AJ v R

AJ v R - [2022] NSWCCA 136 - NSWCCA 2022 case summary — Zoe

Background

On 24 March 2021, the applicant was arraigned before a jury panel in the District Court on an indictment that contained eleven counts. He pleaded not guilty. The trial proceeded. On 13 April 2021, the trial judge, her Honour Judge O'Rourke SC, directed a verdict of not guilty on count 10. On 19 April 2021 the jury returned its verdicts. The counts on the indictment and the verdicts were as follows: Offences relating to SS Count Offence Date Age Section Verdict 1 Intentionally sexually touch child under 10 years of age Between the 1st day of January 2019 and the 9th day of July 2019 4 or 5 years old s66DA(a) Crimes Act 1900 G 2 Sexual intercourse with child under the age of 10 years Between the 1st day of January 2019 and the 9th day of July 2019 4 or 5 years old s66A(1) Crimes Act 1900 G 3 Intentionally sexually touch child under 10 years of age Between the 1st day of January 2019 and the 9th day of July 2019 4 or 5 years old s66DA(a) Crimes Act 1900 G Offences relating to NL Count Offence Date Age Section Verdict 4 Sexual intercourse with child under the age of 10 years 14 January 2019 6 years s66A(1) Crimes Act 1900 NG 5 Sexual intercourse with child under the age of 10 years 14 January 2019 6 years s66A(1) Crimes Act 1900 NG 6 (alternative to 5) Intentionally sexually touch child under 10 years of age 14 January 2019 6 years s66DA(a) Crimes Act 1900 NG 7 Intentionally incite a child under 10 years of age to sexually touch the accused 14 January 2019 6 years s66DA(b) Crimes Act 1900 NG 8 Intentionally incite child under 10 years of age to sexually touch the accused 14 January 2019 6 years s66DA(a) Crimes Act 1900 NG 9 Sexual intercourse with child under the age of 10 years 12 May 2019 6 years s66A(1) Crimes Act 1900 G 10 Sexual intercourse with child under the age of 10 years 12 May 2019 6 years s66A(1) Crimes Act 2900 Directed verdict of NG 11 (alternative to 10) Intentionally sexually touch child under 10 years of age 12 May 2019 6 years s66DA(a) Crimes Act 1900 NG

[3]

The Crown Case

In light of the grounds of appeal, it is necessary to describe the Crown and defence cases in some detail. The evidence of various police officers and school officials who were called to give evidence by the Crown is not summarised, although some of it will be referred to. Other than as described, their evidence did not materially add to the strength of the Crown case.
The applicant was born in 1991. As at 2019, he was 28 years of age. In 2000 his parents, ML and TJ, separated. His mother remarried in 2005. She and her new husband ("DL") had two children, "IL" born in 2008 and "NL" who was born in January 2013. In November 2018 the applicant married "SJ" who had a child, SS, from a previous relationship with SCS. SS was born in June 2014. SJ gave birth to the applicant's son, ASJ, in 2017. Thus, as at 2019 the applicant's half sister, NL, was six years old, and his step daughter, SS, was four to five years old.
To better understand the evidence, it is necessary to set out a family tree:
On 14 January 2019, there was a birthday celebration for NL's grandfather ("HR") at ML and DL's house in Raby. Amongst others, ML's parents, JR and HR, the applicant, SJ, SCS, and SS were present. The Crown alleged that the applicant committed counts 4 to 8 on the indictment in NL's bedroom. In particular, it was alleged that the applicant licked NL's vagina (count 4) and buttocks and in doing so, penetrated her anus with his tongue (count 5). In the alternative to count 5, it was alleged that the applicant licked NL's buttock (count 6). The Crown also alleged that the applicant asked NL to lick his penis (count 7), and tongue kissed her (count 8). Each of these acts were said by NL to have occurred in the presence of SS.
On 12 May 2019, NL's family celebrated Mother's Day at ML's sister's ("LR") unit in Rushcutters Bay. Amongst those present were the applicant, LR, ML, DL, IL, SJ, ASJ and SS. The Crown alleged that the applicant committed counts 9 to 11 against NL, in the presence of SS, in a spare bedroom that was referred to as "the toy room". In particular, it was alleged that the applicant licked NL's vagina (count 9) and buttocks and in doing so, penetrated her anus with his tongue (count 10). In the alternative to count 10, it was said that the applicant had licked NL's buttocks (count 11). The trial judge directed the entry of a verdict of not guilty on count 10 because NL's evidence was equivocal as to whether penetration occurred. SS's evidence supported the Crown case on count 9.
With counts 1 to 3 on the indictment, on sentencing the trial judge found that count 1 was committed by the applicant on an occasion between 1 January 2019 and 9 July 2019 when he went into SS's bedroom and SS was in bed pretending to be asleep. The applicant kissed or licked SS from her forehead to her belly button. The evidentiary basis for count 1 was various answers SS gave in her third Joint Investigative Response Team ("JIRT") interview on 4 June 2020 and parts of her oral evidence that were recorded in a hearing prior to the trial.
Her Honour found that count 2 was committed by the applicant after count 1 "but in the same time period" during the evening when the applicant was bathing SS and her younger brother ASJ at their home. At some point when SS was naked, the applicant started licking her on the head and licking her vagina. He continued licking her vaginal area for about 1 minute while he held her hips. The applicant told her "not to tell anyone, to keep it a secret from her mother and that if she told anyone she would receive a smack". The evidentiary basis for count 2 was also various answers SS gave in her third JIRT interview and parts of her oral evidence that was recorded in a hearing prior to the trial.
With count 3 on the indictment, the sentencing judge found that one evening, while the applicant and SS were at home sitting on the couch, SS closed her eyes to rest and the applicant "pulled down her underpants to her ankles and put his finger between her bottom cheeks". The evidentiary basis for count 3 was various answers SS gave in her fifth JIRT interview on 24 August 2020 and parts of her oral evidence that was taken in a recorded hearing prior to the trial.

[4]

Evidence of SS

The evidence from SS consisted of five JIRT interviews and evidence given at the pre-recorded hearing on 28 January 2021. It was not until the third JIRT interview that SS disclosed offending by the applicant. Shortly after that interview, SS ceased to live with her mother ("SJ") and commenced living with her biological father ("SCS").
SS's first JIRT interview was conducted on 11 July 2019. (It appears to have been prompted by NL's first JIRT interview on 9 July 2019; see [32]). SS was asked questions about the party at ML's house in January 2019. She said that she recalled playing games with NL, IL and her brother ASJ in NL's room with the door closed. In answer to a leading question she said that she remembered playing in the "toy room" and that the applicant came into the room and played with them. She was asked what games they played and said that she did not want to say "cause it's a girl game". After being assured she would not get into trouble, she told them she played hide and seek, "duck, duck, goose" and "mermaids" in which the applicant played the role of a shark and chased her and NL who were the mermaids. At one point she was asked whether she "remember[ed] any other things happening" and appeared to respond in the negative. She told the interviewers that she liked playing with the applicant.
SS's second JIRT interview was conducted on 9 August 2019. She was asked further questions about the mermaids game. She was asked whether the "shark ever touched the mermaid's body in any way" and she replied "no". SS said that the game was played in the playroom and not NL's room. At one point the questioner said to SS that "[s]omeone told me that your dad once bit you on the bare bottom". SS said that he did that when he was pretending to be a dinosaur. She said that she was clothed when it happened and that she did not like it but only because "I was laughing too much". SS said she had no secrets with anybody and denied that anyone had told her not to talk about the shark and mermaid game.
SS's third JIRT interview was conducted 10 months later on 4 June 2020. The questioner returned to the games played at the party at ML's house. SS said that they were playing a "horsy and doggy game" with the applicant playing the role of the "doggy". SS said that she had a secret and "my dad said that I couldn't tell anyone". When pressed she said that her secret was with the applicant and NL. SS said "I don't want to do his secret" and that doing the secret made her feel sad. At one point she was reluctant to talk and was asked "what are you scared of happening?" SS replied that "[i]t will still happen when I'm a grown up".
SS was then asked to tell the interviewer about the "secret". She replied "he licked me". From this point SS described the conduct the subject of count 2 set out above. SS said that it occurred after her mother had gone to the gym and only she, the applicant and her baby brother, ASJ were home. SS said that the applicant licked ASJ as well. Her description of the incident took place over some 100 questions and she provided considerable detail about matters such as where the applicant licked her, what position the applicant was in while he licked her, the order in which events occurred, what he said to her ("you're yummy") and how she and her brother hid from him afterwards. SS said this occurred in the middle of May 2019 when she was five years old.
After describing the events the subject of count 2, SS was asked whether it had "happened before". She then recounted the matters the subject of count 1, saying that when she was in kindergarten "he only licked me down to my belly" at a time when they were "in bed before we were sleeping". She said that he licked her brother "all over his face" while he was asleep before he licked her. SS was then asked whether there had been "other times" she was licked by the applicant. She replied "no".
At the end of the interview, SS was asked about her "secret" with NL. She said that "Daddy [the applicant] saw [NL] and then Daddy licked her". SS said that the incident occurred during a sleepover at her aunty's place who lived in the city. As noted, LR is SS's aunty who lived in Rushcutter's Bay. SS was asked whether she saw the applicant lick NL. SS said "uh-huh" but next added "I don't know anymore". SS was asked "[d]id you see Daddy lick" NL and she replied "[n]o. But I know that he did because he said that he would." When asked for the words he used she said "I don't know." The interview then terminated because SS was tired.
On the same day the applicant's partner, SJ, filmed a discussion with SS. The footage and a transcript were tendered at the trial. In that footage SS told her mother that the applicant did not touch her, or NL, although the police officer had told her that he did. SS said she told the police a lie because she was scared. She denied that the applicant ever licked her or NL.
The fourth JIRT interview took place on 24 June 2020 in the presence of SS's biological father, SCS. SS told the questioner that she did not wish to speak "[b]ecause my mum said I can't talk unless she's there". The questioner asked whether during the third JIRT interview SS told the truth or a lie. SS replied that "Nanny J lied". She said that "Nanny G" told her to say that the applicant did something to her during a sleepover. SS was asked "Why did Nanny J, Nanny G sorry, why did Nanny G tell you to say that". SS replied "I don't know. Because she doesn't like [the applicant]". The confusion between "Nanny G" and "Nanny J" was not cleared up. It was unfortunate because the complex family structure left it unclear who that was a reference to although it appears to have been a reference to the applicant's step mother, RJ, whom SS referred to as "Nanny J". SS said that, after the third JIRT interview, her mother was "confused" when she told her what SS had discussed with the police. The interview was stopped shortly afterwards when SS said "I want to go".
The fifth JIRT interview with SS took place on 24 August 2020. In answer to a question asking what the applicant did to her SS said that "he sticked his finger up my bum". Her answers thereafter were part of the evidentiary basis for count 3 on the indictment. SS said the offending occurred in the loungeroom while her mother was at the gym and her brother was asleep. She said she pretended to be asleep because she was scared the applicant would become angry. SS said she recognised it was his finger from "the shape". SS said the applicant told her not to tell her mother, but she did anyway although her mother did not believe her. Later in the interview, SS said that she was wearing underpants and the applicant pulled them down.
The questioner asked SS about the video footage taken by her mother. SS said that she did not remember what she said but she told the truth and said she also told the truth in her JIRT interviews at her school.
SS was then asked about the events the subject of count 9 involving NL. SS said that she and NL were "inside a little playroom" playing the "doggy game" when the applicant came in and pulled down NL's pants. SS said that the applicant was sitting right next to the door. SS said that she felt "sad" for NL and the applicant "licked her vagina" as she was laying down. SS said that the applicant was in the room for five minutes with her and NL while her mother and a friend were having tea in the lounge room. The questions then turned to the topic of a birthday party at ML's house. This topic was abandoned after SS said that she "can't remember anything else that he's done". The questioner later returned to that topic but SS said that all she could remember is going to a park.
In her pre-recorded evidence, SS said that she told her mother that the applicant "licked her" but her mother did not believe her. She was shown the video footage her mother took and said that her mother "telled me what to say before she videoed it" and that if she did not do what her mother said she would be "grounded". SS also said that, at a sleepover, "Nanny J" (ie, RJ) told her that the applicant did not do anything to her. In cross‑examination she denied complaining to her mother about the number of times she was questioned. Instead, she said she "told [SJ] that [the applicant] licked me but she told me to tell a lie when - when she put the video on." She was cross‑examined about the fourth JIRT and agreed that in that interview she said that "Nanny J" told her that she did not like the applicant.
In cross‑examination, SS said her biological father's mother ("EE") told her that SJ and SCS were fighting over where she should live. It was suggested to her that the applicant did not say to her and NL that they had to keep a secret. SS said that was "not true". Later she said it was "not true" that the applicant did not lick from her head to her belly button.
SS said that the applicant had licked her in the bathroom, and while she was in bed. She said that the incident in the bedroom happened first. She said that her mother was cooking dinner whilst she and ASJ were in the bath and the bathroom door was open. In re-examination, SS said that she could not see her mother, although she could hear her cooking. SS said that, after the applicant licked her, she got back in the bath and washed herself again. ASJ got in the bath as well. The applicant then left the bathroom, and she and ASJ went and got dressed before the family sat down for dinner.
SS was cross‑examined about the end of the third JIRT interview where she said that the applicant said that he would lick NL. SS said that the applicant "said he wouldn't do anything but when I came back I had a little peek and I saw him pulling down her pants" in the "playroom". She said that the door was not open and instead she "looked through the lock cause there's a little lock on the door … there's a little hole on the door". SS said that the applicant's back was towards the door and NL was sitting on the ground. In re‑examination, SS said that NL was "laying down sitting" when the applicant was licking her.

[5]

Evidence of NL

NL's evidence consisted of three JIRT interviews and her pre‑recorded evidence.
In the first JIRT interview on 9 July 2019, NL said that the applicant licked her "in my rude parts". She said that this incident happened at her place on the day of her grandfather's birthday and at LR's place. In relation to the incident at her place, NL said that it took place in her room with SS present. NL said that the applicant licked her vagina and her "butt", that he bit her backside "with his teeth" and told her to keep it a secret. Later in the interview, NL referred to the incident in the toyroom at LR's place. NL said he did the "same thing" that is licked "my vagina and butt" while SS was present. This was part of the evidence said to support count 9.
The second JIRT interview with NL was conducted on 24 October 2019. She was asked further questions about the details of the incident at her house and then the incident at LR's place. In relation to the latter, NL did not remember if the applicant bit her before or after he licked her vagina and "butt". NL said she did not know whether the applicant licked her on the inside or outside of her "butt" and the same with her vagina. NL said that SS was watching when the applicant licked her but when asked how she knew that she said "I don't remember anything". When asked "how" he bit her vagina she said she did not know.
The third JIRT interview with NL was conducted on 3 June 2020. NL said she wanted to talk about "something different"' that the applicant did to her in her bedroom. NL said that the applicant told her to "come and, like, lick mine" (ie, his penis) but she said that "was just gross" but SS "licked it". This was part of the evidence adduced in support of count 7.
In her pre‑recorded evidence, NL provided further details of the incident in her bedroom. However, with the incident at LR's house she answered "I don't know" to questions concerning whether she was sitting or standing when she was on the carpet and what she was wearing. NL said she told her mother, ML, her father, DL, and brother, IL, about what the applicant "was doing". In cross‑examination, she repeated that the applicant licked her first at her house and then later at LR's house. She said that the occasion at her house was her grandfather's birthday. NL was asked whether SS was "there when [the applicant] licked you". NL answered yes. When asked where SS was, NL said "I don't know" but said that she thought that SS was standing up. Later she said she did not know whether the applicant "bit… her on the butt" but said it was "not true" that he did not lick her on the "butt" or vagina, although it was true that she did not know where he licked her on the "butt" or vagina". NL said it was "not true" that the applicant did not ask her to lick his penis, and that she did not know if the applicant asked SS to lick his penis.
In relation to the incident at LR's house, NL said that the applicant licked her on the skin of her vagina and her "butt" cheeks. When asked where SS was, NL said "I don't know" and she could not remember whether SS was in the toyroom. NL answered "I don't know" to various questions in whch she was asked to recall who she told about what the applicant did to her. She denied making up a lie or being asked to make up a lie.

[9]

Evidence of SS's Mother, SJ

SS's mother, SJ, gave evidence that, on 4 June 2020, SS told her that the applicant had licked her on her belly button. SJ said she told SS "[i]f this has happened to you, then … I'm here to support you". SJ said that she took SS to her mother's house (DC's house) where SS told her that the incident did not happen but the "police had told her that it happened to her". SJ said that later, during a car journey, SS again said that it did not happen, but the police told her it happened. SJ said that when they returned home, SS was persistent in stating that nothing happened to her. SJ asked SS if she could record her saying this, to which SS agreed. SJ said she filmed a 20‑second video in which SS said, "[n]othing happened to me. The police told me it happened." SJ deleted the video because it was "just straight to the point". SJ said that she then filmed another video of SS, being the one noted above, which she provided to "the lawyers" the following day. SJ said that she had a further conversation with SS that day to similar effect.
SJ accepted that she saw the applicant in NL's bedroom on the day of HR's birthday and in the bedrooms at LR's apartment although she added that "everyone was in and out all day". She said that in early 2019, she regularly went to the gym at around 7.30pm and left her children with the applicant, but by the time she left they had a bath and were in bed.
The Crown was granted leave to cross‑examine SJ under s 38 of the Evidence Act 1995 and challenged her credit. SJ agreed that as at 4 June 2020, she supported the applicant. She was shown a schedule of her telephone calls and messages which showed repeated contact with the applicant on 4 June 2020. She was asked about two calls in quick succession and whether she could conceive of any reason why she needed to telephone him twice. She said she could not. SJ was taken to an affidavit she had sworn in Family Court proceedings concerning the events of that day that omitted various details she now testified to. SJ denied telling SS what to say in the video or pressuring her. She agreed that she lied to SCS about the applicant's whereabouts when he inquired of her in 2019 after NL made her allegations.
During cross-examination by counsel for the applicant, SJ modified her earlier evidence about her routine. She said that, on a Monday, the children would still be out of bed when she got home from the gym, however they were always bathed before she left. SJ also said that she overheard SS tell her sister, RC, and her boyfriend, JC, that she told a lie when they spoke to her on 4 June 2020. Both aspects of her evidence were challenged in further cross‑examination by the Crown Prosecutor pursuant to a grant of leave under s 38 of the Evidence Act.

[11]

The Applicant's ERISP

The Applicant did not give evidence at the trial. However, the Crown tendered and played an electronically recorded interview with a suspected person ("ERISP") that was conducted with him on 9 July 2019.
In the ERISP, the applicant told the police that he had a fractured relationship with his mother, ML, and they "pretty much, stopped talking [on] Mother's day 2017", before reconciling around the time of ASJ's first birthday in March 2018. He said he had only ever played with NL a few times, largely due to the large disparity in age between them.
In relation to the incident at LR's apartment in Rushcutters Bay on 12 May 2019, the applicant said that he went inside the playroom with SS, NL, ASJ and IL and that, at one point, ASJ and IL left, and he was left alone in the room with NL and SS for two minutes. He said that the door was shut, and he sat in front of the door to stop it being opened by ASL and IL, who had been pushing against it. He said that NL and SS were talking about the game of "cats and dogs" they were playing with the boys, and he joined in on the conversation. Later in the interview, the allegations arising from this interaction were put to the applicant, which he denied. In relation to the incident at his mother's house in January 2019, the questioner put to him the allegations made by NL, which the applicant denied. In particular, he denied biting NL on the vagina, using his tongue to lick her buttocks, biting her on the buttocks, or telling her to keep it a secret.
The applicant said that he was left alone with SS and ASJ on Tuesdays, Wednesdays and Thursdays for approximately 45 minutes to 1 hour while his wife was at the gym.
Although SS's specific allegations were not put to the applicant, he was asked whether he ever sexually assaulted SS. He denied doing so. He said he often "mucked around" with SS and ASJ by blowing raspberries on their bellies and necks, tickling them, and fake biting them and did so in the presence of SJ. He said that he would fake bite SS and ASJ "[a]nywhere that tickles", including on their "neck, arm, leg, waist, back and belly". He said that when blowing raspberries, SS and ASJ were fully clothed, and he would pull up their shirts. He denied ever playing with his half-siblings in a similar way. However, he said that he might have play bitten NL on the neck when they were playing "in the Shopkins". He also said that he might have bitten NL on the bottom if she had put it in his face. The applicant denied ever telling NL that she smelt like strawberries. However, he did say that NL and SS were putting on makeup while playing "Shopkins" and it was probably strawberry flavoured.

[16]

Background

Dr Shackel has qualfications in psychology. Her evidence is outlined below. In broad terms, and subject to one signficant exception, she described the typical emotional and behavioural responses of children to child sexual abuse. Before the trial judge, the applicant objected to the admission of Dr Shackel's evidence on various bases including that: her evidence was not relevant to a fact in issue; she had received only limited information concerning this trial; she was not an expert for the purposes of ss 79 or 108C of the Evidence Act; she did not proffer an opinion but rather collated the opinions of others; the various misconceptions Dr Shackel's evidence sought to address were no longer shared by juries, and her evidence should be otherwise excluded under ss 135 and 137 of the Evidence Act. The trial judge rejected each of the grounds of challenge and admitted Dr Shackel's evidence.
The applicant's initial written submissions maintained only one of these bases of challenge, namely that Dr Shackel was not suitably qualified to provide the opinions she expressed. He sought to rely on the reasoning in a decision of McLennan SC DCJ that upheld a similar objection to the admissibility of Dr Shackel's evidence (R v Kirkham [2020] NSWDC 658). Dr Shackel's evidence has been the subject of several different rulings in District Court trials (eg, R v Frederick Jones, unrep Noman SC DCJ, 10 March 2021 ("Jones"); R v Abarca, unrep Huggett DCJ, 19 March 2021; R v RW, unrep Gartlemann SC DCJ, 19 March 2021; and R v AS, unrep, Culver DCJ, 6 June 2018). It is not necessary to address the reasoning of the trial judge in this matter, or in those other cases, as both parties accepted that the admissibility of the evidence, including any question of exclusion under s 137 of the Evidence Act, is to be determined by this Court by the application of the "correctness standard"; ie, it is not an inquiry into whether there was error including House v The King (1936) 55 CLR 499; [1936] HCA 40 error on the part of the trial judge (Rogerson v R; McNamara v R [2021] NSWCCA 160 at [544] to [548]).
At the time this matter was heard, a differently constituted bench of this Court was reserved on another appeal that raised a challenge to the admissibility of Dr Shackel's evidence. Judgment in that matter was published on 13 April 2022 (Aziz (a pseudonym) v R [2022] NSWCCA 76; "Aziz"). A majority of the Court in Aziz (Simpson AJA, Lonergan J; Adamson J not deciding) rejected a challenge to the admissibility of evidence of Dr Shackel on the basis that her evidence was not "opinion" evidence but only some form of literature review of the opinion of others (at [92] and [109]). However Simpson AJA also found (at [79]): "Although, ultimately, it was not in issue that Dr Shackel had the required "specialised knowledge" based on her "training, study or experience", it is appropriate to record that (in the circumstances of this case) I am satisfied that Dr Shackel's evidence meets the requirements of s 79(1) and s 108C(1) as opinion evidence based wholly or substantially on her specialised knowledge based on her training, study or experience."
Following the publication of reasons in Aziz, the parties were invited to file further submissions and, in particular, to address a particular aspect of Dr Shackel's evidence set out below (at [66]). The applicant contended that the above passage from Aziz was not the subject of argument in this case and also contended that that part of Dr Shackel's evidence should have been excluded under s 137 of the Evidence Act.

[17]

The Trial Evidence of Dr Shackel

During a voir dire, the Crown tendered a 77‑page report from Dr Shackel. The report consisted of an extensive discussion of issues associated with the behavioural and emotional responses to child abuse. Each section of the report was extensively cross‑referenced to numerous academic articles. The report set out a particular conclusion about the findings of the research and cited one or more such articles as evidentiary support. It was no doubt for this reason, that some of the judgments noted above, which addressed the same or a similar report, described her evidence as a "literature review" (eg Kirkham at [37]).
While the report was the basis for Dr Shackel's evidence, the present issue concerns the admissibility of her evidence that was in fact adduced before the jury. In that evidence, Dr Shackel enunciated a series of general propositions by reference to what the "research" indicates. Hence, on the topic of delay in disclosure by child victims, Dr Shackel was asked, and answered, as follows: "Q. Does the research show that it's common to see a delay in the child complaining about something that's happened? A. It, the, the research shows that it is quite common for victims of child sexual abuse to take some time to disclose their, their abuse. Q. What are the reasons according to the research? A. Well the research highlights a range of, of possible reasons that may mean that, that a child takes weeks, months, years or even decades to, to disclose their abuse. Reasons that relate to the circumstances of the abuse, so as we've been discussing a close relationship between the child and the perpetrator, particularly within a close family relationship. That type of abuse situation may make it more difficult for a child to talk about their abuse. Children may feel ashamed, they may feel embarrassed, they may feel guilty even perhaps responsible for the abuse and all of those feelings can make it more difficult for a child to, to talk about their, their abuse. Other factors that have been highlighted in the research include fears that children might have. Fears either about what will happen to them if they tell someone. So they may be fearful that they will get into trouble if they tell someone about the abuse. They may also have fears for the perpetrator, particularly if the perpetrator is someone that they love or care. They may have fears about what will happen to other relationship, again particularly within the context of a familial situation of child sexual abuse. The research suggests the children may be fearful about things like the breakdown of, of the family. The research also highlights that a barrier may be fear on the part of the victim of not being believed. That has come through as a strong barrier in, in the research. Q. I'll get to that in one moment, but can I ask you first is it the case that many victims disclose in a staggered or piecemeal way? A. Well the research in this area increasingly is helping us to understand that disclosure should be understood as a process. It tends not to be a one off event because of the complexity of all of the different factors that, that we've been talking about. And as a process the research highlights that children may yes disclose in a piecemeal way or in an incremental way. We should[n't] assume that the process of, of, of disclosure takes any particular form or is a linear process." (emphasis added)
Dr Shackel gave similar evidence of general conclusions on the topics of the counter intuitive responses of children to sexual abuse including not demonstrating negative responses to perpetrators, the passive responses of some children to sexual abuse, children feigning sleep during sexual abuse, disclosures in police interviews, the fact that disclosures by children can be dependent on the responses they receive to initial disclosures, incomplete or partial disclosures by children and the wide range of behaviours exhibited by a child after they have been sexually abused.
All of these topics concern the behavioural responses of child victims to sexual abuse. However, Dr Shackel was also asked about the behaviour of perpetrators as follows: "Q. What, if anything, does the research tell us about why perpetrators can choose, what I could call, brazen settings, to offend? A. Well, the research increasingly is helping us to understand that child sexual abuse is an opportunistic offence and what that means is that child sexual abuse often occurs because a perpetrator has access to a child and that's why the research suggests that child sexual abuse often occurs in those settings that might be considered - or might be described - as brazen such as in a family home; either the perpetrator's or victim's home because that's where the opportunity to access the child arises. Q. What, if anything, does the research tell us about whether the presence of another person - even the presence of another child - is necessarily a deterrent? A. Well, the research suggests that the presence or proximity of other people, adults or children, is not necessarily a, a deterrent. What the research highlights is that those, those settings that are within the context of a family home are settings that offer some, some safety in terms of minimising the possibility for detection of the abuse whether or not people are nearby or not because those settings are familiar settings for the perpetrator and the perpetrator is familiar with how to minimise the risks of being detected."
In cross‑examination, Dr Shackel agreed that she had not read or watched SS or NL's evidence in the trial and that her opinions were not specific to the trial, but instead were "general opinions about child abuse". The cross‑examination confirmed the generality of her answers in that, for example, she agreed that "just because a child acts in a particular way doesn't necessarily mean that they're a victim of child sexual abuse or doesn't mean that they're not the victim of child sexual abuse." The cross‑examination did not disclose any disagreement between the prosecution and the defence on the substance of any of the opinions Dr Shackel expressed.
Before addressing the applicant's challenge based on an alleged lack of expertise, two matters should be noted. First, leaving aside the late reliance on s 137 in relation to the evidence set out at [66], it was not contended on appeal that Dr Shackel's evidence was not relevant to a fact in issue. On its face, all of the evidence appeared to be relevant to an assessment of the various issues that were raised concerning the credibility and reliability of SS and NL's evidence. In relation to the passage set out at [66], that evidence was relevant to meet an anticipated argument from the defence that SS's or NL's version of events was implausible because it involved the applicant exposing himself to a risk of detection (ie he was a "brazen offender").
Second, as noted, one of the objections raised before the trial judge was that juries no longer share the various misconceptions that this evidence was adduced in order to correct. I am doubtful whether courts should act on that basis but, in any event, opinion evidence does not cease to be such because it is a matter of common knowledge (Evidence Act, s 80). What can be accepted is that the various general propositions that Dr Shackel advanced are, or at least should be, commonly accepted by the courts, in that they collectively have the advantage of a long history of dealing with such offending. Hence, in VP v R [2021] NSWCCA 11, McCallum JA observed (at [79]) "[e]xperience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending". The end result is that, for many trials, any debate about the admission of such evidence from Dr Shackel or a similar expert can and should be avoided by the parties reaching agreement over the trial judge informing the jury of uncontroversial propositions such as that "victims of child sexual abuse may respond [in ways] contrary to how me might expect victims to respond." For example, in Jones at [31], her Honour Judge Noman SC refused the Crown leave to adduce evidence from Dr Shackel on the basis that the jury would be directed on how to approach any delay in disclosure by the victim (pursuant to s 294 of the Criminal Procedure Act 1986). With respect, that approach is preferable. As the judgment of Fagan J demonstrates, many of the general answers given by Dr Shackel was not calibrated to the issues in the trial whereas a direction from the trial judge can be. That said, none of ss 293A, 294 and 294AA of the Criminal Procedure Act address brazen offending patterns.

[18]

Section 79 of the Evidence Act and the Research of Others

Section 79 of the Evidence Act provides a specific exception to the exclusion of evidence of an opinion by s 76 ("the opinion rule"). It states: "79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. (2) To avoid doubt, and without limiting subsection (1) - (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following - (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences."
Section 102 of the Evidence Act provides that "credibility evidence" about a witness is not admissible (the "credibility rule"). One exception to that rule is s 108C which provides: "108C Exception: evidence of persons with specialised knowledge (1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if - (a) the person has specialised knowledge based on the person's training, study or experience, and (b) the evidence is evidence of an opinion of the person that - (i) is wholly or substantially based on that knowledge, and (ii) could substantially affect the assessment of the credibility of the witness, and (c) the court gives leave to adduce the evidence. (2) To avoid doubt, and without limiting subsection (1) - (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following - (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences."
In Aziz at [40] to [59], Simpson AJA surveyed these provisions including the origins of ss 79(2) and 108C(2). As noted, Aziz held that the evidence given by Dr Shackel in that case was "evidence of an opinion" for the purposes of ss 79 and 108C. Moreover, both ss 79(2) and 108C(2) expressly support the admissibility of the type of evidence given by Dr Shackel as described in [64] and [65]. However, the evidence of Dr Shackel concerning the offending patterns of perpetrators set out in [66] does not fall within either provision in that it does not concern "child development", "child behaviour" or the "development and behaviour of children". The Crown contended that, when considered in context, Dr Shackel's evidence in [66] was evidence "relating to" those topics because it bore some relationship to her evidence that child victims may not try to escape or cry out even when other adults are nearby. I do not agree. This aspect of her evidence was adduced to respond to a suggestion that SS's and NL's evidence of the applicant's behaviour was implausible because a perpetrator would not risk detection by acting in such a brazen manner. It was not adduced or connected to any evidence or submission concerning SS's and NL's behaviour at the time of the offences.
That said, the issue raised by this ground of appeal concerns whether it was shown that Dr Shackel had "specialised knowledge based on [her] training, study or experience". The applicant's initial submissions contended that, if Dr Shackel was a "child or adolescent pyschologist" or had clinical experience in the field of psychology, then her evidence might be admissible but otherwise it was not. However, this submission and similar submissions made at the hearing, ignore the "study" limb of ss 79(1) and 108C(1). These provisions expressly contemplate a person giving evidence of an opinion that is wholly or substantially based on specialised knowledge based on "study". A proposal to amend these provisions to refer to "study and experience" was expressly rejected by the Australian Law Reform Commission in its review of the Evidence Act in 2005 (Australian Law Reform Commission Report No 102 at 280 [9.50]). Of necessity, "study" involves scrutinising the work of others. In the area of child responses to sexual assault, it may be that specialised knowledge based on the study of a range of research undertaken across many countries concerning thousands of victims is superior to that derived from clinical experience with particular victims in a particular locale. That said, the concept of "study" has its limits. The Australian Law Reform Commission's initial draft Bill defined an expert as someone who had "special knowledge, skill, experience or training". This was considered too broad a basis for an expert to give opinion evidence and the provision was limited by altering it to refer to "specialised knowledge based on the person's training, study or experience". In ASIC v Vines [2003] NSWSC 1095, Austin J referred to a "course of training or study" (at [11]).
The essence of the objection to Dr Shackel's evidence, and the basis for the rejection of Dr Shackel's evidence in some of the District Court judgments noted above, is the contention that Dr Shackel's report was no more than a "literature review" that summarised the effect of the research of others and did not involve the expression of any opinions of her own or, if it did, they were not opinions she was qualified to give. The former contention was rejected in Aziz and not agitated on this appeal. In relation to the latter contention, in BI (Contracting) Pty Ltd v University of Adelaide [2008] NSWCA 210 ("BI") Bell JA (with whom Beazley JA and McClellan CJ at CL agreed) described the "librarian function" of an expert as follows: "Sir Richard Eggleston in Evidence, Proof and Probability (Weidenfeld and Nicholson: London, 2nd ed 1983) at 153 categorised as the second function of the expert that of librarian: "The second function of the expert to which we referred above was that of acting as librarian. In many cases the expert does not himself know the answer to the problem from his own study or experience. But being trained in the relevant discipline, he is able to refer to works of authority in which the answer is given. In such a case the expert himself is not generalising, but is making available the fruits of generalisations by other people, either from their own experience or from the experience of others whose writings form part of the literature. The expert witness here is not giving evidence of his own opinion, except to say that in his expert opinion the books to which he is making reference are of sufficient standing to be accepted by the court." This discussion was directed to a different issue. However, the point that Sir Richard makes concerning "the librarian function" of the expert seems to me to be relevant in the present context. The expert's study and training equips them to undertake a literature review and to assist the court to understand the significance of what is contained in it. The expert is available to be cross-examined. In Mr Parker's submission, an expert who was not in practice in the field at the date of the publication of an article is not qualified to express an opinion about the authority of the article or the standing of the journal at the date of publication. I do not accept that is so. An opinion that a journal was authoritative in 1961 does not involve conjecture about what people believed about it in 1961, but is likely to be an inference drawn from the quality of the articles appearing in the journal over a period and the references to it in other publications within the field of speciality. In determining whether publication of an article in a journal is likely to have informed the knowledge of informed industry participants in 1961, the Court may be assisted by expert opinion concerning the authority of the publication."
The last part of this passage is directed to the task of an expert who is assisting the Court in determining the state of knowledge at a particular time in the past. The quote from "Evidence, Proof and Probability" is directed to the circumstance where an expert applies specialised knowledge derived from their own training, study or experience to verify the opinion of others as coming from an appropriately authorative source. This matter is similar to the latter, although Dr Shackel's oral evidence went further in that she effectively adopted the effect of the research as her own opinion while making it clear it was based on the research of others. However, what is implicit in the above passage from BI is that a person seeking to given evidence under s 79 (or s 108C) cannot opine on some topic merely because they have read and reviewed the work of others; they must have their own qualfications (ie, training, study or experience) before they can embark on presenting, verifying or adopting the views of others.
Thus, for example a person with appropriate academic qualifications in, say organic chemistry, can opine on some topic they have learnt from their post‑qualification review of the academic research papers of others in that discipline. In such cases, their specialised knowledge will include what they have derived from their own academic study and their review of those research papers. The Court can infer that they have critically applied the skills and knowledge they have derived from their academic studies (as well as training and experience) in their review of that research to determine such matters as whether the research paper was from a respected source, reliable, representative of the entirety of the body of available research or only selective and otherwise justifies extrapolating from the specific to the general. In such cases, the person's "study" will be both their acquistion of academic qualfications and their (critical) review of that material.
By contrast, a person with no such academic qualifications (or equivalent training or experience) who simply reads a series of papers concerning organic chemistry and summarises the conclusions of that research, will not have acquired "specialised knowledge based on … study". Without more, the mere reading of various papers in a field of discipline by a person with no relevant prior training, study or experience either does not amount to "study" for the purposes of s 79 (or s 108C) or is at least not sufficient study to satisfy s 79(1) (or s 108C) (accepting that the issue is one of degree). The signficance of the witness possessing such qualifications, be it training, study or experience, is that the courts expect that that expertise will be applied in undertaking a critical review of the research material and acquiring specialised knowledge from it.

[19]

Dr Shackel's Qualifications

In this case, Dr Shackel told the jury that she had undergraduate degrees in law and science majoring in psychology, a Masters of Arts in psychology and education and an interdisciplinary PhD. Dr Shackel said that she had trained judges, psychologists and medical practitioners in the area of child sexual assault. She was then asked: "Q. One of the focuses of the teaching that you give has been trying to get rid of misconceptions about how victims of child sexual assault act and react? A. That's correct, yes. Q. Have you also published articles and books in the same area? A. I've published articles in the specific area that … you''ve mentioned and books more generally around sexual violence. … "Q. What about research drawing on speaking to offenders of child sexual assault? A. My own direct research doesn't involve that. One of my PhD students currently - whom I'm the primary supervisor for - her research does involve research with, with offenders. But, of course, the broader field … of research which I'm involved in analysing - does include some studies that have spoken to offenders". (emphasis added)
In cross‑examination, Dr Shackel agreed that she had not practised in child or adolescent psychology, describing herself as an "academic, I'm a researcher".
As noted, during the voir dire Dr Shackel's 77‑page report was tendered. It commenced with the following statement of her expertise: "I am a Professor at The University of Sydney with post-graduate qualifications in psychology, education and law. My experience and qualifications include advanced training in cross-disciplinary research design, methodology and analysis. I possess extensive research experience in the field of sexual assault and violence more generally, childhood sexual abuse and related trauma, and specifically in the dynamics of child sexual victimisation, including the emotional and behavioural responses of childhood victims and how they disclose such experiences, and the barriers that victims may face in disclosing and reporting sexual misconduct, violence and victimisation."
In cross‑examination on the voir dire, Dr Shackel was asked about her expertise in dealing with victims of child sexual assault. She agreed that her opinions were not based on any clinical experience with victims of child sexual assault and that she had not practised in the field of child or adolescent psychology. She added that her area of study within psychology was "focussed on developmental psychology." The balance of the cross‑examination confirmed that her opinions were based on her extensive review of a vast number of articles and reports on that topic. None of her oral evidence on the voir dire addressed her qualifications to opine on the topic of the brazenness of offending or the behaviour of offenders generally, although she was asked to agree that not every circumstance of abuse of a child "occurs with a degree of brazenness", a matter she accepted.
To the extent that Dr Shackel opined on the behavioural responses of victims of child sexual abuse, it was demonstrated that she had specialised knowledge based on study for the purposes of ss 79(1) and 108C(1). As a general proposition, the behaviour of child victims is a matter that is properly the subject of evidence from a psychologist, at least one with a focus on developmental psychology, because it concerns the mental response of such victims to trauma. The combination of Dr Shackel's qualifications in psychology, her description of her own research into the behaviour and responses of victims and her review of the work of others meant that she had such specialised knowledge based on her "study". Her opinions about the effect of that research and her endorsement of those opinions were wholly or substantially based on that specialist knowledge.
However, contrary to the Crown's submissions, I do not accept that the evidence concerning the offending patterns of perpetrators of child sexual abuse is simply an aspect of evidence of the response of victims to trauma in the form of child abuse. The topics of response to trauma and patterns of sexually deviant behaviour are distinct (or at least the contrary was not shown). The courts often receive evidence from forensic psychologists (and psychiatrists) on the topic of recidivism of sexual offenders, including those who perpetrate such offences against children. Such evidence is given by those categories of experts because it has been demonstrated that they have expertise on the topic of the recidivism of such offenders, especially as the offenders often have a recognisable psychiatric or psychological condition associated with their sexual attraction to children. However, it cannot be assumed that a psychologist with a focus on developmental psychology, or expertise on the topic of the trauma affected responses of children to sexual assault, also has expertise on the topic of the offending patterns of perpetrators. Instead, that expertise must be demonstrated. With the exception of the answer extracted in [78] above, on each occasion that Dr Shackel gave evidence about her qualifications and expertise she referred to her research concerning the responses of child victims to sexual abuse and not to the offending patterns of perpetrators. Further, Dr Shackel expressly disclaimed having done any research of her own that involved speaking to offenders. Her supervision of a PhD student who may be in the process of doing so does not advance the contention that she has undertaken any relevant "study" on the topic of offenders. Her reference to analysing some research that happens to include studies that involved speaking to offenders does not suffice so as to amount to sufficient "study" on that topic either.
The Crown's additional submissions contended that Dr Shackel's report demonstrated that she had the relevant specialist knowledge based on study. The relevant part of Dr Shackel's report that supported the oral evidence she gave to the jury about brazen offending, consisted of some five pages that summarised the points made in approximately thirty research papers. None of those papers was authored by Dr Shackel, and her discussion of them does not involve any additional analysis to what they stated. Consistent with the approach outlined in [76] to [77], in the absence of it being demonstrated that Dr Shackel had undertaken any training or study in, or had any experience with, the patterns of offending behaviour by perpetrators, the fact that she has read those articles and recited their effect does not mean that it was shown that she had any "specialised knowledge" on the topic of offending patterns "based on … study."
Accordingly, I reject so much of this ground that contends that that part of Dr Shackel's evidence which concerned the behavioural and emotional responses of child victims of sexual assault was inadmissible. However, I uphold so much of the ground that contends that the evidence of Dr Shackel set out at [66] above was inadmissible.

[20]

Section 137

As noted, the applicant contended that, even if Dr Shackel's evidence concerning the behaviour of perpetrators were admissible as an exception to the opinion rule, then it should have been excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice. Given that I have found that Dr Shackel's evidence on that topic was not admissible under s 79 (or s 108C), this issue does not strictly arise. However, it is nevertheless appropriate to address it. The submission contended that the probative value of the evidence was low, but the danger of unfair prejudice was high because the jury might use it to employ tendency reasoning. The submissions contended that Dr Shackel's evidence that this form of offending "often" occurs because a perpetrator has access to a child and that perpetrators "can choose brazen … settings" suggests a tendency on the part of persons who commit these offences and that this introduced evidence of a tendency of a class of people to act in a particular way.
The evidence given by Dr Shackel set out at [66] above was not evidence that fell within the tendency rule in s 97 of the Evidence Act. It was not evidence of the conduct of a person adduced in order to prove that a person, specifically the applicant, had a tendency to act in a particular way or have a particular state of mind (Evidence Act, s 97(2)). The evidence did not directly reference the applicant at all but concerned the conduct of other persons the subject of the research referred to by Dr Shackel. Instead, as noted, this evidence was adduced in anticipation of the defence submitting that NL's and SS's evidence of these incidents was implausible because it would involve the applicant exposing himself to an unnecessary risk of detection. In her closing submissions, the Crown Prosecutor deployed this aspect of Dr Shackel's evidence in that way when addressing NL's evidence in relation to the events at LR's unit (which included count 9). As matters turned out, counsel for the applicant did make a submission that, because of the size and configuration of LR's apartment, it was implausible that the applicant would sexually assault the victims ("… it is very unlikely that someone would do these sort of things in a small and crowded unit where the possibility of being discovered …. just makes the whole allegation unlikely …"). None of these submissions carried with it any risk of impermissible use of the evidence and, aside from the suggestion that it might be used to support tendency reasoning which I reject, no such possible misuse was identified.

[21]

Conclusion on Ground 1

As noted at the trial, objection was taken to the evidence of Dr Shackel. It follows that the trial judge's decision to admit that part of her evidence extracted at [66] above was a "wrong decision [on a] question of law" within the meaning of the second limb of s 6(1) of the Criminal Appeal Act 1912 (R v Soma (2003) 212 CLR 299 at [11], [79]; [2003] HCA 13; Johnson v The Queen (2018) 266 CLR 106 at [52]; [2018] HCA 48; Hofer v The Queen [2021] HCA 36; 95 ALJR 937 at [119] per Gageler J; "Hofer"). As such, subject to any consideration of the "proviso" to s 6(1), to succeed on this ground it has to be established that the error constitutes a "miscarriage of justice in the sense of a departure from trial according to law" (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [13]). Whether that conclusion requires any further consideration of the potentially prejudicial effect of the evidence that was admitted during the course of the trial is unclear (Hofer at [119] per Gageler J), but it does not matter. In this case, any such requirement is satisfied given the use made by the Crown Prosecutor of Dr Shackel's evidence on the subject of brazen offending, the evidence that was led about count 9 being committed at LR's place during a family gathering, and the evidence that SJ was at home when counts 1 to 3 were committed.
Further, the wrongful admission of this evidence also satisfied the third limb of s 6(1), namely that "on any other ground whatsoever there was a miscarriage of justice". Although it has been stated that "[a]ny irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of [s 6(1)]" (GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40 at [24]; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [12] per Kiefel CJ, Bell, Keane and Gordon JJ), the result of the irregularity or failure must be prejudicial in the sense that there was a "real chance" that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or "realistically [could] have affected the verdict of guilt" (at [123] per Gageler J) or had "the capacity for practical injustice" or was "capable of affecting the result of the trial" (Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28 at [74] per Edelman and Steward JJ). Again, in light of the use that was made by the Crown of the evidence of Dr Shackel on the subject of brazen offending, the evidence that was led about count 9, and the evidence that SJ was at home when counts 1 to 3 were committed, that test is satisfied.
The Crown did not rely on the proviso to s 6(1) of the Criminal Appeal Act. It follows that this ground should be upheld and, subject to considering the remaining grounds, a new trial should be ordered.
I would grant the applicant leave to raise ground 1 and uphold the ground.

[22]

Ground 2: Inconsistent Verdicts

Ground 2 of the appeal contends that the verdicts of not guilty in relation to Counts 10 and 11 are inconsistent with the verdict of guilty in relation to count 9.
In Martin v R [2020] NSWCCA 192 at [67] to [68], I summarised the principles applicable to a complaint that verdicts are inconsistent as follows: "67 The applicant bears the burden of establishing inconsistency of verdicts (Mackenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35; "Mackenzie"). In a case such as this, where it is not said that the verdicts are 'legal[ly] or technical[ly]' inconsistent, the relevant test is 'one of logic and reasonableness' (Mackenzie at 366); that is, to establish this ground the applicant 'must satisfy the court that the verdicts cannot stand together' in the sense that 'no reasonable jury who applied their mind properly to the facts in the case could have arrived at that conclusion' (R v Stone, unreported, 13 December 1954, Devlin J; cited in Mackenzie id). If there is a proper way by which the appellate court may reconcile the verdicts, then the Court may conclude that the jury properly performed its function (Mackenzie at 367). However, there is also 'a residue of cases … where the different verdicts returned by the jury represent … an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty' or 'confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law'. Where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice then the relevant conviction will be set aside (Mackenzie at 368). 68 There is no general rule that in cases where several offences depend upon the evidence of a single complainant, an acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant's credibility was undermined in respect of the counts upon which it has returned guilty verdicts (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [35] and [89]; "MFA"). This is so because where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the evidence of each witness may be accepted in whole or in part. Further, the directions to the jury will emphasise the heavy onus of proof which lies on the prosecution and that in the case of sexual assault offences, one, or all, of the members of the jury may require 'some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant' (MFA at [34]). Hence in MFA, Gleeson CJ, Hayne and Callinan JJ observed (at [34]): "… [a verdict of not guilty] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility." " (emphasis added)
As noted, the indictment included eight counts concerning NL, two of which were in the alternative. The applicant was convicted on only one of those counts, namely count 9, which was the allegation that the applicant licked NL's vagina in the toy room at LR's apartment. NL also gave evidence that the applicant licked her buttocks, which was the basis for count 10 if in doing so he penetrated her anus with his tongue, and count 11 if he did not. SS gave evidence supporting NL's evidence that the applicant licked NL's vagina but did not give evidence that the applicant licked her buttocks. Some further support for their evidence was given by IL in that he stated that for a time while they were at LR's place, the applicant, SS and NL were in the toy room, and the applicant blocked IL's attempts to access the room (see [46]).
The applicant's written submissions in relation to ground 2 accept that SS's evidence supporting the Crown case on count 9 was a "point of distinction" between the evidence supporting count 11 compared with the evidence supporting count 9. However, they refer to various aspects of SS's evidence on this count which were said to be unsatisfactory, such as her initial statement in the fifth JIRT interview that the applicant "did something to [NL] but I don't know what", coupled with her later statements that she saw the applicant pull NL's pants down.
However, these attacks on the reliability of SS's account do not demonstrate that the verdicts were inconsistent in the sense discussed above. The jury's verdict of guilty on count 9, and not guilty on count 11, is anything but an "affront to logic". There are (at least) two ways of logically reconciling those verdicts. First, the jury may have rejected NL's evidence as unreliable but accepted SS's evidence as reliable and convicted on count 9. Second, the jury may have adopted the reasoning described in the above passage from MFA at [34] in relation to the evidence of NL, namely that they considered it more probable than not she was telling the truth but required "something additional" before reaching a conclusion beyond reasonable doubt, and that 'something additional" was the evidence of SS supporting count 9 (when also considered with the evidence of IL noted above). That SS's evidence in support of that count (or generally) may have had its own difficulties may support the applicant's case in relation to so much of ground 3 that challenges his conviction on count 9, which is addressed next. However, that does not support the contention that the verdicts on counts 9 and 11 were an "affront to logic".
I would grant the applicant leave to raise ground 2 of his notice of appeal but dismiss the ground.

[24]

Principles

The principles applicable to this ground so far as this case are concerned were enunciated in M v The Queen (1994) 181 CLR 487 at 493 to 494; [1994] HCA 63 (per Mason CJ, Deane, Dawson and Toohey JJ; "M"). It is appropriate to set out the relevant passages given the context in which they place the advantages enjoyed by the jury in seeing and observing the witnesses called at the trial. The operative principle was stated as follows (at 493): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which 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. (...). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
Their Honours then noted the view expressed by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 516; [1974] HCA 35 that "if [an appellate] court has a doubt, a reasonable jury should be of a like mind" and a qualification to that view identified in M (at 494), that "account must be taken of the advantage which a jury has in seeing and hearing the witnesses". In M v The Queen, their Honours reconciled that view and the qualification as follows (at 494): "But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence …. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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 …." (emphasis added)
In acknowledging the advantage enjoyed by the jury, this passage reflects the "special respect and legitimacy [afforded] to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials" (MFA at [59] per McHugh, Gummow and Kirby JJ), an aspect of which is that juries are "well able to evaluate conflicts and imperfections of evidence" (MFA at [96]).
At the core of the jury's function in deciding "contested factual questions" is the assessment of the credibility of a witness on the basis of what the jury has seen and heard in the context of the trial (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]; "Pell"). Pell reiterated that the function and approach of the jury in making that assessment is very different to that of this Court in determining whether the jury's verdict was "unreasonable". At a practical level, this is reflected in the observation in Pell that it would only be an exceptional case in which this Court would need to view the video recording of a witness's evidence to determine this ground of appeal (at [36]). At a broader level, Pell referred to the above passage from M v The Queen as reflecting the "functional or 'constitutional' demarcation between the province of the jury and [an intermediate appellate court]" (at [38]). Ultimately, Pell explained this Court's role as follows (at [39]): "The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (emphasis added)
The reference to "a case such as the present" in this passage is to a case where the principal evidence against an accused person is given by a complainant. In this case, that certainly includes SS; ie, this Court's assessment proceeds on the basis that the jury found her evidence to be credible and reliable.
These references to the "special significance" role of the jury, including the advantages it enjoyed in seeing and hearing witnesses, are of particular significance to this matter. The reference in the above passage from Pell to considering "inconsistencies, discrepancies, or other inadequacy; or in light of other evidence" must be read with the statement in M v The Queen that those matters be "such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted". Put another way, an assessment that the "evidence lacks credibility for reasons which are not explained by the manner in which it was given" is necessarily witness and trial dependent.
In this case, the jury had the opportunity to observe all of the witnesses, especially SS and NL, over a sustained period of time. An assessment of the quality and reliability of the evidence of a child witness said to be the victim of sexual abuse is an especially difficult matter for an appeal court confined as it usually is, and was in this case, to the written transcript of their various JIRT interviews and their pre-recorded evidence. The jury had the opportunity, which this Court did not, to assess numerous aspects of SS's and NL's evidence that might be seen as affecting their reliability, such as SS's and NL's maturity, emotional state, whether they were comfortable or nervous in answering questions, whether they were suggestible or needed prompting and, ultimately, whether some aspect of their answers was truly a self-contradiction or just a lack of sustained focus (or something else). The jury also had the opportunity to observe all of the members of their family including SS's mother and the applicant in the context of considering whether SS and NL were manipulated to falsely accuse the applicant, or whether SS was manipulated to falsely retract her allegations. These matters are of significance not just because they bear out the force of the above statements in Pell, but because they also bear upon the assessment of whether the matters pointed to by the applicant concerning their evidence, such as the manner and timing of their disclosures, and alleged internal inconsistencies in their versions of events, are such as to warrant this Court concluding that "even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted". For the reasons explained, in this trial, that "allowance", that is, the scope of matters potentially affecting their evidence which can be "explained by the manner in which it was given", is relatively wide.

[25]

SS's Evidence Generally

The applicant's submissions concerning SS disclaimed any reliance on the video recording made by her mother in which SS retracted her allegations against the applicant. The applicant "accepted that the jury [was] entitled to be sceptical of that evidence given the circumstances of its production." This concession was properly made. Implicit in the concession is that the jury was entitled to reject SJ's evidence and accept that SJ may have manipulated SS to make the retraction. Further, until June 2020, SS was living with SJ. In those circumstances, it can be expected that SS might be reluctant to make allegations against the applicant.
The applicant's submissions pointed to the absence of any disclosure by SS of being abused by the applicant in the first and the second JIRT interviews. They noted that, in the second JIRT interview, SS was specifically asked whether she had "any secrets with anybody" and she shook her head and said "no". The submissions noted that it was not until almost a year later, in the third JIRT interview, that SS disclosed that she was abused by the applicant. The Crown noted that the first and second JIRT interviews were concerned with allegations made by NL and not SS. The Crown submitted that SS's reticence was readily explicable by the fact that the applicant, with whom she was living, had told her not to tell anyone, she feared being smacked if she did and she was living with SJ, whom the evidence suggests later caused her to retract her allegations.
I have reviewed the transcripts of SS's JIRT interviews and her pre-recorded interview. Over the course of the first three interviews, SS became more comfortable with the format of the interview and making disclosures. At the end of the first JIRT interview, she was asked if there was "anything that you want to tell me about", replied "yeah", then asked, "[w]hat else do you want to tell me?" and replied "um, Ok. I forgot the question". She was asked whether she wanted to think about it and replied "[m]mm". In the second JIRT interview when she was asked about the "shark and mermaid game", she said she did not want to talk about it because she was "really shy". She then answered some questions about the game but said she "forgot" because "we were playing too much". She gave similar answers in relation to the "girl game". Later in the interview, she said that when the applicant bit her on the bottom it made her feel a "little happy and a little bit sad", making her sad "[b]ecause he was doing it too much." It was after these answers that she gave the responses noted above (at [107]). As noted, in the third JIRT interview, she made substantial disclosures concerning the applicant's conduct.
I do not accept that either the timing of SS's disclosures, or her denials in the fourth JIRT interview, raise a doubt about her credibility or reliability. Even if they did, it would only be a doubt that the jury's advantage in seeing and hearing her evidence was capable of resolving.

[29]

SS, NL and Count 9

The applicant's submissions pointed to various alleged inconsistencies in NL's account. In particular, in her first JIRT interview, NL said that the applicant licked her vagina (at LR's house) but according to the applicant, in the second JIRT interview, NL said, "she did not really remember" and she otherwise could not remember whether the applicant had licked inside or outside her vagina. The applicant's submissions noted that the second JIRT interview was only a few months after the occasion at LR's house. In the second JIRT interview, NL was asked about when the applicant bit her "butt" at LR's house, and she said "[i]t was kind of the same as [at her] grandad's" birthday. She was asked an open question in the form of "tell me what happened" to which she replied "[u]m, I don't re, really remember". She then provided some detail, including which room at LR's unit the incident occurred, and that SS was there ("… in the toy room, that [SS] was in the room as well") although NL could not recall whether the applicant licked inside or outside her "butt".
The applicant also pointed to various answers NL gave under cross‑examination in her pre-recorded evidence where she answered "I don't know" especially when she was asked to state whether she was standing or sitting when the abuse the subject of count 9 occurred. They also pointed to NL's claim, in her first JIRT interview, that she told her teacher about the applicant licking her whereas the teacher said she was not told by NL that she had been sexually abused. In her first JIRT interview, NL was asked whether she had told anybody other than SS about the applicant licking her. She replied, "I just told my teacher and my mum and my dad". There is no doubt that NL did tell her parents. Her teacher told the jury that she was not told by NL that she had been sexually assaulted, although she also agreed that NL had "attempted to speak to [her] in class … where [she had] not been able to hear" NL.
The applicant's submissions also pointed to the evidence of IL, and NL's mother, ML, that NL complained she had been abused by the applicant at his home on Christmas Day 2018, whereas in her second JIRT interview, NL denied anything happened on that day. NL was also asked whether she told her mother anything about that day and she replied "Um, no. 'Cause I don't remember".
It seems clear that NL had difficulty in remembering peripheral details, including detail in relation to count 9, and also had difficulty in recalling the ordering of events and whom she had spoken to at various points about the applicant. These matters warranted the jury taking a cautious approach to her evidence and either principally relying on SS's evidence to convict on count 9 or regarding SS, a witness whom the jury clearly accepted, as providing the additional evidence justifying a finding beyond reasonable doubt that count 9 was made out.
In relation to SS's evidence on count 9, counsel for the applicant pointed to the discrepancy between SS's evidence that she "looked through the lock cause there's a little lock on the door" and the absence of any key hole in the door to the "toy room" at LR's unit.
The description of the events the subject of count 9 given by SS in the fifth JIRT interview are clearly referable to her being inside the "toy room" (see [26]). Both that description and her pre-recorded evidence refer to a period while she and NL were at LR's unit when the applicant was in the "toy room" and blocked entry into the room. IL's evidence was that all three, ie, the applicant, SS and NL, were present in the room at that time, and the applicant agreed with that in his ERISP (see [46] and [50]). In part of her evidence, which I consider was righly admitted, Dr Shackel referred to the "trauma, perhaps confusion in the child's mind about what is happening will impact on how a child understands what is happening at the time". As was submitted by the Crown prosecutor to the jury, the idea of observing this event through a hole in the door may have been the manner in which SS rationalised or peceived the events that were unfolding. What is significant is that there was an extremely strong body of evidence that placed all three of the applicant, SS and NL in the "toy room" at LR's place at a time when the applicant blocked access to the room. Further, there was a strong consistency between what SS and NL said had occurred when the applicant licked NL's vagina. They gave those accounts in circumstances where the uncontradicted evidence from SS's mother, SJ, was that SS and NL did not have contact with one another after 30 June 2019 which preceded all of the JIRT interviews.
Nothing raised in relation to this ground has caused me to doubt SS's credibility or reliability on this count or to have a doubt in relation to the overall body of evidence that supports the applicant's guilt on count 9 (or counts 1, 2 and 3).

[32]

Ground 3 - unreasonable and unsupported verdict of guilty

SS was a critical witness for each of the charges on which the applicant was found guilty. Assessment of whether it was open to the jury to accept her is significantly affected by the way in which her allegations emerged through the sequence of her police interviews.
Counts 1, 2 and 3 concerned sexual licking of SS (counts 1 and 2) and touching her (count 3), on three separate occasions. SS said nothing about these acts in her first two interviews on 11 July 2019 (32 minutes duration) and 9 August 2019 (35 minutes). She had just turned five years old when those interviews were conducted. Her birthday is in early June. All of the questioning in the first two interviews was directed to the occasions when SS was present with the applicant and NL on 14 January 2019 at NL's home at Raby and again on 12 May 2019 at the Rushcutters Bay apartment. The sexual acts toward SS that she later described and that became the subject of counts 1, 2 and 3 were not said by her to have occurred on either of those days. Toward the end of the second interview SS was prompted about an occasion when the applicant bit her on the upper part of her bottom. She gave a description of that as an innocent event, in play.
SS's third police interview took place nearly a year after the second. It was conducted on 4 June 2020 over 54 minutes. About 15 minutes into this interview SS agreed that she and the applicant and NL shared a secret. The questions that brought this out were as follows: Q125 Someone told me that […] you and Daddy and [NL] have a secret. A Uh-huh. Q126 Yeah. A (Inaudible) said (inaudible) my dad said I couldn't tell anyone. […] A Or I will get in big trouble with my dad. […] Q132 […] If there is a secret, like you said, we just, I need to know what the secret is, OK? A (No audible reply) (Nods head yes) Q133 Can you tell me about the secret? A (No audible reply) (Nods head no) Q134 What, what are you scared of happening? A I don't want to be in trouble from my dad. Q135 You're not going to be in trouble from your dad, OK? […] So who is the secret with? A My dad and my, um, and [NL]. Q136 Dad and [NL]. All right. And who told you that you can't tell anyone? A My dad.
Thereafter, SS gave a detailed description of the applicant licking her vagina after her bath (count 2). She said that this occurred when her mother was at the gym. She gave the following further answers: Q231 [Where] was Mummy at this point? A She was still at the gym. But when we were in bed, um, my, my dad kept a secret with my mummy as well. A So my mum didn't know. […] Q234 What did daddy say? A That I, he said I couldn't tell anybody. […] A He said if I […] told anybody, he would know. Um, he, I would get a smack.
The importance of these answers lies in SS's reiterated explanation of not having complained contemporaneously with the events, or earlier than the date of the interview. The Chief Judge has referred to SS's later evidence, during her pre-recorded examination in January 2021, that she thought her mother was in the house at the time of the offence in count 2, rather than at the gym. I concur in his Honour's reasons for concluding that this difference was not something that the jury were bound to regard as significant or as giving rise to reasonable doubt.
When asked, during this third interview on 4 June 2020, whether the applicant had done anything similar prior to the bath time incident, SS gave a description of the act of licking that constituted count 1. She said that had taken place while she was in bed and pretending to be asleep.
Further on during this third interview on 4 June 2020, SS was reminded that she had said there was a secret with NL and the applicant. She said that it was "the same" and proceeded to describe events at the Rushcutters Bay apartment consistent with what NL alleged had occurred there on 12 May 2019, in count 9, although SS referred to the occasion as a "sleepover". SS gave these answers: A329 Daddy saw [NL] and then Daddy licked her. […] Q368 And you said that you saw Daddy […] lick [NL]. A Uh-huh. Q369 Tell me more about that. A I don't know any more. Q370 […] Did you see Daddy lick [NL]? A No. But I know that he did because he said that he would.
At the end of this interview the police officer said that she would speak to SS again on another day. The following exchange occurred: Q378 […] [What] you're telling me is very important, all right? And I want to make sure that I get all the details so that we can help you, OK? A But how are you gunna stop it from happening.
On SS's evidence up to that point it was well open to the jury to find that her failure to complain at any earlier time about the applicant's sexual contact with her or with NL was explained in a manner that did not cast doubt upon her truthfulness. It was open to the jury to accept that if such acts were perpetrated by the applicant he would likely have told SS to keep them secret, on pain of punishment, just as she described. SS's evidence in that respect was inherently plausible. There was no positive support, anywhere in the evidence, for a reasonable possibility that SS was fantasising with respect to either the sexual acts or the applicant's direction and threat that she should keep them secret. SS was only four years old at the time of each of the alleged sexual assaults and only five when the first two interviews took place. It was open to the jury to accept beyond reasonable doubt that such a young girl would initially keep the secret, under threat of punishment, and only reluctantly reveal it under questioning 18 months later.
As for SS's failure to refer, in the first two interviews, to the applicant's sexual licking of NL at the Rushcutters Bay apartment on 12 May 2019, it was open to the jury to regard her silence on those earlier occasions as explicable by her understanding that those acts towards NL were part of the secret that SS was bound to keep. It was open to the jury to find these considerations reinforced by the manner in which SS answered questions in the interviews and in her pre-recorded examination. This Court has not seen the video recordings but it is apparent from the transcripts that SS responded to questions in an articulate, factual and straightforward manner, making due allowance for her age and her evident reticence when initially asked to reveal her secret. The jury, of course, had the great advantage of seeing the recording of the interviews and the examination replayed. It may be inferred from their verdict on counts 1, 2 and 3 that they found nothing in SS's demeanour under questioning to detract from the substance of her answers. That was a judgment for the jury to make.
The jury heard evidence that on 4 June 2020, following the third police interview, SS's mother, the applicant's wife, had made a video recording of her denying any misconduct by the applicant toward herself or NL and stating that she had only made such allegations because she was "scared" and because "the policeman" had said that the applicant had committed the wrongful acts.
SS ceased to be in the care of her mother from 21 June 2020. When interviewed for the fourth time on 24 June 2020, SS said she did not want to answer questions and that her mother had told her she could not talk to police unless the mother was there. SS said that "daddy didn't do anything" and that her previous allegations against the applicant had been made falsely, under instruction from "Nanny J", the applicant's stepmother. The transcript of the fourth interview shows that SS's conduct on this occasion was strikingly different from her response to questioning in all three of the previous interviews. On this fourth occasion SS made no audible reply to several questions. She brought the interview to an end in less than 10 minutes, saying "I want to go".
By the time of SS's fifth interview, on 24 August 2020, SS had been living away from her mother and in the care of her biological father for two months. This interview commenced with the following: Q33 […] So, [SS], can you tell me what you've come to talk to be about today? A About what happened. Q34 OK. What do you mean by "what happened"? A With [the applicant], what he done to me.
SS then described the sexual touching of her bottom that is the subject of count 3. She did so in fluent, coherent terms that the jury were entitled to find probative to the criminal standard. There was no inherent improbability, contradiction or uncertainty in this account. With respect to her not having made earlier complaint about the sexual touching in count 3, SS's explanation was, again, that she had been under pressure from the applicant to remain silent. She said that she had pretended to be asleep during the incident and gave the following answers: Q98 Why were you pretending? A I didn't want him to know because he gets angry. Q99 […] Tell me how he gets angry. A He doesn't want me to tell my mum, but I need to tell my mum. A But he […] said he'll smack me if I did, but I don't want to get smacked. […]
SS said that, despite the applicant's direction that she should be silent, she did inform her mother about the assaults after her third interview with police on 4 June 2020. That interview had taken place at SS's school. She gave these answers: Q101 When did you tell your mum? A When […] you told me to. But she didn't, but she doesn't believe me. She didn't believe me. Q102 OK. So you said that on the day that we spoke. Was that the day that I came and spoke to you at school? A Ah hmmm. […] Q104 What did you tell mum? A I told mummy that [the applicant] done something to me.
SS said that her mother reacted by becoming "confused". SS was asked what made her think her mother was confused and she answered as follows: A 'Cause […] she didn't say a word. Q115 […] Did mummy believe what you said? A No. Q116 Why not? A Because she doesn't believe me. A Because she said it didn't happen, but it did.
Further, in this fifth interview, with respect to acts of the applicant towards NL at the Rushcutters Bay apartment (count 9) SS initially said that she could not remember what she saw the applicant do to NL in the "little playroom". Then she said that she saw him pull NL's pants down and lick her vagina while she was lying down. She said that this occurred in the afternoon.
In her pre-recorded examination in January 2021 SS said that she left the playroom at the Rushcutters Bay apartment and that when she came back she "had a little peek" through "a little lock on the door" or "a little hole in the door", by which means she saw "[the applicant's] hands pulled down [NL's] pants".
Also in the pre-recorded examination SS reiterated that following the third interview with police on 4 June 2020, when she had first told of the applicant licking her, her mother did not believe those allegations. SS was shown the video recording that her mother had made after the 4 June 2020 interview, in which SS had disclaimed any misconduct by the applicant. She gave these answers: Q Is that your mum asking you questions? A Yes, she told me what to say before she videoed it. Q Okay. What did she tell you to say? A She told me to say out that the police made me say it, but I say that because he did do it. Q Alright. So, in the video you told your mum, [the applicant] didn't lick you, is that true or not true? A It's true [the applicant] did lick me. Q Okay, and why did you say on the video he didn't do that? A Because my mum told me, or I'd get in trouble. Q Okay, and you told your mum on the video, that [the applicant] did not lick [NL], is that true or not true? A [The applicant] did lick [NL].
It was open to the jury to conclude that the video-recorded recantation by SS was a clumsy attempt by her mother to manipulate the child in order to exculpate her husband. The mother was cross-examined on those lines by the Crown, pursuant to leave granted under s 38 of the Evidence Act, and she denied having told SS what to say when being video recorded. It was open to the jury not to believe the mother. SS's denial of misconduct by the applicant in the short fourth police interview on 24 June 2020, three weeks after the video-recorded recantation, could justifiably have been discounted by the jury. That fourth interview would certainly have struck the jury as discordant with the content of the other interviews, particularly the one immediately before and the one after, in which SS's allegations emerged progressively, apparently as she overcame both the applicant's instruction that she remain silent and her mother's disbelief.
NL's evidence concerning count 9 (licking her vagina at the Rushcutters Bay apartment on 12 May 2019) was not affected by any significant delay in making complaint. NL reported the matter to her mother on 30 June 2019. She introduced her complaint by saying, "[The applicant) and I have a secret", followed by the statement that, "He licks my butt hole and my vagina". NL provided a description of count 9 and of some of the applicant's other alleged conduct during her first police interview on 9 July 2019. In that first interview NL said that, following the alleged sexual acts of 14 January 2019, the applicant had instructed her to "keep our secret and don't tell anyone". NL was six years old in January and May 2019 when the offences in counts 4-11 were alleged to have been committed against her. She was interviewed a second time in October 2019 and then again on 4 June 2020, by which date she was seven years old.
It was open to the jury to be satisfied beyond reasonable doubt that SS was truthful and accurate as to the essential elements of the three offences that she alleged had been committed against herself and that she and NL were truthful and accurate concerning the essential elements of count 9, committed against NL. The evidence of each of these central witnesses was affected to some degree by variability and/or uncertainty. In my consideration of ground 2, below, I have identified some of the weaknesses in NL's evidence. Such deficiencies as the jury may have perceived were capable of resolution by the acceptance of some parts and the rejection of other parts of the testimony of SS and NL; by apportioning the weight to be accorded, respectively, to the core of their accounts and to the periphery and, in relation to count 9, by evaluating SS's corroboration of NL.
I have not referred to all of the evidence. The Chief Judge has summarised the other parts that had a bearing upon proof of the four counts of which the applicant was found guilty. I find nothing in the evidence taken as a whole that ought to have caused the jury to have a reasonable doubt about the applicant's guilt on any of counts 1, 2, 3 or 9.

[33]

Ground 2 - inconsistent verdicts

The principles to be applied in assessing ground 2 have been identified in the Chief Judge's reasons. Reference may also be made to TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 where Simpson J said this: [128] […] In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis… [130] Before [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12] dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. […]
With respect to counts 4-8, of which count 6 was an alternative to count 5, NL described sexual acts that she said had occurred in January 2019 when SS was present. SS did not corroborate those matters. The licking of NL's vagina at the Rushcutters Bay apartment in May 2019, charged in count 9, and the licking of her anus or buttocks in alternative counts 10 and 11, were said to have occurred with SS present. However, SS confirmed only the facts of count 9.
NL frequently answered questions in the interviews "I don't know" or "I don't remember", when asked for physical details of the applicant's acts. Uncertain answers of that nature were given, for example, when NL was asked whether the applicant licked on the inside or the outside of her vagina and her "butt" on 12 May 2019 in relation to counts 9-11. NL varied between describing the contacts as licking and biting. With respect to events in her bedroom at the Raby house in January 2014, NL said more than once that the licking commenced after the applicant had pushed her in the chest, to the floor. However, in her pre-recorded examination she said that this offence took place when she was in "the candle pose", with her neck and shoulders on the floor and her torso and legs in the air.
NL's pre-recorded examination may not have added to the weight the jury was prepared to accord to her evidence overall. Very little of substance was obtained from her in chief. Cross examination did not elicit any extended responses. The cross examiner was frequently only able to proceed by putting propositions and then asking, "Is that true or not true?". On a number of occasions NL answered "I don't remember" or "I don't think so" or "I think so" regarding matters about which the jury might have expected her to be definitive in light of other answers. One example is that although she said she was in the candle pose when the applicant licked her vagina and bottom, as alleged in counts 4-6, she was expressly asked "Did [the applicant] lick your butt when you were in the candle position?" and she answered "I think so". She gave a similar answer to a question whether he had licked her vagina in that position.
From the above features there were rational grounds upon which the jury may have exercised reserve and caution concerning NL's evidence, without dismissing it entirely. It would have been rational and reasonable for the jury to have been satisfied that NL was credible generally but to find that SS was significantly more impressive and reliable. Despite accepting NL's credibility on the whole, the jury could reasonably have felt unable to exclude a reasonable doubt about acts of the appellant that she described and that she said were witnessed by SS but that SS did not confirm. That was the position in relation to all of counts 4-11, except count 9. A jury may rationally conclude that the evidence of a witness whom they regard as a strong corroborator cuts in two directions. Such evidence may exclude doubt with respect to events that she confirms but may leave or create doubt with respect to events described by others at which the corroborator is said to have been present but which she does not confirm.
The jury's not guilty verdict on count 11 (count 10 having been the subject of a directed verdict) is amenable to explanation in the manner suggested in the previous paragraph, "without resort to doubts about [NL's] credibility". There is no inconsistency, in a relevant sense, between the acquittal on count 11 and the guilty verdict on count 9. On the contrary, when the whole trial record is examined closely the jury's discrimination in the verdicts they returned is consistent with careful thought and analysis, towards a supportable and rational conclusion.

[34]

Ground 1 - Dr Shackel's evidence

I agree with the Chief Judge's conclusion at [82] that Dr Shackel has "specialised knowledge based on [her] training, study or experience" that qualified her under ss 79 and 108C(1) to give evidence of her opinions concerning the development and/or behaviour of children, as envisaged by s 108C(2)(b)(ii). I agree with his Honour's reasons for that conclusion, at [73] to [82]. I therefore agree that it was open to the learned trial judge to give leave under s 108C(1)(c) for the Crown to adduce from Dr Shackel the evidence concerning behaviour of child victims of sexual abuse as extracted and referenced by the Chief Judge at [64] to [65].
Although that much of Dr Shackel's evidence was admissible I do not consider that it had any utility in the case. The jury had explicit evidence from the two child complainants explaining their failure to complain immediately to their mother or to anyone else about the alleged sexual acts. Their conduct, including their lack of resistance and failure to protest directly to the applicant, was readily understandable by jurors exercising common sense.
With respect to NL, she did not describe the acts perpetrated upon her as invasive or painful to the extent that the jury would have concluded that, if these things had occurred, she would have cried out, fought back or run. The jury would need no expert evidence to assess that a six-year-old girl might initially follow the direction of her much older, adult half brother, to keep a secret. As a family member the applicant was not a frightening stranger whose acts would be expected to have induced physical fear or revulsion of such an order as to overcome a direction to be silent. NL's mother gave evidence that after NL reported the applicant's conduct she was asked to look through a series of photographs of family occasions in the recent past. With respect to photographs from 14 January NL said that she had felt "unsafe" and with respect to 12 May she said that she felt "unsafe" and "scared".
The above evidence was ample for the jury to decide whether or not NL's delay in reporting the assaults to her mother, being 5 ½ months from 14 January and six weeks from 12 May, gave rise to doubt about her credibility. Dr Shackel's evidence that other children in other circumstances may delay in making a complaint because of a close family relationship to the perpetrator, or from fear of being in trouble if they should tell, was superfluous where those circumstances were the subject of specific evidence in the instant case. The doctor's evidence that children in other cases have felt shame, guilt, responsibility, fear for what may happen to the perpetrator, fear of damage to the family structure and/or fear of not being believed contributed nothing to the credibility of NL for the opposite reason; namely, that it was no part of any explanation that NL gave or that could be inferred.
Dr Shackel's checklist of what may cause a child not to protest at the time of abuse or not to report abuse soon afterwards is no doubt useful to investigators and prosecutors for the purpose of ascertaining what evidence may be led to explain a late complaint in a particular case. But once there has been adduced evidence of the actual circumstances in the case that is being tried, there will usually be no utility in calling an expert to say that those circumstances have been found to exist in other cases or that further factors, which are not present, have been found to exist in other cases.
The reasons why SS's complaints emerged in the way that they did were exposed to the jury by specific evidence, just as clearly as in the case of NL. The jury could assess, without the benefit of an expert, that the acts committed against SS and those that she witnessed were not violent or brutal or such as to make her cry out, resist or escape. The perpetrator she identified was her stepfather, in whose care she was living at the time. SS gave evidence that she was told she would be in trouble and would be physically punished if she spoke out. The jury also had before them evidence of the attempt by SS's mother to manipulate a recantation, after the third police interview. All of this was material upon which the jury could evaluate whether the late complaint and progressive revelation was explained in a manner that did not reflect adversely upon the witness' credibility. Expert opinion that such factors have been found to be operative in other cases and that delay in complaint has occurred for different reasons in yet further cases served no probative purpose.
Although not separately objected to and not attacked under ground 1, I consider that the following evidence from Dr Shackel was irrelevant although, in the event, of no consequence: Q One of the focuses of the teaching that you give has been trying to get rid of misconceptions about how victims of child sexual assault act and react? A That's correct, yes. […] Q […] Has the research shown that lots of behaviours of child sexual assault victims are what we call "counter intuitive"? A So, the research overall highlights that the way that victims of child sexual abuse may respond runs contrary to how we might expect them to respond. Q Does your research suggest that the general public have misunderstandings about the many behaviours that surround child sexual assault? A Yes. The research does highlight that there are some misunderstandings around the impacts and responses of child sexual abuse. […] Q […] Does the research show that there's often a misconception that victims will resist or fight off an offender or cry out or scream? A So, the research suggests that, some people may well expect that a victim of child sexual abuse will […] scream, will fight, will try to run away at the time that they are being abused whilst the research that is based on the experiences of, of victims of child sexual abuse - the scientific evidence actually shows that, commonly, victims will not resist. They will not fight their perpetrator; they will not try to get away at the time of the abuse.
The latter part of the last quoted answer is an opinion about child behaviour but the rest of this evidence constitutes opinions about beliefs said to be held by the general public. There was no evidence of any foundation of training, study or experience upon the basis of which Dr Shackel claimed to be able to make the bold claim of knowing what the general public believe. More importantly, the opinions of members of the general public who have not been empanelled are irrelevant to a jury. Answers such as those quoted in the previous paragraph are no more than advocacy, urging the jury to defer to the expert.
I agree with the Chief Judge that the passage of Dr Shackel's evidence extracted at [66], concerning brazen conduct of sexual offenders, was not concerned with child development and/or behaviour within the meaning of ss 79(2) and 108C(2). The evidence did not touch upon the development or behaviour of NL or SS in any way, including in a way that could bear upon the credibility of either witness - even taking into account the widest possible view of the definition of credibility in the Dictionary to the Evidence Act: see Dupas v The Queen [2012] VSCA 328 at [265]-[266], [271]; cf Peacock v R [2008] NSWCCA 264 at [57]. I also agree that Dr Shackel disclosed no "specialised knowledge based upon […] training, study or experience" with respect to perpetrators' behaviour.
Dr Shackel's opinion that it is common for child sex abusers to seize opportunities with children to whom they have access, notwithstanding that the opportunity may arise in the perpetrator's or the victim's home and that another person or child may be present, is evidence that the jury would use to infer that the applicant was likely to have acted as alleged, based upon the way in which other child sex offenders in other settings are said to have acted. In final address the prosecutor invited the jury to use this part of Dr Shackel's evidence in that way. After reminding the jury that each of the occasions when NL said she was sexually touched was at a gathering of numerous family members in a small residence, counsel for the Crown said this: I'll pause to revisit another aspect of Dr Shackel's evidence here. That is, that it is a common misconception that perpetrators of sexual assault would not choose such brazen settings to carry out their abuse. To the contrary, Dr Shackel told us that particularly in family settings perpetrators are often opportunistic. They take their chances to access the victim when they arise such as in the family home because that's where opportunity to access the child in fact arises. The presence of people nearby is not necessarily a deterrent because the perpetrator is familiar with how to minimise the risks of being detected in those settings. This is the setting at [the Rushcutters Bay apartment on 12 May 2019] which was very much similar to [the occasion at the Raby house on 14 January 2019]. There was an opportunity to play with [NL] behind a closed door inside a bedroom. There was an opportunity to limit those coming into the room much in the same way and this is how the offence at [the Rushcutters Bay apartment] played out.
I know of no legal principle that would permit the Crown to lead expert evidence of what other offenders have done as the basis for inferring what it is likely to have occurred on the occasion that is the subject of the charge. The evidence was not relevant. The behaviour of unidentified other offenders in unspecified circumstances could not rationally affect the probability that the applicant acted as alleged in the present case.
The danger associated with wrongly admitting expert evidence was identified by Dawson J in Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at p 131, as follows: The admission of such evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted.
Dr Shackel's evidence regarding alleged patterns of behaviour of other offenders should not have been received. Ground 1 should be upheld and a new trial ordered. At the retrial, careful reconsideration might be given to whether Dr Shackel should be called. The Crown is not bound to adduce evidence of this nature just because s 108C has been enacted. In many cases, of which this is one, such evidence will not add any weight to the prosecution case but will give rise to a contest over admissibility, prolongation of the trial and risk of appellable error through the introduction of prejudicial generalisations and loose reliance upon them in final address.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Cases Cited (41)

p) R v Soma (2003) 212 CLR 299; [2003] HCA 13 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Rogerson v R; McNamara v R [2021] NSWCCA 160 TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 VP v R [2021] NSWCCA 11 Texts Cited: Australian Law Reform Commission Report No 102 Category: Principal judgment Parties: AJ (Applicant) Regina (Crown) Representation: Counsel: Mr J Trevallion; Ms E Hile (Applicant) Mr G Newton (Crown)

HEADNOTE The applicant for leave to appeal faced a jury on an indictment charging him with 11 sexual offences said to have been committed against two children (SS and NL). He was convicted on counts 1 to 3 which were committed against SS and count 9 which was committed against NL but in SS's presence. The trial judge directed that the applicant be acquitted on count 10. He was acquitted by the jury on the remaining counts. Count 11 was said by NL to have been committed against her at the same time as count 9. The other counts said to have been committed by the applicant against NL concerned different occasions. SS participated in five interviews with police conducted over 13 months and gave pre-recorded evidence for the trial. Evidence in support of counts 1 and 2 was provided in the third interview and evidence in support of count 3 was provided in the fifth interview. SS recanted her evidence in the fourth interview but later contended that her mother, the applicant's partner, prevailed on her to do so. NL participated in three interviews and gave pre-recorded evidence for the trial. NL said that SS was present when counts 9, 10 and 11 were committed against her. SS supported NL's evidence on count 9 but not count 11. Over objection, the prosecution called evidence from an expert, Dr Shackel, who had tertiary qualifications in psychology and law. Dr Shackel provided a report which set out various general propositions concerning the response of child victims to sexual assault which was said to be contrary to common misconceptions held by the public. Dr Shackel's report set out a vast number of articles concerning research which were said to support those propositions. However, Dr Shackel had not undertaken that research herself and had not dealt with child victims in a clinical setting. Dr Shackel told the jury that the "research" supports various propositions such as the fact that "it is quite common for victims of child sexual abuse to take some time to disclose their … abuse". Dr Shackel also gave evidence before the jury that the research indicates that child sexual abuse "often occurs" in a "brazen" setting. In final address, the Crown Prosecutor referred to this evidence in response to an anticipated defence submission that it was inherently unlikely that the applicant would have offended in the manner he did, given the risk of being detected. The applicant sought leave to appeal against his conviction. The issues arising on the appeal were: (i) Whether Dr Shackel had specialised knowledge based on her training, study or experience so as to enable her to give the evidence that she did; (ii) Whether the acquittals of the applicant on counts 10 and 11 concerning NL were inconsistent with the guilty verdicts on count 9; (iii) Whether the guilty verdicts on counts 1, 2, 3 and 9 were unreasonable and cannot be supported having regard to the evidence; The Court held, granting leave to appeal, allowing the appeal and ordering a new trial: As to issue (i), per Beech-Jones CJ at CL (Harrison and Fagan JJ agreeing):

Sections 79(1) and 108C(1) of the Evidence Act 1995 contemplate a person giving evidence of an opinion that is wholly or substantially based on specialised knowledge based on "study". Of necessity, "study" involves scrutinising the work of others (at [73]). However a person seeking to give evidence under s 79 (or s 108C) cannot opine on some topic merely because they have read and reviewed the work of others; they must have their own qualfications (ie, training, study or experience) before they can embark on presenting, verifying or adopting the views of others (at [75], [130] and [162]). BI (Contracting) Pty Ltd v University of Adelaide [2008] NSWCA 210; ASIC v Vines [2003] NSWSC 1095; Aziz (a pseudonym) v R [2022] NSWCCA 76 considered.
To the extent that Dr Shackel opined on the behavioural responses of victims of child sexual abuse, it was demonstrated that she had specialised knowledge based on study for the purposes of ss 79(1) and 108C(1) of the Evidence Act. Such evidence fell within ss 79(2) and 108C(2) of the Evidence Act. The behaviour of child victims is a matter that is properly the subject of evidence from a psychologist, at least one with a focus on developmental psychology, because it concerns the mental response of such victims to trauma (at [82], [130] and [162]).
It was not shown that Dr Shackel had undertaken any training or study in, or had any experience with, the patterns of offending behaviour by perpetrators. Such evidence does not fall within ss 79(2) or 108C(2) of the Evidence Act. It cannot be assumed that a psychologist with a focus on developmental psychology, or expertise on the topic of the trauma affected responses of children to sexual assault, also has expertise on the topic of the offending patterns of perpetrators. Such expertise must be demonstrated (at [83] to [85], [130] and [170]).
The admission of this aspect of Dr Shackel's evidence was a "wrong decision on [a] question of law" and a miscarriage of justice (Criminal Appeal Act 1912, s 6(1)). In the absence of any reliance on the proviso, the ground was upheld and a new trial ordered (at [88] to [91], [130] and [174]). R v Soma (2003) 212 CLR 299; [2003] HCA 13; Johnson v The Queen (2018) 266 CLR 106; [2018] HCA 48; Hofer v The Queen (2021) 95ALJR 937; [2021] HCA 36; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 applied. Per Beech-Jones CJ at CL (Harrison J agreeing):
Evidence that it is not uncommon for sexual offences to be carried out in a brazen manner is not tendency evidence. In a particular case such evidence maybe admissible to respond to a contention that it was implausible that the applicant would sexually assault a child in circumstances where he was exposed to an unnecessary risk of detection (at [87] and [130]). Per Fagan J:
Dr Shackel's evidence was of doubtful utility as it was either not calibrated to the issues in the case or the jury received specific evidence from SS and NL on the topics that Dr Shackel opined on (at [156] to [167]). Dr Shackel was not qualified to give evidence about the attitudes of the general public on how the victims of child sexual assault respond (at [168]). Dr Shackel's evidence of how other offenders behaved was not admissible to prove what is likely to have occurred on the occasion that is the subject of the charge (at [172]). As to issue (ii): Per Beech-Jones CJ at CL (Harrison J agreeing):

[2021] HCA 28

[2002] HCA 53

[2012] VSCA 328

(2021) 95 ALJR 808

(2015) 256 CLR 47

(2020) 94 ALJR 1037

(2021) 95 ALJR 937

(1936) 55 CLR 499

(2018) 266 CLR 106

(2018) 264 CLR 62

(1994) 181 CLR 487

(1996) 190 CLR 348