ZL v R

1. [1]

   ADAMSON JA: ZL (the applicant) seeks leave to appeal against his convictions for six criminal offences following a trial by jury over which Sutherland SC DCJ (the trial judge) presided.

2. [2]

   Each of the offences was alleged to have been committed in a single evening in July 2011 when the complainant, who was then 10 years old, was staying overnight with her maternal grandfather, who was married to the applicant’s mother and was, accordingly, the applicant’s stepfather. At that time, the applicant was 16 years old.

3. [3]

   The counts in the indictment and the conduct alleged are set out in the following table:

4. [4]

   On 23 February 2021, the jury returned verdicts of guilty in respect of each count. On 12 May 2021, the trial judge sentenced the applicant for all counts to a 2-year Community Corrections Order which has since been served. There is no application for leave to appeal against the sentence.

5. [5]

   The sole ground of appeal against the convictions is that the verdicts were unreasonable. As this ground does not involve a question of law alone, leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Because of the nature of the sole ground, it is necessary to summarise the evidence at the trial, with a view to addressing the reasonableness of the verdicts, including whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on all counts.

The trial

1. [6]

   In the present case, after detailing the conduct which comprised counts 1 and 2, the Crown opened the topic of counts 3-6 as follows:

2. [7]

   Mr Dalton SC, who appeared for the applicant in the trial and in this Court, indicated in the opening pursuant to s 159 of the Criminal Procedure Act 1986 (NSW) that the defence case was that the complainant had made up the complaints. He said:

3. [8]

   The complainant was born in June 2001. She was the only child of her parents who separated when she was young, following which she lived with her mother. Her maternal grandfather, following his divorce from the complainant’s grandmother, married the applicant’s mother. Together they had a child (the applicant’s half-sister), who was born in 2008. The applicant’s father would sometimes stay overnight with his ex-wife (the applicant’s mother) and the applicant’s stepfather, in order to spend time with the applicant.

4. [9]

   In 2011, the applicant turned 16 years old and the complainant turned 10. It was not disputed that the complainant stayed at her grandfather’s home on the weekend of 29 July 2011 and that she had stayed there previously.

5. [10]

   The complainant’s evidence comprised the following:

   1. (1)

      an interview conducted by the Joint Investigation Response Team (JIRT) on 5 October 2011 (the JIRT interview), which was played to the jury; and

   2. (2)

      the complainant’s oral evidence given at the trial in February 2021.

6. [11]

   At the time of the JIRT interview, the complainant was 10 years old. She gave the following evidence.

7. [12]

   The complainant was staying at her maternal grandfather’s place and playing with the applicant’s half-sister/the grandfather’s infant daughter, who was then about three. The complainant went to the bathroom to wash her hands. The applicant came into the bathroom to have a shower. He said, “I need to talk to you about something. So when I get out of the shower please meet me in my room”. When the applicant had finished in the shower, he dressed and called the complainant and asked her to “shoo” his half-sister away and come to his bedroom. The applicant told the complainant that what he was about to do was “between us” and that she should not even tell her mother. When the complainant said that she hated lying to her mother, the applicant said, “Well, this is not exactly lying”.

8. [13]

   The complainant described what the applicant did to her as follows:

9. [14]

   When questioned about what happened next, the complainant said she was “actually embarrassed to tell”. She was handed a piece of paper, on which she wrote (and read out subsequently):

10. [15]

    The complainant clarified that the applicant’s private area was his “floppy thing” that is used “[t]o go to the toilet”. She then gave the following evidence:

11. [16]

    After this conversation, the applicant went back to his room and the complainant went to sleep. She slept over for another night but on that night he “left [her] alone. He must have forgotten”.

12. [17]

    When asked to give more detail about her previous answers, she explained that the applicant’s half-sister was putting cream on “the chairs” and squeezing it onto the complainant’s hand before the applicant’s mother came and took the cream away. On the second occasion on which the complainant went to the bathroom to wash the cream off her hands, the applicant spoke to her.

13. [18]

    The complainant explained that she was at her grandfather’s place because her own mother had to work. She said that she did not blame her mother and that she “should have told [the applicant] not to do it” and “feel[s] so stupid”. Her recollection was that she was there on a weekend: Friday, Saturday and Sunday. She said that the applicant did “the little part”, “[t]he short one when [his half-sister] kept coming in” before dinner but “around midnight when everyone was asleep, he came and did the whole thing”. The complainant clarified that “the first little bit” was when the applicant was on his bed and he was touching her legs and “private part”.

14. [19]

    The complainant explained that when the applicant spoke to her about going to his bedroom she thought that he was going to kiss her. When they were in the bedroom, the applicant said to her, “This will feel a bit strange but you need to trust me.” The complainant’s evidence continued:

15. [20]

    The complainant said, before this happened:

16. [21]

    At first he touched her legs and her private part and then he “stuck his hand down [her] pants … and then he wriggled his finger in the … forbidden area” in the “hole … [w]here you do wee from”. His finger went inside her underpants. The applicant stopped when his half-sister came in again, which was at about the time when he said that he would come and wake the complainant up in the middle of the night “and do some more”. At about this time, the applicant’s father called out “Dinner”.

17. [22]

    Those present at dinner time were the complainant, the applicant and his stepfather, mother, father and half-sister. After dinner, the complainant had a shower before watching “half a movie” with the applicant’s stepfather, mother and half-sister, following which she went to bed at about 8pm or 8.30pm. She left a lamp on in the spare room, where she was to sleep. She went to sleep “but [the applicant] came and woke me up when he did the rest”. The complainant was unable to explain why she had previously said that it was about midnight when the applicant had come into her room. When asked why she had said that everyone was asleep when he came in, she explained that “no way would he come in if everyone was awake”.

18. [23]

    The complainant said that she and the applicant were whispering because she “didn’t want to get him into trouble … because he will probably guess who told on him straight away”. She explained that she did not want to “get him into trouble” because she was “not that kind of girl” and “don’t want anyone to suffer any … consequences.” She added:

19. [24]

    The complainant could not remember what the applicant was wearing when he came into her room, but she was wearing “jammies [pyjamas] with long sleeves and long pants. I had black and, black and red love, tiny love hearts on them and ladybeetles all over them.” The applicant told the complainant not to tell anyone and said, “Don’t tell [your grandfather] because you know, well, how he will react if he found out what I was doing”. When asked how her grandfather would react if he knew, the complainant said, “Like, really, really angry and, just, like, ground [the applicant] for about, I don’t know, probably a year”.

20. [25]

    When the applicant came into the complainant’s room, he woke her up and reminded her that he had told her that he would. He then put his hands down her pants again and “put his finger in the forbidden area … and wriggled [it]” inside the underpants which she wore underneath her pyjamas. When he had done that he asked her if she wanted to see his penis. He pulled it out by pulling his pants down. The complainant thought that it looked: “Big. Hairy. Yuck”. He told her to:

21. [26]

    The complainant said that when she was touching his “thing” with her fingers, his “thing” felt “soft”. She also said that when he made her suck on it, “he was, like, peeing” and she “felt this liquidy stuff”. She said that she “tasted something very yuck.” He told her that it was normal. The complainant also gave the following evidence:

22. [27]

    The complainant said that the liquid was yellow and she did not “think it was pee.” He told her that it was “normal stuff.”

23. [28]

    She gave the following evidence:

24. [29]

    In the JIRT interview, the complainant said that the first person she mentioned it to (but did not tell) was Tina, the mother of Olivia, who was a friend of the complainant’s mother. The complainant said, in the JIRT interview:

25. [30]

    The complainant confirmed that she had only told her mother and the JIRT team what had happened. She also said:

26. [31]

    The complainant said that she had not seen the applicant since that weekend because she did not trust him, felt unsafe around him and her mother had not sent her back there. She said that she still did not want the applicant to get into any trouble. The complainant gave the following evidence in the JIRT interview:

27. [32]

    Towards the conclusion of the JIRT interview, the complainant was asked whether there was anything else she could tell the interviewer about the applicant. She answered:

28. [33]

    At various points in the JIRT interview, the complainant said that she thought that the applicant might be on drugs, or hiding them, or drunk, although she did not give any evidence that he was actually affected either by alcohol or drugs.

29. [34]

    At the time of the trial, the complainant was 19 years old. She confirmed that she had watched the recording of the JIRT interview only once, in the week before the trial. She said that the only thing she wanted to change was that she mentioned in the video that the applicant had come into her room at about midnight but that, although she could not recall what time it started, by the time it finished, “the sun was just about coming out”.

30. [35]

    The complainant confirmed that when in the JIRT interview she referred to the “out of bounds area” she was referring to the area around her vagina outside her pants and that when she referred to the “forbidden area” she was referring to her vagina. She confirmed that the applicant put his finger inside her vagina, both in his bedroom and in the spare room where she was sleeping. She also confirmed that references to the applicant’s “thing” and “floppy thing” were references to his penis.

31. [36]

    The complainant identified drawings which she described as setting out the layout of her grandfather’s house, which were tendered. She marked the bedroom where her grandfather and his wife slept; the bedroom where their infant daughter slept; the applicant’s bedroom; the spare room where the complainant slept when she stayed overnight; and the playroom.

32. [37]

    The complainant gave evidence that after the sexual assaults on her in the spare room, she went to the kitchen to get a drink and saw that there was a sleeping bag on the floor of the applicant’s room where his father was. She could not tell whether the applicant’s father was asleep or not.

33. [38]

    The complainant was aware that no charges had been laid against the applicant in 2011. She did not think that she was ever asked whether she wanted to go to court to give evidence about the matter.

34. [39]

    In 2018, shortly before she turned 17, the complainant went to Belmont Police Station and made a statement. She explained what prompted her to go the police as follows:

35. [40]

    The complainant confirmed that she had not had the opportunity to watch the JIRT interview prior to giving the statement on 29 May 2018 and, accordingly, had given the statement purely from her memory. She also confirmed that she had not seen the applicant since the weekend on which she had been sexually assaulted.

36. [41]

    In cross-examination, the complainant accepted that there were matters to which she had referred in the JIRT interview, to which she had not made reference in her statement. She said that viewing the JIRT interview (in the week before the trial) had helped her remember things which she had forgotten when making her police statement in 2018.

37. [42]

    In the course of the cross-examination, Mr Dalton took the complainant through the matters that were not included in her police statement but which were in the JIRT interview. In the course of the cross-examination, Mr Dalton tendered the complainant’s police statement dated 28 May 2018, which was, accordingly, before the jury. The complainant agreed that her police statement did not include anything about the applicant asking her to lie down on his bed. She also agreed that there were matters about which she gave evidence in the JIRT interview that were not in her police statement and which she also no longer recalled.

38. [43]

    The complainant accepted that when she was about 10 years old, her mother had been in an abusive relationship with a man who drank too much alcohol. She also agreed that she might have told Tina that the applicant might have been drunk.

39. [44]

    The complainant said that the first time she had told anyone the detail of what happened was in the JIRT interview and that although she had told Tina and her mother in broad terms, she had not told them the detail.

40. [45]

    The complainant accepted that various photographs shown to her in cross-examination were photographs of the house where the sexual assaults occurred. Mr Dalton also put the following matters to the complainant, which she denied, as follows:

41. [46]

    The complainant confirmed that on the weekend when the incidents occurred, the furniture in the spare room comprised the bed, the bedside tables and the shelves.

42. [47]

    Mr Dalton also tendered a further statement of the complainant made on 15 February 2021.

43. [48]

    In re-examination, the complainant said that she recalled the liquid of which she had spoken as follows:

44. [49]

    The complainant’s mother said that about once a fortnight for about three or four months up to the weekend of 29 July 2011, the complainant stayed at her grandfather’s house. At this time, the complainant’s mother was on call to pick up deceased persons in “coronial circumstances” and also drove taxis on the weekend. She would drop the complainant off at the home on Friday afternoon before 5pm (when her on-call period commenced) and collect her either from there on Sunday afternoon or from the Warners Bay ice hockey rink where the complainant’s grandfather was a medic for the local team.

45. [50]

    On the weekend commencing Friday 19 August 2011, the complainant’s mother and the complainant were staying with the complainant’s mother’s friend, Olivia, who lived in Mount Druitt. Olivia’s mother, Tina, was also staying that weekend. During the weekend, the complainant was watching a DVD called The Little Vampire. The DVD malfunctioned at a particular part which the complainant liked, which was the part where a boy and girl were supposed to kiss. Tina told the complainant’s mother that she had observed the complainant’s frustration at the malfunction in the DVD and formed the view that the complainant was “sexually inquisitive” and that she thought that the complainant’s mother “might need to have a talk with her.”

46. [51]

    The complainant’s mother gave evidence that while the complainant and her mother were travelling by train back home from Mount Druitt, they had a conversation to the following effect:

47. [52]

    The complainant’s mother asked her daughter when these things had happened and the complainant said that it had happened the last time she had stayed at her grandfather’s house, which was 29, 30 and 31 July 2011. The complainant also told her mother that she thought that he was hiding drugs or alcohol and that she was “confused”. She said that he might have been on drugs or under the influence of alcohol. The complainant told her mother that she told the applicant that she felt sick and needed a drink, which was when she stopped sucking the applicant’s penis.

48. [53]

    The complainant’s mother described her daughter’s demeanour while making these disclosures as “uncomfortable” and “just scared”. She said that the complainant “wasn’t very confident in telling [her]”. Later, the complainant told her mother that she was scared because she was “worried that [her mother] wasn’t going to believe her.”

49. [54]

    The complainant’s mother also said that her daughter had told her that the applicant had told the complainant, “Don’t tell pop he won’t believe you.”

50. [55]

    When the complainant and her mother arrived home, her mother rang “the child protection line” and was told that “somebody from JIRT will get back to you”. As the complainant’s mother did not understand what JIRT was, she rang her own mother, as a result of which they reported it to the local police station and a detective visited them. Subsequently, the complainant participated in a JIRT interview. The complainant’s mother recalled that, after the JIRT interview, the complainant had sleeping problems and regularly had dreams of ways she wanted the applicant to be punished. The complainant’s mother was told by the police in 2011 or 2012 that the case was not strong enough to go ahead at that time.

51. [56]

    Tina recalled that she was also staying with her daughter, Olivia, when the complainant and her mother stayed over between Friday 19 August 2011 and Sunday 21 August 2011. She recalled that the complainant was watching a DVD called The Little Vampire but that it kept skipping at a particular point. She said:

52. [57]

    Tina said that the complainant “continually rewound the video to get it back to that same point each time.” When Tina asked her why she wanted to watch the same movie if it keep sticking, the complainant “said she likes the kissing parts of the movie, so she wanted to get back to that particular part of it”. Although Tina continued to question her, the complainant “just continuously basically phrased it that way, that she liked the kissing bits, but she doesn’t like the other bits”. Tina said that the complainant was following her as she cleaned the house and said that a male had put his hand on her leg (and demonstrated where) and asked her whether she liked it. She told Tina that he had gone “all the way” up. Tina recalled that the complainant told her that it was an older boy whom she mentioned by name but Tina no longer recalled the name. The complainant also said that the applicant might have been drunk and that she could smell alcohol.

53. [58]

    By this time, Tina “started to panic” because she was “quite alarmed”. When she asked the complainant when it had happened, the complainant told her that it had happened the last time she was at her “pop’s place”. Tina realised that it was “probably a very serious situation”. Tina asked her if she had told her mother, to which the complainant said that she had not and that there would be a “great deal of trouble” if she told her mother. Tina then said to the complainant:

54. [59]

    That morning at about 11am, Tina spoke to the complainant’s mother. She did not report what the complainant had told her but advised the complainant’s mother that she thought that it was time she had a discussion with the complainant about “the facts of life” because the complainant “might be needing that”.

55. [60]

    Tina and her daughter, Olivia, walked with the complainant and her mother to the railway station. The complainant told Tina that she would tell her mother. In cross-examination, Tina confirmed that the complainant had not told her that she sucked the applicant’s penis.

56. [61]

    The applicant’s mother was called in the prosecution case. She gave evidence that the complainant would stay every fortnight in the three or four month period leading up to July 2011 as her mother had a second job. The complainant would arrive on Friday and leave on Sunday. She agreed that the last time the complainant had stayed over was on the weekend of 29-31 July 2011. On that weekend, the complainant arrived at about 4.30pm. The applicant’s father came to stay that weekend too and arrived at about 7pm.

57. [62]

    The applicant’s mother said that she did not get to bed until 3am on Friday night as she had been doing night shifts that week and had stayed up to watch television. She slept in until about 9am on Saturday morning because she had gone to bed so late. She said that the complainant, who was disappointed and “sulky” that she could not go swimming that day, played with her daughter for most of the day. The applicant and his father watched movies and played video games.

58. [63]

    The applicant’s mother said that the complainant was put to bed at about 10pm and that she had taken her young daughter to bed with her at about 11.30pm to settle her down but that when her husband came to bed, she had settled her daughter into her own bed. They had had an unsettled night, getting up and down to their daughter. At one stage her husband had the daughter up with him, watching television.

59. [64]

    She was asked about when the complainant went home in the following exchange:

60. [65]

    She was also asked about the time which the applicant spent with his father that weekend in the following exchange:

61. [66]

    In cross-examination, the applicant’s mother gave the following evidence:

62. [67]

    Mr Dalton asked the applicant’s mother to identify photos of the house, which were tendered. The following exchange ensued:

63. [68]

    The applicant’s mother also said that the applicant’s father slept in the applicant’s room on a mattress which was between the end of his bed and the doorway. She said that the doors to her son’s room creaked. She also said that they had three dogs: a cattle dog cross and two miniature labradoodles. She agreed with Mr Dalton that if anyone moved around in the middle of the night the cattle dog cross would go and investigate, bark and “make a kafuffle”. She said that the hallways were tiled and that her husband was a light sleeper.

64. [69]

    The applicant’s mother also said that her son had showers in the morning and that, during 2011, he had a girlfriend who was in the same year at school.

65. [70]

    In re-examination, the solicitor advocate for the Crown asked the applicant’s mother why the things for the garage sale were stored in the spare room rather than the garage. She responded by saying that the garage was already full.

66. [71]

    In the absence of the jury, the solicitor advocate sought leave pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW) to cross-examine the applicant’s mother about the fact that, in her statement dated 1 January 2012, she had made no mention of the storage of items in the spare room, being “evidence that is unfavourable to the party.” In opposition to the application, Mr Dalton submitted that the applicant would be prejudiced if it were allowed as the police officer who had interviewed the applicant’s mother was not to be called as she had left the police force. He relied on s 137 of the Evidence Act (on the basis that the probative value of the evidence is outweighed by the prejudicial effect of the evidence). The trial judge refused leave to the prosecutor to cross-examine the applicant’s mother under s 38(1)(a) of the Evidence Act.

67. [72]

    The applicant’s stepfather gave evidence that the complainant stayed at his home on the weekend of 29-31 July 2011.

68. [73]

    In cross-examination, he said that the complainant did not see much of the applicant that weekend because the applicant spent time with his father. He said that, on that weekend, the furniture and boxes of items which he intended to sell at a garage sale was being stored in the spare room, where the complainant was to sleep that weekend. He said that usually when she was staying he would go and say goodnight to the complainant but that he could not do it that weekend because of the obstacles between the door and the bed, which meant that the complainant had to climb over the end of the bed to get into bed.

69. [74]

    The applicant’s stepfather also gave evidence that mattress on which the applicant’s father slept when he stayed over was positioned between the bed and the door to the applicant’s bedroom. He agreed that, in July 2011, he had two dogs and that if anyone got up in the middle of the night, the dogs would “bark, and make a kafuffle, and so forth”. He also said that the door to the spare room and the door to the applicant’s room were creaky and that he was a light sleeper. He was re-examined about why he did not store the things for the garage sale in the garage and he said that there was no room and nowhere else to put it.

70. [75]

    The applicant’s father said that he could not remember the particular weekend. In cross-examination, he said that he would not sleep beyond 6am and would usually be up at that time. He would go out to the back bedroom and watch television until the others got up. He said that he was sleeping lightly because he was on a small mattress between the applicant’s bed and the doorway but he tended not to wake up during the night. He said that the cattle dog cross would come running if he went out of the bedroom. He agreed that they would “make a kerfuffle” but said that the dogs would not usually bark.

71. [76]

    Sergeant Daniel Payton was the Officer-in-Charge (OIC) of the investigation from May 2019. He was not the OIC when the matter was originally reported to police in 2011. The police computerised records (COPS) indicated that a complaint was first made on 22 August 2011. Arrangements were made for the complainant to be interviewed on 5 October 2011.

72. [77]

    The COPS records indicated that on 20 March 2012, the police investigation into the applicant was suspended. The complainant also attended at a police station in about May 2018 and provided a statement to police on 28 May 2018.

73. [78]

    In September 2019, Sergeant Payton contacted the applicant in relation to the investigation and made arrangements for the applicant to attend Maitland Police Station on 10 September 2019. He came voluntarily and, as was his right, declined to participate in a recorded interview.

74. [79]

    Mr Dalton put to Sergeant Payton in cross-examination the contents of the COPS record which recorded the “original event narrative” which came from the complainant’s mother and included the following:

75. [80]

    Sergeant Payton agreed that there was no record of any examination of the premises at which the sexual assaults were alleged to have occurred and that, from his investigations, no such examinations had taken place. He also agreed that a crime scene officer “normally” takes photos and videos of the crime scene and swabs (for DNA and semen) “if that’s deemed appropriate”. In re-examination, Sergeant Payton said that he could not say why those investigations were not done in the present case.

76. [81]

    At about this time in the trial, the jury asked to see the JIRT interview again and also asked about the statements of the applicant’s mother and stepfather because it wanted “clarification about the boxes in the room at the time they made their original statements”. They were permitted to watch the JIRT interview again but were told that they could only have regard to the evidence and, as the statements of the applicant’s mother and stepfather were not in evidence, they could not have them.

77. [82]

    A statement of agreed facts was tendered by Mr Dalton pursuant to s 191 of the Evidence Act. It included as agreed facts that, at the location of the residence on 30 July 2011, astronomical twilight was 5.24am, nautical twilight was 5.53am, civil twilight was 6.23am and sunrise was 6.49am. The evident purpose of the tender was to establish that, had the offences occurred as the complainant described, the applicant’s father would have been awake and would have noticed the applicant returning to his bedroom, which he denied.

78. [83]

    Following the closing of the prosecution case, Mr Dalton did not say anything further by way of opening. He called the applicant who denied all of the allegations and said he had no particular memory of the last time the complainant had stayed at his mother’s house. He also gave the following evidence in cross-examination:

79. [84]

    The applicant agreed that he found out about the allegations when his mother picked him up from school in the latter half of 2011 and told him that some allegations had been made by the complainant of a sexual nature. He said that he “had a small discussion with the whole family” when he got home from school that day but beyond that, he had not discussed it with his stepfather. He agreed that there was no discussion about there being boxes in the spare room on the last weekend that the complainant had stayed. He agreed that it was “entirely possible but rare” for him to have a shower in the evening before dinner. He could not recall whether there were boxes in the spare room as he had no recollection of the weekend on which the offences were alleged to have been committed.

80. [85]

    Of present relevance, the solicitor advocate submitted to the jury that the applicant had the opportunity to commit the offences, notwithstanding his evidence and his father’s evidence that they were together for most of the time. As to the state of the spare room, she submitted as follows:

81. [86]

    Mr Dalton told the jury that there had been “no challenge” to the evidence given by the applicant’s mother and stepfather of their recollection of the spare room. He said further:

82. [87]

    Mr Dalton repeated this submission at the end of his closing address. He also relied on other matters, such as that the police had not charged the applicant at or shortly after the complainant’s JIRT interview, as well as the evidence of the applicant, his father, stepfather and mother as to creaking doors, tiled floors, dogs and the retiring and waking hours of the inhabitants of the house which were said to make the complainant’s account implausible.

83. [88]

    Mr Dalton sought a forensic disadvantage direction as a consequence of the delay, which was opposed by the solicitor advocate for the Crown on the basis that the applicant was informed of the general nature of the allegations soon after their alleged occurrence and his mother and stepfather purported to remember the weekend. Of present relevance, the trial judge directed the jury as follows:

84. [89]

    Before the completion of the summing up, in the absence of the jury, Mr Dalton submitted that it had not been put to the applicant’s mother or stepfather that they were wrong about the date. The trial judge responded that the Crown had addressed on mistake and Mr Dalton not only did not object but had also dealt with it in his address. Mr Dalton confirmed that he was not taking a Browne v Dunn (1893) 6 R 67 point but submitted that there was no evidence that the applicant’s mother or stepfather were wrong, a submission which entirely disregarded the complainant’s denial that items were being stored in the spare room that weekend.

85. [90]

    The trial judge summarised the Crown’s submission as follows:

86. [91]

    The trial judge said of Mr Dalton’s address about the boxes:

87. [92]

    The trial judge also reiterated, at length, Mr Dalton’s submission about forensic disadvantage. His Honour returned to Mr Dalton’s submission about the boxes in the spare room as follows:

88. [93]

    The jury retired to consider its verdicts at 11.23am on 23 February 2021 and returned with verdicts of guilty on all charges at 2.51pm that day.

The relevant principles

1. [94]

   The relevant principles which apply to an unreasonable verdict ground were summarised in Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ), as follows:

2. [95]

   The question for this Court is whether it was “open” to the jury to find the applicant guilty or whether a jury “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

3. [96]

   A verdict of guilty may be reasonable even if the complainant’s evidence is not corroborated: Pell at [53].

4. [97]

   The primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). For this reason, it will not generally be appropriate for this Court to review pre-recorded or recorded evidence to form its own view of the credibility of particular witnesses on the basis of their presentation: Pell at [36]-[38]. This Court is obliged to proceed on the basis that the complainant’s evidence was accepted by the jury as credible and reliable: Pell at [39].

5. [98]

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

6. [99]

   Because Mr Dalton relied heavily on Pell in support of the ground, it is important to address the circumstances of that case and what it decided.

7. [100]

   In Pell, several witnesses called by the prosecution gave unchallenged evidence of the movements of the appellant and others following the conclusion of Sunday solemn Mass which was inconsistent with acceptance of the complainant’s account. The appellant argued that no matter how favourable a view was taken of the complainant, it was not open to the jury, acting rationally, to conclude that the prosecution had eliminated all reasonable doubt, having regard to the prosecution’s “passive approach” at the trial in failing to challenge the evidence of these witnesses.

8. [101]

   The verdicts of guilty were held to be unreasonable on the basis that the evidence as a whole was not capable of excluding a reasonable doubt as to the appellant’s guilt because, although the jury was taken (by its verdicts of guilty) to have accepted the complainant’s evidence beyond reasonable doubt, the evidence of several witnesses called by the Crown, which rendered the complainant’s account extremely unlikely, if not impossible, was not challenged.

9. [102]

   The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) said, of the first conviction:

10. [103]

    As to the conviction on the second charge, the High Court said at [127]:

11. [104]

    Mr Dalton relied on the following matters which he submitted, either individually or in combination, made the verdicts unreasonable:

    1. (1)

       the evidence of the applicant’s mother and stepfather about the state of the spare room (in which the complainant was sleeping that weekend) which, if accepted, would have made the offence virtually impossible (as was accepted by the complainant herself); and

    2. (2)

       other evidence which made it unlikely that the offending conduct occurred (such as the evidence of the applicant’s stepfather being a light sleeper, the applicant spending his time with his father, the presence of dogs which tended to rouse when anyone got up, the creakiness of the doors, the positioning of the mattress in the applicant’s room, the retiring and waking times of members of the household and the agreed facts as to the twilight times and sunrise on the relevant morning).

12. [105]

    As set out above, the evidence of the applicant’s mother and stepfather was that, on the weekend on which the offending was alleged to have occurred, the spare room where the complainant was to sleep was piled so high with material for a garage sale that she could only have accessed her bed by climbing over the bedhead. Mr Dalton argued that this evidence was not challenged by the Crown and that, accordingly, the verdict of guilty was unreasonable.

13. [106]

    I consider the present case to be distinguishable from Pell in several respects. However, before turning to the points of distinction, I propose to address the consequences of the obligation cast on the prosecutor to open its case and to call relevant witnesses, whether or not they give evidence which conforms to the Crown case as opened, and the extent of the prosecutor’s obligation to challenge evidence adduced in the Crown case, which is inconsistent with the Crown case.

14. [107]

    In R v Tangye (1997) 92 A Crim R 545, this Court (Hunt CJ at CL, McInerney and Sully JJ agreeing) said at 556:

15. [108]

    In Ngo v R [2023] NSWCCA 201, at [94]-[95], the question arose (but does not arise here) whether the prosecutor was obliged to put to an accused person all matters of which prosecution witnesses had given evidence whether or not they formed part of the Crown case. Of present relevance, I addressed what comprises the Crown case, having regard to the obligation of the prosecutor to call relevant witnesses as follows:

16. [109]

    The question which arises in the present case is whether the verdicts were unreasonable because it was not open to the jury, acting rationally, to reject the evidence of the applicant’s mother and stepfather as to the state of the spare room on the weekend on which the alleged offences were committed (or exclude the possibility beyond reasonable doubt) in circumstances where the prosecutor did not put to the applicant’s mother and stepfather that they were mistaken about that matter.

17. [110]

    This Court has addressed similar arguments in previous decisions from which certain principles can be derived. It is useful to review them.

Decisions concerning the impugning by a prosecutor of a prosecution witness where leave to cross-examine under s 38 of the Evidence Act has not been sought

1. [111]

   The underlying principles can be shortly stated. The first principle is that witnesses ought generally be afforded an opportunity of responding to an attack on their credit: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 (MWJ) at [39] (Gummow, Kirby and Callinan JJ), which concerned the appellant’s counsel’s omission to put matters to a complainant. Significant latitude in the application of this principle is, however, given to accused persons, whose instructions may develop within the course of a trial: MWJ at [18] (Gleeson CJ and Heydon J). The second principle is that prosecutors ought generally not impugn the credit of a Crown witness in final address where the witness was not given an opportunity to respond: Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31].

2. [112]

   As the authorities considered below illustrate, it does not, however, follow from these principles that prosecutors are obliged to make applications under s 38 of the Evidence Act which are, in the circumstances of the case, neither necessary nor reasonable, before they are entitled to submit that either part of all of the evidence of a witness ought not be accepted.

3. [113]

   In Regina v Walton [1999] NSWCCA 452; (1999) 113 A Crim R 308 (Walton), the appellant raised two grounds of appeal relating to the evidence of his daughter: ground 2 related to directions given as to that evidence and ground 3 alleged that the Crown address gave rise to a miscarriage of justice. The complainant gave evidence that the appellant’s daughter was present at the time of the conduct which comprised two of the charges. The Crown case was that, after squeezing pimples on the complainant’s back, the appellant fondled her breasts. The complainant’s evidence was that, after he had fondled and kissed her breasts, he said, “Don’t worry, I do this to [the daughter] all the time.” The appellant denied touching the breasts of either girl but admitted squeezing pimples on both of them.

4. [114]

   The prosecutor called the appellant’s daughter in order that she could be cross-examined by the appellant’s trial counsel. The prosecutor asked for her name, address and occupation. The account she gave in cross-examination was confirmatory of the applicant’s account and contradicted the complainant’s evidence. The prosecutor made no application under s 38 of the Evidence Act.

5. [115]

   In closing address, the prosecutor submitted that the jury might think that the applicant’s daughter had given “a version of the event … to support a cock-and-bull story made up by a father” (extracted by Greg James J at [32] of Walton). He also said (extracted at [35]):

6. [116]

   Greg James J (Beazley JA and Newman J agreeing) said:

7. [117]

   In R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34 (Kennedy), the appellant appealed against his convictions for two sexual offences committed against his stepdaughter (his wife’s daughter). The complainant’s mother was called as a prosecution witness. Studdert J (Heydon JA and Greg James J agreeing), at [39], listed the evidence which she gave which was directly contrary to the complainant’s evidence and favourable to the appellant’s case:

8. [118]

   The prosecutor did not put to the complainant’s mother any questions which would have given her an opportunity to answer the suggestion, which was ultimately put by the prosecutor in closing address, that she had tried to protect the appellant in her evidence and was doing her best to look after his interests. This Court upheld the ground of appeal that this had occasioned a miscarriage of justice on the basis that “[w]hat happened amounted to a serious irregularity”: [40].

9. [119]

   In R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345, the appellant, an off-duty police officer, was convicted of inflicting grievous bodily harm by throwing a glass. Only one of the Crown witnesses, a man whom the appellant had recently arrested, gave evidence that he saw the appellant throw the glass. Other witnesses, some of whom were also off-duty police officers and another who was a friend of the appellant, gave evidence that they did not see who threw the glass. In closing address, the prosecutor said (extracted at [10] of the reasons):

10. [120]

    This Court continued:

11. [121]

    Tobias JA (Adams J and Smart AJ agreeing) explained the prosecutor’s forensic purpose at [24]:

12. [122]

    Tobias JA at [26]-[30] held that, at the very least, the trial judge should have directed the jury to ignore the prosecutor’s submission that the off-duty police officers were covering up for the appellant and that his Honour’s failure to do so had resulted in the trial miscarrying, although no such direction had been sought by the appellant’s trial counsel. In addition, the Court held that the unreasonable verdict ground ought be upheld because of the discrepancies in the evidence.

13. [123]

    In Soames v R [2012] NSWCCA 188 (Soames), (Latham J, Allsop P and Davies J agreeing) this Court held that a prosecutor was entitled to put submissions in closing address to the jury that a prosecution witness was unreliable in circumstances where the basis for the asserted unreliability had not been put to the witness in cross-examination.

14. [124]

    In Soames, the complainant, the appellant, and associates, Ms Munro and Mr Duncan had attended a night club together. Mr Duncan offered the complainant a lift home. However, he detoured to a house in South Penrith first, where Mr Buckley was present. Mr Duncan and Ms Munro went to the main bedroom of the house for the purposes of having sexual intercourse. On his way to the main bedroom, Mr Duncan motioned to the complainant and told her that there was a spare bedroom where she could have a lie down if she wanted to (before he took her home). The complainant accepted the invitation, went into the spare bedroom and lay on the bed. The complainant’s evidence was that shortly afterwards the appellant came into the bedroom and had sexual intercourse with her without her consent. She said that she “did not scream or cry out for help because she was petrified and crying”. The appellant’s case was that the sexual intercourse was consensual.

15. [125]

    Mr Duncan, who was called in the Crown case, gave evidence, including that the appellant came out of the bedroom asking for a condom. The prosecutor applied for, and was granted, leave under s 38 of the Evidence Act to cross-examine Mr Duncan.

16. [126]

    Mr Buckley gave evidence, which supported the appellant’s case, that he saw the appellant in the loungeroom asking for a condom. Mr Buckley said that he went to the main bedroom and told Mr Duncan to leave. However, Mr Buckley also gave evidence (which supported the appellant’s case that the sexual intercourse between the appellant and the complainant was consensual) that he then went with Mr Duncan to Mr Lee’s bedroom, where all three of them sat and listened to ‘moaning’ and ‘panting’ sounds from the spare bedroom. His evidence was, in that respect, inconsistent with Mr Duncan and Mr Lee’s evidence.

17. [127]

    Mr Buckley acknowledged in his evidence that the appellant was a “really close friend.” No application pursuant to s 38 of the Evidence Act was made in respect of Mr Buckley.

18. [128]

    In the closing address, trial advocate for the Crown submitted that both Mr Buckley and Mr Duncan had given unreliable evidence which was designed to assist their friend (the appellant).

19. [129]

    The appellant appealed against his conviction on several grounds, including that the verdict was unreasonable. He relied on several aspects of the evidence, which he submitted impugned the complainant’s credibility, including the following:

20. [130]

    The Court (Latham J, Allsop P and Davies J agreeing) rejected the unreasonable verdict ground. However, in a further ground, the appellant argued that there had also been a denial of procedural fairness. Latham J said of this ground:

21. [131]

    Latham J reviewed the authorities, including Teasdale, before noting that, in Soames, Mr Duncan had been cross-examined by the prosecutor and that the evident purpose of that cross-examination was to impugn his credit. Her Honour addressed the prosecutor’s failure to cross-examine Mr Buckley as follows:

22. [132]

    In R v Macfie (No 2) (2004) 11 VR 215; [2004] VSCA 209 (Macfie), the Victorian Court of Appeal considered an appeal against conviction where the prosecutor, having called the complainant’s parents, sought in closing address to impugn their evidence. The alleged unfairness of the prosecutor’s address was a proposed ground of appeal.

23. [133]

    The prosecutor submitted in address that, because the complainant’s parents knew that she was sleeping in the same bed as the appellant, they were, in effect, complicit because they wanted the appellant’s money (he had heart problems and had told the complainant’s parents that he needed someone to look after him). The prosecutor submitted that, in these circumstances, the complainant might have thought that there was no point complaining to her parents. Eames JA (Callaway and Buchanan JJA agreeing), at [29], recounted what had occurred at the trial, including:

24. [134]

    Eames JA referred to Walton (as MRW) and distinguished it on two separate bases, only the first of which is relevant (the second related to the absence of an equivalent to s 38 of the Evidence Act in Victoria). His Honour said:

Consideration

1. [135]

   The concept of “credibility” is a wide one. There are, accordingly, several bases on which it can be challenged, ranging from an allegation that the witness has been mistaken to an allegation that a witness has lied as a consequence of a conspiracy to give false evidence with the intention of perverting the course of justice. In Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431, Lord Pearce said:

2. [136]

   It can be seen from the review of the authorities set out above that, whether a prosecutor can make a submission impugning the evidence of a prosecution witness where no application under s 38 of the Evidence Act is made depends on the basis upon which the credibility (in the sense which includes reliability) is sought to be impugned and the circumstances of the trial, including the other evidence.

3. [137]

   Where the attack on a witness is a significant one and involves a positive proposition of wrongdoing, it will usually be necessary for the prosecutor to seek leave to cross-examine the witness pursuant to s 38 of the Evidence Act to lay the foundation for the submission. If no such leave is sought, the conviction may be set aside on the ground of unfairness to the appellant or because it is unreasonable. The cases where this has occurred include Walton, where the prosecutor submitted that the appellant’s daughter had agreed with her father to give false evidence; Teasdale, where the prosecutor submitted that the off-duty police officers had conspired to give false evidence that they did not see the appellant throw the glass; and Kennedy, where the prosecutor submitted, in effect, that the appellant’s wife had given false evidence to protect him.

4. [138]

   However, where it is plain that the evidence of a witness is challenged by the Crown because it is obviously contrary to the Crown case and the witness is clearly partisan (because of a relationship with the accused/appellant) and the attack made on the witness is merely that his or her evidence is incorrect or ought not be accepted, because of the relationship (as in Soames) or motive (as in Macfie), the prosecutor will not necessarily be obliged to seek leave to cross-examine under s 38 of the Evidence Act as a pre-condition to the propriety of making a submission that the witness’s evidence ought not be accepted.

5. [139]

   Pell is in a separate category. The offences charged in Pell were alleged to have occurred within a highly prescriptive, ceremonial setting, where tradition, practice and protocol dictated a nigh-on invariable practice from which any deviation would have been not only remarkable but also remarked upon, and obvious to the participants. The prosecutor neither laid a foundation for a challenge to the prosecution witnesses, nor invited the jury to reject their evidence on any particular basis. Nor was there any basis in the evidence for rejecting their evidence, it not having been put, for example, that these witnesses were giving false evidence to protect the appellant because of his high standing in the Catholic church. Indeed the honesty of the prosecution witnesses who gave evidence about the appellant’s location and passage through the cathedral before, during and after the ceremony was accepted. The reliability of the substantial number of prosecution witnesses who gave consistent evidence of these matters could not reasonably be impugned in the absence of a direct attack. Because of the significant inconsistency between their evidence (the effect of which was that there was no opportunity for the sexual assaults alleged to have been committed by the appellant to have occurred) and that of the complainant, the verdicts based on the complainant’s evidence were held to be unreasonable.

6. [140]

   In the present case, the evidence of dogs, tiled floors, light sleepers, creaky doors, the time at which the sun rose and the usual waking hours of other members of the household was not of a calibre which was capable of reaching anywhere near the “cascading improbabilities” of the appellant having the opportunity to commit the offences referred to by the High Court in Pell. The offences charged in the present case occurred within a family home. The first two offences were alleged to have occurred in the applicant’s bedroom after he had showered (when the applicant’s father, who might otherwise have been there could be expected to be absent) and the balance of the offences occurred at night when many of the inhabitants of the house could be expected to be asleep and where the applicant’s conduct could go undetected by anyone other than the complainant, who was sworn to secrecy.

7. [141]

   It was open to the jury to consider that the applicant walking sometime during the night along the corridor from his own room (where his father was also sleeping) to the spare room where the complainant slept would have been so unremarkable as neither to disturb any of the sleeping persons or the dogs nor, if any were conscious of the disturbance, to cause them to rouse, in the case of the dogs, nor, in the case of the people, to recall it. Any creaking of the doors would presumably have become background noise as it was, according to the evidence of the general creakiness of the doors, usual.

8. [142]

   It was also open to the jury to find that the evidence given by the applicant’s mother and stepfather of the spare room being piled high with items such that the complainant could only reach her bed by climbing over the bedhead was, at the very least, mistaken. The jury might have considered that, even if the witnesses believed it to be true when they were giving their evidence, it was plain, having regard to the whole of the evidence, that their evidence could not be accepted. The inference of mistake could readily be drawn by the jury in circumstances where Mr Dalton was at such pains to emphasise the alleged forensic disadvantage which the applicant suffered because he had not known of the specifics of the allegations earlier.

9. [143]

   The jury may well also have been influenced in weighing up the probative value of the evidence of the applicant’s mother and stepfather about the furniture being in the spare room by the complainant’s cogent recollection, ten years after the event, of the lay-out of the spare room, including the placement of the bed and the bedroom furniture. It was open to the jury to reason that, whatever might have been the state of the spare room on another occasion, it was not cluttered by stored items when the offences were committed. It was also open to the jury to reason that the value of the complainant’s evidence was not reduced by the circumstance that this was not the only occasion on which she had slept in the spare room.

10. [144]

    It is also significant that Mr Dalton did not object to the prosecutor’s address but, rather, chose to address it himself in the defence closing. He did not limit his critique to the Crown’s suggestion that the witnesses had been mistaken and told the jury (contrary to the fact) that the Crown was suggesting that these highly regarded witnesses had “perjured themselves and … conspired to pervert the course of justice” (see extract above). Had the Crown put such a submission, the present case would have been in a similar category to Walton, Teasdale and Kennedy. However, it did not. The Crown’s submission was even more understated than in Soames: the proposition that the witnesses might have been mistaken was the most charitable and minimalistic way of inviting the jury to reject it.

11. [145]

    Had an application under s 38 of the Evidence Act relevantly been made and acceded to, all that the prosecutor could have put to establish a basis for the submission was, “Is it possible that your evidence about the timing of the items stored in the spare room was mistaken?”, to which it can be expected that the witness would have responded either, “No” or, “It’s possible.” The obligation of a prosecutor to put matters to a witness before impugning that witness’s evidence depends on the circumstances. In the present case, having regard to the obvious conflict between the complainant’s evidence on the one hand and the evidence of the applicant’s mother and stepfather on the other about the spare room, there was no need for the prosecutor to do more than she did.

12. [146]

    Further, when Mr Dalton raised in an adjournment during the summing up the point that it had not been put to the applicant’s mother and stepfather that they were wrong about the timing of the storage in the spare room, he confirmed that he was not taking a Browne v Dunn point and merely submitted that there was no evidence that the applicant’s mother or stepfather were wrong. The evidence that they were wrong came from the complainant herself, who denied that there were such items in the spare room when she was there at the time of the offences. It was open to the jury to accept the complainant’s evidence and reject the evidence of the applicant’s mother and stepfather to exclude as a reasonable possibility that the spare room was so full of furniture, boxes and other items that counts 3-6 could not have been committed.

Conclusion

1. [147]

   It is an inevitable consequence of the duty of a prosecutor to call relevant witnesses (if only to make them available to be cross-examined by the accused’s counsel) that there may be inconsistencies between prosecution witnesses. Every case will call for the prosecutor to adjudge whether an application under s 38 of the Evidence Act ought be made, and on what basis, in respect of a particular witness and, if no such application is made, what submission can properly be made in respect of such witnesses whose evidence does not fit within the Crown case as opened or as put to the jury in closing. The authorities which I have summarised above demonstrate that no general rule can be laid down although guiding principles can be articulated, as I have endeavoured to do above.

2. [148]

   In the present case, the complainant’s evidence was cogent and contained detail consistent with honest recollection. Her JIRT interview was conducted when the events which comprised the offences could be expected to have been fresh in her memory. It was open to the jury to regard the way in which she expressed herself, the revulsion she felt at the sight of the applicant’s penis, her conclusion that what was coming out of his penis was not, in fact, “pee”, as well as her acknowledgment that she had been expecting (and hoping) that the applicant would kiss her as consistent with the perspective of a 10-year old child. As befitted her age, she was sexually naïve, immature and had never been exposed to such matters before this event. It was also open to the jury to consider that the complainant’s desire not to get the applicant into trouble and her suggestion that a suitable punishment might be to require him to clean a whole floor with a toothbrush demonstrated the truth of what she described in her JIRT interview. The jury was entitled to regard her recollection of the “deal” the applicant tried to make with her, that he would play “I-spy” and hide-and-seek with her if she “follow[ed] the rules” when he touched her sexually as adding to her credibility because it was an extrinsic, peripheral detail which she remembered when she was interviewed on 5 October 2011.

3. [149]

   The jury was entitled to regard any differences between the JIRT interview and the statement made in 2018 as entirely explicable by the passage of time, particularly in circumstances where the complainant had not seen the JIRT interview before giving her further statement in 2018. Further, it was open to the jury to regard the concessions which the complainant made in her evidence at the trial as to what she no longer remembered as supporting her credibility rather than detracting from it. The jury may have considered that the circumstances that the applicant was not prosecuted soon after the JIRT interview but was later prosecuted could be explained by developments in police practices with respect to child sex offences between 2011 and 2018 rather than as reflecting any scepticism harboured by the initial OIC regarding the complainant’s evidence (which would have been irrelevant, in any event), as Mr Dalton insinuated in his closing address.

4. [150]

   Having reviewed all of the evidence in the trial, I am satisfied that it was open to the jury to accept the complainant’s evidence of the offences beyond reasonable doubt and convict the applicant of the offences charged. I confirm that I have no doubt as to the applicant’s guilt of the six offences of which he was convicted.

5. [151]

   Given the importance of the principles raised and the detailed consideration of their application to the present case, I am disposed to grant leave to appeal, although, for the reasons given above, the appeal ought be dismissed.

Proposed orders

1. [152]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [153]

   PRICE J: I have had the considerable advantage of reading the judgments in draft of Adamson JA and Fagan J. However, it is incumbent upon me to make my own independent assessment of the sufficiency and quality of the evidence. The question is whether I am satisfied that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each of the counts on the indictment.

3. [154]

   In independently reviewing all of the evidence, I have taken into account the forensic disadvantage experienced by the applicant arising from the delay in being confronted with the specific allegations with which he was charged. The applicant gave evidence that “it would’ve been 2018, when the case was brought back” and he was provided “with the fact statements”. [1]

4. [155]

   The trial judge carefully instructed the jury on the forensic disadvantage that the defence had experienced by the delay, which included the inability to call people who had attended the garage sale; that the applicant’s father might have remembered the weekend; that the applicant himself may have remembered the weekend and what was in the spare room where the complainant was sleeping.

5. [156]

   The trial judge warned the jury that before they convicted the applicant, they must give the prosecution case “the most careful scrutiny” [2] bearing in mind the effect of the delay and “the absence of the opportunity to pursue items of what might have been additional evidence”. [3]

6. [157]

   The central issue in the trial was the honesty and reliability of the complainant’s evidence. The evidence adduced by the Crown included the testimony of the applicant’s mother and stepfather about the items in the spare room where the complainant slept and the Crown contended that the sexual offending in counts 3 to 6 occurred.

7. [158]

   During the trial, Mr Dalton cross-examined the complainant about the items in the spare room. She firmly rejected the applicant’s case that the room was stacked with boxes which would have prevented the sexual offending to take place.

8. [159]

   In my view, it was open to the jury to accept the complainant’s evidence and to find that the applicant’s mother and stepfather were mistaken. Furthermore, it was open to the jury to reject the applicant’s case that the offending could not have occurred without the knowledge of his father.

9. [160]

   It should not be overlooked that the jury had the opportunity of viewing the JIRT interview and seeing and hearing the cross-examination of the complainant; the testimony of the applicant’s father, mother and stepfather; the testimony of the applicant himself and the other witnesses in the trial.

10. [161]

    I am grateful for Adamson JA’s comprehensive disposition of the arguments advanced by Mr Dalton in this Court and for the additional reasons of Fagan J. I agree for the reasons provided by their Honours that the applicant’s reliance on Pell was misplaced. I also agree with Adamson JA’s conclusion at [147]-[152] above.

11. [162]

    Having born in mind the trial judge’s warning that the prosecution case must be carefully scrutinised in my independent assessment of the whole of the evidence, I am satisfied that it was open to the jury to accept the complainant’s evidence of the offences beyond reasonable doubt. I am satisfied that it is not a reasonable possibility that the applicant is an innocent man who has been wrongfully convicted.

12. [163]

    I agree with the orders proposed by Adamson JA.

13. [164]

    FAGAN J: Having read the entire trial record, as has been necessary for determination of the applicant’s unreasonable verdict ground, I agree with Adamson JA’s analysis, conclusions and proposed orders.

14. [165]

    The applicant’s main claim of unavoidable reasonable doubt was based upon the evidence of his mother and stepfather about placement of household goods in the spare room where the complainant slept and where the offences in counts 3-6 were alleged to have been committed. At the hearing of the leave application the applicant did not abandon his lesser points – the asserted constant presence of the applicant’s father such that counts 1 and 2 could not have been committed without his knowledge, the creaking doors, the alert and curious dog, the light sleep of the applicant’s stepfather, the location on the floor of the applicant’s room where his father slept and the father’s habit of rising at 6:00 am. Despite being maintained as part of the argument, none of those lesser points, individually, involved a circumstance so invariable or definitive that the jury, acting rationally, was bound to have a reasonable doubt concerning the complainant’s evidence. In combination those points did not become any more invariable, definitive or incapable of being reconciled with the complainant’s evidence. It was open to the jury to conclude that the applicant’s father may have been out of his bedroom during the few minutes required for the applicant to commit counts 1 and 2. The jury could reasonably have reconciled the occupants’ testimony, that they were unaware of movement during the night when counts 3-6 were committed, to the complainant’s evidence. They could have made such a reconciliation if they found the complainant’s account of events sufficiently impressive that, for example, they concluded the dog must not have stirred loudly enough to disturb others in the house on this occasion, or that the doors must not have made enough noise to cause anyone to wake and investigate, or that the applicant’s father must have slept a little past his usual waking time – and so on.

15. [166]

    As for the principal point concerning goods stored in the spare room, the complainant gave evidence that she was sleeping on the left-hand side of the bed, as viewed from the foot. She said that the applicant came to that side, woke her and committed the offences in counts 3-6 first while sitting beside her on the edge of the bed and then with her kneeling on the floor beside it. In arguing that the jury must have had a reasonable doubt about those events, the applicant characterised as “unchallenged” the evidence of his mother and stepfather concerning boxes and bags that blocked access to the left-hand side of the bed. That submission referred to the lack of cross-examination of the mother and stepfather but failed to deal with direct contradiction of them, by the complainant herself.

16. [167]

    The applicant laid great stress upon Pell v The Queen, particularly, as I understood the argument, the High Court’s consideration of the evidence of the witness Portelli. Portelli said he had an actual recollection of the appellant engaging with congregants at the steps of the Cathedral for at least 10 minutes on the occasion of the first alleged assault in December 1996. If correct, that would have made it impossible for the applicant to have been in the priests’ sacristy when the assault was said to have taken place. Portelli also said that he accompanied the appellant to the sacristy, which would have made it impossible for the offence to have been committed by the appellant upon entering the room alone, as the complainant alleged. Portelli was not cross-examined to suggest that he was in error on those points. Nor did the Crown call any witness who purported to contradict Portelli on either matter. The fact that Portelli’s evidence was, as the High Court described it, unchallenged was central to the decision that the jury ought to have had a reasonable doubt about the sexual assault alleged to have been committed in December 1996: [61], [88], [91], [101], [118], [119]. Portelli’s evidence of circumstances giving rise to reasonable doubt about whether it was possible for the offences to have occurred was unchallenged either in cross-examination or by the adducing of evidence to contradict those circumstances directly.

17. [168]

    Portelli also gave evidence that he was with the appellant at the Cathedral on the occasion of the second alleged offence, in February 1997, and that the appellant’s practice of engaging with congregants after Mass for at least 10 minutes was invariable and would have been followed on that occasion. He said it was invariable that the appellant would be accompanied when he returned to the vicinity of the priests’ sacristy, near to which the second sexual assault was said to have taken place. Again, there was no cross-examination of Portelli to suggest that he was not present or that the practices described were not invariable and nor was any witness called to contradict him directly. The High Court’s decision that the jury ought to have had a reasonable doubt about the offending on this second occasion rested in significant part upon Portelli’s evidence having gone to the jury unchallenged: [126], [127].

18. [169]

    The applicant’s reliance upon Pell v The Queen as if the decision were determinative of the present application is misplaced. Unlike the situation in that case, the complainant in the present matter gave evidence directly refuting the supposed circumstance of impossibility concerning counts 3-6. She denied that there were boxes or bags of household goods in the spare room obstructing access to the left-hand side of the bed, where she said the offences were committed. In Pell v The Queen the complainant was not in a position to give evidence directly disputing Portelli’s account of the appellant having remained with members of the congregation for upwards of 10 minutes; nor was he able to dispute the practice of the appellant being accompanied around the Cathedral. The complainant’s evidence of the assaults upon himself was inconsistent with the testimony of Portelli but, in the absence of challenge to that witness in cross-examination, the jury were left with no basis upon which to exclude the reasonable possibility that he was right and that the offences therefore could not have been committed. None of that applies in the present case. It was open to the jury to prefer the evidence of the complainant that access to the bedside was not obstructed by stored goods, over the evidence of the applicant’s mother and stepfather on that subject. That preference was open, beyond reasonable doubt, notwithstanding the absence of cross-examination of the mother and stepfather concerning the contents of the spare room and irrespective of counsel’s submissions about the matter in final address.

19. [170]

    Full consideration of the evidence does not cause me to feel a reasonable doubt regarding the applicant’s guilt on any of the counts. I am not persuaded that the jury ought to have had a reasonable doubt. I would grant leave but dismiss the appeal.