DB v R

1. [1]

   THE COURT: The applicant (DB) seeks leave to appeal from his conviction under s 61M(2) of the Crimes Act 1900 (NSW) for aggravated indecent assault of a person under 16. DB was tried in May 2024 on an indictment containing three counts, each involving alleged assault of the same complainant (LC). The counts were, in summary:

   1. (1)

      Count 1 – Aggravated indecent assault (victim under 16 years of age), contrary to s 61M(1) of the Crimes Act, between 14 September 2007 and 16 September 2008;

   2. (2)

      Count 2 – Sexual intercourse with a child aged between 10 and 14, contrary to s 66C(1) of the Crimes Act, between 1 January 2008 and 1 August 2010; and

   3. (3)

      Count 3 – Aggravated indecent assault, contrary to s 61M(2) of the Crimes Act, between 1 January 2011 and 28 January 2011.

2. [2]

   DB was acquitted on Counts 1 and 2 and convicted on Count 3. DB was sentenced to a community corrections order for a period of three years. He does not seek to appeal against that sentence.

3. [3]

   DB seeks leave to appeal from his conviction on the following grounds:

4. [4]

   None of the grounds of appeal involves a question of law alone, and accordingly DB requires leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). As the Crown correctly submits, given that DB complains in subpars 2(i)(a), 2(i)(b) and 2(i)(c) about directions (or the absence of directions) in circumstances where no correction or further direction was sought at trial, leave is additionally required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to agitate those matters. DB also requires leave under r 4.15 to rely on what is now ground 2(ii), being a new ground raised for the first time at the hearing of the appeal. That involves a complaint about the evidence of HC (the sister of the complainant) being admitted, in circumstances where DB’s counsel did not object to the admission of the evidence at trial.

5. [5]

   DB’s argument in support of ground 1 focused on an asserted inconsistency, of the kind that would demonstrate appellable error, between the jury’s verdicts of not guilty (on Counts 1 and 2) and guilty (on Count 3). For the reasons which follow, there is no inconsistency of that kind. Nor has DB demonstrated appellable error on the part of the trial judge or defence counsel at trial as alleged in the various parts of ground 2. The appropriate outcome is for leave to be granted and the appeal to be dismissed.

Factual background

1. [6]

   LC was born in September 1997. DB is around four and half years older than LC. The mothers of DB and LC were longstanding friends and as a result DB and LC saw each other relatively frequently as children. According to LC, DB touched him in a sexualised way over many years, beginning when LC was around three or four years old and concluding with an incident in Enmore when LC was aged 13 and DB was aged 17. At trial this was reflected in evidence given by LC and in evidence from other witnesses about complaints which LC had made to them referring to sexual contact by DB.

2. [7]

   Count 1 concerned an alleged incident in September 2007 in the upstairs study of DB’s then residence in Blackheath, on the night before LC’s tenth birthday. LC’s account was that he was sitting on DB’s lap while pornography was playing on a computer, and DB stroked LC’s penis.

3. [8]

   Count 2 concerned an alleged incident at LC’s house in Willoughby. According to the indictment the offence occurred between 1 January 2008 (when LC was ten years old) and 1 August 2010 (by which time LC would have been twelve). On LC’s account DB was staying overnight on a mattress in LC’s room and DB performed fellatio on LC and tried to kiss him.

4. [9]

   Count 3 was, on LC’s account, the last occasion when DB touched him in a sexualised way. LC was staying at a house in Enmore in January 2011 (by which time LC was thirteen years old) as part of a house-sitting arrangement. According to LC, he was sitting between the legs of DB in the front room of the house while DB stroked LC’s penis.

5. [10]

   LC gave evidence about two other specific incidents that were relied on by the Crown as context evidence only. The first was an incident when LC was three or four years old and he was playing doctors and nurses with DB at a house in Chatswood. The second was said to have occurred at a park in Blackheath in 2007 or 2008. LC said that while visiting DB’s house in Blackheath he and DB went to the park to play basketball. LC said that while they were near a brick wall in the park DB pulled down LC’s pants and stroked LC’s penis.

6. [11]

   The jury heard evidence about a number of complaints made by LC to friends and relatives that he had been sexually abused by a family friend. In around 2016 or 2017, LC told his best friend at the time, a Mr P, that he was “sexually abused by a family friend throughout [his] childhood”. In about 2017 he told his then girlfriend that he was “sexually abused by a childhood friend” and named DB. In 2019, LC told a Mr T, his friend and housemate, that he had “been sexually abused as a kid by a family friend”. Mr T’s evidence was that LC had told him that he had been sexually assaulted when he was younger “repeatedly by his mum’s friend’s son” and alluded to having been “repeatedly abused … repetitively over a period of years”. In 2020, LC told his mother that he had been sexually abused as a child. LC’s mother gave evidence that LC told her that DB had been raping or sexually assaulting him for ten years from four to 14. At some time during the COVID-19 epidemic LC told a friend, Mr B, that he had been “sexually abused throughout [his] childhood” by DB. LC also indicated to his father and brother that he had been “sexually abused throughout [his] childhood” by DB.

7. [12]

   LC’s sister, HC, had provided a statement to police dated 14 April 2021. An issue was raised pre-trial about the form in which HC’s evidence would be received. HC was pregnant and there were concerns about the adverse impacts of giving evidence. The Crown and DB agreed that, subject to a particular paragraph being removed (which was the subject of a different argument before the trial judge), HC’s evidence would be received without HC being required to attend and without any cross-examination. This was raised with the trial judge in a pre-trial discussion. The trial judge asked if there was any contest about HC being unavailable, to which DB’s counsel replied:

8. [13]

   As to the reference to portions of the statement of HC being helpful to the defence, HC’s statement included evidence that she did not recall DB’s actions as a child to be sexual in nature, or that his jokes were sexually based. She recalled DB and LC playing together on a regular basis but had no memory of any play of a sexual nature. Nor did she recall there to be any signs of LC being upset after he had played with DB, or otherwise exhibiting mood changes by LC.

9. [14]

   No conditions were attached to the arrangement between the Crown and DB as to how HC’s evidence was to be adduced. At trial, HC’s statement was read by the officer in charge of the investigation. No limitations were sought or imposed on the use that could be made of the evidence of HC as received by the jury.

10. [15]

    Relevantly for the purposes of Count 3, HC’s evidence included that she saw DB for the last time at the Enmore house and HC slept on the couch because LC and DB were sharing the front room. That evidence was in conflict with DB’s own account that he did not sleep overnight at the Enmore house, but was instead driven to his grandmother’s house by his uncle after the cricket match at the SCG.

11. [16]

    DB denied that any sexual contact had ever occurred between him and LC. As to Count 1, DB accepted that there was an occasion when LC stayed at DB’s house in Blackheath on the night before his birthday. He denied touching LC and denied that they had watched pornography. As to Count 2, DB denied staying overnight at LC’s house in Willoughby. DB’s case in relation to Count 3 was that he did visit the house in Enmore in January 2011, and attended a cricket match that evening with LC at the Sydney Cricket Ground, but he did not stay overnight and did not touch LC as alleged. In the closing address to the jury DB’s counsel urged that LC was not a reliable and accurate witness “even if in some matters he might believe that he’s being truthful”.

Ground 1 – Contention that the jury’s verdict on Count 3 was unreasonable given the inconsistent verdicts

1. [17]

   As noted above, DB’s argument in support of ground 1 of the appeal focused on a contention that there is an inconsistency between the jury’s verdicts of the kind that reveals that the jury must have erred in the purported discharge of its functions. A claim of factual inconsistency of this kind must be tested by standards of logic and reasonableness: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 366. The exercise is necessarily “highly factually specific”: Kumar v R [2025] NSWCCA 119 at [128]; see MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], [89]. In applying the standards of logic and reasonableness, due respect must be given to the constitutional role of the jury as the trier of fact and the abiding importance of the role of the jury as representative of the community: MFA at [34]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at 329, [65]. A jury may not, and need not, always act in accordance with strictly logical considerations or strict principles of law: MacKenzie at 367. A jury is entitled to give effect to its “innate sense of fairness and justice” as well as its sense of proportion and compassion: MFA at [85]. The appellate court should also remain conscious of the advantages of the jury, given the limitations of the written record when it comes to capturing all the subtle qualities of the evidence heard by a jury: MFA at [23]; ML v R [2015] NSWCCA 27 at [46]; Kumar at [157].

2. [18]

   DB carries a heavy burden in seeking to demonstrate inconsistency of the relevant kind. Such inconsistency is only demonstrated where the jury’s different verdicts cannot be reconciled, indicating an outcome that “no reasonable jury who had applied their mind properly to the facts in the case could have arrived at”: Kumar at [125]. If this Court perceives a proper way in which to reconcile the different verdicts of the jury, the conclusion that ought generally be drawn is that the jury performed its functions as required: Mackenzie at 366; MFA at [85]. The jury’s verdict should be overturned on the basis of unreasonableness in the form of factual inconsistency only where the outcome on different counts involves an “affront to logic and commonsense”: Mackenzie at 368; MFA at [86]. As explained by Gaudron, Gummow and Kirby JJ in Mackenzie at 368, where the jury’s different verdicts exhibit such a character, this “strongly suggests a compromise of the jury’s duty”:

3. [19]

   An appellate court seeking to decipher the different verdicts of a jury must keep in mind that it is orthodox for a jury dealing with an indictment containing multiple counts to be directed to give separate consideration to each count, and to be directed that the evidence of each witness may be accepted in whole or in part: MFA at [34]. Directions of this kind were given by the trial judge in the present matter:

4. [20]

   The trial judge proceeded to give the following directions:

5. [21]

   This Court proceeds on the assumption that the jury acted in accordance with those directions of the trial judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]. The directions are consistent with the analysis of Wood CJ at CL in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [212] that a jury has the right to:

6. [22]

   DB points to similarities between the quality of the evidence relied upon by the Crown in respect of Counts 1, 2 and 3. This was in aid of a submission that there are no material qualitative differences between the evidence available in respect of each count, such that if the jury was not satisfied beyond reasonable doubt that the evidence in respect of Counts 1 and 2 then logically the jury ought to have had a reasonable doubt about Count 3. In DB’s submission, there was a similar level of detail provided by LC in his account of each of the three events that were charged against DB. DB sought to demonstrate this in a number of ways, including by pointing out that LC’s evidence on each count occupies a roughly similar quantity of transcript. DB also submitted that there was no material difference in the extent of uncertainty in LC’s account of the three allegations.

7. [23]

   Relatedly, DB invites this Court to infer that the only explanation for the jury having reached verdicts of not guilty in respect of Counts 1 and 2 is that the jury had doubts about LC’s credibility. From that premise DB argues that the jury ought logically to have entertained the same doubt about LC’s credibility in respect of Count 3 and should have entered a verdict of not guilty.

8. [24]

   Somewhat in tension with these submissions, DB drew attention to the fact that the trial judge, in the course of describing the Crown’s position, referred to the fact that HC’s evidence provided some support for LC’s account of the Count 3 events at Enmore, which had been a matter given some emphasis by the Crown. In DB’s submission, this might provide an explanation for the jury’s different approach to Count 3. That in turn would have significance for DB’s separate complaint about the directions given by the trial judge. But in the context of ground 1 it does not advance DB’s arguments on irrational inconsistency. Even assuming for these purposes that, as DB submits, there was not a significant difference between the degree of corroboration in other evidence of LC’s account for Count 3 and the degree of corroboration on Counts 1 and 2, the point still serves to emphasise that the detail and quality of the evidence available on each count from different sources was not the same, and it was the responsibility of the jury, as appropriately directed by the trial judge, to consider each count separately and determine if the Crown had proved guilt beyond reasonable doubt. Assuming it could be inferred that the jury was led by comments from the trial judge to give particular weight to the corroboration of LC’s evidence in respect of Count 3, that would only serve to provide a rational explanation for the different verdicts, not a process of reasoning that affronts logic and commonsense.

9. [25]

   The Crown resists the argument that there were no relevant qualitative differences between the evidence relied upon in support of Count 3, as opposed to Counts 1 and 2. In relation to Count 1, the following aspects of LC’s evidence assume significance:

   1. (1)

      LC said that his penis was exposed when DB was stroking it, but he could not recall if his pants were off or, if they were, how his pants came to be taken off;

   2. (2)

      LC could not initially recall the year in which the incident occurred, although he did say that it was the day before his birthday. He was permitted to refresh his memory by reference to his police statement (signed on 15 December 2020), in which he had given the year as 2007 or 2008;

   3. (3)

      under cross-examination LC said he was unsure what he and DB had been doing both before going into the study and afterwards; and

   4. (4)

      LC could not recall if he or DB said anything during the incident, which hand DB used to stroke his penis or how the incident came to an end.

10. [26]

    DB led evidence that conflicted in various ways with the account given by LC. Both DB and his mother gave evidence that, contrary to LC’s account, the family did not have a desktop computer at the Blackheath house but only a laptop. DB’s mother also said that DB did not have unsupervised access to the computer. DB’s father gave evidence denying LC’s claim that the father had jokingly yelled out to DB and LC to ask if the boys were watching porn.

11. [27]

    In relation to Count 2, the following aspects of LC’s evidence assume significance when contrasting the verdict of not guilty with the conviction on Count 3:

    1. (1)

       LC initially could not recall when the incident took place. He could not recall the year (including what year he was in at school) or how old DB was at the time. LC was permitted to refresh his memory from his police statement, after which he said that the incident occurred in 2008; and

    2. (2)

       according to LC, after DB kissed him and sucked his penis, DB asked LC if he would suck DB’s penis. DB offered him $10, but LC declined. LC could not recall what happened next, including if any other conversation took place. LC could not recall how long the incident lasted.

12. [28]

    In respect of Count 3, LC’s evidence was that this was the last time there was a sexual incident between him and DB. He initially said that this was the last time he saw DB, although he later accepted that they were both later in attendance at a funeral. His evidence about when and where the incident occurred was specific in a number of respects. LC said that “we were housesitting … in Enmore” and gave the name of the owner of the usual resident of the house. When asked how old he was at the time LC said that he had just started high school and must have been about twelve or thirteen years old. Under cross-examination, LC was taken to his police statement signed on 15 December 2020 in which he had said that DB came for a sleepover at the Enmore house “[s]ometime before Christmas”, whereas other evidence indicated that LC was at the Enmore house only in January 2011 (which was consistent with the timing in Count 3 of the indictment). As the Crown submits, the minor discrepancy in timing reflected in the statement of LC was relatively insignificant in terms of the assessment of LC’s reliability undertaken by the jury in respect of each count.

13. [29]

    LC described being in the front room of the house, alone with DB. His evidence was that he and DB “were on a bed, on the closest side to the door to the room, facing a computer and [DB] had me between his legs in front of him and he again stroked my penis”. LC recalled that his pants were off but he could not recall who took them off. Nor could he recall what he and DB had been doing prior to being on the bed. LC described a conversation in which DB asked if LC was going to ejaculate, to which he said no. He explained that he had not hit puberty at the time and was not able to ejaculate. LC’s evidence was that the incident stopped when he could not ejaculate and that afterwards he and DB went and watched television in the lounge room of the house. These details were not based on LC having refreshed his memory by reviewing the contents of his police statement concerning Count 3.

14. [30]

    Under cross-examination, LC said that he could not recall meeting DB at the Newtown Train Station, travelling back to the Enmore house and then getting a lift to the cricket from DB’s uncle.

15. [31]

    The submissions of the Crown regarding the qualitative differences between the evidence going to each count must be accepted. With sufficient abstraction, it can be said that in respect of each count LC was able to provide a reasonable amount of detail about similar issues (such as the nature and location of the touching), while in each case there were also some gaps in his memory which tended to raise an issue of reliability. However, abstract comparisons of this kind are not sufficient for DB’s argument to succeed, given the factually specific nature of the exercise. Nor is much gained by a quantitative comparison of the pages of transcript occupied by the evidence given in respect of each count. Whatever similarities might be observed between aspects of the evidence going to each count, it cannot be said that there is such a qualitative equivalence between the evidence in each case as to signal that if the jury did not find the evidence in respect of Counts 1 and 2 to be sufficient it was bound to reach the same conclusion in respect of Count 3. The analysis of the evidence going to each count set out above demonstrates that the evidence available in each respect was materially different and it was incumbent on the jury to consider the combined effect of all of the available evidence in determining if the Crown had proved each count beyond reasonable doubt.

16. [32]

    The particular differences in the evidence given by LC and others about the different counts must also be understood in the broader context of the timing and circumstances of each alleged offence. Count 3 concerned the most recent of the alleged offences. It would have been logical and open to the jury to consider that LC’s recollection of the most recent events may have been more reliable than his recollection of events that were more distant in time. Count 3 concerned events in January 2011. On LC’s account, the events the subject of Count 2 occurred in 2008. The Count 1 events were alleged to have occurred in 2007 or 2008. The passage of time has added weight where the witness is giving evidence about events that occurred when he was a young child. In considering the relative reliability of LC’s recollections of the past, it would have been logical and open to the jury to take into account that LC was 13 years old at the time of the Count 3 events, whereas he was 11 or 12 at the time of the Count 2 events (based on LC’s evidence) and younger still at the time of the Count 1 events. Those considerations provide logical reasons for the jury to reach different conclusions as between the different counts.

17. [33]

    The point is reinforced by the circumstances of Count 3. LC gave clear evidence that this was the last occasion on which sexual touching occurred. As far as LC could recall, this was the last time he had seen DB (although LC accepted that he later attended a funeral at which DB was present). LC was able to provide specific details of the incident and the surrounding circumstances that gave a solid grounding to his account. These were matters which the jury could logically have perceived as giving LC’s evidence in respect of Count 3 more reliability than his evidence in respect of the other counts.

18. [34]

    That is particularly so in circumstances where DB’s counsel had emphasised the following matters in closing address to the jury:

19. [35]

    DB’s argument also elides the distinction between credibility and reliability. The difference between those concepts was described in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [114] in the following terms by Nettle and Gordon JJ:

20. [36]

    As observed in Barney v R [2023] NSWCCA 85 at [17], a witness can be credible but not reliable, in that the witness may honestly believe something to have occurred but nonetheless be mistaken.

21. [37]

    There may be particular factual circumstances where a jury’s verdict of not guilty on a count or counts necessarily signals an adverse attitude to the general credibility of a complainant, in such a way as to indicate that the jury ought logically have entertained a reasonable doubt about the credibility of the complainant’s evidence on other counts: see TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [137]-[138]. But it by no means follows that this is true as a general proposition whenever a jury perceives reasonable doubt about the evidence of a complainant on a given count: see Kumar at [131]-[176]. A jury may properly consider a witness to be honest and generally credible, but not reliable in respect of particular matters. A verdict of not guilty on a particular count in proceedings relating to an allegation of sexual account cannot be treated as implicitly involving a rejection of the complainant’s evidence. In MFA at [34] Gleeson CJ, Hayne and Callinan JJ said:

22. [38]

    An adverse view of the reliability of a witness in a particular respect will generally have less extensive consequences that an adverse view of the credibility of a witness: Barney at [15]-[29]. On matters of reliability, it is commonplace for a witness to be reliable in relation to some matters but less reliable in relation to others: Barney at [20]. And even where an adverse view is taken of credibility, a jury may perceive particular problems of credibility associated with a complainant’s account of a particular matter without concluding that there is a more general doubt about the credibility of the complainant’s evidence: Barney at [19].

23. [39]

    Here there is no proper factual basis to infer from the verdicts of not guilty on Counts 1 and 2 that the jury took an adverse view of LC’s credibility, either generally or in respect of those counts. The more natural inference from the different verdicts is that the jury found LC’s evidence in respect of Count 3 to be more reliable than his evidence in respect of Counts 1 and 2. Distinguishing in this way between the strength of the evidence, including the evidence of LC, is far from an indication of illogicality and unreasonableness. To the contrary, it is entirely consistent with the directions given to the jury about the approach that they should take to the evidence.

24. [40]

    In support of ground 1, DB also referred to other objective indicia about the course of the jury’s deliberations. In doing so DB sought to rely on the proposition that an assessment of apparently inconsistent verdicts must be informed by all of the “facts and circumstances of the particular case”, including the circumstances “that give ‘insight’ … to the extent that is permissible, into the jury’s thinking”: TK at [124]-[128], referring to Mackenzie.

25. [41]

    After retiring to consider its verdicts the jury sent a note which, among other things, said “Are we able to ask why [DB’s uncle] did not testify?”. The explanation for the jury’s question is plain enough. DB’s uncle could potentially have confirmed DB’s account that, after the cricket game at the SCG, DB’s uncle drove DB to his grandmother’s house and therefore DB did not stay overnight at the Enmore house as claimed in the evidence of LC, HC and their mother. The fact that the jury was curious about the matter and made this request is unremarkable. So too is the response that the trial judge gave to the jury:

26. [42]

    As properly accepted by counsel for DB on appeal, the judge’s direction in response to the question was appropriate. The fact that the jury asked the question provides no logical support for DB’s contention that there is an irrational inconsistency between the jury’s verdicts on the three counts on the indictment. Nor does it otherwise signal that the jury’s verdict of guilty on Count 3 was unreasonable. It does not suggest, as DB submitted, that in relation to Count 3 the jury wrongly reversed the onus and asked itself if DB had persuaded them that he was not guilty. Nor can that conclusion be inferred from the fact that the jury received evidence, derived from body cameras worn by police, that when DB was first questioned by police he was asked about the Count 3 incident only.

27. [43]

    DB also referred in written submissions on the appeal to the time taken for the trial to be conducted, relative to the estimate initially provided to the jury about the likely duration. This was apparently in aid of a submission that the jury must be taken to have engaged in some form of illegitimate compromise as between different counts. The point was only faintly pressed at the hearing of the appeal, if it was pressed at all. Ultimately, no relevant inference can be drawn in this matter from the time taken for the trial to conclude, relative to the initial estimate.

Ground 2 - miscarriage of justice

1. [44]

   The applicant has referred to the various subparagraphs of appeal ground 1 as particulars of miscarriage of justice. Particular (i)(a) concerns the trial judge's directions in relation to one aspect of the evidence of uncharged conduct that was led by the Crown for context purposes. The Crown opened that evidence would be adduced from LC of the two uncharged incidents of sexual touching summarised at [10] above. The Crown also opened on more general evidence of uncharged sexual contact. The Crown said the following with respect to the events at Jubilee Park in Blackheath when the accused was between 13 and 15 years old and LC was between 9 and 11:

2. [45]

   The Crown opening was followed by defence counsel's brief opening statement. The trial judge then gave the jury some preliminary instructions and warnings, which included the following with reference to what the Crown had said about evidence that might be led "of other alleged sexual conduct or conduct of a sexual nature that the complainant asserts occurred with the accused":

3. [46]

   When the Crown had led from LC evidence of the three counts on the indictment and of the two specific uncharged acts, the Crown asked the following questions in an endeavour to elicit general evidence about other uncharged sexual conduct:

4. [47]

   The answer was stopped by an objection of defence counsel that the witness would be speculating about what he believed.

5. [48]

   The questioning then continued:

6. [49]

   The Crown's next question was objected to and, instead, her Honour elicited an answer as follows:

7. [50]

   The Crown made one further attempt, as follows:

8. [51]

   Defence counsel interrupted the answer with an objection and the trial judge ruled as follows:

9. [52]

   With that answer struck out, the only direct evidence from LC that he had been sexually assaulted by the applicant during his childhood on occasions beyond the three charged instances and the two specific uncharged events, was as follows.

10. [53]

    First, in cross examination it was adduced from LC that on 25 July 2020 he spoke to a police officer whose notes, as follows, accurately recorded what LC said at that time:

11. [54]

    LC agreed in cross examination that in reporting those matters he was referring to his experiences with the applicant, to whom the police officer referred as the "person of interest". In a further answer the applicant said:

12. [55]

    Secondly, when cross-examined about the history he gave to a psychiatrist in August 2020, LC gave the following answer:

13. [56]

    Finally, LC responded to defence counsel's Browne v Dunn question, towards the conclusion of cross examination, as follows:

14. [57]

    Although LC gave only the above direct evidence of a course of sexual assaults by the applicant that was more extensive than the three counts and the two uncharged incidents, the Crown also adduced without objection evidence of several out-of-court complaints by LC concerning the wider course of conduct. That evidence is summarised at [11] above. The applicant tendered a hospital record of the history given by LC to the psychiatrist who saw him in August 2020. The record contained the following:

15. [58]

    In the trial judge's direction on the subject, the highlighted portions of the following passages are now said to have given rise to a miscarriage of justice (emphasis added):

16. [59]

    The applicant takes no exception to the balance of her Honour's direction about the context evidence, in which the trial judge repeated what she had said at the very beginning of the trial. Her Honour continued her direction by warning the jury not to treat the evidence of uncharged sexual acts as establishing a tendency and not to substitute evidence of the uncharged acts for evidence of the specific acts alleged on the indictment. Her Honour said this (emphasis added):

17. [60]

    The applicant submits that it was inaccurate to tell the jury that LC "gave evidence just in general terms" that he was abused as a child over the course of ten years between the ages of four and 14. Contrary to the applicant's submission, LC did give evidence in general terms of a continuous course of sexual abuse, as referred to at [53]-[56] above.

18. [61]

    The applicant's written submissions include the following:

19. [62]

    There was no misapprehension. There was a significant volume of evidence of LC's complaints to family and friends about a ten-year course of persistent sexual abuse by the applicant but there was also evidence given directly by LC to the jury to the same effect. Some of the more telling answers in the latter category were adduced from LC in cross examination. The applicant's submission implicitly acknowledges that all participants in the trial, notably including defence counsel, saw no need for the trial judge in summing up to segregate LC's direct evidence about the general pattern of abuse or to distinguish it from his and other witnesses' evidence of out-of-court representations on the subject. The absence of any request for a redirection confirms that no risk of miscarriage of justice was perceived by defence counsel, who was in the best position to assess the matter. No such risk should now be perceived by this Court.

20. [63]

    Particular (i)(a) of ground 2 is of no substance.

21. [64]

    In circumstances explained at [12]-[14] above, the evidence of the complainant's sister, HC, was given by reading her police statement to the jury. HC gave the addresses of a series of houses in which LC and herself had resided with their mother during the childhood. The third address she gave was in Chatswood, followed by a home on Eastern Valley Way, Willoughby. HC said that she left home at the age of 17. HC said that when the applicant was about 18 (at which time, she also was 18) her mother was housesitting a property in Newtown. On the basis of other evidence in the trial, it was open to the jury to understand that this was a reference to the house in Enmore where LC alleged that the offence in Count 3 was committed.

22. [65]

    HC's statement included the following:

23. [66]

    In context, HC's reference to "our house" clearly meant each of the series of houses in which the family resided. She said that she recalled LC and the applicant "playing together on a regular basis".

24. [67]

    HC's evidence included that the applicant and LC spent time together at the Willoughby house where the offence in Count 2 was alleged to have been committed and that they were also present together at the Enmore house, the alleged scene of Count 3, on one occasion. The relevant parts of her statement are as follows:

25. [68]

    At the end of the first day of summing up, the jury sent a note requesting, amongst other things, the statement of HC. During the continuation of the summing up on the second day her Honour summarised the defence case as to why the evidence of LC should not be accepted and then said the following (emphasis added):

26. [69]

    In particular (i)(b) of ground 2 the applicant submits that the trial judge's statements in that passage "clearly conveyed her own impression that there was support for the complainant's accounts in relation to Count 3 by reason of the sister's evidence, but not in relation to other counts". That submission must be rejected. The repeated use of the word "that" shows that her Honour was listing a series of points urged by the Crown. Her Honour identified the proposition "That there is some support in relation to the Crown case certainly in relation to count 3" as a Crown argument, not as her own opinion.

27. [70]

    Immediately following the above passage, her Honour next directed the jury to exercise caution before convicting on any count having regard to the dependence of the Crown case "on you accepting the reliability of the evidence of a single witness", namely, LC. The jury were instructed that unless they were satisfied beyond reasonable doubt that LC was both an honest and accurate witness in the account he had given with respect to any charge, they could not find the applicant guilty of that charge. Her Honour continued as follows (emphasis added):

28. [71]

    The words emphasised merely referred, again, to the argument of the Crown that her Honour had already identified, concerning support for the prosecution case on Count 3 derived from HC's evidence that, at the Enmore house in 2011, she had observed LC and the applicant sharing the front room, which contained a double bed. It was open to the jury to regard that evidence as significant because it supported LC's assertion in his police statement that the offence in Count 3 occurred when the applicant slept over at the Enmore house. The applicant gave evidence that while LC was residing in Enmore the two of them went to the cricket together but after the game the applicant was driven by his uncle to his grandmother's house and did not stay over with LC.

29. [72]

    The applicant asserts that the above quoted passages from the summing up "misrepresented the extent of support provided by the sister's evidence … and overstated the significance of that support in any event (being of a circumstantial nature only)". That submission must be rejected. By identifying the Crown's argument, as her Honour was bound to do, she made no representation about the extent of the support provided by HC's evidence. The fact that HC's corroboration was limited to the issue of presence and opportunity was self-evident. No risk of miscarriage of justice arose from the judge not making specific mention of it.

30. [73]

    There is no substance in particular (i)(b).

31. [74]

    In closing address defence counsel made the following submission about LC's mental state when he presented at the psychiatric clinic with anxiety and depression in August 2020:

32. [75]

    The Crown requested the trial judge to correct those submissions in the course of the summing up. It was submitted that there was "psychiatric evidence" in that the clinical notes recorded recent disclosure of past sexual abuse as a proximate stressor in LC's life. The Crown misunderstood the point of defence counsel's submission to the jury, which was directed to the absence of expert psychiatric opinion about causation and was not rebutted by pointing to a clinician's note of the history he or she received from the patient. Her Honour did not accede to the Crown's request for a specific correction but said that she would direct the jury not to speculate.

33. [76]

    In due course, in the course of summarising the defence arguments, the trial judge directed the jury as follows (numbering added for ease of reference):

    1. (1)

       [It is submitted that] the Crown case is not of a quality sufficient to establish the accused's guilt on any count to your satisfaction. Emphasis was given that he is a troubled young man with a cannabis addiction who used drugs, abused alcohol, and had just come out of a relationship which he asserted was toxic and for which he had been arrested by police. Emphasis was given to a submission that he was deeply resentful of his mother's parenting skills and struggling with self-help. The suggestion is that his allegations grew the more people to whom he spoke and that his motivations for his false allegations included a desire to obtain sympathy following his arrest.

    2. (2)

       Ms McSpedden in her address urged you not to reason that the root of his issues lay in any childhood trauma occasioned by the accused, rather the emphasis on these issues is such that he is an unreliable witness who simply cannot bear the characterisation of a witness upon whom you would be satisfied of the truth of what he has said beyond reasonable doubt.

    3. (3)

       Members of the jury, in relation to this matter I have spoken to you about inferences and directed you not to speculate, that you must act on the evidence and not guesswork. Here, undoubtedly, to convict you must accept [LC] as a witness of the truth. The Crown acknowledged that at the beginning of the trial and indeed at the commencement of her closing address.

    4. (4)

       Ms McSpedden in her address cautioned you against any reasoning process that involves a process of inferential reasoning that the complainant is troubled by reason of trauma associated with the offences the subject of this trial.

34. [77]

    Her Honour then proceeded to give the customary direction about drawing of inferences and the need for caution to ensure that any inference drawn from circumstances is justifiable. The complaint now made is that the above direction implied that the jury could infer that the complainant was troubled by reason of trauma associated with the alleged offences, whereas in the absence of expert psychiatric opinion such an inference could not be drawn.

35. [78]

    Paragraphs (1) and (2) in the above passage fairly put the defence argument. The direction not to speculate, coupled with an instruction to exercise care in drawing inferences, was sufficient. Nothing said by the judge implicitly invited them to infer, contrary to defence counsel's submission, that the complainant's troubled mental state arose either wholly or in part from actual experience of sexual abuse. However, it was not necessary that the jury should have expert psychiatric opinion before they could regard his disturbed mental state as an item of circumstantial evidence tending to support that he had been sexually abused during his childhood, albeit that other concomitant courses of anxiety and depression were also present. There was no requirement for the trial judge to direct the jury that it would not be open for them to regard LC's troubled status circumstantial evidence relevant to the fact in issue. Whether they did not was a matter for the jury. Defence counsel did not ask for such a direction and if she had done it would probably have been refused.

36. [79]

    Particular (i)(c) is also without substance.

37. [80]

    The applicant asserts under particular (ii) that defence counsel who appeared for him at the trial should not have consented to the statement of HC being read into evidence, because confirmation that the applicant stayed overnight at the Enmore house sharing a room with LC provided corroboration for LC's evidence of Count 3. It is submitted that defence counsel would have known that the applicant's case on the charge was that he did not stay over at Enmore so that the alleged indecent assault could not have been committed. The applicant submits that counsel's failure to take objection constituted a material irregularity amounting to a miscarriage of justice: TWKJ v The Queen (2002) 212 CLR 124; [2002] HCA 46. Whether a material irregularity occurred on this basis must be considered with due regard for the wide discretion that counsel has to conduct the trial as he or she thinks best and recognising that ordinarily the client is bound by counsel's decisions: TWKJ v The Queen at [79] (McHugh J); Nudd v The Queen (2006) 35 SASR 356; [2006] HCA 9 at [24] (Gummow and Hayne JJ).

38. [81]

    The applicant argued this point on the assumption that if counsel had objected to the statement then the evidence of HC would have been kept out. That is not necessarily so, as the circumstances underpinning her medical certificate do not appear to have been acute and she may have been prevailed upon to give oral evidence if an objection to the use of her statement had been successful. However, accepting the applicant's assumption, it cannot be said that reception of the statement in evidence gave rise to a material irregularity. There was a sound rational basis for counsel's decision.

39. [82]

    The potential detriment to the applicant's case was that the jury might accept HC's evidence that the applicant shared a room with LC for a night at the Enmore house. That evidence would be unchallenged when adduced in statement form. Although HC's evidence in that respect would support the Crown's case on opportunity, it would remain open to the applicant to endeavour to raise a reasonable doubt about what took place in the room.

40. [83]

    The potential advantage to the applicant of having HC's statement read was that she had observed LC and the applicant in each other's company on many occasions throughout the years in which sexual abuse was said to have taken place, yet she had never seen any indication of anything sexual in the applicant's conduct towards LC. The following are relevant extracts from the statement:

41. [84]

    None of the above favourable evidence would be before the jury unless they also had the part of the statement that placed the applicant in the Enmore house at the time when the offence alleged in Count 3 was alleged to have been committed. Balancing the considerations for and against, it was a sound professional judgment for counsel to consent to the reading of the statement. No miscarriage of justice resulted.

42. [85]

    The applicant relied upon this Court's decision in Holmes v R [2024] NSWCCA 233. The circumstances there were not comparable. The failure to object that gave rise to a miscarriage of justice in that case concerned evidence that had no probative utility for the defence case and was highly prejudicial. A ground of appeal of this nature is highly fact dependent.

43. [86]

    Particular (ii) is not sustained.

44. [87]

    Particular (iii) concerns the fact that defence counsel made no submission in closing address to try to diminish the significance of HC's evidence that the applicant stayed overnight at the Enmore house. In submissions to this Court, the applicant's counsel was unable to formulate any argument that should have been made to the jury that would so indisputably have been of benefit to the applicant's case that the Court could regard the failure to put it as a material irregularity. The reality is that having made the forensic decision to let HC's statement into evidence for the benefits it offered, and therefore having been unable to cross examine HC upon her evidence about the applicant being at the Enmore house, it was within counsel's reasonable judgment to say nothing to the jury about the latter and to attack Count 3 at other points – which she did.

45. [88]

    Particular (iii) must also be rejected. No miscarriage of justice has been shown under any part of ground 2.

46. [89]

    The appropriate orders are:

    1. (1)

       Leave to appeal is granted.

    2. (2)

       Appeal dismissed.