JL v R

1. [1]

   ADAMSON JA: JL (the applicant) seeks an extension of time for leave to appeal against his convictions for four child sexual offences against a male child, WC (the complainant) (counts 1, 2, 3 and 4 on the indictment) following a trial by jury over which North DCJ (the trial judge) presided.

2. [2]

   The applicant also seeks leave to appeal against the aggregate sentence which the trial judge imposed on him for those offences of 10 years’ imprisonment commencing on 25 November 2019 and expiring on 24 November 2029, with a non-parole period of 7 years commencing on 25 November 2019 and expiring on 24 November 2026. The indicative sentences were each terms of imprisonment for 3 years (count 1); 7 years (count 2), 7 years (count 3) and 8 years (count 4).

3. [3]

   The grounds of appeal (if leave and an extension of time are granted) are:

4. [4]

   The indictment charged the applicant with the following offences:

5. [5]

   Because of the nature of proposed grounds 1 and 2, it is necessary to set out, in some detail, what occurred at the trial and to summarise the evidence adduced at the trial.

The trial

1. [6]

   The trial commenced before a jury in the District Court at Dubbo on Tuesday 19 November 2019. Evidence continued to be adduced on 20 and 21 November 2019. The Crown addressed on 21 November 2019. The defence addressed on 22 November 2019, following which the trial judge summed up to the jury. The jury retired to consider its verdict on Friday 22 November 2019 at 12.37pm. At 12.20pm on Monday 25 November 2019, the jury returned its verdicts of guilty on all counts.

2. [7]

   Following the Crown’s opening, the prosecutor tendered a statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW), which comprised the following facts:

3. [8]

   Following the tender of the agreed facts concerning these offences (the Local Court offences), the trial judge gave a tendency direction in a form agreed by the parties as to the use to which the agreed facts could be put (that the applicant had a sexual interest in the complainant). This direction is not the subject of challenge.

4. [9]

   The complainant’s evidence comprised the following:

   1. (1)

      An interview conducted by the Joint Investigation Response Team (JIRT) on 8 January 2015 (the JIRT interview);

   2. (2)

      a recording of the complainant’s evidence from a previous trial in July 2019 which had been aborted, which was played to the jury as constituting part of his evidence in chief. The transcript of this evidence was marked MFI10; and

   3. (3)

      oral evidence given in the trial in November 2019.

5. [10]

   Because the applicant made much of the differences between these versions, I propose to summarise them in turn.

6. [11]

   At the time of the JIRT interview, the complainant, who was born in the second half of 2000, was 14 years old. When asked why he had come to the Coonabarabran police station that day, the complainant responded:

7. [12]

   The complainant confirmed that he thought that the applicant was his mother’s uncle. The complainant said that he could not be precise about when it first happened because he “lose[s] track of what happens and everything else” when he is on medication (Ritalin tablets, for “ADD, ODD and ADHD”). The complainant explained his living arrangements and that he lived in a caravan with his brother, MC, who was 16, because there was not enough room in the house.

8. [13]

   He said of the applicant:

9. [14]

   The complainant said that it had happened “about six or seven times” and that it had “been getting scary every time he does it”. He said that he could not recall the last time the applicant had touched his penis and said:

10. [15]

    The complainant described an occasion when he was at home (inside the house) with his two older brothers when the complainant went out to his room (in the caravan) and the applicant followed him because the complainant had “just got out of the shower.” The complainant told the interviewers:

11. [16]

    He described being in the shower and walking out of the shower and finding the applicant in the bathroom. The complainant then returned to the shower and the applicant walked out and left the door open. The complainant then called out to his brothers to ask them to close the door and the applicant walked in and shut the door and started trying to “rub [him] up and everything and it’s just getting scarier every time …”.

12. [17]

    The complainant drew a plan of his caravan, having been asked to do so by the interviewers.

13. [18]

    The complainant told the interviewers that the applicant touched him on the “dick” a few weeks ago. He said:

14. [19]

    When asked to describe what actually happened, the complainant said that the applicant “was trying to pull [the complainant’s] dick.” He said:

15. [20]

    The complainant said that, at the time (a couple of weeks before the interview, after Christmas but before New Year), he was wearing boxer shorts and was in bed in his caravan. His brother, MC, was inside the house watching television. He explained that he had gone to bed because he could not have a shower because the applicant was there because he “didn’t want him to just walk in and do what he normally does, stays there, in there and wait till you get out” because he was scared of the applicant coming into the bathroom. The complainant said that, while he was still awake, he heard the door open. He turned around because he thought that it would be MC, but it was the applicant, who turned on the lights and grabbed the complainant’s swag out from under his bed to sleep on the floor. The applicant then took his shoes and socks off, pulled the complainant’s pants down, grabbed the complainant’s penis and “started pulling it” for about 15 to 20 seconds. The complainant, who was lying on his left shoulder (facing towards the door), pushed his hands away.

16. [21]

    The applicant stayed the night in the complainant’s caravan. The next morning they “didn’t even go near each other” and did not speak about it.

17. [22]

    The complainant told the interviewers that the applicant had tried to put his hand in the complainant’s pants before, which made the complainant feel very uncomfortable, but that this was the only occasion on which he could recall the applicant putting his hand on his penis. When asked whether the applicant had ever done anything else which made him uncomfortable, the complainant said, “No. Not that I know.”

18. [23]

    The complainant told the interviewers that he had told his father some of what had happened and that he had told the police “a little bit of it” and that he had told the interviewers “more” because, “[he] just really want[s] it to stop, [be]cause … it’s getting worse”.

19. [24]

    When the interviewers asked the complainant what he had told his father, the complainant said:

20. [25]

    The interviewers asked the complainant whether he would like to tell them anything else, to which he responded, “Nuh, not really.”.

21. [26]

    The complainant was 18 years old at the time his evidence was recorded in July 2019. He was, accordingly, 13 or 14 years old in the year commencing 1 January 2014. At that time he was living with his parents and his older brothers, JC and MC and three younger siblings, one sister and two brothers on a rural lot near Coonabarabran. At that time, JC lived in one caravan and MC and the complainant lived in another caravan. Their parents and younger siblings lived in the house. By the time the complainant gave his recorded evidence in July 2019, his family had moved away from his home on the rural lot which was, by that time, occupied by one of his older brothers, MC.

22. [27]

    In the year commencing 1 January 2014, the applicant would visit the rural lot from time to time and would help out. There were animals on the rural lot, including sheep, goats, horses, dogs and chickens. The complainant identified photographs shown to him, which depicted the layout of the property and the caravan in which he and MC lived. Although there was a lock and chain on this caravan, it was not used other than when they went away in it.

23. [28]

    Under the complainant’s bed, there was a swag, which the applicant used as a bed when he came to sleep in the caravan, as well as a black suitcase.

24. [29]

    The prosecutor asked the complainant about the three occasions in 2014 or early 2015 on which the applicant had put his penis into his anus (which the complainant had first reported to police in March 2017).

25. [30]

    One evening, at about 7 or 8pm, the complainant was alone in his caravan, as MC was “inside” (the house). He was half asleep and under the blankets when the applicant came into the caravan and grabbed his swag from under the complainant’s bed and rolled it out on the floor. The applicant removed his shoes and socks, lay down on the swag and put his hand in the complainant’s pants and on his penis. The complaint said in evidence:

26. [31]

    The complainant explained that the applicant “pushed [the] foreskin [of the complainant’s penis] down and pulled it back up” before leaving the caravan.

27. [32]

    The complainant heard the applicant’s utility “start and drive off.” The complainant said that the applicant “was gone for about an hour, hour and a half, maybe two” before he returned to the complainant’s caravan.

28. [33]

    The complainant said further:

29. [34]

    The complainant said that this went on for “about a minute or so”, following which the applicant pulled his penis out of the complainant’s anus, put his clothes back on and left, without saying anything further. The complainant cried himself to sleep. The following morning, the complainant woke up and “tried to act like there was nothing wrong.”

30. [35]

    About a week later, the complainant was in his caravan when the complainant came in. The complainant gave evidence as follows:

31. [36]

    Following the luncheon adjournment, the complainant said:

32. [37]

    Some time after Christmas 2014 but before 1 January 2015, the complainant was in his caravan at night time. The applicant came through the caravan door. The complainant said in evidence:

33. [38]

    The complainant did not recall how long the applicant was away before he returned that same evening to spend the night in the caravan. The applicant slept on the floor in the complainant’s swag but had gone by the time the complainant woke in the morning.

34. [39]

    Early in the New Year (of 2015), the complainant was fishing with his father. The complainant’s evidence was that the two had the following conversation:

35. [40]

    The complainant’s father took him to the Coonabarabran Police Station, where they met Detective Etheridge who, together with Sue Stanford (the interviewers), interviewed the complainant and recorded the JIRT interview, which was played to the jury (and a transcript marked MFI5) as part of the complainant’s evidence in chief.

36. [41]

    The complainant was asked about the timing of the incident which he had described in the JIRT interview. His evidence was that it formed part of incident 3 and had taken place before the applicant put his penis inside the complainant’s anus on that same night.

37. [42]

    The complainant gave evidence that he became aware that the applicant attended court in relation to an offence against him and that he himself had not been required to attend court that day. Indeed, he had not seen the applicant since making the complaint.

38. [43]

    Subsequently, the complainant attended a Youth Insearch Camp where he met and became friends with MG (MG’s unchallenged evidence, see below, was to the effect that they met in 2015). The complainant said in evidence:

39. [44]

    Following this conversation with MG, the complainant told his father about the anal intercourse (the complainant’s father’s unchallenged evidence established that the disclosure occurred in February or March 2017). The complainant returned to the police station and saw Detective Etheridge and made a statement. This was the first time he had reported to police that the applicant had put his penis in the complainant’s anus (and was approximately two years after his initial complaint in early 2015). The complainant explained in his evidence that he had not previously reported this to police because he was “ashamed and scared” because “[the applicant] told [him] that he was going to kill me and do it to my little brothers and sisters”.

40. [45]

    The complainant was cross-examined extensively about not having earlier reported that the applicant had inserted his penis into his anus. When he was asked whether he had a good memory of being half asleep when the applicant came into the caravan, the complainant said:

41. [46]

    He was also cross-examined about various differences between the statement he had given to police on 7 March 2017 and his previous evidence about the third incident (count 4), and other inconsistencies, including:

    1. (1)

       that he had said in his evidence that he was half asleep when he said in his statement that he was asleep to which the complainant’s response to this was that he “need[ed] a break before [he lost] it”;

    2. (2)

       that the complainant had said in his statement that the third incident had occurred “pretty late at night” but that he had said in his evidence that it was about 7 or 8pm, to which the complainant responded that he could not see the difference;

    3. (3)

       that the complainant did not mention in his statement that the applicant had gone away for a one to two hour period in between assaults in incident two but that he had given such evidence in chief;

    4. (4)

       that the description the complainant had given in his statement (that he put his hand down on the applicant’s hand and pushed it off his penis and that the applicant had got up off the floor and grabbed hold of his waist with both hands and rolled him over onto his stomach and pulled down his pants) was different to what he had said in his evidence (a proposition which the complainant accepted);

    5. (5)

       that the complainant had said in his statement that after the applicant had put his penis in his anus he had gone into the house to sleep on the lounge, whereas he had said in his evidence that he had remained in the caravan all night, to which the complainant responded that he could not remember saying in his statement that he had gone inside;

    6. (6)

       that his evidence of his position on his bed was different from that in his statement, to which the complainant said that he had forgotten to put into his statement that he had been lying on his left side in bed;

    7. (7)

       when asked why he could not have simply rolled onto his other side (his right side), the complainant said that he had a “buggered shoulder” which was “in a sling” because he had dislocated his shoulder playing football;

    8. (8)

       the complainant admitted that he had never mentioned having a sore shoulder (to police or in court) previously;

    9. (9)

       the complainant agreed that he had not told the police or the court in his evidence in chief about his shoulder/arm being in a sling and said that he “used to take it off all the time”; and

    10. (10)

        the complainant admitted that he had punched the applicant in the face on a previous occasion but did not do so when the applicant put his penis in the complainant’s anus because he “never liked hitting anyone”.

42. [47]

    As the cross-examination of the complainant continued, he admitted that he “got it mixed up” and that it was “all around the shop”. He said that he could not remember whether the second incident had occurred early in the evening or late in the evening and said that he “can’t remember anything now”. He disagreed that the reason he could not provide detail about the second incident was because it had not happened.

43. [48]

    When the complainant was cross-examined about the third incident, he said that he could not be sure when it happened or whether it had happened before Christmas 2014. His first version of the third incident (that it had comprised no more than the applicant pulling the foreskin of his penis back) was put to him as true, to which the complainant said that he did not remember.

44. [49]

    The complainant was adamant that the applicant had put his penis into his anus.

45. [50]

    The complainant agreed that he had met with Detective Etheridge on 14 March 2017 and that he understood that the purpose of the interview was so that he could explain why he had not told her earlier about the applicant’s anal intercourse with him. The applicant’s counsel read to the complainant, who adopted, the following portion from the interview with Detective Etheridge on 14 March 2017:

46. [51]

    The complainant accepted in cross-examination that at no point in the interview on 14 March 2017 did he tell Detective Etheridge that he had not told her before because he was scared of what the applicant would do to him. The complainant agreed that, notwithstanding his fear of the applicant, he still went to the police in January 2015. The complainant agreed that he was angry with the applicant in 2017 and that he had to “get it out”.

47. [52]

    The complainant was also cross-examined about the camps he had attended where he had met MG. He agreed that there were other people at the camps who had been the victims of sexual abuse and that, at the camps, he would hear stories of what other people had experienced. The complainant disagreed that the stories he heard were similar to his own. The complainant said that hearing other people’s stories made it easier for him to talk about his own experience “[b]ecause [he] had the support and love there.”. The complainant said that when he was at the camps, he told others “the first story” (which had resulted in the applicant’s guilty pleas to the Local Court offences), rather than the “second story” (which formed the subject of the charges of anal intercourse to which the applicant pleaded not guilty). The complainant confirmed that the very first person he told about the anal intercourse was MG, which was in about March 2017. He then told his father and went to police, which resulted in his police statement dated 7 March 2017.

48. [53]

    At the conclusion of the cross-examination of the complainant, the prosecutor immediately (without there having been an adjournment) re-examined the complainant about his shoulder injury as follows:

49. [54]

    The prosecutor tendered a further statement of agreed facts which recorded, in substance, that the complainant’s medical records recorded that he had presented with a shoulder injury on 1 August 2015, which had been sustained while playing rugby and that he was treated for pain relief and given a sling. There was no record of the complainant having been treated for a shoulder injury prior to that date.

50. [55]

    The complainant was recalled to give further evidence in chief. Notwithstanding the lack of medical records, he maintained that, at the time of the third incident, his shoulder had been dislocated. He did not recall how it had happened.

51. [56]

    The complainant was cross-examined extensively about the timing of the sling and his earlier evidence. The cross-examination included the following:

52. [57]

    The Court adjourned for the luncheon adjournment, during which it became known that a juror had to seek medical attention which meant that the trial could not continue on 20 November 2019. By agreement between the parties, the complainant was not recalled to complete his evidence and was excused. Due to the unavailability of the juror, the Court adjourned until 21 November 2019.

53. [58]

    The complainant’s mother gave evidence as to the family’s living arrangements and the dates of birth of her three eldest sons (JC, MC and the complainant). She said that the applicant was her mother’s brother. In 2014, the applicant, who lived about 20 minutes’ drive from the complainant’s home, came to the home almost on a daily basis and often stayed overnight. The complainant’s mother said that on occasion, the applicant would say that he was going home, leave her house, drive out of the driveway in his utility and that she would find, when she got up in the morning, that the applicant had spent the night in the caravan where the complainant and MC slept. She also observed the applicant rubbing the complainant’s shoulders and popping the pimples of the complainant and MC.

54. [59]

    In 2014, the health of the complainant’s mother’s grandmother (the applicant’s mother) started to deteriorate. At that time, she was living about ten minutes from the complainant’s home and 10-15 minutes from the applicant’s home. As far as the complainant’s mother was aware, the applicant was assisting with his mother’s care. She said that, as far as she was aware, the applicant had not visited her home (also the complainant’s home), since the beginning of January 2015 up to and including the time she gave evidence (21 November 2019). In cross-examination, the complainant’s mother said that her home was 5-10kms closer to the applicant’s mother’s home than the applicant’s home. She agreed that the applicant had made no secret of having stayed the night in the caravan occupied by MC and the complainant.

55. [60]

    The statement of the complainant’s father, dated 8 January 2015, was read into evidence through Detective Etheridge as he was not required for cross-examination. It said, in part:

56. [61]

    A subsequent statement, dated 13 May 2015, was taken from the complainant’s father. He deposed that neither he nor his wife had ever seen the applicant go into the bathroom of their home when the complainant was showering but said that there were many occasions on which their children were at their home with the applicant while he and his wife were away.

57. [62]

    The complainant’s father gave a further statement on 14 March 2017, which was read into evidence through Detective Etheridge as he was not required for cross-examination. He said, in part:

58. [63]

    The statement of the complainant’s paternal grandfather, dated 13 March 2015, was read into evidence through Detective Etheridge as he was not required for cross-examination. The statement said, in part:

59. [64]

    The statement of MG, dated 14 March 2017, was read into evidence through Detective Etheridge as he was not required for cross-examination. At the time of making the statement, MG was 16 years old. The statement said, in part:

60. [65]

    Detective Etheridge said that, as a result of what the complainant and his father had told her on 8 January 2015, she interviewed JC and MC. She then invited the applicant to come to the police station. He declined to be interviewed. Subsequently, the applicant was charged with the Local Court offences (which related to JC, MC and the complainant), to which he entered pleas of guilty.

61. [66]

    Detective Etheridge was cross-examined briefly and accepted that the complainant did not mention in his JIRT interview that he was fearful of the applicant. Detective Etheridge also confirmed that the complainant had not mentioned his shoulder in his written statement on 7 March 2017.

62. [67]

    On 18 April 2018, the applicant attended the police station and participated in an Electronically Recorded Interview with Suspected Person (ERISP). The recording was played to the jury and the transcript, which was marked for identification, was provided to the jury as an aide-memoire.

63. [68]

    When asked about spending time at the complainant’s home, the applicant said that he went to the property to help with the children when their parents were not there. He also said that he stayed overnight sometimes because his own mother needed care and it was difficult for him to travel home every time he came to town. He said that he would go to the complainant’s home two or three times a fortnight. When he stayed overnight, he slept on the floor of the caravan which the complainant and MC shared. He said that he did so “[w]ith their parents’ permission.” When asked about physical contact with the boys, the applicant said that he massaged the complainant “with sports injuries” to his shoulders. When asked if he had touched the complainant’s penis, he answered that it had already been discussed (being a reference to his plea of guilty to the Local Court offences).

64. [69]

    The applicant denied that he had ever inserted his penis into the complainant’s anus. He also denied threatening to kill the complainant if he told anyone about what had happened. He denied the allegations which formed the basis of the further charges.

65. [70]

    There was no defence case.

66. [71]

    Before closing submissions, the trial judge consulted the parties about the directions which ought be given to the jury in the summing up. The applicant’s counsel made a list of directions sought which excluded a Liberato direction ((Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 (Liberato)) but he added it to the list orally.

67. [72]

    Subsequently, the following exchange ensued:

68. [73]

    In substance, the Crown case was that the complainant was a truthful and reliable witness when it came to the counts on the indictment. The Crown contended that the delay in reporting the anal intercourse could be explained by the additional trauma that this necessitated, as well as the other reasons referred to below. The Crown also contended that, in so far as the complainant was in error in recalling hospital treatment associated with the shoulder injury that preceded count 1, he was in error about a marginal matter of no particular importance, particularly as the complainant had, as the applicant admitted in his ERISP, suffered shoulder injuries before.

69. [74]

    The prosecutor told the jury that the alleged offences were committed in 2014 and that, in early 2015, the complainant reported the conduct which led to the plea of guilty to the Local Court offences. The prosecutor also submitted that first report of the acts of anal intercourse was to MG in about early March 2017, following which the complainant told his father and reported it to police in March 2017, as recorded in his statement of 7 March 2017.

70. [75]

    The prosecutor addressed the delay in the disclosure as follows:

71. [76]

    The shoulder injury received some prominence in the Crown’s closing address as, no doubt, the prosecutor anticipated (correctly) that the applicant’s trial counsel would make much of it in his closing address. The Crown said:

72. [77]

    The defence case, in substance, was that the prosecution had not proved any offences beyond the Local Court offences to which the applicant had previously pleaded guilty. The applicant’s trial counsel submitted that the complainant was an unreliable and dishonest witness who had been influenced by his attendance at the camps (where he had met MG and others who had suffered sexual assaults) to attribute to the applicant acts (such as anal intercourse) which he had not in fact experienced but which he had heard about at the camps. The applicant’s counsel submitted that the complainant’s anger towards the applicant led him to give false evidence, including about the shoulder injury. He contended that the delay (and the denial to police in 2015 that anything else had happened) meant that the jury could not be satisfied beyond reasonable doubt of the charges against the applicant.

73. [78]

    The applicant’s trial counsel referred to occasions on which the complainant had “showed considerable emotion during his evidence”. He also acknowledged that the jury might find the complainant “pretty compelling”.

74. [79]

    The applicant’s trial counsel relied on several inconsistencies within the complainant’s accounts. He also emphasised not only the delay in reporting the anal intercourse, when other acts had been reported in 2015, but also the complainant’s positive misstatement to police that nothing else had happened. The applicant’s trial counsel said:

75. [80]

    The applicant’s trial counsel returned to the influence of the camps which the complainant attended and submitted that “[i]t was only after hearing stories that were more serious than his did he decide to go back to police”.

76. [81]

    The applicant’s trial counsel also relied on motive and submitted:

77. [82]

    The applicant’s trial counsel referred at length to the evidence relating to the shoulder injury in connection with count 1 as follows:

78. [83]

    The trial judge gave the standard directions about the jury’s entitlement to accept part of a witness’s evidence and reject another part and the prosecution not having to prove every fact beyond reasonable doubt.

79. [84]

    The trial judge, when summarising the applicant’s case, referred to the shoulder incident:

80. [85]

    The trial judge also gave the following direction, in the terms of s 293A of the Criminal Procedure Act 1986 (NSW), which was not the subject of challenge:

81. [86]

    The trial judge said further, concerning the delay in complaint about anal intercourse:

82. [87]

    The judge also gave the following direction in accordance with the draft with which the applicant’s counsel had agreed (which is the subject of ground 2):

83. [88]

    In summarising the prosecution case, the trial judge described the complainant as “[t]he first and pivotal witness”. The trial judge reminded the jury of various inconsistencies in the complainant’s evidence, including in relation to delay and the shoulder injury, when summarising the evidence and the prosecution and defence cases.

84. [89]

    When summarising the defence case, the trial judge said (of relevance to ground 2):

Ground 1 – alleged unreasonable verdict

1. [90]

   Ground 1 attracts the jurisdiction of this Court pursuant to the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) which provides:

2. [91]

   The following summary of the principles that apply to an unreasonable verdict ground, from Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ), is a convenient starting point:

3. [92]

   It is for this Court to determine whether it was “open” to the jury to find the applicant guilty or whether a jury “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

4. [93]

   Although the credibility of a complainant may, as here, be significant in a criminal trial, a verdict of guilty may be reasonable even if the complainant’s evidence is not corroborated: Pell, at [53].

5. [94]

   Because the primary function of determining guilt or innocence has been entrusted 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)), it will not generally be appropriate for this Court to review pre-recorded or recorded evidence to form its own view of the credibility of particular witnesses on the basis of their presentation: Pell at [36]-[38]. Further, this Court must proceed on the basis that the complainant’s evidence was accepted by the jury as credible and reliable: Pell at [39].

6. [95]

   In addition, the extent to which this Court is entitled to disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which he or she has been convicted, is constrained. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

7. [96]

   Further, in certain circumstances, this Court is entitled to take into account its general experience, including in a particular class of case or for particular witnesses. Such experience includes that it is not uncommon for victims to remember specific details about the assaults but not tangential details. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing):

8. [97]

   Nor is it uncommon for children to be imprecise about time. Apart from their immature minds, they rarely make contemporaneous notes or have resort to the type of written records which adults use to orient certain events in time. In BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101, the applicant argued that E’s (the complainant) failure to recall a particular detail and error about another detail resulted in an unreasonable verdict. The High Court said as follows:

9. [98]

   These judicial observations do not mean that the complainant’s counsel was not entitled to test the complainant’s recollection by reference to external detail or internal inconsistency. Thus, when the circumstance that the complainant’s evidence that he had gone to the hospital for a shoulder injury before any of the conduct which comprised the counts was established to be incorrect, the applicant’s trial counsel was entitled to use it to try to impugn the complainant’s credibility. Indeed, the applicant’s trial counsel may have had very little other material to work with. Sully J, when agreeing with Spigelman CJ in Reed v R, said at [85]:

10. [99]

    Ms Lewer, who appeared in this Court with Mr Mulligan on behalf of the applicant, submitted that the verdicts were unreasonable because they rested on the largely uncorroborated evidence of the complainant, whose evidence had been shown to be false (since he denied any other acts when interviewed by police in 2015), unreliable (because of the various internal inconsistencies) and incorrect (by reason of his evidence about having obtained treatment at the local hospital for the shoulder injury which preceded the conduct in count 1). She submitted that the complainant’s evidence had been successfully impugned and could not reasonably form the basis for the verdicts of guilty.

11. [100]

    As referred to above, the jury, as the tribunal of fact, had the principal responsibility of deciding whether to believe the complainant’s evidence of the conduct which comprised the counts. The jury was directed that they were entitled to accept part of the evidence of a witness and not accept other parts of that witness’s evidence. It was open to the jury to accept the complainant’s evidence as to the offending conduct and not accept his evidence (which the prosecutor proved to be incorrect) that he had obtained treatment from the local hospital for a shoulder injury before count 1. It can be taken from the jury’s verdicts that the jury accepted the complainant’s evidence of counts 1, 2, 3 and 4 beyond reasonable doubt although it was common ground that his evidence about the hospital visit could not be correct.

12. [101]

    It was open to the jury to reason, from their collective experience, that children can be mistaken about time and the sequence of events. The jury was entitled to take the view that the complainant had suffered a shoulder injury prior to count 1 and recalled that he had difficulty turning over as a consequence but that it was not the same shoulder injury for which he obtained hospital treatment. It was open to the jury to reason that the prosecutor may have contributed to error in the complainant’s evidence about the timing of the hospital visit by asking the complainant, in re-examination (for the first time), whether he had obtained treatment for that injury at a hospital. It was open to the jury to regard the complainant’s affirmative answer to that question as reflecting a degree of suggestibility on the part of the complainant, rather than any unreliability. Because the applicant recalled, in his ERISP, that the complainant suffered shoulder injuries (for which the applicant massaged him), there was nothing surprising in the complainant not being correct about the timing of the shoulder injury for which he sought hospital treatment, particularly as the injuries were sustained playing football, which the complainant continued to play throughout the period.

13. [102]

    As referred to by the High Court in BCM v The Queen in the passage cited above, the jury, taking into account its collective experience of life, could regard the complainant’s evidence about the timing of the hospital visit as neither affecting the credibility nor reliability of his evidence of the conduct which comprised the offences charged.

14. [103]

    Ms Lewer also placed significant emphasis on the denial of further criminal acts by the complainant when interviewed by police in 2015, from which the complainant resiled when he reported the further acts to MG, his father and the police in March 2017.

15. [104]

    One of the difficulties with this submission is that, although the complainant did not tell the police in 2015 what he told them in 2017, there was substantial evidence in what he did tell police in 2015 to indicate that there was more going on than what he was describing. He told police in the JIRT interview “[m]y uncle has been like grooming me and everything else and touching me on the back, touching me on my private part which is my dick and everything else which I don’t really want that to happen again” and that it was “getting worse and worse and worse” and “scarier”. Further, when asked whether he would like to tell them anything else, he responded, “Nuh, not really.”. It was open to the jury to consider that the complainant’s motive in 2015 was to say enough to stop the applicant from coming around to his caravan and sexually assaulting him but not to tell the whole truth because he saw it as shameful and humiliating to him, as the victim. Although the police who interviewed the complainant in 2015 can be assumed not to have detected these markers or, at least, been unwilling to press the complainant, it was open to the jury to regard these indications as a clear sign that more was going on (as, according to the complainant’s evidence before them, it was).

16. [105]

    It was also open to the jury to reason that the complainant was prepared to disclose only those acts which were sufficient to protect himself and his younger siblings by preventing further visits by the applicant and was not prepared to single himself out as having experienced something which was much worse (anal intercourse).

17. [106]

    The jury had the benefit of seeing the complainant on 8 January 2015 when he was 14 years old (on the JIRT interview) which was broadly contemporaneous with the counts, and also on 25-26 July 2019 (when he was 17 years old) and when he gave evidence in the trial in November 2019 (when he was 18 years old).

18. [107]

    It was open to the jury to reason that the complainant’s youth and vulnerability (living in an unlocked caravan separated from where his parents slept) at the age of 13 or 14 was such that, even if he was prepared to disclose some acts (in common with those suffered by his two older brothers), he needed further maturity and independence before he could disclose the acts of anal intercourse. It was also, in my view, open to the jury to consider that the complainant was not the instigator of the reports to police. It was his father who approached him in 2015 to find out what was wrong and who encouraged him to go to the police (which led to his two older siblings being interviewed by police) and MG who encouraged him to report the anal intercourse in 2017.

19. [108]

    The jury might also have regarded it as significant that, although the complainant and MG had met and become friends some time between March 2015 and September 2015 (being 18 months to two years before MG made his statement on 14 March 2017), it took between 18 months and two years for the complainant even to disclose the anal intercourse to MG. MG then encouraged the complainant to tell his father. As referred to above, when the complainant told his father in March 2017, the complainant explained the delay by saying that he had been ashamed and had not been able to talk about it.

20. [109]

    It was open to the jury to accept this explanation as credible because of the shame that may be associated with anal intercourse, particularly for a young male in the complainant’s circumstances.

21. [110]

    None of the arguments advanced on behalf of the applicant by Ms Lewer (or, indeed, his trial counsel) causes me to doubt his guilt of any of the counts. I have reviewed all of the evidence in the trial and am not persuaded that any of the verdicts are unreasonable.

Ground 2: alleged failure to give a Liberato direction

1. [111]

   Ms Lewer accepted that the applicant’s trial counsel had agreed to the terms of the direction proposed by the trial judge prior to closing submissions and had not sought any further direction. Accordingly, she accepted that leave was required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (the Rules).

2. [112]

   Ms Lewer pointed out that the direction was given by the trial judge on 22 November 2019 and the High Court’s decision in Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 (Da Silva) was handed down on 13 December 2019. She submitted that this circumstance might explain why the trial judge did not include the third component in Da Silva (see below). She particularly relied on the following passage from Da Silva at [11]-[12] (Kiefel CJ, Bell, Gageler and Gordon JJ):

3. [113]

   Ms Lewer submitted that the trial judge’s direction was deficient in that it did not include (iii) in the passage set out above. She submitted that the three components in [12] of Da Silva represented the “minimum requirements for such a direction.” Ms Lewer argued that the deficiencies in the Crown case made the inclusion of the third component particularly significant.

4. [114]

   I reject Ms Lewer’s submissions. The present case was not dissimilar to Da Silva itself. In Da Silva, the appellant was charged with rape (digital penetration of the complainant’s vagina without consent). The Crown case depended on the complainant’s evidence. The appellant did not give evidence but had denied any act of digital penetration in a recorded interview, which was tendered in the Crown case. The trial judge was not asked to give, and did not give, a Liberato direction. The trial judge said, in part, of the appellant’s recorded interview:

5. [115]

   The Court of Appeal of the Supreme Court of Queensland concluded that the trial did not miscarry by reason of the omission to give a Liberato direction. The High Court, by majority, dismissed the appeal on the basis that there was nothing in the summing up which would have left the jury with “the impression that their verdicts turned on a choice between the complainant’s evidence and the appellant’s account in the interview”: [32]. Their Honours continued, at [34]:

6. [116]

   In the present case, no direction such as the one in issue in Da Silva was given. While there were peripheral statements in the recorded interview which were consistent with the prosecution case, such as that the applicant visited the complainant’s home on some occasions when the complainant’s parents were not present and that he had massaged the complainant’s shoulders when the complainant had suffered shoulder injuries as a result of playing football (rugby league), the substance of the applicant’s recorded interview comprised his denials of the complainant’s allegations of anal intercourse. Thus, his recorded interview was not so much a different version of events, but rather a simple denial of allegations. The choice for the jury was whether it accepted beyond reasonable doubt the substance of the complainant’s evidence of the offences charged (in which case it would return verdicts of guilty) or whether it did not (in which case it would return verdicts of not guilty). The applicant did not venture a different version of the facts (other than those which were peripheral) beyond a bare denial. At no stage was the jury asked to choose between the complainant’s version and the applicant’s version.

7. [117]

   In these circumstances, a direction which included the third component of the Liberato direction, established by Da Silva, was not required.

8. [118]

   Although I would be disposed to grant leave under r 4.15 of the Rules for ground 2, extend time for grounds 1 and 2, and grant leave to appeal, I am not persuaded that either ground 1 or ground 2 has been made out.

Ground 3: alleged error in application of totality when sentencing the applicant

1. [119]

   Because the applicant seeks leave to appeal (on ground 3) against his sentence, it is necessary to set out in some detail the proceedings on sentence and the sentencing judgment.

2. [120]

   The evidence before the trial judge (who was also the sentencing judge) included the applicant’s criminal history and, accordingly, included details of the sentence which had been imposed on him for the Local Court offences, as follows:

3. [121]

   The applicant’s counsel referred to the Local Court offences in his written submissions on sentence for the proceedings on sentence as follows:

   1. (1)

      he submitted that the delay between the imposition of the sentence for the Local Court offences and the sentence for counts 1-4 was relevant because it showed (in the absence of further charges) that the applicant has demonstrated progress towards rehabilitation; and

   2. (2)

      he submitted that it would be appropriate for there to be a degree of accumulation in respect of each offence but that, in respect of count 4, the principle of totality needed to be taken into account in respect of the sentence imposed for the Local Court offences and that double-counting needed to be avoided.

4. [122]

   In the proceedings on sentence, the following exchange occurred:

5. [123]

   In the sentencing judgment, the trial judge said of present relevance:

6. [124]

   The trial judge also said, when addressing the significance of the delay:

7. [125]

   His Honour also said:

8. [126]

   Ms Lewer argued that the trial judge had not taken into account the sentences imposed in respect of the Local Court offences and that, accordingly, the sentencing discretion had miscarried for failure to take into account the totality principle.

9. [127]

   The sentences imposed for the Local Court offences were relevant in several ways: first, the offending conduct formed part of the applicant’s criminal history and disentitled him to leniency; second, the Local Court offences were relevant to risk of re-offending and prospects of rehabilitation; and third, the sentences were relevant to the application of the totality principle to the sentencing task which the trial judge was required to perform.

10. [128]

    The totality principle requires a sentencing judge to consider the total criminality involved, not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen (1997) 189 CLR 295 at 308 (McHugh J); [1997] HCA 26. In Wu v R [2011] NSWCCA 102; 211 A Crim R 88, Giles JA said at [53]:

11. [129]

    One of the purposes of the principle of totality is to remove arbitrary matters, such as whether the same judge sentenced the offender for all offences; or whether the offender was sentenced for an earlier offence after having been sentenced for related offences. The totality principle is designed to result in a circumstance that, if all other things are equal, the total sentence imposed on an offender for related offences would be the same irrespective of the time at which the offender was sentenced or the order in which he was sentenced for these offences. Allowance must be made in the present case for the circumstance that the applicant was sentenced in the Local Court for the offences to which he pleaded guilty (with the attendant jurisdictional limits of that jurisdiction: see R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [27]-[35] (Grove J, Spiegelman CJ and Kirby J agreeing)) and in the District Court for the offences for which he was convicted after trial.

12. [130]

    Accordingly, the question for the sentencing judge in the present case was, in a strict sense, what additional penalty is required to be imposed, in addition to the sentence imposed for the Local Court offences, for the commission of counts 1-4 on the indictment, taking into account all relevant circumstances: see the discussion of the principle of totality in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [97]-[100] (Spigelman CJ, Whealy and Howie JJ). However, because the Local Court offences were, and appeared to be, of relatively low objective seriousness, when compared with the substantial gravity of the offences charged as counts 1-4, it is understandable that the sentencing judge did not express the question in those terms. Indeed, for the reasons given below, the criminality of the Local Court offences was greater, when viewed in the context of counts 1-4 than it appeared at the time the applicant was sentenced for the Local Court offences. It is significant that the indicative sentence imposed for count 4 was the highest imposed (8 years’ imprisonment) because of the higher objective seriousness, although the conduct which immediately preceded it constituted one of the Local Court offences (sequence 3 in the table above) and therefore needed to be disregarded to avoid double-counting.

13. [131]

    I consider it to be sufficiently clear from the trial judge’s reasons that his Honour was aware of, and applied, the principle of totality in connection with the Local Court offences. The trial judge was not only concerned to avoid double-counting for the criminality with respect to count 4, but also to take account of the sentences that had already been imposed by the Local Court. Indeed, this would appear to be what led to his Honour’s questions of the applicant’s counsel in the passage set out above. While the use which can be made of exchanges between bar and bench is limited (see Dang v R [2014] NSWCCA 47 at [32] (myself, Simpson and Davies JJ agreeing)), in the present case it serves to demonstrate that the issue of totality was separately raised by the trial judge in the course of the hearing and was a matter about which his Honour sought submissions from the applicant’s counsel.

14. [132]

    This is sufficient to dispose of ground 3, which has not been made out.

15. [133]

    However, for completeness, I refer to the Crown’s reliance in this Court on what Beech-Jones CJ at CL (Davies and Bellew JJ agreeing) said in Haak v R [2022] NSWCCA 28 in which his Honour said that the principle of totality did not invariably result in a lower sentence for a sentence imposed subsequently, in circumstances where a sentence had already been imposed for related conduct. His Honour said, at [20]:

16. [134]

    Had error been established, this Court would have been required to re-sentence. The present case falls into the second category referred to by Beech-Jones CJ at CL, where the Local Court offences can be seen to be more serious than could have been appreciated when the applicant was sentenced in respect of them. The Local Court offences, when viewed in the context of counts 1-4, can be seen as part of a course of conduct on the part of the applicant in having, and acting on, his sexual interest in males between the ages of 13 and 16, in respect of three brothers by touching their genitals (which was, in the context of counts 1-4, grooming behaviour) and, when the opportunity presented itself, engaging in penile-anal intercourse with the complainant, to whom he made serious threats (death and offending against the complainant’s younger siblings) to deter disclosure. The offences also constituted an egregious breach of trust by an older male relative into whose care the complainant and his siblings were entrusted by their parents. A sentence of at least the length of the aggregate sentence was required in order to reflect the total criminality of the applicant’s offending conduct. In these circumstances, no lesser sentence would have been warranted, had the Court proceeded to re-sentence.

Proposed orders

1. [135]

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

   1. (1)

      Extend the time for leave to appeal.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [136]

   IERACE J: I agree with Adamson JA. Having reviewed and assessed the evidence that was before the jury, I am also independently satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect of the four counts. I agree with Adamson JA’s reasons in respect of grounds 1, 2 and 3 and concur with the orders proposed by her Honour.

3. [137]

   SWEENEY J: Having made an independent assessment of the evidence in the trial I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. I agree with the orders proposed by Adamson JA and her Honour’s reasons for those orders.