AB v R

1. [1]

   ADAMSON J: Following a trial by judge alone, AB (the applicant) was convicted by Traill DCJ (the trial judge) of the following offences committed with respect to the complainant:

2. [2]

   The applicant seeks leave to appeal against his convictions on the following grounds:

3. [3]

   Because of the breadth of the grounds, it is necessary to address in some detail the conduct of the trial which was conducted over three days, 29 and 30 June and 7 July 2020. The decision was delivered on 10 July 2020. The applicant was sentenced on 3 December 2020.

The Crown case at trial

1. [4]

   The Crown adduced expert evidence from Dr Susan Hayes who opined that the complainant met the legal definition of a person who has a cognitive impairment and that, at the time of the alleged offences, she would have had a functional age which was lower than her chronological age. Her intellectual disability meant that she was functioning at a level lower than 99.7%, or 98%, of her age peers, according to the particular test applied.

2. [5]

   The complainant was born in August 2003. The Crown case was, ultimately, that the offence in count 1 had been committed in late 2009 or early 2010 when the complainant was 6 years old.

3. [6]

   The complainant’s evidence in chief comprised two Joint Investigation Response Teams (JIRT) interviews recorded on 25 May 2018 (when the complainant was 14) and 31 July 2019 (when the complainant was 15) and some short evidence in chief at the trial. The complainant was cross-examined at the trial on 29 June 2020 when she was 16 years old.

4. [7]

   The complainant’s evidence was that she was in her bedroom in her pyjamas, playing with her iPad when her “Dad” (the applicant, who was her stepfather) came in to her bedroom and pulled down her pants and started “putting [his finger] in then pulling it back out”. She said that she yelled and shouted. The neighbour “Melissa” [Van de Vate] came to the door of the bedroom and said, “What’s going on?” and the applicant told [Ms Van de Vate] to “leave the house”. The applicant told the complainant not to tell anyone.

5. [8]

   Ms Van de Vate lived opposite the applicant. She knew the complainant because the complainant and Ms Van De Vate’s daughter, who was about two years younger than the complainant, played together. The two had been playmates since the complainant was about four years old and Ms Van de Vate’s daughter was about two years old. The complainant spent a lot of time at Ms Van de Vate’s house, particularly on weekends, playing with her daughter.

6. [9]

   Ms Van de Vate gave evidence that, in January 2010, she heard a female voice screaming and shouting. The sound was coming from the applicant’s house. She entered the house, walked down the hallway to the complainant’s bedroom and saw the complainant and the applicant sitting on the bed. Ms Van de Vate considered that the complainant, who was clothed, appeared to be “very frozen, frightened” and “trembling”. She observed the applicant “adjusting himself”, “crouched pulling pants up” and “fixing his belt”.

7. [10]

   In cross-examination, Ms Van de Vate accepted that she had told police that she did not think that anything of a sexual nature had occurred but she believed that the applicant may have beaten the complainant with his belt. Ms Van de Vate said that she was “fairly sure” that she had called the police and the Department of Community Services (DOCS) on that occasion. Her evidence as to what she saw was not challenged.

8. [11]

   The following tendency evidence was relied on by the Crown in support of both counts 1 and 2.

9. [12]

   The Crown relied on the evidence which had been given in separate criminal proceedings against the applicant concerning offences against UM (who was the biological daughter of the complainant’s mother and the applicant and therefore the complainant’s half-sister). UM gave evidence in chief in those proceedings that in 2008, when UM was 11 or 12 years old and in year 7 at school, she was, on more than one occasion, in the applicant’s bedroom watching television with him while the complainant and their half-brother (who was between UM’s age and the complainant’s age) were asleep. UM gave evidence that, initially, the applicant masturbated in her presence, but on subsequent occasions he digitally penetrated UM’s vagina several times.

10. [13]

    At the conclusion of UM’s evidence in chief in the separate criminal proceedings, the applicant pleaded guilty in the presence of the jury to all six counts on the indictment: aggravated act of indecency (count 1); aggravated indecent assault (counts 2-3); aggravated sexual assault (count 4); and aggravated sexual intercourse (counts 5-6).

11. [14]

    The transcript of UM’s evidence in chief was tendered in the trial of the applicant for offences against the complainant and relied on by the Crown as tendency evidence.

12. [15]

    Ms Van de Vate gave evidence that in about 2009 her daughter and the complainant were playing in her daughter’s room. She heard noises and went to see what was happening. She saw the complainant on top of her daughter “on all fours”, “thrusting and groaning and making … animal-type noises, … like a dog almost.” Ms Van de Vate’s evidence continued:

13. [16]

    Ms Cassidy had been friends with the applicant since she was about 11. UM moved into Ms Cassidy’s home on 5 March 2010 and lived with her for about two years. During 2010, the complainant would visit UM there and stay for a couple of nights at a time. On one such occasion, the complainant touched Ms Cassidy’s daughter on the vagina.

14. [17]

    Dr Hayes gave evidence that sexual behaviour and sexual experimentation are common among children. She referred to a report of the American Academy of Paediatricians which said that “actions which explicitly imitate sexual intercourse” are “uncommon behaviours in normal children” and “touching peer or adult genitals” is “less common normal behaviour”. This evidence was relied on by the Crown as circumstantial evidence.

15. [18]

    The Crown relied on the following complaints made by the complainant about the conduct which was the subject of count 1:

    1. (1)

       The complainant’s evidence that she told her grandmother, the applicant’s mother (Mrs B), shortly after the event (which was denied by Mrs B);

    2. (2)

       Complaints made by the complainant in 2017 and 2018 to Paula Daley, the foster mother of D, who became friends with the complainant (which was corroborated by the evidence of Paula Daley) and to Avryl Daley, Paula Daley’s daughter, who became the complainant’s carer in about 2016 (which was corroborated by the evidence of Avryl Daley).

16. [19]

    The complainant’s evidence in the first JIRT interview about complaining to Mrs B about the conduct which was the subject of count 1 was that she had called her grandmother and caught the bus to her house, having told her that she was coming so that she could meet her at the bus stop. The evidence of the complaint was as follows:

17. [20]

    In cross-examination on 29 June 2020, the complainant adhered to what she had said in the JIRT interview.

18. [21]

    Mrs B’s evidence was that if the complainant was coming to her place from school, she would catch the school bus and Mrs B would meet her at the stop just around the corner from Mrs B’s house, but that if the complainant was coming from home, the applicant would normally drive her. She described her relationship with the complainant (while the complainant was living with the applicant) as “[v]ery good” and “[v]ery close”. Mrs B denied that the complainant had ever spoken to her about being sexually assaulted by the applicant. She said that if the complainant had told her that the applicant had fingered her, she would immediately have called her daughter, Wendy, who was a DOCS carer.

19. [22]

    Mrs B said that the complainant never called her and arranged to stay with her and that she could not recall her ever staying for more than one night.

20. [23]

    Paula Daley previously worked as a JIRT officer. The complainant went to live with her for a few months after the applicant was charged with offences concerning UM. Paula Daley’s evidence was that, in around December 2017, the complainant told her that the applicant “used to touch me on my boobs and my private parts … on the outside [of my clothing]”.

21. [24]

    Avryl Daley is the daughter of Paula Daley. The applicant went to live with Avryl Daley, after a short placement with Paula Daley. Avryl Daley gave evidence that on 3 May 2018, the complainant told her that when she was living with the applicant, “something inappropriate happened.” Avryl Daley made a note of the disclosure, which was tendered as an exhibit in the trial. It read:

22. [25]

    Delta Daley was a contemporary of the complainant and lived with her mother, Avryl. Delta Daley gave evidence that the complainant told her that her father used to touch her inappropriately and touch her breast. Delta did not give evidence that the complainant had told her that her father had digitally penetrated her vagina or made her watch indecent material. Delta did not remember the complainant saying how many times it happened and was not sure whether the complainant had told her that he had touched her anywhere else.

23. [26]

    A few weeks after the events which were the subject of count 1, the complainant told the applicant that she wanted to go to her friend’s house. The applicant told her that before she could leave she had to watch something on television. She was in the applicant’s bedroom with him, watching people having sex and kissing. She described the people as being male and female naked couples. She was scared as she did not know whether the applicant would do something to her.

24. [27]

    The Crown also relied on the tendency evidence referred to above in respect of count 2.

25. [28]

    The complainant gave evidence that she told Avryl Daley about the events which were the subject of count 2. Avryl Daley’s evidence as to the complaint relating to count 2 is set out above together with her evidence as to the complaint relating to count 1.

The defence case

1. [29]

   No evidence was adduced by the applicant (apart from a map of the location of his home). His case at trial was that the Court could not be satisfied of the complainant’s evidence because it was internally inconsistent, implausible and inconsistent with other evidence (as referred to in more detail below). The principal inconsistencies relied upon were:

   1. (1)

      the inconsistency between the complainant’s evidence that Ms Van de Vate came into her bedroom while the applicant was fingering her; and Ms Van de Vate’s evidence that she did not see anything of a sexual nature and that she saw the applicant adjusting his belt; and

   2. (2)

      the inconsistency between the complainant’s evidence that she told Mrs B what had happened and Mrs B’s evidence that no such complaint was made and that, if it had been made, she would have contacted DOCS.

The reasons for decision

1. [30]

   Her Honour set out the elements of the offences in each of the two counts and defined relevant terms. Her Honour stated (in respect of count 2):

2. [31]

   Her Honour set out the onus of proof (on the Crown) and the standard of proof (beyond reasonable doubt). Her Honour recited the directions she had given to herself, including as to the drawing of inferences, the duty to act rationally and the right of the applicant not to give evidence, a right which the applicant chose to exercise.

3. [32]

   The portion of the trial judge’s reasons, entitled “Ewen direction”, was accepted to be a reference to the following articulation by Simpson J in Ewen v R [2015] NSWCCA 117 at [104] (Basten JA and Davies J agreeing) of the common understanding of what constitutes a Murray direction (named after R v Murray (1987) 11 NSWLR 12):

4. [33]

   In this portion, her Honour said:

5. [34]

   As referred to in more detail below, the applicant argued that her Honour erred by looking for evidence which “supported” the complainant’s version rather than considering the whole of the evidence; reversed the onus of proof (by inquiring whether inconsistencies raised a doubt about the Crown case); and by taking into account the complainant’s evidence about telling Mrs B without referring to Mrs B’s evidence which denied any such complaint.

6. [35]

   Her Honour also included directions as to the need to consider each count separately, a Markuleski direction (named after R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) and a direction regarding pre-recorded evidence. Her Honour also gave herself a warning under s 293A of the Criminal Procedure Act 1986 (NSW) which provides:

7. [36]

   When referring to the effects of delay, her Honour said in part:

8. [37]

   The applicant submitted that the last sentence showed that the trial judge reversed the onus of proof by, in effect, requiring that the applicant prove that the complainant did not complain to Mrs B.

9. [38]

   Her Honour summarised the complainant’s evidence, including, with respect to count 1, as follows:

10. [39]

    With respect to the complainant’s complaint to Mrs B about count 1, her Honour referred to the complainant’s evidence in her JIRT interview that the day after it had occurred, she “caught the bus to [Mrs B’s] place, stayed there a few nights, told her what happened and then went home.”

11. [40]

    Her Honour summarised the complainant’s evidence with respect to count 2.

12. [41]

    Her Honour also said:

13. [42]

    After summarising the evidence of Ms Van de Vate, her Honour said:

14. [43]

    After considering other evidence, her Honour addressed the evidence of Mrs B. Her Honour said, in part:

15. [44]

    Her Honour referred to the evidence of the applicant’s conduct towards UM and set out the Crown’s submission that the applicant had a sexual interest in prepubescent children under the age of 16 years and was prepared to act on that interest in the following way:

16. [45]

    Her Honour referred to the Crown’s submission that the complainant’s evidence was supported by the following:

17. [46]

    Her Honour included the following in her summary of the applicant’s submissions at trial:

18. [47]

    After reciting the relevant directions and summarising the evidence, the trial judge, at page 37 of a 44-page judgment, set out her reasons for decision under the heading, “Determination”.

19. [48]

    The trial judge noted that the Crown relied on the complainant whom her Honour described as “a single witness”. Her Honour reminded herself of the need to “examine the evidence of [the complainant] with great care”. Her Honour also noted that the credibility of the complainant “can be assessed with regard to all other evidence, and the Crown relies specifically on the observations of Ms Van de Vate in respect of count 1.”

20. [49]

    Her Honour expressly took into account the delay between the time of the alleged conduct (late 2009 to 2010) and the time that the complaint gave her JIRT interviews (2018) and the time that she gave evidence at the trial (June 2020). Her Honour also said that she would use the evidence of the complainant’s complaint to Paula Daley in the Christmas period of 2017 to 2018 and to Avryl Daley on 3 May 2018.

21. [50]

    The trial judge’s assessment of the complainant’s evidence that she complained to Mrs B was as follows:

22. [51]

    Her Honour referred to the complainant’s complaints to Paula, Avryl and Delta Daley and found that, having regard to the complainant’s situation and the circumstance that she was under the applicant’s authority at the relevant time, the delay in complaint did not diminish the reliability of the complainant’s evidence.

23. [52]

    Her Honour referred to the evidence of Ms Van de Vate and the inconsistency between the complainant’s evidence of the timing of Ms Van de Vate’s arrival and Ms Van de Vate’s evidence. Because of the importance given to this passage by the parties in their submissions, it will be set out in full:

24. [53]

    The trial judge also referred to the inconsistencies in the complainant’s evidence which were relied on by the applicant’s trial counsel. Her Honour found that those inconsistencies did not raise a doubt about the complainant’s description of the “particular sex act” in count 1. Her Honour also found that the alleged inconsistencies in respect of count 2 were not such as to raise a doubt with respect to count 2.

25. [54]

    Her Honour was satisfied that the images which the applicant showed to the complainant constituted indecent material, being “slides or film of adults having sexual intercourse while they were naked.” The trial judge found that the applicant had exposed the complainant to indecent material with the intention of making it easier to procure her for unlawful sexual activity. Her Honour confirmed that she had relied on the tendency evidence as supporting the complainant’s evidence.

26. [55]

    Further, her Honour having found count 1 beyond reasonable doubt, used count 1 as tendency evidence in support of count 2.

Consideration

1. [56]

   Before turning to the grounds, I note that s 133 of the Criminal Procedure Act provides:

2. [57]

   The applicable principles relating to the requirement that trial judges give reasons were summarised as follows by Johnson J (Price and Lonergan JJ agreeing) in Hopgood v R [2019] NSWCCA 246 at [47]:

3. [58]

   Section 294AA of the Criminal Procedure Act is also relevant. It provides:

4. [59]

   Because of s 133 of the Criminal Procedure Act, the prohibition in s 294AA applied to the trial judge conducting the trial alone and without a jury.

5. [60]

   Ground 1 can be addressed separately. Grounds 2, 3, 4 and 6 relate to count 1. Ground 5 is a related ground based on alleged inadequacy of reasons. Grounds 7, 8 and 9 concern count 2.

6. [61]

   Mr Kerkyasharian, who appeared on behalf of the applicant with Ms Lloyd, submitted that her Honour, in effect, accepted the complainant’s evidence before enquiring whether there was any other evidence to support it or detract from it and thereby reversed the onus of proof. He particularly emphasised the number of occasions on which her Honour referred to evidence that “supported” the complainant and said that this indicated that her Honour was not looking at the evidence as a whole and, in particular, was not having regard to evidence which did not support the complainant.

7. [62]

   Her Honour emphasised the onus of proof on more than one occasion in the reasons for decision and emphasised that the Crown bore the onus of proving the applicant’s guilt beyond reasonable doubt. Her Honour also referred to the need to assess the evidence as a whole. Although her Honour referred to the question whether there was evidence to “support” the complainant’s evidence, this was in the context of the Ewen direction. It is noteworthy that the Murray direction in the Criminal Trials Bench Book at [3-610] includes the following:

8. [63]

   Her Honour was correct to refer to Ewen rather than Murray because in Ewen, as referred to above, this Court held that a Murray direction was inappropriate in a case concerning sexual assault where the sole witness was the complainant because such a direction would be inconsistent with s 294AA of the Criminal Procedure Act (set out above).

9. [64]

   Having regard to the trial judge’s correct statement of the principle and no indication that it was not applied, I am not satisfied that ground 1 has been made out.

10. [65]

    In substance, Mr Kerkyasharian submitted that the two main inconsistencies referred to above impugned the complainant’s credibility and were not taken into account or adequately addressed by the trial judge in her reasons.

11. [66]

    He said that other inconsistencies in the evidence were referred to by her Honour but these (such as whether the complainant’s brother was living in the house) were not as significant as the two which he identified.

12. [67]

    Mr Kerkyasharian also submitted that her Honour did not deal with the cumulative effect of inconsistencies or consider how they might bear on the complainant’s credit.

13. [68]

    As referred to above, these two inconsistencies were an important part of the applicant’s case at trial and grounded his submission that the trial judge could not be satisfied of the complainant’s evidence beyond reasonable doubt because aspects of her evidence were unreliable and inconsistent with other evidence. I accept Mr Kerkyasharian’s submission that, in these circumstances, her Honour was obliged to explain in her reasons why she accepted the complainant’s evidence notwithstanding these inconsistencies.

14. [69]

    In her reasons, the trial judge summarised the complainant’s evidence and the evidence of Ms Van de Vate. Her Honour considered Ms Van de Vate’s evidence to be “powerful and corroborative” of the complainant’s evidence. I consider that, in the second and third paragraphs highlighted in [52] above, her Honour was referring to the inconsistency identified above as to the time at which Ms Van de Vate came to the door of the complainant’s bedroom, what she saw when she came and what she did in response.

15. [70]

    Her Honour accepted Ms Van de Vate’s evidence that she “did not see any sexual assault taking place” although she saw the applicant on the complainant’s bed and inferred that she had been “harmed in some way”. Thus, her Honour, by necessary implication, rejected the complainant’s evidence that Ms Van de Vate had seen the applicant actually committing the offence which was the subject of count 1. I am not persuaded that it was necessary for her Honour to spell out in terms the complainant’s evidence which she did not accept since this was made plain by her Honour’s acceptance of Ms Van de Vate’s evidence, which was, to that extent, inconsistent with that of the complainant.

16. [71]

    I understand the paragraph which follows this finding to constitute the trial judge’s reasons for not regarding the inconsistency as adversely affecting the complainant’s credibility or reliability about the acts which constituted the offence. Her Honour appears to have regarded the precise timing of Ms Van de Vate’s arrival as being “more peripheral” and “unlikely to be recalled”, in contrast to the fact of Ms Van de Vate’s appearance at a time when the complainant had just suffered the offending conduct and Ms Van de Vate was coming to the residence in response to the complainant’s screams and announcing her arrival by calling out before she came to the bedroom door. Although her Honour did not refer to the matter of the precise timing, in terms, I consider that, in light of the context, her Honour must be taken to have been averting to it in that paragraph, having already rejected the complainant’s evidence on that matter in the previous paragraph.

17. [72]

    In essence, her Honour considered that the evidence of the complainant as to the applicant’s conduct (which constituted count 1) was credible and reliable and that it was supported by Ms Van de Vate’s evidence that, when she arrived in response to the complainant’s screams of distress, the complainant was fearful and frozen and the applicant was adjusting his belt, which led Ms Van de Vate to infer that the applicant had just done something to the complainant. Her Honour regarded other matters, such as whether Ms Van de Vate arrived during the sexual assault (as the complainant said she had) or immediately afterwards (as it would appear that Ms Van de Vate did, since she did not see the assault), what the applicant and Ms Van de Vate said to each other and who else lived in the house at the time, to be peripheral matters about which the complainant’s recollection was (where her evidence was inconsistent with Ms Van de Vate’s) faulty. Her Honour’s reasons were adequate to explain why her Honour considered that the complainant’s faulty recollection about peripheral matters did not adversely affect her reliability and credibility about the elements of the offence in count 1.

18. [73]

    I accept the Crown’s submission in this Court that her Honour’s assessment that what Ms Van de Vate did observe (and its consistency with other aspects of the complainant’s account) outweighed the significance of her not seeing the actual assault (as the complainant said she had). Her Honour’s reasons are sufficient to explain why her Honour did not regard this matter as detracting from the overall truthfulness of the complainant’s account, on the basis that the complainant may have been mistaken about this “peripheral” matter.

19. [74]

    I do not consider the present to be in the same category as AK v Western Australia (2008) 232 CLR 438; [2008] HCA 437 (AK) in which it was common ground (in the High Court) that the trial judge’s reasons were insufficient to comply with the equivalent statutory obligation imposed on trial judges by s 133 of the Criminal Procedure Act. The question for the High Court was whether the proviso applied. However, the Court’s observations concerning the requirement for reasons to be given bear on the present case.

20. [75]

    In AK, the accused (AK) was charged with indecent dealing with his cousin, the complainant. An issue at the trial before judge alone was the identity of the complainant’s assailant. The evidence established that AK, the complainant and the complainant’s brother were all in a bed in a caravan on the night of the alleged offences. The complainant said that she was certain that it was AK and not her brother who had assaulted her but gave no basis for her certainty. The trial judge stated that he was satisfied beyond reasonable doubt that AK was guilty of the offences charged and convicted him.

21. [76]

    In AK, the trial judge’s reasons included the following:

22. [77]

    The Western Australian Court of Appeal held unanimously that the trial judge’s reasons were insufficient to comply with the statutory obligation to give reasons because the reasons failed to indicate that there was an issue of identification and did not advert to any of the evidence relevant to that issue.

23. [78]

    Gleeson CJ and Kiefel J said, of present relevance, at [17]:

24. [79]

    Gummow and Hayne JJ said at [36]:

25. [80]

    Heydon J, who considered that the trial judge’s failure to comply with the requirement to give reasons was “almost as complete a failure as could be imagined”, said, at [85]:

26. [81]

    From the vantage point of an appellate court, the grounds of appeal will necessarily highlight the significance of particular passages in the reasons of a trial judge sitting alone without a jury. When subjected to close scrutiny, such reasons may appear to be deficient since there is almost always something more that could be said. However, as Johnson J said in the passage from Hopgood set out above, it is necessary to read such reasons fairly as a whole.

27. [82]

    I accept Mr Kerkyasharian’s argument that the trial judge could have been more explicit about the way in which her Honour resolved the inconsistency between the complainant’s evidence and Ms Van de Vate’s evidence as to what occurred when Ms Van de Vate arrived at the bedroom door. However, it is, in my view, sufficiently clear from her Honour’s reasons that her Honour considered the complainant’s evidence about the offending conduct to be central and what was occurring at the time of Ms Van de Vate arrival to be “peripheral”. Her Honour found that the offending conduct had ceased by the time Ms Van de Vate, having announced her arrival, came to the bedroom door. Her Honour explained, in general terms, why inconsistencies regarding such peripheral matters did not affect the reliability of the complainant’s evidence about central matters, which her Honour found to be supported by complaint evidence, evidence of the complainant’s screaming and distress at the time of the count 1 offence and the significant tendency evidence.

28. [83]

    I consider that her Honour’s reasons were sufficient to deal with this aspect of the applicant’s case at trial and to fulfil the obligations on the trial judge imposed by s 133 of the Criminal Procedure Act.

29. [84]

    The trial judge adequately summarised the evidence of the complainant and Mrs B as to the complaint made by the complainant following the acts which constituted count 1. I consider that the extract at [50] above is adequate to explain her Honour’s reasoning.

30. [85]

    In substance her Honour found as follows:

    1. (1)

       the complainant complained to Mrs B about “what happened”, believing that she was communicating that the applicant had sexually assaulted her;

    2. (2)

       the complainant did not give evidence of the precise terms in which she complained to Mrs B;

    3. (3)

       Mrs B may not have understood that what the complainant said to her amounted to a complaint of sexual assault and thus denied that the complainant made a complaint to her; and

    4. (4)

       as a consequence, Mrs B’s evidence denying the complaint did not impugn the complainant’s credibility (or that of Mrs B, to the extent relevant).

31. [86]

    In these circumstances, the fact that Mrs B denied that a complaint had been made did not adversely affect the complainant’s credibility but it meant that the trial judge could not take into account the evidence of the complainant having complained to Mrs B as complaint evidence but had to look at the evidence of subsequent complaint having been made to Paula and Avryl Daley in 2017 and 2018. Her Honour did not regard the delay in making these complaints as adversely affecting the complainant’s credit because she had previously been under the applicant’s authority and made the complaints when she was no longer under his authority.

32. [87]

    I consider that her Honour’s reasons were adequate to explain the approach her Honour took to the inconsistencies raised by Mr Kerkyasharian.

33. [88]

    The applicant accepted that the trial judge had referred to the evidence of the complainant’s sexualised behaviour - playing tigers and sitting on top of and touching another girl’s vagina - and to the report of Professor Hayes. The applicant also accepted that the trial judge had recorded the Crown’s submission that the evidence was relied on as circumstantial evidence and the submission made by the applicant that the Court would have to be satisfied that the behaviour was, as a matter of substance, sexualised and not merely a game.

34. [89]

    The applicant’s submission that the trial judge did not give reasons to indicate what her Honour made of the evidence or the submissions must be accepted. Her Honour did not specify whether she found the behaviour to be evidence of sexualised conduct or not or what effect it had on her conclusions. Although the trial judge referred to “tendency evidence”, she did not separately identify the evidence relied on in support of the submission that the complainant engaged in sexualised conduct which indicated that she had been sexually assaulted.

35. [90]

    It is not necessary for the tribunal of fact to make findings about every piece of evidence adduced. The evidence of alleged sexualised behaviour was of relatively low significance in the trial. Professor Hayes was not required for cross-examination. Her Honour’s reasons indicated that she gave substantial weight to the evidence of the conduct which was said to constitute the charges as well as to the evidence of similar conduct which had been committed against UM, which was admitted as tendency evidence. I do not regard her Honour’s failure to refer to the evidence in coming to her conclusions as showing that it was disregarded completely but rather as an indication that her Honour gave it no, or little weight. Had the evidence been of greater significance, her Honour’s obligation to give reasons would have required findings to be made and reasons to be given for those findings. I am not persuaded that the evidence was of that calibre.

36. [91]

    For these reasons, I am not persuaded that ground 5 has been made out.

37. [92]

    The evidence in support of count 1 has been summarised above. Having regard to the warning in s 293A of the Criminal Procedure Act, which her Honour gave herself, it was open to her Honour to decide whether any differences in the complainant’s accounts were important in assessing her truthfulness and reliability.

38. [93]

    Although Ms Van de Vate did not actually see the assault, the complainant’s version was supported by the fact that she screamed so loudly that Ms Van de Vate was sufficiently concerned to come to the applicant’s residence to see what had caused the complainant to scream. Further, the appearance of the complainant when Ms Van de Vate arrived (that she was frozen and frightened) supported the proposition that something untoward had happened to the complainant at the hands of the applicant.

39. [94]

    The complainant’s evidence was also supported by the tendency evidence of the applicant’s conduct with respect to UM and the complaints she made in 2017 and 2018.

40. [95]

    Her Honour had the advantage of seeing and hearing the complainant giving evidence and was entitled to accept her evidence, which was supported in some respects by the evidence of Ms Van de Vate, the tendency evidence and the evidence of complaint. Having considered all of the evidence, I consider that it was open to her Honour to find the applicant guilty of count 1 beyond reasonable doubt.

41. [96]

    The trial judge summarised the submissions put on behalf of the applicant at trial which, in substance, were that the descriptions given by the complainant were insufficient to establish that the material was “indecent”. Her Honour found that they were indecent and convicted the applicant of count 2.

42. [97]

    Mr Kerkyasharian argued that the complainant’s evidence was insufficient to establish that the material was, in fact, indecent and that her Honour had failed to address the inconsistencies in the descriptions given by the complainant as to the medium in which she saw the pictures of the people having sex and kissing. He argued that the description given by the complainant differed markedly from UM’s evidence that she had watched “Big Love” (a show about a polygamist and his four wives) and a commercial television show such as “Dr Who” with her father when he sexually assaulted her on his bed.

43. [98]

    In both the JIRT interview and in her evidence at trial, the complainant said that she had seen the images on the television. Although she had used the word “slide” at trial and not in her JIRT interview, she consistently referred to the television as being the medium through which she had seen the images. It is sufficiently plain from her description that they were “having sex and kissing” and that the images were moving images rather than still ones. I consider that her Honour’s reasons were adequate to explain her finding that the applicant was guilty of count 2.

44. [99]

    I have considered all the evidence adduced in the trial as a whole which includes the evidence adduced with respect to count 2. I am satisfied that on the basis of the evidence admissible against the applicant with respect to count 2, together with her Honour’s acceptance of the complainant’s credit with respect to count 1, it was open to the trial judge to find the applicant guilty of count 2 beyond reasonable doubt.

Proposed orders

1. [100]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [101]

   WRIGHT J: I agree with the orders proposed by Dhanji J.

3. [102]

   In respect of grounds 1, 5 and 9, I agree with the reasons given by Adamson J.

4. [103]

   In relation to grounds 6 and 7 which contended that the verdicts for counts 1 and 2, respectively, were unreasonable, I agree with the reasons of Adamson J and have also formed my own view that, on the whole of the evidence, it was open to the judge sitting as the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In other words, I do not think that the judge must, as distinct from might, have entertained a doubt about the applicant’s guilt.

5. [104]

   As to grounds 2, 3, 4 and 8, I agree with the reasons of Dhanji J.

6. [105]

   DHANJI J: I have had the considerable advantage of reading in draft the reasons of Adamson J. I agree with her Honour as to the disposition of grounds 1, 5, 6, 7 and 9 and with her Honour’s reasons with respect to those grounds.

7. [106]

   I have, however, come to a different view as regards grounds 2 and 3 (and it follows, grounds 4 and 8). My reasons are set out below.

Ground 2 – the failure to take into account the evidence of Ms Van de Vate that she did not observe the alleged sexual assault or (as argued in the alternative) the failure to provide adequate reasons relating to evidence in this regard

1. [107]

   The applicant elected to be tried by judge alone. In giving up his right to trial by jury (and all that that entails), the applicant received, in exchange, an entitlement to reasons (see AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89]-[98]; Lord Devlin, Trial by Jury (rev ed, 1966)). In Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24, French CJ and Kiefel J observed at [54] that the “centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised”, referring to Herbert Broom, Constitutional Law viewed in relation to Common Law and exemplified by cases (1st ed, 1866). That the obligation to give reasons in the present context arises as a result of the applicant having foregone his right to the verdict of a jury brings into focus the centrality of that function.

2. [108]

   The applicant’s entitlement to reasons finds a statutory basis in s 133 of the Criminal Procedure Act 1986 (NSW) which provides:

3. [109]

   While s 133(2) refers only to the principles of law applied and the finding of facts relied on by the judge, the sub-section does not provide an exhaustive statement of the requirement for reasons. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, the High Court when dealing with the predecessor to the current provision (s 33 of the Criminal Procedure Act), which was in relevantly identical terms to the current provision said (at [28]):

4. [110]

   A failure to observe the requirements of s 133(2) or s 133(3) will be a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and may also constitute a miscarriage of justice within the third limb of that provision: Fleming at [27]. In each case it will be necessary to consider the application of the proviso to s 6(1).

5. [111]

   Given the obligation to give reasons, the absence of any reference to a particular matter (particularly one of importance) might indicate that the particular matter was not taken into account; alternatively it may indicate a failure to properly articulate the reasoning process leading to the result: see Fleming at [30] (in the context of the articulation of principles of law); and see also Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 per Hayne J at [129]-[130]. It is these potentialities that appear to have informed the manner in which ground 2 was framed. The minimum obligation to give reasons informs both issues. However, what is required as a minimum does not lend itself to a determinative statement. In AK v Western Australia, Heydon J said (at [84]):

6. [112]

   See also R v BK [2022] NSWCCA 51 per Hamill J at [269]-[270].

7. [113]

   In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, Kiefel CJ, Keane and Edelman JJ said (at [32]-[33]):

8. [114]

   See also per Bell J at [80-[82] and per Nettle J at [130]-[132]. At [132], Nettle J noted that a judge in a criminal trial without a jury is:

9. [115]

   To similar effect, see also AK v Western Australia at [89]. Nettle J’s observation above is informative with respect to the requirement to give reasons, there being many cases in the civil sphere which have expanded on the nature of the duty to give reasons. One such case is Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 where McColl JA set out the principles at [56]-[66]. A summary of these principles, taken from O’Connell v Director of Public Prosecutions (NSW) [2021] NSWSC 1519 at [37] appears below:

10. [116]

    As noted above, in a criminal context the requirements will be no less than those set out above which apply in the civil context.

The present case

1. [117]

   Proof of the offence required an acceptance of the evidence of the complainant alone, to the criminal standard with respect to, at least, her evidence establishing digital penetration as to which she was the only witness. Reliance on a single witness did not mean, of course, that the case could not be established beyond reasonable doubt. It was, as the trial judge directed herself, necessary to consider what other evidence was available which tended to support or to cast doubt on the complainant’s version of events. That other evidence was, given the above, however, not evidence of the event itself, but evidence of surrounding events. While the applicant did not produce any evidence in his own case, in a criminal context this is not unusual. His “case” was that the prosecution evidence was, for various reasons, insufficient to prove the allegations to the requisite standard.

2. [118]

   While the complainant was the only witness to give evidence of the critical event, on her version there was, in fact, an eyewitness. Unsurprisingly, a significant aspect of the applicant’s case at trial was that the complainant’s evidence was not consistent with that of the eyewitness. The complainant gave evidence of the events which made it plain that her pants and underpants had been pulled down to her knees. She said that while the applicant was engaged in digital penetration, Ms Van de Vate came to the door of the bedroom. The following questions and answers were given:

3. [119]

   Ms Van de Vate said she heard shouting and screaming and went to investigate. She said she got to the door and made it known she was coming in and gave the following evidence:

4. [120]

   And further in cross-examination:

5. [121]

   It is plain from the above accounts that either the complainant or Ms Van de Vate was wrong as to what was occurring at the time Ms Van de Vate arrived at the bedroom door. Further, on the complainant's account, not only was Ms Van de Vate present at the time she was being sexually assaulted, but she also said “stop it right now”, apparently in reference to the sexual activity. Ms Van de Vate did not suggest she had said anything along these lines. Additionally, it should be noted that while Ms Van de Vate referred to the applicant adjusting his clothing there was no evidence given by the complainant as to the applicant having removed or adjusted his own clothing.

6. [122]

   The applicant's counsel made the following submissions to the trial judge in respect of this evidence:

7. [123]

   And further:

8. [124]

   The trial judge gave herself, as she described it, an “Ewen” direction (Ewen v R [2015] NSWCCA 117). She said:

9. [125]

   It is significant that, in referring to the evidence of the neighbour, her Honour referred to this evidence as part of the evidence supporting the complainant’s account. Certainly, it is true that part of the neighbour’s evidence supported the complainant’s account. It established that there was an occasion on which something happened between the complainant and the applicant which prompted Ms Van de Vate to come into the house to investigate. However, part of Ms Van de Vate’s evidence directly contradicted an aspect of the complainant’s account of what occurred. While her Honour’s observation that reliance on a single witness “is usual in cases of sexual assault allegations” was correct, as noted above, an unusual feature of this matter was that on the complainant’s account, there was an eyewitness to the act of digital penetration alleged by her.

10. [126]

    Having given herself various directions of law, including the Ewen direction referred to above, her Honour summarised the evidence called at trial. Having summarised the complainant’s evidence her Honour said:

11. [127]

    Her Honour then summarised the evidence given by Ms Van de Vate. Having done so her Honour said:

12. [128]

    The inconsistencies referred to above were, arguably, minor and consequently not of a character that necessarily undermined the complainant’s account. Significantly, however, no reference was made in this passage to the more significant inconsistency between the accounts of the complainant and Ms Van de Vate as to the presence of Ms Van de Vate at the time of digital penetration, and the cessation of that penetration as a result of Ms Van de Vate’s intervention.

13. [129]

    The key passage of her Honour’s reasons appears under the heading “determination”. Having noted the need to examine the evidence of the complainant “with great care”, her Honour observed that the “credibility of [the complainant’s] evidence can be assessed with regard to all other evidence, and the Crown relies specifically on the observations of Ms Van de Vate in respect of count 1”. While this was true, the defence, of course, also relied upon the inconsistency between the complainant and Ms Van de Vate.

14. [130]

    Her Honour then continued, noting that she had considered the evidence given by the complainant and the need to look to see whether “it is supported by other evidence” in determining the weight to be attached to that evidence. Her Honour then referred to evidence of complaint. Critically for present purposes, her Honour then said:

15. [131]

    While her Honour’s observation that Ms Van de Vate “did not actually see any sexual assault taking place”, would appear to be an acknowledgement that the degree to which her evidence could support the complainant was limited, her Honour nonetheless found Ms Van de Vate’s evidence to be “very cogent evidence that is consistent with [the complainant’s] allegation”. Her Honour’s acceptance that the evidence of Ms Van de Vate was “powerful and corroborative”, however, required her to reconcile the inconsistencies between her evidence and of the complainant’s as to what was occurring at the time at which she arrived. In this regard her Honour indicated that she had “referred, at some length” to inconsistencies between the complainant’s evidence and that of other witnesses. However, the key inconsistency – that Ms Van de Vate was not in fact there at the time of digital penetration – had not been referred to, other than in a passage recounting the submission made by the applicant’s counsel. The earlier passage dealing with inconsistencies between the complainant and Ms Van de Vate is set out above at [127], and deals only with issues of the time of day and the presence or absence of CS at the house at the relevant time. These issues are of a very different quality to the complainant’s recollection of what was actually happening at the time she was being sexually assaulted.

16. [132]

    The respondent submitted that it can be inferred that Her Honour had regard to the inconsistency between Ms Van de Vate’s evidence and that of the complainant. I do not agree. Immediately after the passage set out above her Honour continued (in the passage emphasised by Adamson J at [52]):

17. [133]

    Her Honour in the above passage singled out Ms Van de Vate’s presence at the door and appears to have characterised it as “so intertwined with the conduct described” as to be readily recalled. Her Honour did not, however, explain why the complainant’s evidence of Ms Van de Vate’s call on the applicant to stop during the act of digital penetration did not detract from the complainant’s account. Further, having relied on the evidence of Ms Van de Vate as corroborating an aspect of the complainant’s evidence, her Honour immediately continued, by addressing the significance of inconsistencies. Her Honour said:

18. [134]

    It can be seen that, after acknowledging that “[a]ny inconsistency in the description of the precise conduct alleged is a matter to be given significant weight”, her Honour did not deal with the key inconsistency with respect to Ms Van de Vate’s evidence. Her Honour did refer to the fact that counsel had addressed on inconsistencies, and, as noted above, in setting out counsel’s arguments, her Honour had referred to the particular argument with respect to Ms Van de Vate. However, her Honour’s reference to “inconsistencies in [the complainant’s] evidence, which I have referred to earlier”, appears to relate to the inconsistencies she had discussed in the course of her reasoning which did not include the inconsistency between the complainant’s evidence and that of Ms Van de Vate’s concerning the latter’s presence and intervention at the time of the digital penetration. Even if this is not the case, the simple statement that “these inconsistencies do not operate to significantly undermine the reliability of [the complainant’s] evidence” is not sufficient to explain how this inconsistency was dismissed. (I pause to note that it was, of course, not a matter of the evidence being “sufficient to raise a doubt” but for the prosecution evidence to exclude reasonable doubt. However, reading the reasons fairly and as a whole, I agree with Adamson J that the onus of proof was not reversed.)

19. [135]

    It may have been possible to reconcile Ms Van de Vate’s evidence with that of the complainant, but that is not to the point. The most obvious possibility is that relied upon by Adamson J; that is that Ms Van de Vate arrived after the digital penetration had ceased and that the complainant was mistaken as to this aspect of the matter. That also requires a rejection of the complainant’s evidence that Ms Van de Vate said to “stop it right now”, in reference to the digital penetration. It is possible that the complainant has constructed this version to fit in with her belief that Ms Van de Vate witnessed the digital penetration. However, acceptance of Ms Van de Vate’s evidence (or more accurately, acceptance of the possibility her evidence was true) had the result that the complainant’s narrative as to what occurred between her and the applicant was not entirely accurate (or could not be accepted beyond reasonable doubt as entirely accurate). That did not mean that the account of digital penetration was necessarily inaccurate. It did mean, however, that that possibility needed to be considered. This was a matter that needed to be dealt with by the trial judge.

20. [136]

    Ultimately, the applicant was entitled to know how it was that the trial judge was satisfied of his guilt, beyond reasonable doubt, in circumstances where the complainant’s recollection of what was happening while she was being sexually assaulted was, effectively, contradicted by another independent witness. With respect to the arguments of the Crown and the reasons of Adamson J, for the reasons above, I do not accept that the matter could be discounted as simply one of timing given the complainant’s evidence that Ms Van de Vate called on the applicant to stop. If the reliability of the complainant’s evidence of digital penetration were to be accepted, then the most likely explanation was timing. But to simply assume it was timing requires an assumption the event occurred.

21. [137]

    I am of the view that the reasons of the trial judge are inadequate. They fail to expose the reasons for resolving a point critical to the contest between the parties. This Court is left to speculate from collateral observations as to the basis on which the trial judge accepted the complainant’s evidence despite the conflict between her evidence and that of Ms Van de Vate. The lack of explication with respect to evidence which was important to the applicant’s case is such as to leave the applicant justifiably aggrieved, and promotes the sense that justice has not been done.

22. [138]

    Whether the failure is one limited to the giving of reasons or one that extends to a failure to have regard to the evidence is discussed below. Either way, the ground is made out.

Ground 3 – the assessment of and reliance on the evidence of complaint to Mrs B

1. [139]

   With respect to ground 3 I agree with Adamson J that it was open to the trial judge to find that Mrs B had not understood the complaint made to her by the complainant. I also accept, as the applicant submitted, that this finding had the consequence that the complainant did not make a complaint in the terms in which she, in her evidence, said she did. The applicant submits that the consequent impact on her credit was not addressed by the trial judge. However, while it was not directly addressed, her Honour’s reasons address why Mrs B may not have understood the complaint (as set out by Adamson J at [50]). The trial judge there found that the complainant believed she was complaining in direct terms, but that her articulation of the complaint at the age of 6 may not have been what she believed it to be. It follows that she would subsequently give (inaccurate) evidence of a complaint in direct terms. While not clearly articulated, the reasons are sufficient to my mind to explain the complainant’s evidence of the terms of her complaint to Mrs B.

2. [140]

   There were, however, other aspects to the evidence of this complaint that required analysis. The complainant said that the morning after the act of digital penetration occurred, she telephoned Mrs B and arranged for Mrs B to meet her at the bus stop near Mrs B’s house, rather than attending school. The complainant gave evidence that, having travelled to see Mrs B and made the complaint, Mrs B responded to her by saying “That’s not good, and, um, he shouldn’t have done that”. The complainant said she then stayed at Mrs B’s house for more than one night.

3. [141]

   Mrs B, in contrast gave evidence that the complainant had never arranged to have Mrs B meet her at the bus stop, any such arrangement being invariably made by a parent. Mrs B also said that the complainant had never come to her house on a school day instead of going to school. Nor could Mrs B recall any occasion on which the complainant had stayed with her for more than one night. This evidence cast doubt on the complainant’s evidence of the circumstances in which the complaint was said to have been made. Further, the complainant’s evidence that Mrs B responded to the complaint needed to be reconciled with her Honour’s conclusion that Mrs B had not understood the complaint. With respect to the trial judge, these aspects of the evidence were not adequately dealt with. Before finding that the complainant’s evidence of a direct complaint to Mrs B, which was not supported by Mrs B, could be explained by miscommunication, it was also necessary to deal with these aspects of the evidence.

4. [142]

   It may be that there were other explanations for the conflict in the evidence, such as, as the Crown maintained at trial, Mrs B’s desire to protect her son. However, as with the evidence of Ms Van de Vate, it is not sufficient to simply proffer a way in which the evidence can be explained consistent with proof of guilt. It was a matter the trial judge was obliged to consider. The reasons needed to reflect that consideration by articulating the resolution of the conflict in the evidence between the complaint and Mrs B, beyond simply the words spoken.

5. [143]

   Before leaving this ground, I note that, despite finding the complainant made an almost immediate complaint to her grandmother, the trial judge appears not to have relied on this evidence in support of the complainant’s credibility as to the occurrence of the event. She did however rely on the much later complaints to Paula and Avryl Daley, noting in the conventional fashion potential explanations for delay in these complaints. Despite the lack of reliance on the evidence of complaint to Mrs B as complaint evidence in the usual way, it remained necessary to deal with the conflict in the evidence. On the defence case, the complainant’s reasonably elaborate evidence of calling her grandmother, making arrangements to get the bus to her grandmother’s instead of attending school, and staying there for more than one night, was, given the evidence of Mrs B, a fantasy. More particularly, it was a fantasy connected with her account of having been sexually assaulted by the applicant. The evidence was consequently, of some importance to the defence case and needed to be dealt with.

Grounds 4 and 8 – failure to consider the cumulative effect of the inconsistencies or to give adequate reasons in this regard

1. [144]

   Having come to the view that grounds 2 and 3 are made out, it is strictly unnecessary to consider these grounds. It follows from my view that her Honour did not give adequate reasons with respect to the matters the subject of grounds 2 and 3, that the cumulative effect of those matters was not considered. It should however, be noted there is force in the argument that it was necessary to properly consider, in relation to count 1, that there were significant differences in the evidence not only with respect to the event itself but also as to what happened the next day. While the matters the subject of grounds 2 and 3 were more remote with respect to count 2, they nonetheless had the potential to impact the complainant’s credit generally and thus impact on count 2.

The remaining count 2 grounds – grounds 7 and 9

1. [145]

   As noted above, I agree with Adamson J with respect to the disposition of these grounds. However, it should also be noted that, in determining count 2, the trial judge relied on her finding with respect to count 1 as tendency evidence in support of count 2. It follows that any error in the determination of count 1 necessarily affected count 2.

2. [146]

   The applicant is entitled to success with respect to both counts, subject to the application of the proviso which I consider below.

The proviso

1. [147]

   As submitted by the respondent, a failure to give adequate reasons does not, necessarily, preclude application of the proviso to s 6(1) of the Criminal Appeal Act. While in AK v Western Australia the High Court found that the appellate court’s satisfaction of the appellant’s guilt beyond reasonable doubt did not have the result that there had been no substantial miscarriage of justice, this conclusion was reached after consideration of the nature of the error. Gummow and Hayne JJ (who, with Heydon J, formed the majority) noted (at [55]) that it will, “in every case … be necessary to consider the application of the proviso … taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal”. Their Honours went on to observe firstly, that the statutory provision required the reasons to articulate the connection between the relevant legal principle and the relevant findings of fact, but secondly that the “particular failure that was identified related to the central issue in the appellant’s trial”. The issue in that case was identification. The trial judge accepted the evidence of the complainant who believed the perpetrator was the appellant but said nothing as to why that evidence was accepted. It can be accepted that the failure in this case was not so egregious.

2. [148]

   While the errors I have identified are of substance, I am ultimately of the view that if I am satisfied of the applicant’s guilt to the requisite standard, he will not have suffered a “substantial miscarriage of justice”: see DL v The Queen.

3. [149]

   In considering for myself the proof of the applicant’s guilt from the record of the trial, I am entitled to have regard to not only the evidence given but the verdict of the trier of fact who had the advantage of seeing and hearing the witnesses. As adverted to above, it is not possible to know whether the present case involves a failure to have proper regard to the significance of important evidence together with a failure to give adequate reasons, or simply a failure to give adequate reasons. If, say, the verdict was reached without having regard to the conflict between the evidence of the complainant and Ms Van de Vate, the trial judge will have misused her advantage and the verdict at first instance would be of no assistance to my determination.

4. [150]

   However, even if the error was simply one in relation to the giving of reasons, it does not follow that I can nonetheless rely on that verdict. As discussed above, it is possible to articulate bases on which the trial judge could have reasoned to guilt despite the conflicts in the evidence. One can also postulate that, given her acceptance of the complainant’s evidence, had the trial judge specifically addressed the issues, she may still have reasoned to guilt. However, the exercise of providing reasons is not simply to justify a conclusion. It involves a process of reasoning to a conclusion. In this regard it cannot be assumed that, had the trial judge specifically addressed the issue, her conclusion would inevitably have been the same. In AK v Western Australia Heydon J observed (at [108]) that the discipline of giving reasons serves:

5. [151]

   It cannot be assumed that had the trial judge engaged in the process of articulating the conflict between the evidence of the complainant and Ms Van de Vate, and that between the complainant and Mrs B, and found a way to reconcile the competing versions in a way that was favourable to the Crown, she would have necessarily reached the same conclusion. Given this, even if limited to an error as to the giving of reasons, the nature of the error is such that the verdict at first instance has limited utility. The credit of the complainant is central to the determination of guilt and I have not had the advantages that exist in hearing a matter at first instance in assessing her evidence: see Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 per Kiefel CJ, Bell, Keane and Gordon JJ at [15]. In these circumstances, I am not satisfied, based on the record of trial, of the applicant’s guilt beyond reasonable doubt. It follows that I am not satisfied there has been no substantial miscarriage of justice and the appeal in relation to count 1 must be allowed.

6. [152]

   As discussed above, the evidence the subject of grounds 2 and 3 had the potential to impact the complainant’s credit more generally. Further, the trial judge relied on count 1 in support of her conclusion that count 2 was made out. The verdict at first instance with respect to count 2 is again of little assistance in determining the applicant’s guilt solely on the record of the trial. I am not satisfied beyond reasonable doubt of the applicant’s guilt based on that record. Accordingly, I am of the view the appeal must also be allowed in relation to count 2.

7. [153]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      The convictions on counts 1 and 2 on the indictment be quashed.

   4. (4)

      A new trial be ordered.

   5. (5)

      The matter is to be listed in the Arraignments List in the District Court at Sydney on 27 May 2022 at 9:30am.