ABR (a pseudonym) v R

The trial

1. The complainant and YB both gave sworn evidence. Pursuant to Criminal Procedure Act 1986 (NSW), s 306U(2), the evidence in chief of each was given by way of the electronically recorded interviews. Each was then cross-examined from a remote location in accordance with Criminal Procedure Act, s 294B. The complainant maintained that the applicant would rub her vagina when he picked her up and, after initially saying that she could not remember having touched his penis, that she had done so. She also rejected the suggestion that before her initial disclosure to her mother, CM had told her what to say to the police. In his evidence YB, having first said that he did not see his sister touch the applicant's "private part", gave evidence that he did see her touch it whilst they were in her bedroom and demonstrated how that occurred.
2. In the Crown case, evidence was also given by CM and her mother, the complainant's father and Senior Constable Sims. CM and the complainant's maternal grandmother gave evidence of the complainant's first disclosure of the applicant's conduct, with the latter saying that the complainant told her that the applicant "had rubbed her and tried to put his finger in her".
3. The applicant did not call or give any evidence, but his ERISP was admitted in evidence and played to the jury. The series of text messages exchanged between the applicant and CM immediately after the complainant's first disclosure to her mother became Exhibit B. In response to CM's messages including "[For fuck's sake] you touched my daughter" and "[You're] lucky I don't press charges", the applicant sent the following: "Go do it then, she was the one climbing all over me rubbing herself on me", "Touched what? She's always been fully clothed and rolling all over me", "Bit hard not to when she's rubbing it on me" (in response to a message that "Like I said it's not my fault you like rubbing 7 [year old] girls on the vagina!!!"), "[Because] it wasn't anything wrong, she kept asking me to pick her up", "100 times", "She stuck it in my face and hands" (in response to a message that "… you are the one that touched a little girl on the [vagina]"), "These things only [happened] when she was jumping all over me" and "I've never seen [the complainant]'s vagina, how on earth am I supposed to have put fingers in it?". In his ERISP, the applicant's explanation for those messages was that the only contact that had occurred was when the complainant climbed over him or jumped on him in the morning to wake him up or play with him. His evidence was that there was "no deliberate rubbing of any vagina" and that it was "inevitable" that there would be some degree of rubbing during play although "it wasn't deliberate in my point to actually you know, make any contact".
4. On the second last day of the trial, a statement of agreed facts dated 14 September 2017 was admitted without objection and became Exhibit D. The statement concerned three matters that were the subject of a Crown tendency notice dated 31 August 2017. The first was a summary of Google searches made on two computers belonging to the applicant - a Hewlett-Packard laptop used in 2011 that contained search terms including "preteen first orgasm penetration", "full vaginal penetration of prepubescent girl", "preteen vagina", "14 yr old girl vagina pics"; and an Apple Mac laptop that contained search terms including "14 yo old vagina" and "child clitoris" dating to 2015. The second was six saved "images of pre-pubescent vaginas" found on the Hewlett-Packard laptop and the third was ten "pornography" websites extracted from the browsing history of that laptop. The computers were handed over to the police by CM who gave evidence that the Apple Mac laptop was the laptop she had seen the applicant use while they were living together, and that she found the Hewlett-Packard laptop, which she had not seen before, among the belongings of the applicant.
5. On 11 September 2017, the first day of the trial, and after contested argument, evidence of the Google searches and of the images of "pre-pubescent genitalia, more particularly vaginas" found on the Hewlett-Packard laptop was admitted pursuant to Evidence Act, s 97. The trial judge reasoned: In this case the accused, on the Crown case, has acted on his interest by accessing material on the internet, specifically material relating to pre-pubescent vaginal areas, and sexual activity of an inappropriate type with pre-pubescent children. That material strongly supports the Crown's tendency argument. The second matter is the extent to which the tendency makes it more likely the facts which make up the charged offence. In this case the complaint from the complainant illustrates, if accepted, a focus on her vagina by the accused, she being but six or seven years of age; the focus being touching and also the sniffing of her vagina by placing his nose close to her vagina. In this case there is further evidence which may be relevant if accepted by the jury, and that is the content of the initial conversation between the complainant's mother, the lady that the accused had been in a relationship with, and the accused. On the tenor of that conversation it is open to the jury to conclude that the accused did not initially deny his conduct, but sought to excuse it by saying that the child was overly familiar and overly physically affectionate. Given that material, the tendency, if established, is likely to have a high degree of probative value as it strongly supports the tendency suggested, that is, that the accused had a sexual interest in pre-pubescent girls, more particularly their vaginas, and that tendency of itself then strongly supports the proof of a fact that goes to make up the charge in each of the six counts in the indictment.
6. On that basis the trial judge was satisfied that the proposed tendency evidence had "significant probative value" (s 97(1)(b)). His Honour separately addressed the requirement that in criminal proceedings, tendency evidence about a defendant may not be used against the defendant "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant" (s 101(2)). In circumstances where the Crown did not propose to tender any of the six photographs of prepubescent vaginas downloaded by the applicant, the trial judge concluded that the probative value of the evidence substantially outweighed any prejudicial effect it might have on the applicant.
7. By the later statement of agreed facts, the applicant agreed, for the purposes of the application of Evidence Act 1995 (NSW), s 191, that he completed searches on the Hewlett-Packard laptop in 2011 and the Apple Mac laptop in 2015 using the relevant search terms, that he visited the ten "pornography" websites and that he saved the six images of "pre-pubescent vaginas" onto the Hewlett-Packard laptop. The Crown relied upon that statement as evidence that the applicant had a sexual interest in pre-teenage or pre-pubescent girls, making it more likely that on the occasions in question he had that state of mind and interest, in turn increasing the likelihood that he had acted in the way described by the complainant in her evidence.

The grounds of appeal

1. As has already been observed, many of the grounds of appeal are concerned with directions, omissions to direct or decisions as to the admission or rejection of evidence. The remaining grounds contend that the verdicts were unreasonable and could not be supported, having regard to the evidence. It is convenient first to deal with the specific grounds, before turning to grounds 1, 19 and 20 which contend the verdicts were unreasonable.

Ground 2: Applicant did not sign the 'agreed facts' document

1. The applicant maintains that he did not sign or see the statement of agreed facts, which was tendered on 14 September 2017, until 5 December 2017 at a time when he was representing himself and making an application for bail pending an appeal. Relying on affidavit and oral evidence of the solicitor, Mr James Corcoran, and counsel, Mr Bill Neild, who represented the applicant at the trial, the Crown's position is that the terms of the statement of agreed facts were explained to the applicant by his lawyers before the final version was signed by the applicant and witnessed by Mr Corcoran. In addition to that evidence the Crown relies on two further documents purporting to be signed by the applicant and witnessed by Mr Corcoran which record his instructions in relation to the subject matter of the agreed facts - the first typewritten and dated 13 September 2017, and the second handwritten and dated 14 September 2017. Mr Corcoran and Mr Nield were cross-examined in relation to the disputed circumstances in which the statement of agreed facts was produced and tendered, including whether, as the applicant asserts, that document and the handwritten letter of instructions contain his "forged" signature.
2. For the reasons which follow, I am well satisfied that the effect of the statement of agreed facts and its annexures was explained to the applicant by his lawyers before it was signed by him and tendered in evidence. I am also satisfied that the two documents recording the applicant's instructions in relation to the subject matter of the agreed facts were signed by him.
3. On 11 September 2017 the trial judge ruled that the proposed tendency evidence could be admitted. There then arose an issue as to the proof of the facts relied on, in particular in relation to the applicant's asserted use in 2015 of the Apple Mac laptop to make the three searches which were eventually included in the annexure to the statement of agreed facts titled "google searches 2".
4. The typewritten instructions dated 13 September 2017 included the following statement of the applicant: 4. The google searches on the HP laptop computer which were relied upon by the Crown as tendency evidence were performed by me. The photos that accompany those searches may have been on the computer as a result of those searches, but I did not know that they were on the computer. I have no memory of performing the google searches on the Apple computer.
5. During the cross-examination of CM on 14 September 2017 defence counsel suggested that CM had conducted one or more of the three searches on the Apple Mac laptop. There followed, in the absence of the jury, exchanges between counsel and the trial judge as to how the Crown proposed to deal with the apparent issue concerning who was responsible for those searches. The Crown indicated that it would seek to adduce evidence of the applicant's use of that laptop to have communications on Facebook with a twelve year old girl in which he expressed a sexual interest in her. In the course of discussions with counsel, the trial judge indicated that he was inclined to admit that evidence. There followed a conference between the applicant, counsel and his instructing solicitor. In the course of that conference, Mr Nield advised the applicant that if he did not admit to having undertaken the three searches on the Apple Mac laptop, the likelihood was that the evidence of the Facebook conversation with the pre-teen girl would be admitted. The Crown then produced a draft of the statement of agreed facts, including its annexures, and the applicant agreed to sign the document.
6. The handwritten instructions dated 14 September 2017 were then prepared. They included the following statements by the applicant: 1. … in relation to the tendency evidence in the form of the Google searches on the Apple laptop, I accept that these searches were performed by me and I am prepared to sign an agreed fact to that effect. 2. I understand that if I do not agree to this course, the Crown will be permitted to adduce evidence of the other material on that computer including the facebook chats with [X and Y].
7. In the afternoon of 14 September 2017 Mr Nield, in the absence of the jury, advised the court that "There is now an agreed fact in relation to [the applicant's] having performed the searches on the Apple computer which has obviated the need for any further evidence". To which the Crown responded: The flirting with the little girl, I will leave that alone, so at the conclusion of [CM's] evidence I would be tendering this document which is the agreed fact which has as its schedule, the searches.
8. All of this happened in the presence of the applicant, as did the tender of the statement of agreed facts and the trial judge's detailed summary of what those facts were and the effect of the applicant's agreement to them being that there was no longer any issue that the applicant had accessed a number of sites dealing with pre-pubescent girls and pre-teens and downloaded images of pre-pubescent vaginas onto the Hewlett-Packard laptop.
9. The applicant's version of these events is somewhat different. He says that he did not see or sign the handwritten letter of instruction and that his purported signature on it is a forgery. He also maintains, contrary to the earlier typewritten instruction, that there was never an acceptance or admission on his part to any of the searches or materials. He accepts that on 14 September 2015 he was shown a page headed "Annexure 'google searches 2'" listing three Google search terms. He however maintains that he understood that he was signing a page to confirm that he had been shown what were alleged to be the searches undertaken by him on the Apple Mac laptop.
10. Whilst accepting in his oral evidence in this Court that the signature on the statement of agreed facts appearing above that of Mr Corcoran was his, the applicant was unable to provide any explanation as to how it got on the page. At the same time, the applicant accepted that he was present in the courtroom when the jury was told on at least two occasions, including in the Crown's closing address and the trial judge's summing up, that it was agreed that he had undertaken the relevant searches on the Hewlett-Packard laptop in 2011 and on the Apple Mac laptop in 2015. Notwithstanding that according to his evidence none of that was correct and that he appreciated the jury would act on the basis that what they had been told was true, the applicant accepted that he did nothing to express any concern about that subject, either with his lawyers or to the trial judge.
11. The applicant's version of events is contradicted by the evidence of Mr Corcoran and Mr Nield which in turn is wholly consistent with the two letters of instructions and the sequence of events described above and recorded in the transcript. The suggestion that the applicant sat through the trial proceedings without appreciating that a statement of agreed facts bearing his signature had been prepared and tendered as part of the Crown case, and without saying something either to the court or his lawyers in circumstances where he maintained that he had not seen or signed such a document, is fanciful. This ground of appeal must be dismissed.

Grounds 3-5: The trial judge erred in ruling admissible the evidence relied on by the Crown as tendency evidence

1. In its tendency notice dated 31 August 2017 the Crown pressed the relevant evidence as proof in the applicant of a tendency to "have a particular state of mind, namely a sexual interest in under-age girls, inter alia and in particular pre teenage girls". That evidence included that the applicant had searched for and accessed child pornography (those search terms including "full vaginal penetration of prepubescent girl", "prepubescent hymen conditions" and "preteen vagina"), as well as saving photographs of the vaginas of pre-pubescent girls. In final argument and the trial judge's summing up, the tendency relied on was "to have a particular state of mind", that being "a sexual interest in pre-pubescent or preteen girls".
2. The applicant contends that this tendency evidence did not have "significant probative value" (s 97(1)(b)) and that in any event the evidence could not be used against him because its probative value did not substantially outweigh any prejudicial effect it may have had (s 101(2)). In relation to the question of probative value, the applicant contends that the evidence did not show a "preparedness to physically act on that state of mind", in particular by carrying out any assaults of the kind charged. In support of that argument reference is made to the statement of the plurality in McPhillamy v The Queen [2018] HCA 52 at [26], [27] (Kiefel CJ, Bell, Keane and Nettle JJ, Edelman J agreeing); (2018) 92 ALJR 1045 that proof of a "mature man's sexual interest in young teenage boys" relied on in that case was "not capable of meeting the requirement of significant probative value" because "Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value". The applicant also argues that to the extent the evidence indicates he had a state of mind it was proved only to have been acted upon by viewing pornography using a computer at a time four years before the alleged offences.
3. In relation to the question of unfair prejudice, the applicant contends that the probative value of the evidence did not outweigh the relevant prejudice, which was unable to be cured by any direction in circumstances where the evidence was said to contain "horrific and abhorrent material that an ordinary member of society would find so emotionally affecting" that he or she would not be able to separate that reaction from "the ability to remain objective and logical and [to] consider evidence impartially".
4. The first issue is whether the tendency evidence was or is of significant probative value: R v Bauer [2018] HCA 40 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); (2018) 92 ALJR 846. That probative value is to be assessed by reference to what the evidence is capable of proving, taking it at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [49]-[54] (per French CJ, Kiefel, Bell and Keane JJ); Bauer at [69].
5. As the decisions in Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20 at [57] (Kiefel CJ, Bell, Keane, and Edelman JJ) and DPP (NSW) v RDT [2018] NSWCCA 293 at [34] (Basten JA, Johnson and R A Hulme JJ agreeing) show, whether proof of a tendency to have a particular state of mind, being a specific sexual interest, increases the likelihood of the commission of an offence depends on the nature of that interest and of the alleged offending, and the issues which arise in the accused's defence of the charged conduct. The significance of the latter matter was explained by the majority in Hughes at [40]: In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded.
6. Counts 1, 2, 3 and 6 involve allegations that the applicant touched or rubbed the complainant's vagina on the outside of her underpants or pushed his nose into her vagina, to which one aspect of the applicant's defence was that any such conduct was innocent and incidental to his picking the complainant up in the course of play. The tendency evidence proved a sexual interest in pre-pubescent girls, and in particular in the vaginas of pre-pubescent girls. That state of mind was shown by the 2015 searches undertaken with the Apple Mac laptop to continue to the time of the alleged offending. The text message evidence was capable of supporting a finding that touching and rubbing had occurred, the question being whether it was unintended and innocent or deliberate and conscious. In these circumstances the fact of the applicant's sexual interest made it more likely that what the complainant reported to experience on a number of occasions was deliberate and committed in furtherance of the applicant's interest. For these reasons in my view the tendency evidence had significant probative value and the trial judge did not err in so concluding.
7. It is next necessary to consider the application of s 101(2). The prejudice with which it is concerned is the risk that evidence will be misused by the jury in an unfair manner, such as by provoking some irrational, emotional or illogical response: see Bauer at [73]. In deciding whether the probative value of the evidence substantially outweighs any such prejudicial effect the court may take into account the "ameliorating effect" of any directions that may be available: Dao v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [171] (Simpson J); BC v R [2015] NSWCCA 327 at [110] (Beech-Jones J, Simpson JA agreeing); (2015) 257 A Crim R 340. A further consideration is whether there is a real risk that notwithstanding directions given to the jury, they would nevertheless proceed to misuse the evidence on the basis that the applicant "was not deserving of the benefit of any reasonable doubt": Sokolowskj v R [2014] NSWCCA 55 at [56] (Hoeben CJ at CL); (2014) 239 A Crim R 528.
8. In the present case the trial judge directed the jury not to adopt any such reasoning, including that the jury could not reason that if the applicant had the relevant tendency he must necessarily have committed the offences; that they could not punish him for having the tendency if they found it proved; that they must understand that it is possible for a person to have a tendency but not to act on it; that they must not allow their minds to be clouded by emotional responses to the tendency evidence; and that they must not substitute the tendency evidence for evidence in proof of the counts on the indictment. To further guard against the possibility of such illogical reasoning by the jury none of the actual pornographic material saved or searched for, including the six images of pre-pubescent vaginas, was included in the tender.
9. In my view any potential for any such unfair prejudice resulting from the leading of the tendency evidence was redressed by the trial judge's directions and the fact that none of the underlying material was included in the tender. That was particularly so where the evidence of the complainant, her mother and her brother necessarily dealt with the subject matter of the charges and was equally likely to give rise to some irrational or emotional responses from the jury: cf. DPP (NSW) v RDT at [43] (Basten JA). In the circumstances I am satsified that the probative value of the tendency evidence substantially outweighed any prejudicial effect which it may have had. For these reasons grounds 3-5 should be dismissed.

Ground 6: Miscarriage of justice occasioned by destruction of defence evidence by police

1. The applicant told police in his ERISP: There were comments made by [CM], um, along the line that if we ever broke up she would destroy me, um. Now evidence of, of that is actually on my, on my mobile phone. But because I don't have my mobile phone I can't, I can't get it.
2. He later added that the statement that CM would "destroy" him was made in a number of text messages from her.
3. During the cross-examination of CM it was suggested that she had coached the complainant and her younger brother into making false allegations against the applicant. In that context it was suggested that before CM's former partner, who was the complainant's father, left the house they were then living in, she also threatened to make allegations against him that he had sexually interfered with the children unless he left the house, and that at a later time when she was living with the applicant she sent the applicant a text message to the effect: If you leave I will destroy you.
4. CM denied that she made any such threats to her former partner and to the applicant. To answer that suggestion, the Crown also called her former partner who said that CM never "threatened to get the kids to make up allegations of abuse against" him. In response to the suggestion that CM's threat to "destroy" the applicant was made in text messages, Senior Constable Sims gave evidence that CM's phone had been subject to a "complete forensic examination" and that there was no message to the applicant found on her phone saying "that if he ever left her she'd destroy him".
5. By this ground the applicant claims that the police disabled his Apple iPhone 6 Plus, thereby preventing him from being able to prove that CM had sent him the alleged text messages. He also claims that he was prevented from being able to access a back-up of that phone on his Apple Mac laptop as the access offered by the police during his trial "was not sufficient for me to recover the data on the iPhone". The applicant did not provide any explanation as to why that access was insufficient.
6. In support of this ground the applicant relies on the admission of his further affidavit evidence, principally an affidavit sworn 24 July 2019 of fifteen paragraphs. That evidence is "new" in the sense that it was available at the time of the trial, or could have been obtained at that time with the exercise of reasonable diligence. It follows, applying the principles laid down in Ratten v The Queen (1974) 131 CLR 510 at 516-517 (Barwick CJ, McTiernan, Stephen and Jacobs JJ agreeing); [1974] HCA 35, that the failure to call the "new" evidence could not cause a miscarriage of justice unless, when viewed in combination with the evidence given at trial, the evidence establishes that the applicant is innocent or that a doubt as to his guilt exists such that the conviction should not be allowed to stand: Ratten at 517-518; Mickelberg v The Queen (1989) 167 CLR 259 at 301 (Toohey and Gaudron JJ); [1989] HCA 35; R v Abou-Chabake [2004] NSWCCA 356 at [63] (Kirby J, Mason P and Levine J agreeing); (2004) 149 A Crim R 417.
7. That requirement is plainly not established in this case. The "new" evidence does not prove that any such text message was sent or arguably sent in circumstances where the making of such a threat was denied by CM, there was no message to that effect found on CM's phone following a "complete forensic examination", and the making of a similar threat to CM's former partner was also denied by him, calling into question the context in which it was said the alleged threat was made.
8. Looking at the matter more broadly, the relevance of the asserted text messages was as giving rise to one reasonable possibility being that CM had coached the complainant and her younger brother into making false allegations against the applicant. The text message exchanges between the applicant and CM immediately after the complainant's first disclosure include a number of statements by the applicant that are consistent with the complainant's evidence that touching and rubbing occurred, raising a question as to whether that conduct was deliberate. That being the position is not consistent with the contention that CM had "coached" the complainant and her younger brother into making false allegations of touching and rubbing, fulfilling an earlier threat that she would "destroy" the applicant if their relationship ended.
9. There is one further matter to which reference should be made. The applicant also refers to evidence given by CM in Local Court proceedings unrelated to (and after) the trial. The relevant transcript of those proceedings indicates that CM accepted that it was possible that after 22 July 2015 she had sent the applicant a text message to the effect that she would destroy him. However that concession does not corroborate the applicant's claim, which was directed to when their relationship commenced and not a comment made after the complainant's allegations had been made.
10. Accordingly, the "new" evidence relied on by the applicant is not capable of establishing that he is innocent, and does not create a doubt as to his guilt such that his conviction should not be allowed to stand. Accordingly there was no miscarriage of justice occasioned by his failure or inability to lead that evidence.

Ground 7: Miscarriage of justice occasioned by modification of the complainant's interview transcripts

1. The three recorded police interviews of the complainant were played to the jury, with copies of the transcripts provided to them as aide memoires. The provision of those transcripts was not objected to by defence counsel.
2. In his written submissions the applicant asserts that the transcript of the complainant's first interview was edited to remove a reference to a change in the questioning from "open to leading questioning". The applicant's submissions do not explain how any such editing gave rise to a miscarriage of justice.
3. In his affidavit of 28 October 2019, Mr Nield suggests that the relevant excisions were of questions 272 to 274 from the complainant's first interview. Those questions were excised because he considered that they were "irrelevant and potentially confusing to a jury". Although he did not believe he took specific instructions from the applicant in relation to the excision of those particular questions and answers, his recollection was that he "explained to the applicant in conference that [he] was engaged in the process of requesting edits … for the purpose of removing questions and answers which [he] considered to be irrelevant, unfairly prejudicial or for some other reason in his best interests to have excised". Mr Nield had no recollection of the applicant specifically raising with him those questions and answers, although he recalled the applicant did raise the inclusion of other previously excised questions and answers relating to the "competence of the complainant and her understanding of truth and lies".
4. Neither the applicant's submissions nor the excision of the questions and answers referred to by Mr Nield provide a basis for concluding that the edited transcripts given to the jury as aide memoires led to a miscarriage of justice. It cannot be said that the applicant as a result of the omission of that material lost a real chance of acquittal.
5. In these circumstances, leave to argue this ground should be refused under r 4. Defence counsel made a forensic decision, judged to be in the applicant's interest, to delete the relevant questions and answers: R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20] (Hunt AJA, Grove and James JJ agreeing); Roos v R [2019] NSWCCA 67 at [73] (Gleeson JA, Harrison and Davies JJ agreeing).

Ground 8: Error in failing to direct jury regarding accidental touching

1. In his summing up, the trial judge described the concept of indecency as follows: Indecent: the words "indecent" or "indecency" mean an act which is contrary to the ordinary standards of respectable people in our community… Can I say, there has been no suggestion - and obviously this is a comment - but there has been no suggestion that if in fact the accused did touch this seven-year-old girl on her vagina on the outside of her underpants, no one suggests that would not be regarded as an act of indecency, an intentional touching.
2. The trial judge continued: No one suggests that it would not be an indecent act to get a seven-year-old to touch the exposed penis of an adult. So there is no suggestion that these allegations cannot and do not amount to indecency.
3. The applicant contends that the trial judge erred in failing to direct the jury that accidental touching would not constitute an indecent assault. In my view his Honour's statement that "there is no suggestion that these allegations cannot and do not amount to indecency" was not misleading and, in context, was reasonably to be understood as concerned only with "intentional touching".
4. Earlier in the summing up the trial judge referred to the applicant's case that he did not "do it", leaving open the possibility whether "the child misunderstood something; whether there was some accidental touching, essentially; whether the mother has put her up to it". Having observed that the touching of the buttocks of a child may or may not be indecent depending on the circumstances, his Honour also directed the jury to address whether the touching could "be explained by accident, or can they be explained by misinterpretation in terms of play?". His Honour highlighted that it was unlikely to be an indecent assault if "you are a man or a woman holding your child on your back" or in circumstances where "somebody's falling and you grab them, and you grab them in the wrong place". In context it is clear that these examples, explained by accident or misinterpretation, were to be distinguished from circumstances in which the touching was intentional.
5. The primary position of the defence case was that the touching and rubbing did not occur in the way described by the complainant. The possibility of accidental touching was secondary, arising particularly in relation to counts 1-3. If the jury considered there was a reasonable possibility that any such touching happened inadvertently and unintentionally during the course of day-to-day life, it was open for them to conclude that it did not involve an act of indecency, because it was not an act contrary to the ordinary standards of reasonable people in the community. The trial judge made that clear during his summing up.
6. Finally there was no request for any redirection, consistent with the position being that defence counsel considered that the summing up as a whole made clear that inadvertent or accidental touching may not involve any indecent assault. Accordingly, r 4 applying, leave to argue ground 8 should be refused.

Grounds 9 and 13: Miscarriage of justice occasioned by trial judge's comments

1. By grounds 9 and 13, the applicant asserts that the trial judge erred in "expressing personal opinions and experiences and by leading the witness". These grounds identify two instances during the evidence and five in the course of the summing up in which it is contended that there was unfairness to the applicant by reason of what his Honour said. Ultimately the question must be whether the trial judge's comments were inconsistent with his obligation to give the jury accurate and fair instructions to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Thus, it must be shown that the judicial intervention created a "real danger that the trial was unfair": Galea v Galea (1990) 19 NSWLR 263 at 281 (Kirby ACJ, Meagher JA agreeing). As none of the seven matters complained of by these two grounds was the subject of complaint at trial, r 4 applies.

The matters during the course of the trial and before the summing up

1. The applicant submits that during CM's cross-examination the trial judge improperly intervened by suggesting an answer to CM. The relevant exchange occurred during a line of questioning clarifying whether CM had threatened to make false allegations of child sexual abuse against her former partner. CM had before the luncheon adjournment denied such conduct. After the adjournment, defence counsel returned to that line of questioning "just to clear any confusion up". The following exchange then occurred: Q. Firstly, I suggest to you that when [CM told the applicant that she had threatened to make false allegations of child sexual abuse against her former partner, that] was in the early stages of your relationship with [the applicant]? A. It wasn't said though. Q. I understand that. I'm suggesting to you that it was said then. What do you say to that? A. It wasn't said. How can I say? HIS HONOUR: That's fine. It's a matter of putting some clarity in terms of what he is suggesting to you. Obviously you've denied any conversation, but he is going to put in some detail in terms of when it's claimed that you said these things. So he will put that and you will maintain as you have so far, I'm assuming, that those things were never said.
2. The trial judge's intervention was directed to explaining to CM and the jury the import of defence counsel's questioning, and explicitly based on the assumption that CM would maintain the version of events that she had already given. There was no suggestion by the trial judge that CM give a particular answer, and no unfairness occasioned by his comment.
3. Later and in the absence of the jury, the trial judge discussed with counsel a range of matters that could possibly be the subject of directions in the summing up. They included whether there was any reason for CM to give false evidence and encourage the complainant to do so. In that context the trial judge said as to an aspect of the underlying facts, which turned on CM's relationship with her previous partner and his parents: "Frankly I find it all unbelievable on a personal level. I don't really want to go there". There was no unfairness resulting from that statement, as it was made in the absence of the jury.

Statements made by the trial judge during the summing up

1. When addressing the need for the jury to take into account various matters when assessing the honesty and reliability of witnesses, and in particular child witnesses, the trial judge suggested they consider the differences in the levels of intelligence and confidence of children, especially compared with adults. His Honour then referred briefly to his children and their different personalities to illustrate the need to take account of such differences. The applicant submits that comment mitigated "any elements of doubt" held by the jury as to the "truthfulness of the allegations". That argument mischaracterises his Honour's statement, which was directed to the manner in which the jury might understand a child's evidence and said nothing about the truthfulness or otherwise of the allegations made or any particular piece of evidence concerning them.
2. Secondly, the applicant contends that the trial judge, by stating that it is "quite difficult and unfair at times to criticise children about how they might give an answer", prevented the jury from taking inconsistencies or other matters into account when assessing the complainant's evidence. The comment was made in relation to an example of evidence given by a child witness in another case. It was directed to emphasising to the jury that children may understand and answer questions differently from adults. That was a proper matter for his Honour to point out, and did not prevent or discourage the jury from fairly evaluating the evidence of the complainant.
3. Thirdly, when briefly summarising the Crown and defence cases, the trial judge referred to the Crown's submission that the jury should take into account that the complainant appeared uncomfortable in her first police interview. His Honour suggested that the complainant's usage of terminology like "yonda" and "wang" to refer to genitalia reflected embarrassment. The applicant takes issue with this comment on the basis that "there is no evidence that the children were aware of the correct terminology to begin with". While that may have been true, it is beside the point. There was no unfairness amounting to a miscarriage of justice. The Crown's case was that the complainant's embarrassment was a matter that needed to be taken into account when assessing her evidence. The trial judge was summarising that case and what was said. Even if it may have involved a misstatement it was not apt to persuade the jury as to the attitude they should take to the complainant's evidence.
4. Fourthly, and this is also the subject of ground 13, the applicant contends that in giving directions in relation to the use to be made of the complainant's context evidence of previous touching, the trial judge "mitigate[d] any concerns about inconsistencies" in the complainant's evidence. His Honour explained that the evidence was led "to try and give some context to the allegations that have been made". His Honour then stated "logic tells you that if the same thing is happening regularly, the ability of the child to recall each and every single one of them and to distinguish as between them diminishes the more that it occurs". That comment was not an instruction to the jury that "if something happens often… details of [the] event can be overlooked". His Honour was properly referring to the purpose for which the complainant's context evidence had been led by the Crown, a direction he was required to give: R v Dixon [2001] NSWCCA 39 at [85] (Whealy J, Mason P and Giles JA agreeing).
5. Fifthly, it is said that the trial judge erroneously claimed responsibility for having upset the complainant before she was sworn in, which prevented the jury from making their own determination "as to why [the complainant] was upset at the thought of being required to take an oath". The transcript shows that the trial judge apparently did upset the complainant by informing her that she would be taking an affirmation, when she had previously advised counsel she wanted to take an oath. There is no substance in the applicant's complaint. The complainant was not upset at the prospect of having to take an oath. What his Honour said was correct and had nothing to do with the evidence. It involved no unfairness or misleading.
6. None of the matters complained of created a "real danger" that the trial was unfair in any respect. Leave to argue grounds 9 and 13 should be refused.

Ground 10: Error in addressing jury as to truthfulness of Crown witnesses

1. At the conclusion of CM's cross-examination, the Crown sought to lead additional evidence from her in light of matters that had been put to her. One of those matters related to an allegation that she had become pregnant with the applicant's child so as to receive additional government benefits. The Crown indicated that, at the request of the defence, it had not led evidence that the applicant had told CM that he was infertile and that it now wished to lead that evidence from CM to explain why she became pregnant.
2. In acceding to that request, the trial judge explained to the jury: It's important that you understand the only reason I'm permitting the Crown to re-lead this is to show that there is material that was provided months ago from this lady which explains why it is that she fell pregnant. That's to address or weigh up against the criticism that was made that she only fell pregnant for these financial reasons. These are topics that we've been discussing. Obviously in this case it's clear the accused says, "I didn't do these things." The witnesses in the Crown case say they are telling the truth that these things [the complainant] says happened. The Crown witnesses are telling the truth in terms of what - the brother, [YB], telling the truth that he saw the touching and that this lady's telling the truth in terms of the conversation, the sequence of those conversations, the break up of the relationship after [the complainant] revealing her allegations, then the subsequent interviews with the police and some additional material that was provided. (italics added)
3. The applicant submits that the trial judge erred in indicating in the second of the italicised sentences that "the Crown witnesses are telling the truth". That is not a fair reading of what his Honour said. In context, and ignoring the punctuation imposed in the transcript, his Honour was clearly telling the jury that on the Crown case its witnesses were telling the truth. As defence counsel did not object at trial, r 4 also applies to this ground. The leave required should be refused, there being no misdirection or unfairness arising from this part of the summing up.

Ground 11: Error in suggesting to jury that children as a class are unreliable witnesses

1. The applicant submits that contrary to Evidence Act, s 165A, the trial judge suggested that children as a class are unreliable witnesses. That argument misconstrues the trial judge's summing up and should be rejected.
2. His Honour said: Now, the reliability of a witness's evidence depends upon two quite different but sometimes overlapping considerations. One is the witness's honesty; the other is the witness's accuracy… So there is an assessment.… But you have to be fair to the person by making an assessment of, if there is any criticism, whether the criticism really goes to their ability as a witness as distinct from their honesty or reliability. In this case, you have heard from [the complainant] when she was seven and then when she was nine. You have heard from [YB] when he was five and then when he was seven. You might find that it is your experience that the way children think is different to the way that adults think. They have a different process of logic; they have a different level of understanding… they do not have a real understanding of time or of sequence in the same way as an adult does. So you have to factor that in: was this child at seven a bit off when it came to times, and if that is so, was it because that concept is beyond them. So they are the factors. You cannot look at that child and say, well, look, an adult should know exactly what time of the day it was or what thing happened first and what was the sequential order of things. The child might not have those concepts… So children can answer questions in a way that… [is] dictated by child logic, not by adult logic. So it can become quite difficult and unfair at times to criticise children about how they might give an answer.
3. Subsection 165A proscribes warnings to the jury regarding the reliability of a child's evidence by reason of their age: AL v R [2017] NSWCCA 34 at [77], [78] (Leeming JA, Schmidt and Wilson JJ); (2017) 266 A Crim R 1. Nonetheless, the trial judge has a wide discretion to offer guidance to the jury as to how to approach the evidence of a child witness, tailored to the particular circumstances of the case: RGM v R [2012] NSWCCA 89 at [97] (Fullerton J, McClellan CJ at CL and Johnson J agreeing). Here his Honour did so by indicating that the jury should take into account when assessing the complainant's evidence that she was of a young age and potentially reflected that age developmentally. That did not amount to a warning that children as a class are inherently unreliable witnesses. This ground should be rejected.

Ground 12: Error in allowing the complainant to give evidence in cross-examination by pointing to answer cards

1. Shortly after cross-examination of the complainant commenced, it became apparent that she was upset and struggling to answer questions. After she had two breaks in quick succession, the Crown suggested that she be given the ability to answer questions by pointing to pieces of paper that contained an answer. Defence counsel objected to the taking of that course. His Honour proceeded on the basis that he had power under Evidence Act, ss 26(a) and 31(2) to do so, and acceded to the Crown's suggestion. The complainant was given three cards containing the answers "Yes", "No" and "I don't understand". The applicant submits that the trial judge had no power to permit such a procedure under Evidence Act, s 31 and in doing so, his Honour contravened Criminal Procedure Act, s 275B.
2. Section 275B had no application in the trial, and does not apply to specify exclusively when a witness can give evidence using a communication aid. Section 31 is directed to evidence given by deaf and mute witnesses. As the complainant is neither deaf nor mute, the trial judge did not have power under s 31 to allow the complainant to give evidence by pointing to answer cards.
3. However, the trial judge had broad powers under Evidence Act, s 26 to control the manner in which the witnesses were questioned. His Honour exercised that power by instructing the complainant to raise her hand whenever she needed a break from questioning and by giving her the option to give evidence by answer cards.
4. As to the exercise of that power, the applicant contends that this particular procedure should not have been allowed as it "reduces the ability to cross-examine a witness as it gives them a choice to avoid detailed answers". It might equally have been contended that the procedure did not accommodate any questions calling for an answer other than one described by the three cards. However it is not necessary to pursue those difficulties because ultimately they did not materialise, the complainant using the cards only twice and then only in response to leading questions.
5. It is further suggested that "interference by the witness assistance officer" also illustrated the "substantial disadvantage" of the procedure. The "interference" referred to is one instance only when that officer pointed to a card following an inaudible answer. The complainant was asked to clarify her answer and she chose for the question to be asked again. When that occurred, the complainant gave her answer without resorting to the cards. Having regard to its extremely limited use, the procedure adopted by his Honour did not lead to a miscarriage of justice. Ground 12 is not made out.

Grounds 14 and 17: Errors in trial judge's summing up

1. First, by ground 14, the applicant complains about the trial judge's direction as to how the jury was entitled to use the context evidence that had been led without objection. His Honour stated: So the evidence puts the charges in a wider context, in a context of an ongoing history, and it removes any question of the curious feature of there only being one or two occasions over a period of time, which would seem unlikely. But you must not use that evidence of other acts that are not charged in the indictment as establishing a tendency. In this case, the Crown relies on tendency evidence and you know the basis of that from what I said to you the other day, and I will remind you of that. But you cannot use this other material - the reference to it happening on other occasions, or all the time, or every day - you cannot use that as establishing any tendency and you cannot substitute any one of those other occasions for one of the occasions that is specified in the indictment.
2. It is said that the jury could have interpreted the italicised sentence as asserting that the applicant displayed a "pattern of behaviour with an ongoing history of offences". That submission should be rejected. His Honour plainly emphasised to the jury that the complainant's context evidence could not be used to establish "any tendency".
3. The applicant also takes issue by ground 14 with part of his Honour's summing up of the defence case in relation to count 4. The applicant contends that the trial judge erred by giving "the impression of more unreported allegations" while summing up the defence case by stating: It was pointed out that [YB's] evidence in terms of this touching was somewhat different. Potentially different in terms of who touched what when, different in terms of the room. Could it even have been a different occasion or do the differences simply suggest that the evidence is not in fact reliable or truthful and in that sense it does not support [the complainant] as the Crown suggests, but actually undermines what [the complainant] has said about this accused.
4. This submission misstates the aspect of the defence case being addressed by the trial judge. His Honour was referring to the possibility that, when considering count 4, YB's evidence was inconsistent with the complainant's evidence, which could cause the jury to have a reasonable doubt about the reliability of the complainant's version of events. This statement was favourable to the applicant, and could not have led to a miscarriage of justice.
5. As objection was not taken at trial to either aspect of the summing up, r 4 applies and leave to argue ground 14 should be refused.
6. Secondly, by ground 17, the applicant maintains that the trial judge erred by making references in his summing up to material that was not used in the trial, namely "a document that [his Honour] claimed was an 'admission'" and "evidence pertaining to a separate case pending in the Local Court". It is accepted by the applicant that there is no reference in the trial transcripts to any such occasions. As the applicant cannot specify what he alleges that the trial judge did or said that was not recorded in the transcripts, ground 17 cannot be made out.

Ground 15: Miscarriage of justice occasioned by trial judge's interjections

1. The applicant submits that the trial judge erred on five different occasions in interrupting defence counsel's cross-examination or closing address, each resulting in a miscarriage of justice.
2. First, it is said that the trial judge's interjection and subsequent "calling of an unnecessary break" during the cross-examination of the complainant meant that she was never made to answer a particular question put by defence counsel. This complaint arises from the following exchange: Q. I say that there was no time where [the applicant] touched your [peeing] [vagina] when you were on his back, what do you say about that? HIS HONOUR Q. Do you agree with that or disagree? A. I don't understand. HIS HONOUR: I think what you need to say is, because I don't know what she has said is necessarily quite what you're putting to her, what you need to say is, in relation to that occasion when she was piggybacked, you say, that he'd never touched her, does she agree with that or? Defence counsel: If it pleases your Honour. Well I'm not sure there was any such occasion for starters which is part of the problem. HIS HONOUR: Well, no, when I say "you say" that's you saying to her that it didn't happen. Defence counsel: Yes. HIS HONOUR Q. We will have a little break now, okay? A. Yep. CLOSED-CIRCUIT TELEVISION DEACTIVATED.
3. This issue was not returned to when the cross-examination recommenced. That was because defence counsel in asking his first question was seeking to comply with the rule in Browne v Dunn (1893) 6 R 67 and the trial judge indicated during the break that "we were talking about the Browne v Dunn rule before… I don't think … you're bound to do it any more than you have done", to which counsel said "if it pleases your Honour, I'll move on then". Thus, there was no miscarriage of justice occasioned by the trial judge's interjection.
4. The second interruption about which the applicant makes complaint occurred during the following cross-examination of CM: Q. So certainly you would not have permitted him to shower in front of the children? A. That's correct. Q. You would not have permitted them to watch television in your room while he showered in the ensuite, is that correct? A. They would - if I was in there they would. Q. Yes, but if you were not in the room you would not have been pleased to walk into the room and see [the applicant] showering in the ensuite and the children alone in the room? HIS HONOUR: I don't think you can walk into the room and see him showering in the ensuite. A. No. DEFENCE COUNSEL Q. Well if you had walked into the room and understood that he was showering in the ensuite while the children were watching television in the same room, you would have had a problem with that? A. Yes.
5. The applicant submits that the trial judge's comment was "irrelevant and does not change the outcome of the question". That last observation makes plain that there was no unfairness and accordingly no miscarriage of justice arising from his Honour's observation. Furthermore the interjection was not wholly unwarranted given that the relevant question assumed that someone showering in the ensuite could be seen from the bedroom.
6. Thirdly, the applicant takes issue with his Honour's interjection in the cross-examination of CM concerning her discovery of child pornography-related search terms in the browsing history of the applicant's Apple Mac laptop. The relevant exchange was as follows: Q. Did you put those search terms to make [the applicant] look as bad as possible? A. No, I did not. HIS HONOUR: Do you mean by that did she go to those internet sites so that it came up as a history? Defence counsel: Effectively, yes. Q. Did you input those search terms? A. No. HIS HONOUR: Because you can't put anything into the history. You actually have to go and do the search in order for it then to be recorded as a history and it would then be recorded as the history of that day. Defence counsel: I withdraw that. Yes, that's what I should have asked, your Honour. Q. I gather [your] answer is no to that in any event? A. No, that's correct.
7. The applicant makes two complaints about this passage. The first is that the trial judge's comments misled the jury into thinking that the websites were actually visited when that was not so. That was not the effect of the trial judge's comments, which were directed to clarifying defence counsel's line of questioning. The applicant also contends that the trial judge erred in asking a leading question ("I gather [your] answer is no to that in any event?"). The trial judge did not ask that question, defence counsel did.
8. In the result there was no miscarriage of justice occasioned by the trial judge's comments. Furthermore the subject of the computer searches undertaken by the applicant was addressed by the agreed statement of facts and the evidence of Senior Constable Sims.
9. Fourthly, the applicant submits that the trial judge "tried to prevent" a line of questioning during the cross-examination of the complainant. That is said to have arisen in the following exchange: Q. Did you have a talk to mum before you went in to talk to the police the first time? A. Yes. Q. A talk about [the applicant]? A. Yes. Q. A talk about [the applicant] touching you? A. Yes. Q. Do you remember what was said in that conversation? A. No. Q. Did mum ask you if [the applicant] was touching you? A. No. Q. Do you remember what was said between you and mum? A. No. Q. If I said that mum told you to tell the police that [the applicant] was touching you, do you agree with that? HIS HONOUR: I reject that question on two grounds. Can we mute the system for a moment? CLOSED-CIRCUIT TELEVISION DEACTIVATED. … CLOSED-CIRCUIT TELEVISION ACTIVATED. Q. Before you said anything to your mum about [the applicant] touching you did your mum ask you if [the applicant] had touched you? A. No. … Q. Before you ever said that [the applicant] touched your [peeing], before you ever said that to your mum, did your mum to tell you to say that to the police? A. No.
10. While the CCTV system was deactivated, the trial judge explained to defence counsel that his question was rejected due to its ambiguity as it did not distinguish between CM telling the complainant to tell the police what the complainant had told her, and CM telling the complainant to tell the police that the applicant had abused her in the absence of any prior complaint from the complainant. Defence counsel indicated that he understood and continued with that line of questioning after cross-examination recommenced.
11. The trial judge did not prevent the line of cross-examination. Rather his Honour pointed out an inherent ambiguity, which when explained was accepted by defence counsel. Nor did the trial judge stop the line of cross-examination, which was in fact pursued after the closed circuit television link was re-established. There was no miscarriage of justice arising from the trial judge's interjections.
12. Finally the applicant contends that the trial judge erred in making the following comment during defence counsel's closing address: But according to [the complainant] that's what happens. [The applicant] apparently comes into her room in the middle of the night and wakes her up to watch a movie. There is a huge risk of him being caught out here and being caught out in a way that would not allow him to try and talk himself out of it. I suggest to you again that it is not consonant with human experience that he is going to behave in that way. But then look at what [the complainant] says about it. She says, "He first of all gets her to touch him on the penis under his pants," so apparently on the skin. Then look at her interview, she says "And then we were playing." We were playing. She is asked, "What were you playing?" She says, "I can't remember." But in her interview back in 2015 she says, "After that we were playing". Again, is that reasonably believable let alone believable beyond a reasonable doubt. Wouldn't she jump out of bed as fast as she could? HIS HONOUR: They don't have to believe beyond reasonable doubt that she was playing. Defence counsel: Yes, please, your Honour. Yes, [the applicant] is not charged with playing but when you come to consider that evidence, that body of evidence, what do you make of this detail that apparently after having forced her hand onto his penis, they were playing.
13. It is said that there was "no reason" for the trial judge to interrupt. That was not the case. The point defence counsel was attempting to make was that there was an implausibility in the complainant's account, which might cause the jury to have a reasonable doubt about her evidence as to the commission of the offences. However the way it was actually put invited the jury to have a reasonable doubt about the complainant's evidence that she was playing with the applicant. That submission would have been of no assistance to the applicant once his Honour directed the jury that it was only the elements of the offence that needed to be proved beyond reasonable doubt. Accordingly his Honour's interjection allowed defence counsel to correct his error and make his point in a way which was persuasive and consistent with the directions the jury would shortly receive. None of that resulted in any miscarriage of justice.
14. Defence counsel did not take issue with any of these interjections during the trial. Accordingly r 4 applies, and leave to argue ground 15 should be refused.

Ground 16: Error in finding complainant was a competent witness

1. The complainant gave sworn evidence after the trial judge was satisfied, having questioned her, that she had a "clear understanding" of the difference between the truth and a lie and that she was under an obligation to give truthful evidence.
2. The applicant submits that the trial judge erred in finding that the complainant was a competent witness, principally on the basis that it was not open to his Honour to find that the complainant understood the difference between the truth and a lie. This submission is misconceived. As the High Court observed in The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 at [13], [14] (French CJ, Bell, Gageler, Keane and Nettle JJ), competence to give evidence about a fact is confined to a person's capacity to understand a question about the fact and give an intelligible answer to the question. It is only competence to give sworn evidence that requires the person to have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. Thus for the complainant to give sworn evidence, his Honour needed to be satisfied on the balance of probabilities that the presumption under Evidence Act, s 13(6) that she was competent to give sworn evidence was not displaced by her answers to his questions.
3. Assuming the applicant contends that his Honour erred in being so satisfied, it is necessary to address the following two exchanges between the trial judge and the complainant upon which he relies: Q. What I want to ask you is do you know what telling a lie is? A. Being bad. … Q. If I said that I was wearing a top with a red sash, would that be true? A. Yes. Q. Can you see a red sash on me? The red - A. I don't know what a sash is.
4. The applicant complains that the first exchange does not reveal an understanding of what a lie is, and that in the second the complainant answered "yes" to the relevant question without knowing what a red sash was. However the totality of the lengthy exchange between the trial judge and the complainant indicates that she understood that a lie means saying something that "did not happen". The complainant also clearly understood that she was under an obligation to tell the truth when giving evidence. Thus it was open to the trial judge to be satisfied from those exchanges that the presumption in s 13(6) was not displaced.
5. The applicant also contends, relying on this ground, that three comments made by the trial judge as to the "red sash" evidence were inaccurate and "misinform[ed] the jury". The first two of those comments were made in the absence of the jury. The third was made to demonstrate to the jury the difficulties involved in questioning a child witness, and could not have led to a miscarriage of justice.
6. As defence counsel did not object to the complainant giving sworn evidence or to the one comment of the trial judge made before the jury, r 4 applies. Leave to argue ground 16 should be refused.

Ground 18: Trial judge erred by leading the jury

1. The first part of this ground asserts that the summing up was not balanced and fair, raising for consideration whether the Crown and defence cases were fairly and adequately put to the jury: R v Sukkar [2005] NSWCCA 54 at [93] (Wood CJ at CL, Hidden J agreeing). The second part of this ground takes issue with two comments made by the trial judge during the cross-examination of CM, one comment made in the absence of the jury and in the course of discussions about the directions which might be given, and a further comment made during defence counsel's closing address.

Whether the summing up was unbalanced or unfair

1. First, the applicant contends that the trial judge erroneously stated the complainant's explanation for not disclosing everything in her first police interview as "well I was shy and I had only just met these people". The applicant asserts that the complainant "never said this in any police interview" and that trial judge "minimise[d] the potential significance of [her] multiple statements". Strictly speaking this complaint, directed only to her statements to the police, is correct. However the complaint is of no substance because the complainant gave oral evidence that she did not disclose all of her allegations during the first interview because "I was shy and I didn't met - meet them before".
2. Secondly the applicant refers to his Honour's statement that during the course of the trial he had stopped questions asked by both counsel "because they were poor questions" and that in doing so his Honour "minimis[ed] the significance of the answers because of the poor way the questions were asked". That is not the effect of his Honour's comment understood in context. He was directing the jury about the need to take into account a witness's likely level of understanding of a question when assessing his or her answers. Those directions included an explanation that on the occasions his Honour had stopped counsel in the course of questioning, it was not for any sinister reason but simply to ensure that the witness could understand the question well enough for his or her answer to be meaningful.
3. Thirdly, the trial judge directed the jury as to the need to take into account the complainant's age when assessing whether her behaviour at the time of the offending was consistent with that of a sexual assault victim. The applicant submits that in doing so, the trial judge "reduc[ed] the significance of a child's behaviour prior to and after" the offending, and gave the jury "a way to disregard" that behaviour. Again, this submission misconstrues the trial judge's direction. His Honour did not tell the jury to disregard any concerns they might have had. Rather, he emphasised that the jury "should remember that it is for you to make these determinations, it is for you to use your own life experience. I am trying to point out the type of thing that you should be thinking about from your own life experience in terms of children".
4. Fourthly, the applicant contends that the trial judge "normalis[ed] the idea that losing detail of an event is just something our brains do". This is said to arise from a statement his Honour made that "one of the things that the experts certainly say now is that our brain is very capable of remembering a particular incident that stands out for us, and yet at the same time losing the detail". Where the context evidence led was that the acts the subject of the charges were a frequent occurrence, his Honour's statement was not objectionable. It was made as part of his overall direction to the jury as to how they might go about their task as "sole judges of the facts" by drawing on their own life experiences. That direction was not unfair or misleading or directed to an irrelevant matter.
5. Fifthly, it is said that the trial judge "claim[ed] the defendant has an interest in seven year old vaginas". That is not what his Honour said. The relevant comment was made in the context of identifying for the jury the evidence relied upon by the Crown to support the complainant's evidence and was as follows: The Crown points out she has got support from her brother, [YB] in relation to one event. On the Crown case, the Crown says she has got support when you look at the content of the text messages, when you look at a tendency that the Crown says you will find: he has got an interest. Most people do not have an interest in seven-year-old vaginas or pre-pubescent, pre-teen vaginas, other than a medical one.
6. The reference to an interest in seven-year-old vaginas was to the Crown's contention as to the applicant's having such an interest. This was made clear by the trial judge's following comments which reminded the jury of the defence case. There is no substance to this complaint.
7. Sixthly, when addressing defence counsel's contention that CM had coached the complainant and YB into making up their allegations, the trial judge asked the jury to consider why they would be upset "when being asked questions about vaginas and penises", if the conduct had not happened. The applicant submits that the complainant "was never" visibly upset during the trial or in her police interviews, and accordingly the trial judge's comment was not to the point and justified. The premise of the applicant's submission is not consistent with the trial transcripts which show that the complainant became upset on several occasions and needed breaks from giving her evidence.
8. Seventhly the applicant complains that the trial judge had drawn the jury's attention to YB's statement in his police interview that the complainant had touched the applicant's penis, when YB had subsequently denied in cross-examination seeing that conduct. That complaint ignores the context in which the trial judge had done so. In his closing address defence counsel drew attention to YB having nodded in his police interview in response to a question "when you saw [the applicant's] private part, was he the only person who touched the private part?". At the conclusion of that address, the Crown sought permission to readdress the jury on the basis that the defence submission purported to refer to all of the relevant evidence while not doing so, and was accordingly misleading. In response to the Crown's position, the trial judge indicated that he would take the jury to the relevant evidence and "read the whole passage" and did so including the very next question - "did anyone else touch his private part?" - and YB's answer identifying the complainant. There was no unfair prejudice resulting from his Honour specifically referring to that evidence.
9. Finally the applicant takes issue with the trial judge's comment that "normal males do not have images of vaginas of pre-pubescent children saved to their laptop". That comment was made in the context of directing the jury about tendency evidence and the way in which the Crown relied upon it. The applicant's complaint is that there was "no evidence of this" (presumably no evidence that normal males do not have images of children's vaginas saved to their laptop). However that was not something which required evidence. It was plainly unusual as a matter of ordinary human experience and accordingly, if the jury believed that to be the case, it was something which they could take into account without any requirement that it be formally proved: Evidence Act, s 144(1), (3). See also the observation in Hughes at [57].
10. In the result none of the comments complained of show that the summing up was unbalanced or unfair in any material way.

Unbalanced or unfair comments made during the course of the evidence

1. Three matters are referred to. First, the applicant complains of an explanation given to the jury, following CM's cross-examination, that the Crown would be leading evidence to counter defence counsel's suggestion that CM was responsible for putting pornographic search terms into the applicant's Apple Mac laptop. In that context the trial judge stated, in relation to three search entries on that computer, that "they're not located together, they're at different locations and certainly are not the last two entries". The applicant's complaint is that at that point in time there was no evidence before the jury about those search terms. So much may be accepted. However that evidence was subsequently adduced (being Exhibit D, the statement of agreed facts and its annexures). The pre-empting of that evidence could not have given rise to any miscarriage of justice.
2. Secondly, the applicant contends that the trial judge erred when discussing with counsel whether a direction as to the "vagueness" of allegations made in the defence case was necessary in his proposed summing up. The relevant comment was made in the absence of the jury and the making of it could not have resulted in any miscarriage of justice.
3. Thirdly, as mentioned in [72] above, the trial judge allowed the Crown to lead additional evidence from CM in respect of the allegation that she had become pregnant to receive additional government benefits. In doing so, his Honour told the jury before this evidence was led that "why she fell pregnant doesn't take the Crown case or the defence case any further. It has no relevance to whether these allegations are proved or not". The applicant takes issue with that comment, and also complains that the trial judge did not thereafter permit further cross-examination of CM on the topic, and that portions of his ERISP dealing with that issue were not placed before the jury. It is said that all this "allowed the character assassination of [the applicant] as [CM] was free to make claims of things [he] said to her with no possibility of being challenged".
4. Prior to that additional evidence being led, the following exchange occurred between the trial judge and defence counsel. It explains why the trial judge made his comment, and why there was no further cross-examination or tender of any part of the applicant's ERISP dealing with that question: HIS HONOUR: … I don't see that it's got any relevance whatsoever and that it's a red herring. I'll be proposing to tell them that. Defence counsel: Please your Honour. That probably takes the heat out of the next thing I was going to say which was that [the applicant] in his interview had disputed having indicated to [CM] that he was infertile and that had been taken out of his record of interview accordingly. Respectfully I agree. I don't think it tends to take the matter one direction or another. HIS HONOUR: No, well I'm proposing essentially to tell them that it really - why she got pregnant is neither here nor there. Whether she got pregnant because she thought she couldn't get pregnant or whether she got pregnant because she wanted to get pregnant, for whatever reason, doesn't seem to have any relevance to whether or not these allegations made, in the Crown case, are true or not. Defence counsel: I'd be content with that…
5. As a general rule, an accused person is bound by the conduct of his counsel regardless of whether that conduct was in accordance with his wishes: R v Birks (1990) 19 NSWLR 677 at 683-684 (Gleeson CJ, McInerney J agreeing). Defence counsel agreed with the course taken by the trial judge. There was no miscarriage occasioned by the trial judge so proceeding, especially as the subject of CM's pregnancy was of peripheral relevance to the charged conduct.
6. Ground 18 should be dismissed.

Ground 21: Jury failed to consider each count separately

1. The applicant contends that the jury failed to consider count 2 separately from the other counts on the indictment, on the basis of what he contends to be a weaker Crown case on count 2.
2. During his opening remarks, the trial judge directed the jury that they were to consider the evidence relating to each count, which might differ between the separate counts, so that in the result their verdicts on those counts might be different. In his summing up, the trial judge reminded the jury that "the verdicts as between the six counts do not have to be the same" and gave a direction in accordance with R v Markuleski (2001) 52 NSWLR 82 that if the jury found itself unable to accept the complainant's evidence with respect to one count, that was a matter which would be relevant to its assessment of her evidence in relation to the other counts.
3. It is accepted that juries are taken to "understand, and follow, the directions they are given by trial judges": Gilbert v The Queen (2000) 205 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J). The jury having been properly directed as to the need to consider each count separately, ground 21 is not made out.

Ground 22: Jury acted on emotion when reaching its verdict

1. Ground 22 refers specifically to the tendency evidence and contends that the jury must have acted on emotion in reaching their verdicts due to the prejudicial nature of that evidence. This contention must similarly be rejected. The trial judge directed the jury that emotion was to play no part in their deliberations and that they were not to allow their "minds to be clouded by emotional responses to the tendency evidence". There is no basis for concluding that the jury did or must have disregarded that direction in relation to any of the six charges.

Ground 23: Miscarriage of justice occasioned by incompetence of counsel

1. Although this last ground is in terms that defence counsel "acted recklessly and inaccurately", in substance it contends that there was a miscarriage of justice occasioned by the incompetence of defence counsel.
2. It is not controversial that incompetence of counsel can give rise to a miscarriage of justice within the meaning of Criminal Appeal Act, s 6: Kamali v R [2019] NSWCCA 186 at [31] (Simpson AJA, Bellew and Campbell JJ agreeing). Where incompetence of counsel is alleged, the question for the court is whether a miscarriage of justice has occurred in the sense that the appellant lost a chance of acquittal that was fairly open: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [25], [26] (Gaudron J, Gummow J agreeing), [79] (McHugh J); Nudd v The Queen [2006] HCA 9 at [158] (Callinan and Heydon JJ); (2006) 80 ALJR 614; R v Birks at 685 (Gleeson CJ, McInerney J agreeing); Alkhair v R [2016] NSWCCA 4 at [31] (Macfarlan JA, Rothman and Bellew JJ agreeing); (2016) 255 A Crim R 419. That is an objective inquiry: Nudd at [10]; the appellant seeking to establish a miscarriage of justice carries a "heavy burden": TKWJ at [74]; and if there could be a reasonable explanation justifying the conduct of counsel, it is unlikely that a miscarriage of justice has occurred: Ali v The Queen [2005] HCA 8 at [25] (Hayne J, McHugh J agreeing); (2005) 79 ALJR 662; TKWJ at [26].
3. The applicant relies on several matters as causing or involving a miscarriage of justice. None have any substance. First, it is contended that defence counsel invited the jury to assume that it was a "logical step" to go from viewing child pornography online to acting on that interest. That is said to arise from the following portion of defence counsel's closing address as recorded in the transcript: I suggest to you that there's a great step between typing something into a computer and then actually going and doing it in person. It's quite a logical step, I would suggest. It's not as if anyone who has ever typed in a search that they were curious about on a computer actually went and did that thing.
4. It is clear in my view that the use of the word "logical" involves an error in the transcription of what was in fact said, which is more likely to have been that it was quite "an illogical" or "a large" step. If defence counsel did refer to a "logical" step it would have been obvious to the jury that he had misspoken and they would have understood that what was intended to be conveyed was that one act certainly did not follow the other as a matter of course. In passing, I also note that the transcript refers to "anyone who has ever typed in a search" when the sense of the submission is that "not everyone who has ever typed in a search has gone on to do the relevant act or thing".
5. Secondly, it is said that defence counsel erroneously claimed that the applicant said "yes we touched each other" when there was "no evidence of this". That statement relied on was made during defence counsel's closing address, when he described the applicant's ERISP as follows: [The applicant] answers without hesitation, he answers clearly, and he answers forcefully that he, at no stage, ever inappropriately touched [the complainant]. In terms of each and every one of the specific allegations that are put to him he refutes them out of hand. Again, along the lines of what's said in the text messages, he acknowledges [candidly], "Yes, I played with her. Yes, we played physically. Yes, we touched each other".
6. It is clear that defence counsel was not submitting, or likely to be understood as submitting, that the applicant had made an admission that he inappropriately touched the complainant. Rather he was summarising what the applicant said in his ERISP, namely that he had played with the applicant and in that context "we touched each other".
7. Thirdly, the applicant submits that defence counsel did not draw to the jury's attention that YB twice denied seeing the complainant touch the applicant's penis. That is not correct. Although defence counsel did not refer specifically to that evidence, he referred to the inconsistences in YB's evidence as follows: Now the learned Crown says well look [the complainant's] backed up by [YB]. Well maybe, maybe not? Because yes, true it is that [YB] to the extent that you can conclude his evidence was ultimately this, said "Yes I saw [the complainant] touch [the applicant's] penis". When I say to the extent that you could ultimately conclude that, I want you to remember firstly his apparent uncertainty when I was trying to ask him questions about this [in] cross-examination.
8. It is further contended that during the cross-examination of YB, defence counsel "attempt[ed] to revive [YB]'s memory" of his police interview. That is not correct. Defence counsel simply drew YB's attention to the fact that he had said something different in his interview. That was a sound forensic decision for defence counsel to make, as it served to clarify YB's answer and highlighted an inconsistency in his evidence.
9. Fourthly it is said that defence counsel "le[d] the jury… towards the prosecution" in the following portion of his closing address: [The complainant] says "[the applicant] had his hands by his sides". [YB] says "[the applicant] was playing with his penis". I suggest to you that they cannot possibly be describing the same event. Now there's two options here: maybe there were two times that this happened. Well that's not the case brought against [the applicant], and besides the Crown has to prove its case beyond a reasonable doubt. What you get from that is [YB] does not support [the complainant] in relation to count 4 but more than that, more than that look at what [the complainant] says [the applicant] did to [YB]. [The complainant] says "[the applicant] pulled [YB's] pants down and touched his penis". Now firstly you might think well isn't [the applicant] supposed to be interested in little girls? But now we've got him interested in little boys. So you might wonder about that for starters. But more importantly than that [YB] says it never happened; [the applicant] never did that to me. There's a direct conflict between the two of them and the question here is not can you accept [YB] beyond a reasonable doubt. The question is can you accept [the complainant] beyond a reasonable doubt? I suggest to you that the way in which [YB] contradicts her evidence makes it very difficult for the Crown to satisfy you to that standard.
10. The applicant contends that defence counsel "minimis[ed] the significance of inconsistent details and implie[d] that there are further allegations that were not charged". There was nothing in what defence counsel said that had that effect. In fact, defence counsel drew the jury's attention to the inconsistencies between the evidence of YB and the complainant, and impressed upon the jury that the Crown had to prove the case it brought against the applicant beyond a reasonable doubt.
11. Fifthly, the applicant complains about the reference made by defence counsel to the need to make allowances for "imprecision in language" when assessing the complainant's evidence. It is argued that the complainant's statement that she was assaulted every day in the middle of the day could not be "explained away by imprecisions in language". That was in fact precisely the point defence counsel was making in that part of his closing address.
12. Sixthly, when addressing the circumstances that were the subject of counts 5 and 6, defence counsel said "she says, 'he first of all gets her to touch him on the penis under his pants', so apparently on the skin". The applicant submits that defence counsel made an error as no testimony had been given to that effect. That is not so because it follows from the complainant's statement that she touched the applicant underneath his clothing, that the touching was "apparently on the skin".
13. Seventhly, the applicant contends that by defence counsel's saying "is it that [the complainant] has misinterpreted what I have done?", he implied "that the allegations actually occurred and were deliberate". An examination of the trial transcripts shows that defence counsel never said those words. In its written submissions to this Court, the Crown refers to other submissions made by defence counsel which contain similar language. However in no case was that language to be, or likely to have been, understood as the applicant conceding that the allegations actually occurred and were deliberate.
14. Finally, it is submitted that defence counsel should have asked the trial judge to give a direction under Evidence Act, s 165A(2) as to the unreliability of the evidence of YB and the complainant. The significance of inconsistencies in their evidence was well within the ability of the jury to judge, and the jury was appropriately directed as to the factors they should consider in assessing the evidence of those witnesses. No further direction was necessary or appropriate.
15. In the result none of the conduct complained of lacked forensic justification or involved errors of judgment, let alone errors that bespoke incompetence. Nor did any of the conduct relied on cause any miscarriage of justice in the sense that by reason of it the applicant lost a chance of acquittal that was fairly open. Ground 23 should be dismissed.

Grounds 1, 19-20: Verdicts are unreasonable or cannot be supported, having regard to the evidence

1. The appeal on this ground is brought under Criminal Appeal Act, s 6(1). The question the Court must ask itself is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[12] (French CJ, Gummow and Kiefel JJ); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66] (French CJ, Kiefel, Bell, Keane and Gordon JJ). It will not have been "open" to the jury to be satisfied of the applicant's guilt beyond reasonable doubt if "the jury must, as distinct from might, have entertained" such a doubt: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J).
2. That question is to be answered by this Court making its own assessment of the evidence: M v The Queen at 492; SKA v The Queen at [14]. Nonetheless that exercise must be balanced against the jury's verdict, and this Court must have particular regard to the advantages enjoyed by the jury from seeing and hearing the witnesses called at trial: M v The Queen at 493.
3. In Baden-Clay at [65], the Court said: It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code [Act 1899 (Qld)] is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
4. The applicant's written submissions identify specific respects in which the evidence of the complainant, YB and CM, considered separately and together, is "not consistent, conflicts and changes". First it is said that there were inconsistencies within the complainant's evidence. The applicant points as an example to the complainant's negative answer to the question posed in her first interview whether anyone had ever touched her vagina, and her later insistence that the applicant had done so.
5. Secondly, there were said to be "inherent problems" with the complainant's evidence. Those were that she was unable to say how she knew that the applicant had his nose on her vagina; that she gave unconvincing reasons for failing to disclose all of the offences at once to the police; and that she was unable to remember exactly how she had touched the applicant's penis.
6. Thirdly, the applicant refers to the inconsistencies between the evidence of the complainant and the evidence of YB or CM. There were said to be inconsistencies between the complainant's and YB's evidence as to whether there was any assault on YB; as to the sleeping arrangements of the family; as to the room in which count 4 had occurred; and as to the manner in which the complainant touched the applicant's penis. In relation to the complainant and CM, there were inconsistencies in their evidence concerning the sleeping arrangements, and in the complainant's reasons for failing to disclose all the offences at once.
7. Separately it was said that there were inconsistencies within YB's evidence, he having answered "no" and subsequently "yes" when asked if he had ever seen the complainant touch the applicant's penis.
8. Whilst many of these matters may have had the potential to cause a jury to question the reliability of those witnesses, and in particular the complainant and YB, they do not, either alone or collectively, establish that the jury "must" have had a reasonable doubt as to the applicant's guilt. That is because in assessing the various inconsistencies between and in their evidence, the jury was entitled to take into account and make allowances for the young age of the complainant and YB at the time they were interviewed by police and when they gave evidence.
9. When undertaking that assessment, regard had to be had to the other evidence. The text message exchanges between CM and the applicant immediately following the complainant's first disclosure of the offending to CM provide strong support for a conclusion that the touching and rubbing complained of had occurred. That in turn provides a sound basis for concluding that the relevant touching and rubbing was not the subject of fabrication by the complainant and YB at the urging of their mother. The text messages are also consistent with such a conclusion, revealing a spontaneity and genuineness in CM's response to her daughter's first complaint, as well as an acceptance and consciousness on the part of the applicant of his having touched and rubbed the complainant over a period of time.
10. That evidence together with the complainant's adherence to her evidence as to the circumstances of each offence, YB's corroboration of her evidence in relation to count 4, and the tendency evidence indicating that the applicant had a particular sexual attraction to vaginas of pre-pubescent girls was sufficient for the jury to be satisfied beyond reasonable doubt as to the applicant's guilt of each offence. In my view none of the material relied on by the applicant or any other aspect of the evidence was such that a reasonable jury must have had a doubt as to the applicant's guilt in relation to any of the offences. It follows that grounds 1, 19 and 20 also should be rejected.

Conclusion

1. In the result the following orders should be made: 1. Extend to 8 August 2019 the time for the applicant, ABR, to file his notice of appeal. 2. Dismiss ABR's appeal against conviction of each of the six offences and specifically: 1. Grant leave where necessary to rely on grounds 1, 2, 3, 4, 5, 6, 11, 12, 18, 19, 20, 21, 22 and 23 and dismiss each of those grounds. 2. Refuse leave to rely on grounds 7, 8, 9, 10, 13, 14, 15, 16 and 17.
2. BELLEW J: I have had the advantage of reading in draft the judgment of Meagher JA. I agree with his Honour's reasons, and with the orders that he proposes.
3. LONERGAN J: I have had the substantial benefit of reading in draft the judgment of Meagher JA. I agree with his Honour's reasons and with the orders that he proposes.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2020