RM v R

1. [1]

   ADAMSON JA: RM (the applicant) was charged on indictment with 11 counts of sexual offending against his biological daughter (the complainant). On 27 March 2023, following a trial by jury over which Abadee DCJ (the trial judge) presided, the jury returned guilty verdicts on all 11 counts. The applicant was convicted and on 11 August 2023 the trial judge imposed an aggregate sentence of imprisonment of 12 years commencing on 3 January 2023 and expiring on 2 January 2035, with a non-parole period of 8 years and 5 months, expiring on 2 June 2031. The applicant does not challenge the sentence imposed.

2. [2]

   The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against each of the convictions on the single ground that “the verdicts were unreasonable and unsupported by the evidence”.

3. [3]

   For the reasons which follow, I am not persuaded that any of the verdicts are unreasonable, with the exception of the verdict with respect to count 5.

4. [4]

   In order to address such a ground, this Court is required to consider all of the evidence adduced at the trial to determine whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of the applicant’s guilt of the charges of which he was convicted. The principles which apply to such a ground will be addressed later in these reasons. What follows is a narrative which is derived from the evidence adduced in the Crown case.

The indictment

1. [5]

   The 11 counts of which the applicant was charged (and ultimately convicted) were as follows:

2. [6]

   It is not necessary to set out the indictment in full. However, the terms of count 5 are significant because of the applicant’s submission that it was not open to the jury to prove beyond reasonable doubt that the complainant was under the age of 14 years at the time of the offending as required to make out an offence contrary to s 66C(2) of the Crimes Act. Count 5 on the indictment was in the following terms:

3. [7]

   Section 66C of the Crimes Act relevantly provided:

4. [8]

   Section 80AB(9) of the Crimes Act (formerly s 66E(4)) relevantly provides:

5. [9]

   Section 80AF of the Crimes Act provides:

6. [10]

   Section 7(2) of the Criminal Appeal Act 1912 (NSW) provides that:

7. [11]

   Section 12(2) of the Criminal Appeal Act provides that this Court “may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.”

The trial

1. [12]

   The complainant was born in January 2002 and was 21 years old when she gave evidence at the trial. The applicant is her father; his wife is her mother; and she has a brother, BM, who is about four years older than she is. The complainant was born with a congenital heart disease which required several operations, including an aortic valve replacement on 21 July 2014, when she was 12. The effect of this disease was that the complainant had considerably less energy than her peers, was sometimes out of breath and could not do a lot of exercise or activities which required exertion. She needed help with day-to-day tasks, such as washing her hair and doing laundry.

2. [13]

   The complainant grew up in a suburban house near Mount Druitt with the applicant, her mother, BM and her maternal grandparents. Her parents had lived in the house since about 1994. The complainant initially occupied one bedroom in the house (her original bedroom) but after she came home following her heart surgery she moved to a larger bedroom in the house, which was off the kitchen and dining rooms (her second bedroom). Her parents always occupied the same bedroom in the house, as did her brother.

3. [14]

   Between 2011 and 2017 the applicant worked night shifts and was generally not home at night time. According to the complainant’s mother, in July 2020, the applicant was working in Lidcombe as a forklift driver and had been in that position for the previous nine and a half years, having started in the “night shift, and then he went to afternoon shift”. When he did the night shift, he would leave home at about 8pm and come home at around 5am. When he was working afternoon shifts, he would start at about 1pm or 1.30pm and would typically return home at around 9pm. He worked five days a week. The complainant’s mother would go to bed at around 9.30pm but the applicant would “normally stay up for a couple of hours to wind down [and] watch a movie or TV or play on the PlayStation … in the lounge room or in the other room [the spare room]”.

4. [15]

   The complainant agreed that sometimes when she was unwell at night, she would call out for help. Sometimes she would vomit and the applicant would “sometimes” “come and help [her]”. She recalled that he usually wore pyjamas but agreed that sometimes he was wearing a night shirt but not pants. The complainant’s mother confirmed in cross-examination that the complainant would become quite ill when she had her period and “would often vomit”. Because her mother would be sick if someone vomited, it was the applicant who would help the complainant when she was vomiting. She said that the complainant would “scream quite loudly” when she needed assistance. She also said that sometimes the applicant would wear a night shirt without pants to bed.

5. [16]

   When the complainant was about nine, she was in her original bedroom when she woke up after having a nightmare. She went into her parents’ bedroom and told her mother, “I had a nightmare, I’m just going to come in”. She climbed into the bed between her parents, “in the middle, a bit more closer to my mum”. The applicant pulled her closer to him. The complainant heard “a bit of a snore” from her mother, who was facing away from her towards the wall. She was wearing pyjamas but no underwear because she did not wear underwear under her pyjamas.

6. [17]

   The complainant said that she felt the applicant rubbing her chest before his hand moved down to her groin area and “start[ed] to rub [her] vagina area”. She said that she “tried to … push it away a bit … [and] … just … wriggled away”. At that point, the complainant “just moved away and went back to sleep”. He touched her for “[a]bout ten to 15 minutes”. She explained that he rubbed her chest over her pyjamas for about five minutes before moving to the outside then inside of her thigh for about five minutes. He then slowly moved his hand under her pyjamas and was rubbing up and down.

7. [18]

   In cross-examination, the complainant agreed that she said in a statement to police dated 21 July 2020:

8. [19]

   The cross-examination continued:

9. [20]

   During the incidents the complainant did not say anything. She “only just kind of thought, like, this is a bit uncomfortable”. The applicant did not say anything either. According to the complainant, the next morning “it never really got talked about”.

10. [21]

    In cross-examination, the complainant agreed that although she was uncomfortable about what happened, she continued to sleep in her parents’ bed “sometimes”. She agreed that “sometimes” when she went into bed with her parents, the applicant “would hop out and go and sleep somewhere else”.

11. [22]

    The complainant’s mother said that she and the applicant had a queen-sized bed until her fortieth birthday when the applicant purchased a king-sized bed. She recalled that from a young age the complainant would come to their bed as she “had a lot of nightmares”. The complainant would “wriggle around a lot” and “disturb” her parents, but, according to the complainant’s mother, she was the one who was mostly disturbed because she was a light sleeper whereas the applicant was a heavy sleeper who snored “very loudly”.

12. [23]

    The complainant’s mother gave evidence that the applicant told her one morning when the complainant was in bed with her and the applicant, “he woke up and she was holding onto his penis”. The complainant’s mother said that the complainant was, at this time, “only young. Maybe … four or five”. As far as she could recall, the applicant told her “a day or so later”. She accepted that she had said in her police statement of 21 July 2020 that the complainant was eight when the applicant told her about this event but she maintained that she was unsure of the age but knew that she was “only young”. The complainant’s mother gave evidence that after that incident, she and the applicant decided that the complainant ought stop sleeping in their bed and sometimes her mother would go and sleep in her bed with her. However, the complainant would still come to her parents’ bed. The complainant’s mother said that the complainant did not tell her that the applicant was doing anything to her when she was in their bed.

13. [24]

    The complainant’s mother agreed that when her son’s fiancée was staying over, the complainant and the fiancée (“the two girls”) would sleep in her son’s bed and BM would sleep in the complainant’s bed.

14. [25]

    After the complainant’s tenth birthday, she was at home with her parents and BM, having dinner. The complainant said that she was going to have a shower. Normally, her mother would wash her hair but this time her father insisted on helping the complainant because the complainant recalled that her mother had had back problems “for a long time … as long as [she] can remember”. The complainant’s mother agreed that she first had back problems “[a]round 2013” and that she had also had “surgeries on her hands … [and] arms” which made it difficult for her to help wash the complainant’s hair.

15. [26]

    The complainant agreed that she generally showered after 6pm. She also agreed that the heart surgeries she had had made it difficult for her to raise her arms up to wash her hair so she would ask for help to do so and the applicant was the one who “just came in”. She said that when her father helped her wash her hair, the bathroom door was closed.

16. [27]

    The complainant recalled that after she had undressed and got into the shower, the applicant came into the bathroom, undressed and got in with her. She turned around so that she could not see him naked (“because, you know, he’s my dad”). The complainant said:

17. [28]

    She recalled the applicant’s penis being against her lower back for “[a]bout five minutes”. The applicant then told her that he had finished washing her hair. She “stepped out and started to get dry” and he “just continued his shower”. The complainant described her reaction as follows:

18. [29]

    The complainant was cross-examined about her height (she denied that she was a “tall person”) and said, “I’m not too sure” when asked to explain how, given that she was short, the applicant’s penis was able to be pressed into her lower back.

19. [30]

    BM gave evidence that when he was growing up, the applicant set a rule that when he or the complainant was in the shower, the other child had to be in their room “because we’re going through puberty around the same time”.

20. [31]

    The complainant recalled that before she had heart surgery (on 21 July 2014), she was in her own bed and “wanted to go in with mum”. When she got into her parents’ bed, she was in the middle between her parents when the applicant “moved a bit more closer [to her]”. The applicant “grabbed” her hand, “moved it under his underwear” and “started to move [her] hand in an up and down kind of motion”. His penis was erect. The complainant estimated that this went on for “[a]bout 20 minutes”. While this was happening, her mother was “sleeping” and “snoring”. The complainant did not recall the applicant ejaculating but thought that “it ended with him just moving [her] hand away”.

21. [32]

    In August 2014, after the complainant’s heart surgery, she was in bed in her second bedroom. She was lying down but she “had been complaining about [her] feet being sore”. In cross-examination, the complainant agreed that when she was growing up she had flat feet. She recalled that the applicant got an electric massager which he used to massage her feet “once or twice”. The complainant’s mother’s evidence was that if she tried to give the complainant a foot massage, the complainant complained that she did not “do it hard enough … Daddy does it better”.

22. [33]

    The complainant said that it was “about night time”. The applicant “came in and had offered to give [her] a foot massage”, to which she agreed. When the complainant “had started to get tired and like sleepy, he kind of just asked [her] … if [her] calves were sore.” She did not respond to this. The applicant then started to move his hands above her knee and moved next to her in the bed. He massaged her thighs over her pyjamas and then pulled her pyjamas down and moved her legs apart and started “using his tongue to lick [her] vagina”. He continued for “about ten or 15 minutes”. She described it as “kind of up and down and also kind of like side to side and around”. She said:

23. [34]

    When asked to describe how the incident ended the complainant said:

24. [35]

    The complainant said that the morning after count 4 occurred she “wanted to tell mum about what had happened, but … didn't know if [she] could.” She said, “It was just kind of in my head thinking like maybe I shouldn’t and …[she] start[ed] hurting [herself] after that … on [her] thighs … [a]nd arm”. The complainant said that she was “pretty sure it was the next morning” when she started hurting herself (by cutting herself). The complainant could not explain why she did that but said that she continued to hurt herself for “one to two years”.

25. [36]

    At about 7.30pm one evening, when the complainant was “about 13 or 14”, she was having a shower and needed help to wash her hair. The applicant came into the bathroom and, when he was naked, asked if he could come into the shower. She said:

26. [37]

    The complainant also said:

27. [38]

    The complainant said that at this time, she was continuing to hurt herself.

28. [39]

    When the complainant was 13 or 14, it was night-time and she was in bed in her pyjamas. She had sore feet and the applicant offered to give her a foot massage. She said:

29. [40]

    She continued:

30. [41]

    The following exchange occurred:

31. [42]

    According to the complainant, this continued for “about 15 to 20 minutes”. She could feel his penis on her clitoris but said that it was “hardly reaching” her labia majora. The complainant did not recall that he had ejaculated but did recall that the applicant was “trying to find [her] pants”, which she was “pretty sure … were in the bed somewhere” and that “he tried to put [her] pants back on and [she thought] he went to the bathroom”. After he had finished putting his penis near her vagina “[h]e was kind of just breathing really heavily”.

32. [43]

    She agreed in cross-examination that the applicant did these things to her with her bedroom door wide open.

33. [44]

    When the complainant was 14 years old, “around the time [she] was cutting [herself]”, she was in her second bedroom “after seven” wearing her “fluffy” pyjamas with “pink and blue” stars on them. The applicant came in and gave her another foot massage. He did as he had done before by proceeding further up her legs. The complainant was “kind of not that tired, so [she] was kind of pretending to sleep”, “hoping that, maybe, it would stop him from doing it”. While she continued to pretend to sleep, the applicant took her pyjama pants off and rubbed his penis on her vagina. He also licked her vagina. She also recalled that he stopped licking her vagina and said:

34. [45]

    The applicant then “started to grab his penis, and would start, like, thrusting near [her] vagina, but it never went … inside the vagina”. His pants were off, his penis was “hard” and the thrusting went on for “[a]bout ten to 15 minutes”. It came to an end when the applicant “pulled up his pants, and, like grunted [and] kissed me on the forehead goodnight, and went to the bathroom”. She inferred that he had gone to the bathroom because she “heard the toilet flush”.

35. [46]

    When the complainant was in year 7 or 8, she went to Headspace, which is “a company that has counselling that you can talk to”. It was accepted that the complainant was 13 when she was in year 7 and 14 in year 8. The complainant said that at Headspace:

36. [47]

    She agreed that those things helped her with the cutting. She could not recall how long she had gone to Headspace for but said that it “would have been … months”. Although the complainant cut herself after she stopped going to Headspace, it continued “[m]aybe, like, a couple of months after but not as frequent as I did before”. The complainant also experienced “dark figures … in [her] mind” as a result of “anxiety”. She saw the dark figures from the time she first started cutting herself until she finished talking to Headspace.

37. [48]

    In cross-examination, the complainant agreed that the applicant noticed that she was cutting herself in late 2015 and that she told her parents that they were from her bird Sonny. Her parents took her to her general practitioner to get a referral to Headspace. She confirmed that she was also hearing voices at the time as well as seeing and hearing things that were not there. The complainant also confirmed that she went to her Headspace appointments by herself. She was asked whether there were any problems at home and agreed that at the time she went to Headspace, she had “heart problems” and, in December 2015, her grandfather had cancer. She agreed that she said nothing to Headspace about her father but insisted that the cutting was to do with him.

38. [49]

    Between 28 January 2016 and 8 August 2016, the complainant participated in the Headspace Youth Early Psychosis program. She agreed, by reference to the discharge summary which she was shown in cross-examination, that she told them that her grandfather had cancer and that she had had heart surgeries which led to her being bullied at school. She also agreed that she had told them that she was distressed about a breakup with her boyfriend in May 2016 (Exhibit 1). She agreed that she had told Headspace that she had not self-harmed since January 2016 and said that she had done so because she “didn’t want to keep seeing Headspace”. The complainant also agreed that she told Headspace that she “had a normal family life”.

39. [50]

    The complainant was shown an article from the Daily Telegraph, entitled “[The complainant’s] story”, which was accompanied by a photograph of the complainant with her parents. She agreed in cross-examination that the article referred to her hearing voices in her head and being visited by a little boy. She also agreed that she had said (as reported in the article), “The voices made me hurt myself because they made me feel worthless”. She agreed that the article said that Headspace helped her.

40. [51]

    The complainant’s mother said that the reason for the complainant being sent to Headspace was because she and the applicant noticed “some scratches on [the complainant’s] legs”. She confirmed in cross-examination that it was the applicant who raised a concern about the marks. The complainant said that they were “from the bird” (she had a cockatiel). The complainant’s mother said, “Well, I need to have a look because you don’t want to get an infection.” She explained that she was concerned about infection because of the complainant’s heart condition. The complainant’s mother recalled this conversation occurred at Christmas time when the complainant was 14. When her mother examined the scratches, she:

41. [52]

    When the complainant’s mother pressed her for an explanation, the complainant said, “I’ve been hearing – hearing voices, seeing people that aren’t there, that no-one else can see, and I’ve been harming myself.”. According to her mother, the complainant “wouldn’t say why she was doing it. She just said those – that voices were telling her to do it”.

42. [53]

    The complainant’s mother’s recollection was that the conversations about the cuts occurred on Christmas Day. After lunch with the complainant’s mother’s family, they took the complainant to Nepean Hospital. After assessment, the suggestion was made that the complainant go to Headspace.

43. [54]

    Her mother said that the complainant went to Headspace for about 12 months and that, after that time, the complainant did not complain about hearing or seeing things that were not there or experiencing hallucinations.

44. [55]

    At some time after the complainant had stopped going to Headspace when she was 15, she remembered an occasion after she had been in the shower when the applicant came into the bathroom to have his shower. While she was still naked he “squeezed [her] butt”. After this occurred, according to the complainant:

45. [56]

    The complainant recalled that when she came out of the bathroom, her mother, who was in the lounge room, said, “Oh, you took forever”.

46. [57]

    Up until this time, the complainant had not told anyone what the applicant had been doing to her. She explained the reason for this as:

47. [58]

    The complainant met LR in 2019 as they were both doing their certificate 3 health administration course at Nepean TAFE. They became friends. According to LR:

48. [59]

    According to LR, in June 2019:

49. [60]

    When asked how the complainant looked and presented at the time she made this disclosure, LR said:

50. [61]

    In LR’s cross-examination, the following exchange ensued:

51. [62]

    LR recalled that in about July 2020, the complainant made a further disclosure to her. LR’s evidence was:

52. [63]

    When the complainant was 17, she had a boyfriend, WB. WB gave evidence that he and the complainant met in about October 2019 and became boyfriend and girlfriend on 30 November 2019. They remained in a relationship until the beginning of 2021. At that time, WB was living with his parents, his twin brother and his younger sister. WB and the complainant spent time together at each other’s parents’ places. WB estimated that in the period between the end of November 2019 and July 2020, he visited the complainant’s home about ten times and met the applicant, the complainant’s mother and her brother. WB said that when he was at the complainant’s house, her parents made them leave her bedroom door open. WB was doing the HSC in 2020.

53. [64]

    According to the complainant’s mother:

54. [65]

    The complainant’s mother’s response was:

55. [66]

    She said that the complainant raised the topic “several times”. The complainant’s mother agreed that WB’s parents would not let the complainant stay over and that she and the applicant did not allow the complainant’s bedroom door to be closed when WB was with the complainant.

56. [67]

    According to WB, the complainant first told him in the first half of 2020, when she was 18, about being sexually abused by the applicant. WB said that the complainant had attended his sister’s ninth birthday party the week before. The complainant told him that she had become quite uncomfortable because attending the party had caused her to recall “some memories of when she was around that age” (when her sexual abuse by the applicant started). WB said that, around a week after his sister’s birthday party, the complainant had told him about the sexual abuse, including oral sex with her father in the shower and “[i]nappropriate touching in her bedroom”. According to WB, the complainant told him that “it mainly occurred during the ages of nine to 14”. WB recalled that she also told him that the applicant would come into her bedroom and touch her thighs or her breast and that the applicant would also come to the bathroom when she was younger to help her wash her hair.

57. [68]

    The complainant said that she first told WB about what had been happening to her because she had had a nightmare about something her father had done to her in the past. When she woke from the nightmare, she messaged WB and told him:

58. [69]

    The complainant and WB then discussed what she should do about what the applicant had been doing to her. According to WB, the complainant “wanted some support for the trauma, and she also wanted to go to the authorities as well at some point”. He said:

59. [70]

    When the complainant told WB, he went downstairs and asked his parents if the complainant could stay the night, which led to her staying for one night. He recalled having a discussion with the complainant that this “was for short-term basis to not be at her parents’ house, at her primary residence”. WB explained in his evidence:

60. [71]

    On 30 June 2020, WB sent an email in the following terms to the Blue Knot Foundation:

61. [72]

    The complainant gave evidence that she and WB wrote the above email together. They chose the Blue Knot Foundation because their research indicated that she could stay anonymous and she “didn’t want to go legal yet … because [she] was still quite scared”.

62. [73]

    On 2 July 2020, the complainant (who used the pseudonym, “Honey”) sent the following email to the Blue Knot Foundation:

63. [74]

    The complainant explained in her evidence in chief that she created the email address because she “was still very scared about people knowing”. She said:

64. [75]

    When cross-examined about the reference in her text message to telling WB’s parents being easier than telling her own, the complainant said that she “just thought maybe that was the only way that it was able to happen”. She denied that “it” was a reference to moving in with WB.

65. [76]

    WB explained in his evidence:

66. [77]

    WB also said that the complainant was scared about telling family members about what happened because she was “scared about not being believed about the incidents” and “also mentioned housing security as well in terms of if she did tell her mother about it, she might actually have to leave her home”. WB agreed that the complainant had not used the term “housing security” and that the complainant had “been talking about [how] she didn’t want to leave the family home”. In cross-examination, WB said that the complainant was worried about telling her mother because it might mean that she could not live at home anymore and she “didn’t have the financial support to sustain her own living accommodation”.

67. [78]

    WB said in re-examination that he and the complainant had discussed moving in together but this was “for the future”, by which he meant “[l]ater down the track, several years into the relationship”.

68. [79]

    On 3 July 2020 at 12.10am, the complainant texted WB and told him that the applicant “just tried to do something” but that she “was able to stop it from whatever it was he wanted to do” and that she “was too sleepy to know what he was trying”. She explained in a further text message:

69. [80]

    Later that morning, after about 5.35am, the complainant sent WB further text messages, including the following:

70. [81]

    The timing of the disclosure in this text message would appear to be inconsistent with WB’s email to the Blue Knot Foundation on 30 June 2020 (which indicated that the complainant had already told him then). However, nothing was made of this at trial or on appeal and it is, accordingly, not necessary to address it further.

71. [82]

    In the course of the same series of text messages, the complainant messaged:

72. [83]

    In cross-examination, the complainant confirmed that she did not want to move out with WB, who was then living with his parents who were strict about not letting her stay over and with whom she did not get along. She agreed in cross-examination that WB’s parents did not let her move in and wanted her to go to a hotel instead. In re-examination, the complainant said that when she told WB’s parents that she was not safe at home, they “told [her] that they were going to book [her] a hotel and an Uber to go to like a safe place”.

73. [84]

    In the same series of text messages which began at 5.35am on 3 July 2020, the complainant also said:

74. [85]

    The complainant was cross-examined about this text as follows:

75. [86]

    The text messages which the complainant sent to WB in the early morning of 3 July 2020 also included the following:

76. [87]

    On 11 July 2020, the complainant and WB phoned 1800RESPECT, an organisation to which she had been referred by the Blue Knot Foundation. WB recalled that they had gone to a public park near the Westfield Shopping Centre at Parramatta where it would be quiet so that they could make the call. WB recalled that, before making the call, the complainant told him that she wanted guidance about directly accessing help.

77. [88]

    The transcript of the call recorded:

78. [89]

    Towards the conclusion of the conversation, the complainant told the counsellor that she would tell her best friend about it because she did not yet know.

79. [90]

    Later in the evening on Saturday 11 July 2020 at 9.21pm, the complainant, who was at home at the time, sent three messages to LR. In the third message she said:

80. [91]

    In cross-examination, the complainant said that when she said that it was “not that dominant”, she “meant that it didn’t happen as often”.

81. [92]

    Soon after sending the text messages, the complainant said that she went to LR’s house and told LR. LR then told her mother, DL, who joined them. The complainant told them:

82. [93]

    LR’s recollection was that the complainant came to stay at her house for the weekend of 11-12 July 2020. Her evidence was:

83. [94]

    LR described the circumstances and substance of the disclosure as follows:

84. [95]

    In her evidence, LR identified the text message extracted above which the complainant had sent to her after 9.21pm. LR’s evidence was:

85. [96]

    DL recalled that LR was with the complainant in her bedroom and then they both came down and spoke to her in the lounge room. DL’s evidence was:

86. [97]

    By the time of this disclosure, DL had met the complainant a “number of times” as she “used to come over and stay at [DL’s] place occasionally”.

87. [98]

    WB said that on the evening of 19 July 2020, between about 6pm and 8pm, he had had a two-hour long video call with the complainant. He said that he would have been finishing off his homework and would have eaten his dinner at home.

88. [99]

    The complainant’s mother said that the evening of 19 July 2020 was:

89. [100]

    At about 11pm that evening, after BM had had a shower, the complainant was lying in her bed, wearing a red jumper, trying to get to sleep. The lights in her bedroom were off but the kitchen or loungeroom lights were still on. She was lying on her back closing her eyes when the applicant came into the room, stood next to the bedside table and pulled his pants down. He tried to touch her chest with one hand but she had her hands crossed over her chest. His other hand was “stroking” his penis, which was about 20cms away from her. When asked how the episode ended, the complainant said:

90. [101]

    BM recalled that evening he came home from work and went to bed. He heard “people” outside his room between midnight and 1am. He could hear the applicant’s voice and his mother’s voice and was “pretty sure” that he could also hear the complainant’s voice. He could not hear what they were talking about but said that they were “[w]hispering, maybe. It was later at night, so they were probably trying to keep quiet”. He subsequently said that he was “certain that [he] heard [the complainant’s] voice”, “I could hear Dad and my sister’s voice”.

91. [102]

    The complainant’s mother recalled seeing the applicant asleep in their bed that night at about 2am when she got up to go to the bathroom.

92. [103]

    Shortly after this incident, on the evening of 19 July 2020, the complainant messaged WB. The first message was sent at 11.31pm. The complainant told WB that she had just had a nightmare which “felt so real”. In subsequent messages, she said:

93. [104]

    When the complainant was asked about the sequence of events, the following exchange occurred:

94. [105]

    The messages record that she and WB had a video chat and also that she said that they should tell LR in the group chat.

95. [106]

    WB’s recollection was that he and the complainant had a video call which lasted about “ten to 20 minutes”. He said:

96. [107]

    He also recalled that the complainant had told him that she was in her bedroom and the applicant was “to the side of the bed”.

97. [108]

    At 12.13am on 20 July 2020, the complainant put some messages on the group chat (between her, WB and LR), including:

98. [109]

    LR woke up at 8.30am and joined the chat at 8.31am. She explained in her evidence:

99. [110]

    The complainant, WB and LR then exchanged messages about the complainant telling her mother. The complainant said in a message:

100. [111]

     In the course of the messages, the complainant mentioned that she was in “shark week”, which was a reference to her having her period. She explained in her evidence:

101. [112]

     The messages also referred to a “game plan”, which the complainant explained was “a nicer version of saying that, just, the plan of what I wanted to do. If I wanted to tell the police. If I wanted to tell my mum”. She said that, at that time, her mother was working in a nursing home and would be home in the afternoon. The complainant’s mother confirmed that she worked in an “aged care facility” as a “support officer”.

102. [113]

     LR’s attitude was as follows:

103. [114]

     WB’s recollection at this time was:

104. [115]

     Later in the morning, in a message to WB, the complainant reported that she “woke up to dad in [her] room playing with [P]eanut [the family dog]”. She messaged WB that the applicant’s hand “got pretty far up [her thigh] but it didn’t get that close”.

105. [116]

     The complainant, later in the morning of 20 July 2020, texted WB:

106. [117]

     In cross-examination, the complainant agreed that Animal Crossing was “a game on [her] Nintendo Switch.” The following exchange ensued:

107. [118]

     When the complainant’s mother came home from work at the nursing home on the afternoon of 20 July 2020, the applicant was at work and the complainant and her mother were together in the lounge room. The complainant gave the following evidence as to what occurred:

108. [119]

     The complainant said something further, which resulted in a successful application by Ms Hogan, who appeared on behalf of the applicant at trial and in this Court, for the jury to be discharged. When a new jury was empanelled, an agreed edited version of the complainant’s evidence from the first trial (which had been recorded) was replayed to the jury. There was no challenge in this Court to this course being adopted.

109. [120]

     WB gave evidence that on 20 July 2020 he and the complainant were on a voice chat and the complainant had put her phone “near where she was talking, or it was in her pocket”, which meant that WB could hear the complainant, her mother and her grandmother. He recalled that he was on the voice chat for “20 to 30 minutes” and that he heard the complainant asking her mother to sit down because she was going to tell her something important and he also heard her tell her mother that “there’d been sexual abuse from her father”. LR was also on the group chat, although not from the beginning. When she came onto the chat, LR “could hear that everyone was quite upset when she said that [the applicant] had been called, and he was coming home.”.

110. [121]

     LR’s evidence about what she could hear from the chat was:

111. [122]

     LR explained that the last question related to the complainant’s parents saying that she could not stay with LR again this weekend because she had stayed over the previous weekend.

112. [123]

     The complainant’s mother’s evidence was as follows:

113. [124]

     As a result of this disclosure, the complainant’s mother rang the applicant’s brother, MM, and said, “[The complainant’s] just said that [the applicant’s] been doing all this stuff to her and I don't know what to do. I’m just - can you come over.” MM and his wife LM came over.

114. [125]

     The complainant’s mother described the complainant’s demeanour in the following exchange:

115. [126]

     When they arrived, the complainant stayed in her bedroom and the complainant’s mother, the complainant’s maternal grandmother, MM and LM sat around the kitchen table. The complainant’s mother rang the applicant, who was at work on the afternoon shift. Her evidence was:

116. [127]

     The complainant recalled that before the applicant came home from work, the following members of the complainant’s family were present: the complainant, her mother, MM and LM, as well as her maternal grandparents and possibly also the complainant’s brother. The complainant said in cross-examination that when MM and LM arrived, she was “shocked”. She agreed that they all sat around the dining room table and asked her what had happened. She did not recall what she had told them and said that she went into her bedroom, closed the door and texted WB and LR.

117. [128]

     While the complainant’s mother was waiting for the applicant to come home, she had further discussions with the complainant. She said in evidence:

118. [129]

     The complainant’s mother recalled that the applicant got home about half an hour after she called him. She said in evidence:

119. [130]

     The complainant heard the applicant outside her bedroom door “begging [her] to come outside and explain [herself]”. She also heard him denying her allegations.

120. [131]

     Before phoning the police, the complainant’s mother spoke to the complainant. Her mother’s evidence was:

121. [132]

     As a result of what the complainant told her mother, her mother called the police who came to her home. In cross-examination, the complainant said that she had told her mother that she did not want her to call the police and she did not want the police to be involved, and it came as a shock to her that she did. In re-examination, the complainant explained this answer by saying:

122. [133]

     When the complainant’s mother was cross-examined about calling the police, she said:

123. [134]

     The complainant’s mother also said that the complainant said, “Why did you call the police? I just wanted him away from me.”.

124. [135]

     BM recalled that after he finished work on 20 July 2020 at about 9.30pm, he went home to find “the cop car is outside and forensics and all that”. He was told that he was not permitted to go inside.

125. [136]

     Detective Senior Constable Goya Hedayat was the officer in charge of the investigation into the applicant. He confirmed that Mount Druitt police received a call from the complainant’s mother at about 8pm on 20 July 2020 concerning an allegation of sexual abuse. Detective Hedayat attended the complainant’s home at about 8.30pm with Leading Senior Constable Tariq Luqman, Detective Senior Constable Liam Daley and Constable Benjamin Holl. Detective Daley spoke to the applicant and the discussion was recorded by a body-worn camera. The audiovisual recording was played to the jury.

126. [137]

     Detective Hedayat gave evidence that he had tried to obtain statements from MM and LM but his attempts to contact them to do so had been unsuccessful.

127. [138]

     When the police came to her house on 20 July 2020, the complainant told the police a few things and showed them where her bedroom was. The police took some photographs. She also identified a green blanket and a grey blanket, which had been on her bed and not washed for a considerable time. Afterwards, she went with police to the Mount Druitt Police Station where a statement was taken.

128. [139]

     The complainant’s mother confirmed in her evidence that the police had taken her and the complainant to the Mount Druitt Police Station, where she was taken into another room (separate from the complainant) where she was asked questions.

129. [140]

     At 10.10pm that same evening, Benjamin Reid, a crime scene officer employed by the NSW Police Force, attended the house and collected and examined physical evidence. As a result of speaking with Detective Senior Constable Liam Daley, Mr Reid became aware of an allegation that masturbation had occurred in a bedroom. Mr Reid was subsequently joined at the residence by Leading Senior Constable Zoe Wells.

130. [141]

     On the morning of Tuesday 21 July 2020, the applicant was arrested at the hotel where he had stayed overnight and transported to the Mount Druitt Police Station, where he agreed to participate in an Electronically Recorded Interview with a Suspected Person (ERISP) which commenced at 9.27am that day. He was asked what he was doing on “Sunday night” (19 July 2020), he said:

131. [142]

     The applicant agreed to provide a buccal swab of his saliva which was later provided to the Forensic Analytical and Science Service team for examination.

132. [143]

     Mr Reid used a forensic light source to detect the presence of semen on the complainant’s bed. Because the test by this method is presumptive (that is, not just semen will return a positive result), it is necessary when a particular area fluoresces (indicating the presence of semen), to conduct a subsequent chemical test (Phosphatesmo) to confirm the presence of acid phosphatase, which is present in seminal fluid. If this test is positive, the next test, rapid stain identification (RSID), is conducted, using a chemical which reacts to the semenogelin, which is a protein specific to the head of a sperm cell.

133. [144]

     Mr Reid gave evidence that the forensic light source gave a positive result for the presence of semen on a horizontal slat of the bed frame. It also tested positive using the Phosphatesmo test strip and the RSID test. A sample was collected for DNA testing.

134. [145]

     The green blanket from the complainant’s bed was also tested. Only one of the stains returned a positive result on the RSID test for semen. Mr Reid cut out the relevant swatch of the blanket that corresponded with the positive result. Three areas on the grey blanket also returned a positive result on the RSID test for semen.

135. [146]

     The complainant’s mother said in cross-examination that she knew that the applicant masturbated around the house although she did not know where.

136. [147]

     Rebecca Williams, a forensic biologist, gave evidence concerning DNA evidence. The buccal swab taken from the applicant was tested against the semen which had been located on the bedframe of the complainant’s bed and the green blanket. Ms Williams reported that the DNA recovered from the buccal swab had the same profile as the semen that had been located on these two items and as was located on the grey blanket. Ms Williams said that the likely ratio calculation was not affected by the circumstance that the applicant’s son also lived in the residence, although she accepted in cross-examination that no sample had been taken from the applicant’s son.

137. [148]

     In cross-examination, Ms Williams accepted that there was no way of aging DNA to estimate when it was deposited or determining how DNA, including in the form of semen, was deposited on an item.

138. [149]

     Some time after the applicant was arrested, the complainant moved in with LR. DL said that the complainant came to live with them from about August 2020 for “[a] few months. Perhaps four months.”. She said that the complainant moved in on “the day she decided she couldn’t stay at home anymore, and [LR] went to pick her up”.

139. [150]

     LR’s evidence was:

140. [151]

     Between the time of the complainant’s disclosure to her mother on 20 July 2020 and LR coming to collect the complainant and take her back to her place (a few weeks or a month later), LR did not see the complainant in person but they were still in contact. In the past, LR had only ever been to the complainant’s house to pick her up, as she explained, as follows:

141. [152]

     Subsequently, the complainant moved in with her maternal aunt, MB. The complainant agreed that MB had never liked the applicant. She also agreed that MB was present when the complainant gave her second statement to police on 12 December 2021 but denied that MB had told her what to say. Detective Hedayat agreed that MB was present as a “support person” for the second, third and fourth (out of a total of five) statements given by the complainant to police.

142. [153]

     WB said that after the police became involved, he and the complainant talked “about her moving out of her family’s residence and staying at [his] parents’”.

143. [154]

     The applicant’s trial counsel tendered text messages between the complainant and her father from 23 October 2019. The complainant was asked about the messages, including the ones in which she said that she loved her father, asked him to pick up takeaway food on the way home or when he offered to pick her up from work.

144. [155]

     She was also asked why she messaged the applicant to tell him, “Mum is home” at 5.53pm on 20 July 2020. She said that she could not recall “the context” of the messages and whether she had sent the message before or after making the complaint to her mother.

145. [156]

     The applicant’s trial counsel also tendered 19 family photographs, including “selfies” of the complainant as she was growing up, many of which show her looking happy with the applicant. He also tendered a Facebook post which the complainant posted on 6 September 2015 in which she wished the applicant happy father’s day. The complainant agreed that all of the photographs were taken during the period when she said that the applicant was sexually abusing her.

146. [157]

     The complainant was asked in re-examination about the photographs and messages. The following exchange ensued:

147. [158]

     The Crown called JL, whose mother, EM, is the cousin of the complainant’s mother. When JL was growing up she spent time with the applicant on two occasions, the first when she was “probably around 10” and the second when she was “between 11 and 12”. On the first occasion, they had a family day out at (Australia’s) Wonderland in Western Sydney. On the second occasion, in December 1996 (or possibly December 1997), JL and her family were visiting family in the Rooty Hill/Mount Druitt area and the applicant and his wife offered to take JL and her brother (who was a year older than her) “for a night to give [their] mum a break”.

148. [159]

     The applicant took JL and her brother to a soccer game and then took them back to the applicant’s home. JL played in the backyard with her brother and the applicant’s two dogs, “then had dinner [and] went to bed”. JL was sleeping in the spare room at the front of the house and her brother was sleeping in the lounge room. JL said:

149. [160]

     JL did not recall what happened after that in “that room”. Her next memory was being in the lounge room with her brother and the applicant. She recalled:

150. [161]

     Later they went to pick up another relative and went back to where JL and her brother had been staying. JL said that when they returned there:

151. [162]

     JL said that although she thought about telling someone what had happened she did not tell anyone. She explained:

152. [163]

     JL said that she had not seen the applicant for at least five years.

153. [164]

     In cross-examination, JL agreed that she was 37 years old at the time of giving evidence and that she was only 11 years old when the applicant had sexually touched her, which meant that she had said nothing for “some 25 odd years”. She was cross-examined as follows:

154. [165]

     The complainant denied ever asking JL “to help [her] out in this matter”.

155. [166]

     The complainant was asked about the relationship between JL and MB in cross-examination as follows:

156. [167]

     JL agreed that she knew MB but, when asked whether she spoke to MB often, she said, “[n]ot really, no” and “we have never been close”. When asked whether she would say that “[MB] has never liked [the applicant]”, she responded, “No, I wouldn’t say that”. JL denied that she found out about the complainant’s allegations through either the complainant or MB. JL said that she did tell MB about what the applicant had done to her (JL).

157. [168]

     The complainant’s mother agreed that MB has “never liked [the applicant]”. When the complainant’s mother was asked whether MB and JL were, to her knowledge, close, she answered, “[n]o”. She gave the same answer when asked about the complainant and MB. She said that, in October 2019, MB told her that she did not want anything to do with “us” (the complainant’s mother, the applicant and the complainant) but that after the complainant made the allegations against the applicant, the complainant’s mother said that she had heard that it had changed (presumably between MB and the complainant).

158. [169]

     On 22 March 2023, the sixth day of the trial, the prosecutor referred to having foreshadowed, the previous week, an amendment to the indictment pursuant to s 80AF of the Crimes Act (set out above).

159. [170]

     The Crown sought to rely on a statutory alternative charge to s 66C(2) of the Crimes Act: namely, s 66C(4), which is relevantly identical as to the conduct but differs only as to the victim’s age (“of or above the age of 14 years and under the age of 16 years” in s 66C(4), compared to “above the age of 10 years and under the age of 14 years” in s 66C(2)). In a judgment delivered on 23 March 2023, the trial judge applied Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31 (Stephens) which held that s 80AF had no application to a trial which had already commenced. However, the trial judge rejected the applicant’s challenge to the Crown’s reliance on s 66C(4) as a statutory alternative to count 5, as authorised by s 80AB(9), finding that the reliance on the alternative count was authorised as there had been no change in the wording of the offence provisions (including the statutory alternative) between the time of the alleged offending conduct and the commencement of the trial. The applicant has not challenged the correctness of that decision.

160. [171]

     The applicant called two witnesses in his case: MM and LM. MM said that on the evening of 20 July 2020, the complainant’s mother phoned and asked him and LM to come over. When they arrived, the complainant’s mother was at the dining room table, crying, and her own mother was consoling her. The complainant was in the kitchen, looking for something to eat. According to MM, the complainant “wasn’t upset … wasn’t distressed … wasn’t crying, even though her mother was at the table crying”. When MM and LM asked the complainant’s mother what was going on she said that the applicant had been “touching” the complainant. MM turned to the complainant and asked her whether it was true and she said, “yep”. MM said that she appeared “normal”, [j]ust a happy child … just looking through the fridge”. MM said:

161. [172]

     MM and LM went into the complainant’s room. They convinced her to get off her phone and talk to them and “she said that [the applicant] had been touching her”. MM’s evidence was:

162. [173]

     According to MM:

163. [174]

     When asked about the complainant’s demeanour, MM said:

164. [175]

     According to MM, when the applicant came home, the complainant went to her bedroom and closed the door as he entered. MM said:

165. [176]

     MM said that he had been contacted by Detective Hedayat but that he had said that he did not want to make a statement.

166. [177]

     In cross-examination, MM agreed that on the evening of 20 July 2020, the complainant “wasn’t happy as such”.

167. [178]

     LM recalled being called downstairs by MM to say that the complainant’s mother had called and wanted them to come over. LM gave evidence that when they arrived:

168. [179]

     When LM was asked how the complainant seemed to her at that time, she said, “[n]o emotions”. LM said that while they were around the dining room table:

169. [180]

     In cross-examination, LM denied that the complainant appeared to be “emotionally closed” although she agreed that the complainant did not appear to want to talk to her or MM about what the applicant had done to her.

170. [181]

     When asked about the complainant’s demeanour, LM said, “[s]he had no emotions”. LM also said:

171. [182]

     LM said of what occurred when the applicant came home:

172. [183]

     LM also recalled that, when the complainant came out of her room, she sat at the dining room table next to LM and the applicant asked, “What’s happened?” and the complainant said, “You know what you’ve done.”.

173. [184]

     LM agreed that she and MM had been contacted by Detective Hedayat but they had both refused to give statements.

174. [185]

     Of present relevance, the prosecutor said of count 5 in the closing address:

175. [186]

     The prosecutor concluded his address with reference to Exhibits 3 and 4 (the photographs of the complainant and the applicant together and text messages between them) which were tendered on behalf of the applicant to demonstrate that the complainant loved the applicant. He said of these exhibits:

176. [187]

     Ms Hogan raised, in closing, a number of matters which she submitted would cause the jury to have a reasonable doubt about the applicant’s guilt. I will summarise these as she made similar submissions in this Court as to why the verdicts were unreasonable.

177. [188]

     First, she submitted that the way in which the complainant gave evidence included frequent pauses, sometimes for a considerable period of time, and vague and imprecise evidence together with concessions that she could not remember particular things. She instanced occasions when the complainant had asked for a break at a time when Ms Hogan had indicated that she was about to ask her about another count. She submitted that the complainant missed count 7 and proceeded to give evidence about count 8. She also submitted that the complainant had admitted to looking at one of her police statements during a lunch break but could not give an “adequate explanation” for having done so. Following objection from the prosecutor, the trial judge told the jury in the course of the summing up that there was no basis for inferring that the complainant was aware that it was improper for her to look at a witness statement during the break.

178. [189]

     Secondly, Ms Hogan went through each count and made the following points.

179. [190]

     In respect of count 1, Ms Hogan referred to the complainant’s evidence in chief that she did not wear underwear under her pyjamas but later conceded that she had said that she had. She also relied on the circumstance that, notwithstanding what the complainant said about count 1, the complainant had still kept returning to her parents’ bed, although she was not welcome there. Ms Hogan also relied on the complainant’s mother’s evidence that she was a light sleeper compared with the applicant. Ms Hogan submitted that these matters made the complainant’s evidence of count 1 “implausible”.

180. [191]

     In respect of count 2, Ms Hogan submitted that the differential in height between the applicant and the complainant at the time of count 2 made it “implausible that she could have felt the accused’s erect penis pressing into her tailbone”.

181. [192]

     As to count 3, Ms Hogan submitted that the complainant’s evidence as to this count suffered from the same deficiencies as with count 1. She said that the complainant’s evidence that the applicant made her masturbate his penis for a considerable time in bed when her mother, who was a light sleeper, was in the vicinity was “implausible”.

182. [193]

     As to count 4, Ms Hogan referred to the complainant’s evidence that it was after the commission of this offence that she started to self-harm. Ms Hogan submitted:

183. [194]

     Ms Hogan submitted that it was significant that the complainant did not mention the offending conduct to Headspace or to the Daily Telegraph reporter who had written the article about her experience with Headspace.

184. [195]

     As to count 5, Ms Hogan submitted that the complainant’s uncertainty about her age (“13 or 14”) ought lead the jury to have a doubt not only about count 5 but also about the statutory alternative.

185. [196]

     As to count 6, Ms Hogan referred to the complainant’s evidence about the degree of penetration (which has been set out above) and said that the jury would not be satisfied that sexual intercourse had occurred.

186. [197]

     She submitted, in respect of counts 6, 7 and 8:

187. [198]

     As to count 9, Ms Hogan submitted that the complainant’s evidence was “particularly vague”.

188. [199]

     As to counts 10 and 11, Ms Hogan said that the complainant’s failure to give evidence that the accused ejaculated during this count was inconsistent with the Crown case that the semen on her bed frame came from the applicant ejaculating during this incident. Ms Hogan also submitted that the complainant was inconsistent in her assessment of how far the applicant’s penis was from her face (first indicating 20cm and later agreeing that she had said 5-10cm in a statement). She submitted that if any of these estimates had been true, the applicant “would have ejaculated onto the complainant’s face”. She also relied on the fact that these events were alleged to have happened while the complainant’s bedroom door was open and also referred to the complainant’s evidence that he had masturbated with his left hand, although he was right-handed.

189. [200]

     Ms Hogan further submitted:

190. [201]

     Ms Hogan also submitted that it was significant that the complainant did not want the police to be called. Ms Hogan asked rhetorically, “if she was telling the truth, why didn’t she want the police called?” Ms Hogan also relied heavily on MM and LM’s descriptions of the complainant’s demeanour when they arrived at the complainant’s home on the evening of 20 July 2020. Ms Hogan submitted that “they were puzzled about the way in which the complainant presented herself having just disclosed such things”.

191. [202]

     Ms Hogan submitted that it was significant that the complainant had not disclosed all of the alleged offending conduct at once and that it had come out at different times.

192. [203]

     As to the DNA evidence, Ms Hogan submitted that it was significant that the police had not taken a sample from BM, especially given there were instances when he slept in the complainant’s bed when his fiancée stayed over. She also submitted that the semen on the blankets was equivocal as they were items which were moved around the house and were not permanently on the complainant’s bed.

193. [204]

     Ms Hogan referred to the exhibits which contained “expressions of love” between the applicant and the complainant and said that “[t]hese exhibits would give you [the jury] considerable reason to pause and really consider the complainant’s version of events”. Ms Hogan also relied on the complainant’s evidence that she went into her parents’ bed and accepted (and sometimes requested) foot massages from the applicant and asked, rhetorically, why the complainant would do these things if her allegations were true.

194. [205]

     Ms Hogan submitted that the complainant had a motive to lie about the applicant because she wanted to move in with WB and that the jury ought reject the Crown’s submission that that was just a plan for the future.

195. [206]

     As to JL’s tendency evidence, Ms Hogan submitted that the jury would not accept JL as a witness of truth because she “wasn’t forthcoming about her relationship with [MB] [who] did not like the accused”. Ms Hogan also relied on the evidence that “[n]o-one has ever noticed any inappropriate behaviour by the accused towards any child”.

196. [207]

     Ms Hogan relied on LM and MM’s descriptions of the applicant’s demeanour when he became aware of the allegations as well as his demeanour as depicted on the ERISP (which she submitted was “visibly shocked and horrified throughout”).

197. [208]

     Ms Hogan also submitted:

198. [209]

     Although the contents of the summing up are not generally germane to an appeal where the sole ground is unreasonable verdict (as the assessment of the evidence is for this Court to undertake in accordance with M v The Queen (1994) 181 CLR 487; [1994] HCA 63), there are aspects of the summing up which are relevant to the applicant’s submissions concerning the verdict of guilty in respect of count 5. The other directions set out below are also included in order to give context to the applicant’s submissions in this Court.

199. [210]

     Of relevance to the appeal the trial judge said of count 5 in the summing up:

200. [211]

     Of count 6, the trial judge gave the jury the following direction which is not the subject of challenge:

201. [212]

     Of the timing of the complaints made by the complainant, the trial judge directed the jury:

202. [213]

     As to the alternative charges, the trial judge directed the jury:

203. [214]

     On 27 March 2023, the trial judge concluded the summing up and sent the jury out to deliberate at 10.28am. The jury returned guilty verdicts in respect of all counts at 2.29pm that day.

Consideration

1. [215]

   In M v The Queen, the High Court said that, when addressing an unreasonable verdict ground, the question for this Court is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (Mason CJ, Deane, Dawson and Toohey JJ at 493). This question “is one of fact which the court must decide by making its own independent assessment of the evidence” (at 492). The court may conclude that no miscarriage of justice has occurred if “a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by [the appellate court]” (at 494).

2. [216]

   The plurality said further at 494:

3. [217]

   Even if a complainant’s evidence is not corroborated, a verdict of guilty is not unreasonable on only that basis: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The Court in Pell said at [39]:

4. [218]

   The primary function of determining guilt or innocence has been given to the jury as the tribunal of fact: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

5. [219]

   While the Court is entitled to disbelieve a witness whose evidence a jury must have accepted, at least in so far as it established the elements of an offence in respect of which a guilty verdict has been returned, the extent to which it may do so is constrained. In Z (a pseudonym) v R [2022] NSWCCA 8, this Court (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing) said at [29]:

6. [220]

   In this Court, Ms Hogan largely relied on the submissions which she had made to the jury and which were, inferentially, largely rejected by them.

7. [221]

   Ms Hogan’s submissions were based on the following propositions, each of which was, in my view, flawed and which the jury was entitled to reject:

   1. (1)

      the complainant’s credibility was impugned by:

   2. (2)

      if the complaints were true, the complainant would not have returned to her parents’ bed or permitted or sought a foot massage from the applicant because of the risk of recurrence of the offending conduct;

   3. (3)

      it was implausible that the applicant would offend in a bed where his wife, who was a light sleeper, was sleeping, or in the complainant’s bedroom with the door open, because of the risk of detection;

   4. (4)

      if the applicant had committed the offences, he would never have drawn attention to his seeing the cuts on her thighs, much less taken her to see a specialist on her own because of the risk that she would disclose the offending conduct to the specialist;

   5. (5)

      BM’s evidence that he heard the complainant and the applicant speaking at about 1am on 20 July 2020 (after the offending alleged in counts 10 and 11) was inconsistent with the offences having occurred because, if they had occurred, the complainant would not have spoken to her father afterwards; and

   6. (6)

      the applicant did not have a tendency to be sexually attracted to girls of the complainant’s age because the only evidence of similar conduct was given by JL, who had a motive to lie because she was close to MB, who did not like the applicant.

8. [222]

   It can reasonably be expected that people who are empowered and are accustomed to getting what they want will, when they are aggrieved or dissatisfied, complain about the wrongdoer (even those in positions of authority), or, if they consider that the matter can best be remedied “in-house” will warn the wrongdoer that any recurrence will lead to a complaint being made.

9. [223]

   In the recent past, the common law, as confirmed by Barwick CJ in Kilby v The Queen (1973) 129 CLR 460 at 465; [1973] HCA 30, used to require juries to be directed as follows:

10. [224]

    Such a direction was apparently based on an assumption (which has proved to be untrue, particularly in the case of child victims of sexual offending) that if a complaint is true, it is made at the earliest possible opportunity. Subsequently, Parliament intervened to override the assumption, which was accepted to be wrong. As Spigelman CJ said in R v Johnston (1998) 45 NSWLR 362 at 366-367:

11. [225]

    The old, and discredited, assumption about delay has no place in the context of alleged sexual offending. It is particularly inapposite when the victims of sexual offending are children. In that context, delay in complaint or provision of further detail after an initial disclosure are common features because of the attendant trauma caused by such abuse and the shame felt by victims: see the discussion in Decision Restricted [2024] NSWCCA 81 at [92] (Davies J, Button and Sweeney JJ agreeing).

12. [226]

    In the present case, it was open to the jury to accept the complainant’s evidence about why she did not tell her mother earlier than 20 July 2020. The complainant gave the following reasons, each and all of which were, in my view, capable of being accepted by the jury. First, she was scared that she would not be believed and therefore fearful of what the applicant would do and the repercussions for her; second, she loved her parents and relied on them for emotional, practical and financial support; third, she was worried about losing her home; fourth, she had no viable alternative living arrangement (the best that WB’s parents could offer was to call for an Uber and take her to a hotel, for which she would have had no means of paying); and, fifth, she was worried about the police being involved because all that she wanted was for the conduct to stop and she appreciated that the consequences would escalate if the police became involved. The jury was entitled to take into account that subsequent events proved that the complainant’s fears were well-founded: she was not believed by at least some members of the family (MM and LM); about a month after she told her mother, she had to move away to live with LR for four months before moving in with MB; and the police involvement meant her entire family structure was disrupted. In other words, her disclosure to her mother had the very effect that the complainant feared: she lost her home.

13. [227]

    It was open to the jury to consider that the reasons why the complainant told her mother on 20 July 2020 included the following. First, when the complainant had observed WB’s sister at her ninth birthday party, she had appreciated how young and vulnerable she herself must have been when the applicant first sexually assaulted her and that she had been deprived of her innocence from an early age. Second, her disclosures to WB and LR had elicited from them significant sympathy and support for telling her mother. Third, she can be taken to have appreciated, by 19 July 2020, that, if she did not say anything to her mother, the applicant’s conduct would continue and she wanted it to stop.

14. [228]

    Given that the reason which the complainant gave for telling her mother was, as referred to above, to stop the applicant’s conduct, it was open to the jury to consider that the complainant would have been loath to tell a professional such as a doctor or psychologist because such a disclosure would have taken the matter outside the confines of the family with the inevitable result that she would lose any control over the consequences of her disclosure.

15. [229]

    The postulated motive to lie – that the complainant wanted to move out of home and live with either WB or LR – has been referred to above. It was open to the jury to regard the evidence of the complainant, WB and the complainant’s mother as indicating that the complainant’s expression of her desire to live with WB was an indication of her wanting her parents to take the relationship seriously. The impracticability of her moving out was a matter which the jury was entitled to find was plain to everyone (including the complainant) at the time and made the prospect that she could live with WB no more than wishful thinking and something which was never really in prosect having regard to her age, stage, health and lack of means.

16. [230]

    The jury was also entitled to accept the complainant’s evidence that what she wanted was to keep her family household intact but have the applicant’s conduct stop. The jury was entitled to find that far from having a motive to lie, the complainant had a strong motive to tell the truth since she appreciated it was the only way to stop the applicant re-offending.

17. [231]

    In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing):

18. [232]

    This passage is a sufficient answer to the points which Ms Hogan made about whether or not the complainant was wearing underpants under her pyjamas when count 1 occurred, and how far away from the complainant’s face the applicant’s penis was and whether or not he ejaculated when he masturbated in her bedroom on 19 July 2020 (counts 10 and 11).

19. [233]

    Once again, the assumption behind Ms Hogan’s submission is, at least dubious, if not fallacious and can be expressed as follows: if someone has wronged you, you will cease having anything to do with them and if you continue to engage with them in the same way as you did prior to the wrongdoing, it is an indication that the wrongdoing did not happen. While the assumption may have some operation in other contexts (arms-length business dealings being a typical one), it would appear to be completely inapposite in a case such as the present.

20. [234]

    When the alleged offending first occurred, the complainant was 9 years old. She had a congenital heart condition which required medical treatment including four operations (the last of which was carried out when she was 12) and was bullied at school as a consequence. She lived with her parents and her older brother. Her reaction to the first instance of offending was to feel “a bit uncomfortable” and she did not mention it to the applicant or anyone else the following morning or until the disclosures made years later in 2020 when she was 18 years old. The pattern of the alleged offending, as evident from the time sequence of the different counts, indicates a level of grooming, in that the first three counts involved indecent assault rather than aggravated sexual intercourse. It was open to the jury to consider that the complainant might have been loath to complain about later events when she had not complained about earlier events.

21. [235]

    The evidence disclosed that the complainant’s relationship with her father, apart from the sexual offending, was close and loving. It was open to the jury to consider that the complainant’s distress about the sexual offending in this context was exacerbated by the fact that she did love him (and was utterly dependent on her parents, including financially and because of her health condition). Indeed, it was open to the jury to regard the text she sent to WB on 3 July 2020, “[t]he thing I hate most about it, is the fact that he was always so gentle about it”, as a reflection of her distress at the conflict between her love for her father (and his for her) and the offending conduct.

22. [236]

    Ms Hogan acknowledged in submissions that she, as an experienced practitioner in the criminal law, accepted that it was possible for a victim of a sexual assault committed by a family member (typically a father, grandfather or uncle) to continue to love the family member, notwithstanding the sexual assaults perpetrated by him. However, she submitted that her knowledge derived from her experience in criminal trials with respect to child sexual offending and that the jury could not be expected to be aware of such matters in the absence of expert psychiatric or psychological evidence of which there was none as to that matter in the present case.

23. [237]

    Leaving aside any prior experience which a juror or jurors may have had of intra-family sexual abuse, it was, in my view, open to the jury to accept the complainant’s evidence of her feelings: namely, that she loved her father but did not like what he had done to her. The resolution of this matter was, as with the other matters raised by Ms Hogan in this context, quintessentially a matter for the jury, which is regarded as a “microcosm of the community”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [48] (McHugh, Gummow and Kirby JJ).

24. [238]

    The location of the complainant’s second bedroom centrally within the home and the fact that her door was open during the alleged offences committed while she was in that bedroom was relied on by Ms Hogan as indicating the “implausibility” of the offences having been committed in those circumstances, given the high risk of detection. However, the evidence revealed several instances where the applicant had a legitimate reason to be in the complainant’s bedroom or the family bathroom or in the same bed as the complainant.

25. [239]

    The matters which would explain his presence in her bedroom included the following: first, to help the complainant when she vomited, as she tended to do when she had her period, because the complainant’s mother could not perform this task because of her own tendency to vomit in those circumstances; second, to remove her ear plugs when she fell asleep; third, to give her a foot massage; and, fourth, to pull up a blanket on her bed as she felt the cold. Further, the applicant was the only other family member who could help the complainant wash her hair as her brother was regarded as being of an age where it was inappropriate for him to be in the bathroom when the complainant was there and the complainant’s mother’s medical difficulties with her hands and arms meant that she was not capable of helping. Because the complainant sought refuge in her parents’ bed, the applicant needed no excuse for her being there.

26. [240]

    It was also open to the jury to regard the evidence that the complainant’s mother was a light sleeper as no more than a subjective assessment which did not cast doubt on the credibility of the complainant regarding the counts concerning the applicant’s conduct when she was in her parents’ bed (counts 1 and 3) or make the conduct otherwise implausible.

27. [241]

    It was also open to the jury to consider that the applicant was not deterred by the risk of detection (which he may have adjudged to be low given that he could have explained his presence by reference to the matters referred to above). The greatest risk of detection was that the complainant would tell her mother. It was open to the jury to consider that the applicant considered this risk to be low since he had been sexually offending against her for years and she had, to his knowledge until 20 July 2020, not told anyone.

28. [242]

    It was open to the jury to consider that the applicant’s conduct in noticing the cuts to the complainant’s thighs, telling her mother and referring her for treatment reflected his confidence that since she had not disclosed his previous conduct, she would not disclose his contemporaneous conduct.

29. [243]

    Ms Hogan submitted that the complainant’s apparent failure to express emotions when MM and LM were present at the home on 20 July 2020 told against her credibility. This submission would appear to incorporate an assumption that if the complainant had been a victim of sexual offending, she would behave in a particular way (breaking down and crying or expressing the extreme emotions which adults would expect to see in those circumstances). In Maughan v R [2020] NSWCCA 51 at [2], R A Hulme J cautioned against:

30. [244]

    Ms Hogan’s submissions were redolent with references to stereotypical and discredited expectations. Her submission that it was implausible that the complainant would have been speaking to the applicant within earshot of BM’s bedroom if the offending conduct had occurred earlier that evening and that her evidence was “inconsistent” with BM’s evidence must be rejected. Given that the complainant had continued to live with her parents for years after the original offending conduct, it was open to the jury to consider that there was no such inconsistency.

31. [245]

    The use of the word “implausible” in this context is fraught because it implies that there is a “usual” or “conventional” way in which humans behave in certain situations, including traumatic ones, and that any deviation from this supposed norm is an indication that the complainant is unreliable and lacking in credibility. While the concept of “objective probabilities” can be useful when assessing the consistency of a witness’ version against known events, there is force in the observation that truth is stranger than fiction. Further, matters which may appear to some to be implausible (such as that a truthful complainant may take years to disclose a genuine complaint), may be explicable when viewed with greater knowledge of the consequences of trauma.

32. [246]

    The jury’s task was to decide the matter on the basis of all of the evidence. It was entitled to accept the complainant as a credible and reliable witness of the offences charged (with the exception of the complainant’s age as alleged in count 5, which is separately addressed below).

33. [247]

    Plainly, MM and LM expected that the complainant would engage with them when they visited her home on 20 July 2020. However, she did so only to a very limited extent and kept her phone on, with WB and LR listening in, throughout. The jury was entitled to consider that, while MM and LM may have seen the complainant’s laconic responses and disinclination to engage, as an indication that she was not telling the truth or was being flippant, and that they may have seen the applicant’s overt shock at the allegations and vociferous protestations of his innocence as supporting his position, the complainant’s flat affect and lack of engagement was consistent with the truth of her complaints. The jury may have considered that these matters were a manifestation of the effort which it took for the complainant to make the disclosure which had the potential to (and did in fact) unleash all the consequences which had prevented her from saying anything to her mother for so long. It was also open to the jury to regard MM and LM’s assessment of the dynamics as honest but mistaken.

34. [248]

    It was open to the jury to consider that the pain felt by the complainant in her feet which was alleviated by foot massages and the circumstance that the applicant was the only member of the family capable of administering such massages reflected her need for treatment and was not inconsistent with his having exploited the opportunity which the giving of such massages gave him to re-offend.

35. [249]

    It was open to the jury to consider that the complainant’s preparedness to seek refuge and comfort from nightmares in her parents’ bed reflected her emotional dependence on them and her need for help and support and was not in any way inconsistent with the circumstance that the applicant had at times exploited such opportunity to sexually assault her.

36. [250]

    Ms Hogan submitted that because there was no evidence of the applicant having sexually offended against any child other than the complainant or JL (whose evidence she submitted ought not be accepted), the tendency to be sexually attracted to young females and to act on that sexual attraction had not been established. Further, she relied on the evidence, including of LM and MM, of witnesses who were not aware of any inappropriate conduct between the applicant and their children.

37. [251]

    The first answer to this is that, in my view, the verdicts of guilty were reasonable even if the tendency evidence is put to one side. However, it does not follow from the lack of evidence of other offending (beyond the complainant and JL) that the applicant did not have paedophilic tendencies. After all, it was open to the jury to accept that the disclosure which the complainant made to her mother on 20 July 2020 was the first the mother had heard of this, notwithstanding that she had lived in the same house with the applicant and the complainant throughout.

38. [252]

    Further, it was open to the jury to accept JL’s evidence. She came forward and made the disclosure about what had happened to her 32 years previously in circumstances where she had never before disclosed this. It was open to the jury to reject the postulated motive for the disclosure (that JL was in cahoots with MB, who did not like the applicant) and consider that JL was a truthful witness who came forward because she believed (correctly) that her evidence was relevant to the complainant’s allegations. It was also open to the jury to regard the different assessments made by different witnesses as to who was close to whom as incapable of diminishing the credibility of any of them and reflecting the type of variation you would expect in an assessment of social interaction from different participants, each of whom might be telling the truth as they saw it.

39. [253]

    In addition to the matters referred to above, Ms Hogan submitted that it was not open to the jury to convict the applicant of count 6, given her evidence about the degree of penetration of the applicant’s penis into her genitalia. The direction given by the trial judge as to this matter is extracted in the portion relating to the summing up. No objection was taken to the form of the direction before the trial judge or in this Court, which accorded with the definition of sexual intercourse in s 61H(1)(a) of the Crimes Act (as it then applied) which means “sexual connection occasioned by the penetration to an extent of the genitalia of a female person … by … any part of the body of another person”. Having regard to the complainant’s evidence, extracted above, it was open to the jury to accept that evidence and find that the Crown had proved beyond reasonable doubt that the applicant did have sexual intercourse with the complainant.

Conclusion

1. [254]

   Save as to the conviction of count 5, in so far as it pertains to the age of the complainant at the time of the commission of that offence, I am satisfied, having reviewed all of the evidence in the trial, that it was open to the jury to be satisfied of the guilt of the applicant on all counts. With that single qualification, I do not have any doubt of the guilt of the applicant on any of the counts.

The challenge to the conviction on count 5

1. [255]

   Ms Hogan submitted that the evidence adduced by the prosecution was insufficient to prove beyond reasonable doubt that the complainant was under 14 years of age when count 5 was committed. While the Crown endeavoured to persuade this Court, by reference to the time within which the complainant engaged in acts of self-harm, that the offence could have been committed when the applicant was 13 years old, the evidence was insufficient to exclude the possibility that the offence was committed after the complainant turned 14.

2. [256]

   I reject Ms Hogan’s submission that it ought be inferred that the return of a guilty verdict on count 5 indicated that the jury either acted irrationally generally or that they did not accept the complainant as a witness of truth. The complainant’s evidence, as referred to above, was that this count happened when she was “13 or 14”. It was this (understandable) uncertainty, which the jury was entitled to accept as honest, as to her precise age which gave rise to the alternative count.

3. [257]

   Because of my view that the evidence was not capable of establishing beyond reasonable doubt that the complainant was under 14 years when count 5 was committed, it is necessary to quash the conviction on that count and address the alternative count.

4. [258]

   I consider that, once it was appreciated that the evidence was incapable of establishing beyond reasonable doubt that the complainant was under 14 years at the relevant time, the Crown in the present trial ought to have withdrawn count 5 from the indictment and substituted a charge under s 66C(4) for the withdrawn charge under s 66C(2). This would have been a preferable course to the concession made in the Crown’s closing address about the complainant’s age and would have removed the risk of the jury returning an unreasonable verdict on count 5. I note for completeness that a trial judge does not have power to direct a verdict of acquittal solely on the basis that a verdict of guilty would be unreasonable in the circumstances: Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).

5. [259]

   There was no challenge to the trial judge’s ruling that the alternative count (based on s 66C(4) of the Crimes Act) could be left to the jury. Because it returned a guilty verdict in respect of count 5, the jury did not need to consider the statutory alternative. However, as the conviction for count 5 needs to be set aside, the question arises as to what this Court ought do with the statutory alternative.

6. [260]

   The Crown submitted that the Court ought find the applicant guilty of the statutory alternative and enter a verdict on the alternative count. The Crown also submitted that this Court did not have the material germane to re-sentencing on the alternative count and that, accordingly, the matter ought be remitted to the trial judge for sentence.

7. [261]

   Ms Hogan submitted that once count 5 is set aside, there is no remaining alternative count because this Court could not be satisfied that the jurors would have been unanimous in finding that the complainant was between 14 and 16 years (as specified in s 66C(4)) rather than between 10 and 14 years (as specified in s 66C(2)). Accordingly, she submitted that the conviction on count 5 ought be set aside and the matter remitted to the trial judge for sentence.

8. [262]

   The Crown accepted that, by reason of Stephens, it could not rely on s 80AF of the Crimes Act, as the trial had already commenced before reliance was foreshadowed. However, the Crown submitted that the statutory alternative was available and relied on Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24 (Gilson) and R v JGW [1999] NSWCCA 116 (JGW).

9. [263]

   In Gilson, the appellant, Gilson, was charged in the alternative with the common law offences of stealing and receiving stolen goods in South Australia. The evidence was consistent with either charge. The trial judge directed the jury that if they were satisfied that Gilson was guilty of one or other of the offences, they were obliged to determine, on the balance of probabilities, which one of them he committed and convict him of that one. The jury returned a verdict of guilty of receiving. The appellant appealed on the ground that the direction was erroneous because of the reference to the balance of probabilities. The High Court dismissed the appeal, holding that although the direction was erroneous, there was no substantial miscarriage of justice as the offence of receiving was clearly the lesser offence.

10. [264]

    In coming to this conclusion, the Court noted various solutions to the problem. One was that where a jury is unsure of the guilt of the accused on one or other of two alternative offences, the accused ought be acquitted of both: see R v Bruce [1988] VR 579 at 601. The Court also reviewed the legislative solutions (applicable in Queensland and Western Australia) which provided that where stealing and receiving property were charged in the alternative and the jury found specially that the accused either stole the property or received it knowing it to be stolen, but were unable to say which of those offences was committed, the accused is not entitled to be acquitted, but the court shall enter a conviction of the offence for which the lesser punishment is provided.

11. [265]

    The Court in Gilson noted that there was no corresponding legislative provision in South Australia. The plurality (Mason CJ, Deane, Dawson and Toohey JJ) said at 363:

12. [266]

    The plurality held at 364, that, where there are alternative charges, the trial judge should direct the jury which of the offences they should regard as the less serious and the jury should be instructed that if they are satisfied beyond reasonable doubt that the accused is guilty of one or other of the offences but are unable to say which, they should return a verdict of guilty of the less serious offence: see also Brennan J at 369 and Gaudron J at 370.

13. [267]

    It was accepted that in the present case the trial judge did not direct the jury in accordance with Gilson, that is, the trial judge did not tell the jury that if they were satisfied that the applicant was guilty of either an offence under s 66C(2) or s 66C(4) but could not decide which, they ought return a verdict of guilty in respect of the less serious offence (s 66C(4)). Rather, the trial judge gave the direction set out above, which did not give the jury any guidance as to how they should return a verdict if there was no unanimity on the age of the complainant (by reference to the applicable charge). This omission may explain the verdict which was returned.

14. [268]

    The correctness of Gilson has not been doubted. However, in R v Marijacevic (2001) 3 VR 611; [2001] VSCA 188, the Victorian Court of Appeal held that it did not apply to statutory offences in Victoria because of the particular statutory wording. I do not consider that this qualification to the application of Gilson affects the present case because the difference between the principal count 5 (s 66C(2)) and the statutory alternative (s 66C(4)) relates only to the age of the complainant and not to any other element of the offence. Further, the statutory alternative is expressly authorised by s 80AB(9).

15. [269]

    In JGW, this Court addressed a similar issue to that which has arisen in the present case. The appellant, JGW, was, relevantly, convicted of a count 4 on indictment which charged attempted homosexual intercourse with a child under the age of 10 years contrary to s 78H of the Crimes Act. The complainant, NW, said that he was “about 10” when the offence occurred. Wood CJ at CL (Barr and G James JJ agreeing) said, at [84], that because the evidence left open the possibility that the offence was committed when the complainant was 10, the verdict was “unsafe and unsatisfactory” because the offence required proof beyond reasonable doubt that NW was under the age of 10 years.

16. [270]

    His Honour continued:

17. [271]

    Although the question was not specifically addressed in JGW, it is necessarily implicit in the Court’s reasons that it was not necessary for the Crown to prove that the victim was above the age of 10 years before a verdict of guilty could be returned for an offence under s 78K of the Crimes Act (as long as the Crown could prove that the victim was under the age of 18 years).

18. [272]

    While Gilson was not referred to in JGW, the same approach was adopted in JGW. In JGW because the jury could not have convicted JGW of the more serious offence (s 78H), but its (unreasonable) verdict of guilty in respect of count 4 indicated that it was satisfied beyond reasonable doubt of all other elements of that offence, this Court could set aside the conviction of the s 78H offence and enter a conviction of the lesser offence: namely the offence contrary to s 78K which criminalised “homosexual intercourse with a male person of or above the age of 10 years, and under the age of 18 years”. In JGW, this Court relied expressly on the provisions of s 78J(1) which provided:

19. [273]

    The Court in JGW held that a conviction for the alternative (lesser) offence was permissible under s 78J. The age of 10 years constituted the division between an offence under s 78H and an offence under s 78K. Because JGW is directly analogous to the present case and is, in my view, consistent with the approach in Gilson, this Court ought set aside the verdict in respect of count 5 and substitute a verdict in respect of the statutory alternative, being an offence contrary to s 66C(4), as authorised by s 80AB(9).

20. [274]

    Although s 7(2) of the Criminal Appeal Act empowers the Court, when it substitutes a verdict found by the jury for a verdict of another offence, to pass sentence in substitution for the sentence that was passed as is warranted, this Court does not have the requisite material before it to perform such a task. Further, it is desirable that the applicant and the Crown have the opportunity to have that task performed by the trial judge, or another judge of the District Court in order to preserve their rights of appeal to this Court. Accordingly, it is appropriate for this Court to remit the matter to the District Court for sentencing under s 12(2) of the Criminal Appeal Act: see the authorities referred to in Sivaraja v R; Sivathas v R [2017] NSWCCA 236 at [195] (Meagher JA, R A Hulme and Beech-Jones JJ).

21. [275]

    Although s 7(2) of the Criminal Appeal Act provides that the substitution of the verdict be done “instead of allowing or dismissing the appeal”, I consider that the appeal ought be allowed, as it was in JGW (when s 7(2) of the Criminal Appeal Act was in the same form), to indicate what has occurred.

22. [276]

    I should add for completeness that I do not regard the unavailability of s 80AF as affecting my conclusion. The High Court held in Stephens that the provision was not, as a matter of construction, intended to apply after a trial has commenced.

Proposed orders

1. [277]

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

   1. (1)

      Grant leave to appeal and allow the appeal against the conviction in respect of count 5.

   2. (2)

      Set aside the conviction in respect of count 5 and, instead, convict the applicant of the statutory alternative to count 5 namely an offence contrary to s 66C(4) of the Crimes Act 1900 (NSW) of unlawful sexual intercourse with a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely that the complainant was under the applicant’s authority.

   3. (3)

      Otherwise dismiss the appeal.

   4. (4)

      Remit the matter to the District Court arraignment list at 9.30am on 16 August 2024 for the applicant to be sentenced in accordance with law.

2. [278]

   DHANJI J: In this matter I have had the considerable benefit of reading the reasons of Adamson JA in draft. I agree with the orders proposed by her Honour and generally with her Honour's reasons. With respect to the verdicts on each of the counts other than count 5, I would add only the following. Various arguments were raised by the applicant as to why these verdicts were unreasonable. I largely agree with Adamson JA as to the weight to be given to these arguments. In a case such as the present, some aspects of the evidence may legitimately be argued to be implausible or to expose a question as to a complainant's credibility. Whether such an argument is effective will depend on all the circumstances of the case. That is, as the High Court said in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], in a case such as this, this Court:

3. [279]

   Subject to what follows as to count 5, this was not a case where the matters raised by the applicant satisfy me that the jury ought to have entertained a reasonable doubt as to proof of the applicant's guilt.

Count 5

1. [280]

   For the reasons given by Adamson JA, the verdict of guilty to count 5 was unreasonable. It was not open to the jury (in the sense that expression is used in M v The Queen (1994) 181 CLR 487; [1994] HCA 63) to be satisfied beyond reasonable doubt that the complainant was under the age of 14 at the relevant time. An element of the offence against s 66C(2) of the Crimes Act 1900 (NSW) was not established. This then raises the conundrum of whether a verdict for the less serious offence against s 66C(4) can be substituted by this Court pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW). There are three preconditions to the operation of s 7(2): that the “appellant has been convicted of an offence”; that “on the indictment the jury could have found the appellant guilty of some other offence”; and that “on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence”.

2. [281]

   It is the last of the above preconditions that is in issue in the present matter. The question is, must the jury have been satisfied the applicant committed an offence against s 66C(4) on the facts found by them? The jury, in finding the applicant guilty of the s 66C(2) offence, were satisfied of each of the elements of that offence, including that the complainant was under the age of 14. Could it be said they were necessarily satisfied of an offence against s 66C(4), which, on the face of it, requires satisfaction that the complainant was of or above 14 years of age (and under 16 years of age)? The question is, in my view, resolved by the proper construction of s 66C(4).

3. [282]

   Section 66C(4) provided as follows:

4. [283]

   Read literally and in isolation, this appears to require proof by the Crown, both that the complainant was of or above the age of 14, and under the age of 16. To read the provision literally and in isolation is not the proper approach to statutory construction: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382; [1998] HCA 28 per McHugh, Gummow, Kirby and Hayne JJ; Xerri v R (2021) 292 A Crim R 355; [2021] NSWCCA 268 per Hamill J at [158]-[163]. The task is to be approached in the manner described by Kiefel CJ and Keane J in The Queen v A2; Magennis, Vaziri (2019) 269 CLR 507; [2019] HCA 35, where their Honours said (at [32]-[33]):

5. [284]

   To similar effect Bell and Gageler JJ said (at [124]):

6. [285]

   Section 66C was, at the relevant time, in Division 10 of Part 3 of the Crimes Act. Part 3 was headed “Offences against the person”, while Division 10 was headed “Offences in the nature of rape, offences relating to other acts of sexual assault etc”. Within Division 10, s 66A to s 66EB created a number of offences with respect to sexual misconduct against children. Those offences were, by reference to the section headings: “Sexual intercourse – child under 10”; “Attempting, or assaulting with intent, to have sexual intercourse with child under 10”; “Sexual intercourse – child between 10 and 16”; “Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16”; “Alternative verdicts”; “Persistent sexual abuse of a child”; and “Procuring or grooming child under 16 for unlawful sexual activity”. For the purposes of the present analysis it necessary to set out only the offences created by s 66A(1) and (2), s 66B, s 66C(1)-(4):

7. [286]

   It is plain that these offences are concerned with criminalising sexual intercourse (as relevantly defined) with children under the age of 16. The provisions do this by creating a range of offences which provide for increased penalties for the aggravated forms of the offences in s 66A and s 66C, and as presently relevant, the extent to which the child is below the age of 16. It is not part of the purpose of the provisions to criminalise intercourse with persons above a certain age.

8. [287]

   Turning to s 66C(4) the words of the provision do two things. They create an offence and they provide a maximum penalty for that offence. Given the purpose and context in which s 66C(4) appears, is clear that it provides the following elements of an offence:

9. [288]

   The words “of or above the age of 14”, in my view, do not create a further element. Those words are relevant only for the purposes of providing a demarcation from the offence in s 66C(2) for the purposes of penalty. If the offence created by s 66C(2) cannot be proved only due to an inability to prove the complainant was under the age of 14, the accused will be guilty of an offence against s 66C(4), provided it can be proved the complainant was under the age of 16. That was the case here.

10. [289]

    In expressing the above view, I am aware that, on my construction, there would have been no need for the legislature to introduce s 80AF, in so far as that provision applies where there is uncertainty as to age. The legislature’s perception as to the need for such a provision at the time it was enacted, however, provides no assistance as to the proper construction of s 66C as it stood at the relevant time, prior to the introduction of s 80AF.

11. [290]

    It might also be thought, having regard to the length of time such provisions have been in force, that it is somewhat surprising that, if my construction be correct, it has not been stated in this manner before. The only authority directly relevant to the issue to which this Court was directed was R v JGW [1999] NSWCCA 116, noting the Crown also relied on Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24. In R v JGW, the complainant said he was “about 10” at the time of the relevant conduct, leaving open the possibility he was 10 years old in the context of an offence that required proof he was less than that age. Wood CJ at CL, with whom Barr and Greg James JJ agreed, said (at [85]-[86]):

12. [291]

    Whilst expressed briefly, his Honour's reasoning is consistent with my own.

13. [292]

    Given my view of the proper construction of the provision, there is no need for recourse to any principle derived from Gilson v The Queen. The jury were satisfied of facts that would render the applicant liable to conviction for an offence against s 66C(4) of the Crimes Act.

The effect of the applicant's partial success in relation to count 5.

1. [293]

   I have considered whether the doubt the jury should have experienced on count 5, causes me to have a doubt as to any of the other offences on the indictment. It does not. While the conviction on count 5 raises a concern as to the jury's approach to their task, the evidence in relation to the other counts was sufficiently cogent that I do not harbour a doubt as to the applicant's guilt with respect to those counts.

2. [294]

   I agree with the orders proposed by Adamson JA.

3. [295]

   SWEENEY J: I have had the advantage of reading in draft the judgment of Adamson JA. I gratefully acknowledge her Honour’s detailed analysis of the evidence in the trial and the issues in the appeal.

4. [296]

   I have also had the benefit of reading in draft the judgment of Dhanji J and am grateful to his Honour for his consideration of the statutory provisions underlying Count 5 and its alternative.

5. [297]

   Having conducted my own independent assessment of the evidence I am of the view that, leaving aside Count 5, the verdicts were not unreasonable. I agree with that conclusion by Adamson JA and the conclusions of her Honour and Dhanji J in respect of Count 5 and its statutory alternative.

6. [298]

   I agree with the orders proposed by Adamson JA.