Kassab (a pseudonym) v R

1. [1]

   JOHNSON J: I have had the considerable advantage of reading, in draft, the judgment of N Adams J. I agree entirely with her Honour’s judgment and the orders proposed by her Honour.

2. [2]

   With respect to the first ground of appeal, having reviewed the evidence in the trial, I am also satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on all counts upon which he was convicted.

3. [3]

   N ADAMS J: This appeal concerns allegations of historical child sexual assault. The applicant is the paternal uncle of the two complainants.

4. [4]

   In order to protect the anonymity of the two complainants, their names, as well as those of their family members, have been reduced to initials in the Appeal Book and submissions. The two complainants were referred to as YD and VG, the applicant as SH and so on. In the interests of readability, I propose to refer to the complainant YD as Yvette (not her real name) and VG as Victoria (not her real name). In relation to other witnesses I propose to refer to them as “the applicant”, “the mother”, “the father” etc. Where that is not possible, I will refer to them by first names other than their real names but starting with the same letter.

5. [5]

   The two complainants allege that they were sexually assaulted as children both by the applicant and another uncle, FH, whom I shall refer to as Uncle Frank. The two complainants made disclosures of the alleged abuse over the years to friends, boyfriends, husbands and relatives before each of them finally went to police in 2013.

6. [6]

   A joint trial commenced against both uncles in 2018 before Armitage ADCJ but was aborted. Uncle Frank became ill and the DPP ultimately did not proceed to trial against him. There was never any suggestion that the two uncles had acted in concert in any way.

7. [7]

   The trial judge, Judge Weber SC, conducted a pre-trial hearing from 5-17 June 2019 to consider objections made on behalf of the applicant. Two of the rulings made on 17 June 2019 by his Honour are the subject of ground 2.

8. [8]

   On 18 June 2019, the applicant pleaded not guilty on indictment to 34 charges alleged to have been committed on both Yvette and Victoria between 1974-1989. The trial proceeded before his Honour and a jury of twelve.

9. [9]

   On 22 July 2019, the jury entered verdicts by direction on three counts (31, 32 and 34). Those counts all pertained to Victoria. She failed to give any evidence to support count 34 and in relation to counts 31 and 32 she did not describe the sexual assaults as occurring without her consent (she was over the age of 16 years by that stage).

10. [10]

    On 30 July 2019, the jury returned verdicts of guilty in relation to 22 counts and not guilty in relation to the remaining nine counts.

11. [11]

    On 11 October 2019, the applicant was sentenced in relation to the 22 offences upon which he was convicted to an aggregate sentence of 12 years imprisonment with a non-parole period of 7 years to commence on 30 July 2019 and expire on 29 July 2026.

12. [12]

    The applicant seeks leave to appeal against his convictions under s 5(1) of the Criminal Appeal Act 1912 (NSW). He relies upon the following two grounds of appeal:

13. [13]

    There is no application for leave to appeal against the severity of the sentence.

14. [14]

    If the applicant is successful on ground 1 the appropriate order is one of acquittal on all counts and there would be no need to go on to consider ground 2. If the applicant is unsuccessful on ground 1 but successful on either ground 2(a) or ground 2(b) the appropriate order would be one of a new trial. In those circumstances I propose to consider ground 1 first.

Ground 1: unreasonable verdicts

1. [15]

   Yvette was born in November 1968 and Victoria was born in June 1971. They were both born in Syria and arrived in Australia in 1972 with their mother. Their father had already migrated. The applicant and his family arrived in Australia shortly thereafter. The two families lived together in rented premises for a couple of years at which time some of the family members purchased the premises next door (“the premises”). A Memorandum of Transfer tendered at trial (Exhibit A17) established that the premises were transferred to the applicant and his wife and the applicant’s brother MH (“Mark”) on 28 July 1976. The evidence is that the complainants’ family moved into those premises shortly thereafter.

2. [16]

   The evidence as to when the complainants’ family moved out of the premises differed. In 1979 or 1980 the two complainants and their mother returned to Syria on holidays. There was evidence at trial that they moved out of the premises upon their return to Australia.

3. [17]

   All the offences were alleged to have occurred in the premises.

4. [18]

   A significant amount of the evidence at trial comprised background details about: who the various members of the extended family were; what jobs they had at different times in the 1970s; how the children travelled to and from school; what year the complainants’ family moved into and out of the premises and other surrounding events. The cross-examination of the two complainants regarding the details of the alleged sexual assaults was by comparison relatively brief. This is explicable given that the applicant denied all offences.

5. [19]

   The two families living together in the premises from 1976 until 1980 comprised the following members. The applicant’s family included his wife DH (“Donna”) and their three children EH (“Evan”) born February 1973, OH (“Olivia”), born in April 1974 and RH (“Richard”), born in January 1977. The two complainants lived with their parents and their brother PH (“Peter”). The two complainants were aged 6 and 8 years when they moved in and 10 and 12 years when they left.

6. [20]

   There was no dispute that the complainants’ mother worked throughout the relevant time period at a factory. Although the complainants’ father also worked, there was a period in which he was unable to work due to injury. The complainants did not give evidence of this. The complainants describe the applicant as either being unemployed or working as a mechanic on vehicles at the premises. This was denied by the applicant and his family who gave evidence that he was employed throughout the period. The complainants’ evidence was that Aunt Donna had the role of looking after the children and doing the cleaning, but she worked early in the morning at a bakery for a period and sometimes worked at a Salvation Army shop. The evidence of the applicant and his wife and Olivia was that she (Aunt Donna) never worked while they were all living together at the premises.

7. [21]

   The applicant placed reliance on the evidence about who worked where and when on two bases: it was said to be relevant to the opportunity the applicant had to sexually assault the complainants and, given some of the inconsistencies in their evidence when compared with other witnesses, it was relied upon as undermining the credibility of the two complainants.

8. [22]

   I propose to summarise the evidence of the complainants in relation to the counts on the indictment and then summarise their evidence as to the surrounding circumstances.

9. [23]

   Victoria gave evidence that when the families first moved into the premises the applicant treated her well and would say that she was cute and pretty. Around the time that the families moved into the property, Victoria would receive money from the applicant for going into the bathroom with him and being “cooperative” or “good”. She said that telling him to “stop” was not being good. Victoria said that the applicant would call her over in Arabic, saying “come…pretty one”. The applicant would tell her that she was special, that he loved her, she was beautiful and she was his favourite. Victoria said that he was gentle and sweet when he spoke to her, and she truly thought the applicant cared for her. In some instances, Victoria said that although she felt uncomfortable, she thought it was fun because the applicant told her he loved her and was gentle with her. The applicant asked Victoria not to say anything and said that it was a secret between them. Victoria said that when she told the applicant that she would tell her father, the applicant responded that her father would believe him over her as they were brothers.

10. [24]

    Yvette recounted the grooming as beginning around when she started school. The applicant would tell her she was a big girl and smile at her. Soon after this, the applicant started telling Yvette to come and sit on his lap while watching TV. He would tell her she was a good girl and pat her hair. The applicant would suck on her earlobe, which she said was ticklish and made her laugh. Yvette said that if she tried to hop off from his lap the applicant would grab her arm and turn her around, giving her a look as though he was disappointed in her. She said she did not want to upset the applicant and for him to get angry with her. He would say “don’t you want to be a good girl for uncle?”.

11. [25]

    Around the time Yvette was six years old, the applicant began complimenting her, saying she was wearing a pretty dress, that she was nice and beautiful. He said she was a good girl and he loved her very much. The applicant would ask to see what was under her dress. After some time, she would show him her underwear without being asked and he would smile. She said she felt happy that it was making him happy.

12. [26]

    The applicant subsequently began touching her vagina. When he did so he would tell her that she was a “good girl” and she was “doing the right thing”. Yvette recalled that the applicant began giving her money after touching her vagina. Yvette said that at this time she “liked him a lot… trusted him”.

The Indictment

1. [27]

   Yvette commenced school in 1974. She turned five that year. Her evidence was that all the offences committed by the applicant took place while she lived at the premises.

2. [28]

   Yvette gave evidence that count 1 occurred at the end of her year in kindergarten. Count 1 was an allegation that was said to have occurred towards the end of 1974 at the premises. She alleged that the applicant was in the lounge room. Yvette stood in front of him when he touched her underwear and put his hands inside her underpants. He then patted and rubbed her on the vagina for a couple of minutes.

3. [29]

   Given that Yvette’s evidence was that all the offences committed by the applicant took place while she lived at the premises, any alleged assaults on her could not have taken place in the time frame nominated by her.

4. [30]

   The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

5. [31]

   Victoria commenced kindergarten in 1976. She turned five that year. Her evidence was that all offences committed by the applicant took place while she lived at the premises.

6. [32]

   Victoria gave evidence that the applicant had indecently assaulted her in the bathroom of the premises between 1 October 1975 and 31 December 1975. She had gone to the bathroom to use the toilet. While she was still on the toilet the applicant came into the bathroom. When she finished, he lifted her up and placed her on the sink and started looking at her genital area and touching her there.

7. [33]

   The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

8. [34]

   Victoria gave evidence that shortly after the count 2 incident she went to the bathroom again on a subsequent occasion and was followed into the bathroom by the applicant. He lifted her up and sat her on the sink. He then started rubbing her on the external skin of her genitals with his finger.

9. [35]

   The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

10. [36]

    Victoria gave evidence that a few months after count 3, and prior to when she commenced school, she was again indecently assaulted by the applicant in the bathroom. The incident occurred during the day. She gave evidence that the applicant picked up a bar of soap and started to rub the soap on her vagina area. She began to experience pain and discomfort while this was occurring and also later when she was urinating.

11. [37]

    The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

12. [38]

    The applicant’s son Richard was born on 16 January 1977. Yvette described an occasion sometime after he was born when the applicant was sitting in the lounge room and called her over to sit on his lap. He then pulled aside her underpants and touched her vagina and clitoris for a couple of minutes (she did not know that is what those body parts were called at the time).

13. [39]

    It is to be noted that Yvette’s evidence was that this count occurred shortly after count 1. She was able to fix count 14 in time because her cousin Richard was born. Her evidence was she thought her cousin Richard was born in January 1976, rather than on 16 January 1977. This could explain the discrepancies in her timing in relation to the first count, especially given the context evidence that these were not isolated incidents.

14. [40]

    The applicant was convicted on this count.

15. [41]

    Yvette gave evidence that while walking down the hallway of the premises in 1977 she walked past the applicant’s bedroom. He was lying on the bed. He asked her to enter the room and close the door. He then got her to lie down on the bed with him. He then moved her underpants and touched her vagina and clitoris. She described how he gave her one of her aunt’s perfume bottles to play with. This is something she was not normally permitted to do. She heard heavy footsteps approaching the bedroom door at some point (which she thought was Aunt Donna). At that time the applicant pushed her away and removed the perfume bottle from her hands. She was told to hide. She curled up in a ball and blankets at the foot of the bed. When Aunt Donna entered the room and pulled the blankets back, she questioned Yvette as to what she was doing on the bed.

16. [42]

    The applicant was convicted on this count.

17. [43]

    Victoria gave evidence that after she started school the assaults would occur in the afternoon after she came home from school. She described one occasion in the beginning of the year when the applicant was alone in the bathroom with her and he began to touch her vagina. He then placed his penis between her legs and began to rub against her vagina. She described seeing him put tissues on his penis.

18. [44]

    The applicant was acquitted on this count. It is common ground at the appeal that the explanation for that was that the family did not move into the premises until mid-1976 at the earliest.

19. [45]

    This incident was said to have occurred shortly after count 5. Yvette walked into the bathroom which was off the hallway and was followed by the applicant. He washed her vagina with soap.

20. [46]

    The applicant was convicted on this count.

21. [47]

    This incident was said to have occurred shortly after count 11. Yvette described going into the toilet and being followed by the applicant. On this occasion she described that he licked her vagina and was pressing on his own groin area. Afterwards he gave her a 20-cent coin.

22. [48]

    The applicant was convicted on this count.

23. [49]

    A few weeks after the previous count Yvette described an occasion when the applicant was lying on his bed. He gave her a bottle of perfume to play with. She was playing with the perfume under the bed while he was laying on the bed. She described that the applicant was touching her vagina with his fingers. This occurred for about five minutes. She described that the bed was shaking at this time.

24. [50]

    The applicant was convicted on this count.

25. [51]

    Yvette described how shortly after the previous incident the applicant entered the bathroom whilst she was in there. He began to lick her vagina while having his hand inside his pants.

26. [52]

    The applicant was convicted on this count.

27. [53]

    Shortly after the previous incident, Yvette found herself in the bathroom alone again. The applicant came in and locked the door. He placed a towel over the door handle and began to lick her vagina. She described how on this occasion she had a weird feeling and felt like vomiting and pushed the applicant away.

28. [54]

    The applicant was convicted of this count.

29. [55]

    Shortly after the previous incident, the applicant entered the bathroom whilst Yvette was in the bathroom. This time he placed a towel on the floor. He asked her to lie down on it. When she did, he began to lick her vagina. After he did this, he gave her a 20-cent coin.

30. [56]

    The applicant was convicted of this count.

31. [57]

    This is one of four counts that were alleged to have occurred in the garage at the premises. Victoria described the garage as being brick with a roller door. She gave evidence of an incident when she returned home from school and ran into the backyard to start playing. The applicant yelled out for someone to help him in the garage. When she entered the garage he closed the roller door, unbuttoned his overalls and put her hand on his penis. He guided it back and forth and she saw white liquid coming from the applicant’s penis.

Evidence about the garage

1. [58]

   Both complainants gave evidence that the applicant sexually assaulted them in the garage. In addition to this count there were three other counts that were alleged to have occurred in the garage.

2. [59]

   There was no dispute that there was a garage built at the premises sometime after it was purchased. There were no photographs or plans or other documents to establish when it was built. There were photographs taken of the garage in evidence that were all taken after the complainants’ family ceased living with the applicant’s family. There were also photos in evidence taken of the complainants when they were still living at the premises that did not depict the garage in the position where it ultimately was built.

3. [60]

   The applicant, his wife, the applicant’s brother Mark, and the complainants’ father all gave evidence as to when the garage was built. All witnesses described the garage not being built until well after the complainants moved out.

4. [61]

   At the time that the complainants lived at the premises there was a shed at the back of the yard. A photograph of the shed was in evidence and dated 1981 (Exhibits A 4-6).

5. [62]

   Given the photographic evidence and evidence of relevant witnesses at the trial the Crown ultimately accepted that its case to the jury was that the applicant could not be convicted on the four counts in relation to the garage unless the jury were satisfied beyond reasonable doubt that the garage was in existence at the time when they resided with the applicant. This part of the closing address is extracted below at [188].

6. [63]

   The jury acquitted the applicant on count 13. It was common ground at the appeal that this was because of the evidence that the garage was not in existence at that time.

7. [64]

   Victoria also gave context evidence that when she was seven or eight years old, she was shown a pornographic magazine in the garage. She described how the applicant opened it on a double page which depicted two females and a male. He asked Victoria to lick the part of the page where the females’ vaginas were. This was said to have taken place at the same time as the previous count.

8. [65]

   Yvette gave evidence that there was a further incident in 1977 or 1978 when the applicant was lying on a bed in a bedroom, other than his own, when he called her into the bedroom. He rubbed his penis back and forth on her vagina. After this occurred, she continued to sit on his bed and play with the coin that he had given her. She saw him go to the door and check to make sure that no one was coming after. He then gestured to her with his hand to indicate that it was safe to leave and she ran out.

9. [66]

   The applicant was convicted on this count.

10. [67]

    These two events were described by Yvette as having taken place as part of the one incident. She described the applicant following her into the bathroom. Once they were both in the bathroom, he began to lick her vagina while he had his hands on his pants moving up and down (count 19). He also asked her to lick his penis which she did (count 16). At one stage during this incident she saw the applicant walk over to the bathroom door and look through the keyhole. He then opened the door and gestured for her to leave.

11. [68]

    The applicant was convicted on both of these counts.

12. [69]

    This is another of the four counts said to have taken place in the garage. Yvette described how the applicant was working in the garage when he signalled for her to enter the garage. She saw that he was wearing overalls. He undid the buttons, put his hand on his groin and took her hand to put inside his overalls. He wrapped a hand around his penis and used his hand on top of hers to move it backwards and forwards. She described that incidents like this occurred regularly in the garage.

13. [70]

    The jury acquitted the applicant on count 20. It was common ground at the appeal that this was because of the evidence that the garage was not in existence at that time.

14. [71]

    This is another count where Yvette described the applicant being in the garage. He called out to her and she came into the garage. He grabbed her hand and placed it on his penis. He then had her masturbate him before he told her that she could leave.

15. [72]

    The jury acquitted the applicant on count 17. It was common ground at the appeal that this was because of the evidence that the garage was not in existence at that time.

16. [73]

    This is another count said to have occurred in the garage. The applicant was in the garage and called Yvette to come into the garage. She remembers that she was wearing a skirt with ruffles. The applicant was wearing overalls. He opened the groin area of the overalls and indicated to her to touch his penis. He then walked her around to the back of the car where he squatted down and began to lick her vagina.

17. [74]

    The jury acquitted the applicant on count 18. It was common ground at the appeal that this was because of the evidence that the garage was not in existence at that time.

18. [75]

    Yvette described how on one occasion she was lying on the floor on the carpet of the applicant’s bedroom when he took off her underwear and began to rub his penis against her vagina.

19. [76]

    The applicant was found guilty on this count.

20. [77]

    Yvette gave evidence of another incident around the same time frame being the early part of 1980. She went into the bedroom with the applicant and he rubbed his penis up and down against her vagina.

21. [78]

    The applicant was found guilty of this count.

22. [79]

    Victoria gave evidence that the applicant would encourage her to lick the vagina of her cousin, his daughter Olivia. These events occurred sometime between 1977 and 1981. She described how the applicant showed her a pornographic video depicting a female performing cunnilingus on another female. He told her that before she performed it on Olivia she would need to practise. Victoria recalls that she was approximately six years old and Olivia was only three years old. She remembers this because her cousin Olivia was doing the dishes in the kitchen when he asked her. She gave evidence that she did practise licking Olivia’s vagina as she was asked (count 23).

23. [80]

    About a week later the applicant asked her whether she had practised and suggested she was not doing it properly. He told her to try again (count 24). Victoria ultimately told him that she did not want to do this. He again told her that she was not doing it properly and encouraged her to try again (count 25). She gave evidence that she did so.

24. [81]

    The applicant was convicted on these three counts.

25. [82]

    Victoria described that these offences occurred as part of the one incident after she had moved out of the premises but had returned for a sleepover with her cousin. She was alone in the bathroom with the applicant when he pulled her pants down and was standing behind her. He began to rub her vagina (count 27). He then put his penis between her thighs (count 28). She could feel it moving back and forth until she felt his penis inside her (count 26). This caused her pain and she told him he was hurting her. He told her to wait. She described that his penis was inside her for less than a minute.

26. [83]

    The applicant was convicted on all three counts.

27. [84]

    Yvette gave evidence that this offence occurred at the premises after they had moved out. On one occasion when she visited the applicant and his family, she wanted to take the other children to the park. She asked the applicant whether she could do so. He gestured with his head towards a bedroom. Yvette understood this as a signal for her to attend the bedroom with him. Whilst they were in the bedroom, he inserted his finger into her vagina.

28. [85]

    The applicant was convicted on this count.

29. [86]

    Victoria was 15 years old and in Year 10 at school at the time of this alleged offence. She had a boyfriend, George, who was one of the complaint witnesses at trial. On the weekends she would sometimes sleep at the premises to be with her cousin, Olivia. On one occasion she and Olivia planned to go out for the evening. The applicant was in the bathroom with Victoria at which time he inserted his penis into her vagina two or three times. He also reached behind her and rubbed her vagina with his hand prior to inserting his penis into her vagina. He thrust his penis a number of times, he did not ejaculate.

30. [87]

    Victoria described this behaviour continuing over most weekends whenever there was a sleepover at the premises.

31. [88]

    The applicant was convicted on this count.

32. [89]

    Victoria gave evidence that when she was in Year 12, she had another sleepover at the applicant’s house. She would sleep in Olivia’s room when she did so. She alleged that during the night she was in the bathroom alone with the applicant and he inserted his penis into her vagina.

33. [90]

    This count was the subject of a verdict by direction because by this stage Victoria was 17 and she did not give any evidence of lack of consent to the act.

34. [91]

    Victoria gave evidence that this incident occurred on the weekend of the Mardi Gras parade in March 1989. She was 17 years old at the time. She went to Olivia’s house at the premises. They both had boyfriends who were friends and it was intended they would go to Mardi Gras together. A similar event occurred on this occasion. She described being in the bathroom, being followed in by the applicant, and the applicant having penile/vaginal intercourse with her.

35. [92]

    This count was the subject of a verdict by direction because by this stage Victoria was 17 and she did not give any evidence of lack of consent to the act.

36. [93]

    Victoria gave evidence that she was indecently assaulted by the applicant a couple of months after the Mardi Gras incident. She was staying at the premises to spend time with her cousin Olivia. She had been fighting with her boyfriend George. She was in the bathroom crying. The applicant entered the bathroom and put his hands down her pants. He then grabbed her hand to stimulate himself. Victoria refused to hold his penis and let her hand go limp. She told him that she did not want to do it.

37. [94]

    The applicant was convicted on this count.

38. [95]

    Victoria did not give any evidence in relation to this count and the trial judge directed the jury to acquit the applicant on this count.

Evidence about Uncle Frank

1. [96]

   Both complainants gave evidence that Uncle Frank came to live with them in the early 1980s after they had left the premises. Victoria gave evidence that Uncle Frank made her perform fellatio on him when she was about nine years old. On this occasion she felt she was unable to tell her parents due to her family’s expectations of her. She gave evidence that Frank made her perform fellatio several more times and that he would hit her if she did not. Victoria said that during the time the Frank lived with them he would grab her vagina and breasts and pinch her in the lounge room.

2. [97]

   Victoria said that when she was about 12 years old, she first saw Uncle Frank touch her sister in the lounge room. Victoria then asked Yvette whether Uncle Frank was hurting her. Victoria said that Yvette looked down which she understood to mean “yes”. The sisters had another conversation about this around one week later, in which Yvette said that Uncle Frank had been grabbing her as well.

3. [98]

   A couple of weeks later, Victoria initiated another conversation with Yvette and said she was sick of it and wanted to tell their mother. She told Yvette “let’s try and get him busted”. The sisters approached their mother and told her that Frank had been grabbing them. Victoria said that her mother wanted to see it for herself.

4. [99]

   The sisters then sat in the lounge room while their mother observed from behind the door of the next room, through an old-fashioned key peephole. Uncle Frank entered the lounge room and pinched both of them at the same time.

5. [100]

   When their mother saw what happened she became angry and told Uncle Frank to leave the house.

6. [101]

   The defence at trial relied heavily upon the fact that although the complainants were able to tell their mother about Uncle Frank, they did not say anything to their mother about the applicant at that time.

7. [102]

   Victoria gave evidence that when she was about 16, she told Aunt Donna about what the applicant was doing to her. Aunt Donna did not believe her. The applicant relied upon the fact that Victoria continued to visit the premises after this as being a matter adverse to her credibility.

Evidence of a suicide attempt by Victoria

1. [103]

   In the late 1980s Victoria was admitted into Canterbury Hospital. She took an overdose of Panadol. In her evidence she said this was in 1986 and was due to abuse she suffered at the hands of the applicant. The hospital records were in evidence. They showed that the incident occurred in 1989 and the issue was recorded as “family trouble”.

2. [104]

   This was another matter relied upon by the applicant as a matter adverse to Victoria’s credibility.

Evidence of complainants’ mother

1. [105]

   The complainants’ mother gave evidence as to the living and working arrangements, her observations of Uncle Frank and of the complaint to her.

2. [106]

   Her evidence was that when they first moved into the premises, she worked full time, 8am to 4pm. Everyone used to be at home when she came back from work. Her husband (the complainants’ father) was also working but not all the time. She agreed that as a result of a car accident in the mid-1970s he was not able to work but disagreed that it was for two and a half years, stating that it was maybe one and a half years.

3. [107]

   Her recollection was that the applicant may have worked with her husband for a little while and that they later opened a garage and worked together. She could not recall when that happened, but said that once they opened the garage, they used to go out around 8am and come back in the evening. She accepted that it may be that they had a garage at the time of moving to the premises. Her evidence was that the applicant did not work much in Australia, about two years, because he started to fix up cars for his friends at the garage at the house. When she was living at the premises there would be times when the applicant would already be there when she came back from work, and that most of the time he would be working in the garage in the house and fixing up cars for friends.

4. [108]

   She agreed that her husband and the applicant worked together in a few jobs: at a garage in partnership for about one year and in a factory in Alexandria (although not for very long). She also recalled that the applicant once worked as a mechanic with someone else at a garage.

5. [109]

   As for Aunt Donna, the complainants’ mother stated that she did not work at the time they moved into that property but that she then worked full time at the same company as her for three or four years, doing the same hours (8am to 4pm), and then at a bakery shop at Belmore. The complainants’ mother could not recall exactly when Aunt Donna worked.

6. [110]

   The complainants’ mother gave evidence that Uncle Frank came and lived with them for several days. One night, after she heard Yvette scream, she found him at the door of the girls’ room. Following a conversation with Yvette in which she told her that the applicant made her “grab his sexual organ” the mother asked him to leave the following morning without telling her husband. She further stated that, after they moved house again, Uncle Frank used to come with his children every Saturday. On one occasion she observed him playing with himself in front of the girls. On another occasion she heard him say “[Victoria] my penis in your cunt”. She did not, on either occasion, say anything to Uncle Frank directly or inform her husband.

7. [111]

   The complainants’ mother stated that she learnt about Victoria’s complaint once she went to America to be with her, after Victoria became ill. She was told by Victoria that the applicant tortured her and hurt her when she was about 4 years old and lived at the premises. Victoria could not tell her the details. Every time she asked her for details Victoria could not tell her because she was on the machine helping her breathe. She stated that when she called her husband to tell him that “his brothers inflicted pain [on] or tortured” on Victoria she only meant the applicant and not Uncle Frank. She also stated that Victoria told her that she had complained to Aunt Donna a long time ago, but that Aunt Donna did not believe her.

Evidence of the complainants’ father

1. [112]

   The complainants’ father gave evidence about the living and working arrangements whilst the two families were living together at the premises.

2. [113]

   His evidence was that he worked at a factory when they first moved into the premises and at a polishing factory for a short time in 1976. He was unable to recall if the applicant worked anywhere in 1976. The father’s evidence was that he and the applicant worked at a bumper bar workshop but later decided to set up a garage business for themselves at the premises. He thought that the applicant was working during the time when they were living together at the premises.

3. [114]

   The father stated that he was involved in a car accident while living at the premises. At the time he was working at a polishing factory and was off work for about a year and a half as a result of the accident. During that time the applicant worked at a petrol station, but he could not recall when and for how long. The father stated that once he started working at a factory again, he used to work the night shift from 7pm until 7am. He could not recall Aunt Donna working when they first moved into the premises but stated that his wife (the complainants’ mother) was working at that time.

4. [115]

   He stated that the family moved out of the premises between 1979 and 1980. By that time, they had lived there for about three years. His family went to Syria while they were still living at the premises and he joined the family eight to ten days later, once he had moved out of the premises.

5. [116]

   He stated that his wife went to America in 2011 or 2012 because Victoria was sick and that he became aware of the issue concerning his brothers when she returned to Australia.

Complaint witnesses

1. [117]

   The events were alleged to have occurred between 1975 and 1989. The complainants started confiding in people about the sexual abuse from as early as 1984. Typically, they told their close friends, boyfriends and husbands and one Aunt with whom they were close. Whenever they confided about it to anyone each of them insisted that it remain private. Ten witnesses were called at the trial about what they had been told by Yvette and Victoria over the years.

2. [118]

   Given the probative value of this evidence, and the fact that the admission of it forms the substance of ground 2(b), I propose to set this evidence out in some detail.

3. [119]

   Ms Hormazabal is a friend of Victoria’s. She gave evidence that Victoria complained to her in approximately 1984 and 1985 and again in 1992-1993 (before November 1994). Ms Hormazabal used to go out with George Rivera (another Crown witness). After they broke up, she remained friends with him and later he went out with Victoria. She has been close friends with Victoria since they first met. About six months after they met each other, when Victoria was about 14 years of age, Victoria told Ms Hormazabal that her uncles “hurt her”.

4. [120]

   Victoria complained to her that it was two uncles, one of whom was “redneck” (Uncle Frank) and the other was the applicant. Ms Hormazabal knew the applicant at that time. Victoria said that the applicant was “sick”. She told Ms Hormazabal to be very careful of the applicant. She then made Ms Hormazabal promise never to tell a living soul. She also said that he had not only done things to her but also to her sister Yvette. The evidence of Ms Hormazabal on this subject was as follows:

5. [121]

   About four months after Ms Hormazabal first spoke to Victoria about this she also spoke to Yvette and found out what happened to Yvette. She explained:

6. [122]

   She spoke to Yvette about the topic again years later. They did not really talk about it. Ms Hormazabal said that Yvette knew that she knew and that’s where it was left.

7. [123]

   She remembered having another conversation with Victoria before her marriage on 5 November 1994. She questioned Victoria about whether she was sexually assaulted from the age of two. Victoria clarified that “he didn’t fuck me at two” and instead indicated with her hand that she was “this high”. During this conversation Victoria became distraught and Ms Hormazabal apologised for bringing the topic up:

8. [124]

   Aunt Ibrahim is the older sister of the complainants’ mother and thus the complainants’ maternal aunt. She gave evidence of some early complaint in 1987 to 1990 and then further details being provided post-2011. Her evidence can be summarised as follows.

9. [125]

   Aunt Ibrahim was still residing in Syria when the complainants and their mother came to visit in 1981 and then again in 1990. She migrated to Australia for a year in 1985 and then returned to Syria after six months. She had a good relationship with the complainants.

10. [126]

    When she came back to Australia for a second time in 1986, she stayed with the complainants’ family. The children were attending school at this time. She observed that Yvette and Victoria did not like to be present with the applicant and would go and sit somewhere else. She did not ask them why. As for the specific terms of the complaint about the applicant, in 1987 both complainants said to her words to the effect of “he used to hurt us or disturb us” or “he used to touch us here and there”. Victoria spoke more than Yvette.

11. [127]

    She also observed that the complainants were uncomfortable around Uncle Frank and they would not stay if he was present. They told her “we don’t want to see him”. She noticed this behaviour in the 1987 trip which was her third trip to Australia.

12. [128]

    Aunt Ibrahim gave the following evidence as to why she did not tell anyone about this at the time (her evidence was given through an interpreter):

13. [129]

    Aunt Ibrahim was a childhood friend of the applicant’s wife Aunt Donna and used to visit her after she emigrated to Australia. She recalls that on one of these visits the applicant would ask why the complainants did not visit him. She thought this conversation took place in 1996 when Victoria was in America.

14. [130]

    In 2013, she became aware of more specific complaints. She was aware that Victoria had lost her virginity and that the applicant used to inflict pain on Victoria. She told her that he used to get her into the bathroom, put her head in water and “make love to her” from behind and sometimes on a bed.

15. [131]

    In cross-examination Aunt Ibrahim accepted that she never tried to stop the complainants going to the applicant’s home and was aware that they went there for sleepovers. She also accepted that she had never told her sister to stop the children going to the applicant’s home. She explained that this was because her sister did not know about it.

16. [132]

    Ms Kaddissi is a long-time friend of Victoria. The two women were close as teenagers and shared a house together in Balmain. Victoria complained to her in about 1993-1994. She recalls a discussion taking place in a car and another taking place on a couch in their Balmain home. Only she and Victoria were present for the conversation. Her evidence was as follows:

17. [133]

    In cross-examination she denied that she had been told what to say by Victoria and accepted that they were still friends.

18. [134]

    David is Victoria’s husband. They first met in the 1990s. She complained to him shortly thereafter, within the first couple of weeks of meeting each other and certainly within the first six weeks. There was continual complaint by Victoria to him from 1996 until 2013 but the full details did not emerge until 2013.

19. [135]

    The first thing Victoria said to him after they met was “I was sexually abused by my uncles”. She named the uncles as being the applicant and Uncle Frank. It was not a brief conversation. She provided specific detail, but he cannot remember it all. She said she was a child and it had occurred for many years. She told him that it came to a point where she ran away from home. She told him in the first conversation that started when she was elementary school age. She was sitting on his lap and he would touch her and put his hand up her skirt.

20. [136]

    She also told him that Uncle Frank took them to Kings Cross once and watched pornographic videos. He recalled that she spoke about the applicant and Uncle Frank in different ways. He understood that the family still had a current relationship with the applicant which they did not have with Uncle Frank. She repeatedly raised the topic over the years. He recalls that it became clear to him over the years that she had lost her virginity to one of her uncles. She also said that she was physically disciplined by Aunt Donna.

21. [137]

    He met the applicant at family events. He never met Uncle Frank. Although he initially spoke to the applicant at these events, he reached a stage when he could not do it any longer. He explained it this way in his evidence:

22. [138]

    David came to Australia with Victoria again in 2012. After he returned home to the United States, Victoria telephoned him in some distress and told him Uncle Frank had shown up unexpectedly and she found that difficult. After she returned to Florida, she had a nervous breakdown and became very unwell. She saw several doctors. He contacted her mother to come over and look after her. At this time Victoria provided all the details of the abuse and he then understood that what the applicant had done was more serious than what Uncle Frank had done. Victoria said that she had explained to him in this way so that she could still see the applicant and his family as they were very much a part of her family’s life, whereas Uncle Frank was not.

23. [139]

    Mr Rivera first met Victoria when she was in Year 10 and they became close. He could not visit Victoria’s parents’ house because they were strict and did not want him dating her. Around mid-1987 he moved in with Victoria after she ran away from home. She was about 17 or 18 years of age at the stage and he was about 21-22 years. They had a good relationship. When they were living together, she told him that she had been “molested” by her uncles. His evidence was as follows:

24. [140]

    He later stated:

25. [141]

    Mr Hambessis met Yvette in 1986 when she was in Year 11. The following year she complained to him that her Uncle Frank was an “abhorrent individual”. She spoke of inappropriate touching in 1988 (Year 12) and 1989 but mainly about Uncle Frank.

26. [142]

    In about 1990, Yvette complained to her about the applicant in these terms:

27. [143]

    Mr Hambessis knew the applicant and liked him before Yvette disclosed the abuse to him. He found it hard to see the applicant after the disclosure by Yvette. He described it this way:

28. [144]

    Connie is the daughter of Uncle Frank and the first cousin of the complainants.

29. [145]

    Connie recalled an incident that occurred when she was about 12 years old. She remembers her father saying something “horrible” to Victoria. Victoria’s mother then asked her who the comment was directed at and she said that it was directed towards Victoria. She recalls that the complainants’ mother became furious.

30. [146]

    Connie recalled an occasion when Yvette told her about Victoria running into her father (Uncle Frank) at their parents’ shop. After this conversation she spoke to Victoria about it. Victoria told that she had seen Uncle Frank be “beat up” and something triggered her off and she had had a nervous breakdown after returning to the United States. This conversation probably occurred in 2012 or 2013. It was at this stage that Victoria told her about the sexual abuse from the applicant. She told her that the applicant was the main abuser. She also talked about how it would take place while Aunt Donna was watching her TV “soapies”. Victoria also told Connie that the applicant had taken her virginity.

31. [147]

    Mr Dasios dated Yvette between 2005 and 2006 (after her divorce from Mr Hambessis and before her second marriage). Yvette told Mr Dasios that she had been abused as a child.

32. [148]

    Mr Dasios explained that their relationship changed after the first 3 to 6 months because of an event that occurred at her parents’ house. He came up behind her and touched her on the shoulder and she screamed and said, “don’t ever do that again”. He described the reaction as unusual. She did not immediately explain her response but a strain on the relationship developed. He constantly asked her what was wrong and she finally told him in 2005 that she had been molested by both the applicant and Uncle Frank when she was a child. They spoke about this three times. Yvette told him she was between 5 and 12 years of age when the abuse occurred and that it happened at her parents’ home. He explained it this way in his evidence:

33. [149]

    Simon is the current husband of Yvette. They met around Mother’s Day in 2009. A few months after they met Yvette spoke to him about what had happened to her when she was a child. He recalls that they were in the car and she became quiet. He then asked her what was wrong. His evidence continued as follows:

34. [150]

    Simon explained that after hearing this he did not want to be around the applicant. He discussed this with his wife. He observed Yvette speaking to the applicant and hugging and kissing him. He would shake hands with the applicant at these functions. He explained this as follows:

35. [151]

    Simon was present at an occasion when Uncle Frank unexpectedly visited when Yvette was in Australia from America. He described the change in Victoria’s personality as dramatic and that his wife was moving “around 1 million miles an hour” and “couldn’t do anything that was simple”.

36. [152]

    Victoria gave evidence that she complained to her brother Peter when she was sixteen or seventeen years old. The complaint was in terms such as “I have been touched”. Her brother was not called as a witness at the trial.

37. [153]

    She also complained to her cousin Richard in around 1990. She told Richard that his dad had been “touching” her. Her evidence was that Richard was upset and crying and swore. She complained to him again in around 2000 in response to a question from him as to why she did not visit his parents. She told him it was because his father “touches” her. Richard became upset and cried and visited her three days in a row after that.

38. [154]

    Dr Pulman gave expert evidence on the dynamics of child sexual abuse.

39. [155]

    In relation to the reasons why a child may not “cry out or tell a perpetrator to stop”, Ms Pulman said:

40. [156]

    Dr Pulman said that the goal of the grooming process is to “desensitise the child to the process which will eventually become a sexual contact”. Dr Pulman said that because of the grooming process, many children do not understand at the time that the sexual contact is abuse, and that younger children are more likely to be unaware of this.

41. [157]

    In relation to reasons why a child may delay reporting, Dr Pulman gave the following evidence:

42. [158]

    Dr Pulman said that the research is unable to say whether or not certain types of disclosure patterns are either consistent with child sexual abuse or fabrication. Dr Pulman also said that fear, shame and embarrassment may inhibit disclosure, as well as cultural attitudes such as “wanting to be seen as respectful for the family values”.

43. [159]

    In cross-examination, Dr Pulman said that she had never met or spoken to any of the complainants or their family and was unable to comment on whether or not the complainants were telling the truth.

44. [160]

    Mark is the brother of the applicant, Uncle Frank and the complainants’ father. He arrived in Australia with Uncle Frank and his family in 1972. He lived in the premises for a short time in 1977. At that time the applicant was working in a factory. He worked at a garage that was five minutes’ walk away. He could not remember whether Aunt Donna was working at that time, but the complainants’ mother was.

45. [161]

    He recalled that there was a fibro shed at the property. It was about one and a half metres wide and two metres long he did not know whether a car could fit in it. He was shown photographs of the garage and the shed (Exhibits A1, A5-7). He stated that the garage was not there when he lived at the premises and he moved out in 1982. He agreed that the garage could have been built in 1985 or 1986 and that the applicant had knocked down the shed to build the garage.

46. [162]

    DSC Hallim gave evidence that on 23 December 2013 Yvette and Victoria attended Campsie Police Station, with their husbands, seeking advice on an allegation concerning sexual behaviour by the applicant. He said that he spoke to Yvette and Victoria together (but without their husbands) in the presence of Constable Watson. DSC Hallim asked questions and Constable Watson took notes. Yvette and Victoria did not make a statement on that occasion. He confirmed that at the end of the interview Yvette and Victoria said they wanted to consider whether or not to ask police to investigate. He recalled that a week later, on 30 December 2013, Victoria informed him that she and her sister did not wish to proceed. In cross-examination, he agreed that Yvette and Victoria spoke about the general nature of the allegations and the location at which the offences were said to have occurred.

47. [163]

    DSC Chalmers was the officer in charge of the matter (OIC), although she took carriage of the matter after it commenced. She confirmed that she met Yvette and Victoria on 26 May 2014, and that she took a statement from Yvette while another officer took a statement from Victoria. Yvette’s statement was commenced on 27 May 2014 and concluded on 13 August 2014, with several sittings conducted during this time, although not every day. DSC Chalmers recalled conducting a walk-through video at the premises and confirmed that Yvette and Victoria did separate walk-through videos.

48. [164]

    On 5 March 2016, DSC Chalmers and another officer spoke to Olivia who declined to make a statement to police. DSC Chalmers recalled obtaining various school records, including contacting the secretary at St Joseph’s, who was unable to locate any records for Yvette or Victoria. She obtained RMS records for the complainants’ parents and records from the Registry of Births, Deaths and Marriages. She confirmed that Land and Property records were obtained for the premises but that police were unable to obtain information on renovations or additions to the premises.

The Defence Case

1. [165]

   The applicant gave evidence. His evidence can be summarised as follows.

2. [166]

   The applicant said that his family and the complainants’ family moved into the premises in June or July 1976. He said that when they first moved in, there was only a shed in the backyard, not big enough to drive a car into. He said there was no garage on the property when they moved in, and that this was the case until 1984 or 1985 when he built the garage.

3. [167]

   The applicant said that he worked while the two families lived at the premises. He said that the complainants’ mother worked. He could not recall whether the complainants’ father worked. He said that his wife did not work during this period, and that his wife looked after the complainants when their mother was working. In cross-examination, he confirmed that his wife would look after the complainants and accepted that he also took care of them sometimes. He agreed that there were times when he would be at home with his wife during the week, when he did not have anything on.

4. [168]

   In relation to his work history while the two families lived at the premises, the applicant said that he started working at a garage in Campsie in 1976, and worked there for nearly two years, working 8-hour days from 8:30am. He said that he then worked at Liverpool Wrecking Yard from 1987, which he then corrected to 1978. He said he worked 8-hour days from 8:30 each day and worked there for about four months before starting a job in Peakhurst as a mechanic. In Peakhurst, he worked 8-hour days from 8:30 for about eight months. He said that between the jobs in Liverpool and Peakhurst he had a couple of days off. After leaving Peakhurst, he started working at British Paints in 1979, and then stopped working in 1980 for two years due to a back injury. In cross-examination he accepted that it was possible he had more than a couple of days off in between jobs during this period but said that he did not remember. He said that he worked the night shift at British Paints in mid-1980.

5. [169]

   In relation to his wife’s work history, he confirmed that she did not work while the two families lived at the premises. He said that she started working at the bakery after the complainants’ family left the premises. He recalled that she worked at a factory with the complainants’ mother. He did not know whether she volunteered at the Salvation Army.

6. [170]

   The applicant recalled that the complainants’ family left the premises in 1979. He said that Yvette and Victoria would sometimes visit his house after this but denied ever being the only one at home caring for the children. He said that he remembered they would come for sleepovers sometimes but that he was working during the night.

7. [171]

   Regarding the allegations, the applicant denied ever touching the complainants inappropriately, or ever having sexual contact with them. He said that he treated his brother’s children as his own, that he played with them, but denied ever being alone with the complainants in the bedroom or bathroom. He denied ever watching pornographic videos or magazines or ever showing them to the children.

8. [172]

   In cross-examination, the applicant denied ever telling Victoria that she was cute or pretty, or ever speaking to the children about what they were wearing. He said that the complainants never sat on his lap, even for anything innocent. He said the extent of conversation while the two families lived together was “hello uncle, how are you, how’s your health”. He denied ever telling Victoria that her father would believe him as they were brothers. He agreed that he loved Yvette like one of his own children but denied telling her that he loved her while they lived together. The applicant denied undertaking acts that became more sexual over time, or making the girls think what he was doing was normal and fun.

9. [173]

   The applicant said that after the complainants’ family left the premises, the children would still come for visits, and that he would see them after work and on the weekends. He agreed that his brother’s children would come over to his place while their parents were working at the takeaway shop and agreed that he was sometimes home when this happened. He maintained that he only saw the complainants once, twice, or three times after their family left the premises. He disagreed with the proposition that Victoria came for sleepovers almost every weekend or a couple of times a month.

10. [174]

    The applicant’s wife Donna gave evidence that the two families moved into the premises at the end of 1976. She said that they bought the house together and never rented it. Her evidence was that there was no garage at the premises when they first moved in but there was a small shed. She said that no one could go in the shed as it was partly broken and infested with rats.

11. [175]

    Aunt Donna’s evidence was that during the time the two families lived at the premises, the applicant was working, the complainants’ father was not working (due to injury), the complainants’ mother was working, and she was not working. She started working at the clothing factory with the complainants’ mother in late 1979 after the complainants’ family moved out of the premises. She started working in 1979 after Richard started pre-school, and that this was after the complainants’ family moved out of the premises. She also worked at the bakery sometimes, starting in 1988 or 1989. While the two families were living together, when the children got home “we” looked after them. She did not say who “we” were.

12. [176]

    Her evidence was that she never noticed any bad behaviour by the applicant towards the complainants while they were living at the premises. Nor did she ever see the applicant alone with his nieces in the bedroom or bathroom. She agreed that she would sometimes hit the kids if they were misbehaving and she recalled hitting Victoria a couple of times.

13. [177]

    Aunt Donna denied being told about the allegations by Victoria when she was 16 or 18 years old. Her evidence was that she first heard about the allegations in 2013. Her evidence was that the complainants did not come to visit when their father was on bad terms with the applicant. They started coming over again when the brothers reconciled. She said that her nieces visited the house alone when they were grown up and working. She recalled Victoria sleeping over at their house a couple of times but could not recall whether Yvette did.

14. [178]

    Aunt Donna recalled that on one occasion after 2013 she had a conversation with Yvette in which Yvette talked about Uncle Frank. She said that she asked Yvette whether the applicant or Mark had done anything and Yvette said “no way, my uncle was a second dad to me”. She said that Yvette’s husband was in the kitchen at this point. She recalled a calendar with a picture of a girl in a swimsuit on it. She said it was given to her in 1988 or 1989 by the owner of the bakery she worked in at the time. She said they did not want to put it in the house, so they put it in the garage and the photos were covered as soon as it was hung.

15. [179]

    In cross-examination, Aunt Donna agreed that the applicant did sometimes work on cars in the backyard of the premises while the two families were living together. Sometimes this happened over the weekend, but the applicant was working during the week most of the time. She agreed that he would have a bit of a break between jobs. Sometimes she took Yvette or Victoria to the Salvation Army shop with her on a Saturday. She agreed that she sometimes watched “The Bold and the Beautiful”. She did not accept that she worked before 1979.

16. [180]

    Aunt Donna denied ever seeing Yvette hiding under the bed covers with the applicant on one occasion. She also disagreed that Victoria was never dropped off by herself at the premises when she was aged 16-18. Her evidence was that Victoria only came over for sleepovers with Olivia when she was over 20 years old.

17. [181]

    The applicant’s daughter Olivia gave evidence that while the two families lived together at the premises her father worked as a mechanic and worked at a garage. She said that the complainants’ mother worked at a factory up the road. She could not recall whether the complainants’ father worked at that time. She recalled that the applicant was not home a lot to spend time with them and that he was not the most affectionate person, although he would play with them when he had time.

18. [182]

    Olivia’s evidence was that there was no garage at the premises when she was young but that one was built when she was a teenager. She could not recall a shed in the backyard. She denied ever seeing the applicant watch pornography in the house or in front of the children. She denied engaging in any sexual act with Victoria when they were children. She denied that Victoria ever licked her vagina or that she ever licked Victoria’s vagina. She never saw or heard the applicant say anything to her about anything to do with Victoria and sexual acts.

19. [183]

    Olivia said that after the complainants’ family left the premises, the complainants would sometimes come over on weekends and they would sometimes visit their cousins on weekends. She said it may not have been every weekend, but they saw her cousins on weekends. She also attended Arabic school with her cousins on the weekends and saw them then.

20. [184]

    She said her cousins would sometimes come over for sleepovers when they were children. She recalled that Victoria visited more often, and they were a bit closer. Olivia said Victoria would sleep in her bedroom and her mother would sleep either with the applicant or on the couch. She denied that the applicant ever knocked on the door when Victoria slept over.

21. [185]

    Olivia said that Victoria never told her about the allegations in the 1990s and that she was first told by Victoria in 2013. She recalled a conversation between Yvette, Yvette’s husband, and her mother, Donna, in which Donna asked if the applicant or Mark had ever done anything to her and Yvette said “no way, never, they’re like a father to me”.

22. [186]

    The applicant’s son Richard gave evidence. He did not remember the time when the two families lived together at the premises. He recalled that there was a garage at the premises that was built when he was in Year 1 or Year 2. He said that when he was growing up, Yvette and Victoria would come over to his house to visit, but he could not recall how often and said he did not remember them sleeping over. He said he never noticed any bad behaviour from his father towards his cousins.

23. [187]

    He first found out about the allegations in 2013 and denied having been told anything by Victoria in the 1990s at her housewarming in Balmain, although he recalled attending this event. He also denied having been told by Victoria in 2010 or 2011.

Closing addresses

1. [188]

   In the Crown closing address, the evidence of the complainants regarding the garage counts was referred to in this way:

2. [189]

   In relation to the counts that were said to have occurred at the premises before the families in fact lived there, the Crown said the following:

3. [190]

   A significant proportion of the closing address on behalf of the applicant at trial focussed on the fact that the garage was not in existence at the time that several of the offences were alleged to have occurred. In that regard, the following was put to the jury by counsel:

4. [191]

   Reliance was placed on other discrepancies in the evidence such as: when the families moved into the premises; when the complainants’ family moved out of those premises; the applicant’s working history; the complainants’ father’s working history, the complainants’ mother’s working history; Aunt Donna’s working history and how the complainants travelled to and from school.

5. [192]

   It was suggested that the explanation for the delay in the complaint to the complainants’ mother was implausible given that they had both been able to complain about Uncle Frank.

6. [193]

   The defence case was that once it was accepted that the juvenile counts and the garage counts could not stand then the Crown case fell like a “pack of cards” or “dominos”. The closing address concluded with defence counsel raising these questions for the jury’s consideration:

   1. (1)

      How could it be that none of the other family members noticed anything untoward despite the Crown case being that this was occurring very regularly over the space of 15 years?

   2. (2)

      Why did the complainants wait so long to tell their parents?

   3. (3)

      Why did Victoria and Yvette complain to their mother about Uncle Frank in the early 1980s and not about the applicant until much more recently?

   4. (4)

      Why does Victoria say that late into her teens she kept coming to sleep over at the applicant’s house despite saying that she was sexually abused on most weekends she slept there? How does it make sense that she kept on going back?

   5. (5)

      How could it be that these complainants are saying they were sexually abused in a garage that the evidence suggests didn't exist?

   6. (6)

      Why have they both changed their versions about Aunt Donna’s working story?

   7. (7)

      Why are there so many inconsistencies between the evidence of the complainants and their father?

   8. (8)

      How does it make sense that a three year old could do the dishes?

7. [194]

   It was put to the jury that the answer to these questions is that the complainants were lying and the applicant is innocent of all charges.

The summing up

1. [195]

   No complaint is made about any of the legal directions given by the trial judge.

2. [196]

   His Honour repeated much of the defence submissions including the “domino effect” aspect of the argument concerning the garage as follows:

Ground 1

1. [197]

   The applicant’s claim that the verdicts are unreasonable is twofold.

2. [198]

   The primary claim is that the verdicts are factually inconsistent and unreasonable on that basis. The secondary claim is that the verdicts are all otherwise unreasonable.

3. [199]

   It was submitted that the difficulties with the complainants’ evidence in support of the four garage counts were so significant that the jury ought to have concluded that they were lying and acquitted the applicant on all counts. In that sense it was submitted that the verdicts are all unreasonable because they do not logically and reasonably sit with the acquittals on the nine counts. If that argument was unsuccessful, then the alternate argument is that they are unreasonable in that they cannot be supported by the evidence in any event.

4. [200]

   As to the primary argument, in both written and oral submissions emphasis was placed on the domino effect argument that was put to the jury at trial. It was submitted that the complainants’ evidence about the garage was so “precise and so clear” that there was no room for mistake. It was submitted that they could not have innocently got the garage counts wrong thus they must have been lying.

5. [201]

   It was noted that the trial judge prevented the Crown Prosecutor from suggesting to the jury that they could have been talking about another shed that was in the backyard at that time. Thus, the Crown Prosecutor at trial did not suggest to the jury that the complainants were confused as between the shed and the garage.

6. [202]

   It was submitted in this Court that the jury’s attention had been drawn to the following difficulties with the complainants’ allegations concerning the garage counts in the defence closing address:

   1. (1)

      Both complainants described the garage as being in the back left-hand corner of the block;

   2. (2)

      Both complainants drew a diagram of the garage not the shed;

   3. (3)

      Victoria described going into the garage when she was six years old and the applicant was working on cars. She described the garage in detail. It was submitted that her evidence was “crystal clear” in this regard;

   4. (4)

      Similarly, in relation to the evidence of Yvette, her evidence was that there was only one garage, it was a roller door garage and that the applicant was working on his car when she was called in on the occasion of one of the allegations; and

   5. (5)

      Both complainants gave vivid accounts of what they say happened to them in the garage, that was relied upon. This included what they were wearing, what the applicant was wearing as well as the circumstances of the alleged sexual act.

7. [203]

   In addition to the alleged inconsistency in the jury verdicts, the applicant relied on shortcomings in the complainants’ evidence to contend that all the verdicts were unreasonable. It was submitted that the detail in which the complainants describe the alleged abuse in relation to the counts upon which the applicant was convicted was meaningless when the evidence relating to the garage counts demonstrates that they both were capable of “detailed and vivid lies”.

8. [204]

   It was argued before the jury that if the complainants were capable of such vivid detailed lies, they were also capable of detailed lies in relation to all the complaint witnesses that they spoke to over the years. By that process of reasoning, it was argued that no amount of complaint evidence could overcome the problems caused to the prosecution case by the complainants’ lies regarding the garage.

9. [205]

   In oral submissions in this Court, senior counsel for the applicant placed reliance upon the structure of the closing address and the repetition by the trial judge of the “domino effect” argument not only in relation to the garage but also the evidence about what hours and when Aunt Donna worked. The nub of the oral submissions was that it was illogical that the jury could acquit on, inter alia, the garage counts and then not extend the doubt to the remaining counts.

10. [206]

    As for the remaining credit issues, the applicant argued that the prosecution case could not reach the requisite standard of proof in light of the want of credibility of the complainants in relation to the following aspects of the evidence: when the families of the complainants and the applicant moved into the premises; when the family of the complainants moved out of the premises; the applicant’s working history; the complainants’ father’s working history; the complainants’ mother’s working history; how the complainants travelled to and from school; and Aunt Donna’s working history.

11. [207]

    The applicant placed weight on the evidence of what hours Aunt Donna worked at the time that the complainants lived at the premises. It was submitted that the complainants lied about this issue to create the impression that the applicant had the opportunity to sexually assault them in the manner alleged. It was further submitted that both complainants changed their evidence about Aunt Donna’s working history in the same way. Yvette gave evidence before the jury that Aunt Donna worked while they all lived together at the premises. There was nothing in her police statement on this topic, but she gave evidence at the aborted September 2018 trial that Aunt Donna did not work while they lived at the premises. Victoria gave evidence that Aunt Donna worked at a bakery early in the morning up until 8am and sometimes at the Salvation Army shop and at other times at a clothing factory with their mother. This differed to her police statement. The complainants’ mother gave evidence that she did tell police that Aunt Donna worked.

12. [208]

    The applicant relied upon the inconsistencies in this evidence as indicating collusion or fabrication by the complainants and their mother in an attempt to increase the window of opportunity in which the offences could have occurred.

13. [209]

    The applicant also submitted that the complainants gave inaccurate evidence as to their father’s work history. The complainants gave evidence that their father was “always working and not around very much” while the two families lived at the premises. At trial, their father gave evidence that he was not working for approximately two and a half of the three years in which his family lived at the premises. The applicant submitted that this inconsistency indicates collusion and an attempt to increase the opportunity for the offences to occur.

14. [210]

    Another credibility issue was said to arise from Victoria’s evidence that she took an overdose of Panadol and was admitted to Canterbury Hospital because of abuse suffered at the hands of the applicant. It was submitted that this raised a credibility issue because although Victoria recalled the suicide attempt to be in 1986, the medical records are dated 8 February 1989 (Exhibit A8). The hospital notes refer to a domestic argument and make no mention of any sexual abuse.

15. [211]

    It was submitted that Victoria’s evidence that she recalled the incitement counts because Olivia was in the kitchen washing the dishes at the time was so implausible, given that Olivia was only three years old at the time, as to diminish Victoria’s credibility.

16. [212]

    A significant attack was made in relation to both victims as to why they delayed in complaint to their parents. The applicant relied upon the fact that both complainants were able to complain to their mother about Uncle Frank. The question was posed: why were they not able to complain about the applicant as well? It was submitted that the answer was because the allegations about the applicant are fabricated.

17. [213]

    The Crown submitted that the acquittals could be explained and that the significance of them was not, as was contended by the applicant, such that the jury ought to have had a reasonable doubt on all counts.

18. [214]

    The Crown did not accept that the fact that both complainants were severally confused about the garage counts proved that they were lying about having been sexually abused. It was noted that in the defence closing address at trial it was squarely put to the jury that each complainant had proved to have been a liar. It was submitted that it was open to the jury to reject the applicant’s contention that both complainants were lying about the garage. In those circumstances the acquittals on those counts can be reconciled. It was submitted that the applicant’s “domino” submission could only operate if the jury first accepted that the complainants were lying about the offences committed within the garage.

19. [215]

    It was acknowledged that both complainants provided a significant amount of detail about being sexually assaulted within the garage. It was submitted that a mistake about the fact that the garage was brick and had roller doors can reveal how a change in a structure can so strongly affect memory. In any event, only four of the events were alleged to have occurred in the garage, and the garage itself lay on the periphery of what happened, which was the sexual assaults themselves.

20. [216]

    As for the question of unreasonableness generally, the Crown addressed each of the individual discrepancies relied upon in the applicant’s submissions separately. I shall consider them below in my consideration.

Consideration

1. [217]

   Section s 6(1) of the Criminal Appeal Act 1912 (NSW) relevantly provides that this Court shall allow an appeal against conviction if it is of the opinion that the verdict should be set aside on the ground that it is “unreasonable, or cannot be supported, having regard to the evidence”. The applicant’s contention is that this Court should set all convictions aside on this basis.

2. [218]

   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)

3. [219]

   The relevant principles applicable when the claim of unreasonableness is based on alleged inconsistency in the verdicts is as stated by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 366-367; [1996] HCA 35 as follows: (footnotes omitted)

4. [220]

   In Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 the High Court (per Brennan CJ, Gaudron, McHugh and Gummow JJ) was satisfied that there was a factual inconsistency between the verdicts. In that matter the appellant was charged with three offences of sexual intercourse with a female child. The jury convicted him on two out of the three counts. On the facts in that matter the High Court set aside the convictions on the basis that the credibility issues which explained the acquittal should have also applied to the other two counts upon which the appellant was convicted.

5. [221]

   Subsequently in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (“MFA”), Gleeson CJ, Hayne and Callinan JJ observed the following in relation to the reasons why a jury may arrive at a verdict of acquittal [at 34]:

6. [222]

   As to the role played by the jury, McHugh, Gummow and Kirby JJ observed this in MFA at [96]:

7. [223]

   Simpson J (as her Honour then was) considered the application of these principles in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151. In a judgment with which McClellan CJ at CL and Latham J agreed, her Honour considered Jones v The Queen and observed at [97] that in that case there was “no rational explanation” on the examination of the evidence for the different verdicts. Her Honour went on to observe at [128] and [130]:

8. [224]

   The High Court re-stated the applicable test when assessing whether a verdict or verdicts are unreasonable 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. [225]

   The principles were stated again more recently in Pell v The Queen [2020] HCA 12; 94 ALJR 394.

10. [226]

    In the present appeal the applicant placed reliance on the decision in Jones v The Queen, but that decision was decided on its facts. It is not authority for the proposition that a doubt the jury has as to the credibility of a complainant on one count inevitably means that such a doubt extends to all the counts on the indictment. This is an important principle and has been repeatedly stated. Payne JA recently summarised some of the decisions addressing this issue in Kim v R [2020] NSWCCA 288 as follows at [31]-[36]:

11. [227]

    With these principles in mind, I turn to consider the applicant’s contention that the convictions are unreasonable.

12. [228]

    The jury acquitted the applicant on nine counts. It was common ground that these acquittals fell into two categories.

13. [229]

    Counts 1, 2, 3, 4 and 10 (the juvenile counts) were alleged by both complainants to have occurred between 1974 and 1975 at the premises in circumstances where they did not move into the premises until after July 1976. The acquittals on these counts are explicable on this basis.

14. [230]

    Counts 13, 17, 18 and 20 were alleged by both complainants to have occurred in a garage at the premises whilst the two families lived there together between 1976 and about 1980. The evidence at trial was that the garage had not been built until after they moved out, most likely in about 1985. The acquittals on these counts are explicable on this basis.

15. [231]

    The nub of the applicant’s argument is that the doubts the jury had in relation to the counts upon which he was acquitted necessarily should have extended to the remaining counts. The applicant’s argument in this Court was put in precisely the same way as it was put to the jury at the trial. I have extracted some of it above at [190]. The “domino” effect argument urged upon the jury was to the effect that the only available inference from the fact that both complainants were wrong about the garage (leading to acquittals on counts 13, 17, 18 and 20) is that they have both colluded with each other to fabricate all of the allegations against the applicant. The difficulty with the “domino effect” argument is that it only applies if collusion and fabrication between the two complainants is the only explanation for them both being wrong about the garage. I am not satisfied that this is the case.

16. [232]

    Having regard to all of the evidence at trial, it was open to the jury to be satisfied to the criminal standard that both complainants were the victims of child sexual abuse at the hands of the applicant whilst also accepting that both complainants were mistaken about the timing and circumstances of the nine counts upon which he was acquitted. That conclusion is available having regard to the evidence at trial. That evidence included: the compelling evidence of both complainants about the grooming, escalation and sexual assaults on them, many of which carried the proverbial “ring of truth”; the fact that the evidence of each count and each complainant was cross-admissible as tendency evidence and the jury was directed accordingly; and the compelling nature of the complaint evidence. Both complainants told their boyfriends and husbands about the child sexual abuse shortly after commencing a relationship with each of them. Both complainants also confided in their close girlfriends and a maternal aunt over the years.

17. [233]

    The high point of the applicant’s argument on inconsistency is that although it is to be accepted that one complainant could be wrong about whether a certain offence took place in a garage, the improbability of two separate complainants being wrong about the same details can only be explained by collusion. On this issue, reliance was placed on the fact that both complainants stated in cross-examination that they had not discussed their evidence with the other. The applicant argued that if the two women had never discussed their evidence it was improbable that they could be both be wrong on the garage counts.

18. [234]

    Victoria’s evidence was that before she and Yvette went to the police station in 2013, they discussed why they were going there (to see what their rights were) and they both spoke to the police officer together. She stated that they did not talk to one another while they were preparing their statements and that she has never spoken to her sister about the evidence she was to give at the trial. Nor had she read her sister’s statement. She gave evidence that when they were young and “going through this stuff” she did talk to her sister about it. Her evidence was that she never went into any detail with Yvette. She had not spoken to Yvette since they decided to proceed because the police asked both of them not to discuss their evidence.

19. [235]

    Yvette’s evidence was that she had never spoken to her sister about her statement to police, either before or after she signed it. Her evidence was that when they were both young Victoria disclosed to her that it was happening to her too. They never talked about the “details”.

20. [236]

    Consistent with the evidence of Victoria and Yvette that they had disclosed to each other the sexual assaults by the applicant, nearly all the complaint witnesses describe the respective complainant telling them over the years that the abuse happened to both complainants.

21. [237]

    Having regard to the evidence at trial, it would have been open to the jury to be satisfied that the two complainants discussed the sexual assaults at the hands of the applicant when they were very young and in doing so shared some of their memories and experiences, but no details. Given that the abuse was ongoing over many years rather than isolated, it is not surprising that where specific acts took place rather than the circumstances of the acts themselves could become vaguer over the years. The applicant was a mechanic who worked on cars. Both complainants have distinct memories of that fact. One of the complainants may have (mistakenly) come to believe that of the numerous ongoing assaults over the years, some took place in the garage. This could have been mentioned some time to her sister and over time her sister may have come to believe that too. This could well explain why they both made the same mistake in relation to their memories about the garage. This does not necessarily mean that they have both colluded to fabricate all the allegations.

22. [238]

    The complainants were not questioned about whether they discussed the allegations with each other as children in the 1970s or 1980s. There are sound forensic reasons why counsel for the applicant would not have done so. Such questioning would have reinforced the unlikeliness of two young children discussing their ongoing sexual abuse as children if in fact it had not occurred. It would also have put into stark relief the complaint evidence and the unlikelihood that the two complainants had been concocting these false allegations together for the last 40 years. It was open to the jury to find that they had discussed the abuse as children and had both separately convinced themselves that some of the events took place in the garage.

23. [239]

    Applying the test of logic and reasonableness, I am satisfied that there is no factual inconsistency between the verdicts of acquittal and the verdicts of guilt. I am not satisfied that the only explanation for the acquittals was satisfaction on the part of the jury that the two complainants were lying rather than mistaken.

24. [240]

    There will be cases where the only explanation for the acquittals is the credibility of the complainant(s). In Collins v R [2020] NSWCCA 198, this Court recently considered a ground contending that the verdicts in a child sexual assault matter were unreasonable because the only explanation for the acquittals was the credibility of the complainant. Meagher JA, with whom Wilson J and I agreed, examined all of the evidence led at trial and concluded at [87]:

25. [241]

    That is not this case. For the reasons I have provided I am not satisfied that the verdicts are unreasonable based on inconsistency with the acquittals.

26. [242]

    I turn then to consider the second basis upon which the applicant contends that the verdicts are unreasonable. I have reviewed the whole of the evidence in order to determine whether I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on all counts upon which he was convicted.

27. [243]

    I have already outlined the discrepancies in the evidence relied upon by the applicant, such as: when the families of the complainants and the applicant moved into the premises; when the family of the complainants moved out of the premises; the applicant’s working history; the complainants’ father’s working history; the complainants’ mother’s working history; how the complainants travelled to and from school; and Aunt Donna’s working history.

28. [244]

    I am satisfied that these discrepancies concern relatively peripheral matters. Most of them concern the opportunity the applicant had to commit the offences. The applicant’s submission was that the complainants (falsely) maximised the time that the applicant was said to be at home and minimised the time that Aunt Donna was said to be home to explain how the applicant had the opportunity to commit the offences. I make three observations in relation to that submission.

29. [245]

    First, it is hardly surprising that children who were six and eight years old in 1976 could be wrong about precisely what jobs the four adults in the house might have had from time to time, particularly in circumstances where the parents appeared to be changing jobs reasonably regularly.

30. [246]

    Secondly, most of the offences were said to have taken place in a bathroom or bedroom with the door closed. The evidence of the complainants was that the applicant would always check outside before he let each of them leave and it was made clear to them that it was their secret.

31. [247]

    Thirdly, it is common for child sexual assaults to occur in a family home with other family members present in the home. In that context a submission that offences could not have occurred because there were other people present on the premises is not necessarily a persuasive one; it will depend on the circumstances of each case.

32. [248]

    The applicant also placed significant emphasis on the evidence that the complainants did not tell their parents what the applicant was alleged to be doing to them, yet they were able to tell their mother about Uncle Frank. The question was posed: if they could complain about Uncle Frank when they were children then why, if the applicant had in fact been abusing them as alleged, could they not also complain about the applicant? Again, I make three observations about that submission.

33. [249]

    First, the complainants gave evidence of grooming behaviour by the applicant. They liked him. He made them feel special. It was not until they grew older that they realised what he was doing was wrong. Uncle Frank on the other hand was rude, aggressive and they did not have the same emotional connection to him and his abusive behaviour.

34. [250]

    Secondly, the abuse at the hands of the applicant took place in the applicant’s home whereas the abuse at the hands of Uncle Frank took place in their own home after they moved out of the shared premises. This provided a different context and dynamic.

35. [251]

    Thirdly, the evidence is that the complainants’ family were very close to the applicant’s family whereas they were not close to Uncle Frank. The two families were so close that Victoria would go over to the premises for a sleepover with her cousin even though the applicant was there. As the years went by the family lost contact with Uncle Frank but continued to have close contact with the applicant.

36. [252]

    I am satisfied that the complainants’ evidence that each of them did not complain so that their parents could still socialise with the applicant and his family is understandable in the context of the family dynamic. The husbands of both complainants gave evidence at trial that they found this particularly difficult but complied with their spouses’ wishes to keep it all a secret. The inference is available that the allegations may have remained a secret had not Victoria’s nervous breakdown and treatment brought matters to a head in 2012. There was also the evidence of Dr Pulman that child victims may delay the complaint of sexual abuse for many years.

37. [253]

    I am unable to accept the applicant’s submission that it is “incredible” that Victoria would return to the premises for sleepovers with Olivia if in fact she had been sexually abused by the applicant there. Her evidence was to the effect that the sexual abuse had become normalised in her life by that time. In any event, as this Court has observed, it is not helpful to make any assumptions as to how a victim of sexual assault might behave in given circumstances. As I observed in Xu v R [2019] NSWCCA 178 at [92] in the context of why a male victim of sexual assault returned to the house of his assailant a week later:

38. [254]

    A similar caution was raised in Maughan v R [2020] NSWCCA 51 by Ierace J (with whom R A Hulme and Adamson JJ agreed) when his Honour observed at [99]:

39. [255]

    Adamson J agreed with his Honour in Maughan v R and observed at [13]:

40. [256]

    R A Hulme J adopted both of these observations in Maughan v R at [2] as follows:

41. [257]

    In the present matter the two complainants migrated from Syria when they were both very young children in the 1970s. Their parents were very strict (as recounted in the evidence of George Rivera) and were also close to the applicant’s family. Not only was awareness and education about child sexual assault very different in the 1970s, the complainants came from a different cultural background and had English as a second language. For my part, I certainly do not feel able to make any helpful assessment as how such a person would respond to the abuse described by both complainants.

42. [258]

    As I have stated above, there was complaint evidence which supported the Crown case. A common feature of this evidence is that the complainants did not want their secret made public.

43. [259]

    As for the complaint that the mother and the complainants had colluded to change their evidence as to when and for how long Aunt Donna worked outside the home, even if I accepted that submission, it would not be such as to raise a reasonable doubt as to the applicant’s guilt given all of the other evidence in the trial.

44. [260]

    The nub of the applicant’s contention that the verdicts are unreasonable is that there are simply too many discrepancies in their evidence. I have considered this submission and the significance of the discrepancies relied upon by the applicant. In doing so I have had regard to the observations of Leeming JA in Cabot (a pseudonym) v R [2018] NSWCCA 265 (at [59]-[60]) and I adopt them as apposite in the present case:

45. [261]

    Juries play a vital role in all criminal trials but particularly so in sexual assault trials which rely so heavily on whether the complainant is to be believed. As McCallum J (as her Honour then was) observed in Hawi v R [2014] NSWCCA 83 at [480]:

46. [262]

    Having reviewed the whole of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty on all counts upon which he was convicted.

47. [263]

    I would not uphold ground 1.

Ground 2(a): Hypnosis and EMDR therapy

1. [264]

   The applicant submits that the trial judge erred in failing to exclude all of Victoria’s evidence under s 137 of the Evidence Act 1995 (NSW), either on the basis that she had undergone “hypnosis” prior to giving her police statements, or that she had undergone Eye Movement Desensitisation Reprocessing (“EMDR”) therapy after giving her police statements and before the trial.

2. [265]

   The applicant contended that Victoria had undergone hypnosis prior to going to police. This was denied by Victoria.

3. [266]

   The “hypnosis” issue arose when Yvette attempted to telephone the applicant in 2012 to make a “pretext” call. She sought to engage the applicant in a discussion about the alleged sexual assaults. As it happened Aunt Donna answered the phone and Yvette did not ultimately get to speak to the applicant. The conversation between Yvette and Aunt Donna was in Arabic. Most of the conversation involved Aunt Donna querying why the allegations had come up now. Yvette explains to her aunt that Victoria got sick and the allegations followed that. The following exchange took place at the end of the recorded telephone call:

4. [267]

   The conversation was translated into English, with the Arabic word “maghnatees” translated as “hypnotised”.

5. [268]

   Victoria gave evidence in September 2018 that she had never undergone hypnosis therapy and nor had she told her mother or her sister that she had.

6. [269]

   The complainants’ mother gave evidence on the voir dire in September 2018 that Victoria had never mentioned to her that she had been hypnotised. She stated that she was aware that Victoria had been seeking help, and that she previously believed the word “manghnatees” referred to a female psychiatrist, rather than hypnosis therapy.

7. [270]

   Yvette made a statement to police on 17 September 2018 in which she denied that she was “ever certain or had any knowledge that Victoria was hypnotised”. She stated that the only thing that may have led her to say that was that she had heard her mother mention in a telephone conversation words to the effect of “[w]hen [Victoria] was sick, a psychiatrist assessed her and said that she was abused, and then she told them everything”. Yvette stated that she had never had a conversation with Victoria about being hypnotised and had never been told that by anyone.

8. [271]

   Yvette gave evidence on the voir dire before Armitage DCJ stating that she had not been told that her sister had been hypnotised and had not meant to communicate hypnotism by use of the word “maghnatees” in the telephone conversation with her Aunt Donna. She believed the word “had to do with psychiatrists”.

9. [272]

   The applicant’s daughter and the complainants’ cousin, Olivia, gave evidence in September 2018 that she received a phone call from Victoria in mid-2013 in which Victoria told her that “she had undergone hypnosis and that’s how she knew what had happened with my dad and she has proof, on paper, of the hypnosis”.

10. [273]

    Victoria gave evidence that she began EMDR therapy in June 2016 and did approximately six sessions in total over the next two years. She explained that the EMDR sessions occurred after she had given her statements to police (signed on 9 July 2014 and 17 November 2015) and received other types of counselling. Her evidence as to the procedure was that:

11. [274]

    A 2015 expert report on EMDR authored by Mr Graham Taylor was tendered on the voir dire. Mr Taylor gave evidence about the process of EMDR and its effects on a patient’s memory. He explained the goals of EMDR as “the alleviation of presenting symptoms, a decrease or elimination of distress from the disturbing memory, improved view of self, relief from body disturbance, and resolution of present and anticipated triggers”. Common outcomes include the memory being “harder to recall… further away… [and] less detailed”. It is possible that a client who has had EMDR “may not have the level of detail” that they had before and for this reason it is important to have a prior record such as a police statement taken before therapy.

12. [275]

    Mr Taylor’s evidence was that while it was “possible” for EMDR to create new memories, EMDR was not specifically used for the purpose of memory retrieval. Mr Taylor also stated that, for the purposes of a client giving evidence in court, it was important that detailed records be kept, to show that the work did not include procedures “that might lead to the formation of false memories”. In relation to Victoria’s treatment, Mr Taylor indicated that “very scant” details were available in this respect.

13. [276]

    The therapist who administered the EMDR treatment to Victoria was Ms Schaus. She provided a letter confirming that the treatments were performed but she declined to give evidence by AVL (Ms Schaus practises in the United States and Victoria’s treatment was performed there). Ms Schaus stated in her letter that Victoria “was always aware of being in the present and was never in an altered state”.

14. [277]

    On 17 June 2019, Weber SC DCJ refused the application to exclude the entirety of Victoria’s evidence under s 137 of the Evidence Act 1995 (NSW) on either basis relied upon by the applicant. He published his reasons that day.

15. [278]

    The trial judge noted at the outset that if the applicant could not establish that Victoria had undergone hypnotherapy prior to giving her statement to police, the argument would not be made out. His Honour considered the evidence on the voir dire (summarised above) and found that:

16. [279]

    His Honour thus rejected the hypnosis ground because of a lack of evidence.

17. [280]

    In applying the s 137 test, his Honour found that Victoria’s evidence was of “considerable, indeed overwhelming, probative value”. His Honour summarised the applicant’s submissions on unfair prejudice as follows:

18. [281]

    His Honour accepted the Crown submission that while these factors may amount to a forensic disadvantage to the accused, they would not cause unfair prejudice, for example “by provoking some irrational, emotional, or illogical response, or by giving the evidence more weight than it truly deserves”: R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [116] per Wood CJ at CL.

19. [282]

    His Honour found that, if Victoria’s “memory in the witness box seems to be superior to her [police] statements, this no doubt will provide a fertile ground for cross-examination, and a matter to be considered by the jury”. His Honour also considered that, if the issue did arise, it could be dealt with by directions pursuant to s 165 of the Evidence Act.

20. [283]

    The applicant submitted that “the evidence considered by the trial judge established that Victoria was hypnotised prior to her giving her statements to police and that on that basis her evidence should have been excluded.” It was submitted that Victoria’s evidence about hypnosis therapy was “unconvincing, internally inconsistent and generally evasive on the question of hypnosis”.

21. [284]

    It was similarly submitted that the complainants’ mother’s evidence was “evasive” and her evidence that she did not understand the Arabic term “maghnatees” was “at least disingenuous.”

22. [285]

    The applicant submitted that this Court should find that Victoria was in fact hypnotised prior to giving her police statements and thus her evidence should have been excluded.

23. [286]

    The applicant made the same submissions in this Court as were made before the trial judge. The application was based on the identification of several forensic disadvantages the applicant would suffer if Victoria was permitted to give evidence as follows:

    1. (1)

       EMDR therapy is associated with memory, has the effect of interfering with memory, and risks creating new memories or distorting existing memories;

    2. (2)

       There is very little evidence as to what occurred during the therapy, making it impossible for the defence to test the integrity of the process;

    3. (3)

       The applicant was denied the opportunity to cross-examine the EMDR therapist on issues including her qualifications, experience, and the manner in which the EMDR therapy was conducted;

    4. (4)

       That the hypnosis evidence should have created doubt as to whether EMDR was undertaken before Victoria made her statements to police, and that this raised issues of credibility and reliability; and

    5. (5)

       That the applicant was precluded from ascertaining the effects of the EMDR therapy on Victoria’s memory.

24. [287]

    The applicant cited the Office of the Director of Public Prosecutions (ODPP) Guidelines (Guideline 27) on hypnosis and EMDR which stipulate that: the evidence must be limited to matters that the witness has recalled or related prior to the hypnosis or EMDR; the original recollection should be preserved in written, audio, or video recorded form; and that the hypnosis or EMDR should be video recorded and performed by an independent person.

25. [288]

    The applicant also relied on the decisions in R v Jenkyns (1993) 32 NSWLR 712 (“Jenkyns”); R v Tillott (1995) 38 NSWLR 1 (“Tillott”); R v KG (2001) 54 NSWLR 198; [2001] NSWCCA 510; and Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222 (“J G”), which I have considered below.

26. [289]

    Overall, the applicant submitted that it would be “impossible and unfair to give any weight to the oral evidence of [Victoria]”.

27. [290]

    The Crown submitted that the relevant test is whether it was open to the judge to make the factual findings he did.

28. [291]

    The Crown submitted that the findings of fact made by the trial judge as to whether Victoria had had hypnosis were open on the evidence and that, aside from reiterating the evidence that was before the trial judge, the applicant’s submissions did not reveal any error in the trial judge’s approach.

29. [292]

    As for the risk of new memories being created through EMDR, there was no evidence that this had in fact happened in this case. It was further submitted that the description given by Victoria as to the relevant process was consistent with the expert evidence about the effects of EMDR.

30. [293]

    The Crown distinguished this case from other cases in which memories were obtained by EMDR or hypnosis. In the present case the trial judge found that Victoria had given her statements to police prior to undergoing EMDR. The trial judge’s finding as to the order of events was a factual finding that, again, should not be overturned except in accordance with the principles in R v O’Donoghue (1988) 34 A Crim R 397.

31. [294]

    Finally, the Crown submitted that it was possible to compare Victoria’s police statements with her evidence at trial in order to determine whether any new memories were created by EMDR. The issue of recreation or distortion of memory by EMDR was not pressed at trial. Nor did the applicant seek a direction at trial under s 165 of the Evidence Act based on the EMDR therapy, despite that issue being flagged by the trial judge in his judgment.

Consideration

1. [295]

   This ground asserts error in the trial judge’s failure to exclude evidence under s 137 of the Evidence Act. In order to successfully appeal against such a decision, the applicant must establish error under one or more of the limbs in House v The King (1936) 55 CLR 499; [1936] HCA 40.

2. [296]

   The applicant’s argument in this Court repeated the arguments made to the trial judge to support its contention that the trial judge ought to have made different findings due to the forensic disadvantage the applicant would suffer at trial.

3. [297]

   I turn first to the application for exclusion of Victoria’s evidence based on alleged hypnosis. The error alleged was a failure by the trial judge to make the factual finding contended for by the applicant. Hunt J framed the applicable test when error in a factual finding is asserted in this Court as follows in R v O’Donoghue (1988) 34 A Crim R 397 at 401:

4. [298]

   There have been some doubts raised in this Court as to the applicability of this test in sentence appeals: Clarke v R [2015] NSWCCA 232 and Hordern v R [2019] NSWCCA 138. No such doubts have been expressed in relation to the R v O’Donoghue formulation in conviction appeals and the applicant did not contend otherwise in this appeal. I propose to consider this ground by applying this test: was it open to the trial judge to make the finding he did?

5. [299]

   The applicant did not contend that there was no evidence to support the finding made by the trial judge nor that the evidence was “all one way”. Rather, it was submitted that his Honour ought to have arrived at a different conclusion. It was at no time explained why it was not open to the trial judge to accept the evidence of Victoria, Yvette and their mother. This first argument fails.

6. [300]

   The applicant’s second argument based on Victoria having had some EMDR treatment is also misconceived. It is accepted that there have been concerns raised as to the impact of hypnosis or EMDR treatment on the evidence of witnesses but those concerns have arisen where hypnosis or EMDR have been used to revive memory.

7. [301]

   In Jenkyns, the witness gave a statement to police in which he recalled seeing the accused wearing a football jersey, shorts, and a pair of white runners. Nine days after giving his statement to police, the witness was hypnotised by a police officer in order to find out whether there were any small aspects which he had forgotten. During the hypnosis, the witness repeated that he was unable to see the detail of the accused's footwear. This was because the accused was too far away or because the light was “not good”. It was then suggested (by implication) by the police officer conducting the hypnosis that the witness could in fact see that detail. Shortly afterwards the witness agreed that he could.

8. [302]

   During and after the hypnosis in Jenkyns, the witness recalled that the runners were fairly dirty with no stripes or markings on their side except for a brand name written in dark lettering down the side of the laces. In evidence, the witness identified a Reebok Phase One tennis shoe as being “very very similar” to those worn by the accused. Significantly, at the time of the hypnosis, and at trial, the police believed that the person who committed the murder was wearing Reebok shoes. Hunt CJ at CL excluded the evidence relating to the details of the shoes because (at 726-7):

9. [303]

   In Tillott, the witness’ evidence changed significantly following a session of EMDR therapy. In those circumstances Abadee J (Grove and James JJ agreeing) held that (at 9):

10. [304]

    The EMDR session in Tillott was not video recorded. Abadee J found that EMDR presented many of the same dangers as hypnosis, and thus the “procedural safeguards” set out in R v McFelin [1985] 2 NZLR 750 and R v Jenkyns had to be applied (at 40). His Honour found that the evidence ought to have been excluded either because of non-compliance with the procedural safeguards or because of unfairness to the accused (at 40-41).

11. [305]

    Both Tillott and Jenkyns were determined prior to the enactment of the Evidence Act.

12. [306]

    In R v KG (2001) 54 NSWLR 198; [2001] NSWCCA 510 at [29], this Court heard a stated question under the then s 5A(2)(a) of the Criminal Appeal Act. The question for determination was (at [10]):

13. [307]

    Priestley JA, with whom Greg James and Kirby JJ agreed, found at [29]:

14. [308]

    In J G, the Crown sought to adduce evidence of video recorded interviews conducted in September 2003 with a child witness. The child witness subsequently undertook two sessions of hypnosis in October 2003. Cross-examination was to occur at trial in 2009. The trial judge found that the evidence was inadmissible either on the basis of Tillott or under s 137. The Court of Criminal Appeal found that the trial judge erred in refusing to admit the evidence. Basten JA found at [131] that:

15. [309]

    R S Hulme J found at [174] that:

16. [310]

    None of these cases concern a case such as the present where the EMDR is undergone after the police statements have been made and there is no evidence of any apparent change in the witness’s recollection after the treatment.

17. [311]

    Section 137 of the Evidence Act provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. There could be no doubt that the probative value of Victoria’s evidence was very high. None of the charges relating to Victoria could have been established without her evidence

18. [312]

    It has been held that the danger of unfair prejudice means the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the issues in the case: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[92]. The applicant did not suggest that there was any risk that Victoria’s evidence could be misused by the jury in some unfair way logically unconnected with the issues in the case. In submissions before both the trial judge and in this Court the applicant relied upon the forensic disadvantage he would suffer such that Victoria’s evidence should be excluded.

19. [313]

    Even if suffering a forensic disadvantage could be equated with a risk of unfair prejudice in this case, the applicant has not identified any forensic disadvantage suffered by the applicant at trial. It was always open to the applicant to test whether there were any revived memories following the EMDR therapy by comparing Victoria’s police statements with the evidence she ultimately gave at trial. There was no attempt to do so on this appeal.

20. [314]

    The applicant has not established any error, whether under House v The King or otherwise.

21. [315]

    I would reject ground 2(a).

Ground 2(b)

1. [316]

   The second aspect of ground 2 contended the trial judge erred in admitting the evidence of complaint in this matter.

2. [317]

   Both complainants told their close friends, boyfriends and husbands about the sexual abuse over the years but insisted that it remain private. These confidants were called at the trial about what they had been told by Yvette and Victoria over the years.

3. [318]

   I have summarised the hearsay evidence of these witnesses above at [117].

4. [319]

   The applicant did not ultimately object to the evidence of Kathleen Hormazabal, George Rivera and Aunt Ibrahim, but objection was made to the remaining seven complaint witnesses on the basis that their evidence could not said to be “fresh in the memory” within s 66(2) of the Evidence Act.

5. [320]

   Section 59(1) of the Evidence Act provides that:

6. [321]

   An exception to the hearsay rule is provided in s 66(2) of the Evidence Act which provides that:

7. [322]

   Section 108(3) of the Evidence Act provides:

8. [323]

   By judgment of 17 June 2019, Weber SC DCJ found that the complaint evidence was admissible under s 66(2) of the Evidence Act. His Honour found that if the alleged offences occurred, they would be expected to be “burnt” into the memories of the complainants.

9. [324]

   His Honour further found that the level of detail provided by the complainants in their police statements from 2014 onwards reinforces that the events were fresh in their minds at that time and therefore would have been fresh in their minds at an earlier time as well.

10. [325]

    His Honour found that the lack of detail in some of the complaints did not detract from the proposition that the events were likely to be fresh in the complainants’ memory at the time. This was reinforced by consideration of the ages of the complainants at the time the complaints were made, their relationship with the person to whom the complaints were made, and the gender of the person to whom the complaints were made.

11. [326]

    The applicant submitted that the trial judge erred in finding that the complaint evidence was “fresh in the memory” of the complainants at the time the representations were made.

12. [327]

    The applicant noted that some of the complaints were made 30 to 40 years after the alleged offences and submitted that the reasoning used by the trial judge to admit these representations renders the temporal consideration in s 66(2A)(c) (“the period of time elapsed…”) meaningless.

13. [328]

    The submissions made in this Court were the same submissions made before the trial judge.

14. [329]

    The Crown submitted that the temporal requirement in s 66(2A)(c) must be considered in light of the nature of the event (subs (a)), so that the effluxion of time will have more impact on the admissibility of representations about mundane events than those about traumatic events.

15. [330]

    The Crown submitted that the complaints would otherwise have been admissible under s 108(3) of the Evidence Act in any event and, given that there was no objection to some of them under s 66(2), they would have been admissible under s 60 as proof of the asserted fact, subject to a s 136 direction to limit its use.

Consideration

1. [331]

   The meaning of “fresh in the memory” in s 66(2) of the Evidence Act was considered by the High Court in Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61. Gaudron, Gummow and Hayne JJ explained the meaning of the phrase in its statutory context as follows (at 608):

2. [332]

   In the years following this decision complaint evidence was only adduced under s 66(2) of the Evidence Act if it was made in the “hours or days” after the occurrence of the asserted fact. Despite this, complaint evidence that did not have this temporal connection was invariably adduced under s 108(3) of the Evidence Act instead.

3. [333]

   Section 108(3) of the Evidence Act arose for consideration in any sexual assault trial where complaint was made that was not considered “fresh” and the defence case was that the complainant’s allegation was an invention or fabrication. In such cases the Crown would be granted leave to adduce the evidence of any prior consistent statements, namely any evidence of complaint, to restore the credibility of the complainant (if the nature of the complaint evidence had the capacity to do so). Once the evidence was admissible under s 108(3), the operation of 60 of the Evidence Act means that it becomes admissible as evidence of the truth of its contents. The question of whether its use should be limited under s 136 turned on the facts in each case.

4. [334]

   Subsection (2A) of s 66 of the Evidence Act was inserted on 1 January 2009 as a response to the decision of the High Court in Graham v The Queen.

5. [335]

   Subsection (2A) was considered by this Court in R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 (“XY”). In XY, the alleged offences occurred in 2003 and 2004 and the complainant told a school friend about the abuse in 2007. Whealy J observed that the time elapsed between the alleged offences and the complaint remains a relevant but not determinative consideration under s 66(2): at [79]. Other factors relevant to the finding that events were “fresh in the memory” of the complainant in 2007 included the distinguishing features and details of the offending in the representations and that the complainant was “clearly embarrassed, troubled and not at all like his normal self” (at [84]). Whealy J concluded at [85] that:

6. [336]

   The High Court considered s 66(2A) of the Evidence Act in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”). Their Honours explained the effect of subs (2A) as follows:

7. [337]

   In Bauer, representations were made by the complainant about events that had occurred over a period of ten years before the complaint was made. These were held to be admissible under s 66(2) because:

8. [338]

   Similarly, in R v Gregory-Roberts [2016] NSWCCA 92, complaints made two years and four years after the events occurred were held to be “fresh in the memory” of the complainant at the time she made the representations because:

9. [339]

   Having had regard to the principles derived from these decisions, I am satisfied that the circumstances in which complaint was made each time (distress), the particular details provided and the fact that the sexual abuse at the hands of their uncle (the applicant) was clearly something burned into their memories are all relevant factors to take into account and were in fact taken into account by the trial judge.

10. [340]

    The fact that the complaints were made on an ongoing basis over the years is a highly relevant matter when considering whether some of the latter complaints were still fresh in the memory of the complainants. The applicant submitted that if complaint made 30-40 years after the asserted fact is held to be admissible under s 66(2) “then it is difficult to imagine a situation where a complaint in a historic child sexual abuse matter would ever be excluded …”. The difficulty with this submission is that there is a significant difference between a complainant disclosing alleged abuse for the first time after a 30-year period and having disclosed it numerous times over the years to different people during that same time period. Even then, it may be that the former will be considered to still be fresh; it will depend on the facts in each case.

11. [341]

    The trial judge was made aware of the relevant test and set out the relevant delay in relation to each witness in his judgment. The applicant has not identified any House v The King error not any error at all in the judgment of the trial judge. The nub of the complaint is that complaint evidence made to some of the later witnesses was so old that it could never be admissible under s 66(2) as hearsay evidence. I am not satisfied that this is the case.

12. [342]

    Even if the argument under s 66(2) had been successful, the evidence was otherwise admissible under s 108(3) for the reasons I have explained above at [333].

13. [343]

    I would not uphold this ground.

Proposed Orders

1. [344]

   The orders I would propose are as follows:

   1. (1)

      Leave to appeal against conviction is granted.

   2. (2)

      The appeal is dismissed.

2. [345]

   IERACE J: I also agree with her Honour’s judgment and the orders proposed by her Honour.