Macri v R

1. [1]

   BEECH-JONES CJ at CL: I have had the advantage of reading the judgment of N Adams J. Subject to what follows I agree with her Honour.

2. [2]

   In relation to ground 1, uninstructed by authority I would conclude that, if following a refusal of an application for a permanent stay on grounds that relate to the fairness of the forthcoming trial, an offender appeals their subsequent conviction on the basis that the proceedings should have been stayed, it is not necessary or even relevant to determine whether the decision to refuse a stay was affected by an error of the kind described in House v The King (1936) 55 CLR 499 at 505 (“House”). Instead, in that circumstance the (only) relevant inquiry should be whether, in light of the trial that took place, the matter or matters that were said to warrant the stay of the proceedings means that one of the three limbs of s 6(1) of the Criminal Appeal Act 1912 has been satisfied. A different analysis may be warranted where the basis for the application for the stay did not concern the fairness of the forthcoming trial (see for example Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50).

3. [3]

   Thus, for example, a judge may have refused an application for a stay on the basis of pre-trial publicity by reasoning that any relevant prejudice might be cured by making appropriate inquiries of, and giving directions to, the jury panel or the jury. Alternatively, a judge may refuse an application for a stay on the basis that evidence has been lost by concluding that the evidence was not of such significance to warrant the extreme measure of halting the proceedings. In each case the decisions to refuse a stay might not be attended by House error. However, if, in the first example, there were no inquiries made of the jury panel or directions given at the trial that followed or if, in the second example, the trial unfolded in such a manner that the lost evidence became critical to an assessment of the accused’s guilt, then a miscarriage of justice might be occasioned notwithstanding the absence of error in granting the stay. On the other hand, House error might be shown in relation to the decision to refuse a stay but the manner in which the trial unfolded may demonstrate that the basis for any stay was untenable. If that approach was translated into this case, then the matters that were said to warrant a stay in this case, being delay in the proceedings and the time span of the indictment, would only fall to be considered as part of the determination of whether the verdict was unreasonable or there was otherwise a miscarriage of justice for lack of particularisation and the like.

4. [4]

   However, I am not uninstructed by authority. The passages from the judgment of Mason CJ and Toohey J in The Queen v Glennon (1992) 173 CLR 592 at 598 to 600 and 605 to 606 set out in the judgments of N Adams J at [140]-[142] suggest that it is necessary to demonstrate both House error in relation to the decision to refuse a stay and that a miscarriage of justice was occasioned. Further, while the passage from Dupas v The Queen (2010) 241 CLR 237 at [18] to [19] cited by Her Honour (at[146]) refers to considering the issue by reference to what transpired at the trial that took place after the application for a stay was refused, that was stated in a context where the Court of Criminal Appeal found that the trial was affected by error for other reasons and was considering whether to order a new trial. The decision of this Court in Hughes v R [2015] NSWCCA 330 (“Hughes”) also suggests that House error and a miscarriage of justice must be shown. Thus, in Hughes, Beazley P, Schmidt and Button JJ observed (at [61] to [62]):

5. [5]

   This approach does involve considering whether the refusal of the stay was affected by error although it also involves considering what transpired at the trial. As noted by their Honour’s this approach is consistent with Dupas.

6. [6]

   The trial judge’s reasons for refusing the application for a permanent stay were concise. His Honour identified the basis for the application and the principles governing the grant of a stay. His Honour considered the public interest in the prosecution of the alleged commission of serious sexual offences. His Honour considered that the applicant’s complaints about the effect of delay and the lack of particularisation of the offences. However, his Honour found that the effect of delay could be addressed through the identification of the evidence relied on for each count and the giving of directions to the jury about the effect of delay and the onus of proof. In these circumstances, I do not accept that any error of the kind described in House was established in relation to the trial judge’s refusal of the application for a permanent stay. Otherwise, for the reasons given by N Adams J in relation to ground 1 (and ground 2 but subject to what follows), I am not satisfied that the matters complained give rise to any of the bases for setting aside a conviction as provided for in s 6(1) of the Criminal Appeal Act.

7. [7]

   In relation to ground 2, the relevant principles are stated in the judgment of N Adams J. To that discussion I would add that in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”) the High Court observed that the “assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury” (at [38]) and then described this Court’s function as follows:

8. [8]

   The reference to “a case such as the present” in this passage is to a case where the principal evidence against an accused person is that given by a complainant.

9. [9]

   I have reviewed the record of the applicant’s trial closely. I do not consider that the contents of his pretext call with Donna added much, if anything, to the case against him. The applicant repeatedly stated that he had no memory of the events and would not do what was alleged against him while at the same time apologising to Donna. This leaves the evidence of Donna including her complaints (as well as the evidence of the other witnesses including the applicant). The evidence of Donna should be addressed in a manner consistent with that stated in the above passage from Pell. Nothing raised by the evidence gives any reason to doubt Donna’s credibility in terms of her honesty as a witness. The strongest point made on behalf of the applicant concerns the reliability of her evidence given the length of time since the relevant events and the complaints about lack of particularisation and detail. However, although Donna had difficulty remembering some peripheral details with each count, her evidence about the acts said to constitute those counts was reasonably clear and precise. Hence in relation to count 1 she gave the following evidence in chief:

10. [10]

    It is the case that in cross‑examination about this count, Donna referred to having a “flashback” but that was in the context of her being asked what happened outside the car (“a flashback type of experience rather than remembering my surroundings”).

11. [11]

    With Count 2, Donna also provided a reasonably precise narrative of events as follows:

12. [12]

    The cross‑examination of Donna on this count focussed on her lack of precision as to what was attempted to be placed inside her, how she could not recall how she came to be in the bathroom or what she did afterwards or whether her mother was in the house or not. None of those matters are of much significance given that, on her version, the applicant was behind her, there is no reason why her presence in the bathroom of her own house would be memorable and the relative short time over which the incident occurred.

13. [13]

    The evidence of Donna in support of count 3 is summarised in the judgment of N Adams J at [35] to [39]. Like her evidence in support of counts 1 and 2 I do not consider that it suffers from a lack of sufficient detail or precision such as to cast doubt on its reliability or otherwise support the contention that either the first or third limb of s 6(1) of the Criminal Appeal Act 1912 has been satisfied.

14. [14]

    As noted, I otherwise agree with N Adams J. I agree with the orders her Honour proposes.

15. [15]

    N ADAMS J: On 2 March 2021, Christopher Macri stood trial before Judge Noman SC and a jury of twelve on an indictment charging three historical child sexual assault offences said to have been committed on the daughter of his former girlfriend in the late 1980s or early 1990s when the child was aged between 6 and 12 years old. Although the child was referred to as “AD” in the written submissions, I propose to refer to her as “the complainant” or by the pseudonym “Donna”.

16. [16]

    The indictment on which the applicant was convicted charged that between 26 February 1986 and 1 January 1991 the applicant committed the following offences:

    1. (1)

       Assault and act of indecency upon a person then under the age of 16 years under authority, contrary to s 61E(1A) of the Crimes Act 1900 (NSW) (as in force at that time);

    2. (2)

       Attempted sexual intercourse with a person then under the age of 16 years without consent and with knowledge that the person was not consenting, contrary to s 61F of the Crimes Act;

    3. (3)

       Sexual intercourse with a person then under the age of 16 years without consent and with knowledge that the person was not consenting, contrary to s 61D(1) of the Crimes Act.

17. [17]

    On 9 March 2021, the jury returned verdicts of guilty on all counts. On 9 April 2021, the applicant was sentenced to an aggregate term of imprisonment for 4 years and 6 months with a non-parole period of 3 years.

18. [18]

    Prior to the trial before Judge Noman SC, an earlier trial had commenced before Judge Ingram SC on 19 August 2020. The jury in that trial was discharged due to the late disclosure by police of certain school records. Prior to the commencement of that earlier trial, the applicant had sought a permanent stay before Judge Ingram SC which was refused.

19. [19]

    The applicant appeals against his convictions under s 5(1) of the Criminal Appeal Act 1912 (NSW). There is no application for leave to appeal against the sentence imposed. The applicant relies on two grounds of appeal:

20. [20]

    A ground of appeal contending that a verdict or verdicts are unreasonable requires a grant of leave as it involves a question of fact or of mixed law and fact: Kees Langelaar v R [2016] NSWCCA 143 at [46]. The grant of leave was not opposed by the Crown in this matter.

The Crown case

1. [21]

   The complainant was born in 1979. When she was five years old her parents divorced. After that she lived in Tempe with her mother, whom I shall refer to by the pseudonym “Carol”, and two siblings: a sister two years younger and a brother three years younger. Her mother commenced a relationship with the applicant in about 1985. The applicant was married and kept his relationship with the complainant’s mother a secret from his wife.

2. [22]

   The applicant would visit Carol every Monday night and Saturday and sometimes another week-night. This was a regular pattern whilst she lived in Tempe. The relationship lasted from about 1985 (on the Crown case) and certainly from at least 1987 (the date inscribed on a bracelet he gave her) until about 1994.

3. [23]

   In 2019, the complainant, who was by then 40 years of age, reported to police that the applicant had sexually assaulted her in the Tempe house whilst she was in primary school. She alleged that it happened on a number of occasions but she could now recall only three specific incidents (summarised below). She disclosed the applicant’s conduct to three friends over the years whilst she was still at school. She also told her mother in 1991, but the matter went no further at that time and her mother continued to see the applicant. The applicant agreed that Carol confronted him with the allegation in 1991 but on his version (denied by the complainant) the complainant withdrew the allegation when questioned by the applicant at that time.

4. [24]

   Carol died in 2013.

5. [25]

   After reporting the matter to police, the complainant telephoned the applicant and confronted him with the allegations. The telephone conversations were legally recorded by police. He neither directly denied nor admitted to the conduct, although he did apologise and ask how he could make amends. His explanation for this at trial was that he did not wish his wife to learn of the affair with Carol.

6. [26]

   Although the complainant was unable to be provide any significant detail of the particular acts making up the offences, the three friends to whom she confided whilst still a child all gave evidence. Furthermore, the applicant admitted that the allegation was first made in 1991 and did not dispute his conduct during the pretext call in 2019, only the explanation for it. I have extracted that call below at [85]-[87].

7. [27]

   The complainant could not recall how old she was when her mother commenced a relationship with the applicant, but it was after her parents divorced. She was at school at that time. He would visit on Mondays and sometimes Saturdays. When she was in primary school, she was learning Italian and she would speak to the applicant in Italian, just “little words”.

8. [28]

   The complainant accepted that a sketch plan of the Tempe premises accorded with her recollection (exhibit A).

9. [29]

   The complainant remembered the applicant’s red sports car as it had “pop-up” headlights. She remembered a time when she and the applicant drove to a video store in Marrickville. He stopped in a lane near Sydenham Station, undid his pants and guided her hand to touch his penis. She does not recall her age or what year she was in at school. It was quite dark. She did not remember seeing his penis saying, “that’s not my memory”. When asked what hand she used, she stated, “[w]hen I retell it, feels like it was my left hand”. His penis was “hard”. She did not realise at the time it was something wrong. She was not scared of him. She could not recall if he did anything else nor how long it went on for.

10. [30]

    An aerial photograph of the Sydenham area was tendered and became exhibit B.

11. [31]

    She remembered another incident which occurred at night in the bathroom of the Tempe house. She did not know how old she was nor the date. She remembered being in the bathroom and the applicant trying to put something in her vagina. She just remembers waking up in the bathroom and “that happening”.

12. [32]

    She did not recall how she came to be in the bathroom. It was night-time, so she would have been in bed. She was positioned near the sink. She thought she was facing the sink. When asked what part of her body was pressing up against the sink or whether she was away from the sink she responded:

13. [33]

    The light was not on. There was “a bit of light” but she could not remember a “bright bright” light. If the kitchen light was on it could shine into the bathroom. She knew it was the applicant because there was nobody else in the house and she knew him. She stated that she must have seen him. She was at the sink. He was behind her and she “felt something being - trying to be inserted inside” her vagina. She could not recall what she was wearing. She did not have clothing around her vagina. There was “nothing stopping it”. When asked what was being inserted into her vagina she responded, “I think it was his fingers and it was - wouldn’t fit, so … it hurt and that’s why I think this time it stood out”. She did not recall any other feelings except it hurting but she still was not scared of the applicant.

14. [34]

    Three photographs of the bathroom were tendered and became exhibit C and a photograph of the stove showing the doorway to the bathroom became exhibit D.

15. [35]

    The complainant then described the facts in support of count 3. It was night-time. She does not know how old she was, what time of the year it was nor what year she was in school. She was in the loungeroom:

16. [36]

    This incident occurred on the lounge. She could see the hallway. She then clarified that it was either on the lounge or on the floor; a position where she could see the hallway. It was an “L”-shaped lounge – it maybe had five seats. The lounge was quite close to the floor. She was lying on her back. There was nobody else in the room. She guessed her mother was in bed; she does not know where her mother was, but not in the lounge room.

17. [37]

    When asked whether she could see his hand she responded:

18. [38]

    She thought there was more than one finger because it was hurting. She does not recall the light being on. He was next to her, not on top of her. It was hard to say how many times he tried to insert his fingers. She said, “[i]f I think about my childhood, I think that he did these things to me many, many times …”. She did not know how many times he did on this occasion. She did not recall what she said to him when it hurt but he understood, as he would stop for a bit and try again.

19. [39]

    A copy of exhibit A with the lounge drawn on it became exhibit E. Three photographs of the applicant on that lounge became exhibit F. Two further photographs of the applicant on the lounge became exhibit G. Two photographs of the applicant and Carol, at Carol’s sister’s home in Lewisham, were tendered and became exhibit H. A photograph of the applicant and Carol, with Carol wearing the bracelet the applicant gave her became exhibit I. Two photographs of the bracelet showing the engraving, “To Carol, With All My Love Chris 25.12.87”, became exhibit K.

20. [40]

    The complainant was asked whether there were any other incidents she remembered and she replied that she was not able to be specific enough to give evidence of other incidents. Although she has a memory of another incident on the bathroom floor, it was not clear enough to “go into detail for Court”.

21. [41]

    When she was at Tempe High School the family moved home. They briefly resided with her aunt in Lewisham whilst their new home in Casula was being readied. She moved to Casula High School. She did not like it. One day she had truanted from school and saw “the counsellor” at Casula High. She did not remember their name or gender nor whether there was one or two of them. She accepted it would have been between August and September 1991. She told the counsellor that, “mum’s boyfriend had been touching me”. The person told her that she should tell her mum, so she did. The complainant does not recall her mother saying anything at that time.

22. [42]

    There was another time after that when the applicant was there, and her mother confronted him about the allegation. The complainant described that the applicant was “very upset. He was actually vomiting and crying and saying things like he’s going to go to gaol”. She remembered that afterwards, her mother told her not to tell anybody. She could not recall the exact words that her mother said to the applicant, but the complainant had told her mother that the applicant was “sexually abusing” her. She does not recall seeing the applicant vomit, but she could hear him from the bathroom. It sounded like vomiting. The complainant said she felt “really bad” for the applicant and that generally she got on well with him. He was always nice to her, and he made her feel special. He treated all three of them the same, but she felt like his favourite.

23. [43]

    The first person the complainant told about the offences was her friend NF. They went to primary school together and he lived up the street. She was still living in Tempe when she told him that the applicant was “touching” her. She cannot recall the exact words.

24. [44]

    She also told her friend VK who she went to High School with from years 9-12. Again, she did not recall the exact words, but she told her that the applicant had “sexually abused” her.

25. [45]

    She also mentioned it to a third friend, JA, whom she also met in High School in Year 9. She left the school in Year 10. Again, she told her that the applicant had “sexually abused” her. She was actually not sure when she told JA about this.

26. [46]

    She agreed that the first time she went to police was in 2019.

27. [47]

    On 23 May 2019, she made a telephone call to the applicant which was recorded by police. Although they asked her to make the call, there was no discussion beforehand as to what she should say to him.

28. [48]

    The complainant was questioned about the timing and sequencing of the events making up the offences. She agreed that she could not recall the order in which the incidents occurred, nor could she say if they occurred over a period of days, weeks or years. The offending started sometime after her mother met the applicant, which was “before year 3” at school, and ended by the time she was at High School (Year 7). She could not be any more precise in time.

29. [49]

    In relation to count 1, she agreed that she “had very little recollection of anything that was happening outside the car” and that her memory had been triggered by going back to the area and having a “flashback type of experience”, meaning a “very brief memory of something”. The flashback was of her hand touching the applicant’s penis in his car at night near Sydenham railway station during an outing to the video store. The complainant could recall only the pop-up headlights and colour of the car and could not say how many times she had been in the car generally, when this incident occurred, or any details of the surroundings. She had a feeling that it was her left hand that touched the applicant’s penis, but she had no visual recollection of what occurred nor for how long it occurred.

30. [50]

    In relation to count 2, the complainant could not recall when it took place or how old she was at the time. It was night, meaning it was dark outside, and it was dark in the bathroom but not pitch black. She did not recall how she came to be in the bathroom; her recollection started with the applicant trying to put something into her vagina (his fingers or something else). The focal point of her memory was this physical sensation, as opposed to what was occurring around her. She could not recall what she was wearing nor how long the incident lasted nor how it ended. She accepted that she did not describe herself as being anywhere else other than facing the sink; although she had another memory of lying on the bathroom tiles, separate to the incident in question.

31. [51]

    The complainant did not remember the applicant saying anything and agreed that she did not have a memory of seeing him behind her, but that he must have been. She clarified that her evidence that “there was nobody else in the house” meant “no other men”, as her mother and siblings were there. She was asked whether she assumed it was the applicant in the bathroom, to which she said, “I know it was [him].” She accepted that she did not know where her mother was during the incident but assumed she was asleep.

32. [52]

    She confirmed that count 3 occurred at night in the lounge room. She did not recall any television being on. She accepted that her mother would have been in the house but could not say where she was; the same was true of her brother and sister. She also accepted that the house was small, and that noise travelled between the rooms. Her memory of the incident effectively started at or about the time that the applicant was trying to put his finger(s) into her vagina, and she could not recall whether she was on the couch or the floor or lying or sitting or what she was wearing. Her memory was more of the feeling of finger(s) being inserted into her vagina. She remembered the incident especially because of the pain – it “stood out”. She did not recall how the incident ended.

33. [53]

    In re-examination, the complainant said that she was not scared of the applicant and that even if he was “doing those things”, she would not have cried out or screamed. When she told him she was in pain, he stopped and she “perceived that as him caring for [me]”.

34. [54]

    It was put to the complainant that the events did not occur, that she had dreamed them later and that they occurred but with someone other than the applicant. She denied these propositions.

35. [55]

    The complainant was asked further questions about the timing of the incidents and rejected the suggestion that they could have occurred solely in the first half of 1991; she believed they happened over a number of years. She agreed that she truanted from her new school, Casula High School, soon after commencing there in August 1991 and as a result saw the school counsellor. She agreed she told the counsellor that her “mum’s boyfriend” had been “touching [her]” and that this was the first adult she had confided in about this “pretty significant matter”. She did not remember him or her saying they would report the matter to the Department of Community Services.

36. [56]

    As for the conversation with her mother after meeting with the counsellor, the complainant said that nobody else could hear them, but her siblings may have been home. She did not remember her mother saying anything. When her mother “confronted” the applicant, the complainant said she knew they were talking about the applicant touching her from the applicant’s reaction. She thought she was there for the conversation; her main memory is of the applicant being sick and crying. The word “gaol” was used. She felt bad for the applicant and her mother.

37. [57]

    The complainant denied telling her mother that the applicant was touching her as a made-up story to avoid getting in trouble for truanting. She also denied that the applicant spoke to her directly at this time and asked, “[d]id I ever touch you?”, and she said, “[n]o”.

38. [58]

    She never spoke with her mother about the matter again, although her mother apologised when she was dying. In terms of her complaints to her three friends, the complainant agreed she did not go into any detail, nor did they tell her to report the matter to police. VK knew that the complainant had told her mother; it was sometime around or after Year 7.

39. [59]

    As for an occasion when the complainant went to see the applicant when she was about 16 or 17 years old to borrow money, she agreed that she did not confront him at that time about the allegations. She was not scared of him when she was young and thought he cared about her and her family.

40. [60]

    In relation to the pretext calls, the complainant agreed that the police did not tell her what to say but that she understood the purpose was to obtain an admission from the applicant. She did not think a lot about what she was going to say. She was asked about her answer, “[y]es”, to the applicant’s question, “do you still see your mum?”, and it was put to her that she knew this was misleading as her mother had died before the time of the call. She said that in her mind she did still see her mother, at the cemetery. She again denied that she had made up the allegations or convinced herself that they were true.

41. [61]

    The complainant complained to three friends in the period shortly after the period of the alleged offending.

42. [62]

    NF attended primary school with the complainant, and they were childhood friends. He gave evidence that when he was in Year 6 or Year 7, but more likely primary school, the complainant told her that the applicant had “touched” her and made her feel uncomfortable. He gave evidence that the complainant told him that the applicant “was touching her, making her feel uncomfortable. She didn't want to be in the same house when he was there and all that kind of stuff”, and that:

43. [63]

    VK is a childhood friend of the complainant. They attended Tempe High School together. VK gave evidence that in the holiday period between years 7 and 8, the complainant disclosed to her that she had been “sexually abused” when she was younger on occasions when the applicant would stay over. VK gave evidence that, in respect of the complainant:

44. [64]

    JA was the third witness who have evidence of complaint. She met the complainant in Year 9 at Birrong High School. They became friends and remained so after JA left the school about one year after they met. At some stage while they were at school the complainant told her that the applicant had sexually abused her and touched her inappropriately. Her evidence was that the complainant told her:

45. [65]

    VK agreed that the topic had come up again over the years stating, “[o]bviously it's not something you ever forget, so there has been talk over the years”.

46. [66]

    Stephen Whyte was the school counsellor at Casula High School from 1989 to 1999. He has no memory at all of the complainant and the relevant records for 1991 are no longer available. He gave evidence that, as at 1991, if a child disclosed that they had been sexually abused it would be mandatory to report it to the Department of Community Services. If a child complained to him, he would not have told the child to tell their parent; he would have reported it.

47. [67]

    He also gave evidence that if a student had truanted, they would have been referred to the home/school liaison officer at the school rather than to him.

48. [68]

    The complainant’s sister confirmed that the family commenced living at the Tempe house when she was three (so the complainant would have been five years old). She moved to Casula with the complainant, their mother and brother when she was about nine or ten years old. She described the layout of the Tempe house.

49. [69]

    She could not remember how old she was when she first became aware of the applicant but his relationship with her mum lasted several years and continued for a little bit after the family moved to Casula. The applicant would visit her mother at the Tempe house about two to three times a week. This included Monday evenings, Saturday afternoons and either a Wednesday or a Friday.

50. [70]

    After her parents separated, she and her siblings would go and stay with their father. She thought it could have been Wednesday nights and every second weekend. It would have changed over the years.

51. [71]

    She saw the applicant with a red sports car at the Tempe house. It was possibly a Nissan and its front headlights popped up. She could not remember ever being in the car. When she was shown exhibit G, she recognised the applicant.

52. [72]

    She was not cross-examined.

53. [73]

    The complainant’s father gave evidence generally consistent with other family members as to dates and the occasions his three children would come to stay with him. He wanted to have the children every Wednesday so that he could keep regular contact with them. He moved a number of times but always lived in suburbs close to Tempe. He was aware Carol was seeing the applicant.

54. [74]

    The complainant came to live with him twice during her teenage years, in 1992 and 1996. When she came to live with him in 1992, he asked her why and she said, "I can't stay with mum.” He assumed that there had been an argument. In 1996, she was in Year 12 and her best friend was VK.

55. [75]

    In cross-examination he agreed that he had never met or spoken to the applicant and that Carol had never told him about her relationship with the applicant. He heard about it through his children and neighbours. He said it was on a date in 1985, 1986 or 1987. He remembers that his relationship with Carol ended in 1984 and when he heard of Carol’s relationship with the applicant. He thought it had not taken long for her to “have somebody there”.

56. [76]

    The complainant’s brother gave evidence generally consistent with other family members as to the relevant timeline although he had little memory of the applicant visiting the Tempe house. When he lived in Tempe, he shared a bedroom with his sisters. They had a bunk bed, and he had a single bed. His first memory of the applicant coming to the Tempe house was probably when he was in Year 3 or 4. He was maybe about eight or nine years old (being 1990-1991).

57. [77]

    He remembered the applicant having a car which was a Nissan Patrol four-wheel drive. He had one vivid memory of the applicant being in Tempe, just from a photo in his photo album. He had more memories at Casula as he was older. His relationship with the applicant was “fine”.

58. [78]

    The complainant’s aunt, whom I shall call Janet, gave evidence that Carol lived with her three children in Tempe in the 1980s until 1991 when they temporarily moved to live with her in Lewisham for a few months before they moved to Casula.

59. [79]

    She could not remember exactly when Carol started seeing the applicant, but she was “fairly certain” it would have been at least between 1985 and 1986; although they were “definitely” in a relationship between 1984 and 1986. She met the applicant several times, including at the Tempe house. The applicant would attend the Tempe house about three times a week on either a Monday, Tuesday, or a Thursday. It was a regular pattern.

60. [80]

    In 1991, Janet had quite regular contact with Carol as Carol babysat Janet’s daughter. The applicant would be there when Janet finished work and attended the Tempe house between 6.00-6.30pm to collect her daughter. She would not have usually been at the Tempe house later than that. She was “pretty sure” that the applicant had a Nissan 300ZX car. It was red and had pop-up headlights. She also saw he had a tow truck a couple of times. When Carol and the children stayed with her in Lewisham, the applicant visited a few times. She recalled that the complainant was “very quiet”.

61. [81]

    In cross-examination she clarified that there were not specific days that the applicant visited Carol; rather she had just given an example of the fact that he would come over a few days a week. She did not believe he attended on weekends; he may have. She could not recall the exact days, but she was aware that it was a regular pattern, two to three days a week. It was possible that he visited on a Saturday, but she was not aware of that. To her knowledge, the applicant did not ever stay the night at Carol’s home.

62. [82]

    Detective Senior Constable Paula Gardner (“the OIC”) commenced an investigation after meeting with the complainant. She outlined her inquiries which included into relevant motor vehicles. Although she was able to identify that the applicant owned a red sports vehicle from 1991 to 1998, the Roads and Traffic Authority records did not commence until 1991 so she was not able to establish the time in which the applicant first received ownership of the red sports car. That red sports vehicle was a “stag” (not the vehicle described by the complainant).

63. [83]

    The OIC arranged for the complainant to telephone the applicant.

64. [84]

    When she spoke to the accused about ownership of that vehicle, he agreed to owning a stag but could not remember when he owned it. The applicant declined to be interviewed. The OIC also spoke to Mr Whyte.

65. [85]

    The complainant telephoned the applicant on two occasions on 23 May 2019. Both conversations were recorded by police. Given the significance of what the applicant said to the complainant I propose to extract the contents in detail.

66. [86]

    The first recording (exhibit N) recorded the following conversation:

67. [87]

    The second recording (exhibit O) was as follows:

The applicant’s case

1. [88]

   The applicant gave sworn evidence to being married at the time of the alleged offences but having had an extra-marital affair with the complainant’s mother for some years. He agreed that he gave the complainant’s mother the bracelet dated 25 December 1987 and accepted he was in a relationship with her at that time.

2. [89]

   He stated that he always met Carol at her house, usually on a Monday, “definitely” on a Saturday and, if the children were not there, on a Wednesday. He agreed that when he visited Carol’s house, he “always” had the Nissan 300ZX sports car which had pop-up headlights. He came into possession of the car in 1984 or 1985.

3. [90]

   He would usually leave Carol’s home at about 11.30pm on a Saturday night and 11pm on a Monday night because he had to work the following day. He agreed he had some contact with the children when he went there during the week. He adamantly denied ever reading to them or putting them to bed as he did not even do that for his own children.

4. [91]

   He stated that he did not recall Carol ever sleeping when he was there. He denied ever drinking to excess when he was visiting Carol as he had to drive home. He accepted that it was possible he had spoken in Italian with the complainant. He denied paying any special attention to any of the three children stating, “I cared for the three of them”. He saw the complainant’s mother less when she moved to Casula as it was too far away. He thought the relationship ended in about 1994 when his mother died. He denied ever driving the complainant alone in his car.

5. [92]

   He stated that he would only shower at Carol’s place when the children were not there.

6. [93]

   He remembered an occasion when the complainant was caught truanting. Carol confronted him on a Saturday afternoon and told him that the complainant had said he was “having sex with her”. The complainant was at Casula High by then, so this was in the period from August to October 1991. His evidence was that nobody else was present at this time. He was asked what he said to Carol, and he responded as follows:

7. [94]

   He continued the relationship with Carol after this discussion for another 12-18 months.

8. [95]

   About two to three years after he ended the relationship with Carol, the complainant contacted him and asked for money. He agreed to meet her in Arncliffe. She sounded “a little bit upset”. He gave her either $50 or $100. He gave her the money because he cared for her.

9. [96]

   He was asked about the recorded telephone conversations with the complainant. He stated that he asked her to call back because he thought his wife might hear the conversation and he did not want that. He was in his home office for the first call. He went downstairs and into the backyard for the second call. He agreed that he knew by now that she had made an allegation against him. He was being truthful when he told her that he had been trying to track her down. When he said to her, “I’ve always cared about you”, he meant he had cared about her family.

10. [97]

    When he said to her, “I don’t know what I’ve done”, and that he was “really very sorry and if you tell me what you want, I’ll agree to make amends”, he explained that she sounded “a little distressed” and he wanted to appease her “just to keep her calm”. He denied that he was apologising for anything in particular at that time. He explained that he agreed to make amends just to keep her “calm, happy” because he was worried that the affair would be exposed to his wife.

11. [98]

    When he asked the complainant what she wanted during that call and stated, “I’ve always cared for you”, and “I can’t bring myself to believe that I have done something wrong,” he was referring to the allegation of sexual abuse. At that time, he had a recollection of the conversation in Casula in 1991.

12. [99]

    After 1991, he had had no contact with the complainant about that issue before the telephone calls that day. He did not know why he used the words, “I just don’t believe I could do something like that”. He explained that it was true that he had been searching for the complainant and her family (on the Internet) because he wanted to know how they were getting on.

13. [100]

    He vehemently denied vomiting during the conversation (where Carol put the allegations to him) in 1991.

14. [101]

    He explained that he apologised to the complainant during the calls as he was just trying to keep her calm and she “sounded like she was getting more and more excitable”. He was not apologising for sexually assaulting her.

15. [102]

    He otherwise denied each allegation.

16. [103]

    The applicant was asked about his explanation in the pretext call that he was trying to keep the complainant calm and explained that he thought she might have attempted to have hurt herself. He agreed that he had no knowledge of the complainant ever hurting herself or attempting to do so. He stated that he was worried about the affair coming out. He stated that he was not worried about the allegations because they were not true. He agreed that that was not what he said to the complainant.

17. [104]

    He stated that he did not know why he did not deny the allegation in the pretext calls. He agreed that he was emphatic in his denials before the jury but not in the calls with the complainant but stated that he had a “few more things” going on in his mind during the call. When asked how telling that he could not remember would keep her calm he responded that he was just trying to appease her. He agreed that he did not once suggest to Donna that she had made it up, even though he knew what she had told her mother in 1991.

18. [105]

    He agreed that he could not dispute that his relationship with Carol started earlier than the date on the bracelet (25 December 1987).

19. [106]

    He was adamant that Carol had never fallen asleep when he was there. He was also adamant that there was never a time the complainant was in his car alone with him.

20. [107]

    As for giving Donna the money two or three years after she alleged to her mother that he had sexually assaulted her, he explained it was because he “cared for her”. When asked whether he still cared for her even though she had accused him of sexual assault, he answered “[a]bsolutely”.

21. [108]

    He stated that he was more worried about his wife finding out about the affair than the allegation of sexually assaulting a child.

22. [109]

    He agreed that the reason he asked Donna how he could make amends in the pretext call was so that she would not go to police. He stated that he kept talking to her because he was concerned about her wellbeing. He denied he told her about his pending results to make her feel sorry for him so she would not report the mater to police. He agreed that his memory was “reasonable” at the time of the call; he certainly remembered the 1991 conversation

Summing up

1. [110]

   Her Honour gave the following warning to the jury with respect to disadvantage to the applicant as a consequence of delay:

2. [111]

   The jury retired to deliberate at 1pm on Friday, 5 March 2021 and delivered its verdict at 4pm on Tuesday, 9 March 2021.

Application for a permanent stay

1. [112]

   On 13 August 2020, the applicant filed a notice of motion before his Honour Judge Ingram SC seeking, inter alia, that the indictment be permanently stayed. The applicant relied on the affidavit of his solicitor, Gayanie Walton, affirmed on 13 August 2020 and the written submissions dated 12 August 2020. The Crown relied on written submissions dated 16 August 2020.

2. [113]

   His Honour heard the application on 17 August 2020 and on 18 August delivered his reasons for refusing the application.

3. [114]

   His Honour set out the Crown case and relevant procedural history. He went on to summarise the submissions in support of the application for a permanent stay as follows:

   1. (1)

      That the timeframe in the indictment was too broad being almost 5 years.

   2. (2)

      That 33 years has elapsed since the time of the alleged offending.

   3. (3)

      That not one of the indictment, the Crown case statement or any of the witness statements disclose sufficient particulars to allow the applicant to present any defence.

4. [115]

   His Honour noted the applicant’s position that the range of dates disclosed is unreasonably broad and unfair. It was submitted that it precluded the accused from having a fair trial and would bring the administration of justice into disrepute.

5. [116]

   It was further submitted that the delay resulted in significant forensic disadvantage to the accused by reason of several factors including the diminution of the complainant’s memory. Reliance was also placed on the fact that the complainant’s mother had died. It was submitted that a warning pursuant to s 165B of the Evidence Act 1995 (NSW) in relation to the significant forensic disadvantage would be insufficient in the circumstances of this case.

6. [117]

   His Honour went on to set out the relevant legal principles in some detail citing Jago v District Court of NSW (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Adler v District Court of NSW (1990) 19 NSWLR 317; Barton v Regina (1980) 147 CLR 75; Regina v Moore (2015) 91 NSWLR 276; Regina v RD [2016] NSWCCA 84; S v The Queen (1989) 168 CLR 266; Regina v Littler [2001] NSWCCA 173; and Jackmain (a pseudonym) v Regina [2002] NSWCCA 150.

7. [118]

   In refusing to grant a permanent stay his Honour noted that the focus of the applicant’s submissions was the prejudice to him to the exclusion of other considerations such as the public interest and public confidence in the administration of criminal justice. He was satisfied, however, that the applicant accepted that those broader factors weighed against the grant of permanent stay in the applicant’s matter.

8. [119]

   His Honour referred to the allegations of “serious child sexual assault offences” against the applicant and stated his satisfaction that the factors of public interest and public confidence weighed heavily against a permanent stay being granted. In considering the issues of delay and prejudice to the accused, his Honour noted that some evidence was no longer available but went on to observe that the prejudice could be cured either through the evidence of a Crown or defence witness and/or submissions of senior counsel appearing for the accused and/or by directions. His Honour then concluded in the following terms:

Ground 1 – the stay

1. [120]

   The applicant acknowledged that the decision whether to grant or refuse an application for a permanent stay involves the exercise of a discretion by the trial judge. Therefore, on appeal, “some error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40”. The applicant submitted that “it was not reasonably open to his Honour to refuse the permanent stay application having regard to the breadth of the indictment and the issues flowing from the delay”.

2. [121]

   The applicant then set out some principles relevant to the determination of applications for a permanent stay of criminal proceedings (discussed below at [130]-[135]).

3. [122]

   The applicant submitted that the date range on the indictment was “an extraordinarily broad period spanning almost 5 years”, giving rise to incurable difficulties, being the following:

4. [123]

   The applicant contended that as a result of the broad date range on the indictment and the resulting difficulties he was unable to receive a fair trial and could not raise a proper defence or alibi. This was said to be consistent with the observations of Gaudron and McHugh JJ in S v The Queen (1989) 168 CLR 266; [1989] HCA 66 at [10] to the effect that the accused in that case was “denied the opportunity to test the credit of the complainant by reference to the surrounding circumstances” as would have been possible if the acts charged had been better particularised in time or otherwise. In this case, the applicant submitted that the uncertainty could not be cured by way of further particulars, as the complainant was unable to provide any further detail of surrounding circumstances, sequencing, or timeframe.

5. [124]

   Additionally, the applicant submitted that the delay in the applicant being charged and facing trial caused him a “significant forensic disadvantage”, resulting in an unfair trial as he was unable to properly prepare a defence. In particular, the applicant pointed to the following issues:

   1. (1)

      The death of the complainant’s mother, a critical witness, both in terms of complaint evidence and the alleged conversation between her and the applicant where the applicant had effectively made an admission.

   2. (2)

      The applicant’s diminished capacity to obtain evidence to meet the charges (eg lost business records of his smash repair business which may have fixed the time at which he met the complainant’s mother).

   3. (3)

      The memory of the complainant was such that she could not better particularised the charges in terms of time or circumstances.

   4. (4)

      The impact of delay on the applicant’s memory.

6. [125]

   The applicant submitted that these disadvantages could not be cured by a direction pursuant to s 165B of the Evidence Act. In the circumstances, the applicant was restricted to “blunt and basic denials of the alleged events” and could not receive a fair trial. Finally, the applicant submitted that:

7. [126]

   The Crown relied upon the decision in Bandao v R; Bruce v R [2018] NSWCCA 181 at [155] (discussed below) as to the relevant test and submitted that there was a significant degree of overlap between the complaints made under this ground and ground 2.

8. [127]

   The Crown noted that no specific error was identified by the applicant in relation to the trial judge’s decision to refuse the application for permanent stay. The complaint, as understood by the Crown, was that “it was not reasonably open” to refuse the stay and that the stay “ought to have been granted”, “presumably invoking the fifth limb of House v The King”. It was submitted that not only is no error identified in the decision of the trial judge but that the way the trial unfolded showed that his Honour’s refusal of the application was well open.

9. [128]

   The applicant appeals against his conviction under s 6(1) of the Criminal Appeal Act. That section provides that in addition to allowing a conviction appeal if the court is of opinion that the verdict of the jury is unreasonable (“the first limb”), or that that there has been a wrong decision of any question of law (“the second limb”), an appellate court shall allow an appeal if it is of the opinion that “on any other ground whatsoever there was a miscarriage of justice” (“the third limb”).

10. [129]

    The applicant does not contend under this ground that there has been a wrong decision on any question of law, and unreasonable verdict is the subject of ground 2; thus, the resolution of this ground turns on whether there has been a “third limb” miscarriage as a result of the refusal by Judge Ingram SC to permanently stay the trial.

11. [130]

    The relevant principles regarding the granting of a permanent stay are well established and are derived from a number of decisions of the High Court: Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49, The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (“Glennon”), Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 (“Dupas”), Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 (“Strickland”), The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20 (“Edwards’”), Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 (“Barton”), Jago v The District Court of NSW (1989) 168 CLR 23 [1989] HCA 46 (”Jago”), Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, and Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41. The principles derived from these decisions, and decisions of this Court, can be summarised as follows:

12. [131]

    The power to permanently stay proceedings will only be granted in an extreme or exceptional case: Barton at 111; Jago at 34; Glennon at 605-606; Agar v Hyde at [57]. In order to justify a permanent stay, there must be a fundamental defect which goes to the root of the trial of such a nature that there is nothing the court can do to relieve against its unfair consequences: Jago at 34; Glennon at 605-606; Dupas at [18], [35]; and Strickland at [106].

13. [132]

    As the High Court observed in Dupas at [39], fairness to the accused is not the only relevant factor. Rather, a trial judge determining whether to permanently stay proceedings must:

14. [133]

    Similarly, in R v RD [2016] NSWCCA 84 (“RD”), Bathurst CJ observed the following in this regard at [53]-[56]:

15. [134]

    In RD, this Court set aside a decision to grant a permanent stay of a prosecution for a historical sexual assault offence. The facts are informative as to the sort of forensic disadvantage that was held not to be sufficiently exceptional such as to warrant a stay. On 6 July 2015, the respondent was charged with having sexual intercourse with SM (the complainant) without her consent. The offence was alleged to have occurred on 9 October 1997. The complainant reported the incident to police the following day and on 15 October 1997 the respondent participated in a recorded interview with police in which he denied the allegations. When the trial commenced in July 2015, the 1997 interview was thought to be lost. The complainant gave evidence and was cross-examined by the respondent’s counsel. At this point, police informed the Crown that the 1997 interview had been found. There were inconsistencies between the version of events put the complainant in cross-examination and the version given by the respondent in 1997.

16. [135]

    The trial judge granted an application by the respondent for a permanent stay of proceedings. The relevant considerations were: unfairness to the respondent arising from the late discovery of the 1997 interview and the Crown’s proposed course of cross-examination were he to give evidence at any future trial (including the inhibiting effect this had on his choice whether or not to give evidence); the original brief of evidence had been destroyed (including the loss of exhibits, witness statements and that a witness was no longer able to located); and delay. On appeal, Bathurst CJ (with whom Johnson J and R S Hulme AJ agreed) held that, allowing for steps which could be taken to mitigate the unfairness arising from the discovery of the 1997 statement, these considerations did not warrant a permanent stay of proceedings.

17. [136]

    Although the principles to be applied when determining whether a stay should be granted are well settled, the relevant test to apply when complaint is made of the failure to grant a stay in an appeal against conviction is less clear. The authorities suggest it is a hybrid test requiring both the need to establish House error (House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505) and a miscarriage of justice within s 6(1) of the Criminal Appeal Act.

18. [137]

    The requirement that House error be established is no doubt derived from the fact that the decision to refuse (or grant) a permanent stay is discretionary, and that the majority of appeals to this Court against such a decision are brought at the interlocutory stage. But the decisions in Glennon and Dupas establish that when such a complaint is made in an appeal against conviction, an appellate court is not simply looking for House error, it is assessing whether the accused received a fair trial by examination of what actually happened at the trial.

19. [138]

    In Glennon, a stay was sought on the basis of extensive pre-trial publicity of the applicant’s previous conviction and additional rape allegation. Three applications for a permanent stay of the prosecution as a result of the pre-trial publicity were made and refused: by Judge Harris of the County Court, Crockett J in the Supreme Court and Judge Neesham (the trial judge). The trial judge considered himself bound by the decision of Crockett J. The appellant’s appeal to the Court of Criminal Appeal (“CCA”) was allowed on the basis that the verdicts were unsafe and unsatisfactory because of the substantial risk that some members of the jury had become aware of the accused's prior conviction as a result of the pre-trial publicity. His convictions were quashed.

20. [139]

    The Crown was granted special leave in Glennon and successfully appealed that decision (by a majority of four to three) on the basis that the CCA erred in departing from the decision of Crockett J to refuse the application for a permanent stay. Although their Honours were not unanimous as to either the result or the relevant test to apply, what emerges from the various decisions is that an appellant needs to show some error on the part of the trial judge and that the appellant did not receive a fair trial.

21. [140]

    Mason CJ and Toohey J were not satisfied that there was any error of principle in the decision of Crockett J to refuse the stay. Their Honours were satisfied that the CCA had not properly considered whether the publicity had necessarily resulted in a miscarriage, stating the following at 598 (footnotes omitted):

22. [141]

    Their Honours went on at 599-600 to observe:

23. [142]

    Their Honours also observed at 605-606 (footnotes omitted):

24. [143]

    In summary their Honours held that House error must be shown, and that there was a “serious risk” that the accused had been deprived of a fair trial.

25. [144]

    The third judge in the majority, Brennan J, with whom Dawson J agreed, observed at 610 that the Full Court would have had no jurisdiction to interfere with the verdicts of guilty unless it had found that a miscarriage of justice had occurred. His Honour observed the following at 616-617:

26. [145]

    Deane, Gaudron and McHugh JJ were in dissent but stated the following as to the relevant test at 623-624 (footnotes omitted):

27. [146]

    In Dupas the High Court again considered the question of whether a trial should have been stayed due to adverse pre-trial publicity as part of an appeal against conviction. The appellant, who had been charged with murder, had two previous murder convictions. His application before Cummins J for a permanent stay of the proceedings as a result of the significant publicity was refused and he was subsequently convicted. His appeal to the Victorian Court of Appeal was successful in part and a new trial was ordered. His ground concerning the stay application was unsuccessful and it was on that ground that special leave was granted. In that context the Court relied upon the observations of Mason CJ and Toohey J in Glennon and made the following observations as to the nature of an appeal from a decision to refuse an application for a permanent stay when the proceedings have resulted in conviction at [18]-[19] (footnotes omitted):

28. [147]

    Their Honours went on to observe at [38]-[39]:

29. [148]

    The sole ground of appeal in Dupas was put in the alternative: the primary argument was that the Victorian Court of Appeal had erred in failing to find that the trial judge erred when he refused to grant a permanent stay. The alternative argument was that the Court of Appeal erred in not staying the trial (ie in ordering a retrial). Despite the fact that the appeal to the High Court concerned the correctness of the decision to refuse a stay, the Court did not suggest that there was any requirement to establish House error in such an appeal.

30. [149]

    In the present appeal, the Crown relied upon the decision of this court in Bandao v R; Bruce v R [2018] NSWCCA 181 as stating the relevant test and senior counsel for the applicant did not contend otherwise. The applicants in that case had been convicted on one count of sexual intercourse without consent in company. Both appealed against their conviction and advanced grounds that the trial judge had erred in refusing an application to permanently stay the proceedings. The stay application arose after it emerged during cross-examination of the complainant that the complainant’s friend (and Crown witness) had unlawfully recorded a conversation during which the complainant had told her that one of the accused had not been involved in the sexual assault. The Crown had obtained a copy and provided it to the complainant who had listened to the recording.

31. [150]

    As for the relevant test, Hoeben CJ at CL (with whom Price and Wilson JJ agreed) expressed it to be at follows at [155]:

32. [151]

    I note that Medich was an appeal from interlocutory orders of Bellew J refusing an application for a permanent stay of prosecution. The other decision of this court cited by Hoeben CJ at CL in Bandao was Hughes v R [2015] NSWCCA 330, which was an appeal against conviction. One of the grounds in Hughes contended that the trial judge had erred in refusing to permanently stay the indictment due to adverse pre-trial publicity. In unanimously rejecting that ground the Court (Beazley P, Schmidt and Button JJ) observed this at [61]-[63]:

33. [152]

    It seems to me that in dismissing this ground, the Court’s attention was directed to the question of whether the applicant had in fact received a fair trial, by considering the various directions given by the trial judge and how the jury returned verdicts on each of the various counts, rather than to a review of the trial judge’s original exercise of discretion. At [67] the Court observed:

34. [153]

    The Court concluded at [79]-[82]:

35. [154]

    A different approach was adopted in Hogan (a pseudonym) v R [2019] NSWCCA 125. That decision also concerned an appeal against conviction brought in respect of historical child sexual offences. Prior to the empanelment of the jury, the appellant unsuccessfully applied for a permanent stay of the proceedings, citing delay and the loss of evidence and other documentation in relation to the aborted trial.

36. [155]

    Following his conviction on two counts, the applicant appealed against his conviction to this court on grounds asserting error in the trial judge’s decision to refuse the stay application and that the verdicts were unreasonable. The primary judgment was that of Simpson AJA, with whom Johnson J and I agreed.

37. [156]

    Both the Crown and the applicant approached the ground concerning the refusal to grant a stay in that matter on the basis that the relevant standard of appellate review was House error and it was on that basis that the appeal was determined. Simpson JA identified the relevant question for the Court’s determination (at [14]) as follows:

38. [157]

    Her Honour went on at [41] to observe this:

39. [158]

    That this Court has not always taken the same approach when considering such a ground can also be seen in cases such as R v Smith [No 1] [2011] NSWSC 725 and JG v R [2014] NSWCCA 138.

40. [159]

    In most cases it will make no difference to the resolution of a ground in an appeal against conviction concerned with the decision to refuse a stay which standard of appellate review is applied, as the decision in Hogan illustrates. It seems unlikely that an applicant could succeed on such a ground by establishing House error if, with the benefit of hindsight, he or she in fact received a fair trial. Conversely, it seems unlikely that an applicant who was unable to show House error would have such a ground dismissed if, with the benefit of hindsight, there was identifiable unfairness at his or her trial which could not have been predicted.

41. [160]

    Further, as was submitted on behalf of the Crown in the present appeal, there is considerable overlap between a ground asserting unfairness due to the refusal to grant a stay and a ground asserting that the convictions were unreasonable; in Glennon the ground of appeal was that the verdicts were unreasonable because of the refusal to grant a stay.

42. [161]

    In light of the above, it seems to me that the standard of appellate review for a ground such as this is a hybrid test: the applicant is required to demonstrate both House error in relation to the interlocutory decision and a miscarriage of justice having regard to how the trial proceeded. That is the approach I am required to take. It follows that in those cases where no House error can be identified but the trial miscarried in any event (due to unforeseen circumstances), an applicant would need to frame the relevant ground of appeal differently.

43. [162]

    The applicant in the present appeal did not rely upon any specific House error under this ground. Rather it was contended that the refusal of the stay was “not reasonably open”.

44. [163]

    The applicant’s primary argument is that the broad date range charged on the indictment meant that the applicant could not receive a fair trial. It is to be accepted that poor recollection of specific dates is a feature of historical child sexual assault trials: indeed, it is the inevitable result of child delaying complaint to authorities until they are old enough to fully comprehend the seriousness of what happened to them.

45. [164]

    Although it is not uncommon for complainants in historical child sexual assault trials to be unable to provide the dates upon which particular sexual acts were alleged to have occurred, it is common for them to be able to roughly date an alleged assault by reference to a notable event that is more easily recalled such as a birthday or Christmas. It is to be accepted that the complainant was unable even to do that in this matter. Nor was she able to put the three alleged assaults in chronological order.

46. [165]

    The question of whether the broad date range caused an unfair trial is to be assessed by the issues raised at the trial and how it proceeded. It was common ground at trial that the applicant had the opportunity to commit the offences. He did not dispute being regularly at the complainant’s home over the time period charged until 11.00-11.30pm at night. All offences were alleged to have occurred at the Tempe house at a time when the applicant routinely was present. On this basis, it seems to me that even if the complainant could have nominated a narrower period of time over which the alleged offending took place, it is unlikely that the applicant could have relied upon any defence of alibi or changed the manner in which he conducted his defence at trial.

47. [166]

    It was contended under both this ground and ground 2 that the circumstances of the alleged offending were “distinctly vague”. I have addressed this complaint under ground 2. I am not satisfied that the circumstances of each sexual act were vague; it was the surrounding events which lacked detail. As I observed in Kassab (a pseudonym) v R [2021] NSWCCA 46 at [237], when abuse is alleged to have been ongoing over many years, it is not surprising that the details surrounding the events would become vaguer than the circumstances of the actual acts themselves. Lapse of time and the impact on memory is a feature of most historical child sexual assault trials and trials have been conducted with far greater delays than this one. That is not to say that such a trial would never be stayed; only that more than mere effluxion of time is required. I am not satisfied that the broad date range charged warranted a stay for the reasons I have set out here and in my consideration of ground 2 below.

48. [167]

    The applicant relies on S v The Queen (1989) 168 CLR 266; [1989] HCA 66 but acknowledges that decision is factually different to this case. Contrary to what occurred in S v The Queen, the three counts charged against the applicant were clearly specified as separate incidents, The complainant recalled the incident in the applicants red sports car (count 1), the incident in the bathroom (count 2) and the incident in the loungeroom (count 3).

49. [168]

    Further, as the Crown noted in its submissions, the number of potential forensic disadvantages identified by the applicant before Ingram SC DCJ, was reduced by the conclusion of the trial. As stated above, the question of whether the trial was a fair one is to be assessed in light of how it actually proceeded. In that regard I note the following complaints made at the pre-trial stage were of little or no significance by the conclusion of the trial.

50. [169]

    The applicant contended before Ingram SC DCJ that prejudice was caused by the fact that records pertaining to the applicant’s motor vehicle at the relevant time were missing. But at trial, the applicant’s evidence was that he believed that he purchased the Nissan (with the pop-up headlights) in 1984 or 1985. That date is consistent with the time frame of the indictment. Given the applicant’s evidence it is difficult to see how the records would have made any significant difference.

51. [170]

    A similar complaint was made about the applicant’s business records but it is not clear how his business records could have been of relevance given that the offences were all alleged to have been committed at night on occasions when the applicant regularly visited the Tempe house. The applicant conducted a smash repairs business in Arncliffe during the relevant period. It was not suggested that he ever worked at night.

52. [171]

    I accept that the death of the complainant’s mother Carol created a forensic disadvantage as she was the only other person present for the 1991 disclosure. But I am satisfied that the forensic disadvantage caused by her absence was overcome by the trial judge’s directions. Her absence did not cause such unfairness as to require a permanent stay. In any event, as discussed further under ground 2, the applicant did not dispute that the complainant’s mother confronted him with the complainant’s allegation that he had been sexually assaulting her; the divergence in the respective cases was as to whether she was telling the truth and had recanted her allegation at the time.

53. [172]

    The complainant’s version is that after she disclosed the sexual offending to her mother, her mother confronted the respondent who in turn responded by becoming extremely upset and vomiting. The complainant’s evidence was that she felt sorry for both the applicant and her mother after that, and nothing ever happened as a result. The applicant’s version is that when the complainant’s mother confronted him with the allegation (in the presence of the complainant) he denied it and when the complainant was directly challenged on it, she denied it as well.

54. [173]

    The complainant gave evidence that her mother did not like confrontation, and they never spoke of it again until on her mother’s deathbed she apologised. In the context of that evidence, it is unclear what evidence her mother would have given that could have assisted the applicant in any significant way; the complainant and the applicant both agreed that the complaint was made to her mother, that her mother knew about it and that no complaint was made to police thereafter. The high point of the complainant’s mother’s potential evidence was as to whether the complainant denied the allegation at the relevant time. It is simply not known what she would have said on that issue. It is speculative to presume that it would have favoured the applicant.

55. [174]

    The same argument applies to any disadvantage caused by the fact that there were no surviving school records from 1991. Again, given that the complainant’s evidence was that it was only after speaking to the school counsellor that she disclosed the conduct to her mother (and there was no dispute that she had in fact told her mother), the high point of this evidence was as to whether she did in fact complain to the school counsellor. The school counsellor at the relevant time gave evidence that he has no recollection of the complainant and stated that the usual practice would have been mandatory reporting. Although it is to be accepted that mandatory reporting was a statutory obligation as at 1991, it could not be said that at that time (31 years ago) that obligation would be adhered to as strictly as it is now. In any event, Mr Whyte gave evidence at trial that in addition to the school counsellor there was also a home/school liaison officer, who it seems more likely the complainant would have been referred to. (I return to this issue under ground 2 below.)

56. [175]

    I am unable to accept the applicant’s contention that there were “unusual and extraordinary circumstances” in this case resulting in an inability to properly defend himself which meant he could not receive a “fair trial”. It is to be accepted that he had suffered forensic disadvantages on the bases I have already outlined. But I am satisfied they were cured by the directions provided pursuant to s 165B of the Evidence Act. It is also to be accepted that the applicant defended the allegations by “blunt and basic denials of the alleged events”, but that does not mean that he could not and did not receive a fair trial.

57. [176]

    I have considered the submissions advanced on behalf of the applicant in the context of the way in which the trial unfolded. There is a high bar for the granting of a permanent stay. The applicant has failed to establish any error in the decision of Judge Ingram SC which resulted in an unfair trial. No miscarriage of justice has been identified. As the High Court observed in Edwards at [31]:

58. [177]

    I would not uphold this ground.

Ground 2 – unreasonable verdict

1. [178]

   The applicant set out the relevant principles when determining whether a verdict or verdicts are unreasonable under s 6(1) of the Criminal Appeal Act. The focus of the applicant’s submissions on this ground was that the Crown case relied wholly on the complainant’s testimony and the evidence of complaint, and that the overall quality of the evidence was so lacking that this Court would be satisfied that a jury acting reasonably ought to have entertained a reasonable doubt in respect of each count. The applicant then detailed his complaint by addressing the following issues in turn.

2. [179]

   First, the applicant raised “issues with the evidence of the complainant”. The applicant submitted that the recollection of the complainant was “exceptionally vague and lacking in particulars”, noting especially her inability to give any meaningful detail about time, sequence, or circumstance. The applicant characterised the nature of the complainant’s recall as “no more than a feeling”. In relation to the first count, it was pointed out that the complainant was uncertain if she in fact had a memory of the incident prior to the first “flashback”. In relation to the second count, the applicant noted that the complainant did not remember seeing the applicant but simply “knew” it was him. The complainant’s evidence was affected by a “real and tangible inadequacy”, preventing the applicant from challenging her evidence or credit, that ought to have created a reasonable doubt.

3. [180]

   Secondly, the applicant addressed “the evidence of complaint”. It was noted that complaint evidence is not “independent” but simply “additional” evidence (citing SB v R [2020] NSWCCA 207 at [217]). It was submitted that the complaint evidence could not overcome the lack of particularity of the allegations themselves and that the complaint witnesses’ accounts differed somewhat to the complainant’s evidence of complaint. On the applicant’s submission, the same generality and vagueness affected the complainant’s complaint to her mother in 1991 and the subsequent “confrontation” with the applicant. There was also no evidence to corroborate the complainant’s evidence in respect of the school counsellor; in fact, the counsellor’s evidence somewhat contradicted the complainant’s evidence.

4. [181]

   Thirdly, the applicant pointed out that the pretext call contained no admissions and that he was of good character (no criminal record). These factors meant that the jury ought to have either accepted the applicant’s evidence or that at least it raised a reasonable doubt.

5. [182]

   Fourthly, the applicant relied upon the “forensic disadvantage”. It was submitted that the s 165B direction and the submissions of counsel could not overcome the disadvantage in this case. It was submitted that the jury could not comply with the trial judge’s direction to give the Crown case “careful scrutiny” as the allegations were so devoid of detail. The fundamental problem was that any conviction based on uncorroborated evidence would be unsafe.

6. [183]

   Counsel for the Crown identified the relevant principles and the decisions from which they are derived. He also responded to each of the complaints made by the applicant under this ground in turn. I have considered those responses in my determination of this ground below.

7. [184]

   The applicant contends that his convictions are unreasonable and cannot be supported having regard to the identification evidence of him as the perpetrator. The relevant principles for an appellate court to apply when considering whether a verdict is “unreasonable” in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way (at 493) (footnotes omitted):

8. [185]

   The High Court re-stated the applicable test in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In their joint judgment at [13]-[14] French CJ, Gummow and Kiefel JJ stated the following (footnotes omitted):

9. [186]

   The central complaint made under this ground is that the complainant’s account was so lacking in detail as to render the verdicts unreasonable. Although it is to be accepted that her recollection of the surrounding details to the assaults was minimal, her recollection of the three assaults themselves was sufficient to establish each of them. She was able to sufficiently identify each act and where they occurred. Although it is clear from her evidence that these were not isolated events, she conceded in her evidence that she did not recall sufficient detail of the other matters to make specific allegations in relation to them.

10. [187]

    I have summarised the complainant’s evidence on count 1 above at [29]. She remembered the following: the applicant drove a red sports car with pop-up headlights; she remembered being in the car on only one occasion; on that occasion they drove to a video store at Marrickville; it was night-time; she was living at Tempe at the time; they were alone in the car; during the journey the applicant stopped the car in a laneway near Sydenham railway station; he “undid his pants and guided [her] hand to touch his penis”; his penis was “hard”; she did not remember seeing it; it was quite dark; she thinks it was her left hand that was used to touch his penis; her memory of that aspect is “not a clear memory”. She could identify on a map where the vehicle stopped.

11. [188]

    As for count 2, the complainant could recall: that the incident occurred at night-time; that it occurred in the bathroom at the Tempe house; that the bathroom light was turned off; that she was near the sink in the bathroom when it occurred; that she woke up to the applicant behind her “trying to put something into [her] vagina”; she thought it was his fingers and “it … wouldn't fit”; that this incident stood out because “it was hurting”. Although she could not remember what she was wearing, she could remember that she was not wearing anything covering her up as the applicant was easily able to gain access. She was able to identify photographs of the bathroom tendered as exhibit C.

12. [189]

    In relation to count 3, the complainant was able to describe: that it occurred at the Tempe house; that it occurred in the lounge room; that she was alone with the applicant; that it was night-time; that the applicant inserted his fingers into her vagina; she could not remember whether she saw his head as she did not have a “memory of a vision. It's more the feeling”. She recalled that she was in a position in the lounge room such that she could see down the hallway; she was either on the floor or the lounge; she was either seated or lying on her back; the applicant was next to her not on her. She explained that this memory was clearer because it was hurting; she explained that when it hurt her, she would tell the applicant that and he would stop for “a bit”, lick his fingers and “try again”. She was able to mark on exhibit A where the lounge chair was (exhibit E). She was also able to identify photographs of the applicant on the same lounge chair.

13. [190]

    To the extent that the complaint is of a lack of particulars, the Crown relied upon the decision of the Queensland Court of Appeal in R v S [2000] 1 Qd R 445; (1998) 102 A Crim R 418 at 423-424 in which the Court outlined the minimum requirement of particularity as being sufficient particulars to identify one transaction from any other similar incidents suggested by the evidence (in fact adopting this formulation from the decision of Dowsett J in R v Rogers (Court of Appeal (Qld), 6 May 1998, unrep). The Court also noted that the nature of the offences and the circumstances of the complainant will be relevant in determining the extent to which further particulars should be required and that the age of the complainant may affect any decision as to the adequacy of the particulars. Ultimately, the particulars must be “reasonably sufficient for the purposes of the administration of justice and for the accused to make a proper defence” (at 423, again from Rogers).

14. [191]

    I am satisfied that the level of detail in the complainant’s account in relation to all three counts was sufficient to identify distinct conduct and met the minimum requirement of particularity in giving sufficient detail to demonstrate one identifiable transaction meeting the description of each offence charged, distinguishable from any similar incidents suggested by the evidence.

15. [192]

    The complainant was between 6 and 12 years old at the relevant time. It was common ground that the applicant regularly and frequently visited her home. It is not uncommon in historical child sexual trials for complainants to be able to remember the assaults without being able to accurately explain when in their childhood they occurred. Although details of when and where such assaults occurred are important in a criminal trial, the absence of them does not render a verdict or verdicts unreasonable. As Leeming JA observed in Cabot (a pseudonym) v R [2018] NSWCCA 265 at [64]:

16. [193]

    A further complaint levelled at the way in which the complainant gave her evidence is that at times she described the assault in terms of a “feeling” rather than a memory. For my part, I have no difficulty in accepting that a victim of child sexual assault would still carry a “feeling” of particular aspects of the assault more intensely than a detailed vision of it. That she expressed her evidence in this way on occasion does not detract from her other evidence derived from her actual recollection, which I have already summarised. I accept the Crown submission that the complainant’s description of having a “feeling” on a few occasions actually provided some authenticity to her account.

17. [194]

    Even if it was to be accepted that the lack of detail in the historical complaints ought to have led the jury to have had a reasonable doubt, the Crown case was not confined to a bald allegation made many years after the fact. The complainant confided in three close friends in the years shortly after the alleged conduct. That is no small matter. I accept the Crown submission that the applicant significantly understates the importance of the complaint evidence in this case. Even if it is to be accepted that such evidence is not “independent” of the complainant (SB v R [2020] NSWCCA 207), in a historical child sexual assault matter such evidence can be very persuasive in that it rebuts any suggestion of recent invention. Although the weight or importance to be given to such evidence is a matter for the jury, a jury may well consider that a child or teenager is more likely to confide in a friend than report the matter to police.

18. [195]

    In addition to the complainant’s evidence and that of the three contemporaneous complaint witnesses, it was open to the jury to consider some of the answers provided by the applicant in the pretext call as implied admissions. Although the accused attempted to explain some of his responses in his evidence, a jury may well have found them unconvincing. The applicant advanced a case that although the complainant made a false allegation against her in 1991, he was happy to meet with her alone a few years later to give her money and repeatedly told her how much he cared about her in the pretext calls. In those circumstances, his repeated answers in cross-examination that he was trying to appease her so his wife would not find out about a historical affair and that he was not worried about her claims of child sexual assault were matters the jury may well have found difficult to accept.

19. [196]

    The trial judge gave a direction to the jury concerning admissions on the urging of senior counsel for the applicant. That was because it was accepted that some of the answers in the pretext call were capable of being regarded as admissions. Those answers included that when confronted with the allegation he did not directly deny it; rather, he simply asked, “[d]id I have sex with you?”. In addition, he repeatedly apologised and also offered to make amends.

20. [197]

    It was open to the jury to place significance on the fact that it was common ground that in 1991 the complainant told her mother that the applicant was sexually assaulting her, although the terms of that complaint differed as between the complainant and the applicant, as outlined above, as did the evidence as to his reaction to the disclosure.

21. [198]

    In circumstances where the applicant accepted that he knew that in 1991 the complainant told her mother he was sexually abusing her, his explanations in court for his evasiveness are difficult to accept. Furthermore, the jury was entitled to find the fact that this 1991 complaint was common ground as between the Crown and the defence had greater significance than the fact that the disclosure was in general terms.

22. [199]

    Although the applicant placed some significance on the evidence of Mr Whyte, it seems to me, for the reasons I have already explained above at [174], that his evidence is neutral at best. There was no dispute that the complainant was truanting from Casula High in 1991 as she was unhappy there. It was also common ground that at about that time the complainant told her mother that the applicant was sexually assaulting her. The complainant’s explanation as to why she told her mother at that time was that the school counsellor told her to. In that factual context, the fact that Mr Whyte, who was the school counsellor at that time in 1991, did not remember her could not undermine her credibility. Mr Whyte’s evidence that the normal procedure would have been to notify the police due to mandatory disclosure requirements is consistent both with the complainant not telling the school counsellor and with her telling them and there being a failure to report the matter. In any event, there was evidence that if the student was truanting, they would not be referred to the counsellor; they would be referred to the home/school liaison officer, who was not called at the trial.

23. [200]

    A significant part of the applicant’s evidence was directed at attempting to explain away his apparent acceptance and lack of denial of the allegations when they were put to him in the pretext call. His evidence was that he was attempting to appease the complainant to keep her calm because she seemed “excited” or “distressed” during the pretext call. In cross-examination he accepted that he had no knowledge of her ever harming herself. The jury may well have accepted the Crown submission that he was appeasing her so she would not go public with her allegations (allegations previously made in 1991) rather than because of any concern that she might self-harm.

24. [201]

    Although the applicant came before the jury as a man of good character (and the jury was directed accordingly), juries have a greater understanding of child sexual assault and how it often does not come to light until many years later when the complainant reports the conduct to police. His character was relevant in part as to whether his evidence ought to have been believed. It could not outweigh the fact that some of his answers in cross-examination were difficult to accept.

25. [202]

    When all of these matters are considered cumulatively it seems to me that it was well open to the jury to convict the applicant on all three counts. The verdicts are not unreasonable within the meaning of s 6(1) of the Criminal Appeal Act.

26. [203]

    I would dismiss this ground and propose the following orders.

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal dismissed.

ORDERS

1. [204]

   LONERGAN J: I have had the significant advantage of reading the judgments of N Adams J and Beech-Jones CJ at CL in draft. I have carefully and critically examined the record of the trial, mindful of the task articulated in Pell at [38]. There is precision and cogency in the descriptions given by the complainant of the specific acts that constitute the criminal conduct of which the applicant was convicted by the jury. The language she uses to describe the acts and her recollections of them is clear and unembellished.

2. [205]

   I am satisfied that it was well open for the jury to convict the applicant on all three counts.

3. [206]

   I agree with her Honour’s reasons and the orders that she proposes, save that I am not convinced that the pretext calls added much to the strength of the Crown case. I agree with the additional comments of Beech-Jones CJ at CL.