JN v R

1. [1]

   PAYNE JA: Between 13 August 2018 and 27 August 2018, the appellant, who shall be referred to in this judgment as JN to protect the identity of the complainants, was tried before O’Rourke SC DCJ and a jury in the District Court at Parramatta.

2. [2]

   On 27 August 2018, JN was found guilty of sexual offences committed between 8 May 1994 and 31 December 2002 against two complainants, who in this judgment I will call Simon and Yvonne, who were children from another family who lived on the same street and who were friends of JN’s younger brother, who I will refer to in this judgment as Michael.

3. [3]

   On 13 August 2018, JN was arraigned on an indictment containing nine counts. On 22 August 2018, after the close of the Crown case, the indictment was substantially amended. The amended indictment charged JN with 16 separate counts. On 27 August 2018, JN was convicted by a jury on nine of the 16 counts, namely, counts 2, 3, 4, 8, 9, 10, 12, 14 and 16. Immediately after the verdicts were given, O’Rourke SC DCJ refused a detention application made by the Crown and granted the appellant bail.

4. [4]

   On 22 February 2019, O’Rourke SC DCJ sentenced the appellant. In relation to counts 2, 4, 8, 12, 14 and 16, JN was sentenced to an aggregate sentence of 4 years imprisonment comprising a non-parole period of 2 years and 5 months commencing on 22 February 2019 and an additional term of 1 year and 7 months to commence on the expiration of the non-parole period. In relation to counts 3, 9 and 10, a community correction order of 12 months commencing on 22 February 2019 was imposed. Immediately following sentence, O’Rourke SC DCJ granted the appellant conditional bail pending the appellant’s conviction appeal to this Court.

Relevant background

1. [5]

   The Crown called Simon and Yvonne (pseudonyms I have given the complainants), Victor (a pseudonym for the complainants’ brother), Mary (a pseudonym for the complainants’ mother), Michael (a pseudonym for the appellant’s brother), Aldous (a pseudonym for the complainants’ and Michael’s friend), Doreen (a pseudonym for Simon’s ex-fiancé), Robert (a pseudonym for Simon’s friend), DSC Thomas, DSC Hayman and SC Williams. The evidence is summarised below. JN did not give evidence but on 26 May 2015, the day of his arrest, participated in an electronically recorded interview (“ERISP”). Relevant parts of JN’s evidence in the ERISP are set out below.

2. [6]

   On 22 August 2018, after the close of all the evidence and immediately prior to the closing addresses, the Crown amended the indictment pursuant to s 20 of the Criminal Procedure Act 1986 (NSW). The amended indictment alleged 16 counts of sexual offences. Some counts were in the alternative. The counts, and the evidence said to support them, were advanced by the Crown at the trial in the following way:

   1. (1)

      COUNT 1: That JN, between 8 May 1994 and 7 May 1997, at Granville in the State of New South Wales, did have sexual intercourse with Simon, who was at that time under the age of 10 years, namely, between 7 and 9 years, contrary to s 66A.

   2. (2)

      COUNT 2: Further, in the alternative to count 1, that JN, between 8 May 1997 and 7 May 2000, at Granville in the State of New South Wales, did have sexual intercourse with Simon, who was at the time above the age of 10 years and under the age of 16 years, namely, between 10 and 12 years, contrary to s 66C(1).

   3. (3)

      COUNT 3: Further that JN, between 8 May 1994 and 7 May 2000, at Granville in the State of New South Wales, did incite Simon, a person then under the age of 16 years, namely, between 7 and 12 years to commit an act of indecency with him, contrary to s 61N.

   4. (4)

      COUNT 4: Further that JN, between 8 May 1994 and 7 May 2000, at Granville in the State of New South Wales, did have sexual intercourse with Simon without his consent, and knowing that he was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence Simon was a person under the age of 16 years, namely, between 7 and 12 years of age, contrary to s 61J(1).

   5. (5)

      COUNT 5: Further, in the alternative to count 4, that JN, between 8 May 1994 and 7 May 1997, at Granville in the State of New South Wales, did have sexual intercourse with Simon, who was at that time under the age of 10 years, namely, between 7 and 9 years, contrary to s 66A. See the Crown prosecutor’s address to the jury on Count 4.

   6. (6)

      COUNT 6: Further, in the alternative to count 5, that JN, between 8 May 1997 and 7 May 2000, at Granville in the State of New South Wales, did have sexual intercourse with Simon, who was at that time above the age of 10 years and under the age of 16 years, namely, between 10 and 12 years, contrary to s 66C(1). See the Crown prosecutor’s address to the jury on Count 4.

   7. (7)

      COUNT 7: Further that JN, between 8 May 1994 and 7 May 1997, at Granville in the State of New South Wales, did have sexual intercourse with Simon, a person who was at that time under the age of 10 years, namely, between 7 and 9 years, contrary to s 66A.

   8. (8)

      COUNT 8: Further, in the alternative to count 7, that JN, between 8 May 1997 and 7 May 2000, at Granville in the State of New South Wales, did have sexual intercourse with Simon, who was at that time above the age of 10 years and under the age of 16 years, namely, between 10 and 12 years, contrary to s 66C(1). See the Crown prosecutor’s address to the jury on Count 7.

   9. (9)

      COUNT 9: Further that JN, between 8 May 1994 and 7 May 2000, at Granville in the State of New South Wales, did commit an act of indecency toward Simon, a person then under the age of 16 years, namely, between 7 and 12 years, contrary to s 61N.

   10. (10)

       COUNT 10: Further that JN, between 8 May 1994 and 7 May 2000, at Granville in the State of New South Wales, did incite Simon, a person then under the age of 16 years, namely, between 7 and 12 years of age, to commit an act of indecency with him, contrary to s 61N. See the Crown prosecutor’s address to the jury on Count 9.

   11. (11)

       COUNT 11: Further that JN, between 1 January 1999 and 2 June 2001, at Granville in the State of New South Wales, did assault Yvonne, a person then under the age of 10 years, namely, between 7 and 9 years of age and immediately before such assault did commit an act of indecency on the said Yvonne, contrary to s 61M(2).

   12. (12)

       COUNT 12: Further, in the alternative to count 11, that JN, between 3 June 2001 and 31 December 2002, at Granville in the State of New South Wales, did assault and commit an act of indecency on Yvonne in circumstances of aggravation in that Yvonne was under the age of 16 years, namely, between 10 to 11 years, contrary to s 61M(1). See the Crown prosecutor’s address to the jury on Count 11.

   13. (13)

       COUNT 13: Further that JN, between 1 January 1999 and 2 June 2001, at Granville in the State of New South Wales, did have sexual intercourse with Yvonne, who was at that time under the age of 10 years, namely, between 7 and 9 years of age, contrary to s 66A.

   14. (14)

       COUNT 14: Further, in the alternative to count 13, that JN, between 3 June 2001 and 31 December 2002, at Granville in the State of New South Wales, did have sexual intercourse with Yvonne who was at that time above the age of 10 years and under the age of 16 years, namely, between 10 and 11 years, contrary to s 66C(1). See the Crown prosecutor’s address to the jury on Count 13.

   15. (15)

       COUNT 15: Further that JN, between 1 January 1999 and 2 June 2001, at Granville in the State of New South Wales, did have sexual intercourse with Yvonne, who was at that time under the age of 10 years, namely, between 7 and 9 years of age, contrary to s 66A.

   16. (16)

       COUNT 16: Further, in the alternative to count 15, that JN, between 3 June 2001 and 31 December 2002, at Granville in the State of New South Wales, did have sexual intercourse with Yvonne who was at that time above the age of 10 years and under the age of 16 years, namely, between 10 and 11 years, contrary to s 66C(1). See the Crown prosecutor’s address to the jury on Count 15.

3. [7]

   On 27 August 2018, the jury returned verdicts of guilty in respect of nine counts on the amended indictment, namely, counts 2, 3, 4, 8, 9, 10, 12, 14 and 16.

Grounds of appeal

1. [8]

   By a notice of appeal dated 20 February 2019, the appellant appeals against his conviction on three grounds:

   1. (1)

      The verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence.

   2. (2)

      There was a substantial miscarriage of justice in that important eyewitnesses were neither interviewed by police nor called as witnesses in the prosecution case and consequently the jury was deprived of information highly pertinent to the central issue in the trial.

   3. (3)

      The indictment was substantially rewritten at the close of the Crown case, producing such a divergence between the case as particularised, presented on arraignment and opened, that the trial was irregular and not a fair trial, and there was a miscarriage of justice.

Ground 1 – Unreasonable verdicts of guilty

1. [9]

   As it will be necessary to consider all of the evidence in the trial in order to address this ground it is appropriate that it be addressed first.

2. [10]

   The appellant submitted that the verdicts of guilty are unreasonable or cannot be supported having regard to the evidence. The appellant relied in particular upon the following matters.

3. [11]

   The appellant submitted that Simon presented in court as a disturbed individual. During his cross-examination on 15 August 2018, Simon engaged in a violent and emotional outburst which provoked the security officers to enter the court and resulted in an adjournment. Simon struck and injured his hand against the woodwork of the witness box. The following exchange occurred between counsel and the trial judge as to what to do:

4. [12]

   The appellant submitted that it was relevant that the Crown prosecutor was reluctant to have conversations with Simon about arrangements for giving his evidence. The appellant submitted that Simon repeatedly used expletives which showed recklessness and disrespect to the court. The appellant submitted that it is significant that Simon raised that he suffered post-traumatic stress disorder for the first time in his evidence at trial. It can be reasonably inferred from his work in a clerical role in relation to workers compensation claims that Simon would have had some knowledge of post-traumatic stress disorder.

5. [13]

   The appellant submitted in relation to Simon that it is difficult to accept that a child would have continued to visit the appellant’s house after being assaulted in the way described. Simon had said of the anal intercourse, “I remember that first instant that it went in. I’ll never forget that pain”. The appellant submitted that in the present case the alleged offences did not occur in a place where the child permanently resided, but a place where the child voluntarily visited. The appellant’s and Simon’s family homes were separated by another house. It would be unlikely that a child would continually visit the appellant’s home if the appellant had in fact sexually assaulted Simon and caused unforgettable pain. Common sense suggests that Simon would have stayed away and avoided the situation even if he may not have reported the incident.

6. [14]

   The appellant submitted in relation to Yvonne that it is not credible that a child subjected to repeated anal intercourse and fellatio would have continued voluntarily to visit the appellant’s home and in particular his bedroom. The appellant noted that Yvonne gave evidence that the assaults occurred 2-3 times a week over a period of 4-5 years. The repetition and regularity of her visits to a place that she was not bound to attend raises real doubts about her claims.

7. [15]

   The appellant submitted that he had no criminal convictions and had been in more or less continuous employment since he completed high school. This is relevant for the purposes of the good character direction given by the trial judge.

8. [16]

   The appellant submitted that the absence of criminal convictions tells against the appellant possessing the sexual tendencies alleged by the Crown and against the likelihood of the commission of the alleged offences.

9. [17]

   The appellant submitted that a central claim of the Crown case in relation to both complainants was that there was a friendly relationship between the children of both families such that the complainants would frequent the appellant’s home to play video games which allowed many opportunities when there were no adults present for the alleged offences to have occurred. The appellant submitted that the evidence is significantly to the contrary. The evidence suggests that there would have been few, if any, opportunities for the complainants to be alone with the appellant.

10. [18]

    The appellant submitted that another central claim of the Crown case in relation to both complainants was that there were restrictions on the complainants playing video games in their own home and as a result they were inclined to go to the appellant’s home to do so. The appellant submitted that the evidence is significantly to the contrary.

11. [19]

    The appellant submitted that the evidence of both complainants contained so many errors and contradictions that a reasonable jury would not have convicted the appellant. The appellant submitted that much of Simon’s evidence was withdrawn in cross-examination and that the various retractions, changes and conflicts in his evidence are so serious that they are not mere conflicts about minor matters.

12. [20]

    The appellant submitted that there is nothing said by the appellant in the pretext conversations other than mere suggestion and the general thrust of the conversations is that the appellant denies impropriety. The pretext conversations show that the appellant was upset about the accusations made against him. That is why he went to the police to report that he was being harassed by the complainants.

13. [21]

    The appellant accepted that, in the ERISP, he minimised the degree of his contact with the complainants’ family. The appellant explained that this was because by this time he was concerned that Simon was accusing him of sexual misbehaviour.

14. [22]

    The appellant submitted that in undertaking an independent assessment of the evidence as a whole and having regard to all the inadequacies and contradictions in the Crown case individually and in sum, this Court would have real doubt as to the guilt of the appellant.

15. [23]

    Finally, the appellant noted that, shortly after the verdicts were given and in disposing of a detention application made by the Crown, the trial judge made the following remarks:

16. [24]

    The appellant submitted that it is a relevant consideration that her Honour, having seen and heard all of the evidence, came to the view that she did. It was submitted that the Court, in paying due regard to the advantage which the jury had in seeing and hearing the evidence, should also take into account the advantage which the trial judge, who had lengthy and substantial experience of criminal trials, had in seeing and hearing the evidence.

17. [25]

    The Crown submitted that it is necessary for this Court to review the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In performing this task, deference should be given to the jury’s determination as the jury heard the evidence of the witnesses, particularly the evidence of the complainants. The Crown submitted that the trial judge’s post-verdict remarks relied upon by the appellant are irrelevant and should not carry any weight.

18. [26]

    The Crown submitted that there is no dispute that Simon was emotionally distressed when he gave evidence. Early in Simon’s evidence in chief, the trial judge observed that “it’s clearly apparent from this witness the raw emotion that is there” and enquired whether Simon had been advised that he could have a support person. When cross-examined on his police statements, Simon stated that he deliberately did not read his statements the previous night, stating “I couldn’t pick them up and physically read them” and “forgive me for getting upset”. The trial judge said to Simon that “we cannot have a repeat of the performance yesterday” and Simon replied “[i]t won’t happen again”.

19. [27]

    Addressing the appellant’s submissions on this issue, the Crown submitted:

    1. (1)

       The incident during which Simon injured his hand and required the court security officers to attend occurred in the context of Simon becoming very distressed during his cross-examination about his failure to mention to police his concerns about the appellant having sexually assaulted his sister.

    2. (2)

       The fact that Simon used expletives did not show a measure of disrespect to the court.

    3. (3)

       Simon’s evidence in cross-examination that he suffered from post-traumatic stress disorder does not suggest that he was not a credible witness. It was submitted that Simon’s memory gaps during evidence should stand or fall on their own and should not be given more weight because of his post-traumatic stress disorder.

20. [28]

    The Crown submitted that any inferences to be drawn from Simon’s distress when giving evidence were matters for the jury.

21. [29]

    The Crown submitted that the appellant’s submissions on this issue rely on outdated assumptions about the behaviour of victims (particularly child victims) following sexual assault. There are many reasons why children act counter-intuitively and return to the place of an assault, such as normalisation, denial, the need for friendship, the desire to play games to which they do not have access at home, and a belief that the assault will not reoccur.

22. [30]

    It was common ground that the appellant’s good character must be taken into account by this Court when considering whether the appellant has demonstrated that the jury’s verdicts are unreasonable. However, evidence of previous good character cannot prevail against evidence of guilt. This matter alone does not of itself undermine the jury’s verdicts.

23. [31]

    The Crown submitted that the trial judge had directed the jury that the Crown did not have to prove beyond reasonable doubt “every single fact or every single issue that has arisen from the evidence and that may be in dispute in this trial”. In relation to the appellant’s contention that the evidence at trial was inconsistent with Yvonne’s evidence in cross-examination that she was assaulted 2-3 times per week over the course of several years, the jury was not required to be satisfied beyond reasonable doubt that Yvonne was sexually assaulted on occasions other than those alleged in the indictment. In relation to the appellant’s contention that Simon’s evidence that he went to the appellant’s home because he was not allowed to play video games at home during the week, the Crown submitted that Mary had stated that she “assumed” that her children played games but that they did not have a console when they were younger and that Victor had stated that there was no restriction on playing games during the week but that it was discouraged by their father.

24. [32]

    The Crown submitted that it was open to the jury to consider each of the alleged inconsistences in the evidence of the complainants to be peripheral matters, which could be explained by the effluxion of time and did not undermine the credibility or reliability of the complainants. The Crown submitted that the jury may well have concluded that Simon was mistaken about the chronology of events.

25. [33]

    The Crown submitted that the fact the appellant reported to police that he was being harassed is a neutral factor which does not point necessarily to guilt or away from guilt. It was submitted that it was open to the jury to take into account that it was the appellant who first raised matters of a sexual nature in the recorded conversations. However, the Crown accepted that by the time the appellant raised those matters, he may have at least suspected he was being accused by Simon of sexual assault almost 20 years before. The Crown submitted that in these circumstances the appellant has not demonstrated that the jury’s verdicts are unreasonable.

Consideration of Ground 1 – Unreasonable verdicts of guilty

1. [34]

   The right to appeal against conviction to this Court is found in s 5 of the Criminal Appeal Act 1912 (NSW). Section 6 of that Act is enlivened by ground 1 of the appeal:

2. [35]

   The principles that are applicable to an appeal on the ground that a verdict is unreasonable, or cannot be supported, having regard to the evidence, were identified by the High Court in M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63. Mason CJ, Deane, Dawson and Toohey JJ, in their joint judgment, stated:

3. [36]

   The principles were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated:

4. [37]

   At [22] French CJ, Gummow and Kiefel JJ said:

5. [38]

   More recently in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] the High Court has emphasised the central place of the jury trial in the administration of criminal justice and, thus, the stringency of the unreasonable verdict test. The Court stated:

6. [39]

   In determining a complaint about an allegedly unreasonable verdict it is necessary to bear firmly in mind the constitutional importance of the jury as the arbiter of fact. It is axiomatic that this jury, having heard full argument in relation to the credibility and reliability of the complainants, nevertheless concluded that it was satisfied, beyond reasonable doubt, as to the truthfulness and reliability of the complainants’ evidence in respect of the charges on which the appellant was convicted.

7. [40]

   However, as the High Court has emphasised, that does not absolve this Court from undertaking its own assessment of the credibility and reliability of the complainants’ evidence, and of all the evidence in the case, in order to determine whether it was open to the jury to convict the appellant on the charges on which it returned a guilty verdict. Indeed, the passages just cited from SKA v The Queen make it clear that properly to address this ground this Court has an obligation to review findings of fact made by a jury in a criminal trial and make an independent assessment of the evidence. The Court is required to determine whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.

8. [41]

   In undertaking this task the Court was urged by the appellant to take into account the views of the respected and experienced District Court judge who presided over the trial and in particular her Honour’s remarks when granting bail pending the outcome of this appeal. Without any disrespect to her Honour, I have decided not to take those views into account.

9. [42]

   This submission raises an issue, about which there is conflicting authority in this Court, about the extent to which comments by the trial judge, who like the jury had the advantage of seeing the complainants, could be taken into account in determining whether the verdict is unreasonable. In Daaboul v R [2019] NSWCCA 191 the Chief Justice recently said:

10. [43]

    In addressing this ground I have not found it necessary to take into account the comments of the trial judge or the Crown prosecutor which were urged upon the Court by the appellant. I have put those remarks wholly aside in considering this ground.

11. [44]

    Whilst I find the judgment of the Chief Justice in Daaboul persuasive as properly reflecting the jury’s critical role in the trial, whether there are circumstances in which the views of the trial judge or the Crown prosecutor may be relevant to determining whether a verdict is unreasonable should be determined in a case where determination of that issue is critical and the Court is appropriately constituted to resolve the conflict in the authorities.

12. [45]

    I have made an independent assessment of all the evidence in the trial. I will first set out my assessment of the relevant background evidence before addressing each of the counts in the amended indictment and the critical evidence necessary to be weighed in determining whether the verdicts of guilty could be supported.

13. [46]

    The complainants, Simon and Yvonne, are siblings. Simon is 4 years older than Yvonne. At all relevant times they lived in Granville with their father, mother (Mary), and their elder brother (Victor). Victor is 9 years older than Simon and 13 years older than Yvonne. The complainants’ family lived two houses away from the appellant’s family. Victor was a friend of the appellant. Victor is one year older than the appellant. The appellant is 8 years older than Simon and 12 years older than Yvonne.

14. [47]

    The appellant lived with his mother, father, younger brother (Michael), and three sisters. Michael is 12 years younger than the appellant.

15. [48]

    Both complainants were friendly with Michael. Michael was 4 years younger than Simon and a month younger than Yvonne. Yvonne was also friends with twin brothers who lived in the same street, who I will refer to in this judgment as Aldous and Dylan. Michael gave evidence that he was friendly with Simon, Yvonne and Victor, but mainly Yvonne as she was closest to him in age.

16. [49]

    Aldous gave evidence that his family moved to Granville when he was about 6 or 7 years old on the street that intersected with the street where the appellant’s family and the complainants’ family lived. As he was growing up, Aldous hung out with Yvonne and Michael at their homes, as well as at the park. Aldous stated that he had a friendship with Simon “just in the neighbourhood”.

17. [50]

    Simon gave evidence that he had a friend called Patricia who lived across the road from him in Granville. Simon had known her when he was 5 to 12 years old. She was 1 or 2 years older than Simon.

18. [51]

    Michael lived in the family home at Granville all his life and at the time of the trial still lived there. He shared the front room with JN until he was 16 years old while his three sisters shared a room and his parents lived in the remaining room. He took a video of the house which was in evidence. The differences between his bedroom at the time of the alleged offences and the time he took the video were that a chest of drawers with movies on it used to be where the computer was now located. The wardrobes now had mirrored doors whereas previously there were wooden doors. There was no lock on the bedroom door when he was in primary school and he and Yvonne were friends. Only when he became an adult after he had left school that a lock was placed on the door.

19. [52]

    The appellant’s home was a small and modest house. It was uncontroversial on the appeal that the house was always very busy and loud and there “was always someone in the house”. The street was also busy with cars driving up and down and children playing sport in the front yard and grassed area behind the house. Michael’s mother did not work outside the home and throughout the potentially relevant period Michael’s father was not employed and was always at home “just doing housework”. Michael’s mother would pick him up from primary school and his father was always home when he arrived home. The family car was a Ford Falcon. When he came home from primary school each day, Michael would do homework, have dinner, watch television and play games. If Dylan and Aldous were available, he would play games in the afternoon before dinner. He did not have after-school activities during primary school.

20. [53]

    In about 1993 or 1994, the complainants’ family home in Granville was demolished. While a new house was being built on the land, the family rented a house across the street. Sometime after June 1998, 4 years later, the complainants’ family moved into the new house.

21. [54]

    Simon and Yvonne gave evidence that the bedroom that the appellant and Michael shared had a little child-sized, fold-out couch at the end of one of the two single beds in the bedroom, specifically, the bed closest to the television. In front of the couch were a gaming system and a television.

22. [55]

    Yvonne gave evidence that she and Michael played video games together on his Nintendo 64 console in his bedroom nearly every day during the week between 1999 and 2002. Yvonne stated that she knew that Michael and the appellant shared the bedroom because someone told her and she sometimes saw the appellant sleeping in there. Yvonne stated that she and Michael would also play games on a PlayStation console located in the lounge room.

23. [56]

    Yvonne gave evidence that she would usually scream out from the street at the front of the house to see if Michael was home and then Michael would come out and tell Yvonne to come in.

24. [57]

    Simon gave evidence that he played video games in the rumpus room and the bedroom Michael shared with the appellant two to four times a week. Simon stated that the consoles could be moved between the rooms, but that “most of the time” the consoles were in the appellant’s bedroom. Simon stated that:

25. [58]

    Simon stated that there were “more than 10 occasions” when it was just him and the appellant in the appellant’s bedroom. This occurred when Simon was between 8 and 12 years old.

26. [59]

    Michael gave evidence that sometimes Yvonne would come to his house and they would play games on his Nintendo 64 console. When he was 8 to 10 years old, Yvonne would come over to his house, and after that, he would go to her house. He could not remember Simon coming to his house other than one occasion for his tenth birthday party when he had a jumping castle and many friends from primary school attended.

27. [60]

    Michael gave evidence that when Yvonne would come over to his house he would hear his name called from outside the front of the house and then he would go see that it was Yvonne calling his name. If his parents allowed her to come in, she would do so and they would play games. If his parents did not allow her to come in because it was time for dinner or homework, she would go home. The appellant was present on occasions when Yvonne was over but the appellant never played games with them when she was over.

28. [61]

    Michael stated that there were rare occasions when he and Yvonne played games in his bedroom, usually during birthday parties. This occurred when Michael was in high school and seeing Dylan and Aldous more frequently. It was when the appellant was finishing school, just before the appellant moved out or just after he had moved out. At the time, the appellant was working as a security officer at a factory, so he would sometimes sleep during the day and Michael could not play games in the bedroom then.

29. [62]

    Michael gave evidence that his friends, Dylan and Aldous, would also play games at his house. Sometimes they were there when Yvonne was there. He did not start hanging out with Dylan and Aldous until after he was 10 years old. From then on, he spent more time with them than Yvonne but Yvonne would pop in every now and again. As they got older, Yvonne’s visits became less frequent and they drifted apart as they went into high school. They did not go to the same high school and Yvonne started high school before he did.

30. [63]

    Michael gave evidence that the appellant played video games. The appellant had bought the games that they had at home and the console they played on.

31. [64]

    Aldous gave evidence that he went to Michael’s house “a lot”. The appellant was still living there when Aldous went to his house. Aldous could not recall how old he was, only that he was still in primary school when the appellant moved out. When he, Dylan and Michael, went to Yvonne’s house, the house was a two-storey house at the time. Aldous stated they hung out “in her room or pretty much in her living room”. Yvonne had a Nintendo 64 console and they would “just play games, hang out, talk”. Aldous stated that when he, Dylan, Yvonne and Michael played games at Michael’s house, Simon was there “[s]ometimes” but “more like 60 or 70% that he wasn’t there”. He stated that Simon would usually only come to play with them when they played outside in the park.

32. [65]

    Victor, the complainants’ elder brother, stated that his parents directed him to pick Simon up from the appellant’s house “a few times”. When he went to pick Simon up, Simon was “sometimes playing with [Michael]” and “sometimes in [JN’s] room playing the Nintendo”. Victor said that he knew this because he would see Simon playing it when he went to pick him up.

33. [66]

    Simon gave evidence that he started playing video games when he started primary school at the age of five. At home, they had the Omega system and the Nintendo system. When he was 13 years old, they had a Nintendo 64 console.

34. [67]

    Victor gave evidence that, when they were in the old house, they had a Sega Megadrive, a Sega Master system and a Nintendo. There was a television in Simon and Victor’s bedroom, and a television in Yvonne’s bedroom. Simon, who was in primary school at the time, played games on the console in the bedroom they shared. Yvonne sometimes played games but mostly watched television in her bedroom. Once they moved into their new house, each of the children had their own bedroom. When Simon was in high school, he frequently played games on his computer in his bedroom, often until 4.00am. His parents were aware of this. In cross-examination, Victor stated that Simon started playing video games at home around the age of 10 and not before.

35. [68]

    Simon gave evidence that he and Yvonne would go to JN’s house to play video games because their mother, Mary, did not allow them to play games during the school week, only during school holidays. In cross-examination, Simon rejected the proposition that there was no restriction on them playing video games. He stated that they were only allowed to play games in the school holidays.

36. [69]

    Victor agreed that their parents would let Simon and Yvonne play video games “without restriction”, although his father would say stuff like “Knock it off and focus on your studies.” Victor stated that, by “without restriction”, he meant that Simon would play from midnight, their father would tell Simon to stop, Simon would not stop and their father would let it go. This applied to all the children and they spent a lot of time playing video games at all times of the day and night. Victor stated that his parents, in particular his father, were not too happy about this because they played games a lot. When he had seen them playing a lot, he would turn off the machine and tell them to go to their rooms or do homework. Their parents were content with their friends coming over to play at their house, but they wanted them to study more.

37. [70]

    Michael gave evidence that, when he was 10 to 15 years old, he would go to Yvonne’s house “plenty of times” and play games on the Nintendo 64 console. When he went over to Yvonne’s house, when he was 9 to 13 years old, he would see Simon. Michael said he either played video games with Simon or watched Simon play. On those occasions, Yvonne would also be present.

38. [71]

    Simon gave evidence that, sometimes after the new house was built, Simon called the appellant from the upstairs telephone of the new house. Simon told the appellant that he “came for the first time, and I was so fucking proud of myself”. Simon could not remember how old he was.

39. [72]

    Simon stated that he made the call in 1999 and that he was certain it was 1999 “because the new house was built and that’s when we moved into it”. The appellant was at home when he picked up. Simon could not remember the exact words he said, but it was words to the effect of “Hey, the - finally, I - I looked at some porn on the internet”. Simon said that the appellant said “[s]omething along the lines of ‘Yeah, good, great.’ Kind of brushed it off as if it was nothing”.

40. [73]

    I propose now to address each of the counts in the amended indictment and the critical evidence necessary to be weighed in determining whether the verdicts of guilty are unreasonable within the meaning of s 6 of the Criminal Appeal Act. Despite being dealt with later in the amended indictment, as the events and issues regarding Yvonne are in a relatively narrow compass I will address this ground as it relates to counts 11-16 first. The Crown case on these counts relied, very substantially, upon the credibility and reliability of Yvonne’s evidence.

41. [74]

    The first thing to observe is that Yvonne’s evidence is that she apparently had no memory of any of these events for many years until she experienced “flashbacks” of what she described as “snippets” of memory of the relevant events whilst working as a childcare worker after she had left school.

42. [75]

    The second thing to observe is that Yvonne’s evidence in relation to each of the assaults contained four common and essential features:

    1. (1)

       all of the events about which she gave evidence took place when she was in primary school between years 3 and 6;

    2. (2)

       all of the events about which she gave evidence took place after school between 3.30 and 4.30pm;

    3. (3)

       all of the events about which she gave evidence took place at the appellant’s house when the appellant was home alone; and

    4. (4)

       all of the events about which she gave evidence took place in the appellant’s bedroom. Yvonne’s evidence was that the door to the bedroom was always open unless someone was in the room and that she was assaulted by JN with the door open on occasions.

43. [76]

    Yvonne gave evidence of essentially three separate incidents. The first, which was the basis of counts 13 and 14 in the amended indictment, she described as follows:

44. [77]

    The second incident which was the basis of counts 11 and 12 was described by Yvonne as follows:

45. [78]

    The third incident which was the basis of counts 15 and 16 was described by Yvonne as follows:

46. [79]

    I harbour considerable doubts about Yvonne’s evidence. My doubts about Yvonne’s credibility and reliability as a witness commence from a consideration of the quality of Yvonne’s recollection, which was fragmentary and consisted of “flashbacks” of “snippets” of memory. She commenced her evidence with a statement that “I don’t really have much of a recollection of my childhood”. Whilst I do not doubt that childhood trauma may lead a victim to repress memories of abuse, a remarkable feature of the evidence in this case is that Simon’s recollection of abuse was similarly fragmentary and also consisted of “flashbacks” which, on Yvonne’s account, were experienced by the siblings after many years at much the same time and without there being any prior discussion between them.

47. [80]

    Yvonne gave evidence that she told Simon about these flashbacks a day or two days before she gave her initial statement to the police on 23 January 2013. She and Simon were in their living room and he told her for the first time that he was experiencing “flashbacks” of memory. Yvonne’s evidence was that “[Simon] was - like - I need to talk to you about - like - flashbacks that I was having. And then I asked him what and then he was - like - I was having flashbacks of [JN] assaulting him as well.” In cross-examination, Yvonne stated that Simon had not given specific details about what he meant by “flashbacks”, but that she “could make the connection”. In cross-examination, the following exchange occurred:

48. [81]

    This evidence about the apparently near simultaneous recovery of memory “flashbacks” by Yvonne and Simon of sexual assaults by JN, without any prior discussion whatsoever of the topic, causes me to have a doubt about the credibility and reliability of that evidence. I would go further; Yvonne’s evidence in general was shown not to be credible or reliable. In cross-examination, Yvonne stated that she started remembering more things “[a]fter discussion with [her] psychologist” and that conversations with her psychologist had resulted in her “increased memory”.

49. [82]

    The next matter of significance is that the scale of the offending Yvonne gave evidence about was staggering. Yvonne gave the following context evidence in chief:

50. [83]

    Yvonne agreed in cross-examination that she had made statements to the police that she went to the appellant’s house five days a week in the time she was in years 3 to 6 at primary school and was sexually assaulted 2-3 times a week during that period by the appellant. This, she agreed, amounted to many hundreds of sexual assaults, including the repeated penetration of her anus by JN. The credibility and reliability of that evidence of repeated violent sexual assaults over three years must be considered in the context of Yvonne’s evidence that “I don’t remember being in any pain after this first time … I don’t ever remember being in physical pain after any of the assaults, and I never went to a doctor about it. I played a lot of sport, and I usually had some injuries, so I was invariably in pain often”. This evidence explaining Yvonne’s physical state after the repeated sexual assaults and her suggestion that, although in pain from sporting injuries, she never suffered pain from the repeated sexual assaults she described causes me to have a doubt about the credibility and reliability of that evidence.

51. [84]

    An important matter which causes me further to doubt Yvonne’s evidence is that, to the extent she gave any details of the time at which the assaults occurred, that evidence was flatly contradicted by the evidence given by Mary, the complainants’ mother. Mary’s evidence was that she stayed home with each child for 12 months after they were born and then returned to work after that. Once the children were of school age, Mary drove them to school and collected them from school. When Simon commenced high school, he caught the bus but sometimes she drove him. The following exchange occurred:

52. [85]

    Mary stated that, when Simon and Yvonne were in primary school, they would each go to after-school care five days a week until she picked them up after work between 5.00 and 5.30pm:

53. [86]

    This evidence raises a significant doubt about Yvonne’s evidence that the assaults she described took place between 3.30 and 4.30pm after school during her primary school years. It also leads to further doubts. Yvonne’s evidence was that when she was assaulted she was alone in the house with JN, having gone there to play video games and to wait for Michael to come home from school. That evidence is contradicted by Michael’s evidence that he was not involved in after-school activities and Mary’s evidence that Yvonne was picked up from after-school care every day during the relevant period between 5.00 and 5.30pm.

54. [87]

    Yvonne’s evidence that JN was alone in the house after school on any of the occasions she gave evidence about is difficult to accept. Yvonne herself agreed that the appellant’s home was a “modest small family home”, that the “[r]ooms were close to each other” and that “[n]oise carried very easily” in the house. Yvonne agreed that the home was a “noisy busy home” and sometimes could be called “a madhouse”. She agreed that JN’s “parents were rarely, if ever, not home” and that JN had three sisters of school age and a brother, who were “often” but “not always” at home. She asserted that there were “a few instances” between 3.30 and 4.30pm when there was no one at home except for the appellant.

55. [88]

    Michael’s evidence, which was not relevantly challenged by the Crown, was that he did not engage in after-school activities, that his mother did not work out of the home and that his father was always present at home after school. In addition Michael had three sisters who were always at home after school. It was a small house where noise travelled easily. I do not doubt that serious sexual assaults occur in circumstances where other family members are close by but Yvonne’s account that the events she gave evidence about took place in JN’s bedroom when there was nobody else at home and, at least on “occasions” the door to the bedroom was open, leaves me with a real sense of disquiet.

56. [89]

    How Yvonne says that she ever came to be alone in the house with JN is also troubling. She stated:

57. [90]

    Yvonne’s explanation that she walked in through the back door of JN’s house and went through the house and saw that she was alone with JN was not an account Yvonne had given before her cross-examination. Yvonne stated that the incidents occurred between 3.30 and 4.00pm. Yvonne also stated that the blinds in the appellant’s bedroom, which looked onto the street, were always closed during the assaults. She agreed that she had not mentioned this in her statements to the police or in her evidence in chief. Yvonne was asked how she knew that JN was home alone. The following exchange occurred:

58. [91]

    This was evidence about a critical matter, namely how it was Yvonne came to be in the home alone with her abuser. The fact that the evidence was only offered for the first time at the trial leads me to doubt Yvonne’s credibility and reliability.

59. [92]

    I also have doubts about Yvonne’s evidence based on the fact that, on her account, she returned to the scene of the abuse hundreds of times over a three year period. In saying this, I do not doubt the attraction of video games for young people or the normalisation that can occur in relation to a young person who is the victim of repeated sexual assaults returning to the scene of that abuse. In this case, however, the evidence that Yvonne was visiting Michael’s house to play video games as she was not allowed to do so at home, at least during school weeks, was contradicted by Mary and by Victor, Yvonne’s elder brother. It is true that Mary’s evidence was somewhat tentative, but Victor gave evidence that their parents let them play video games at home without restriction. The fact that the critical explanation proffered by Yvonne about why she repeatedly returned to the scene of the terrible abuse she described is affected by doubt leaves me with a sense of disquiet about Yvonne’s account on a critical issue.

60. [93]

    The evidence about the order of the incidents alleged by Yvonne also changed significantly over time. On 16 August 2018, the fourth day of the trial, Yvonne gave evidence that her memory of the assaults was that the anal intercourse incident was first in time (counts 13 and 14). Later that day, in cross-examination, Yvonne was taken to paragraph 18 of her second statement dated 12 February 2014, which stated: “In my first statement I said that the assault on the bed happened first, but after thinking about it, I believe the first instance happened the way I have described above”. According to her second statement, the first incident was when she had her hand on the appellant’s penis (counts 11 and 12), the second was when the appellant’s penis was in her mouth (counts 15 and 16), and the third was the anal intercourse (counts 13 and 14). Yvonne disagreed that changing the order of the incidents meant that she had substituted or replaced a previous memory. Of itself, such a change in recollection would not cause me significant concern but, in context, it is an additional hurdle to my acceptance of Yvonne’s reliability.

61. [94]

    I have weighed the competing considerations in the evidence. I have had regard to the recorded conversations between Simon and JN which I set out at length below. There is nothing relevant in those conversations involving Yvonne. I have also had regard to the appellant’s ERISP where he denied all of the allegations put to him. That ERISP (which I have summarised below) contains clear and emphatic denials from the appellant about the allegations then made by Yvonne. It is true, as the Crown submitted, that the appellant (and to an extent Michael in his evidence) tended to downplay the extent to which Yvonne and Simon visited their home. Whilst that leads me to approach their evidence somewhat cautiously, there is nothing in that evidence supportive of JN’s guilt on counts 12, 14 and 16 of the amended indictment.

62. [95]

    Finally, in relation to Yvonne, I have taken into account the fact that there were two complainants here and the jury was entitled to take tendency evidence into account. In R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 the High Court explained:

63. [96]

    Having regard to all of the evidence, including my conclusions about Simon’s evidence which I set out below, I continue to harbour significant doubts about JN’s guilt. Considered as a whole I am left in a state of considerable doubt about JN’s guilt of counts 12, 14 and 16.

64. [97]

    Making due allowance for the constitutional role of the jury as the arbiter of fact, even having regard to the possibility that tendency reasoning was important to the jury’s conclusion, I have concluded that the jury should have shared that doubt about the appellant’s guilt of counts 12, 14 and 16. Simply put, the weight of internal inconsistencies in Yvonne’s evidence, improbabilities on the face of that evidence and directly contradictory evidence is simply too great to accept Yvonne’s evidence as sufficiently credible or reliable to find the appellant guilty beyond reasonable doubt. I have concluded that the jury should also have shared that reasonable doubt. It would be dangerous in all the circumstances to allow those verdicts of guilty to stand. It follows that the appellant succeeds on this ground in relation to Yvonne’s evidence and he is entitled to an acquittal on counts 12, 14 and 16.

65. [98]

    The Crown case in relation to counts 1-10 of the amended indictment relied in substantial part on the credibility and reliability of Simon’s evidence. A good deal of Simon’s evidence was simply fantastic in the literal sense. Simon’s memory of abuse by JN was fragmentary and consisted only of “flashbacks” which, in total, amounted to about 15 seconds. He explained it thus:

66. [99]

    In cross-examination, Simon offered an explanation for his memory issues as being that he suffered from post-traumatic stress disorder and he was “not mentally well”:

67. [100]

    Simon accepted that in his various police statements and interactions with police and prosecutors he had never before offered an explanation about any mental health diagnosis he had received. In cross-examination Simon gave various contradictory explanations about when he received the diagnosis, who made the diagnosis and what relevantly was the content of that diagnosis. At one point it appeared to be Simon’s evidence that he had self-diagnosed the condition. Post-traumatic stress disorder is a serious and potentially crippling condition. Simon’s apparently casual use of the terminology and the absence of any coherent explanation of why he had failed to mention such a serious matter in his many interactions with police and prosecutors before giving evidence gives me an initial disquiet.

68. [101]

    A critical matter about Simon’s credibility and reliability is that, in common with Yvonne, he apparently supressed all memory of the assaults by JN until the 15 seconds of “flashbacks” he described emerged many years after the abuse occurred. Memories of abuse by JN were apparently almost simultaneously recovered by Yvonne as “flashbacks”, without any discussion between Simon and Yvonne whatsoever of the topics of sexual assault or the appellant. Simon gave evidence that Yvonne spoke to him about the appellant either on the day or the day after Simon gave his statement to the police on 22 January 2013. He could not remember whether he gave Yvonne the phone number for Granville Police Station or whether he told her to ring them. In cross-examination, Simon described the conversation with Yvonne as follows:

69. [102]

    Simon did not ask Yvonne what she meant by flashbacks and dreams. The following exchange then occurred:

70. [103]

    In cross-examination, Simon was taken to the transcript in the committal proceedings in May 2017 where he stated that, some time prior to when Yvonne told him that she had been having flashbacks, Simon had said to Yvonne:

71. [104]

    Simon agreed that, up until that point, he had never said anything to Yvonne about the appellant’s conduct and that Yvonne had never said anything to him. Simon denied ever discussing with Yvonne the details of the complaints he had made against JN and said that Yvonne had never described any details to him of what JN had done to her. Simon’s inability to answer questions on this topic in a sensible way leaves me with a doubt about his credibility on this issue. Simon’s evidence of his asserted lack of interaction with Yvonne which led to near simultaneous recovery of “flashbacks” of abuse by the appellant causes me to have a significant doubt about the reliability and credibility of Simon’s evidence.

72. [105]

    I turn now to describe each of the incidents about which Simon gave evidence. In evidence in chief, Simon gave the following evidence about what he described as the “first occasion I remember something bad happening”:

73. [106]

    The second occasion Simon gave evidence about in chief was as follows:

74. [107]

    The third occasion Simon gave evidence about in chief was as follows:

75. [108]

    The evidence about the order and timing of the incidents alleged by Simon changed significantly in the course of the proceedings. As with Yvonne’s evidence, if these were the only inconsistencies in Simon’s evidence, I would not necessarily be persuaded that Simon’s evidence was insufficiently reliable. As part of the evidence, taken as a whole, however, it leads me to doubt Simon’s reliability and credibility.

76. [109]

    On 14 August 2018, the second day of the trial, Simon was asked by the Crown prosecutor to confirm the order in which the incidents occurred. Simon stated that the order was how he had described them, namely, the first incident was the anal intercourse (counts 4, 5 and 6), the second was the incident where the appellant performed fellatio on Simon (counts 1 and 2), and the third was the incident where the appellant made Simon perform fellatio on him (counts 7 and 8). Later that day, Simon was asked whether the pornographic video incident (counts 9 and 10) occurred before or after the other events. Simon stated that it occurred after the other incidents. Simon then stated that he did not remember any other type of sexual activity between him and the appellant. At this point in the trial, Simon had not given any evidence in relation to count 3, which allegedly occurred immediately prior to the anal intercourse (counts 4, 5 and 6). At the end of that day, Simon was asked by the Crown prosecutor to read his statements dated 22 January 2013 and 3 December 2013 overnight.

77. [110]

    On 15 August 2018, the third day of the trial, Simon stated that the incident where the appellant performed fellatio on Simon (counts 1 and 2) was a separate and different occasion from the incident where the appellant made Simon perform fellatio on him (counts 7 and 8). Later that day, Simon gave evidence regarding count 3. That is, on 15 August 2018, the third day of the trial, after he had refreshed his memory by reading his statements overnight and then again in court on that day, Simon gave evidence regarding count 3. Simon gave evidence that, prior to the anal intercourse, the appellant had an erect penis. The appellant asked Simon to touch the appellant’s penis, which he did. The fact that Simon forgot about the events the subject of count 3 altogether and only remembered the next day after reading his statements also reflects on his reliability.

78. [111]

    Simon also gave inconsistent accounts about the time the offending ceased. At trial Simon stated that he stopped going to the appellant’s house to play video games after he commenced high school.

79. [112]

    In cross-examination, Simon’s statement dated 3 December 2013 was shown to him. In it he said that “in 1999, when I was in year 7 … I still went over to [Michael’s] to play video games, but I don’t remember ever being alone with [JN] again.” Simon stated that what he said in his evidence, namely that he had stopped going over to the appellant’s house to play video games after commencing high school, was correct. The following exchange occurred:

80. [113]

    At trial, Simon also gave evidence that the abuse ceased around the time of Patricia’s disappearance on 27 July 1998 and that “[i]t didn’t continue past her disappearance”. In cross-examination, Simon agreed that his evidence regarding Patricia would indicate that the abuse stopped after 27 July 1998. He was then taken to his statement dated 3 December 2013 where he had stated: “I do remember that these assaults that happened to me were happening around the time; both before and after, that my friend [Patricia] went missing.” The following exchange occurred:

81. [114]

    Simon’s departures from his original versions of when the offending ceased is remarkable. Of itself, the fact of the time the abuse occurred and when it ceased is a matter that, it might be expected, would have stood out in Simon’s memory. It would have been a significant landmark in his young life. Simon’s inconsistent descriptions of the time the offending ceased gives rise to a sense of disquiet about the credibility and reliability of his evidence.

82. [115]

    Simon also gave irreconcilable accounts of the key milestone events by which he sought to give context to the offending. One such milestone was Simon’s evidence about circumcision. Simon agreed that he had not mentioned in any of his statements or the committal that he had been circumcised at the time of the offending. The following exchange occurred:

83. [116]

    Simon’s evidence about another milestone event is also significant. It will be recalled that Simon gave evidence that JN made him watch a pornographic film called “Debbie Does Dallas” whilst the appellant masturbated. In cross-examination, however, Simon stated that he did not think he has ever seen the movie “Debbie Does Dallas”. Simon agreed that he told the police that his brother, Victor, had discussed the movie with the appellant, but disagreed that that is how he had learned about the movie. The following exchange then occurred:

84. [117]

    Simon’s use of language, “That’s what my mind tells me, yes”, is not consistent with what is being described as a memory. The use of this language and the striking inconsistency between his answers to the Crown prosecutor and in cross-examination causes me to doubt Simon’s credibility and reliability.

85. [118]

    Relatively few details of the offending conduct offered in Simon’s account were capable of independent testing. One such aspect of Simon’s evidence was that he was playing a game known as Golden Axe, which “was a Super Nintendo game”, and that his family “didn’t have a Super Nintendo then”. In cross-examination, Simon accepted that the Golden Axe game was only distributed on Sega consoles and not on the Nintendo console. Of itself, I would not be concerned about such a discrepancy in an historical sexual assault case but here it forms part of a pattern of Simon’s unreliability as a witness.

86. [119]

    Another detail of the offending was that Simon stated that the appellant walked into the bedroom in a towel, shut the door and locked it. In cross-examination, Simon stated that the locking mechanism on the appellant’s bedroom door was a “[g]old knob, vertical, horizontal”. Michael gave evidence, which was not challenged by the Crown, that there was no lock on the bedroom door when he was in primary school and a lock was not placed on the door until they were adults. Again, of itself, Simon’s evidence about the locked door would not lead me to doubt his credibility or reliability but it forms part of a pattern.

87. [120]

    A significant issue in the trial about which Simon gave conflicting evidence concerned the act of forced fellatio, the subject of counts 7 and 8. It will be recalled that Simon gave the following evidence:

88. [121]

    In cross-examination, Simon accepted that he had not mentioned in his statements that the appellant had left the bedroom to go and wash his penis. The following exchange occurred:

89. [122]

    This passage is significant. Simon’s memory is such that in relation to a matter of significance he forgot that he had given evidence the day before that he had placed talcum powder on JN’s penis during an act of forced fellatio. This leads me to harbour a significant doubt about Simon’s credibility and reliability. Simon had, prior to giving this evidence, consistently stated that JN had sprayed Brut deodorant on his penis before forcing Simon to engage in fellatio upon him:

90. [123]

    Later in cross-examination, Simon said that it was the appellant who had applied the talcum powder and the Brut deodorant onto his own penis. The following exchange occurred:

91. [124]

    If this was the only aspect in which Simon’s account demonstrated an important inconsistency I would be less troubled, but it was not. Simon gave evidence the day before that he had applied Brut deodorant to JN’s penis. More importantly, an entirely new version regarding talcum powder being applied to JN’s penis and JN leaving the bedroom to wash it off emerged. This evidence causes me seriously to doubt Simon’s credibility and reliability.

92. [125]

    Simon agreed that he had not shown consistency in his evidence with respect to this incident. The following exchange occurred:

93. [126]

    Simon’s self-applied description to his memory as comprising “visions [which] become either clearer or they erase themselves” itself gives rise to a serious concern about his credibility and reliability as a witness.

94. [127]

    Simon gave evidence that the first time he spoke about what had happened to him as a child was during an argument with his ex-fiancé, Doreen, at McDonalds in Auburn in 2012. During the argument, he turned around to her and said, “It’s not my fault that I was abused as a kid.” Simon stated that that was the first time that his mind had come to make sense of what had happened and he explained that to her. Then he “completely retracted” what he had said to her and said, “Sorry, I shouldn’t have said something like that.” In cross-examination, Simon was taken to his evidence described immediately above. He stated that the time he had described in his evidence was not the first time he had spoken to Doreen about it. The following exchange occurred:

95. [128]

    The fact that Simon changed his evidence at the trial overnight about the first time he made a complaint to Doreen would not, of itself, lead me to have a doubt but it is another aspect of the evidence which goes to its reliability.

96. [129]

    Simon gave evidence that he also spoke to a close friend, Robert, in 2012 about what had happened to him. They were in Robert’s garage. He stated: “I believe I relayed some information surrounding the stuff that I’ve said … I didn’t go into specific details cause at that point, I wasn’t even completely across exactly what was happening and so I just told him that a neighbour did very, very bad things to me.” Robert gave evidence that he had known Simon through work since the end of 2009. Very early on New Year’s Day in January 2013, Robert was at home when he received a call from Simon asking to come over. When Simon arrived, they sat in the garage. Simon told him that he would go and visit Michael at his house, and that “when [Michael] wasn’t there, [Michael’s] older brother would tell him to come in and play video games whilst he waited for [Michael] to come home”. Simon’s primary concern was that Yvonne may have also been abused because she would also go to JN’s house.

97. [130]

    This account to Robert raises questions about Simon’s credibility. The essence of his complaint is that he was abused by JN, having been invited by JN to play video games “whilst he waited for [Michael] to come home”. This latter detail was a critical inconsistency with the overwhelming evidence at the trial. Suffice to say, for the reasons earlier given in relation to Yvonne, it is very difficult to accept that JN was ever home alone after school during any of the relevant years or that, whilst he was in primary school, Simon could possibly have been at JN’s house before Michael arrived home from school. This critical change in the details of why Simon was at JN’s house with him causes me to doubt his credibility.

98. [131]

    DSC Thomas gave evidence that on 3 January 2013 he met with Simon at Granville Police Station and Simon disclosed that he had been sexually assaulted by the appellant. They made an appointment for Simon to return to the police station on 4 January 2013 to provide a statement. On 4 January 2013, Simon returned to the police station and informed DSC Thomas that he no longer wished to pursue the matter, that he had forgiven the appellant, that he did not believe he would benefit from a court matter and that he wanted to obtain professional help first. DSC Thomas obtained a short statement from Simon stating that he did not wish to continue with the matter. On 18 January 2013, Simon spoke to DSC Thomas on the phone. Simon said that he had changed his mind and wanted to provide a statement about what had happened to him. They made an appointment for the statement for 22 January 2013. On 22 January 2013, Simon returned to the police station and provided his statement. During a conversation with Simon on the same day, DSC Thomas was told that Yvonne was also sexually abused.

99. [132]

    DSC Hayman gave evidence that she became the officer in charge of the investigation in December 2013. In February 2015, DSC Hayman obtained a surveillance warrant to record conversations between Simon and Yvonne and the appellant. Pursuant to the warrant, Simon called the appellant on 21 April 2015, followed by a face-to-face meeting in the appellant’s car in Granville on 22 April 2015, two telephone calls on 23 April 2015 and a telephone call on 29 April 2015. Yvonne also called JN but those calls were unsuccessful.

100. [133]

     I have had regard to the content of all of the recorded conversations. In relation to the only allegations actually made by Simon, JN offers clear denials. I will refer to the relevant parts of the recorded calls where the Crown submits that inferences adverse to JN may be drawn as well as to aspects of Simon’s conduct that cast doubt on his credibility and reliability.

101. [134]

     The face-to-face meeting on 22 April 2015 took place in the appellant’s car in Granville. JN’s young son was in the back seat. The following exchanges occurred:

102. [135]

     A number of aspects of this conversation bear examination. The first is that Simon is insistent in these calls that JN’s friend “Anthony” was a key figure in Simon’s recollections of relevant events. At trial the following exchange occurred:

103. [136]

     Simon’s recollection at the time of the recording was clearly that the person “Anthony” was a relevant character in his account of the offending. The fact that by the time of the trial Simon had deleted references to Anthony from his account casts doubt on his credibility and reliability.

104. [137]

     The second matter of note is that the Crown relied at the trial and in this Court upon the appellant’s references to Simon perhaps accidentally seeing him naked and engaging in wrestling with Simon as a child. In context, this discussion follows Simon clearly implying some sort of sexual impropriety by JN. When JN says “I used to muck around with you guys and ah, wrestling moves and um, ah, just stupid shit like that”, Simon replies “I remember more”. Simon raises the topic of Michael washing JN’s back in the shower. This was a false issue and the Crown now accepts that there was nothing improper or sexual in this conduct. The high point of the recorded calls from the Crown’s point of view is the following exchange. In response to Simon saying:

105. [138]

     JN replied:

106. [139]

     I do not regard JN saying that “people, they experiment with their penises and stuff like that” as amounting to anything approaching an admission about conduct the subject of the amended indictment. It could perhaps be interpreted as a person who is not guilty casting around for some sort of an explanation. When weighed in the light of all the evidence, I retain the serious doubt I have about whether the Crown has proven beyond reasonable doubt that JN is guilty of the offences of which he was convicted.

107. [140]

     In relation to the third pretext conversation on 23 April 2015 at 6.54pm, the most important matter of note is that Simon told JN that he had spoken to Yvonne and suggested that all three of them meet up. Simon stated “‘cause I spoke to [Yvonne] I just don’t know what’s gunna happen from here. So, that’s why I’d rather we all meet together”. JN vigorously denied the implication made by Simon that he had behaved improperly. Simon said “I just don’t know how I’m gunna hold off [Yvonne], man, that’s the only thing.” During cross-examination, Simon was asked to explain what he meant when he said “‘cause I spoke to [Yvonne] I just don’t know what’s gunna happen from here”. The following exchange occurred:

108. [141]

     This passage demonstrates to me that, in dealing with the appellant, Simon was prepared, as he said, to engage in conduct which “wasn’t an imagined conversation and it wasn’t the truth”. The recording and Simon’s allegation cause me to doubt his credibility.

109. [142]

     In the fourth pretext conversation on 23 April 2015 at 7.05pm, Simon put directly, for the first time, an allegation of sexual assault by JN. JN responded “Come on, mate. That doesn’t ... that’s not on, mate”. Simon then put to JN that Simon was sitting and playing “while you’re waiting for [Michael] to come do whatever, you’re bloody pullin’, pullin’ my pants down, fuckin’ doin’ me”. JN responded “That’s disgusting, mate ... That’s just not on”.

110. [143]

     In the fifth pretext conversation on 29 April 2015, the appellant clearly has no desire to have further contact with Simon. Simon raised the matter of Patricia’s disappearance with JN and alleged that JN was in some way involved. Simon expressed his guilt for not having come forward with the allegations about the appellant earlier. Simon had originally told the police that Patricia’s disappearance on 27 July 1998 marked the end of the abuse by JN. A critical feature of Simon’s evidence, which also emerges from his behaviour during the pretext conversations with JN, is that Simon plainly believed that JN might be responsible for Patricia’s disappearance. After a series of accusations and increasingly heated denials, the following exchange occurred:

111. [144]

     During cross-examination, Simon was asked about what he said about Patricia in this conversation. The following exchange occurred:

112. [145]

     DSC Hayman gave evidence that the appellant was not involved in the disappearance of Patricia and that an unrelated person had been charged and was awaiting trial in relation to Patricia’s disappearance. The fact that Simon reasoned at the time that “my mind couldn’t help but try and connect the two dots together” gives rise to real doubts in my mind about his credibility. Those doubts are intensified by the fact that Simon originally told the police that Patricia’s disappearance on 27 July 1998 marked the end of the abuse he suffered.

113. [146]

     SC Williams gave evidence that on 13 May 2015 the appellant attended Granville Police Station and made a complaint about Simon and Yvonne. On that day, she made the following COPS entry:

114. [147]

     The appellant making that complaint, together with the evidence of JN’s good character, is not a mere neutral matter. If the appellant had indeed committed the alleged offences, it would be brazen indeed to attend the police station to complain that he was being harassed by Simon and Yvonne. The appellant did not know that the police were investigating Simon and Yvonne’s complaints at the time. The appellant’s actions are consistent with the conduct of an innocent man. At the very least the conduct contributes to raising reasonable doubt. It is important evidence which I take into account in determining if I have a reasonable doubt about the guilt of the appellant. As I have said, I do have such a doubt.

115. [148]

     On 26 May 2015, the appellant attended Parramatta Police Station. On that day, he was arrested and cautioned, and he agreed to participate in an electronically recorded interview (“ERISP”) with DSC Hayman and DSC Nix. In cross-examination, DSC Hayman stated that the appellant was polite, not evasive and met each question asked of him during the ERISP. I will attempt to summarise the critical parts of the ERISP. At the time of the interview, JN was 36 years old and lived in the house in Granville with his parents, two sisters, his brother and his two children who were 4 years old and 11 months old at the time. The appellant moved out of his parent’s house in the period between 2006 and 2010 or 2011. JN started high school in 1992 and finished Year 12 in 1997. After he finished school, he did security work for about a year and in 1999 started his current job as a forklift driver/storeman. From 1999 and onwards, his work hours were initially from 6.00am to 2.00pm, then from 5.30am to 12.30pm, and more recently from 3.30am to 12.00pm. During high school, his friend, who I will refer to in this judgment as Nathan and who was in the same year at school, would come over to his house and he would go over to Nathan’s house. This occurred when they were in years 8 or 9 and 14 or 15 years old. JN said that he bought a video game console unit but he “hardly played with them” and that it was more Michael’s thing. He and his sisters bought games for Michael. The game console was set up in the lounge room and it was never set up in the bedroom he shared with Michael. He said that their father used to want the television all the time so he used to kick them out. If he wanted to play video games, he would go to his cousins’ house and play games there.

116. [149]

     When asked whether he knew the complainants’ family, the appellant said “Not really well. I mean they were just neighbours. See each other here and there but that was about it”. He said he “would hardly see them” and he “never hung out with them”. He denied spending any time with Yvonne and agreed that he did not really know Simon other than that he was a neighbour. When asked about Victor, the appellant stated that they were just mates growing up but they drifted apart when they got to their late teens and did not spend much time together. When asked about Simon, the appellant stated “Very rarely I remember [Simon] coming over. Not at all actually. I, actually I can’t remember him coming over at all to be honest.” The appellant stated that he did not really know Simon apart from being neighbours. He said that he did not have much to do with Simon and was not friends with him, they never socialised or played video games together. Simon was not in his age group so he had no reason to hang out with him and be alone with him.

117. [150]

     The appellant denied ever playing any sort of games with Simon and playing any games with Simon that involved nudity or sexual exploration, stating “No. Of course not. … That’s sickening. No way.” When asked about an extract of the recorded conversation set out at [134] above, JN said:

118. [151]

     When asked about an extract of the same recorded conversation, which recorded him talking about dunking Michael and Simon on the bed, the appellant stated:

119. [152]

     The appellant was challenged about inconsistencies between what he had said in the ERISP and in the recorded conversations. The following exchange occurred:

120. [153]

     When first asked about Yvonne, the appellant said that he knew the name but that was it. He never spent any time with her. He said that he knew her as a neighbour but that was it. He later said that he did not remember Yvonne coming over to his house and playing games with Michael, but probably saw her once or twice. He said that she might have come to his house but he did not remember her coming, and that she might have come when he was not there. He then said that she did not come over when he was at home, “not once”.

121. [154]

     The appellant said he did not know anything about Simon and Yvonne’s allegations and described a household where there would have been no opportunity for the alleged offences to have occurred. He stated that it was a home “always full of people” with “parents always at home”, and that he was “never home alone”. He emphatically denied that there was ever a situation when he was home alone.

122. [155]

     The appellant denied all the allegations. He said “But I never touched those kids. I was never alone with those kids. And like I said to you before I deny all these allegations and I don’t understand none of this.”

123. [156]

     Taking all of the evidence in this case into account I have come to the conclusion that Simon’s evidence was neither credible nor reliable. Simon’s evidence altered as his memory allegedly both improved and diminished. He gave inconsistent accounts of what he claimed to be a memory of a real event and attributed those significant inconsistencies as failures of his memory. Simon also had a demonstrated capacity to lie about JN.

124. [157]

     This is a difficult case. I have also taken into account the fact that there were two complainants and the jury was entitled to use tendency reasoning. I have concluded, however, that the jury, acting reasonably, must have had a doubt about the appellant’s guilt on each of the counts upon which he was convicted. Each of the matters I have identified about Simon’s evidence, by themselves, would not necessarily lead me to conclude that these are unreasonable verdicts. In this case the weight of internal inconsistencies in Simon’s evidence, improbabilities on the face of that evidence and directly contradictory evidence was simply too great for the jury properly to accept Simon’s evidence as sufficiently credible or reliable to find the appellant guilty beyond reasonable doubt. The matters I have identified, working together, should have left the jury with a doubt about whether the Crown had established that JN was guilty beyond reasonable doubt.

125. [158]

     In those circumstances, I am persuaded that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences on which he was convicted. Accordingly, the verdicts of the jury, in respect of counts 2, 3, 4, 8, 9 and 10, are unreasonable and cannot be supported having regard to the evidence. It follows that ground 1 of the appeal must succeed and the appellant be acquitted.

Ground 2 – Failure to interview or call witnesses

1. [159]

   Despite the conclusion I have reached on ground 1, for abundant caution and on a contingent basis I will briefly address ground 2.

2. [160]

   The appellant submitted that there was a substantial miscarriage of justice in that important eyewitnesses were neither interviewed by police nor called as witnesses in the prosecution case and consequently the jury was deprived of information highly pertinent to the central issue in the trial.

3. [161]

   The appellant submitted that a central issue in the case related to the geography of the two houses, and the frequency and circumstances of visits between the children of the two families. The credibility of the allegations made more than a decade after the alleged events depended significantly on whether, after school and at other times, the appellant’s family home was a busy, noisy place with people regularly in the house or whether it was empty of adults or other children, so that the complainants might be with the appellant alone and allow the appellant the opportunity to commit the alleged offences.

4. [162]

   The appellant submitted that no statement was ever taken from the appellant’s parents or three sisters. It was submitted that these potential witnesses could have given evidence relating to the frequency of the complainants’ visits and the circumstances in which the complainants may or may not have visited the appellant’s home over the years. The appellant’s parents were important witnesses since the evidence is undisputed that his father was not working and his mother was a stay-at-home parent during the relevant period.

5. [163]

   The appellant submitted that, since the frequency and circumstances of the complainants’ visits to the appellant’s home was of critical importance, the absence of testimony of these witnesses in the prosecution case left a major gap. This absence represents such an irregularity that the trial was flawed and the convictions vitiated.

6. [164]

   The appellant submitted that the significance of the failure to investigate and to call these possible witnesses is more readily seen from the evidence as to the location, size and occupancy of the appellant’s house which showed that it was modest and that the “busyness” of the family home occupied by two parents, two sons and three daughters was inevitable.

7. [165]

   The appellant submitted that the police have a duty to investigate what evidentiary contribution witnesses can make and present relevant witnesses to the court. The appellant’s parents were present at court throughout the trial. No explanation was presented to the court to suggest that the appellant’s family was unwilling or unavailable to give evidence, or likely to be unhelpful or untruthful. The Crown did not evaluate the appellant’s family to form a view (which the Crown would have been entitled to take) that their contribution might not be helpful. It was not a valid reason that the Crown did not regard the appellant’s family as truthful since the witnesses were never interviewed.

8. [166]

   The appellant submitted that the failure to investigate the potential evidence of the appellant’s family who lived in the house at all relevant times, taken into account with the other evidence, means that the jury should have had doubt about the guilt of the appellant. This ground alone should be accepted as a basis for disturbing the verdicts but, in the alternative, this ground goes to ground 1.

9. [167]

   The Crown submitted that a decision of a prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice. The Crown acknowledged that a prosecutor may not ethically decline to call a witness merely on the basis that the witness is in the “camp” of the accused. However, the Crown submitted that in the present case no such determination was made.

10. [168]

    The Crown submitted that the prosecution called Michael to give evidence and Michael gave evidence generally supportive of the appellant’s case on the issue of opportunity. It was submitted that the Crown prosecutor in his closing address did not invite the jury to reject Michael’s evidence. Rather, the Crown prosecutor’s submission was limited to the following:

11. [169]

    The Crown submitted that Yvonne’s evidence on this issue was consistent with Michael’s evidence. Yvonne gave evidence that the appellant’s parents were rarely, if ever, not home, and that the appellant’s siblings were also usually at home.

12. [170]

    The Crown submitted that it is not known what evidence the appellant’s parents and sisters would have given. At most, it could be said that they might have given evidence corroborative of the evidence of Michael and Yvonne. The impugned witnesses were not alleged to have been eyewitnesses to the assaults, only witnesses who are said to be in a position to give evidence as to the “busyness” of the house and opportunity. Michael’s evidence was also uncontested, and consistent with Yvonne’s evidence. In these circumstances the appellant’s parents and sisters’ evidence was not necessary to unfold the narrative and give a complete account of the events upon which the prosecution was based. The absence of their evidence was not such as to cause a miscarriage of justice.

13. [171]

    The Crown submitted that the conduct of the trial as a whole must include the conduct of defence counsel. Although r 4 of the Criminal Appeal Rules (NSW) does not apply, the Crown submitted that the underlying common law principles reflected in r 4 apply, namely that an accused person should not reserve points of appeal, is bound by the tactical and forensic decisions of his or her counsel, and the failure of counsel to raise an issue with the trial judge is indicative of the issue not being seen to cause a miscarriage in the atmosphere of the trial.

14. [172]

    The Crown submitted that, prior to closing addresses, the only mention that had been made of these witnesses was in questions asked of DSC Hayman in cross-examination. DSC Hayman agreed that the appellant in his ERISP had “indicated certain aspects of his life that allowed potential investigation to take place”, and that the appellant had nominated employers, spoken about his cousins’ family and his friend Nathan, and nominated his parents and sisters as still living in the house. DSC Hayman was not asked whether she had attempted to interview any of these persons or for the reasons why no such interview was sought. In his closing address, defence counsel made reference to the fact that Michael was the only member of the appellant’s family spoken to by the police and to Simon’s evidence that the appellant’s parents had been at church on the morning of one of the alleged offences but had not been spoken to about this event. Following the addresses, defence counsel sought a Mahmood direction in respect of witnesses not called by the Crown (that is, where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the Crown, a jury is entitled to take into account that there was no evidence from that witness in deciding whether or not there is a reasonable doubt about the accused’s guilt: Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1). Defence counsel did not press the matter further.

15. [173]

    The Crown submitted that in the present case defence counsel did not request that the Crown prosecutor interview or call the appellant’s parents or sisters, despite being in a position to readily ascertain the evidence that the witnesses could give. Defence counsel did not request the trial judge to invite the Crown prosecutor to reconsider any decision not to call those witnesses. Defence counsel took forensic advantage of the absence of those witnesses. It was submitted orally that the absence of a request to call the witnesses demonstrates that, in the atmosphere of the trial, defence counsel did not consider that those witnesses were required.

16. [174]

    A decision of a prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice: R v Apostilides (1984) 154 CLR 563 at 575; [1984] HCA 38.

17. [175]

    I have concluded that, viewed against the conduct of the trial as a whole, the failure to call other members of the appellant’s family did not give rise to a miscarriage of justice. An important feature of the trial is that experienced defence counsel did not request that the Crown interview or call the appellant’s parents or sisters. There is no evidence that the Crown would have refused such a request. Given the conduct of the trial, which I have studied at length, there is every reason to think that the Crown would, if asked, have called the appellant’s parents and sisters to give evidence. Not only that, there was unchallenged evidence in any event from more than one witness in the trial about the busy and crowded circumstances of the home of the appellant. In those circumstances, the absence of the witnesses was not such as to produce a miscarriage of justice.

18. [176]

    Ground 2 should be dismissed.

Ground 3 – Amendment of the indictment

1. [177]

   Despite the conclusion I have reached on ground 1, for abundant caution and on a contingent basis I will briefly address ground 3.

2. [178]

   The appellant submitted that the indictment was substantially rewritten at the close of the Crown case, producing such a divergence between the case particularised, presented on arraignment and opened, that the trial was irregular and not a fair trial, and there was a miscarriage of justice.

3. [179]

   The appellant submitted that, by the close of the Crown case, the conflicts between the complainants’ evidence at trial and their statements that had informed the original indictment were such that either the indictment had to be restructured or the trial abandoned. For this reason, additional alternative charges were presented ex officio and the indictment amended.

4. [180]

   One of the counts in the amended indictment was a more serious charge than that pleaded in the original indictment. The appellant had anticipated and prepared for a trial on charges carrying specific maximum penalties, and this major change to the Crown case towards the end of the trial exposed the appellant to more significant penalties of imprisonment.

5. [181]

   The appellant submitted that the expansion of the charges in the amended indictment was capable of giving the jury the idea that the case against the appellant had become more serious and more powerful. The amended indictment was significantly longer than the original indictment. There was a cascade of alternative verdicts. It was necessary for the trial judge to give detailed and complex further directions. While it is true that the trial judge gave directions on this issue, this could not remove the problem. The appellant submitted that the amendment of the allegations in terms of time rather than in terms of the physical nature of the alleged conduct also does not cure this problem. The appellant submitted orally that the amendment may not have been that radically different but nonetheless the age of a child during the offending can be critically important for sentencing purposes and relevant in terms of who was where and when.

6. [182]

   The appellant submitted that leave is not required to argue this ground of appeal under the Criminal Appeal Rules. The trial judge’s decision to permit the Crown to amend the indictment does not fall within the scope of r 4 because it was not a direction, an omission to direct or a decision as to the admissibility of evidence.

7. [183]

   The appellant submitted that, if the Court were to conclude that leave is required or that the ground should be rejected because defence counsel consented to the amendment, the Court should consider it in the context of the procedural history of the matter. It was submitted that substantial delays and interruptions had affected the matter, such as an earlier trial date being vacated, the first jury being discharged due to inappropriate remarks by the Crown in his opening address, and the second jury being discharged because a juror became ill. If an objection to the amended indictment had been made and upheld, it would have necessitated the discharge of the jury. The appellant was under personal and financial stress and wanted to avoid further delay to the proceedings. He was not a wealthy person and was privately represented. The appellant submitted that his decision not to object must be seen in this context and it would be unfair to hold it against him.

8. [184]

   The appellant submitted that the late amendment of the indictment and re-arraignment led to an irregular and unfair trial, and that the convictions should be set aside. However, if the Court were to regard this ground as insufficient, the confusion caused by the late amendment was such that this ground should be taken into account in relation to the general ground 1.

9. [185]

   The Crown submitted that the amended indictment contained more counts and expanded the timeframe of the alleged offences, but that the alleged acts remained the same. Each amendment and ex officio count related only to the expansion of the dates of the alleged offences. In some instances, this required the laying of an ex officio count. It was submitted that all but one of the ex officio counts concerned an equivalent or less serious charge. The one ex officio count for which the Crown placed a more serious charge was count 7 in the amended indictment. Count 7 alleged an offence contrary to s 66A of the Crimes Act. Count 8 (in the alternative to count 7) alleged an offence contrary to s 66C. Counts 7 and 8 replaced count 4 on the original indictment which alleged an offence contrary to s 66C. The Crown noted that the jury found the appellant not guilty in respect of count 7, the more serious count, and found the appellant guilty of count 8, which relied on the section originally alleged.

10. [186]

    The Crown submitted that the addition of the alternative counts did not cause a miscarriage of justice. Whilst the alternatives were not placed on the indictment until shortly before closing addresses, the need to amend the indictment was foreshadowed at the time of the complainants’ evidence. On 16 August 2018, the fourth day of the trial, the Crown prosecutor indicated that he proposed to amend the indictment at the close of the Crown case. The amendments were not inconsistent with the way in which the Crown prosecutor had opened the Crown case. Since the appellant’s case was that the alleged events did not occur, there was no prejudice to the appellant occasioned by the way in which the defence case was conducted. It was not unfair or oppressive for the Crown to rely on the alternative counts simply because it might deprive the appellant of a chance of an acquittal on the principal charges.

11. [187]

    The Crown submitted that it is necessary for the appellant to demonstrate that the amendment of the indictment has caused a miscarriage of justice: Criminal Appeal Act, s 6. The appellant did not allege that the late amendment caused a miscarriage. The appellant simply submitted that the late amendment led to an “irregular and unfair trial” without particularising the respect in which the trial is said to be “unfair”. It cannot be said that the trial judge erred in law in “permitting” the amendment of the indictment. Orally the Crown submitted that the indictment should not have been amended so late and that it was certainly irregular, but submitted that irregularity does not amount to a miscarriage of justice.

12. [188]

    The Crown submitted that, as defence counsel consented to the amendment, the amendment was authorised by statute and there was no occasion for the trial judge to rule on the amended indictment: Criminal Procedure Act, s 20(1)(b). In those circumstances, it is necessary to demonstrate miscarriage.

13. [189]

    The Crown accepted that r 4 of the Criminal Appeal Rules does not strictly apply. However, it was submitted that the underlying common law principles reflected in r 4 apply, namely that an accused person should not reserve points of appeal and is bound by the tactical and forensic decisions of his or her counsel. In the present case, defence counsel made a deliberate decision to consent to the amendment and acknowledged that there was a forensic advantage in pointing out to the jury the variations of the dates in the Crown case. As there is a reasonable explanation for defence counsel’s consent to the amendment, a miscarriage of justice has not been established.

14. [190]

    The Crown submitted that the expansion of the dates on the amended indictment is irrelevant to the determination of the unreasonableness of the verdicts in ground 1. That determination is an enquiry about the sufficiency of the evidence, not about trial procedures.

15. [191]

    To succeed on this ground, it would be necessary for the appellant to demonstrate that the amendment of the indictment has caused a miscarriage of justice: Criminal Appeal Act, s 6.

16. [192]

    Experienced trial counsel, after having the opportunity to take instructions, did not oppose the amendment of the indictment. No doubt, as counsel candidly told the trial judge and the jury, this was, in part, due to forensic advantages perceived by counsel about so dramatic a change in the Crown case. JN is bound by the tactical and forensic decisions of his counsel. As there is a reasonable explanation for defence counsel’s consent to the amendment, I am not persuaded that a miscarriage of justice was occasioned by the amendment.

17. [193]

    No different conclusion arises by reason of the decision of this Court in R v Westerman (Court of Criminal Appeal (NSW), 19 July 1991, unrep) which was brought to the attention of the Court by junior counsel for JN after the decision had been reserved. That was a case where, bearing in mind the way the case had been fought to that point about a specific date, the effect of the amendment to the indictment was found to give rise to irretrievable prejudice. No such issue arises here.

18. [194]

    Having reflected on the matter, I have also concluded that the Crown is correct that the issue of the amended indictment is irrelevant to the determination of the unreasonableness of the verdicts in ground 1. The unreasonable verdict ground requires the Court to enquire about the sufficiency of the evidence, not about trial procedures.

19. [195]

    Ground 3 should be dismissed.

Conclusion and proposed orders

1. [196]

   For the reasons given I propose the following orders:

   1. (1)

      Appeal allowed on ground 1.

   2. (2)

      Dismiss grounds 2 and 3.

   3. (3)

      Set aside the appellant’s conviction on counts 2, 3, 4, 8, 9, 10, 12, 14 and 16 of the amended indictment and in place thereof order that a verdict of acquittal be entered.

2. [197]

   BUTTON J: I have had the considerable benefit of reading the judgment of Payne JA in draft.

3. [198]

   I agree with all that his Honour has written about grounds 2 and 3, and have nothing to add.

4. [199]

   I also agree with all that his Honour has written about the legal principles to be applied in considering ground 1.

5. [200]

   I also agree with Payne JA with regard to the counts pertaining to the complainant Yvonne. And I say that not forgetting that this was not a trial that featured one complainant. But the cumulation of factors recounted at [79] to [97] of the judgment of his Honour compels me to experience a reasonable doubt about the guilt of the appellant of those offences, and it is a doubt that I believe the jury must also have experienced, despite its undoubted advantages over a judge reading transcript in Chambers.

6. [201]

   The position with regard to the complainant Simon is less clear-cut, for the following reasons.

7. [202]

   When a sexual assault complainant shows signs of psychological or psychiatric disturbance, that can give rise to a “chicken and egg” question; namely, whether on the one hand those problems may corroborate the commission of the offences by being the consequences of them, or whether on the other hand they may call into question the reliability and credibility of the complainant. Here, it could have been the former.

8. [203]

   The pretext calls contained some material that, in my opinion, had the potential to be regarded as inculpatory, albeit in the overarching context of firm denials.

9. [204]

   The evidence that Simon gave of the offences themselves was detailed and not inherently incredible.

10. [205]

    Inconsistencies and mistakes in a case such as this may be able to be explained by the passage of time and the age of a complainant.

11. [206]

    Each of the factors recounted by Payne JA on its own could not, in my opinion, lead to success of the ground.

12. [207]

    However, after an extended period of reflection, I have come to the view that the cumulative effect of those factors leads to the verdicts pertaining to Simon being unreasonable and unable to be supported as well.

13. [208]

    In coming to that view, the irrational and groundless belief of Simon about there being a connection between the appellant and the disappearance of Patricia is of particular significance to me. So is the fact that one can infer that the jury took into account as tendency evidence its satisfaction beyond reasonable doubt of the guilt of the appellant of the counts pertaining to Yvonne in support of its verdicts with regard to the counts pertaining to Simon, when it should not have been so satisfied of the former.

14. [209]

    In short, on my own assessment of the entirety of the evidence, I agree with the orders proposed by Payne JA.

15. [210]

    LONERGAN J: I have had the considerable benefit of reading the judgment of Payne JA in draft and the additional comments of Button J.

16. [211]

    I agree that grounds 2 and 3 of this appeal should be dismissed for the reasons stated by Payne JA.

17. [212]

    Ground 1 was for obvious reasons a more difficult decision to make but having carefully considered all the evidence and reflected at length, I have reached the view that these verdicts are unreasonable and cannot be supported; the jury ought to have been left with a reasonable doubt as to whether guilt had been established to the necessary standard

18. [213]

    I agree with and adopt the conclusion of Button J at [200] that it is the cumulation of the factors recounted by Payne JA at [79] to [97] with respect to the complainant Yvonne that leads to that view.

19. [214]

    With respect to the complainant Simon, I agree with the analysis of the evidence of Payne JA at [98] to [130] and the conclusions set out at [156] and [157] that there were internal inconsistencies and improbabilities in Simon’s evidence that lead to reasonable doubt.

20. [215]

    I also specifically agree with the observations of Button J at [202] to [206].

21. [216]

    There are two additional matters that need comment. Contrary to the conclusion reached by Payne JA at [139] but in a similar vein to the view expressed by Button J at [203], I regard JN’s responses to the matters raised by Simon in the face to face meeting and the pretext calls in April 2015 as suggestive of guilty knowledge on the part of JN that inappropriate activity took place involving or in the presence of Simon. But this is not sufficient to alter my assessment of the evidence overall and is not sufficient to allay my serious doubt that the Crown has proven beyond reasonable doubt the offences of which JN was convicted. There is nothing said by JN in the exchanges with Simon which can be construed as an admission to any of the specific charges.

22. [217]

    In relation to JN attending the police station to report the recent contact from Simon in May 2015, whilst I agree with Payne JA that the actions can be consistent with the actions of an innocent man [147], they are also consistent with the actions of a guilty man who is seeking to out-manoeuvre his victims by approaching the police to create an impression that he has nothing to hide. For that reason I consider this event to be neutral, and not one that adds to reasonable doubt. This is particularly so given the obvious attempts by JN in the early parts of his record of interview on 26 May 2015 to distance himself from any previous involvement with Simon, including stating that he “can’t remember him coming over at all to be honest”, despite acknowledging to Simon in his conversation with him just a few weeks earlier that Simon did come to his house, including to JN’s room and that JN “wrestled” with him and that JN “probably walked around naked” and Simon “probably saw” that. It was only when confronted later in the record of interview with the recorded conversations with Simon that JN moved away from that position.

23. [218]

    However on my own assessment of the whole of the evidence, I agree with the order proposed by Payne JA.