetently. His Honour said a number of things in argument that disparaged the Director’s decision not to charge an indecent assault, including referring to the situation as “weird” and “bizarre”. Such observations in argument do not take the matter too far, but when his Honour delivered his Judgment, a centrepiece of his consideration of the “interests of justice” was what he described as “incompetent bill finding”.

33. [67]

    There were at least two errors in this approach. First, the trial judge was in no position to know what information or evidence formed the basis of the Director’s decision(s) not to charge the applicant with indecent assault. His Honour acknowledged this, and yet proceeded on the basis that whoever drafted the indictment performed their professional responsibilities incompetently. Second, it was reasonably obvious on the material available - although it remained (and remains) a matter of speculation - that the reason that no indecent assault was charged was the fact that the child did not allege, and specifically denied, that the applicant physically touched her. Pivoting back to the apprehended bias aspect of ground 1, the objective observer of the proceedings would know that Judge Pickering SC had asked rhetorically a day earlier “since when do you ever need the complainant to say it to prove a matter beyond reasonable doubt?”

34. [68]

    The decision granting leave to amend the indictment was infected with legal error. Unless this Court formed the view that granting leave was the only available outcome of the application, there was a miscarriage of justice. Our view is the opposite. The circumstances in this case, including the delay, the fact that it was a re-trial, the unfairness in the Prosecutor responding to the objection by adding a charge which gave the evidence the relevance the Judge had indicated it otherwise lacked, were all matters that militated strongly against permitting the Prosecutor to amend the indictment.

35. [69]

    Further, the way the trial subsequently unfolded highlighted the unfairness. As has been seen, the Judge expressed the strong view, both in argument and in his judgment, that the evidence was not admissible in the absence of the indecent assault charge. However, once the evidence was admitted in proof of the indecent assault charge, the jury was invited to use that evidence to establish the accused’s intention (sexual gratification) in relation to the count of take for an advantage. [48]

36. [70]

    The suggestion (made at trial, and in the Respondent’s written submissions) that the prejudice to the applicant could have been overcome by applying to have the complainant recalled to give further evidence, or to be cross-examined, was misconceived. Counsel for the applicant was under no obligation to put to the child that she had not been indecently assaulted in circumstances where the child had given no evidence of a physical touching. It would have been an extraordinary and unwise forensic decision to do so. She was three at the time of the incident and had provided various accounts to her parents, the police and the Court. It was entirely unpredictable what she may have said had she been asked direct questions on the subject, and the reliability of any answers would have been questionable. Similarly, the suggestion that the accused should have his trial further delayed by seeking an adjournment, would have done nothing to redress the miscarriage.

37. [71]

    Ground 1 must be upheld. Ordinarily, that conclusion would result in the matter being remitted to the District Court for a re-trial on all counts. This would include consideration of the admissibility of the evidence subject to the original objection and, if it were pressed, the application to amend the indictment. However, our conclusion in relation to the applicant’s second ground of appeal means that the third (amended) count should be the subject of a verdict of not guilty.

Ground 2: The verdict of guilty on count 3 is unreasonable, or cannot be supported, having regard to the evidence.

1. [72]

   In accordance with well-established authorities concerning the correct approach to a ground asserting that a verdict is unreasonable or unable to be supported, we have undertaken an independent review of the evidence supporting the indecent assault charge, including the evidence admissible generally in the trial.

2. [73]

   We are left with a reasonable doubt that the applicant touched the child indecently. That doubt is not one that can be explained by reference to the advantages enjoyed by the jury. Those advantages are not limited to the fact that the jury saw and heard the witnesses give evidence. They also encompass the constitutional imperative that it is the jury, not appellate Judges, which is entrusted with the role of determining guilt in serious criminal cases. They include the opportunity a jury has for group and confidential discussion and the requirement of unanimity. [49]

3. [74]

   The case against the applicant on the indecent assault charge was rebutted by OZ’s own evidence. The child denied on several occasions that the applicant touched her. The first complaint she made to her father did not, according to his account, suggest there was any touching that might have amounted to an indecent assault.

4. [75]

   The only “direct” evidence was the mother’s account of the conversation between the child and her father and the conversation between herself and the child that occurred after the police interview. That evidence was hearsay (albeit admissible hearsay) and may have been unreliable for a number of reasons that did not impugn the honesty of OZ’s mother. [50] The evidence was not recorded and the applicant was in no position to challenge the content of the conversation. Further, the hearsay statements of the child were inconsistent with a number of other statements she made on the subject.

5. [76]

   The mother’s evidence was capable of receiving some support in the evidence of the DNA analysis of the child’s underpants. However, the DNA evidence could also have been the result of secondary transfer, a matter acknowledged by the biologist who gave evidence at the trial. The applicant and the child held hands for some time while looking for the child’s mother, and the expert called by the Prosecution acknowledged that this could have resulted in transfer of the applicant’s DNA to the child’s underpants.

6. [77]

   The only other evidence said to be capable of supporting an allegation of indecent assault was the evidence that the mother observed that OZ’s skirt was tucked into her underpants shortly after the incident. However, the mother’s evidence was that this did not strike her as unusual at the time and that it could have occurred when the child was playing.

7. [78]

   We have taken into account the length of time the child was with the applicant and not visible to the CCTV cameras. There was clearly an opportunity for the applicant to commit an indecent assault. Neither the DNA evidence nor the evidence of the state of the child’s clothing provides any cogent support for the allegation of indecent assault. The hearsay complaint upon which that allegation was based was inconsistent with everything else the child said as to whether the applicant touched her indecently.

8. [79]

   Our review of the evidence leaves us with a substantial and reasonable doubt as to the applicant’s guilt on the third count. This is a doubt that the jury should also have experienced. We have taken into account the role of the jury in the criminal trial process and the advantages it enjoys in making collective determinations on behalf of the community. Even allowing for those matters, the verdict on the third count cannot be permitted to stand. The conviction on count 3 must be quashed and a verdict of not guilty should be entered on that count.

Ground 3: It was an error of law to direct the jury that it was permissible to use the absence of a satisfactory explanation for the 11 minutes off camera as a path to concluding the applicant’s guilt.

1. [80]

   The applicant contended that the directions given in the summing up endorsed a submission made by the Prosecutor that was calculated to undermine the applicant’s right to silence and to invert the onus of proof. We are unable to accept these submissions. There is very little substance in this ground.

2. [81]

   The Prosecutor’s submission that there were around 11 minutes “unaccounted for” was an appropriate and valid argument. The submission that the “accused could not provide a reasonable explanation or account for what he was doing for the other 10 minutes” went closer to the line, but was a reasonable argument in the particular circumstances of the case. The CCTV footage was important evidence and the police’s reconstruction of the route the applicant took with the child, when they were not under the surveillance of the CCTV camera, raised serious questions as to what occurred between the applicant and the child. To make this submission did not undermine the applicant’s right to silence or reverse the onus of proof.

3. [82]

   The trial Judge reminded the jury of the Prosecutor’s submissions and did so in his own words. However, his Honour did not endorse the submission or give it any judicial imprimatur. On the contrary, the summing up made clear that the accused had no onus “whatsoever” and that “the accused does not have to prove anything”. The jury was instructed, amongst other things, that:

4. [83]

   No complaint was made about this matter by counsel appearing at the trial. We would refuse leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Ground 4: The verdict of guilty on count 1 is unreasonable, or cannot be supported, having regard to the evidence.

1. [84]

   Upon our review of the evidence in the trial, it was open to the jury to reach verdicts of guilty in relation to the first and second counts. We accept that there were some difficulties in the prosecution case, but these were the result of the fact that the primary source of the allegations was a child of such tender years. We have taken into account that the applicant provided an innocent explanation in his recorded interview and that he presented unchallenged evidence that he was a person of good character. Any doubt as to the applicant’s guilt which we may have entertained, based on a review of the record of the trial, is readily resolved by the advantages enjoyed by the jury in seeing and hearing the witnesses give evidence, in its collective ability to debate issues, the requirement of unanimity and its constitutional role as the body entrusted with adjudicating questions of proof in serious criminal cases.

2. [85]

   In summary, the evidence that entitled the jury to reach the conclusions it did on counts 1 and 2 was as follows:

   1. (1)

      The evidence of opportunity to commit the offence and the period of 10-11 minutes during which the applicant and OZ were not visible on the CCTV footage.

   2. (2)

      The fact that the applicant’s conduct in taking the child in search of her mother was in breach of the security company’s policy for dealing with a lost or missing child.

   3. (3)

      The timing of the investigators’ “walk through” interview with the centre manager compared with the narrative of events described by the applicant in his recorded interview. The Prosecutor’s submission that there was a period of time “unaccounted for” was not without merit.

   4. (4)

      The prompt complaint made by OZ to her father, the substance of that complaint and the general consistency of the initial complaint with OZ’s evidence at the trial.

   5. (5)

      The allegations made by OZ were unusual things for a 3 or 4 year old child to say. The jury was entitled to conclude OZ’s evidence had the “ring of truth”.

3. [86]

   The jury received strong and correct directions as to the onus and standard of proof, the elements of the offences and other relevant legal principles.

4. [87]

   We have considered the evidence of the applicant’s good character. We have taken that evidence into account both on the basis that it makes it less likely that he would conduct himself in the manner asserted by the prosecution and in considering the credibility of his explanation and version of events. We have also taken into account the inconsistencies in the prosecution case and the high standard of proof cast on the respondent.

5. [88]

   In spite of those matters, our review of the evidence leads to the conclusion that it was “open to the jury”, in the sense explained by the High Court in cases such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and a number of subsequent decisions, to reach verdicts of guilty in relation to counts 1 and 2.

6. [89]

   One contention upon which the applicant relied in support of this ground related specifically to count 1. It was submitted that the jury ought to have entertained a reasonable doubt as to whether the intention (to seek sexual gratification) was formed at the time of the taking. It was submitted that the prosecution “did not exclude the alternative possibility that the [applicant] formed the requisite intent after he took the complainant from the play area, for example at the time applicant and complainant entered the service corridor, or at the time they entered the fire stairs.” [52] It was put that the applicant may have led the child away innocently and in accordance with his duties as a security guard, and later “opportunistically formed the intention to seek sexual gratification”. [53]

7. [90]

   The issue was a live one at the trial and the jury asked a specific question in relation to it. The trial judge determined (correctly) that the way the Prosecutor presented its case meant that the taking and the intention must coincide temporally, and the jury was directed accordingly. The Prosecutor had addressed the jury to the effect that the actions of the applicant at the time of the taking gave rise to the inference that he formed the necessary intention at that time. It was open to the jury to accept those submissions and it obviously did so. We are not persuaded that the jury ought to have entertained a reasonable doubt as to this aspect of the case.

Orders

1. [91]

   For those reasons, we would make the following orders:

   1. (1)

      Refuse leave to rely on ground 3.

   2. (2)

      Otherwise, and where necessary, grant leave to appeal against the convictions.

   3. (3)

      Allow the appeal and quash the verdicts of guilty on counts 1, 2 and 3.

   4. (4)

      Enter a verdict of not guilty on count 3.

   5. (5)

      Order a re-trial on counts 1 and 2. The matter is listed for arraignment at the District Court on 4 February 2022.