RE v R

1. [1]

   MITCHELMORE JA: The appellant appeals against his convictions, following a trial before Judge J Smith SC sitting with a jury in the District Court, on one count of intentionally sexually touching a child above the age of 10 years and under the age of 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW), and one count of sexual intercourse with a child above the age of 10 years and under the age of 16 years, contrary to s 66C(3) of the Crimes Act. The appellant was sentenced on count 1 to a community correction order for a period of 2 years; and, on count 2, to a term of imprisonment of 1 year and 2 months, with a non-parole period of 9 months. He is presently on appeals bail, which the trial judge granted on the date of sentence, 18 April 2024.

2. [2]

   The acts that were the subject of the charges on the indictment took place in January 2021, when the complainant was 14 years old. The family of the complainant was close to the appellant’s family, and they often took holidays together, along with other members of their church. The Crown alleged that during one of those short holidays, at Ettalong Beach, in the hotel room of the appellant and his wife, the appellant touched the complainant’s vagina over her clothes (count 1) and subsequently digitally penetrated the complainant’s vagina (count 2). The appellant’s wife was present in the room throughout, as was the complainant’s mother.

3. [3]

   On the day that the trial judge sentenced the appellant, his Honour issued a certificate pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), certifying that the case was fit for appeal against conviction on the following grounds:

4. [4]

   In addition to the three grounds that the trial judge certified, the appellant sought leave to appeal on a fourth ground:

5. [5]

   In support of ground 1, ground 2 (informed by ground 4) and ground 3, the appellant relied on new evidence, in the form of a report of Ajoy Ghosh, an expert in cybersecurity and digital forensics, dated 3 April 2024. The Crown tendered two statements from a similarly qualified expert, Geoffrey Campey, dated 15 July 2024 and 23 July 2024. The Crown’s ultimate position was that the new evidence was not necessary for ground 1 and was not relevant to ground 3. The Crown accepted that the evidence was relevant to ground 2, informed by ground 4, but submitted that the Court would not admit the evidence.

6. [6]

   There are statutory non-publication orders in place in relation to the name of, or any matter that could identify, the complainant, as she was a child at the time the offences occurred. According to the Crown, the orders extended to the identification of the appellant, although no express orders to that effect appear to have been recorded. Nonetheless, the appellant does not appear to have been identified by name, acknowledging the close relationship between his family and the family of the complainant when the offences occurred and the risk of thereby identifying the identity of the complainant. Without intending any disrespect to the complainant, her mother or other witnesses involved in the proceedings the naming of whom may identify the complainant, I will not refer to them by name.

7. [7]

   For the reasons I set out below, I have concluded that a miscarriage of justice was occasioned by conduct of both the Crown Prosecutor and the appellant’s trial counsel. I have also concluded that the verdict of the jury on count 2 was unreasonable. It follows that the appellant’s convictions should be quashed, a retrial should be ordered on count 1, and a verdict of acquittal entered on count 2.

The Crown case

1. [8]

   For the purposes of the trial, the Crown and the appellant agreed a number of facts pursuant to s 191 of the Evidence Act 1995 (NSW). The document recording the agreed facts was Exhibit 11 in the trial (Agreed Facts).

2. [9]

   According to the Agreed Facts, the appellant’s family and the complainant’s family were very close family friends, such that as at 22 January 2021 the complainant referred to the appellant as “Uncle R” (Agreed Facts [2]). Between 20 January 2021 and 26 January 2021, the two families, along with other families from their church, went on holiday to Ettalong Beach, staying at the Mantra Hotel (Agreed Facts [3]).

3. [10]

   On the evening of 22 January 2021, the complainant and her mother attended the hotel room of the appellant and his wife, who were both in the room upon their arrival (Agreed Facts [4]). The following photograph of the hotel room was part of the evidence in the trial (Exhibit 5):

4. [11]

   The Crown alleged that the acts the subject of the two counts on the indictment took place between about 8.40pm and 8.55pm. The Agreed Facts recorded that during that timeframe, the complainant took part in an exchange of messages over Instagram with her boyfriend, to whom I will refer as DM (Agreed Facts [5]). A summary of those messages, time-stamped to the minute, was attached to the Agreed Facts as Annexure “A” (it was also tendered as Exhibit 2). The former police officer who was in charge of the investigation gave evidence that with the complainant’s permission, she had accessed the complainant’s Instagram account and confirmed the accuracy of the timestamps of the messages.

5. [12]

   The Agreed Facts also made reference to phone calls that evening between the appellant and another family friend, EG, in the following terms:

6. [13]

   There was nothing in the Agreed Facts, and no other evidence led in the trial, to the effect that there was a difference between the times as recorded in the phone records, and the times as recorded in the Instagram messages.

7. [14]

   The complainant was interviewed by police on 10 February 2021. The recording of that interview formed part of the complainant’s evidence in chief in the trial, and was supplemented by oral evidence.

8. [15]

   The complainant gave evidence that she went with her mother to the hotel room of the appellant and his wife on the evening of 22 January 2021. She recalled that the appellant was lying on the bed. The complainant was wearing a dress and underwear, as well as tight shorts over her underwear. The air conditioning was on in the hotel room and the complainant recalled that the room was very cold. She asked if they could turn off the air conditioner, but the appellant’s wife said that the temperature was nice, and her mother told her to go and sit under the covers on the bed with the appellant.

9. [16]

   The complainant recalled that she sat on the far side of the bed, with her legs crossed and the blanket up to her stomach. The appellant was lying on the side of the bed closest to the sofa bed, on which the complainant’s mother and his wife were sitting (in the photograph above, the bed is collapsed into the sofa), facing away from the complainant and towards the television, which was on at the time. The complainant’s evidence was that while she was sitting on the bed she was messaging her boyfriend on Instagram.

10. [17]

    At one stage during the interview with police, the complainant estimated that the space between her and the appellant on the bed was approximately the length of a ruler. She also said that she tried to stay on the edge of the bed as far as possible. In her oral evidence, she described the distance between her and the appellant as “not too far, but not like, cuddly close”.

11. [18]

    The complainant gave evidence that the appellant (who remained lying on his side facing away from the complainant), started to stroke her leg under the blanket. He then ran his fingertips up the length of her thigh and proceeded to rub her vagina on top of her shorts in a “quite aggressive” manner, “for a few minutes”. In her oral evidence, the complainant estimated that this occurred about 45 minutes to an hour after she first sat on the bed.

12. [19]

    While the appellant was doing that, the complainant conveyed what was happening to her boyfriend over Instagram. The complainant was shown the Instagram messages during her oral evidence, and she confirmed that the exchange took place on 22 January 2021. The Crown took the complainant through the messages in some detail, asking her to explain the abbreviations and what was happening at the time she sent various messages. In relation to the start of the exchange, the complainant gave the following evidence:

13. [20]

    The Crown case on count 1 was that the acts constituting that count commenced at 8.40pm, which was the time stamp of her Instagram message “BABY/WTF … HELP ME”. The complainant confirmed that she continued to message her boyfriend about what was happening. At one stage, her boyfriend texted that she should move his hand, and she replied “BABY/NO/IDK [I don’t know]”. When her boyfriend insisted, she replied, “I CANT HIS MY MUMS BSFS HUSBAND”, confirming in evidence that “BSFS” stood for “Best friend’s”.

14. [21]

    At 8.44pm, the complainant sent two messages, “HE STOPPED/HE JUST STOPPED”. The Crown case was that these two messages marked the end of the act constituting count 1. The complainant said to the police that she thought she sent those last two messages when the appellant’s phone started to ring. Between 8.44pm and 8.45pm she sent her boyfriend further messages:

15. [22]

    The complainant gave evidence that the appellant’s phone rang and that his wife said to him that his phone was ringing. The appellant then got up and answered the phone. The complainant recalled that the appellant sat at the end of the sofa bed that his wife and the complainant’s mother were sitting on, and she recalled the appellant saying to the person on the phone to come to the room and they could all go and get drinks. The complainant’s evidence was that the phone call was not long, approximately a minute or 30 seconds.

16. [23]

    In her interview with the police, the complainant said that while the appellant was on the phone, she tried to take a photo of him to send to her boyfriend, but when she asked her boyfriend about it later he said he did not have it. In her oral evidence, the complainant gave evidence that she took two photographs. It was the first photograph, which she recalled she had tried to take sneakily, “of him somewhat near the bed or, like, it was the covers of the bed or something”, of which she did not have a copy. The second photograph was tendered in the trial, being a photograph that the complainant said she took of the appellant, and sent to her boyfriend, after the appellant got out of bed to answer the phone. Her recollection was that she sent this photo to her boyfriend as soon as she took it.

17. [24]

    The complainant remained sitting on the bed. While the appellant was out of the bed, she changed her sitting position so that her legs were closed and pulled up towards her chest. Her evidence was that after the phone call ended the appellant got back into bed and resumed the same position as before. The complainant said that the appellant pulled her leg down and put his hand up under her shorts and underwear. When the complainant was asked in her oral evidence how much time there was between the appellant getting back on the bed and this happening, she replied:

18. [25]

    The complainant said that she was pretty sure “he was, like, trying to penetrate, like, put his finger in, like, inside me… and it just, like, really hurt” and that the appellant was acting “very aggressively”. Her evidence was that the appellant did this for a shorter period than the first time, approximating it to be around 5 minutes. The complainant continued to text her boyfriend about what was happening at the time.

19. [26]

    The Crown case on count 2 was that the acts constituting that count commenced at 8.46pm. At that time, the complainant sent three messages to her boyfriend: “Babe/Wtf/HIDOING IT AGAIN”. The Crown asked the complainant about this exchange:

20. [27]

    The complainant’s boyfriend texted in response, telling her to move off the bed and to tell him to stop. At 8.47pm, he texted again, asking if she was there, to which she replied “BABYYY”, and “YES IM HERE”. He told her to be brave and, in another text, suggested that she imagine that he (her boyfriend) was next to her. At 8.48pm, the complainant sent another text that said, “BABE THIS TIME HE WENT ON MY ACTUAL FUCKING PUSSY”. When asked by the Crown Prosecutor why she wrote that, the complainant said, “I think this was because he was on my physical skin”, which was supported by her next text, which said, “LIKE MAMANGED TO GET UNDER THE SHORTS”. Following a series of texts from her boyfriend in the same minute, again telling her to get off the bed, the complainant sent him another photo. In her oral evidence, she said that she could not recall what that depicted “off the top of my head”. Her next text, at 8.49pm, was “BABYYY”.

21. [28]

    At 8.50pm, the complainant sent a text which said, “BABY IT DESNT EVEN FEEL GOOT IT LITERALLY HURTSSS”. In relation to this text, the Crown Prosecutor asked the complainant where it hurt, to which she replied “On my vagina”, subsequently clarifying that she meant by this, “the actual vagina hole, but not inside, around – like towards it, though. That’s the best way I can kind of describe that”.

22. [29]

    In the same minute (8.50pm), the complainant texted, “AGGHH” and “HIS HURTING ME”. In respect of those texts, the complainant’s evidence was that this was “probably when he started to actually put his fingers inside”, and that she felt pain “towards the inside of my vagina”. After she confirmed, in response to a text from her boyfriend, that she was still on the bed, at 8.51pm her boyfriend texted her to get off the bed and go and lock herself in the toilet. The complainant replied, in the same minute, “I CANT MOVE IF I MOVE TO FAST MY PUSSY WILL RIP APART”. When asked by the Crown to explain as best she could why she sent that message, the complainant stated:

23. [30]

    At 8.52pm, her boyfriend asked if the appellant was “still doing it”, to which the complainant replied “YESSS”. Her boyfriend continued to text her, suggesting that she say stop, in a whisper. The complainant’s next text messages, at 8.53pm, were “OKK HOLD ON” and “HE STOPPED”. In response to further messages from her boyfriend telling her to get up and lock herself in the toilet, she texted “I THINK HES STOPPED FOR GOOD”. The complainant said to police that the appellant “stopped randomly”. In her oral evidence, the complainant said that she was not doing anything differently, and the appellant “just removed his hand from where it was”.

24. [31]

    The complainant got off the bed and sat on a chair in front of her mother, with a throw blanket over her. The appellant remained in the bed for a few minutes before he had to go and get the other people who came into the room.

25. [32]

    That same evening, the complainant’s boyfriend told the boyfriend of the complainant’s sister what happened, and sent him some screenshots of the messages he and the complainant had exchanged. Her sister’s boyfriend gave evidence that he contacted the complainant that evening because he wanted to verify what had happened, and she gave him an account. He then told the complainant’s sister, who gave evidence that she did not speak to the complainant about what happened until the weekend after they returned home.

26. [33]

    The complainant’s mother, NG, gave evidence that was consistent with the complainant’s evidence in relation to how cold the room was and her suggestion that the complainant go and sit next to the appellant to get warm. NG said that the television in the room was on, and that she and the appellant’s wife sat on the sofa bed talking, estimating in cross-examination that they were sitting there for probably more than an hour. She gave evidence that at some point, the appellant’s phone rang and his wife told him to answer it. She remembered that after the call he lay back down on the bed; in cross-examination, she said that he did so for about five or ten minutes and then he went and collected EG and his wife. NG remembered the complainant coming to sit on a chair next to her, next to the balcony. In cross-examination, NG said that the complainant was still cold, and when she suggested that she return to the bed the complainant said she did not want to. The complainant told her what happened on 30 January 2021, being the Saturday after they returned home.

27. [34]

    The appellant’s wife, GE, gave evidence, and was cross-examined by the Crown pursuant to s 38 of the Evidence Act. In relation to the events of the evening, she gave evidence that she had a clear view of the appellant and the complainant the whole time, and she did not see the appellant put his hand behind him towards the complainant at any time. She also gave evidence that at some point, the appellant’s phone rang and she said to him, “wake up. Your phone is ringing”, and said this again “a bit loud” when he did not respond. She recalled that the appellant got up to answer the phone, and then made a phone call, sitting on her side of the sofa bed. She heard him “making arrangements with another member of the family to come to the room”. Her evidence was that the appellant did not get back on the bed after the call, but stayed sitting on the sofa bed speaking to her and the complainant’s mother, before going to collect their friends.

28. [35]

    The person who made the phone calls to the appellant, EG, gave evidence that on the evening of 22 January 2021, he called the appellant’s phone and the appellant did not answer. Shortly thereafter, the appellant returned his call. EG gave evidence that he asked the appellant why he did not answer his call moments before to which the appellant replied, “I was sleeping, and [my wife] wake me up” (the appellant was examined by the Crown under s 38 in relation to this evidence as it was not contained in his police statement). The appellant suggested that EG and his partner come to their hotel room, as other members of their party were meeting them there. The friend gave evidence that he called the appellant again five minutes later, as he was unable to access the hotel floor on which the room of the appellant and his wife was located.

The appellant’s case

1. [36]

   The defence case focused on the appellant’s awareness of what was happening and a condition known as “sexsomnia”. The defence of sexsomnia was run in relation to both counts on the indictment.

2. [37]

   GE, the appellant’s wife, gave evidence, on which the appellant relied, to the effect that she and the appellant would regularly, around every month, have sex during the night when he was asleep and that he would not remember the sexual activity. She stated that the appellant also touched her body at night while he was asleep and that this had been happening for more than 15 years. When asked further questions by the Crown pursuant to s 38 of the Evidence Act, the appellant’s wife denied that she was exaggerating how many times this occurred without her husband remembering.

3. [38]

   The defence called evidence from Dr Antonio Fernando, a consultant psychiatrist and sleep specialist. He described sexsomnia as a “very contentious category” of parasomnia where a person who is asleep behaves sexually towards other persons or themselves. Having interviewed the appellant and his wife separately, Dr Fernando was of the opinion that the appellant fulfilled the six diagnostic criteria for non-REM parasomnia, specifically displaying sleepwalking, sleep eating and sleep related sexual behaviour or sexsomnia. He also considered that sexsomnia was a “probable explanation for the sexual touching which occurred between [the appellant] and [the complainant]”.

4. [39]

   In cross-examination, Dr Fernando accepted that in forming his opinion he did not have regard to the timing of the complainant’s Instagram messages, which involved the two incidents being separated by a phone call. He gave evidence that of the 30 or 40 people he had interviewed to discuss their having experienced or witnessed sexsomnia, he could not recall any of them telling him about experiencing two episodes in the same night separated by a short period of wakefulness. Most people who spoke of repeated episodes of sexsomnia gave a period of between half an hour or one hour, not a couple of minutes or 15 minutes (although he did not normally ask for this level of detail). Dr Fernando considered that it was not common to occur that quickly but it was possible that the appellant could have returned to a parasomnic state.

5. [40]

   The defence also relied on the evidence of Dr Richard Furst, a forensic psychiatrist, who agreed that the appellant had sexsomnia but also accepted that he had not had regard to the timing of the Instagram messages in formulating his opinion. The Crown called Dr Jeremy O’Dea, a consultant forensic psychiatrist, who opined that the appellant met the diagnosis for sexsomnia based on the reported history. His evidence was that it was hard to be definitive as to whether a sexsomnia-induced act could occur “less than a minute” after a person fell asleep, but that it was possible.

6. [41]

   The case that was run on behalf of the appellant at trial reflected, in part, responses he had given in the course of a record of interview with police on 16 February 2021, which was played to the jury. When the appellant was asked to tell the officer about what occurred in the hotel room on 22 January 2021, the appellant stated:

7. [42]

   The appellant said that he had been prescribed a strong painkiller for pain in his shoulders, before continuing:

8. [43]

   The appellant said that initially, he could not remember that anything happened. His wife then reminded him that the complainant and her mother had been in the hotel room, and he remembered them coming but said that he fell into a deep sleep after they arrived. The appellant was lying on his left-hand side, facing his wife. He could not specifically recall the complainant sitting behind him on the bed but he had been told this happened. He said to the police that after they came in, he probably was asleep because he could not remember anything:

9. [44]

   The message that the appellant sent to the complainant’s father formed part of the Agreed Facts, which stated, at [9], that on 2 February 2021, the appellant sent a message via Facebook to the complainant’s father. The message, which was translated into English from the original Arabic, stated:

10. [45]

    The appellant’s daughter, SE, gave evidence in the defence case of an incident that occurred in 2014 or 2015, when she was in first or second year of university and living in her parents’ home. She gave evidence that one day, when it was very hot, she went into her parents’ bedroom as it had air conditioning. Her father was in the bed asleep on his back, and she could hear him snoring. SE got into the other side of the bed, facing away from her father, and he touched her arm near her shoulder. As soon as he did this, she said “Dad it’s me”, and he retracted his hand. SE’s evidence was that the appellant continued to sleep.

11. [46]

    The Agreed Facts also referred to a PBS Patient Summary for the appellant, dated 30 April 2021, which indicated that he purchased 20 pills of Tramadol, a prescribed opioid painkiller, on various dates between July 2019 and July 2020 (at [10]). The Crown called Dr Pieternel Sonja van Nieuwenhuijzen, a pharmacologist/toxicologist with NSW Police, who gave evidence that Tramadol was an opioid used as a painkiller for moderate to severe pain. Common side effects included nausea, constipation, vomiting, falling asleep and headaches.

12. [47]

    Returning to the appellant’s record of interview with the police, it was explained to the appellant that the complainant alleged that there were two incidents that were separated in time by the appellant getting up and taking a phone call. He was then shown the Instagram message exchange between the complainant and her boyfriend, which he read before he answered the following series of questions:

13. [48]

    As Senior Counsel for the appellant submitted in this Court, the case that was run on behalf of the appellant at trial did not reflect the responses he gave to police. The appellant’s position in the record of interview was that if the two acts alleged against him were separated by the phone call, it was possible that the first act occurred, but “the part after the phone call is not right”.

The Instagram messages and the phone records

1. [49]

   The following table demonstrates the relationship between the Instagram message time stamps and the call charge records. The Crown prepared a version of this table as part of its written submissions on the appeal, which I have supplemented. However, it is not a complete record of all of the messages. The messages commencing with “DM” signify messages from the complainant’s boyfriend; the bolded messages were sent by the complainant:

2. [50]

   I have noted above that the Crown Prosecutor took the complainant through the text messages in some detail. However, she was asked only about their content, and not their timing. As is apparent from this table, in relation to the second count, the complainant’s evidence that the appellant’s conduct constituting that count commenced after the phone call, and with her messages, “Babe/Wtf/HIDOING IT AGAIN”, was not reconcilable, as a matter of timing, with time of the phone calls as set out in the Agreed Facts. Rather, the complainant was texting her boyfriend about the alleged second act in the same minute that EG called the appellant (at 8.46pm), during the course of the one minute and two second phone call between 8.47pm and 8.48pm, and in the minutes that followed.

3. [51]

   The appellant’s counsel did not extensively cross-examine the complainant. She was asked about the nature of the second act, confirming that there was penetration of her vagina, which she agreed was slight “but also forceful”. She was also asked whether she could be wrong and that both acts of sexual touching occurred before the appellant got out of bed and that he did not return to the bed, to which she replied, “No”. Counsel for the appellant did not suggest to the complainant that she was wrong or mistaken as to the occurrence of either of the two acts the subject of the charges, and did not ask her about the timing of the phone calls.

4. [52]

   Shortly after the Crown closed its case, in the absence of the jury, the trial judge raised with the Crown Prosecutor the difficulty created by the complainant’s evidence and the respective timing of the Instagram messages and the phone calls. The Crown Prosecutor submitted that the Crown would be saying to the jury that the timing of the Instagram messages was “slightly different to the timing that was taken with respect to the phone records”, and that there was a variance between the phone records, which emanated from the telecommunications company, and the Instagram timing, which was from the Instagram exchange.

5. [53]

   When the trial judge asked how the Crown Prosecutor knew that, he replied that it was “a logical inference from the rest of the evidence”. However, his explanation of that submission revealed an underlying and necessary assumption, namely, that the complainant’s evidence was correct. That led to the following exchange:

6. [54]

   His Honour also pointed out that the Agreed Facts included both the timing of the phone calls based on the phone records and the timing of the Instagram messages (which were annexed), and that there was nothing to say that there was a difference between them “other than the complainant’s own evidence”. The Crown Prosecutor maintained that the complainant’s evidence in the interview with the police about what occurred and the order in which it occurred was borne out “through the objective evidence of the text messages”. The difficulty with that submission, looking at the second alleged act, was that the offending commenced, on the complainant’s evidence, before the appellant got out of bed to answer the phone (having regard to the objective evidence of the time of the phone call).

7. [55]

   The trial judge put to the Crown Prosecutor that what he was proposing to submit involved proving that two agreed facts were inconsistent. Otherwise, the clear explanation for the discrepancy was that the complainant was mistaken or lying. The Crown Prosecutor repeated the submission that the evidence to prove that the appellant touched the complainant on two occasions came from the complainant and was “also very strongly borne out by the objective evidence of the text messages”. As the trial judge pointed out, however, such reliance on the text messages was circular, in the sense that the only way to overcome the connection between the two objective facts, being the texting and the phone records, was to believe the complainant beyond reasonable doubt. His Honour made the point again:

8. [56]

   The appellant’s counsel made no contribution to the exchange between the trial judge and the Crown Prosecutor, either in the course of it or at its conclusion. No further evidence was adduced to address the issue that the trial judge identified.

9. [57]

   The Crown Prosecutor submitted to the jury that the complainant’s evidence was “very strongly supported by objective evidence, that is, the Instagram exchange of what was occurring to her that she was sending to her boyfriend at the time”. Referring the jury to Exhibit 2 (which was the separate copy of the Instagram message summary annexed to the Agreed Facts), the Crown Prosecutor submitted that the content of that exhibit “very strongly corroborates both the nature of the acts that occurred to her for counts 1 and 2 and the sequence of events”. The Crown Prosecutor later submitted that the jury would have no doubt that the appellant put his hand behind him on two occasions while he was on the bed that evening, as borne out by the complainant’s evidence and the text messages. The issue, the Crown Prosecutor submitted, was whether the appellant was asleep or not at the time.

10. [58]

    In relation to count 1, the Crown Prosecutor accepted that if the jury accepted the diagnosis of sexsomnia, at the relevant time, “there must be some doubt of whether he was asleep or awake”. In relation to count 2, the Crown Prosecutor submitted that it was crucial to the Crown case that there was a period of wakefulness between the two counts.

11. [59]

    The Crown Prosecutor referred the jury to Exhibit 3, being the photograph that the complainant said she took at 8.46pm and sent instantly, and her evidence that at the time she took the photograph the appellant “would probably have still been on the bed”. Noting her text messages to her boyfriend, “in the same minute”, which said “Wtf” and “[He]DOING IT AGAIN”, the Crown Prosecutor submitted that the jury could accept “that she sent that photo instantaneously as that is completely consistent with where the sending of the photo lies in between the two offences as per the Instagram exchange” (emphasis added).

12. [60]

    The Crown Prosecutor then moved to address the phone records, and submitted the following:

13. [61]

    On the issue of the phone records, the appellant’s counsel submitted:

14. [62]

    The issue was briefly addressed by the trial judge in summarising the Crown’s submissions. His Honour directed the jury that the Crown case largely depended upon the jury accepting the reliability of the complainant and told the jury that it would have to examine her evidence in order to satisfy itself that it was both honest and reliable. That examination would include “what she did at the time, how she acted and what other people say she told them”.

15. [63]

    His Honour also gave the jury the following direction in relation to the Agreed Facts:

The grounds of appeal and the new evidence

1. [64]

   As noted above, grounds 1 to 3 of the notice of appeal advanced three bases on which a miscarriage of justice was occasioned, relying on the third limb of s 6(1) of the Criminal Appeal Act. Ground 1 concerned the conduct of the Crown Prosecutor, and ground 3 related to the conduct of the appellant’s trial counsel. Ground 2 related to the new evidence. As ultimately developed, the appellant’s submissions on ground 2 drew in his submissions on ground 4, which alleged that the verdicts were unreasonable.

2. [65]

   The new evidence was directed at what the appellant described in his submissions in reply as “the discrepant timing issue”, which arose upon reading the content of the Instagram messages, which were time stamped to the minute (and confirmed as accurate), against the timing of the phone calls in the Agreed Facts. The appellant submitted that the new evidence was relevant to each of the grounds of appeal. The Crown did not oppose the Court receiving the evidence and considering it in order to determine its admissibility, but submitted that ultimately the Court would not admit it. Before turning to the individual grounds, it is convenient to summarise the evidence.

3. [66]

   Mr Ghosh was instructed to answer the following questions:

4. [67]

   By way of background to answering those questions, Mr Ghosh explained that network time protocol (NTP), which is a standardised protocol, provides a mechanism for computers to be synchronised with a series of atomic clocks, which in turn are synchronised with each other. This means that “if a computer is synchronised using NTP, then the time should be synchronised which [sic] all other computers using NTP” (with a margin of error that was immaterial for the purposes of the issues in this case). Mr Ghosh’s choice of the words “should be” acknowledged that he had “not examined any computer for this matter and cannot say conclusively whether or not the time for any particular computer has been properly synchronised”.

5. [68]

   Mr Ghosh cross referenced the call charge records for the phone calls between the appellant and EG and found the times to be in sync. The time source for the carrier’s system was their own NTP server, which is synchronised with Australia’s NTP server which, in turn, is synchronised to co-ordinated universal time. Mr Ghosh expressed the opinion that the time shown on the records reflected co-ordinated universal time, displayed according to the chosen time zones.

6. [69]

   Mr Ghosh next opined that the timestamp shown on the Instagram application on a mobile phone represented the time that the message is received by the handset and is displayed in the local time of the handset. The local time on the handset depends on how the handset has been configured. Without knowing how the particular handset was configured, Mr Ghosh stated that a default configuration is commonly used, which automatically synchronises the mobile phone with the time and time zone from the mobile phone tower servicing the handset and displays it in local time. The mobile phone tower then synchronises with the carrier’s NTP server, which then synchronises with Australia’s NTP server. The result would be that the time is synchronised to co-ordinated universal time and displayed using the local time zone.

7. [70]

   As to Instagram direct messaging on a computer, the timestamps shown are based on Instagram’s NTP server, adjusted for the local time zone. The Instagram NTP servers are synchronised to Facebook’s NTP servers, which are in turn ultimately synchronised to co-ordinated universal time. On the computer version of Instagram, timestamps are not shown for individual messages but for groups of messages.

8. [71]

   Mr Ghosh’s conclusion was that the timestamps displayed on the call charge records and the Instagram messages should be synchronised, allowing for the margin of error and other qualifications in his report.

9. [72]

   In his first statement, Mr Campey described Mr Ghosh’s opinion as “technically sound and well-grounded”. He stated that it would be “ideal” for the relevant devices to be made available for examination, as that could allow for more definitive statements regarding the state of the device at the time of the production and/or consumption of evidence. That said, it was common for devices not to be examined. Mr Campey considered that it was reasonable for Mr Ghosh to provide his stated opinion subject to this caveat.

10. [73]

    Unlike Mr Ghosh, Mr Campey considered that the timestamp applied to an Instagram message on the Instagram App represented the time that the message was sent, not the time it was received. Nonetheless, he agreed with Mr Ghosh’s conclusion that the time shown on the call charge records was synchronised to the NTP server, which is synchronised to co-ordinated universal time. He also agreed that the time shown on the Instagram application screenshots and direct messenger was synchronised to Australia’s NTP and Meta’s NTP server, respectively, which are both synchronised to co-ordinated universal time (subject to the caveat of the time zone settings of the particular device).

11. [74]

    Mr Campey expressed the caveat that the time and time zone could be set manually on an individual headset. However, an exercise he performed in this statement indicated that a manual change of the “time of [sic] clock of the device” did not change the timing of Instagram messages on the device. As the appellant submitted in respect of this aspect of Mr Campey’s report, there was no evidence that the complainant’s handset was manually altered to adjust the time setting.

12. [75]

    In his supplementary statement, Mr Campey was asked about the utility of conducting an examination of the mobile phone at this point in time, including the ability to review the time, date and time zone settings of the device, and time and date stamps of the Instagram messages on the device, at the time of the incident, namely, 22 January 2021. He expressed the view that if the device was in active use for a period of time after the relevant date, it was possible that the state of the device had been altered, in the sense that software and security updates may have altered the time, date and time zone settings. Generally, the longer the device has been used since the relevant date, the less utility there would be in examining the device. He also observed that it would be necessary to connect the phone to the internet, which would also result in changes to the state of the device.

13. [76]

    Mr Campey also stated that the appearance of the Instagram application may have changed since the date in question, but the time and date information in respect of the messages sent and received in that application would remain unchanged, due to the fact that the messages are stored on the Instagram platform. He reiterated the concurrence he expressed in his earlier report with Mr Ghosh’s view that the time stamps provided by the Instagram platform were accurate against co-ordinated universal time.

14. [77]

    The new evidence confirmed that the timing of the Instagram messages that the complainant sent, and the call charge records, were synchronised. I use the language of confirmation because on the Agreed Facts, and the evidence of the investigating officer that the time of the Instagram messages were accurate, the trial could only have proceeded on the basis that there was no difference between the call times and the message times. The difficulty that arose upon reading the call times side by side with the messages that the complainant sent at the same time, was the very point that the trial judge raised with the Crown Prosecutor.

Ground 1: The Crown’s closing address

1. [78]

   Crown Prosecutors are expected, by the accused, the court and the community, to act “with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one”: Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 (Deane J); [1983] HCA 42 (“Whitehorn”). In the same passage in Whitehorn, Deane J further observed that while the consequences of a failure to observe the standards his Honour articulated may be insignificant in the context of an overall trial, on occasion the consequences “may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial”.

2. [79]

   Specifically in the context of the Crown’s closing address, in Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334, this Court identified a number of features that have, either alone or in combination, justified censure: at [31]. As the Court went on to state at [32], distilling such features was not intended to suggest that a formulaic approach be taken to assessing whether or not a Crown address exceeded proper boundaries. That said, the features the Court identified relevantly included a submission to the jury based on material which is not in evidence and/or a submission to the jury which conveyed to them the prosecutor’s opinion. Ground 1 of the notice of appeal rested on those features.

3. [80]

   Central to the conduct of the Crown Prosecutor that the appellant impugned was his statement that there was a “difference” of two minutes between the complainant’s evidence as to what was happening on the Instagram exchange, and the timing of the phone calls between the appellant and EG. He explained this difference on the basis that “it would not be surprising that the two times taken from two different sources may not be identical”. There was no evidence in the trial to support that explanation. Indeed, the Agreed Facts were to the contrary.

4. [81]

   As Senior Counsel for the appellant submitted, reading the Instagram messages sent at and around the same time as the phone calls occurred cast significant doubt on the complainant’s evidence that she was sending those messages in real time. There were at least the following three anomalies as between the Instagram messages and the phone records, which the Crown Prosecutor acknowledged, in the closing address, would arise “if indeed the Instagram exchange and the phone call were in fact on identical time” (as was the case on the Agreed Facts):

   1. (1)

      The messages, “Babe”, “Wtf” and “HIDOING IT AGAIN”, which the complainant said in evidence marked the commencement of the second alleged act, occurred some two minutes before the appellant received the phone call from EG.

   2. (2)

      A series of further messages, starting with the message from the complainant’s boyfriend, “BABY”, “ MOVE OFF THE BES”, “BED*” and ending with a further message from him which said “IMAGINE IM NEXT TO I”, took place during the phone call between the appellant and EG.

   3. (3)

      The complainant’s message, “BABY THIS TIME HE WENT ON MY ACTUALLY FUCKING PUSSY” was sent, as the Crown Prosecutor described it, “pretty much right at the end of the phone call, just after the phone call”.

5. [82]

   As the appellant submitted, the jury would likely have understood the Crown Prosecutor’s suggestion, that it would “not be surprising” that the timing of the phone call and Instagram exchanges would differ, as inviting them to consider these anomalies as being of little consequence in evaluating the complainant’s evidence. The explanation gave the jury a basis on which they could, in the words of the Crown Prosecutor, “accept the complainant beyond reasonable doubt as to her evidence of what was happening at the various times as per the Instagram exchange” (emphasis added). The Crown Prosecutor then went further and submitted that:

   1. (1)

      the complainant’s evidence was “largely supported by the objective messages themselves”; and

   2. (2)

      when the jury considered all of the evidence, “particularly the evidence of the complainant, it’s clear that that phone call of one minute and two seconds between [EG] and the accused happened, as per the Instagram messages, between 8.44 and 8.46” (emphasis added).

6. [83]

   True it was that the complainant’s evidence was supported by the content of the messages she sent, but only if one read them without also taking account of the time at which they were sent. When she gave evidence in the trial, the Crown Prosecutor locked the complainant into an account of what happened, and when, by reference to the Instagram messages of which she was the author, without any appreciation or acknowledgment of the difficulty that created having regard to their timing and the timing of the phone calls. The trial judge having drawn the difficulty to the Crown Prosecutor’s attention, he sought to remove that difficulty by asserting that it was “clear” that the phone calls happened earlier, contrary to the Agreed Facts.

7. [84]

   The Crown accepted on the appeal that there was no evidence in the trial that supported the Crown Prosecutor’s thesis that the timing of the phone calls and the timing of the Instagram exchanges required adjustment. Nonetheless, the Crown did not formally concede this ground of appeal. The only answer the Crown advanced at the hearing was that the Crown Prosecutor’s submissions were conditional upon an acceptance of the complainant’s evidence. That submission did not answer the circularity of the Crown Prosecutor’s approach, which invited the jury to accept the complainant’s evidence on the basis that it was “largely supported” by the “objective evidence” of the text messages, when that objective evidence could only assist her if, contrary to the Agreed Facts, their timing was different or the timing of the phone calls was different. The complainant’s evidence did not answer the issue that arose on the objective evidence.

8. [85]

   The Crown Prosecutor had a duty to act with fairness and detachment. It was no part of the Crown Prosecutor’s function to neutralise an issue of objective fact that undermined the Crown’s case. The only way the Crown Prosecutor could neutralise the issue was to engage in impermissible speculation, inviting the jury to reason in a manner that was logically flawed and contrary to agreed facts.

9. [86]

   The appellant relied on the new evidence as establishing that what the Crown Prosecutor advanced as “not surprising” was wrong in fact. However, as Senior Counsel accepted at the hearing, it was not necessary for the appellant to go that far in order to demonstrate that the Crown Prosecutor’s address was productive of a miscarriage. Central to that concept, as Kirk JA summarised in Roberts v R [2023] NSWCCA 187 at [60] (Davies and Yehia JJ agreeing), is “a departure from the requirements of a fair trial according to law, being a departure which had the capacity to have caused prejudice or practical injustice to the accused”. There was a real chance that the Crown Prosecutor’s submissions to the jury, on an issue that was central to the trial, affected the jury’s verdict: Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [41], [111]-[115], [125], [130].

10. [87]

    The Crown submitted that ground 1 required leave because of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). That submission raised two related issues: (i) whether r 4.15 applies to the Crown’s closing submissions (see Armstrong v R [2013] NSWCCA 113 and Lyndon v R [2014] NSWCCA 112, as discussed in Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 at [178]-[180]); and (ii) if r 4.15 applies, whether the trial judge’s certificate overrode its application with respect to ground 1. In view of the conclusion of miscarriage that I have reached on this ground, even if r 4.15 applied in the face of the trial judge’s certificate, I would grant leave and uphold ground 1.

Ground 3: Miscarriage of justice occasioned by failures on the part of the appellant’s trial counsel

1. [88]

   The appellant contended that the manner in which his counsel conducted the trial was flawed in four respects. The first three respects related to the timing of the call charge records and Instagram messages, with the appellant contending that counsel failed: (i) to challenge or address the inconsistency at any stage of the trial process (even after the trial judge raised it); (ii) to object to the Crown Prosecutor’s closing address on the issue; and (iii) to cross-examine the complainant on the inconsistencies. The fourth respect on which the appellant relied related, more broadly, to counsel’s failure to cross-examine the complainant on aspects of her account that were “inherently implausible”.

2. [89]

   The applicable principles were summarised by this Court in Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 ("Xie”), by reference to decisions of the High Court including TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; and Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 (“Nudd”). Relevantly, the Court in Xie observed that “a determination of whether the alleged failings of counsel give rise to a miscarriage of justice requires a consideration of what ultimately did or did not occur at trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial”: at [415]. In Nudd, Gleeson CJ observed in this respect at [9]:

3. [90]

   In the present case, as I have set out above, central to the appellant’s defence at trial was that the Crown could not exclude the reasonable possibility that the acts the subject of counts 1 and 2 were involuntary. That defence did not involve disputing that the appellant committed the acts. Rather, the factual premise on which the defence rested was that for both acts, the appellant was asleep. The appellant relied in this regard on the diagnosis of sexsomnia, which was supported by the expert evidence, what the appellant said in his record of interview and the evidence given by his wife, as well as the brief evidence of his daughter in relation to a particular incident.

4. [91]

   On the complainant’s evidence, the act the subject of count 1 took place between 45 minutes and an hour after she sat on the bed, allowing a significant period for the appellant to be asleep before the act occurred. The second act, however, occurred, on her evidence, after the appellant got out of bed and spoke on the phone to EG, and a short time after he returned to the bed. As the appellant submitted on appeal, if the complainant’s evidence were accepted in this regard, it was possible but unlikely that he experienced another sexsomnic episode so soon after returning to bed (after the call). The Crown case emphasised the short intervening period between the phone call and the commencement of the second act as supporting that the appellant knowingly engaged in the conduct the subject of count 2.

5. [92]

   In seeking to address the difficulty that the phone call created for the appellant’s defence of sexsomnia, counsel for the appellant asked the complainant, in cross-examination, whether she could be wrong about the second act occurring after the phone call and that, instead, both acts occurred before the phone call. As I noted above, her answer to that question was “No.” There was a further possibility, to which counsel referred in his closing address, that the appellant was “sleep talking” during the phone call and was thus asleep the entire time, although as he fairly summarised, the expert evidence on this possibility was limited. Ultimately, the way counsel put the case was that the appellant was awake when he took the call and fell back asleep, stating:

6. [93]

   I have noted above that the Crown Prosecutor invited the jury to move the timing of the calls between the appellant and EG forward, so that they occurred between 8.44pm and 8.46pm. Accepting for present purposes that there was a rational forensic basis for the case run on the appellant’s behalf at the trial, the impugned part of the Crown Prosecutor’s closing significantly undermined it. On the timing speculated by the Crown Prosecutor, there may have been time for the appellant to lie back down on the bed, but there was next to no time for him to fall asleep. As the appellant submitted, viewing the matter objectively, there was no rational reason for defence counsel not to object to what the Crown Prosecutor submitted in relation to the timing of the calls.

7. [94]

   Indeed, once the Crown Prosecutor foreshadowed making a submission that was premised on a “difference” between the mobile phone carrier and Instagram platforms there was no rational reason for counsel’s failure to request disclosure from the Crown of the evidentiary basis for the submission, or requesting that the complainant be recalled so that he could address it in cross-examination. Any submission that the Crown Prosecutor sought to make to that effect had the potential to affect the cogency of the defence case. It was critical for the appellant’s counsel to know, with precision, what that submission would be and the evidentiary basis on which it would be put. Without that knowledge, the appellant’s case was exposed to a risk of prejudice which would only crystallise when the Crown Prosecutor addressed the jury, as ultimately occurred. There was no rational reason for the appellant’s counsel’s failure to seek to engage with that obvious risk in advance of it crystallising.

8. [95]

   The appellant also contended that there was no rational explanation for counsel’s failure to challenge or address the discrepancy between the complainant’s evidence and the timing of the call charge records and Instagram messages, including by way of an expert opinion such as was obtained from Mr Ghosh and cross-examining the complainant. The appellant also contended that there was no rational reason for not challenging the complainant on what the appellant described on appeal as inherently implausible aspects of her evidence. As to count 1, the appellant raised the physical difficulty of his having reached behind him and touching the complainant on her legs and her vagina when she was “sitting up”. On count 2, he raised the implausibility of his inviting EG and his partner to their hotel room and then lying back down on the bed and, while facing away from the complainant, digitally penetrating her vagina while she was wearing underwear and tight shorts.

9. [96]

   The Crown submitted that, viewed objectively, challenging the complainant on the basis of the timing of the calls and text messages may have risked forensically compromising his primary case, which was premised on the appellant being asleep at all relevant times. It would also have involved introducing an unpalatable case theory that the appellant, allegedly asleep, was the victim of a false complaint coincidentally made in circumstances that suggested the offending may have occurred when he was asleep. There was also the potential for tension between this approach and reliance on the representations that the appellant made to the complainant’s father after the event, which was recorded in the Agreed Facts.

10. [97]

    The Crown’s submissions in this regard were premised on how the defence was run. There was an objectively legitimate basis to run a sexsomnia defence to count 1, and as the Crown submitted, there was an objectively rational reason for not attacking the complainant’s credibility on that count. The sexsomnia defence was consistent with the act of sexual touching, which did not occur, on the complainant’s evidence, until 45 minutes after the complainant sat on the bed, and all of the experts agreed it was a reasonable hypothesis. Indeed, as I noted above, the Crown Prosecutor submitted in closing that if the jury accepted the diagnosis of sexsomnia, on the evidence as to what was happening at the time of the act constituting count 1 “there must be some doubt of whether he was asleep or awake”.

11. [98]

    The appellant’s central point was that there was no rational explanation for running the sexsomnia defence on count 2, having regard to the objective evidence. There was, as he submitted, no inconsistency between running a defence of sexsomnia on count 1 and challenging the complainant’s credibility and reliability on count 2 on the basis of the objective evidence on the Agreed Facts. The effect of the objective evidence was explained by Mr Ghosh and Mr Campey, and if such a report had been obtained, it could have been put before to the jury. However, for the reasons I have already explained, in light of the Agreed Facts, it was not essential. Consistently with the reasoning in Xie at [441], I would admit the new evidence on the basis that it addressed what would have ensued had trial counsel taken the step that the appellant submitted he should have taken, subject to a limitation on its use to this ground pursuant to s 136 of the Evidence Act. However, I do not consider that its absence evidenced a failure on the part of the appellant’s trial counsel in the manner alleged.

12. [99]

    Even without such a report, the evidence in the trial raised a significant issue with the complainant’s evidence, having regard to the timing anomalies referred to above at [81]. That there was such an issue was consistent with the appellant’s interview with police. When it was put to him that the two alleged acts occurred either side of the phone call, the appellant accepted that he might have engaged in the first alleged act (in his sleep), but he did not accept that he engaged in the second alleged act.

13. [100]

    The other aspects of the complainant’s account on count 2 that the appellant contended were improbable and as to which his counsel should have cross-examined have more force when considered together with the timing issue. However, the critical omission related to the former. In circumstances where the objective evidence did not support the complainant’s account of the sequence of events on the evening in question, not taking the objective evidence up with the complainant, and instead maintaining that the appellant was asleep at all times, contrary to what he told police in his interview, did not, viewed objectively, involve a rational forensic choice. It follows that I would uphold ground 3.

Ground 4: The verdicts of the jury on both counts were not supported by the evidence and are unreasonable

1. [101]

   Like grounds 1 and 3, ground 2 alleged a miscarriage resting on the third limb of s 6(1) of the Criminal Appeal Act, based on the new evidence in Mr Ghosh’s report and the reports of Mr Campey. The relief sought in respect of it was a retrial. Given the result I have set out above on grounds 1 and 3, it is unnecessary to consider whether the appellant has also established a miscarriage on the basis of the new evidence that would result in a retrial.

2. [102]

   However, it is necessary to address the appellant’s submission that the new evidence fell into the first category of case that Barwick CJ identified in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 25 at 520:

3. [103]

   The appellant submitted that the new evidence would cause the Court to entertain a reasonable doubt as to guilt, such that the verdicts of guilty need to be set aside because of its high material value. Senior Counsel for the appellant submitted that the new evidence went to the core issue of the complainant’s credibility in terms of the messages she was exchanging with her boyfriend on the evening in question, and on that basis it went to the heart of the prosecution case.

4. [104]

   As Senior Counsel for the appellant also acknowledged orally, the issue on ground 2 was largely overtaken by ground 4, which alleged that the verdicts were unreasonable and sought an acquittal. In ground 4, the issue surrounding the timing of the calls and Instagram messages was one of four circumstances on which the unreasonable verdict rested. Looked at from that perspective, he submitted, ground 2 tended to be subsumed by ground 4.

5. [105]

   I have addressed the new evidence above. It is capable of belief, and indeed was not ultimately disputed. Mr Ghosh expressed the view, confirmed by Mr Campey, that both the phone servers from which the call charge records were obtained, and the Instagram platform from which the messages were obtained, were synchronised to co-ordinated universal time.

6. [106]

   The new evidence did not directly contradict any aspect of the complainant’s account on count 1. In my view it was not of such cogency that, viewed with the whole of the evidence, it would have likely caused the jury to entertain a reasonable doubt on that count.

7. [107]

   The new evidence also did not directly contradict any aspect of the complainant’s evidence on count 2. Rather, its significance lay in its confirmation of the position in the Agreed Facts, contrary to the position put by the Crown Prosecutor in his closing address, that there was no difference between the times of the two records. That gave rise to the anomalies created by the content of the complainant’s Instagram messages having regard to the time at which they were sent and the time of the phone calls, to which I have referred in [81] above.

8. [108]

   Absent the speculation in which the Crown Prosecutor engaged, the anomalies that arose on the objective evidence undermined a significant aspect of the complainant’s evidence, namely, that the second act commenced after the phone call. Taking into account the objective evidence of the times of the calls and the Instagram messages, which were synchronised, the second act could not have occurred consistently with the evidence the complainant gave in the trial, fundamental to which was that she sent her then boyfriend the messages through which she was taken as the appellant was engaging in the conduct, starting with “Babe/Wtf/HIDOING IT AGAIN”.

9. [109]

   On appeal, the Crown emphasised that the issue that the new evidence raised had not been ventilated with the complainant, in circumstances where the evidence she had given about what happened was otherwise cogent and compelling. The Crown highlighted that the complainant was prepared to accept that she did not have a complete recollection of the events, which had the ring of truth. In her interview with police, for example, which took place on 10 February 2021, when asked about how long the touching the subject of count 1 went for, her answer was “Seven minutes, I think, I’m just guessing”.

10. [110]

    The Crown submitted that the complainant was also frank in her evidence at the trial, almost two years after the events, giving responses that did not seek to overstate the position and which were credible and cogent. For example, when she was asked about the actions of the appellant constituting the second count, the complainant gave her evidence in a manner that was consistent with a person who was remembering something that actually occurred, stating, after describing it, “that’s the best way I can describe it”. In circumstances where the complainant’s credibility had not been tested, the Crown submitted that the appropriate order would be a retrial.

11. [111]

    The Crown’s submissions highlight the difficulty in reaching the level of satisfaction necessary to enter a verdict of acquittal on the basis of the new evidence: cf. EC (a pseudonym) v R [2023] NSWCCA 66 at [62]-[64]. Perhaps appreciating this difficulty, the appellant did not put his unreasonable verdict ground on that basis alone. Rather, the issue to which the new evidence related was one of a number on which he relied. First, the appellant emphasised his prior good character, which Senior Counsel submitted made it unlikely that he committed the offences, particularly in the circumstances in which they were alleged to have been committed, in a small hotel room, with his wife and the complainant’s mother sitting on the adjacent sofa bed.

12. [112]

    The second basis was the cogency of the sexsomnia evidence on count 1, a diagnosis that each of the experts agreed was open. Acknowledging that the complainant’s evidence as to the first act was capable of acceptance, the appellant contended that there was no reason to exclude, as a reasonable possibility, that the appellant did so while he was asleep. The fact that the complainant estimated that she was on the bed for some 45 minutes before any touching occurred, which was sufficient for the appellant to have fallen into a deep sleep, supported this possibility, with the expert evidence to the effect that, generally, parasomnic episodes occur when someone is in a state of deep sleep.

13. [113]

    The appellant also referred to the evidence that he was taking a relatively high dose of Tramadol at the time (a common side effect of which was falling asleep); the evidence of the complainant, the appellant’s wife, and the complainant’s mother that the appellant had to be told that his phone was ringing before he got up to answer it; and the evidence of the appellant’s wife that he was very difficult to wake up when he was in bed. I have referred above to the Crown’s position on count 1, submitting to the jury that if the jury accepted the diagnosis of sexsomnia, on all of the evidence there must be some doubt about whether the appellant was asleep or awake at the time.

14. [114]

    The third basis on which the appellant relied in support of an unreasonable verdict was the effect of the synchronisation of the phone records and Instagram messages. The appellant submitted that this applied with particular force on count 2, in respect of which it was “distinctly possible that what she said to her boyfriend – at least from a certain point during the events in the room – was untrue.”

15. [115]

    The fourth basis was the physical difficulties associated with the appellant engaging in the acts comprising the two counts, given his position on the bed relative to the complainant’s, in a manner that would not have attracted the attention of his wife and the complainant’s mother, both of whom were sitting nearby. The appellant was facing away from the complainant on the bed, lying on his side. The complainant was sitting on the bed, as far away from the appellant as she could (although there was some question as to how far that could be). The act of sexual touching involved the appellant, while still lying on his side, reaching behind him. In relation to the second count, the appellant, who was still facing away from the complainant, had to reach behind him, pull down the complainant’s legs so that they were open (which she described he did aggressively), and then move his hands underneath her shorts and underwear. At this time, the appellant was experiencing pain in both of his shoulders to the extent that he was taking opioid medication (Tramadol). In his interview with police, he agreed that the action of reaching behind him was painful.

16. [116]

    The appellant called attention to what the High Court said in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 ("Dansie”) at [7]-[8] about the function to be performed by a court of criminal appeal when determining an appeal on an unreasonable verdict ground:

17. [117]

    At [9] of Dansie, the Court extracted what it described as the “carefully crafted” passage in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (“M”) at 494-495 regarding the role of the jury as “the body entrusted with the primary responsibility of determining guilt or innocence”:

18. [118]

    As the test in M makes clear, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. The appellant submitted that the fact that his trial counsel did not suggest that the complainant’s account lacked credibility does not relieve the Crown from eliminating any reasonable doubt that arises on the evidence.

19. [119]

    The Crown submitted that the appellant’s complaint of unreasonableness must be assessed by reference to the evidence and issues in the trial that was in fact conducted. It accepted that good character tended against the offending, but submitted that it did not in itself answer the Crown case. In relation to count 1, the Crown also accepted that there was some basis for the defence of sexsomnia, but submitted that it was open to the jury to accept the evidence of the complainant and reject the reasonable possibility that the acts were involuntary as a result of the sexsomnia.

20. [120]

    In relation to the physical aspects of the offending, the Crown submitted that there was nothing inherently implausible about those aspects. A person lying on their left side could reach a ruler’s length behind them with their right arm and touch something. The physical act was not impossible and the idea that underwear and tight shorts would prevent penetration from occurring was not tenable. Further, the complainant did not alert her mother or the appellant’s wife to the actions and the potential witnesses were talking while watching an Arabic show on television. This Court has repeatedly noted that sexual offending against children is often committed with stealth, opportunistically and in brazen circumstances: see VP v R [2021] NSWCCA 11 at [79].

21. [121]

    The Crown also submitted that there was nothing inherently implausible about a person ceasing a sexual act, then returning to the sexual act, even if there is a relatively short period before friends arrived at the room. There was also nothing inherently implausible in a person, woken from sleep to answer a call, returning to a common position after the call, particularly where it was a successful position to conceal the sexual act.

22. [122]

    In relation to the issue created by the comparison of the complainant’s messages and the timing of the phone calls, the Crown submitted that having regard to the manner in which the case was run, it was open to the jury to accept that the complainant gave an honest and accurate account of the events concerning counts 1 and 2. Her evidence contained detail consistent with an honest and accurate recollection of events, was cogent in relation to her description of events concerning counts 1 and 2 and was supported by contemporaneous messages sent to her boyfriend. Having regard to the whole of the evidence and the advantage of the jury seeing and hearing the evidence in the atmosphere of the trial (see Lee v R [2023] NSWCCA 203 at [29]), the Crown submitted that the Court would have no doubt about the appellant’s guilt on counts 1 and 2.

23. [123]

    The difficulty with the Crown’s submissions in relation to count 2 was the manner in which the complainant’s evidence was led at trial. The complainant’s evidence was tied, inextricably, to the Instagram messages that she said she was sending her boyfriend as the events were occurring. On her evidence, the second act involved the appellant moving his hand underneath her shorts and underwear, reaching her vagina, and then digitally penetrating her. Her evidence was that the act started at the time she sent the messages “Babe/Wtf/HIDOING IT AGAIN” at 8.46pm, and continued through to 8.53pm, when she texted “OKK HOLD ON/ HE STOPPED”.

24. [124]

    It is the case, as the Crown emphasised, that the complainant’s evidence was not the subject of challenge at the trial, either by reference to the timing of the phone calls or more generally. However, the record of the trial discloses that the timing of acts that the complainant described, by reference to the Instagram messages, as part of count 2 could not be reconciled with the timing of the phone calls on the Agreed Facts, at which time, on the evidence, the appellant got out of bed and spoke with EG on the phone. In the words of the High Court in M, the evidence, on the record of the trial, gives rise to a reasonable doubt that is not explained by the manner in which the complainant gave her evidence. Taken together with the other aspects of the evidence on which the appellant relied that were relevant to count 2, I consider that the verdict on count 2 was unreasonable. The appellant should be acquitted on that count.

25. [125]

    As the appellant accepted in reply, the same result does not inexorably follow on count 1. The appellant acknowledged that the complainant’s evidence as to the first act was capable of acceptance. It was not directly impacted by the timing issue that affected her evidence on count 2. The appellant’s defence rested upon acceptance of the expert evidence regarding sexsomnia. If the jury accepted the diagnosis, there was a reasonable possibility on the evidence that the appellant was asleep at the time of the sexual touching (as the Crown Prosecutor submitted in closing submissions). However, the jury’s acceptance or otherwise of the diagnosis depended upon its evaluation of the evidence of the appellant’s wife and what the appellant had told, among others, the complainant’s father, the police, and the experts. By contrast with count 2, the record of the trial as to count 1 does not, in my view, give rise to a doubt that was not capable of being resolved by the advantages the jury had. Accordingly, I do not find the jury’s verdict on count 1 unreasonable.

Conclusion

1. [126]

   I propose the following orders:

   1. (1)

      Grant leave to appeal to the extent necessary on ground 1 and ground 4.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the appellant’s convictions on counts 1 and 2.

   4. (4)

      In lieu thereof enter a verdict of acquittal on count 2 and order a new trial on count 1.

   5. (5)

      List the matter in the arraignments list in the District Court at Gosford on 3 October 2024 or as otherwise directed by that Court.

2. [127]

   DAVIES J: I agree with Mitchelmore JA. In relation to ground 4, from my own examination of the evidence in relation to count 2 I consider that the jury ought to have entertained a reasonable doubt about the guilt of the appellant on that count.

3. [128]

   IERACE J: I also agree with Mitchelmore JA. My agreement with her Honour’s determination of ground 4 is also based on my own examination of the evidence in relation to count 2.