BQ v R

1. [1]

   THE COURT: The applicant was tried before Letherbarrow SC DCJ and a jury in the District Court on an indictment alleging 11 counts of child sexual assault offences. He was found guilty of 9 counts and acquitted of 2 counts.

2. [2]

   The applicant was sentenced to imprisonment for 12 years with a non-parole period of 8 years. He seeks leave to appeal against conviction but not against sentence.

3. [3]

   There are statutory provisions which prohibit the publication of anything which might identify the two complainants. For that reason, and because the people involved were members of an extended family resident in a regional city, both people and places have been extensively anonymised in this judgment. For example, the city will be referred to as “Smithtown”.

4. [4]

   The grounds of appeal are:

5. [5]

   Subsequent to the grounds being formulated, the Court published its decisions in Aziz v R [2022] NSWCCA 76 and AJ v R [2022] NSWCCA 136. In supplementary submissions filed on 7 November 2022, the applicant indicated he no longer pressed Ground 2A.

6. [6]

   The applicant requires an extension of time as the notice of appeal was filed well out of time. The explanation for the delay is twofold: dilatory action by lawyers formerly engaged to pursue an appeal and subsequent difficulties in obtaining all relevant material in order to brief new counsel. An extension of time should be granted because there is merit in part of the proposed appeal.

Overview of the offences charged

1. [7]

   A summary of each of the offences charged in the indictment, including the relevant provision of the Crimes Act 1900 (NSW), is in the following table with the particulars of the allegations taken from the applicant’s written submissions. [1] The applicant was acquitted on Counts 5 and 6.

2. [8]

   Counts 3 and 4 occurred in a period during which the offences in s 61M were amended. As at 1 January 2007, the offence in s 61M(1) was of indecent assault in a circumstance of aggravation. Circumstances of aggravation were listed in s 61M(3) and included in paragraph (b) that the alleged victim was under the age of 16. The offence in s 61M(2) was one of indecent assault upon a child under the age of 10. Accordingly, at the beginning of the period, because BB was then aged over 10, the applicable offence was that against s 61M(1). However, effective from 1 January 2009 as a consequence of amendments made by the Crimes Amendment (Sexual Offences) Act 2008 (NSW), s 61M(2) became an offence of indecent assault upon a person under the age of 16. The circumstance of aggravation in s 61M(3) for the purposes of the offence in s 61M(1) of the alleged victim being under the age of 16 was deleted. Accordingly, from 1 January 2009 until the end of the period averred, 28 January 2010, the applicable offence was that against s 61M(2).

3. [9]

   The maximum penalties for the offences in ss 61M(1) and (2) remained the same throughout the entire period, imprisonment for 7 years and 10 years respectively.

4. [10]

   There was a discussion about this during the trial. It was accepted that the Crown was required to prove beyond reasonable doubt all of the elements of the ss 61M(1) and (2) offences as they existed at the relevant times and that, if convicted, the applicant would become liable to the lesser of the two penalties. This is the way the primary judge proceeded in directing the jury as to the essential elements of the offence(s) and in sentencing. [2] In fact, the judge directed the jury about the Crown also needing to prove another aggravating circumstance, that the alleged victim was under the authority of the applicant, but nothing turns on that.

5. [11]

   This issue is confined to Counts 3 and 4 concerning BB and there is no complaint in this Court about the approach taken by the trial judge.

Principles applicable to a ground of appeal asserting unreasonableness of a verdict of guilty

1. [12]

   As the applicant submitted, the principles to be applied to the resolution of this ground are well settled. Reference was made to the well-known passage in the judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 492–3; [1994] HCA 63, including:

2. [13]

   Reference was also made to SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]-[14] and [22] per French CJ, Gummow and Kiefel JJ which include emphasis upon the Court making its own independent assessment of the whole of the evidence.

3. [14]

   Another High Court authority often cited is Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, in respect of which the applicant drew attention to Hayne J having said (at [113]):

4. [15]

   A further authority referred to by the applicant, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, is also worth specific mention for the reference to the Court having said (at [37]):

5. [16]

   The Crown referred to the most recent consideration by the High Court of the unreasonable or unsupported ground of an appeal against conviction in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]-[9] which further confirmed the test in M v The Queen including the necessity for a Court of Criminal Appeal to make its own independent assessment of the whole of the evidence.

Background

1. [17]

   The complainants were sisters. BB was born in 1996 and AA was born in 2003. The applicant is their uncle.

2. [18]

   AA was first interviewed by Child Abuse Squad officers on 9 April 2014 (MFI.2) following a complaint to her mother in February-March 2014. A trial in respect of her allegations started in the District Court on 12 September 2016 but was discontinued after a few days.

3. [19]

   BB was to be called as a complaint witness in the 2016 trial. BB had given a statement in September 2014, saying of the applicant: “He never touched me at all”. [3] On 14 September 2016, while AA was giving evidence, BB made a second statement about a further complaint she said AA made about the accused. Midway through making that statement she disclosed to Detective Senior Constable Flynn (the officer in charge of the investigation) that, “He touched me like he touched AA”. [4]

4. [20]

   The officer arranged for her to speak with prosecution lawyers, and she then spoke with her mother. She said to her mother, “You know AA is telling the truth”, and her mother replied, “I’ve never doubted her”. BB said, “I had to say something because I didn’t want her to do it on her own” and started crying. Her mother said, “Oh no, not you too?” and BB replied, “She is fucking telling the truth, mum, ‘cos he did it to me too” and “I don’t know what to do, mum. They are making her look like a liar and she’s not lying, and I can’t let her do it on her own”. Her mother responded, “You just have to do the right thing, otherwise who is going to make it stop”. [5] BB’s disclosure caused the trial to be aborted.

5. [21]

   At the beginning of the new trial in August 2018 the judge told the jury the broad detail of this chronology so as to explain why much of AA’s evidence would be provided by way of replaying of recordings, leaving it to counsel who had appeared in the earlier trial and continued to appear for the applicant in this trial to “finish his cross-examination of AA”. [6]

6. [22]

   Counts 1 to 7 averred offences concerning BB, each in the period 1 January 2007 to 28 January 2010. The terminal date was when BB moved away to attend boarding school. She was therefore aged from 10 to 13 at the time. The offences concerning AA were alleged in February-March 2009 (Count 8), August-September 2011 (Count 9), January 2012 (Count 10) and 1-25 December 2012 (Count 11). She was aged from 5 to 9 in that overall period.

7. [23]

   The complainants’ grandparents had three children, a son and two daughters. The son was the complainants’ father. One of the daughters was the applicant’s wife. The extended family was very close, often getting together for dinners and Sunday lunches, usually at the home of the grandparents.

8. [24]

   The applicant and his wife had two children and they were in the same age range as BB and AA.

9. [25]

   The complainants’ father and mother had another child, a son who was younger than the two girls. After the parents separated in 2004, their mother had a child with a new partner in 2006.

10. [26]

    The complainants’ father lived at the grandparents’ home after the separation. At some point he commenced a relationship with a woman who became his partner. The custody arrangement in relation to the complainants was that he would have them either every weekend or every second weekend. This continued when he and his new partner moved out to their own home. The complainant’s mother gave evidence that she continued to drop the children at the grandparents’ home after their father had moved out: [7]

11. [27]

    The complainants continued to visit the grandparents’ home until Christmas 2012 when contact ceased in the context of family law proceedings. The evidence of the complainants’ mother was imprecise about this. At first she said she and the children stopped seeing her ex-husband’s extended family altogether in 2012. She said the last time she dropped the children off at the grandparents’ home was about the middle of 2012 but then immediately corrected herself to say, “No it would probably – I’m just trying – everything sort of revolves when my dad died in 2013, it happened after, I think it was 2013, after Christmas. That sounds about right.” She then settled on it being “around about the Christmas time” of 2012 as the last time she dropped the children there. [8]

12. [28]

    During the period covered by the indictment, the applicant lived with his family in “Smithtown”. In 2007 they lived in a three-bedroom home unit and from the end of that year until September 2012 they lived in what was referred to as the “back bedroom” of the grandparents’ home. This bedroom had been renovated during 2007 so as to comprise a large room with a bedroom area and a lounge area, partially separated by a wall.

13. [29]

    Both complainants gave evidence that the applicant indecently and/or sexually assaulted them on occasions beyond those charged in the indictment. This evidence was admitted without objection as context evidence.

14. [30]

    The Crown also alleged that the applicant had a tendency to have a sexual interest in his nieces and acted upon that interest by engaging in sexual activities with them, using his position as their uncle to facilitate and continue his assaults upon them. [9] The evidence relied upon to establish the tendency comprised the charged offences as well as evidence that the applicant referred to BB by the nickname, “Sexy Chocolate”. [10]

15. [31]

    The trial judge directed the jury that before they could apply tendency reasoning they had to be satisfied beyond reasonable doubt that the act(s) relied upon by the Crown occurred and such act(s) as they were satisfied occurred provided a basis to infer that the applicant had the tendency alleged. [11] (Requiring proof to the standard of beyond reasonable doubt was arguably more favourable to the applicant than the law as it then stood required: see, for example, Jackson v R [2020] NSWCCA 5 at [67]-[68] (Price J).)

16. [32]

    The applicant was interviewed by police in 2014 and gave evidence at the trial in 2018. He denied having committed any of the sexual acts described by the complainants. His case was that none of the sexual acts occurred and in respect of some of them that they could not have occurred. The latter was dependent solely upon the jury accepting certain witness testimony rather than there being incontrovertible objective facts rendering the offending impossible. The applicant also relied upon evidence adduced from Detective Flynn that he had never been arrested previously and had no criminal record as establishing his good character. This was relied upon as a matter supporting the credibility of his denials and rendering it improbable that he committed the offences alleged. [12]

17. [33]

    The jury asked the judge what to do if they believed something happened in 2006 which was outside the timeframe of a charge that specified between 2007 and 2010. The judge directed the jury that they would have to acquit the accused on that count. The applicant thereby accepts there is a logical explanation for the acquittal on counts 5 and 6 and no point is taken that there is “inconsistency” with the verdicts of guilty for the other counts concerning BB. (Generally, see Saunders v R [2022] NSWCCA 273 at [101]-[106] (Simpson AJA) and [122] (Hamill J).)

18. [34]

    The applicant also accepts that “whilst the jury might have entertained a reasonable doubt about his guilt” in respect of Counts 2–4 and 7 concerning BB, “it was nonetheless open to the jury on those counts to be satisfied of his guilt beyond reasonable doubt”. Thus, Ground 1 is confined to Counts 1 (BB) and 8–11 (AA).

19. [35]

    To avoid repetition, it should be taken that in the assessment of the asserted unreasonableness of the verdicts the subject of Ground 1, the applicant’s prior good character, in both of the respects about which the jury were instructed, has been taken into account.

20. [36]

    The tendency alleged by the Crown was well open to the jury to accept. It was a powerful factor supporting the credibility of each complainant. It did not, of course, depend upon proof of the applicant’s guilt on every count for it to be established. We are satisfied that it was established on the basis of the applicant’s guilt having been proved, and now not impugned, in respect of Counts 2–4 and 7. This has been taken into account in the assessment of Ground 1 concerning Counts 1 and 8–11.

Evidence as to Count 1 (“the office incident”)

1. [37]

   BB said this incident occurred in a room she described as an “office” in the home in which the applicant was living with his family at the time. The applicant disputed that there was such a room and contended that if there is a doubt about that then there is a reasonable doubt about his guilt. [13]

2. [38]

   BB said that when the applicant and his family lived in the home unit, she visited with her siblings, and they sometimes stayed overnight. She said the unit had “two bedrooms then there was an office and a bathroom and lounge room, dining room. I’m pretty sure it was two bedrooms and an office”.

3. [39]

   Given the controversy about whether there was an office it is necessary to refer to BB’s evidence on that topic in detail. She said the following about its location:

4. [40]

   Later in her evidence she said the bathroom adjoined one of the walls of the office, to the left as a person walked out of the office. [15]

5. [41]

   BB said that she had been in the office, but she didn’t remember being there with any of the other kids. She assumed it was the applicant’s office because “all his work stuff was in there”. She did not see her aunt in there.

6. [42]

   BB gave evidence of an occasion when she was at the home unit and went into “the office” and the applicant was there. She did not remember her aunt or her sister being home, but her brother and the applicant’s children were. The applicant was sitting on “the computer chair behind the desk”. He told her to come in and to shut the door. He told her to climb under the desk. Once she was there, he said, “can you suck my dick”. She did. She said his penis “didn’t have any hair, and he was kind of like half hard, wasn’t fully soft” but “it got harder in my mouth”. She said she could smell his deodorant. He asked her to use her other hand to fondle his testicles and she did.

7. [43]

   BB could not recall how long this went on for, but it ended when he told her to stop and he pushed his chair away from her, used his hand to masturbate, and ejaculated on the floor. She described that occurring and the aftermath in considerable detail. After the applicant had cleaned up, she went back to the lounge with her brother and cousins. She was asked how she felt after this event and she said, “Normal, as if it didn’t – I didn’t feel anything”. [16]

8. [44]

   As to the deodorant, BB said she recalled having seen it in the bathroom. She thought “it was Brut; in a green tin”. Her partner used to wear it when they first got together but there was an occasion when he sprayed it in the car; she didn’t like the smell because it reminded her of things that happened, so she threw it out the window.

9. [45]

   BB turned 11 during the year 2007 when the applicant and his family lived in the home unit. She was aged 22 at the time of giving evidence.

10. [46]

    Exhibit G was a sketch drawn by BB of the office showing the location and possible location of items of furniture, the door and the window. She had also marked where semen had fallen on the carpet under the desk and where she was standing when the applicant was cleaning it up. This diagram was signed by BB and Detective Flynn and dated 14 September 2016. [17]

11. [47]

    In cross-examination, [18] BB was shown a professionally drawn floor plan of the home unit (Exhibit 6, which had been obtained by police from the records of the local council [19] ). She agreed that it included three bedrooms marked “Master Bedroom”, “Bed 2” which she said was the room used as an office, and “Bed 3” which was the boys’ bedroom. She disagreed with a proposition that there was no desk or office furniture in “Bed 2” and that instead it contained boxes stacked around the walls, laundry and an ironing board.

12. [48]

    It is of some significance that the layout of the room according to Exhibit 6 in terms of a window, the door and a wardrobe coincided in their locations precisely with the diagram BB had drawn two years earlier (Exhibit G). Furthermore, the location in the floor plan of the unit in Exhibit 6 accorded exactly with how BB had described it.

13. [49]

    The applicant’s wife gave evidence that her family lived in the unit in about 2007 for about 12 months. She and her husband shared what was shown on the plan in Exhibit 6 as the “master bedroom”, their children shared “Bed 2” and “Bed 3” contained boxes, her ironing board, and on one or two days a week there would be washing there. [20]

14. [50]

    The applicant’s wife also gave evidence which was contradictory of BB in saying that her husband was “a reasonably hairy man” and she had never seen him with any of the hair around his penis removed. [21]

15. [51]

    The applicant agreed with the effect of his wife’s evidence that they had lived at the home unit for about 12 months in 2007 and that he and his wife occupied the main bedroom, their children had a bedroom, and the other bedroom had boxes, an ironing board and washing. There was no room that had a desk or office chair, or which matched the description of an office. He considered himself a hairy person and had never had hair removed from around his penis. [22]

16. [52]

    The applicant’s account was that Bed 3 was the children’s room and Bed 2 was the spare room. This was consistent with BB but contradicted his wife. [23]

17. [53]

    The Crown Prosecutor drew attention to the correspondence of BB’s description of “the room that she says was a study and had a desk in it”, including her diagram (Exhibit G), with the plan (Exhibit 6). She invited the jury to compare this with the evidence of the applicant and his wife who gave conflicting evidence of where the room actually was but were both sure there was no desk. She submitted: “You may think that this assertion by the [applicant] and the assertion by [his wife] that there was no desk in their house whatsoever is not believable in the circumstances”.

18. [54]

    The circumstances the prosecutor referred to were that the applicant was conducting a business for which there were books and records maintained as well as a need to prepare documents for tax purposes. In cross-examination the applicant claimed that all of that material was kept at his parents’ house. [24]

19. [55]

    The Crown Prosecutor also submitted that BB had given “a clear detailed account of what occurred” and there were other details she gave which had “the ring of truth”. One example was the smell of the applicant’s deodorant. The prosecutor reminded the jury of her evidence and also that of her partner who confirmed there had been an occasion when she had thrown his deodorant out the window of his car because it reminded her, “My uncle used to wear it”. [25] Another matter of detail of which the prosecutor reminded the jury was BB’s description of the shorts worn by the applicant, with her submission that it coincided with the type the applicant had said he used to wear in that era. [26]

20. [56]

    Counsel then appearing for the applicant submitted that not only did the incident upon which Count 1 was based not happen, it could not have happened because according to the evidence of the applicant and his wife that there was no office, no office chair and no desk in the home unit. [27] Counsel also emphasised the evidence of the applicant and his wife that he was a hairy person and at no stage during their marriage had hair been removed from the area of his penis. [28] He was also critical of BB for her inability to describe what was going on before or after this and other instances of sexual or indecent activity.

Submissions as to Count 1

1. [57]

   As indicated earlier, the applicant’s contention was that any doubt about whether there was an office meant that there must be a reasonable doubt about his guilt in respect of Count 1. The only evidence that there was an office in the home unit was that of BB, including her diagram, Exhibit G.

2. [58]

   It was submitted that the applicant and his wife were adamant that there was no office and that the inconsistency in their recollection of which out of Bed 2 and Bed 3 was the children’s bedroom and the spare bedroom was explicable by the passage of time.

3. [59]

   The applicant also pointed to the fact that the Crown did not seek to challenge the applicant’s wife in relation to her assertion that the home unit did not have an office.

4. [60]

   The Crown, on the other hand, relied upon the detail in the recollection of BB as to the location and content of “the office” and how it coincided with the objective evidence provided by the detailed professionally drawn floor plan tendered by the defence (Exhibit 6). Submissions were also made about features of the applicant’s evidence that might have given the jury cause to doubt its accuracy. [29]

Determination of Ground 1 in respect of Count 1

1. [61]

   It was well open to the jury to accept the assertion of BB that there was an office in the home unit where the event in Count 1 occurred. She first gave an account about it in detail in September 2016 during the trial of AA in circumstances that have been described earlier (at [19]-[20]).

2. [62]

   BB’s credibility appears from the pages of the transcript to be sound (although obviously the jury enjoyed an advantage of seeing and hearing her testimony). Counsel for the applicant addressed the jury at length about her previous statement that the applicant had not abused her. [30] However, the way in which her disclosures unfolded had an air of credibility (see below at [83]-[87]).

3. [63]

   BB was aged 20 when she made her disclosure in detail in September 2016, some nine years after 2007 in which the Count 1 incident was alleged to have occurred. The precise detail in her description of “the office” and the fact that it was completely consistent with the plan in Exhibit 6 likely impressed the jury as an accurate and reliable recollection. For example, and as the Crown identified, the position of the door and window in Exhibit 6 were shown in the same location as on BB’s diagram. Where she indicated in her diagram a “possible cupboard”, the plan showed a built-in wardrobe. It is unlikely BB would have had an ability to recall such things about the room if nothing dramatic had occurred there.

4. [64]

   The alternative version that there was no office and no office furniture was well capable of rejection. Despite the submission to the jury of the applicant’s counsel, the insistence of the applicant and his wife that there was no office did not necessitate the jury having a reasonable doubt based on their testimony. They lived in the unit for about 12 months. It is doubtful that the passage of time could account for them contradicting each other in stating whether it was Bed 2 or Bed 3 that was the spare room that they said was filled with boxes, an ironing board and washing.

5. [65]

   The applicant’s submissions also referred to a contradiction between BB on the one hand and the applicant and his wife on the other as to whether the applicant had hair around his penis. Whilst the contradiction was identified, it played no part in the applicant’s contention that the verdict of guilty on Count 1 was unreasonable. That contention was confined to “the office” issue. In any event, there were other aspects of BB’s account that the prosecutor referred to as having “the ring of truth”.

6. [66]

   There was general support for the credibility of BB in her claim to having been abused by the applicant. The fact that the applicant accepts that it was open to the jury to return verdicts of guilty on Counts 2-4 and 7 is notable but there are two further general matters. One is her poignant explanation for why she made no contemporaneous complaint. After some evidence about her telling people about the abuse sometime after it had occurred, there was this: [31]

7. [67]

   Another is the evidence of the applicant having referred to BB by the nickname, “Sexy Chocolate”. BB’s evidence about it was as follows: [32]

8. [68]

   The applicant responded to this evidence with the following explanation which was likely to have been devastating to his credibility, including the credibility of his denials of the offending and his assertions of facts contradicting those of the complainants: [33]

9. [69]

   The evidence of BB in relation to Count 1, including that the incident occurred in “the office” was capable of acceptance to the complete exclusion of the contradictory evidence of the applicant and his wife, the applicant’s sworn denial of the offending, and his prior good character. A verdict of guilty was well open to the jury to return.

Evidence of BB as to other incidents

1. [70]

   Although they are not the subject of complaint under Ground 1, it is appropriate to take note of the evidence of BB concerning Counts 2–7 (at least because it is relevant to the tendency alleged by the Crown) and other sexual misconduct by the applicant adduced as context evidence. The following is largely drawn from the written submissions.

2. [71]

   BB described an incident that occurred at the grandparents’ home before the renovations in 2007. She and the applicant were in the house, along with her siblings and her cousins (the applicant’s two children). Each of the children, other than BB, could be heard in the kitchen playing on their DSs (gaming consoles). The applicant was in the lounge room at the front of the house, sitting on a red lounge next to the window. He was wearing shorts and a short-sleeved top. BB could not recall how she came to be kneeling in front of the applicant but recalls being in that position sucking his penis. The applicant had his hand on her head, guiding it back and forth. BB continued to suck the applicant’s penis until he told her to stop. [34]

3. [72]

   Counts 3 and 4 occurred after the applicant and his family had moved into the grandparents’ home after the renovations. It was common ground that this room, divided into a lounge area and a bedroom area, was occupied by the applicant and his family. BB gave evidence that the usual sleeping arrangements were that the applicant’s wife and one of her children slept in the bed in the bedroom area while the other child slept on a futon in the lounge area. The applicant slept in a recliner chair in the lounge area.

4. [73]

   BB gave evidence that she (and presumably her siblings) spent time in this area with their cousins (the applicant’s children), watching cartoons on the TV and playing with their gaming consoles. [35]

5. [74]

   On the occasion in question, BB and the applicant were present along with her siblings and the applicant’s children. The applicant’s wife was at work. AA was on the recliner. JJ and the applicant’s sons were on the futon. The applicant was lying next to BB on the floor. BB had a Spider-Man blanket over her. The applicant put his hand under the blanket and rubbed BB’s “vagina area” on top of her clothes. He then put his hands into her pants and rubbed her clitoris with his fingers, BB having moved onto her side a little bit. The applicant grabbed BB’s hand and guided it to his penis on top of his shorts. The applicant’s penis was erect. BB could not recall how long her hand remained in that position. [36]

6. [75]

   The applicant later told police, during an interview on 10 October 2014, that they had Spider-Man blankets when he lived in the grandparents’ home. This was said in response to a proposition that he had indecently assaulted AA after placing a blue fluffy blanket over her. He said, “No. I don’t even have a blue blanket”. He could have ceased the answer at that point, but he continued by volunteering, “We only have Spiderman blankets”. [37]

7. [76]

   The applicant resiled from that admission in his evidence at trial, stating that he had made a mistake in the interview, confusing Spider-Man blankets (which he asserted they did not have) with Spider-Man pillows (which they did). His wife had made that assertion as well. She claimed, “I only had doonas … on my bed and on the futon”. [38]

8. [77]

   JJ gave evidence of there being blankets, including Spider-Man ones. [39]

9. [78]

   These are the counts for which the applicant was found not guilty, seemingly upon an acceptance by the jury that the relevant acts occurred but because of doubt as to whether they occurred within the timeframe alleged in the indictment.

10. [79]

    BB gave evidence that she was with the applicant in his ute when he instructed her to remove a disk from the glovebox and put it in a DVD player in the dashboard. The video depicted a man and a girl engaged in sexual activity. The applicant then pulled over and parked, pulled down the front part of his shorts and BB leant over the centre console and sucked his penis.

11. [80]

    BB recalled one particular occasion before she moved to boarding school. She and the applicant were in the position described above. AA was asleep on the floor in front of the recliner. JJ and the applicant’s son G were on the futon. The applicant’s wife was not there. The applicant put his hands down BB’s pants and moved his fingers in a circular motion inside the lips of her vagina before putting a finger into her vagina. When asked how it felt physically, BB replied, “Felt good”. She said she was not in any pain. [40]

12. [81]

    BB gave evidence that there were “heaps of times” when she was sitting on the applicant’s lap as he sat on the recliner in the lounge area of the “back bedroom” of the grandparents’ home. She said, “I can’t remember, like, what exactly happened to all of them because they were nearly all the same, and it was just all the time”. She explained this as follows (with this evidence being relied upon, without objection, as context evidence): [41]

13. [82]

    It might have seemed to the jury to be most unlikely that a person would fabricate an account of sexual abuse and include in it that others were present, but then, knowing that those other persons would not support their account, provide a further fabrication for why they would not do so.

14. [83]

    BB first disclosed the offences to a cousin as they were sitting in a restaurant. This was sometime after an event in March 2015. They were talking about AA and the cousin asked, “Did he do it to you too?” BB replied, “Yes”. When the cousin inquired what he did she told her, “[H]e made me suck his dick”. [42] Both BB and the cousin gave evidence about this (although with variation as to peripheral detail). The cousin said that after BB said she believed AA, “Because it happened to me”, BB broke down and sobbed for about two hours. She said, “It was like she exploded and then she just couldn’t move. She was just spent”. [43]

15. [84]

    BB later told her partner who encouraged her to tell someone. He gave evidence that three or four weeks before court came up (in September 2016), “Basically she told me, everything that happened to AA happened to her”. [44]

16. [85]

    BB’s first disclosure to police and her mother on 14 September 2016 has been described earlier (at [19]-[20]).

17. [86]

    As to why, when AA made her disclosures in early 2014, BB did not tell AA that the applicant had abused her too, BB said that she was not ready to tell anyone. She explained that she did not attempt to comfort AA in that way as she did not think that what the applicant had done to her was wrong. BB continued: [45]

18. [87]

    As indicated earlier, counsel for the applicant sought to make much before the jury of BB’s inclusion in a police statement in 2014 that “he never touched me at all”.

Disclosure by AA

1. [88]

   The complainants’ mother gave evidence of AA first disclosing that she had been touched by the applicant on Valentine’s Day 2014. She asked AA why she had not said anything before and “she said she was scared that he would hurt her, or me, or BB”. She disclosed that the applicant had “put his fingers in my vagina”. When asked if he had put his penis anywhere, she replied, “No, just his fingers”. The mother did not ask when this had occurred, explaining that AA’s younger half-brother was present, and it was “not something a little boy wants to hear” so she “just deflected it and changed the subject”. [46]

2. [89]

   There was a further conversation between AA and her mother that afternoon after AA returned from school. AA told her that the abuse happened when her grandmother was at bingo, her grandfather was at his farm, her aunt was working, and her father was playing poker. The other children were sometimes out of the room, and sometimes they were in the room and the applicant did it under a blanket. Her mother said that she jokingly asked how could you do it in the room with the others there and she said AA “got upset and just said, ‘He did’”. She said, “The kids were watching telly and sometimes when we were watching telly with the other kids he would put me on his knee … and put a blanket on and touch me”. [47]

3. [90]

   The complainants’ mother said that there were further conversations with AA about her uncle over a period of time. At one point she was told by AA of an occasion at Christmas time associated with Christmas presents. (See below at [178]ff in relation to Count 11.) There was another occasion when AA told her something, but her mother was busy cooking dinner and the younger son was present, so she “brushed” AA off and “deflected” the conversation. On another occasion there was mention of an incident occurring in a car on the grandfather’s farm. (See below at [132]ff in relation to Count 9.) [48]

4. [91]

   A decision was taken to go to the police. The complainants’ mother contacted BB to tell her. She said BB was upset. [49] The mother made her first statement on 21 March 2014. AA was interviewed by Child Abuse Officers on 9 April 2014 (MFI.2).

5. [92]

   BB recalled receiving a call from her mother in which her mother told her that the applicant had touched AA. BB recalled responding, “What the fuck?”. She could not remember if her mother told her further details. [50]

6. [93]

   BB recalled receiving a message from AA saying that she needed to speak. BB called her and asked if the applicant had touched her. AA confirmed that he had but did not go into detail. [51]

7. [94]

   Subsequent to that there was an occasion when BB was staying with her mother and had the occasion to speak with AA when AA had become upset and was crying. BB asked what was wrong and AA “blurted out that [the applicant] put fingers inside her”. BB said she was shocked; she didn’t know what to say and so she just hugged AA. [52]

8. [95]

   BB said that there was an occasion when AA was staying at the home BB shared with her partner when AA became upset and was crying. AA asked her why people have sex and in the course of answering, BB said “that’s how it’s supposed to be and that what [the applicant] did to her wasn’t her fault”. AA told her about things the applicant did, including that “he used to make her sit on his lap with a pillow and he had put his fingers inside of her”. BB also thought she said, “he’d made her touch his dick”. BB started crying and asked when did it happen and she said AA “said to me that we were all there when it was happening”. [53]

Evidence as to Count 8 (“the AA recliner incident”)

1. [96]

   The applicant, his wife and their two children lived in the back room of the grandparents’ home after the renovations had been carried out. As previously described, the room was divided into a bedroom area and a lounge area. Access from the rest of the house was through a doorway into the bedroom area. The location of furniture shown in the diagram tendered by the defence (Exhibit 1A) indicated that the applicant’s recliner chair in the lounge area was out of view from the doorway into the bedroom area. However, the applicant’s wife gave evidence that the wardrobe in the bedroom area had three doors, two of which had mirrors by which from the doorway one could see into the lounge area, including the recliner chair. [54]

2. [97]

   AA provided evidence relevant to Count 8 in her first interview on 9 April 2014. [55] She was aged almost 11 at the time. This followed her disclosure to her mother in February 2014.

3. [98]

   She initially described what her uncle, the applicant, “would” do to her when she was about 5½ - 6 years. (AA was of that age in about October 2009 to April 2010.) She said, “he would start touching me” and she “would tell him to stop but he wouldn’t”. The questioning, and her account, subsequently became more specific. It became clear that the incident upon which the Crown based this Count was identified by the circumstances in which it came to an end, by AA’s two aunts entering into the bedroom area. [56]

4. [99]

   AA drew a circle indicating the genital area on a diagram of a little girl (Exhibit B), referring to it as “wee” and that it was used for “going to the toilet”. The applicant touched with “his fingers”. It was in the “middle” of the area, “underneath” the clothing. She was asked “where were his fingers going” and she replied:

5. [100]

   She was asked what she could feel and she said, “his fingers”. He was sitting on the lounge and she was sitting on the armrest. She said his “one” hand was coming “from the front”. He told her “Not to tell anyone”. The touching of her “wee” went for “minutes”. She was “trying to push his hand away, and he wouldn’t stop”.

6. [101]

   The touching stopped because her uncle’s two sisters “walked in the room”, one being the applicant’s wife. She was asked if she thought they would have seen anything and she replied, “Not that I know of”. She nominated other people who would have been home, elsewhere in the house.

7. [102]

   When pressed for detail she said that it occurred when she was in Year 1 (and she named the school and her teacher). It was on a weekend, “because we were there on the weekends”. It was “in the afternoon”. She drew a sketch diagram of the room and its furniture, indicating the applicant was on a lounge and she was on the armrest (Exhibit A). This was a lounge the applicant used to sleep on; he did not sleep with his wife. The television was showing “probably some kid shows”.

8. [103]

   AA was cross-examined about this incident in the first trial in September 2016. [57] It was clarified that the incident occurred while the applicant was sitting on a recliner chair and she was on the armrest. There was also the following evidence:

9. [104]

   AA said she was wearing pants and he put his hand down the front. She tried to push his hand away and said, “Stop”.

10. [105]

    AA was asked about her two aunts who “came into the room”, agreeing that they were people she had known for a long time; she liked and trusted them; she felt safe with them; and they had always treated her well. She was then asked if something bad happened she would feel safe with them, but she said, “I’m not sure”. She was asked why she was “not sure” and she replied, “Because my uncle said not to tell anyone”.

11. [106]

    AA agreed that, as the aunts walked in, the applicant had his hand down the front of her pants, but she could not remember either of them saying anything like, “What’s going on here?” It was then clarified that the aunts did not walk into the room where the recliner was; they were “in my aunty’s bedroom”, and that the applicant had stopped what he was doing “when they walked into the door”. [58] She confirmed in re-examination in 2018 that the applicant had stopped when the aunts had walked into the bedroom. [59]

12. [107]

    The cross-examination in 2016 in relation to this incident concluded with it being put to AA that the applicant had not put his hands down her pants in any way and she replied, “That’s not true”. [60]

13. [108]

    The applicant’s wife confirmed that the recliner chair was the applicant’s chair and he slept in it. [61]

14. [109]

    She said there was no occasion when she and her sister came into the bedroom area and saw something untoward occurring between the applicant and AA reflected in the mirrors of the wardrobe. [62]

15. [110]

    She agreed with the applicant’s counsel that if AA had been sitting on the arm rest with her feet touching the leg rest of the recliner (as she had described), she would have to have been sitting on the edge of the armrest. [63]

16. [111]

    The applicant’s sister-in-law also gave evidence of being able to see the recliner chair in the lounge area from the doorway leading into the bedroom area via the reflection in the mirrored doors of the wardrobe. Like her sister, she did not see anything untoward or suspicious between the applicant and AA. [64]

17. [112]

    The applicant’s father-in-law gave evidence of AA frequently sitting on the arm of the applicant’s recliner chair. He never saw anything untoward or unusual. He agreed that everything he saw of them seemed perfectly fine (as it did between the applicant and BB as well). [65]

18. [113]

    The applicant denied this event occurred. [66]

19. [114]

    The Crown Prosecutor submitted that when AA spoke of the applicant having touched her “in my wee”, she should be taken as having referred to her vagina for two reasons. [67] The first was because she marked on the diagram (Exhibit B) “the area which is around her vagina, that she says was her wee”. The second point was more elaborate. It was an agreed fact that AA attended a doctor on 13 March 2006 in relation to a vaginal irritation. She was diagnosed with a urinary tract infection on 22 March 2006. [68] According to BB, AA had said to her father that she had “diamonds in her wee”. [69] The father gave evidence that “she complained that she had a sore vagina and that BB had put diamonds in her”. [70] So, the prosecutor submitted the jury would “be satisfied that the way that she uses that word ‘wee’, it’s clear that she means her vagina”.

20. [115]

    Otherwise as to this incident, the prosecutor addressed the possibility that the two aunts would have seen if anything untoward was going on between the applicant and AA in the reflection of the mirrors as they entered the bedroom. She submitted there was no evidence as to how long the incident had gone on for, nor evidence as to whether the aunts were paying any attention to what could be seen in the mirrors as they entered. [71]

21. [116]

    Counsel for the applicant made two points about this alleged incident. [72] He first referred to AA saying that while she was sitting on the armrest of the recliner her feet were “stretched out and were on the footrest”. The submission was that it was “highly unlikely” the applicant could have done what was alleged if AA was positioned in that way. The next submission concerned the two aunts whose arrival was said to have brought about an end to the incident. Counsel submitted that the absence of the aunts seeing or hearing anything untoward, in circumstances where they would have if what AA had described had occurred, meant that “her account of things could not have happened, not like that, not with these two women walking in without warning”.

Submissions as to Count 8

1. [117]

   In this Court there were a number of submissions critical of the quality of the evidence relied upon by the Crown. [73] For example, the fact that the aunts came into the room at a time when the applicant’s hand was said to have been down AA’s pants but they both gave evidence that they saw nothing untoward. This was described in oral submissions as “a clear MFA problem”. [74] Assuming this to be a reference to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, it is noted that in that case there was a discrepancy between the evidence of the complainant and an eyewitness, but it was not considered by this Court, or the High Court to warrant a finding that the verdict in question (on Count 8) was unreasonable or unsupported by the evidence.

2. [118]

   It was submitted that the questioning in the 2014 interview (MFI 2) had initially been in terms of what the applicant “would” do and how he “would” touch her. It then proceeded with an assumption that she had been touched in that way on the occasion when she said her two aunts came into the adjoining bedroom.

3. [119]

   Greater emphasis was placed on a submission that the evidence left it in doubt whether there had been a penetrative act by the applicant as opposed to a merely indecent act. The submissions included comparison with AA’s account of other incidents which included a similar or identical expression (“in my wee”) but which were pressed by the Crown as indecent but not penetrative sexual assaults. Reference was made in oral submissions to AA in her 9 April 2014 interview using the terms “in my wee” but “on top of the clothing” in relation to the Count 11 incident (see below at [180]) and both “in my wee” and “on my wee” in relation to the Count 10 incident (see below at [166]). It was submitted that this was consistent with AA referring merely to the area she had circled on the diagram, Exhibit B. [75]

4. [120]

   It was observed that there was no attempt to clarify these descriptions by AA in oral evidence-in-chief. [76]

5. [121]

   The Crown addressed the submission about the two aunts by referring to the evidence of each that they never came through the door and saw in the mirrored wardrobe doors the applicant and AA on the recliner chair. The Crown submitted that the jury might have regarded this adversely reflecting upon the accuracy of the aunts’ recollection given the frequency with which others (including the applicant’s wife) described the pair sitting on the recliner together. [77]

6. [122]

   The Crown submitted that in any event, the applicant’s submission assumed the wardrobe doors were positioned in a way to capture the reflection of the recliner chair. It also assumed that the aunts would have had their suspicions aroused given the applicant was said by AA to have ceased what he was doing as the aunts opened and entered the hitherto closed door. [78]

7. [123]

   As to the use of the expression, “in my wee”, in relation to other incidents, the Crown noted that AA had corrected herself in relation to Counts 10 and 11 by describing the touching as “on top” of her “wee”, whereas she offered no such correction in relation to Count 8. A further submission by the Crown that AA’s account of the touching being “in” her wee was not challenged by the applicant in cross-examination is of no merit as his case was clearly put that there was no touching at all. [79]

8. [124]

   The Crown referred to the jury being directed as to the definition of “sexual intercourse” including penetration of the genitalia “to any extent” and submitted that the jury would have been entitled to conclude that AA was able to describe the difference between inside and outside her body. [80]

9. [125]

   The Crown also referred to the evidence of BB of digital penetration of her vagina by the applicant when they were together on the recliner chair, on occasions with others present in the room. [81]

Determination of Ground 1 in respect of Count 8

1. [126]

   The issue concerning the evidence of the two aunts may be dispatched quite briefly. There was no evidence that either of them saw AA and the applicant sitting on the recliner chair on the occasion in question. That is different to there being evidence of the aunts seeing them but saying nothing untoward was happening.

2. [127]

   It was the evidence of AA that the aunts were in the bedroom area. The defence case was to the effect that it may be inferred they would have seen the pair in the reflection in the wardrobe mirrors. That assumes they were looking at the mirrors, and at the right angle to enable them to see the recliner chair, but the evidence was silent about those matters.

3. [128]

   The rather muted criticism of AA’s evidence lacking specificity as to the occasion in which the Count 8 incident occurred may also be rejected. It was well open to the jury to be satisfied that the evidence relied upon by the Crown was concerned with a specific occasion, namely the first occasion upon which she was indecently touched by the applicant which ceased upon the aunts’ arrival.

4. [129]

   The more troubling issue, however, is whether the jury ought to have had a reasonable doubt about whether there was an act of penetration such as to constitute sexual intercourse as defined in the statute. At the time, s 61H(1)(a) of the Crimes Act defined “sexual intercourse” to include “penetration to any extent of the genitalia … of a female person”.

5. [130]

   There is merit in the submission that the term, “in my wee”, could have been used by AA to describe a touching in her genital region without necessarily meaning to convey that there was penetration even in the slightest degree to constitute intercourse. While it might be expected that AA would have been able to describe the difference between inside and outside her body as the Crown submitted, the problem is that she wasn’t asked. Her seemingly interchangeable use of the expressions “in my wee” and “on my wee” leaves room for doubt as to whether she was describing an act of penetration. The fact that the complaint evidence included that the applicant had inserted his fingers in her vagina was a general assertion and not specific to this particular incident.

6. [131]

   Ground 1 should be upheld and the conviction in respect of the offence in count 8 should be quashed. The consequences of this will be discussed later.

Evidence as to Count 9 (“the demolition derby car incident”)

1. [132]

   The grandparents had a farm not far out of the town where they lived. The incident with which Count 9 is concerned was alleged to have occurred at the farm in a car that was being prepared to be entered in a “demolition derby” in the forthcoming “Smithtown” show.

2. [133]

   In her interview of 9 April 2014, AA spoke of an occasion when a “smash up derby” car was being made and, when it was finished, the applicant was taking everyone for a drive in it. She said, “when I was driving it, he started touching me, when, like, and I couldn’t do anything “cause I was driving”. When asked where he touched her, she said, “On my wee, on top of the clothing”. She said she was driving the car for “probably 5 minutes”. She thought this was “probably a week” before the show when she was 7 years old. She was asked to describe the car and said it was black with rainbow colours on it. [82]

3. [134]

   AA was cross-examined about this incident at the trial in 2016. [83] She said she could not remember whether there were seats in the back of the car, and she was not sure whether there was anything unusual about getting into the car. She was asked whether she was scared when the applicant touched her and she said, “Yes, because I couldn’t do anything because I was driving and if I did anything, I would probably crash”.

4. [135]

   AA said that other children had also driven the car: her sister BB, her brother JJ, and possibly the applicant’s two children.

5. [136]

   Inconsistent aspects of her mother’s account of her complaint concerning this incident were put to AA and she said either that she did not recall or was “not sure”.

6. [137]

   A number of propositions were put to AA which she did not accept: the demolition car whilst at her grandparents’ farm was in a shed for the whole time; it was never driven on the farm; she did not drive it and nor did other children; the car could not be started or driven because it did not have a battery or a fuel tank. In two long questions that effectively conveyed a simple proposition that the touching she alleged did not happen, she replied, “I don’t know” and “I’m not sure”. A slightly shorter question conveying the same proposition had previously elicited the answer, “That is wrong”. Thus, equivocal answers may have been more a function of poorly phrased questions than uncertainty about a simple point.

7. [138]

   BB did not give any evidence about driving a demolition derby car at her grandparents’ farm. She was not asked.

8. [139]

   JJ gave evidence that there was a car at one stage at the farm. It was being done up for the show, a smash-up derby. He said, “We’d take it – sometimes we’d take it for drives on the farm”. [84] In cross-examination he was challenged about having said in a statement he made in September 2014 that he remembered a buggy-type car on the farm that was for the demolition derby at the show, but he did not remember driving it or being taken for a drive in it. It was put to him that this was “the correct situation”, but he maintained what he had said in his evidence-in-chief was correct. Although he had not driven the car and was not in the car when it was driven, other kids were taken for a drive, and he rejected a proposition that it was incapable of being driven. [85]

9. [140]

   The complainants’ father remembered cars on his parents’ farm. He recalled one that was used for the “destruction derby” at the local show. It was possibly a 4-door Cortina, some sort of Ford. It was “matte black or something” and “spray painted all different colours”. It was able to be driven on the farm and was driven by the applicant. The complainant’s father said he did some work on this car, he may have welded the roll bars or something. He also recalled a yellow Subaru Ute which the applicant used to drive with the kids. He said, “He’d just take the kids around the farm for a joy ride”. [86]

10. [141]

    It was put in cross examination that the work he did on the demolition derby car included welding the doors shut. He could not recall doing that but said it was possible. The other car was a Subaru Brumby, a two-seater ute with no back seat which never left the farm as far as he was aware. The demolition derby car belonged to a man called [TG]. He said in his statement that he did not remember being at the farm when the children drove in the demolition car. He disagreed with a proposition that the demolition car only had a driver’s seat. He thought it might have been “all seated” when it got there but only had the driver’s seat when it left. [87]

11. [142]

    The complainants’ grandfather confirmed the presence of a Subaru Ute at the farm. The applicant had got it to drive around with the kids. He did not give any evidence about the demolition derby car.

12. [143]

    A cousin of the complainants who was a year older than BB recalled driving a ute on the farm. She said, “Often when the older kids, like BB and I, would have our turn, the little ones wanted to have a turn. Yes, I remember seeing AA go with [the applicant]. But she was obviously a lot littler, so would be sitting on his lap…”. She did not give any evidence about a demolition derby car. [88]

13. [144]

    The complainants’ mother made a statement on 21 March 2014 in which she set out the terms of disclosures made by AA on and after 14 February 2014. The first disclosures, before and after school on Valentine’s Day, were in broad terms and not referable to any specific occasion. [89] A subsequent conversation concerned an incident that occurred at Christmas time. Another conversation occurred one afternoon when AA’s mother was cooking dinner. She said she remembered brushing AA off and deflecting her because she was concerned at the presence of AA’s half-brother who was a lot younger.

14. [145]

    In her evidence-in-chief, she explained a number of times that her statement provided a more accurate account because it was made when her memory was fresh. The Crown Prosecutor was granted leave pursuant to s 38 of the Evidence Act 1995 (NSW) to question her about the terms of her statement after she gave inconsistent evidence on one particular topic. Counsel for the applicant read to her from her statement of 21 March 2014 the terms of the entire disclosure made by AA about the demolition car and she agreed it was correct: [90]

15. [146]

    The applicant said the incident alleged as Count 9 did not happen. One year his friend, TG, brought a “smash up car” to the farm before the show. He thought it had only the front driver’s seat in it; the others were removed so that TG could get the roll bars into it. They had to install rollbars and weld the doors shut to make it safe for the show. When it was almost finished the kids became involved painting it all different colours. The applicant said he had no more contact with the car after it was finished. It could not have been driven around the farm because it did not have a battery or a fuel tank. Neither he nor anyone else drove children around the farm in that car. [91]

16. [147]

    TG said he purchased the car. The vendor “and another bloke” had stripped the interior, the trim, the windows and seats were removed and only the driver’s seat remained. He said “They basically took everything, took the lights out, the glass so the headlights, rear taillights. The bumper stayed on it and they even removed the battery”. There was other work done on the car, removing the fuel tank and putting a five-litre fuel tank inside on the passenger side on the floor. A roll cage was installed; that work was done out at the farm.

17. [148]

    TG clarified that he instructed the complainants’ father to remove the fuel tank and install one inside the car; weld in the roll cage and install mesh in the driver’s window space. As to whether there was a battery in the car, TG said he had to borrow one from the vendor at the time of purchase because the car did not have one. His evidence was not entirely clear as to whether that battery remained in the car but it seems not. He said the vendor “lent me one because – and then I picked the car up, dropped it off, or whoever dropped it off, and give him back the battery”. He had earlier said, “I had to put a battery in it when I got to take the car. We had to put a battery in it so I put a battery in it and, and when the smash-up derby was finished, actually I remember leaving the battery in there and it was, I think it was quite a new battery”. As to whether the car could be driven when it was at the farm, he said that “it could have if some work was done to it”.

18. [149]

    The general tenor of TG’s evidence was that it was the complainants’ father who was most involved in the work done on the car when it was at the farm.

19. [150]

    The Crown anticipated the defence submitting that the incident in Count 9 could not have occurred because the demolition derby car could not be driven when it was at the farm. She reminded the jury of the evidence of TG to the effect that the complainants’ father was the one most involved in working on the car. She asked the jury to take into account that TG said the car could be driven off the trailer when it arrived at the property. JJ said the car was taken for drives on the farm. The complainants’ father said the car was able to be driven on the farm and was driven by the applicant. The only person who said the car was not able to be driven on the farm was the applicant. The Crown Prosecutor submitted the jury would not accept him on that because of all the evidence to the contrary. [93]

20. [151]

    The defence address drew attention to the inconsistent terms of AA’s account to her mother in February 2014 (other children were in the car and AA was sitting on the applicant’s lap). The jury were asked to consider the unlikelihood of AA being able to fit on the applicant’s lap, given his size. They were reminded of the evidence about the car itself, with there being no battery, no fuel tank, and the doors being welded closed and having to enter and leave by climbing through a window, something AA said she did not recall. [94]

Submissions as to Count 9

1. [152]

   The applicant submitted there were several reasons the jury ought to have had a reasonable doubt about this Count. [95]

2. [153]

   First, AA said the applicant was sitting in the front passenger’s seat at the time, but this was contradicted by TG’s evidence about the removal of all but the driver’s seat. In oral submissions, a point was sought to be made of this being a “Pell issue” because the Crown did not challenge TG on this point. [96]

3. [154]

   Secondly, when telling her mother about this incident, AA gave an inconsistent account in several respects. She said the applicant’s children were sitting in the back; she said she was sitting on the applicant’s knee; and she alleged that the applicant had “put his fingers in me in the car” whereas her evidence did not allege a penetrative act.

4. [155]

   Thirdly, there was no support for AA’s evidence about the presence of BB, JJ and possibly the applicant’s children.

5. [156]

   Fourthly, there was doubt about whether the car was capable of being driven at all while it was at the grandparents’ farm.

6. [157]

   As to the seating issue, the Crown referred to the evidence of the complainants’ father who believed the car might have been “all seated” when it first arrived but only had the driver’s seat by the time it left. It was submitted the jury might have preferred the evidence of the father given he was the one who worked on the car. [97]

7. [158]

   As to whether the car was able to be driven, the Crown contended that the removal of the fuel tank and replacement with a smaller tank inside the car would only have rendered the car without fuel for a relatively short time. Further, although TG said he returned the battery he borrowed from the vendor immediately after the car was delivered to the farm, that did not prevent another battery being installed. The Crown referred to TG’s evidence that the car “could’ve been driven if some work was done on it” and saying that he wasn’t there. There was also the evidence of the complainants’ brother, JJ, and their father who both said the car was driveable and was driven when it was at the farm, including taking kids for a drive. [98]

8. [159]

   As to the inconsistencies between AA’s evidence and her mother’s recollection of her complaint, the Crown referred to the mother’s evidence to the effect of being pre-occupied cooking dinner at the time and also wanting to deflect this and other conversations about abuse because of the presence of her son. [99]

9. [160]

   In response to the submission about AA’s account not being supported by other potential witnesses including BB and JJ, the Crown submitted that BB was not asked about the demolition derby car and JJ’s evidence was that children were taken for a drive in it. [100]

Determination of Ground 1 in respect of Count 9

1. [161]

   If describing TG’s evidence that all but the driver’s seat had been removed before delivery of the car to the farm as a “Pell issue” was intended to liken it to the “solid obstacles to conviction” constituted by unchallenged evidence in that case, then the description is quite inapt. There was much controversy about whether TG’s evidence could be accepted as is evident from the summary of the closing addresses. The evidence was not all one way on the issue of whether the car was driveable whilst at the farm and whether there was more than just a driver’s seat. It was well open to the jury to act on the evidence relied upon by the Crown.

2. [162]

   The asserted inconsistencies between AA’s evidence of what occurred and what her mother recalled as to what AA had said in February-March 2014 about it was a matter for the jury to evaluate. It is significant, however, that counsel appearing for the applicant at trial did not address the jury about the mother’s evidence of AA’s complaint having included that, “he put his fingers in me in the car”. That was what the mother had said in her evidence-in-chief when she was relying solely upon her memory some 4½ years after the conversation with her daughter had occurred, repeatedly saying that her memory would have been fresh at the time she made a statement. The version in the statement was simply that, “he did it”. That was the point upon which the Crown had obtained leave to cross-examine the mother which was not opposed. The mother then agreed that what was in her statement was correct. [101]

3. [163]

   Similarly, the jury might not have troubled themselves to speculate as to the absence of evidence of BB and the applicant’s children in circumstances where no point was sought to be made about it by counsel for the applicant. There was the evidence of JJ about the applicant taking children for rides in the car. Further, it was not AA’s evidence that the touching occurred when other children were present in the car; that only came in as an inconsistent recollection of her mother as to what AA had said.

4. [164]

   There were a number of controversies about the evidence concerning Count 9. They were all matters for the jury to consider but they did not, either individually or collectively, require the return of a verdict of not guilty. A conviction was well open.

Evidence as to Count 10 (“the Sponge Bob birthday cake incident”)

1. [165]

   This incident is alleged to have occurred in the lounge area of the back bedroom of the grandparents’ home.

2. [166]

   AA said that this incident occurred one or two days before the birthday of a cousin who was turning seven. She recalled there was a SpongeBob birthday cake. (Others recalled this as well.) She described the incident in the following terms: [102]

3. [167]

   In cross-examination she said that this incident occurred on the recliner chair. She was challenged about having said in the 9 April 2014 interview that it was on “their lounge but I think on the other lounge” but maintained it was the recliner chair. She denied a proposition that the event “did not happen at all”. [103] There was then this evidence: [104]

4. [168]

   The applicant’s wife made a SpongeBob birthday cake for one of her children for his birthday in January 2012. AA was aged 8 at this time. There was a party attended by the extended family at the home of the complainants’ grandparents.

5. [169]

   The Crown Prosecutor simply reminded the jury of the evidence, including AA’s initial recollection that the event occurred on a lounge but in evidence said it was on the recliner.

6. [170]

   Defence counsel was similarly brief, confining his submission to an assertion that the evidence was sparse in details and that AA was unable to say anything else about it. For those reasons, the jury could not accept it with confidence, let alone beyond reasonable doubt. [105]

Submissions as to Count 10

1. [171]

   In this Court, the applicant’s submission was as follows: [106]

2. [172]

   In oral submissions, emphasis was placed upon the use by AA of both “in my wee” and “on my wee” in her account, as well as alternating between “under” and “on” her clothing. In the face of evidence of good character and a sworn denial, it was submitted there was insufficient for proof beyond reasonable doubt. [107]

3. [173]

   The Crown submitted that the issue raised primarily concerned two white lounge/recliners in the lounge room area of the section of the home occupied by the applicant and his family. These pieces of furniture were within metres of one another. The first account by AA was given in her interview of 9 April 2014 and the second account was in her evidence on 14 September 2016. When confronted with the inconsistency she explained an interchangeable use of the terms “lounge” and “recliner”.

Determination of Ground 1 in respect of Count 10

1. [174]

   There are no reasonable doubts in respect of other counts that concern the credibility of AA that carry through to a consideration of Count 10 and, as indicated earlier, the evidence of the applicant’s prior good character is relevant in considering the asserted unreasonableness of each of the convictions impugned under Ground 1.

2. [175]

   The variations in descriptions provided by AA within and between the two occasions upon which she has been questioned about this incident were clearly matters for the jury to consider and weigh.

3. [176]

   The evidence of AA using the terms “recliner” and “lounge” interchangeably was available as an acceptable explanation. Earlier in her interview on 9 April 2014 when describing the incident upon which Count 11 was based, she referred to the applicant being on “the lounge” when she was obviously referring to the recliner. [108] Indeed, the jury may have considered she was doing the same thing in her answer to Q374 when speaking about the Count 10 incident. There she said it was “the same as the first time”. She had described the “first time” incident as occurring on the recliner. But she continued in that answer to say that she “went and sat on the side of the lounge”. The jury could well have thought she was referring to the recliner then, just as she did in her evidence over two years later.

4. [177]

   Nothing in the points raised by the applicant in relation to this Count, both before the jury and now, compelled a conclusion of not guilty; a verdict of guilty was well open to the jury to return.

Evidence as to Count 11 (“the Christmas present wrapping incident”)

1. [178]

   The incident upon which Count 11 was based was described by AA as occurring on the recliner chair in the lounge area at the back of her grandparents’ home. [109]

2. [179]

   It was an agreed fact that the applicant and his family moved out of this residence in September 2012.

3. [180]

   AA described in her interview of 9 April 2014 what she said was the last incident of touching that occurred. She said it was two or three years ago, probably two weeks before Christmas, when she was probably eight or nine years of age. (Count 11 was framed as having occurred between 1 and 25 December 2012.) She recalled Christmas decorations being up and “they had a counting down Christmas chart”. AA said she was helping her aunt (the applicant’s wife) wrapping up presents. The applicant called her over into the lounge area of the room. She was not sure if her aunt heard him calling but he was sitting “on his lounge” (subsequently described in a way that made clear she was referring to the recliner). He pulled her over to sit down, and then touched her “in my wee” but “on top of the clothing”. His hand was “on top” of her “wee” for three seconds and then she pushed herself away. [110]

4. [181]

   AA was cross-examined at some length about this incident in the 2016 trial. Nothing about it was mentioned in the applicant’s written submissions. However, it included the following that was referred to in the Crown Prosecutor’s closing address: [111]

5. [182]

   The applicant’s wife’s evidence-in-chief was limited to her saying that there was never an occasion when she was wrapping presents whilst AA was in the room with her. She said she would usually wrap Christmas presents while the children were at school and not at other times. [112] Contradictory of AA, she denied in cross-examination that there were Christmas decorations, although consistently with AA who said there was a “counting down Christmas chart” she did say there was a “cardboard Advent calendar that you take chocolate out of every day”. She was, however, speaking about Christmas times generally and not specifically about Christmas 2012. [113]

6. [183]

   In cross-examination she said she had never wrapped any Christmas presents with the children or anyone else. [114]

7. [184]

   The applicant’s father-in-law said in cross-examination that the last occasion he recalled seeing AA and BB (and JJ) was on Christmas Day in a year he could not remember. He agreed that the last occasion when they had visited was about six months before.

8. [185]

   He described the Christmas day visit as involving his wife answering the door. BB was there but she did not come inside. AA and JJ were also there, and they came in and stayed for about three hours. The applicant and his wife were not present during that time. He understood they had been to the applicant’s mother’s home before they arrived at the grandparents’ home late at night. [115]

9. [186]

   The applicant’s mother-in-law gave similar evidence in cross-examination about the visit on Christmas day (she agreed it was in 2012) and that it had been since about the middle of the year that they had last been to the house. She also agreed that the applicant and his wife were not present, they usually had Christmas lunch at the applicant’s mother’s home and did not come to her home until about 4 to 4:30 PM. [116]

10. [187]

    The complainants’ mother recalled that the last time she took the children to their grandparents’ home was around Christmas of 2012. [117]

11. [188]

    Counsel for the applicant cross-examined the mother about a disclosure by AA in 2014 of an incident that had occurred on the last occasion AA had been at her grandparents’ home. As counsel put it from the mother’s statement of 21 March 2014 (which was not dissimilar to her recollection when giving evidence 4½ years later [118] ), the conversation between AA and her mother was as follows: [119]

12. [189]

    The applicant denied the Count 11 incident. He said it was not possible that AA was present while his wife wrapped Christmas presents because she would never let any of the kids be present while that sort of thing was going on.

13. [190]

    He and his wife were not living at his parents-in-laws’ home in December 2012 as they had moved to another home.

14. [191]

    He was not present at their home on Christmas Day. Traditionally he and his wife would go to his parents’ place for lunch and then in the evening they would go to the in-laws’. That said, he had no particular recollection of Christmas Day in 2012. [120]

15. [192]

    The Crown Prosecutor submitted that the passage of the cross-examination of AA by counsel for the applicant quoted above was not inconsistent with what the applicant and his wife had said, namely that the applicant’s wife never wrapped presents in front of the children because she did not want them seeing what the presents were. As described by AA, these presents were already wrapped.

16. [193]

    The applicant had said that he and his wife would arrive at his in-laws’ home at “about 4.00, 5.00, something like that”, but the Crown Prosecutor suggested this was not reliable because he was giving evidence of a usual practice and was not speaking specifically about Christmas Day 2012. The same would apply to the evidence of the grandmother. [121]

17. [194]

    Counsel for the applicant submitted that there was no opportunity for the offence to have been committed having regard to the evidence of the children not being at their grandparents’ home for months and that, when AA was there on Christmas Day, the applicant was not.

18. [195]

    Moreover, the jury would accept the evidence that the applicant’s wife never wrapped Christmas presents in front of children.

19. [196]

    In addition there were the terms of the disclosure made in 2014 by AA to her mother that described the incident occurring when the children were receiving their Christmas presents. For all these reasons, this incident did not happen. [122]

Submissions as to count 11

1. [197]

   The applicant submitted that the jury should have had a reasonable doubt in respect of Count 11 for three reasons. [123] The first was that evidence of his wife about not wrapping Christmas presents in the presence of children was entirely capable of belief.

2. [198]

   Secondly, AA gave an inconsistent account of this incident when complaining to her mother. It included that the applicant made her touch his penis; it occurred in the context of the children receiving presents; and that the offence occurred underneath a blanket.

3. [199]

   Thirdly, AA had told her mother that the incident occurred on Christmas Day which not only conflicted with AA’s evidence that it occurred “probably two weeks before Christmas”, but also was contradicted by the evidence of the applicant, his wife and both his parents-in-law.

4. [200]

   In oral submissions, reference was made to the agreed fact that the applicant and his family had moved out of the parents-in-laws’ home in September 2012, making it highly improbable that the applicant’s wife would be wrapping presents there. [124]

5. [201]

   The Crown submitted that the evidence of the applicant’s wife not wrapping presents in front of children assumed that the presents were for others within the family. The jury may well have found the unqualified assertion that she never wrapped a present in the presence of another person, whoever it was for, difficult to accept. [125]

6. [202]

   The inconsistency between the mother’s evidence as to what she was told by AA and AA’s evidence needed to be considered in the light of the mother’s difficulty in recalling precisely what was said and also that she was pre-occupied with other thoughts and the presence of a younger child. [126]

7. [203]

   The possibility of the incident occurring on Christmas Day depended upon acceptance of the accuracy of the mother’s account. If it was Christmas Day, there was an issue as to whether the grandparents’ account of the events of that day was accurate or a description of what usually occurred. [127]

Determination of Ground 1 in respect of Count 11

1. [204]

   An assessment of the credibility of witnesses, including the complainant AA, was amply within the province and capability of the jury. Contradictions and inconsistencies were present, but the jury had the benefit of weighing them with the benefit of having seen and heard it all, albeit that some of it was in pre-recorded form. The jury were clearly satisfied that AA was a credible witness.

2. [205]

   There is left, however, an issue that was not satisfactorily addressed by the Crown in the sense of providing an answer to counter the difficulty identified by the applicant. It was an agreed fact that the applicant and his family moved out of his parents-in-law’s home in September 2012. Why then would the applicant’s wife be there wrapping presents in the bedroom area of the back room three months later in the lead up to Christmas? Why would the applicant be sitting in his recliner chair in the lounge area of that room while his wife was doing so?

3. [206]

   AA described the event as occurring on a day “probably 2 weeks before Christmas” when “it was dad’s turn to have us kids”. Her mother said in her statement of 21 March 2014 (when her memory was no doubt better than it was when giving evidence in August 2018) that “about halfway through 2012, I got full custody of the children again and I stopped all contact with his side of the family”. [128] It was, however, common ground that the children (AA and JJ at least) did visit the grandparents’ home on Christmas Day in 2012.

4. [207]

   If it is possible that the event occurred on Christmas Day, it is possible that the applicant and his wife were present earlier on that day than they and the parents-in-law asserted. However that still raises a question as to why the applicant’s wife would then be wrapping presents in the bedroom area of the back room with the applicant sitting in his recliner chair nearby.

5. [208]

   The difficulties arising from the undisputed fact that the applicant and his wife moved out of the applicant’s parents-in-laws’ home in September 2012 was not a subject of any submissions made to the jury or referred to in the summing up of the trial judge.

6. [209]

   The unanswered questions arising from it raise reasonable doubt as to the applicant’s guilt in respect of Count 11. The conviction should be quashed.

Ground 2B: The trial miscarried on account of the evidence of A/P Shackel in the trial

1. [210]

   Section 79 of the Evidence Act 1995 (NSW) provides:

2. [211]

   Section 79(2) was inserted into the Evidence Act by the Evidence Amendment Act 2007 (NSW). At the same time s 108C was inserted. That section, dealing with the credibility rule, largely mirrored s 79(2), and provides that the credibility rule does not apply to evidence given by a person concerning the credibility of another witness if the evidence is expert opinion evidence and the Court gives leave to adduce it. In the same way as s 79(2) includes specific reference to specialised knowledge of child development and child behaviour, so too does s 108C.

3. [212]

   Professor Shackel is an Associate Professor and Associate Dean in the School of Law at the University of Sydney. She has undergraduate degrees in psychology, law, and pure mathematics, a Master of Arts in psychology, and a PhD which looked at the use of expert testimony in child sexual assault cases. Her thesis focused on analysis of psychological and related research, and what that body of research demonstrated with respect to how victims of child sexual assault respond to their victimisation.

4. [213]

   By the time of the present trial in August 2018, differences of opinion had emerged amongst District Court judges about whether the evidence of Professor Shackel was admissible in criminal trials of those accused of committing sexual offences against children: Aziz v R [2022] NSWCCA 76 at [37]-[39]; AJ v R [2022] NSWCCA 136 at [60].

5. [214]

   A voir dire was heard concerning the admissibility of Professor Shackel’s report. In his judgment, the trial judge said this:

6. [215]

   In his reasons, the trial judge made reference to s 79 permitting opinion evidence as to the development and behaviour of children who have been sexually assaulted.

7. [216]

   This Court’s decision in Aziz, given on 13 April 2022, vindicated the present trial judge’s judgment in admitting Professor Shackel’s report on the first of the topics identified. At the time the notice of appeal was filed in the present matter, the decision of Aziz had not been delivered. The submissions prepared on behalf of the applicant were prepared without the benefit of the decision in Aziz.

8. [217]

   Subsequently, this Court gave judgment in AJ on 24 June 2022. In that case there had also been a challenge to the admissibility of Professor Shackel’s opinion on the behavioural responses of victims of child sexual abuse, but there had also been a challenge to her evidence concerning the patterns of offending behaviour by perpetrators.

9. [218]

   The Court in AJ followed Aziz in relation to Professor Shackel’s evidence about the responses and behaviour of children but rejected the evidence of Professor Shackel concerning the offending patterns of perpetrators as evidence which did not fall within s 79(2) or s 108C in that it did not concern “child development”, “child behaviour” or the “development and behaviour of children”. Further, Professor Shackel was held not to be an expert on the behaviour of perpetrators.

10. [219]

    Significantly, in that regard, Beech-Jones CJ at CL said at [83]:

11. [220]

    The decision in Aziz resulted in the abandonment by the present applicant of Ground 2A which had challenged the admission of Professor Shackel’s evidence as opinion evidence. It also resulted in a recalibration, to some extent, of the submissions in relation to Ground 2B, because the submissions had relied as a basis for asserting a miscarriage of justice, on the fact that the report had been admitted in the first place. However, that was not the only basis put forward in support of Ground 2B.

12. [221]

    The applicant submitted that Professor Shackel’s qualifications did not meet any criteria that would permit admission of opinion evidence as to:

13. [222]

    The applicant submitted that Professor Shackel provided an opinion on the following matters which did not fall within her qualifications that would permit admission as opinion evidence:

14. [223]

    The applicant submitted that it was never made clear to the jury what intra-familial relationships were, whether they were confined to parent-child relationships or included a broader concept of family.

15. [224]

    The applicant submitted that there was prejudicial reasoning attaching to the evidence by the use of terms “victims” and “perpetrators”. Reliance was placed on what was said by the Victorian Court of Appeal in Jacobs v The Queen [2019] VSCA 285 at [60] and M v The Queen [2011] NZCA 191.

16. [225]

    The applicant submitted that the evidence of Professor Shackel as to counterintuitive conduct was not relevant to meet the defence case in relation to BB given the highly exceptional circumstances of her complaint.

17. [226]

    The Crown submitted that the delayed disclosure of the alleged abuse by AA and BB was a significant issue in the proceedings. Further, the Crown submitted, AA was cross-examined at some length about what might be regarded as counterintuitive aspects of her behaviour. The Crown submitted that the evidence of Professor Shackel was relevant to questions that might arise in the minds of the jury concerning the complainants’ conduct and, therefore, their reliability and credibility.

18. [227]

    The Crown submitted that Professor Shackel’s evidence served an educative function and was not relied upon to establish that either or both of the complainants were telling the truth. The Crown submitted that the use the Crown made of Professor Shackel’s evidence was consistent with what this Court held in both Aziz and AJ.

19. [228]

    The Crown submitted that Professor Shackel used the terms “victims” and “perpetrators” because they were the terms used in the research to which she was referring.

20. [229]

    The Crown submitted that there was no real risk that the jury would, if they concluded that an aspect of AA’s or BB’s behaviour bore similarity to that referred to by Professor Shackel, conclude that it necessarily followed that the applicant must have sexually abused one or both of them.

21. [230]

    Section 79(2) makes clear that specialised knowledge includes such knowledge of child development and child behaviour including the impact of sexual abuse on children and their development and behaviour, and that an opinion can be given about those matters.

22. [231]

    In AJ, Beech-Jones CJ at CL (with whom Harrison J agreed) set out at [64] some of the evidence given by Professor Shackel in that case including this evidence:

23. [232]

    Justice Beech-Jones then said:

24. [233]

    It may be observed that one of the significant matters about which Professor Shackel gave evidence in AJ was the relationship of the perpetrator to the child, and the fact that the abuse occurred within a “familial situation”. Where that evidence was said in AJ to concern “the behavioural response of child victims to sexual abuse”, it is difficult to understand the objection of the applicant to the same kind of evidence given by Professor Shackel in the present matter. That the abuse occurred within the familial situation was a very significant explanation for much of what Professor Shackel described as the child’s behaviour during and after the abuse.

25. [234]

    The following passages in Professor Shackel’s evidence in the present matter were said by the applicant to fall outside the range of her qualifications: [129]

26. [235]

    All of that evidence falls squarely within the type of evidence approved by Beech-Jones CJ at CL in AJ. It may be seen that many of the matters extracted by the applicant at [222] above overlap, and concern the relationship of the child to the perpetrator.

27. [236]

    The applicant also challenged this further evidence of Professor Shackel: [130]

28. [237]

    This evidence is, again, concerned entirely with the relationship between the child and the perpetrator, and the effect that such a relationship has on the child’s behaviour. It will also be apparent that Professor Shackel distinguished between intrafamilial situations and abusers who were strangers. The question of who might fall within the scope of “intrafamilial” will vary from family to family and case to case. It is not helpful to be prescriptive in that way, and any failure to define more closely what constitutes an intrafamilial relationship neither detracted from the evidence nor gave rise to the risk of a miscarriage of justice by its being adduced.

29. [238]

    The applicant then challenged some further evidence of Professor Shackel on the basis that it was discussing where and when the abuse was likely to occur. The applicant submitted that this was outside the Professor’s qualifications and expertise: [131]

30. [239]

    With the exception of the questions and answers in italics above, all of the above evidence was again concerned with the response and behaviour of children during and after the abuse by reason of the family relationship. The reference to the abuse happening in the context of “everyday activities” was an explanation of why the child might react (or not react) in a particular way. That was evidence well within Professor Shackel’s expertise.

31. [240]

    The answers in italics might, on one level, be thought to be outside the Professor’s expertise, but they followed on, and were seemingly triggered by the Professor’s answer that abuse often takes place within the home and in the context of everyday activities. In any event, her knowledge of what is contained in those two answers is very likely to have been obtained by her study of the cases which are the basis of the research. In our opinion, the questions and answers in italics were so closely related to the general discussion of the reactions and behaviour of children, that the evidence was not objectionable. Even if the questions and answers were inadmissible, the answers could not have given rise to a miscarriage of justice.

32. [241]

    What constitutes a miscarriage of justice was discussed recently by Simpson AJA (Hamill and Ierace JJ agreeing) in Saunders v R [2022] NSWCCA 273. After referring to Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 and the commentary on those case by this Court in AK v R [2022] NSWCCA 175, Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 and Zhou v R [2021] NSWCCA 278, Simpson AJA said:

33. [242]

    If the evidence concerning where much sexual abuse occurred and in what circumstances was outside the Professor’s expertise, it is difficult to see how it could have had a prejudicial effect on the applicant’s prospect of acquittal. The evidence added nothing to what was already before the jury, which was that most of the incidents took place in the homes of the victims or their families, and in close proximity to other family members.

34. [243]

    The Crown referred to Professor Shackel’s evidence on three occasions during her final address. In mentioning BB’s evidence, the Crown said: [132]

35. [244]

    The Crown later dealt with Professor Shackel’s evidence in some detail as follows: [133]

36. [245]

    Finally, the Crown said this: [134]

37. [246]

    Nothing was said by the Crown about the evidence contained in the two answers in italics at [238] above. That is a further factor to be taken into account in assessing whether the evidence led to a miscarriage of justice.

38. [247]

    No specific complaint is made about the Crown’s closing address, but it is clear, in any event, that nothing was said by the Crown to give rise to what is now put forward by the applicant, that the jury might have used the evidence of delayed reporting to conclude that the children had been sexually abused. This concern was said to be particularly related to appropriate directions (or the absence of directions) from the trial judge. It will be further considered when Ground 2C is being dealt with. The complaint in Ground 2B was based on the adducing of the evidence in the first place, and the limits on that.

39. [248]

    It is convenient at this point to say something about the approach of defence counsel at the trial, with a view to a consideration of whether a miscarriage of justice occurred. Although the Crown conceded that, by virtue of the objection taken by counsel for the accused at the commencement of Professor Shackel’s evidence, no question arises regarding r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in relation to this ground, that is not a final answer in relation to this ground of appeal.

40. [249]

    At the outset of the Professor’s evidence the following exchanges took place: [135]

41. [250]

    In our opinion, the objection was correctly overruled. First, the evidence was not only being led about delays in reporting, although that was a significant aspect of the evidence. Secondly, and more importantly, Professor Shackel was quite properly giving evidence about the methodology of the research, before coming to its substance. She was not giving evidence about perpetrators and their behaviour, motivations and methods.

42. [251]

    Thereafter, counsel made no objection to any of the evidence led from Professor Shackel. No objection was taken to the evidence about what was meant by “familial situation” or questions about when and where the abuse often takes place, as is now sought to be done on this appeal. Such objections were not precluded by the trial judge’s rejection of counsel’s earlier objection. Further, counsel did not object to the use of the terms “victims” and “perpetrators”, although that evidence is now criticised in this appeal.

43. [252]

    There was no cross-examination of Professor Shackel, even if only to get clarification of who might be within her description of the “familial situation”; that is another matter raised by the applicant on the present appeal, particularly with regard to AA and BB who had been out of touch with the applicant for at least two years by the time of their complaints.

44. [253]

    In Orreal v The Queen [2021] HCA 44; (2021) 96 ALJR 78; 395 ALR 631 Kiefel CJ and Keane J said at [16]:

45. [254]

    Although r 4.15 does not apply by reason of the Crown’s concession, it cannot be said any miscarriage of justice has occurred by the leading of the evidence.

46. [255]

    The criticism that the terms “victims” and “perpetrators” were used is misplaced. For a start, s 79(2) uses the term “victims”. In any event, as Professor Shackel explained, the research was done on cases which had been determined and where the terms aptly applied. The research would not have any cogency unless it was based on the conduct and responses of actual perpetrators and victims. It would have been entirely artificial for Professor Shackel to use terms other than those when discussing the research, particularly because her evidence was not about what had happened in the present case. When the evidence concerned only the research, it cannot be concluded that the jury might somehow have similarly labelled the accused with the designation “perpetrator” simply because of the evidence given about the research. We have already noted that no objection was made by defence counsel to the use of these terms. This is a good indication that in the atmosphere of the trial no prejudice was occasioned by their use.

47. [256]

    In our opinion, having regard to the whole of Professor Shackel’s evidence, it was not such that it might have had a prejudicial effect on the accused’s prospects of acquittal. No miscarriage of justice occurred.

Ground 2C: The trial miscarried on account of the trial judge’s directions to the jury concerning the evidence of A/P Shackel

1. [257]

   The trial judge made three references in his summing up to the evidence of Professor Shackel. The first reference to it was when the trial judge was discussing complaint evidence. His Honour said: [136]

2. [258]

   The second reference to it was in the context of giving the jury the usual direction about what expert evidence is, and whether the jury should act on that expert evidence. In the course of that direction the trial judge said: [137]

3. [259]

   The third mention of Professor Shackel’s evidence was when the trial judge was summarising the Crown’s closing address to the jury. His Honour said: [138]

4. [260]

   At the end of the summing up, the trial judge asked if there was anything arising, and both the Crown prosecutor and defence counsel said there was not. [139] Since complaint is now made about the absence of what is said to be an adequate direction about Professor Shackel’s evidence, r 4.15 applies.

5. [261]

   In The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 the joint judgment of Keifel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ said at [37]:

6. [262]

   In Hamilton v The Queen [2021] HCA 33; (2021) 95 ALJR 894, the joint judgment of Kiefel CJ, Keane and Steward JJ said:

7. [263]

   The applicant made a number of complaints about the directions or lack of directions from the trial judge. First, the applicant submitted that Professor Shackel’s evidence went beyond her expertise. This complaint was dealt with when considering the previous ground of appeal (Ground 2B). Except, arguably, for the questions and answers in italics set out at [238] above, the evidence did not go beyond Professor Shackel’s expertise. For reasons given earlier, those questions and answers did not give rise to a miscarriage of justice, and no direction was needed in respect of them. It is not surprising that counsel did not seek a direction about them because it would have served only to emphasise other evidence about the way the applicant engaged in the abuse.

8. [264]

   Secondly, the applicant again criticised the use of the words “victims” and perpetrators”, and on two occasions “abuser”. This matter was dealt with in connection with Ground 2B. It did not need a direction from the trial judge.

9. [265]

   Thirdly, the applicant submitted that Professor Shackel’s evidence carried the distinct risk that any correlation between what the research into proven instances of child sexual abuse and the facts alleged in the applicant’s case would be used by the jury to bolster impermissibly AA’s and BB’s credibility and to conclude impermissibly that the applicant was guilty. The applicant submitted that the judge made the very error Professor Shackel’s evidence encouraged when he used the term “victims” in the passage set out at [258] above. The applicant said that a warning was needed that the jury should not use the evidence for credibility reasoning in relation to the complainants. The applicant submitted that, in that way, that trial judge, rather than speaking to the educative purpose of the evidence, referred to it in a way which suggested to the jury that it was supportive of the Crown case. Reference was made to what was said in Jacobs at [58] to [61] and SB v R [2020] NSWCCA 207 at [148] and [151]-[154].

10. [266]

    Finally, the applicant submitted that the trial judge did not address the way the evidence could not be used. The applicant then set out in his written submissions various directions which he said the trial judge should have given.

11. [267]

    These two matters can be dealt with together.

12. [268]

    The particular concern of the applicant was said to be that the jury might misuse the evidence in the way set out in the New Zealand Court of Appeal’s decision in M v The Queen at [32] (set out in Jacobs at [60]) as follows:

13. [269]

    A reading of the whole of the summing-up satisfies us that the trial judge clearly outlined the relevance of Professor Shackel’s evidence to the reactions, responses and behaviour of the complainants, particularly as to delay in making complaint. We do not consider that what was said by the New Zealand Court of Appeal in M v The Queen should be adopted as laying down an invariable prescription where this type of evidence is led. The need for a warning or direction about how the evidence may not be used will frequently depend on the way the evidence is led, whether the evidence is challenged in cross-examination, how the Crown uses the evidence in closing address, and the approach taken by defence counsel at the trial.

14. [270]

    The trial judge in his judgment on the admissibility of Professor Shackel’s evidence ruled that evidence could not be given by the expert on the behaviour of the particular complainants. No attempt was made to do so by the Crown. In her closing address, the Crown prosecutor did not do otherwise than refer to Professor Shackel’s evidence as demonstrating what was not unusual for children who had been abused. That was mainly concerned with delay in reporting, and to meet any submission made by defence counsel about what should flow from such a delay. Such a submission was in fact made by defence counsel.

15. [271]

    Even absent evidence of the type given by Professor Shackel, a trial judge would normally give a direction (set out in the Criminal Trial Courts Bench Book at [5-055]) about delay in making complaint: s 294 Criminal Procedure Act 1986 (NSW). Such a warning is not required to warn positively that the evidence says nothing about the credibility of the particular complainant; rather, pursuant to s294(2)(c) the judge must not direct the jury that the delay is relevant to the complainant’s credibility unless there is sufficient evidence to justify such a direction. All of this is the justification for what Beech-Jones CJ at CL said in AJ at [69], that a direction is preferable to evidence about the matter.

16. [272]

    As the High Court said in Dookheea, the reaction of defence counsel to the summing-up is a cogent consideration.

17. [273]

    At the conclusion of the evidence, and on the following day, the trial judge discussed with counsel what directions they wanted him to give. During the course of that discussion, the trial judge read out part of what he said he would say about the evidence of Professor Shackel. That included this statement: [140]

18. [274]

    Whilst defence counsel sought a number of directions, including what he called a Ewen direction (from Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544), and a direction under s 165B of the Evidence Act, no directions were sought in relation to Professor Shackel’s evidence. As noted earlier, at the conclusion of the summing-up, when asked, neither counsel sought any further directions.

19. [275]

    Where the trial judge told counsel what he intended to say, and not say, about Professor Shackel’s evidence, it cannot be suggested that the omission by defence counsel to seek the sort of directions now put forward was a mere oversight. Moreover, where the trial judge did not, in substance, go beyond what he said he would say, the strong likelihood is that defence counsel saw no need for anything further in the atmosphere of the trial, and in the way it had been conducted.

20. [276]

    In our opinion, no further directions were required. No miscarriage of justice has been established to justify the grant of leave on this ground by reason of r 4.15.

Response to the quashing of the conviction on Count 8

1. [277]

   The parties were granted leave to provide further submissions after the hearing as to the course that might be taken if the applicant’s challenge to his conviction on Count 8 succeeded only on the basis that the evidence did not prove the necessary element of “sexual intercourse” beyond reasonable doubt. That is what has occurred.

2. [278]

   Aside from doubt as to whether there was penetration that made out the element of “sexual intercourse” (in this case “penetration to any extent of the genitalia … of a female person … by … any part of the body of another person” [141] ), it is clearly the case the jury were satisfied beyond reasonable doubt that the applicant committed an act constituting an offence of indecent assault of a person under the age of 16 years. That is an offence contrary to s 61M(2) of the Crimes Act for which the maximum penalty was imprisonment for 10 years.

3. [279]

   There is power in the Criminal Appeal Act 1912 (NSW) for the Court, upon allowing an appeal and quashing a conviction, to substitute a verdict for another offence. Section 7 provides, relevantly:

4. [280]

   The parties agreed that if the Court upheld either of Grounds 2B or 2C, it would not be appropriate to substitute a verdict on Count 8 for another offence. They were not in agreement as to what should occur in the event, and as it transpires, the Court dismissed both of those grounds.

5. [281]

   The applicant submitted that the Court should not substitute a verdict for an offence contrary to s 61M(2) because it was not an offence that was a statutory alternative to an offence contrary to s 66A(1) as at the date of the offence charged and the Crown Prosecutor specifically responded to a question by the trial judge by stating that it did not intend to rely upon a statutory alternative for any count. The trial judge directed the jury that if they were not satisfied of either of the two elements of the offence in Count 8 they were to acquit the accused. [142]

6. [282]

   The Crown responded that the fact a s 61M(2) offence was not a statutory alternative, or was included as an alternative on the indictment, is a relevant matter but not determinative. It submitted: [143]

7. [283]

   We agree with the Crown submissions. In the terms of 7(2), we are satisfied that “the jury must have been satisfied of facts which prove the [applicant] guilty of that other offence”, in this case an offence against s 61M(2).

Re-sentencing

1. [284]

   The parties also made supplementary submissions on what action should be taken in the event Grounds 2B and 2C were dismissed but any or all of Ground 1 were upheld, thereby giving rise to a need to re-sentence.

2. [285]

   The Court has a supplemental power to remit the matter to the District Court for re-sentence pursuant to s 12(2) of the Criminal Appeal Act. The power is expressed in broad terms: “may remit a matter or issue to a court of trial for determination”. Its deployment in relation to an issue of re-sentencing was considered in Campbell v R [2018] NSWCCA 87 at [72].

3. [286]

   The applicant has been in custody since 30 August 2018. The appeal was confined to conviction and so no material in respect of sentence had been gathered concerning events since he was sentenced. The intervening period has included the pandemic and the general increase in the severity of custodial conditions that it caused. It was submitted that the Court should exercise the supplemental power and remit.

4. [287]

   The Crown did not oppose this course being taken. It further observed that doing so would preserve the usual appeal rights of both parties.

5. [288]

   We accept these submissions as proposing a sensible and practical course and will remit the matter to the District Court for re-sentencing.

Orders

1. [289]

   We make the following orders:

   1. (1)

      Extend time for the filing of the notice of appeal to 16 May 2022.

   2. (2)

      Refuse leave to appeal in respect of Ground 2C pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   3. (3)

      Grant leave to appeal in respect of Grounds 1 and 2B and allow the appeal in part.

   4. (4)

      Quash the conviction on Count 8 and pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) substitute a verdict of guilty of indecent assault upon a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW).

   5. (5)

      Quash the conviction on Count 11 and enter a verdict of acquittal.

   6. (6)

      Quash the aggregate sentence imposed in the District Court on 30 November 2018.

   7. (7)

      Pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW), remit the matter to the District Court for re-sentencing in respect of the convictions on Counts 1, 2, 3, 4, 7, 8, 9 and 10.

   8. (8)

      List the matter for mention in the District Court at Sydney on 10 March 2023 at 9.30am.