AL v Regina [2017] NSWCCA 34 | Case summary

Court of Criminal Appeal (NSW)|2017-02-27|Before: Leeming JA, Schmidt J, Wilson J

Solicitors: H & H Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent Crown) File Number(s): 2014/367970 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Law Citation: - Date of Decision: 23 March 2016 Before: Judge Berman SC File Number(s): 2014/367970

Judgment

THE COURT: On 16 March 2016 the applicant ("AL") was arraigned before his Honour Judge Berman SC and a jury of twelve upon an indictment which charged him with three offences contrary to s 66A of the Crimes Act 1900 (NSW). Each count was in the same terms, charging that AL, "Between 14 September 2003 and 1 February 2005, at Ermington in the State of New South Wales, did have sexual intercourse with AM, a person under the age of 10 years".
On 23 March 2016 a verdict of guilty was returned by the jury with respect to each of the three counts. The applicant was convicted and subsequently sentenced.
The applicant seeks leave to appeal against his convictions pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), advancing four grounds. The proposed grounds are as follows: Ground 1: His Honour erred in failing to appropriately warn the jury in relation to its assessment of the complainant's evidence. Ground 2: His Honour erred in failing to direct the jury adequately in relation to the evidence of the accused as a witness, with particular regard to the burden and standard of proof. Ground 3: The verdicts in respect of all counts are unreasonable or cannot be supported having regard to the evidence. Ground 4: The trial judge failed to direct the jury adequately on the question of doli incapax.
Ground 4 was added to the notice of appeal by leave granted to the applicant at the hearing of the matter before this Court on 27 February 2017.

The Trial

The evidence placed before the jury was heard over three days on 16, 17 and 18 March 2016.
The Crown called the complainant, AM, on 16 March 2017. He was at that time aged 16 years and 6 months.
The period covered by the indictment, 14 September 2003 to 1 February 2005, was framed by reference to the date of a relevant bicycle ride and the date upon which he commenced kindergarten. No issue was taken at trial or in this Court as to proof of that aspect of the charges.
The complainant was aged 4 to 5 years old in the relevant period. In the same period the applicant was aged between 12 years and about 2 months, and 13 years and about 7 months.
Because one of the proposed grounds contends that the verdicts were not open to the jury, it is necessary to refer to the evidence in some detail.
The Crown called the complainant on 16 March 2016. His evidence in chief was substantially given, pursuant to s 306S of the Criminal Procedure Act 1986 (NSW), in the form of two previously recorded interviews between the complainant and investigating officials from the Joint Investigation Response Team, or "JIRT". The first interview had been recorded on 17 June 2013; the second on 27 November 2014.
At the time of the first interview the complainant was aged 13 years. He told the interviewer that he had come to talk about having been "molested as a child and sexually assaulted" by a neighbour, whose first name he supplied. The complainant said that the assaults had occurred over a period of months when he was aged 5 or 6 on occasions when he and his brothers visited the home of a neighbouring family to play. He described incidents when he had been "made to suck on a thing while he ejaculated", with the complainant forced to swallow the ejaculate. The complainant drew a distinction between those occasions when he had been forced to fellate the applicant, and those occasions when he had been "molested", or touched on the penis.
He said that the assaults occurred upstairs at the applicant's house after he had been taken away from a Nintendo game that he had been playing with his brothers, and taken into a bedroom.
The complainant gave an account of the incidents when he was forced to fellate the applicant, describing the applicant's actions in taking hold of his, the complainant's head, and forcing his head onto the applicant's exposed penis, before pushing his head up and down. In visceral terms he described the sensation of choking, and the urge to vomit. After swallowing the ejaculate, the complainant said that he was permitted to go to the bathroom on the upstairs level, where he vomited.
The complainant said that the applicant had threatened him, and that he wasn't allowed to tell anyone. He in fact told no-one until disclosing the abuse to a psychiatrist just prior to the JIRT interview in June 2013.
At the second JIRT interview some seventeen months later the complainant was aged 15 years. He told the interviewing police officer that he had come to recount "stuff I've remembered since last time". The complainant said that he had been having nightmares about the sexual abuse and talking to a psychiatrist, and he had remembered further detail. He went on to give an account of three specific incidents which grounded the three counts on the indictment presented against the applicant at trial.
The first of the identifiable incidents (count 1) was an occasion when the complainant and his two older brothers had been at the applicant's house with the applicant and his younger brother playing Nintendo 64. The applicant told the complainant that if he wanted to keep playing he would have to go into his, the applicant's, room. The boys went inside the room and the applicant locked the door.
The complainant said that the applicant unbuttoned his jeans, masturbated, and then put his penis into the complainant's mouth whilst holding the complainant's head. He ejaculated, forcing the complainant to swallow the ejaculate. The complainant was then allowed to leave the room, whereupon he went to the bathroom and vomited into the bathroom sink. The applicant came into the bathroom and turned on the tap to rinse the sink.
The complainant identified another occasion (count 2) because, although he was forced to fellate the applicant as formerly, the applicant did not first masturbate. The complainant said that, on an occasion when he was playing at the applicant's house, he was called into the applicant's room whereupon the applicant pulled down his pants and thrust the complainant's head up and down on his erect penis. The applicant ejaculated and the complainant was forced to swallow the ejaculate.
The third specific incident which the complainant identified (count 3) was distinguished from the others because the applicant did not ejaculate. The circumstances were otherwise generally the same as those that pertained to counts 1 and 2, involving an allegation of enforced fellatio on an occasion when the complainant was playing at the applicant's home.
The complainant said that there were other occasions but he could only really remember "the more traumatic events". Of those other occasions, not particularised, and not charged, the complainant said "[t]here was a lot of vague events, it's just I don't know if my mind's making them up, or they're true".
In further evidence in chief given before the jury the complainant said that his psychiatrist had been the first person he had told about these events, in 2013, she being the first person he had felt comfortable talking to about it.
In cross-examination, the following day, 17 March 2016, the complainant was asked about his recollection of the applicant's house and family. He had no recollection of the applicant having both a younger and a much older brother; he had recalled only a younger brother. He also had no recollection of the applicant's bedroom containing two single beds because the bedroom was shared by the applicant and his younger brother. He had no memory of whether or not there was a shower in the upstairs bathroom.
He conceded that he had not told the police the applicant's surname in 2013, stating that, although he had thought that he remembered it when speaking to police in November 2014, it was his father who gave the name when speaking with the complainant's psychiatrist.
The complainant was cross-examined at some length about his inability to give a detailed account of specific instances of sexual abuse in the June 2013 interview, and the circumstances in which he had remembered the further detail that he was able to tell police in the November 2014 interview. He said that the first interview had been given shortly after he had first spoken about these matters, and he "was not comfortable at that point talking about it". Having begun to talk about it, he said he had begun to remember more of the events. He said, "The first interview with me, with the police for me was extremely traumatic. The second one I'd had two years to soak it in. Two years to understand what had happened and two years to prepare myself." (T59:43 of 17.3.2016)
As to the link between the "nightmares" he had experienced, and the resurgence of memory, the complainant said that, on waking from nightmares, he was able to remember details about the abuse. He said "[t]he nightmares helped me to unlock the repressed memories".
He later clarified that, in referring to "repressed memories", he had not meant that there was a time that he had no memory of these events, but rather, that he had not wanted to remember.
The complainant explained, "I was about to say for many of these events when I was having nightmares I was remembering more about what I said the first time, so I was able to clarify in more detail what happened. But the only events that I'd said to police in certainty were the ones that I was 100% certain about, because I could not be sure that some of the nightmares were just me making things up." (T38:29-33 of 17.3.2016)
He drew a distinction between his account of the three specific incidents of abuse, about which he was sure, particularly because he knew his claims were serious, and the other "vague events" of which he was unsure. He said, "About what's true I'm 100% certain. About what is not true I'm refusing to talk about because I do not want to speculate about it." (T59:34 of 17.3.2016)
The complainant's two elder brothers were called on 17 March 2016. The complainant's eldest brother, LM, told the jury that he and his brothers visited the applicant's house for a time in childhood, prior to the applicant's family moving interstate. Typically, the children played computer games upstairs with the applicant and his younger brother. LM recalled the applicant's older brother as being of university age; he was sometimes at home when the boys went to play and, if so, usually in his room, which was located near the television and computer game.
He recalled an incident when he and his brothers were at the applicant's house, at a time before the complainant started school. On that occasion he remembered the applicant going to the upstairs bathroom with the complainant. When LM asked if he could go too the applicant told him no. LM said he waited outside the closed door of the bathroom whilst the applicant and the complainant were inside. He thought he waited there for about ten minutes. LM confirmed that the applicant's bedroom contained two single beds, as the applicant shared a room with his younger brother.
In cross examination LM accepted that he could have been incorrect about some details that he had recounted, such as the words used in conversation, but said he was "definite" that the applicant and the complainant had gone into the upstairs bathroom on an occasion when he had not been allowed to join them. He said, "I suppose the fact that they went into a bathroom by themselves, no I wasn't allowed in there, it's the only time I can recall not being allowed to play and it struck me odd as a child." (T76:21 of 17.3.16)
The complainant's other brother gave short evidence confirming the attendance of the children at the applicant's house as children. He did not recall the complainant being sick or upset during visits to the applicant's house.
The complainant's father also gave short evidence. He said that, on those occasions when the complainant had appointments with his psychiatrist, he generally joined his son for the final fifteen minutes of the consultation. He did not recall telling the doctor the applicant's surname.
The police officer in charge of the investigation was the final witness called in the Crown case. In her evidence the date upon which the complainant commenced school was given, being the start of the school year in 2005, and a plan of the upstairs level of the applicant's house was tendered. Additionally, two school reports relating to the applicant, respectively from June and December 2004, were tendered. These reports went to the issue of the applicant's understanding of the moral wrongness of his alleged acts.
The officer in charge further confirmed that the applicant was a person without criminal convictions who had willingly presented himself at a police station to discuss the allegations against him.
The following day, 18 March 2016, the applicant both gave evidence before the jury and called evidence as to his good character.
In his evidence, the applicant, a university student, emphatically denied ever having gone alone into his bedroom or a bathroom with the complainant, or having committed any of the sexual acts of which he was accused.
He said that he began high school in Year 7 in 2004, and at that time lived at home with his two brothers and his parents. He said that he shared a bedroom with his younger brother, and identified a photograph of the bedroom as it was at the time. He did not recall if the bedroom doors were fitted with locks.
Other photographs, showing the bathroom of the applicant's house, the computer area, and the applicant and his brothers as they were in around 2004, were tendered.
In cross-examination the applicant again denied in emphatic and absolute terms that he had ever been alone in his bedroom with the complainant. He denied a general proposition put to him that he had sexually assaulted the complainant by taking him into his bedroom and putting his penis into the complainant's mouth.
He described himself as "an everyday kid who did okay at school", and confirmed that he did not have any learning difficulties. He gave the following evidence as to his capacity as a 12 or 13 year old boy to understand the wrongness of the acts alleged against him: "Q. I suppose [AL], you would have known back then when you were 12 or 13 that it would have been seriously wrong to put your penis into a young boy's mouth, wouldn't you? A. I suppose I would have, yes." (T105:0-4 of 18.3.2016)
The applicant led evidence from a former girlfriend who had met the applicant in 2008 in senior high school, entering a relationship with him in 2009 which continued until 2015. The witness described the applicant as a very compassionate person who was unfailingly helpful to others. She referred to the great support she and her family had received from him during a time of sickness and death in her family.
The evidence was completed on 18 March 2016 and counsel addressed. It being a Friday afternoon, the trial judge commenced the summing up on the following Monday, 21 March 2016. Most of the directions were unexceptional; those with which issue has been taken will be considered below. The jury were asked to begin their deliberations later that morning.
Verdicts of guilty were returned to each count on 23 March 2016.
The applicant was sentenced on 1 July 2016. There is no application for leave to appeal against sentence.

The Proposed Appeal

As noted, the applicant seeks to advance four grounds. Ground 3, that the verdicts are unreasonable or cannot be supported by the evidence, will be considered last.
As each of the grounds involves a question of fact alone, or a question of mixed law and fact, leave to appeal is required: s 5(1)(b) Criminal Appeal Act 1912 (NSW). Additionally, r 4 of the Criminal Appeal Rules applies to grounds 2 and 4, there having been no complaint made at trial about the now impugned directions. The question of leave will be dealt with relevant to each ground.

Ground 1: His Honour erred in failing to appropriately warn the jury in relation to its assessment of the complainant's evidence.

At trial, the applicant's then counsel provided the trial judge with a written list of directions which it was submitted should be given to the jury (MFI 10). Some of them, such as directions about context and good character evidence, were uncontroversial. Others were the subject of argument. These were, a so called "Murray direction"; and a direction pursuant to s 165 of the Evidence Act 1995 (NSW).
A Murray direction derives from the judgment of Lee J in R v Murray (1987) 11 NSWLR 12 at 19D-E and cautions the jury that, where there is only one witness asserting the commission of a crime, the evidence of that witness must be "scrutinised with great care" before it is accepted such that a verdict of guilty could be returned.
A s 165 direction is one derived from that section.
A further document (MFI 12), containing "particulars" in relation to a "Longman direction" (Longman v The Queen (1989) 168 CLR 79 ("Longman")) on the forensic disadvantage to the applicant caused by the delay in prosecution (which is not in issue), and the s 165 direction previously sought, was provided to the trial judge the following day.
In support of the application for the s 165 direction, trial counsel gave three reasons why the complainant's evidence may be unreliable, thus requiring the warning to be given to the jury. It was submitted that the complainant's "memory is clearly inadequate and is wrong"; that the whole of the evidence relied upon by the Crown in support of each count came only from the second interview with the complainant from November 2014; and that the details given by the complainant in the second interview were based upon "dreams".
The Crown opposed the jury being directed in accordance with s 165.
There was some discussion as to the applicability of the warning between the trial judge and trial counsel for the applicant. His Honour noted that there was nothing unusual in a suggestion that a witness was wrong in some aspect of the evidence but queried whether that was sufficient to raise the need for a s 165 direction. As to the assertion by trial counsel that the complainant's memories as given in the second interview derived from dreams, his Honour said, "The dreams are - he was quite specific where he couldn't remember, where he thought the details may have only come from dreams he was reluctant to provide those details and specifically indicated that they only came from dreams or nightmares. But he said that he has always remembered being sexually assaulted by your client." (T111:27-31)
The trial judge concluded that he would not give the jury a s 165 warning. He did not give reasons for that decision, and was not asked to do so. Counsel then addressed the jury.
At the conclusion of the closing addresses and before his Honour summed up to the jury, the applicant returned to his request for a Murray direction. He confirmed that what he was asking the trial judge to tell the jury was "either that it would be dangerous to convict or they should scrutinise his [the complainant's] evidence with great care".
It was submitted that a Murray direction was required not because the complainant was a child witness, but rather because he was the sole witness to the commission of a crime; because he was aged 4 or 5 at the relevant time, an age so young as to have consequences for the reliability of memory; because he had not disclosed the three specific charged offences until his second interview with police; and because delay in complaint had occasioned forensic disadvantage to the applicant.
(The latter feature of the matter was the subject of a direction, about which no specific complaint is made.)
The applicant conceded (both before the trial judge and this Court) that s 294AA of the Criminal Procedure Act 1986 (NSW) applied to the trial.
In a judgment given at the conclusion of the argument concerning a Murray direction, the trial judge declined to give the direction sought. After noting that he would direct the jury as to the forensic disadvantage suffered by the applicant because of the delay in complaint, his Honour said: "It is obvious to the jury that there was but one witness upon whom the Crown relied. There was, of course, some support for his evidence from the evidence of his brother as to one aspect of the case, but it remains a matter where the jury would have to be satisfied beyond reasonable doubt of the accuracy and reliability of [the complainant] before they could convict the accused. It is also obvious to them that he was giving evidence about matters which he said occurred to him when he was four or five. The jury do not need me to point his age out to them when his extreme youth was readily apparent and indeed a constant matter referred to in evidence. Nor do I consider that the jury need any assistance in identifying the issues that they should consider as regards the third matter raised by Mr Fernandez, that relating to the nightmares that [the complainant] suffered after giving his first interview. I am not even sure what I would say about it if I were to speak about it. It is fundamentally a matter for the jury, not for me, as to what they make of [the complainant's] evidence as regards the interaction between his memory and his nightmares. Even in combination, I do not consider that the jury require assistance from me as to how they should approach those three matters to which I have referred." (J3-4 of 18.3.2016)
Referring to the decision of Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544, his Honour noted that, whilst a Murray direction could still be given in an appropriate case, the present was not such a case.
In this Court the applicant contends that his Honour was in error in so concluding, and in refusing to give a Murray direction and a direction pursuant to s 165 of the Evidence Act 1995 (NSW). It is argued that a number of features of the evidence given at trial were such as to render a warning of that nature essential to guard against a miscarriage of justice. The features - a significantly longer list of issues than those advanced before the trial judge - were enumerated as follows. 1. The Crown case relied solely on the evidence of the complainant; 2. The complainant was 4 or 5 years old at the relevant time; 3. Complaint was delayed, in circumstances where the complainant continued to visit the applicant's home despite the alleged abuse, and did not complain even after the applicant had moved interstate; 4. The effect of the passage of time on the memory of a 4 or 5 year old child; 5. The fact that the complainant gave evidence about matters that had occurred many years before; 6. That only after having nightmares about the abuse was the complainant able to recall significant detail; 7. That the first interview was lacking in detail; 8. That none of the other children said to have been present in the applicant's house at the time of the alleged offences corroborated the complainant; 9. "The absence of any later sexual misconduct or offending by the appellant in complaint on the defendant", apparently being a reference to the forensic disadvantage that flowed to the applicant because of the lack of prompt complaint, such as the inability to obtain alibi evidence; and 10. The disadvantage occasioned to the applicant by the lengthy delay.
In advancing ground 1 before this Court the applicant relies heavily upon Longman, a decision from the High Court from 1989. He referred to passages from the judgments of Deane J at 101, and McHugh J at 107 - 108. In the passages cited from the judgment of Deane J, reference was made to the dangers of ignoring "the possibility of child fantasy about sexual matters", or the possibility that the passage of time can harden "fantasy" into the conviction of reality. In those from McHugh J the "particular susceptibility" to error of the recollection of childhood experiences was cited as a basis for a warning to the jury as to the possible unreliability of a complainant's evidence in sexual cases (at 107), as was the passage of time between alleged offence and the recounting of it (at 108).
Deane and McHugh JJ were in the minority on this issue in Longman, and the observations made by each in the quoted passages from 101 and 107 - 108 that are relied upon by the applicant are not authoritative. Caution is required in the use to be made of them: because the views of Deane and McHugh JJ were minority views, because some of what was said was based upon assumptions about children and their capacity as witnesses, and not evidence; and because views such as those expressed have been overtaken by both greater awareness of the dynamics of child sexual assault, and by legislative amendment.
The need for care in approaching the judgments of Deane and McHugh JJ in Longman was expressed by Spigelman CJ in JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187, at [2]-[8]: "His Honour refers to the observations of Deane J and McHugh J in Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463 as "the extended Longman direction". This is a convenient shorthand but must not be confused with the Longman warning which has authoritative force. The observations by Deane J and McHugh J are just that - observations. They have never been given authoritative force either from the High Court or from any intermediate court of criminal appeal. Their Honour's observations are based on assumptions about child psychology which are widely held but which are not necessarily well founded. Many judges share a conventional wisdom about human behaviour, which may represent the limitations of their background. This has been shown to be so in sexual assault cases (See R v Johnston (1998) 45 NSWLR 362 at 367-368). Legislative intervention was required to overcome the tendency of male judges to treat sexual assault complainants as prone to be unreliable. The observations of Deane J and McHugh J in Longman reflect a similar legal tradition that treated children as unreliable witnesses. In the past both categories of witnesses required corroboration. Jurors may also reflect these widely held assumptions about children, as they may also do about sexual assault complainants. Such prejudices may be reinforced by the profession and the bench in the conduct of a criminal case. (See Quas JA et al, "Do Jurors 'Know' What Isn't So about Child Witnesses?" (2005) 29 Law and Human Behaviour 425). There is a significant debate as to whether expert evidence should be admissible about the ability of children to give accurate evidence, especially in children sexual assault proceedings. See, most recently, Uniform Evidence Laws Report, ALRC Report 102, NSWLRC Report 112, VLRC Final Report, December 2005 at 9.138-9.158; Criminal Justice Sexual Offences Task Force, Responding to Sexual Assault, Final Report, Sydney, December 2005, pp 165-176. These two recent reports refer to a range of earlier studies and reports. They also outline the legislation that already exists in some jurisdictions to permit such evidence and make recommendations for further legislative intervention. There is a substantial body of psychological research indicating that children, even very young children, give reliable evidence. (See eg, the references in Ligertwood, Australian Evidence (4th ed) LexisNexis Butterworths, Australia, 2004, para 7.31, fn 10 and 11.) These are complex issues, as reflected in reviews of the research on the ability of young children to distinguish fantasy from reality (see Woolley JD, "Thinking About Fantasy: Are Children Fundamentally Different Thinkers and Believers from Adults" (1997) 68 Child Development Fantasy/Reality Judgments" (1997) 68 Child Development 1015; Sharon T and Woolley JD, "Do Monsters Dream? Young Children's Understanding of the Fantasy/Reality Distinction" (2004) 24 British Journal of Developmental Psychology 293 at 294-296). The same is true of research about a child's ability to accurately recall stressful events (see McNally RJ, Remembering Trauma, Harvard Uni P, Cambridge Mass, 2003, pp 58‑62). The complexity of these issues is not reflected in the observations of Deane J and McHugh J in Longman, which should, accordingly, be treated with caution."
A similar though less expansive comment was made by Spigelman CJ in DRE v R [2006] NSWCCA 280; (2006)164 A Crim R 400 at [7]: "Counsel at trial sought a direction with respect to the fragility of childhood memory based on the observations of McHugh J in Longman at 107-108. This reasoning, and the similar observations about fantasy by Deane J, are not part of the Longman warning and have never received authoritative acceptance. (See JJB v Regina [2006] NSWCCA 126 at [2]-[8].) This aspect of the direction sought by trial counsel was not raised on appeal." See also R v TJ (2009) 76 NSWLR 167; [2009] NSWCCA 257 at [40] per McClellan CJ at CL; R v MBX [2014] 1 Qd R 438; [2013] QCA 214 at [99] and R v N, RC (2012) 112 SASR 399; [2012] SASCFC 37 at [28].
Those comments cannot be overlooked. What also cannot be overlooked is the legislative amendment since 1989, which has dramatically altered the common law as it applied to warnings required to be given to juries in sexual assault cases.
There have been a number of such amendments, to the Evidence Act 1995 (NSW) and to the Criminal Procedure Act 1986 (NSW).
Section 164 of the Evidence Act 1995 (NSW), introduced with the legislation in 1995, removed the requirement for a trial judge to warn a jury that it was "dangerous to act on uncorroborated evidence" (the direction sought by the applicant at trial). Although a warning of that nature did not apply exclusively to sexual assault trials, historically it had application in the overwhelming majority of such trials, because of the fact that sexual assaults are generally committed in circumstances where the only witness is the complainant, and there is infrequently corroboration.
Section 165 retained a power to warn a jury about "evidence of a kind that may be unreliable": "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person-evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B."
The obligation to give a warning is conditional: it need not be given unless it has been requested, or if the trial judge is satisfied there are "good reasons" for not giving the warning. Section 165(3) preserves the discretion of the trial judge to decline to give an unreliability warning where he or she is satisfied that good reasons exist not to do so.
Section 165(6) specifically prohibits a warning being given to a jury as to the unreliability of a child's evidence based upon the age of the child, otherwise than in accordance with s 165A(2) and (3).
Sections 165A provides: "165A Warnings in relation to children's evidence (1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following: (a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses, (b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults, (c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child, (d) in the case of a criminal proceeding - give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. (2) Subsection (1) does not prevent the judge, at the request of a party, from: (a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and (b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it, if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information. (3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury."
Section 165B deals with the warning that may be given where there has been a delay in prosecution, and consequent forensic disadvantage to an accused person.
Finally, s 294AA of the Criminal Procedure Act 1986 (NSW) operates to further restrict the scope of the common law warnings formerly given with respect to the evidence of a complainant in a sexual assault case: "294AA Warning to be given by Judge in relation to complainants' evidence (1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses. (2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant. (3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section."
Whilst a Murray direction is not restricted to sexual assault cases, and its terms as given by Lee J do not use the phrase "dangerous to convict", its origins and most frequent application has been in sexual assault trials. As Basten JA said in Ewen v The Queen at [26]-[27]. "However, Lee J had in mind only sex offences, where "absence of corroboration of the complainant's evidence" might previously have given rise to a mandatory warning. Indeed, if that is the true scope of a Murray direction, it must now be reformulated to comply with s 294AA. There is no basis in the terms or intendment of s 294AA to qualify the well-established principle as to the burden of proof in relation to criminal prosecutions. However, there is a fine line, which must be approached with some care, between a warning focusing the minds of the jury on the burden of proof borne by the prosecution, and a "suggestion" that complainants as a class are unreliable. Whilst none of the statutory provisions prevent a trial judge from giving a jury a warning necessary to prevent a miscarriage of justice, care must be taken as to the nature of the warning and the basis upon which it is given so as not to contravene the provisions."
In all cases a direction cautioning the jury about the possible unreliability of the evidence of a child complainant in a sexual assault case can only focus on matters relevant to the particular child in the particular circumstances of the case. It cannot focus on the mere fact that the witness is a child, or derive from a feature about the witness which is an inherent feature of children more generally, such as a warning based on an assumption about the capacity of a child to lay down memory or accurately recall memory later.
To adopt the latter approach is to contravene the provisions of s 165A of the Evidence Act 1995 (NSW) and s 294AA of the Criminal Procedure Act 1986 (NSW).
Section 165 of the Evidence Act 1995 (NSW) refers to "evidence of a kind that may be unreliable", without purporting to exhaustively define or identify what may be meant by the phrase. Arguably, much of the evidence given by lay witnesses as to what an individual saw or heard could be challenged on one basis or another as unreliable. However, in circumstances where the history of statutory amendment suggests a desire to limit jury warnings rather than to enlarge them, it cannot have been the intent of the legislature to engage s 165 in every case where an assertion of unreliability is made.
Section 165(3) of the Evidence Act 1995 (NSW) and s 294AA of the Criminal Procedure Act 1986 (NSW) provide statutory limits upon s 165 warnings. Another comes in the principle that warnings are required where there is some danger which would not be appreciable to a jury, but which would be perceived by the court. In Tully v The Queen (2006) 230 CLR 234 at [178] Crennan J said, "The question is whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice. There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences."
In the applicant's case, the trial judge was conscious of the distinction to be drawn between the need for a warning about matters of which the jury could have little understanding or appreciation, but where the court would have such an understanding; and matters which the jury was well able to assess without particular assistance.
Support may be found for his Honour's approach in The Queen v GW [2016] HCA 6. Although that case turned on the question of the reliability of unsworn evidence, the principle is apposite. The Court said, at [50]: "The requirement of the common law explained in Bromley, Crofts and Longman is to warn the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury. The risk is perceptible to the court because judicial experience has shown that evidence of this description may be unreliable. Subject to any statutory prohibition, where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury's attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it (footnotes omitted; emphasis added)."
His Honour considered each of the features of the case raised by the applicant at trial: the fact that the Crown case relied upon a single witness; that the critical witness was recounting things that had happened to him as a child of 4 or 5; that the complainant had only recounted the charged incidents in his second JIRT interview after the onset of "nightmares"; and the forensic disadvantage attributable to delay in prosecution.
Setting aside the fourth feature, about which his Honour directed the jury, the trial judge considered that the jury were readily able to recognise and assess each of the matters raised. He declined to give either a s 165 warning or a Murray direction.
Both decisions were made by the trial judge in the exercise of his discretion. Section 165(3) retains the discretion of the trial judge as to whether or not to give the statutory warning; whether a Murray direction is given is a matter for the discretion of the trial judge: SKA v Regina [2012] NSWCCA 205 per Beazley JA at [254] (who was in dissent but with whom Adams and Hislop JJ agreed on this particular point).
Even when considering the additional features concerning the complainant's evidence advanced in this Court (but not before the trial judge) and set out at [62] above, we do not consider that the trial judge was obliged to give either a s 165 warning, or a Murray direction. Of the ten features advanced by the applicant, the first was addressed by directions as to the burden and standard of proof; some were the subject of direction (those associated with delay and consequent disadvantage); and some (such as the second and fourth features) were not permissibly the subject of a warning because of the operation of s 165A of the Evidence Act 1995 (NSW) and s 294AA of the Criminal Procedure Act 1986 (NSW).
The remainder were not matters which might not have been evident to the jury and about which there was a consequential need to caution the jury.
The jury saw the complainant give evidence and observed his responses to questions in cross-examination that were directed to the potential unreliability of his evidence. The jury additionally had the advantage of a very comprehensive address from trial counsel in which all of the features which could point to unreliability in the complainant's evidence, including the failure to give particulars in the first JIRT interview and the role of dreams or nightmares in memory, were highlighted, with some skill.
There is no reason to conclude that the refusal of the trial judge to direct the jury as to the possible unreliability of the complainant's evidence, or the need to scrutinise it with great care, or as to the dangerousness of convicting upon it, gives rise to a risk of a miscarriage of justice.
We have concluded that the trial judge was not obliged to give directions of that nature, and no error has been shown in the exercise of the discretion in that regard.
Whilst we would grant leave to argue this ground, it should be dismissed.

Ground 2: His Honour erred in failing to direct the jury adequately in relation to the evidence of the accused as a witness, with particular regard to the burden and standard of proof.

In his written submissions in support of this ground the applicant extracts from the summing up part of the trial judge's directions to the jury concerning the applicant's evidence and the burden and standard of proof, and complains that the directions were inadequate. No reference was made by the applicant to directions given by the trial judge to the jury earlier in the course of the trial, or to the full content of the directions given in the summing up.
No complaint about his Honour's directions was made at trial: r 4 of the Criminal Appeal Rules applies.
At the commencement of the trial, after the jury had been empanelled but before any evidence had been taken, the trial judge made some opening remarks to the jury, including directions about the burden and standard of proof. He said, "You might think that anyone who makes an allegation should have to prove it, and that is exactly what happens in this trial, members of the jury. We lawyers say the onus of proof is on the Crown. That just means it is for the prosecution to prove that [the applicant] is guilty, if it can, certainly not for [the applicant] to prove that he is innocent or that he not guilty, it is for the prosecution to prove that [the applicant] is guilty before you can find him guilty. Because what is alleged are serious criminal charges, the prosecution has to prove that [the applicant] is guilty beyond reasonable doubt before that is the verdict you can return. At the end of the trial you are going to be asking yourselves this question three times, for each count on the indictment: has the prosecution proved beyond reasonable doubt that [the applicant] is guilty? That is your ultimate decision, members of the jury. For each of those counts on the indictment, has the prosecution proved beyond reasonable doubt that [the applicant] is guilty?" (T6 of 16.3.2016)
Some minutes later (recorded on two pages of transcript) his Honour again directed the jury that it was for the prosecution to prove the applicant's guilt beyond reasonable doubt.
The applicant gave evidence on 18 March 2016. Immediately before he was called into the witness box, the trial judge directed the jury in these terms: "But there is something important I need to say to you about the fact that [the applicant] is going to give evidence. As he is sitting there giving his evidence, you might think 'well, I wonder what he can prove to us'. If you were thinking that, of course, members of the jury, that would be the wrong way of thinking about what's about to happen. As I explained to you at the beginning of the trial, [the applicant] doesn't have to prove that he's innocent, doesn't have to prove that he is not guilty. So the proper way of thinking about [the applicant's] evidence is that something you take into account in deciding whether the prosecution has proved that he is guilty beyond reasonable doubt." (T6:7-15 of 18.3.16)
After the applicant gave evidence, and in the course of more formal directions to the jury during the summing up, the trial judge said this about the onus and standard of proof: "Let me now come to the most important direction I have to give you, and that concerns what we lawyers call the onus and the standard of proof. This is not going to come as any surprise to you because it was mentioned throughout the trial. Appropriately, both lawyers mentioned it in their addresses to you too. Because this is a criminal trial, the burden of proving the guilt of the accused is firmly on the Crown. The accused started this trial from the presumption that he was innocent. He was presumed to be innocent when the Crown presented the indictment. He was presumed to be innocent when he gave evidence from the witness box. He is presumed to be innocent now, and the only way he loses that presumption of innocence is if the Crown proves to you beyond reasonable doubt that he is guilty. He does not have to prove that he is innocent. He does not have to prove that he is not guilty. I did tell you this at the beginning of the trial and I am sure you remember it. The question that you ask, to decide what the verdict is, is this: has the Crown proved beyond reasonable doubt that he is guilty? And you ask that question for each of the three counts on the indictment. Has the Crown proved beyond reasonable doubt that the accused is guilty on count 1? And only if you answer that question "yes" do you find him guilty. That does not mean that the Crown has to prove the truth of every word spoken by every one of its witnesses, nor does it mean that you have got to decide in favour of the Crown where there is dispute on the evidence. It may be that you can make a decision on this case without actually resolving all those disputes. Some of them, you might think, are not important. Some of them you might think, "Oh, well, I don't need to decide whether the version put forward by the Crown is true or whether the version put forward by the accused is true," on some aspects of the evidence. So the Crown does not have to prove that every word spoken by its witnesses is true before you can find the accused guilty. What the Crown has to prove, and prove beyond reasonable doubt of course, are the ingredients, the elements that go to make up the offences, and I will be looking at those in the second part of my address to you. But I want to emphasise this: there is no onus of proof on the accused at all. There never was at any stage of this trial and there never will be. The obligation of proof is always on the Crown, and so that question "Has the Crown proved beyond reasonable doubt that the accused is guilty?" must be asked for each of those counts on the indictment, and only if you answer that question "yes" can you then return a verdict of guilty on that particular count." (SU 8 of 21.3.16)
In the course of giving other directions, the trial judge repeatedly referred to the fact that the applicant bore no onus of proof, or that it was for the Crown to prove the guilt of the accused, or both.
He reiterated both in the course of giving a direction about the forensic disadvantage occasioned to the applicant by delay (SU 10). He told the jury that it was for the Crown to prove the applicant's guilt in the context of a direction concerning the applicant's good character (SU 11). His Honour referred to the onus of proof on the Crown relating to the applicant's understanding of the moral wrongness of the alleged acts (SU 11, SU 19, SU 21-22). Referring to the complainant's evidence in the course of giving a direction about evidence of uncharged acts his Honour told the jury the Crown had to satisfy them beyond reasonable doubt that the applicant had committed each charged act (SU 14), and later returned to the issue of proof beyond reasonable doubt in the same context (SU 15-16).
In setting out for the jury the elements of the offences charged, the trial judge again stressed orally and in writing that it was for the Crown to prove the applicant's guilt, and to prove it beyond reasonable doubt (SU 16-17, MFI 14). After directing the jury as to the elements and alleged facts of count 1, his Honour said: "Of course the question as to whether this happened - the question as to whether the Crown has proved this beyond reasonable doubt - is at the heart of this trial, and the lawyers have spoken about this at length. I will remind you of what they said in a little while when I get to the third part of what I have to say to you, but let me just emphasise at this stage, it is not a case of whose case sounds better. Does [the complainant] sound more believable than the accused or is it the other way around? It is not a question of weighing things up like that, members of the jury. You can only find this first element proved beyond reasonable doubt if the Crown satisfies you beyond reasonable doubt that the accused did have sexual intercourse with [the complainant] in the way I have just described. Of course, if you are not satisfied beyond reasonable doubt, you need not look any further at elements 2 and 3. If you are not satisfied beyond reasonable doubt that sexual intercourse occurred, then it does not matter. You do not need to look at elements 2 and 3, because the Crown has to prove all three of them beyond reasonable doubt. But what happens if you are satisfied beyond reasonable doubt of that first element? You move onto the next two elements." (SU 18 of 21.3.2016)
After completing an explanation of the elements of count 1 the trial judge repeated: "That is what the Crown has to prove beyond reasonable doubt before you can find [the applicant] guilty of count 1 on the indictment." (SU 20)
Further reference to the burden on the Crown was made in relation to count 2 (at SU 21): "When you look at the elements of count 2, you will see that they are exactly the same as for count 1, so I do not need to repeat everything I said to you already. I will say to you that the two real issues for you to decide are, has the Crown proved beyond reasonable doubt that the accused forced his penis into [the complainant's] mouth and, if so, has the Crown proved beyond reasonable doubt that the accused knew that what he was doing was seriously wrong? If the Crown proves both of those matters, then you would return a verdict of guilty on count 2. If the Crown fails to prove both of those, you return a verdict of not guilty on count 2". (SU 18 of 21.3.2016)
The jury were specifically directed that it was not a question of choosing between the evidence of the complainant and that of the applicant. The trial judge said, "[…] let me just emphasise at this stage, it is not a case of whose case sounds better. Does [AM] sound more believable than the accused or is it the other way around? It is not a question of weighing things up like that, members of the jury". (SU 18)
The jury was again reminded of the fact that it was for the Crown to prove the applicant's guilt beyond reasonable doubt when the trial judge summarised the addresses of counsel. (SU 23, SU 28, SU 29, SU 33, and SU 34)
At the conclusion of the summing up the applicant's counsel asked for a direction in accordance with R v Markuleski (2001) 52 NSWLR 82 (which his Honour had in fact already given) and some clarification of an aspect relevant to the doli incapax issue. The requested directions were given.
No complaint was made about any aspect of the directions given to the jury about the onus and standard of proof, or about the applicant's evidence.
In his written submissions the applicant argues that the "model" direction in the Judicial Commission of NSW Criminal Trial Courts Bench Book (at [3]-[600]) should have been given, together with a "Liberato direction".
A "Liberato direction" is derived from the dissenting judgment of Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515, where his Honour said, "The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."
The effect of the applicant's complaint is that the jury may have been under a misapprehension that they were entitled to compare the conflicting evidence of the complainant and the applicant, and decide which was to be preferred, or that they believed that it was necessary to accept the applicant's evidence to acquit him.
That complaint overlooks the overall effect of the whole of the directions to the jury, including those given at the commencement of the trial, and that given to the jury immediately before the applicant gave his evidence.
His Honour was at pains throughout to emphasise and to do so repeatedly that the applicant bore no onus of proof of anything, but that it was for the Crown at all times to satisfy the jury of his guilt of each charge beyond reasonable doubt. Particularly having regard to the direction given to the jury immediately preceding the applicant's evidence, there could be no reasonable basis to conclude that the jury were under any misapprehension as to the significance of the applicant's evidence or as to whether he had assumed any burden of proof.
Indeed, after the trial judge directed the jury on that aspect of the matter on 18 March 2016, the applicant's counsel at trial said, in the course of an opening address, "Ladies and gentlemen, I was going to start by telling you what it means for [the applicant] to be giving evidence before you today. I now won't need to because his Honour has told you". (T96:17-19 of 18.3.2016)
That comment represents more than a failure to complain; it is an acceptance and an endorsement of the adequacy of the direction.
As to the inconformity between his Honour's directions and those suggested in the Bench Book, no error arises in that regard. The Bench Book is a very useful tool to assist trial judges in giving appropriate directions that meet the requirements of authority, but it is not proscriptive. Failure to render verbatim particular directions to a jury from the Bench Book cannot constitute proof of error. The question is whether the directions given were, in the context of the trial, appropriate: Hong v The Queen [2009] NSWCCA 242 at [34]-[35]; Ith v R [2012] NSWCCA 70 at [48].
That the applicant's counsel at trial saw no inadequacy or error in the directions of the trial judge is implicit in counsel's failure to complain about the directions after they had been given. A failure to raise a complaint is ordinarily a reasonable basis upon which to conclude that the directions overall were fair and appropriate: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90] and see also AP v R [2013] NSWCCA 189 at [29].
Rule 4 applies to this ground and, as such, leave should only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: R v Germakian (2007) 70 NSWLR 467 at [13].
We are not persuaded that the jury would have been diverted from the proper approach to its task of determining whether the Crown had proved the applicant's guilt to the requisite standard, or that there has been a fundamental departure from the requirements of the law.
The leave required by rule 4 should be refused.

Ground 4: The trial judge failed to direct the jury adequately on the question of doli incapax.

Referring to the decision in RP v The Queen [2016] HCA 53 the applicant submits both that the evidence adduced in the trial fell short of proof of his knowledge of the serious wrongness of the acts charged, and that the directions given by the trial judge on this issue were inadequate.
Because the applicant was aged between about 12 years and 2 months and 13 years and 7 months in the period averred in the indictment the common law presumption of doli incapax applied to him. The presumption is that a child below the age of 14 years is insufficiently developed, both morally and intellectually, to have the capacity for mens rea. To establish the applicant's criminal responsibility for the offences charged, it fell to the Crown to rebut the presumption by proving beyond reasonable doubt that the applicant was sufficiently developed such that he knew that it was morally wrong to engage in the physical acts of the offences charged.
In RP v The Queen the High Court considered the case of an appellant who was aged between about 11 years and 6 months and 12 years and 3 months at the time when it was alleged he sexually assaulted a younger brother, including by two instances of anal intercourse. There was no dispute at trial that the physical acts constituting the offences had been committed; the sole issue was whether the Crown could rebut the doli incapax presumption.
The Crown case proceeded by way of the tender of statements, and the Crown relied on the circumstances of the offences themselves to rebut the presumption. The appellant had locked the complainant into a room on one occasion to enable him to commit the act, and impeded his exit from a room on another occasion. The complainant had exhibited signs of distress and evinced a wish to avoid the activity but the appellant had persisted. On one occasion the appellant held his hand over his brother's mouth to prevent him from calling out, and on another he pushed him face down into a pile of clothing to stop him calling for his sister.
The only other evidence directed to the doli incapax presumption were two reports containing information as to the appellant's intellectual capacity that were tendered by the Crown at the appellant's request. Both reports post-dated the alleged offences by some years, and both were to the effect that the appellant, at ages 17 and 18, was assessed as falling within the borderline range of intellectual functioning. The later of the two reports additionally referred to the social and educational deprivation of the appellant's upbringing, and the dysfunctional circumstances of his early life, including possible sexual molestation.
The High Court observed that the conclusion reached in the court below that the appellant had understood the serious wrongness of his acts was largely based upon an inference drawn from the evidence that the complainant did not consent and was distressed by the acts. No evidence had been adduced of the appellant's performance at school as an 11 year old, or of the environment in which he was raised (and from which conclusions might be drawn about his moral development). The Court held that this was insufficient in the circumstances that applied to a child of 11 years with an intellectual disability. The Court said, "It cannot, however, be assumed that a child of 11 years and six months understands that the infliction of hurt and distress on a younger sibling involves serious wrongdoing. While the evidence of the appellant's intellectual limitations does not preclude a finding that the presumption had been rebutted, it does point to the need for clear evidence that, despite those limitations, he possessed the requisite understanding." [35]
The Court was critical of the failure to adduce evidence as to the environment in which the appellant had been raised, or of his performance at school at the relevant time. It said, "In the absence of evidence on these subjects, it was not open to conclude that the appellant, with his intellectual limitations, was proved beyond reasonable doubt to have understood that his conduct, charged in counts two and three, in engaging in sexual intercourse with his younger brother was seriously wrong in a moral sense." [36]
In the applicant's trial the Crown relied upon the evidence contained in two school reports from June and December 2004 respectively, when the applicant was in Year 7 at high school.
The mid-year report from 2004 stated that the applicant had had two whole and one part days absence from school, and supported the wearing of the school uniform. Assessments were provided of the applicant's "learning outcomes" and "classroom profile" in a range of subjects, being English, Mathematics, Science, History, Geography, Languages, Music, Visual Arts, and "PDHPE" (which is understood to be Personal Development, Health and Physical Education).
The applicant's report overall was a positive one, and he was generally assessed as having "achieved" or "highly achieved" various learning outcomes. The applicant's "classroom profile" was of a student who "always" or "usually" worked co-operatively, completed class work and met deadlines, was respectful of teachers and peers, worked independently, and brought necessary equipment to class.
Some comments from some subject teachers are illustrative: "English: "[AL] is a very capable student who has applied himself with his classwork and homework". Mathematics: "[AL] has achieved a mark of 82% and a position of 59/156". Science: "[AL] is a well-mannered student. He is motivated and participates well in class discussions. He is always keen to learn. [AL] is progressing well". Personal Development/Health: "[AL] is a reasonably attentive student who regularly makes a very good effort with set work. His contributions to class discussions could be increased"." [Ex 7]
The report from December 2004 was again a generally positive one. It noted that the applicant had had three whole and one part days absence, and supported the wearing of the school uniform. The applicant again "achieved" or "highly achieved" most learning outcomes, and his classroom profile showed that he continued to "usually" or "always" meet the standards expected. Comments from individual teachers spoke of him as a mature and capable student who worked well and made a positive contribution to his classes. His examination performances were referred to as very pleasing and encouraging, although he was noted to require improved concentration in visual arts. The comment from the Physical Development / Health teacher was "[AL] is a polite and co-operative student who makes a good effort with his book work. More class participation would be beneficial".
The jury additionally had photographs tendered by the applicant of himself and his home at the relevant time, which showed a well dressed and well groomed boy, and a well appointed, tidy home.
In address to the jury relevant to the doli incapax issue, the Crown relied upon the evidence that suggested the applicant had taken steps to avoid detection, including making threats to the complainant to secure his silence, locking the door of the bedroom during the commission of the acts, and ensuring that the complainant composed himself before allowing him to return to his brothers. The Crown pointed to the applicant's school reports as demonstrating that he was a mature and capable student in 2004. Finally, the Crown relied upon the following evidence that the applicant had given, without objection, in cross-examination: "Q. I suppose [AL], you would have known back then when you were 12 or 13 that it would have been seriously wrong to put your penis into a young boy's mouth, wouldn't you? A. I suppose I would have, yes." (T105:0-4 of 18.3.2016)
In address by trial counsel for the applicant it was disputed that the circumstances of the acts alleged could do more than point to comprehension of simple wrongness, as opposed to an understanding that the conduct was seriously wrong. The applicant's evidence about his understanding of moral wrongness as a 12 year old was highlighted as an example of the disadvantage caused to the applicant by delay, in that the applicant was only able as a grown man to "look back" to the relevant period in answering that question. It was suggested to the jury that his answer was no proof of his actual comprehension as a child of the moral wrongness of the acts.
In this Court the applicant submits that the answer given to the Crown's question in cross-examination was "of doubtful admissibility" and should be put entirely to one side when considering proof of the rebuttal of the presumption. It was submitted that the school reports "did not really address at all the question of appreciation of ethical issues and moral turpitude, particularly that directed to sexual activity", and the circumstances of the commission of the acts said nothing about appreciation of moral wrongness.
As to the adequacy of the directions to the jury on this aspect of the matter, whilst conceding that the directions were "literally correct" the applicant argues that the jury should have been given "considerably more assistance" on the subject, in light of the decision in RP v The Queen, including a direction to the jury to place little or no weight on the applicant's evidence in cross-examination (set out at [132] above), and pointing out that no evidence adduced by the Crown went specifically to the issue. It was submitted that the jury should have been told that there were "significant shortcomings" in drawing conclusions about the applicant's understanding of the serious wrongness of the acts from the circumstances of the charged acts.
Having considered the whole of the evidence available to the jury relevant to the doli incapax presumption, we are not persuaded that it was insufficient to rebut the presumption and prove knowledge of serious wrongness beyond reasonable doubt.
Although the applicant places heavy reliance on the outcome in RP v The Queen, that was a case that very much turned on its own facts. We do not understand it to have changed or developed relevant principle.
In RP v The Queen, the only evidence the Crown could point to to rebut the presumption was evidence that the complainant had not consented to the acts and was hurt and upset by them. That evidence fell to be assessed against other evidence which established that the appellant fell within the borderline category of intellectual disability, had had a disadvantaged and deprived upbringing, and may well have been himself sexually assaulted.
The situation here is quite different. The Crown led and relied upon contemporaneous school reports that established that the applicant was a diligent student who did well at school and was regarded as well mannered and co-operative. The reports also established that the applicant had classes in PDHPE, a subject that the jury, drawing on their ordinary experience of the world, may have considered educated students about matters connected with personal and sexual development.
The general information in the reports - that the applicant had had very few days absent from school and "supported the school uniform" (implicitly) by wearing it - also pointed to a conclusion that the applicant was a good student who complied with school rules.
There was evidence that, in addition to his attendance at school, the applicant attended further schooling, a school for children of his ethnic background, every Saturday morning.
The jury additionally had available the photographs of the applicant and his home from 2004. Nothing in those images bespeaks disadvantage or deprivation; quite to the contrary.
Finally, the jury had the applicant's own recollection in evidence of his level of understanding as a 12 year old of the moral wrongness of sexual acts of the nature alleged, and his concession that he was then aware of such matters.
Before this Court senior counsel for the applicant challenged the admissibility and weight of the concession by reference to the capacity of an adult to recall a state of childhood knowledge, and by reference to the prefatory "I suppose". He said, "[…] I accept that one may have some perception of one's state of development at a much ager [sic - younger] age but that is a very rubbery thing for one to actually be opiniating [sic] about oneself, and his answer is "I suppose". (T10:23, 27.2.2017)
The applicant sought to make much of the wording of the answer given by the applicant: "I suppose I would have, yes" but the phrase, "I suppose", did no more than repeat the form of the question: "I suppose you would have known back then […]". It does not of itself, in its usage, substantially qualify the concession.
It was submitted that "boys that have just gone through puberty have very little understanding of what's happening to them" (T10:44, 27.2.2017) but there was no evidence to support that submission, and it may be contrary to the collective experiences of the jury, whose task it was to determine what weight should be given to that piece of evidence.
The evidence was led from the applicant without objection from trial counsel. That of itself suggests that the evidence elicited was not inadmissible, and we do not conclude that it was. The applicant's recollection of his contemporary state of understanding of the wrongness of sexual acts of the nature charged was relevant and admissible; the question of weight was one for the jury.
In address to the jury the applicant's counsel argued that the evidence was of no weight, and used it as an example of the disadvantage occasioned to the applicant by virtue of the delay in complaint. The jury would have been well aware of the issues, and able, by bringing to bear their life experience and collective wisdom, to determine them.
There is no prescribed formula for evidence sufficient to rebut the presumption; that will depend upon the circumstances in individual cases. As the High Court said in RP v The Queen, "What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others' property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not." [12]
In the circumstances of this case, there was evidence to suggest that the applicant had a good home life: he lived with both his parents and siblings in an apparently affluent environment; he attended school regularly, and his parents secured additional tuition for him each Saturday. The evidence of his performance and conduct at school pointed to a mature, respectful, and intelligent youth. There was evidence that the applicant had taken steps to hide his conduct to the complainant. That evidence coupled with the applicant's own concession in evidence of his level of understanding, was sufficient for the jury to be satisfied beyond reasonable doubt of this aspect of the matter.
Nor are we persuaded that the directions to the jury concerning the doli incapax presumption were inadequate.
The trial judge gave the jury directions on the issue of proof of knowledge of serious wrongness during the course of the trial and in the more formal summing up.
At a very early stage of the trial, after the jury was empanelled and after both counsel had given an opening address to the jury, his Honour, referring to the addresses, directed the jury to the two important issues that were in dispute in the trial. The first was whether the Crown could prove that the acts as alleged had occurred; the second was whether the Crown could prove that the applicant understood the serious moral wrongness of such conduct. His Honour said, "If you find that that has been proved beyond reasonable doubt, it doesn't automatically mean that [the applicant] is guilty because then if you do find that proved beyond reasonable doubt there's that next question the Crown and Mr Fernandez referred to. Because the next thing the Crown has to prove beyond reasonable doubt is that at the time that [the applicant] did that, that is when he was 12 or 13, at the time he did it he knew that what he was doing was seriously wrong. That's either as a matter of morality or according to the ordinary standards of reasonable people. The Crown doesn't have to prove that [the applicant] had a law degree and knew that it was a criminal offence to do what he was doing, he doesn't have to prove that [the applicant] was aware that it was actually a criminal offence. What the Crown has to prove for that second question is that [the applicant] knew at the time that he was doing what he did that it was seriously wrong again either as a matter of morality or according to the ordinary standards of reasonable people." (SU 6:26-39)
Giving the jury such a direction at that stage in the trial, before any evidence had been called, would have served very much to focus the minds of the jurors on the question of proof of knowledge of serious moral wrongness.
That direction was reinforced during the more formal part of the summing up at the end of the trial, both orally and in writing. When directing the jury about the elements of the offences, the trial judge told the jury that, in addition to the elements of the offences, the Crown had to prove beyond reasonable doubt that the applicant knew that his acts were seriously wrong, and not merely wrong or naughty. He said (supported by a written direction, MFI 14): "What the Crown has to prove - and I have written it down for you there - is that the accused knew that what he was doing was seriously wrong. It is not enough for the Crown to prove, "Oh, maybe the accused thought that what he was doing was naughty; maybe the accused thought he was being mischievous." That is not enough. The Crown has to prove that the accused knew that it was seriously wrong for him to force his penis into the mouth of his four or five year old neighbour. You might say, "How are we supposed to know? How are we supposed to know what the accused was thinking? We're not mind readers." Let me tell you, members of the jury, there is nothing unusual in what you are being asked to do. Every criminal offence that comes before these courts requires a jury to make a conclusion about some aspect of what the accused was thinking, what the accused knew, what the accused believed, what the accused intended. They are all the sorts of issues that juries decide every day. So please do not think you have been given an impossible task when you are asked to decide, "Are you satisfied beyond reasonable doubt of something that was going on in the accused's mind at the time this act was taking place?" What do I want to emphasise in relation to this third element? Firstly, it is not what you might have thought as a 12 or 13 year old. It is not what a reasonable 12 or 13-year-old would have known. What the Crown has to prove, and prove beyond reasonable doubt, is that this accused would have known that it was wrong for him to put his penis in the mouth of his four or five year-old neighbour and that it was not only wrong but seriously wrong for that to happen. Secondly, the Crown does not have to prove that the accused knew it was against the law. It does not have to prove that, as a 12 or 13 year old, [the applicant] had some understanding of the criminal law that it was against the law to do what he did. Thirdly, what the Crown has to prove beyond reasonable doubt is that at the time he put his penis into [the complainant's] mouth the accused knew that what he was doing was seriously wrong, either as a matter of morality or according to the ordinary standards of reasonable people." (SU19-20 of 21.3.16)
In summarising the arguments of trial counsel in addresses his Honour referred to the submissions of both counsel on this issue, and how each said the applicant's state of understanding was proved, or failed to be proved.
The jury could have been under no misapprehension as to what the Crown had to prove, the standard of proof it had to meet, and what the parties respectively advanced relevant to that issue.
That the applicant's counsel at trial saw no error or inadequacy in his Honour's direction may be concluded from both his failure to ask for any correction or supplementation to the directions, and from his acknowledgement that the written direction came "directly from RP".
On 18 March 2016 the trial judge gave counsel a copy of the proposed written direction to the jury as to the elements that the Crown had to prove. The document stated: "Before you can convict the accused you must be satisfied beyond reasonable doubt of each of the following matters: 1 The accused had sexual intercourse with [the complainant] by putting his penis in [the complainant's] mouth, and 2 At the time [the complainant] was under the age of 10, and 3 At that time, the accused knew that what he did was seriously wrong either as a matter of morality or according to the ordinary standards of reasonable people." (T26:7 of 18.3.2017)
Counsel at trial consented to the provision of the written aide to the jury: "I have no objection, your Honour. I note number 3 about the formulation seems to come directly from RP. I just put the citation on the record, your Honour. [2015] NSWCCA 215. I've no problem with anything, your Honour." (T26:12-15 of 18.3.2016)
We do not consider the concession to have been misplaced, or overtaken by the subsequent decision of the High Court, since there was no criticism by the High Court of the legal principles applied by the NSW Court of Criminal Appeal.
His Honour's directions appear to be drawn from Stapleton v The Queen (1952) 86 CLR 358 and The Queen v M (1977) 16 SASR 589, wherein it was held that the accused child must know that the act charged is seriously wrong as a matter of morality, or according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law. Nothing in RP v The Queen detracted from the correctness of those directions. There it was stated, "Knowledge of the moral wrongness of an act or omission is to be distinguished from the child's awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was "seriously wrong" or "gravely wrong"." [9]
Although the applicant contends that the trial judge was obliged to go further in the directions he gave by "bringing home" to the jury the asserted lack of evidence directed to the doli incapax issue, or that the applicant's concession in evidence was of limited weight, this would have caused the trial judge to enter the arena as an advocate.
It is not for a trial judge to tell a jury the weight that should be attributed to particular evidence, or to suggest that certain parts of the evidence adduced should be disregarded or dismissed by the jury. Those are all matters for the jury to determine.
The directions in the applicant's case were unremarkable and we can discern no error.
Rule 4 of the Criminal Appeal Rules applies to this ground, as it did to ground 2. We repeat what we there said. There has been no error and no fundamental departure from the requirements of law.
Leave to advance this ground should be refused.

Ground 3: The verdicts in respect of all counts are unreasonable or cannot be supported having regard to the evidence.

The applicant argues that, in exercising its function in determining whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt, this Court would conclude that the evidence was so inadequate and lacking in probative value that there is a significant possibility that he is innocent.
The applicant points to a number of features of the evidence in support of his contention that the verdicts are unsafe: 1. The fact that the complainant did not give an account of identifiable assaults in his first JIRT interview, being able to do so only in the second interview. 2. That the incidents recounted in the second JIRT interview were based upon memories which were or may have been triggered by dreams and nightmares. 3. That there were inconsistencies between the complainant's account of events in the first interview, and the second interview, and in his evidence in court. 4. That some of what the complainant said was implausible, such as that a child of his age would have been able to reach the bathroom sink to vomit into it (although there was in fact no evidence of the height of the sink or the height of the complainant). 5. The complainant's evidence was so compromised as to be incapable of proving the offences to the requisite standard. 6. There was no corroboration from the other children present in the house at the time of the alleged offences 7. There was no evidence capable of rebutting the doli incapax presumption. 8. The applicant gave evidence denying the offences, and was not seriously tested in cross-examination.
The task for an appellate court considering whether a verdict is unreasonable is to make an independent assessment of the sufficiency and quality of the whole of the evidence. The question is whether notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all of the circumstances to allow the verdict to stand: M v The Queen [1994] HCA 63; 181 CLR 487 at 492; SKA v The Queen [2011] HCA 13; 243 CLR 400.
In Libke v The Queen [2007] HCA 30; 230 CLR 559 Hayne J (with whom Gleeson CJ and Heydon J agreed) said at [113], "But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard."
In answering that question the primacy of the jury must not be discounted; nor can it be overlooked that the jury had (in this case the very considerable) advantage over the appeal court of having seen the witnesses give evidence.
Recently, in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 the High Court said at [65]-[66], "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] 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"."
Having considered the whole of the evidence, we have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences charged.
There were flaws in the complainant's evidence, but they were thoroughly exposed before the jury in cross-examination, and highlighted in address, such that the jury was in the best position to determine their significance.
The applicant relies heavily on the references made by the complainant to having remembered some matters in the course of dreams or nightmares, but his evidence on the point was quite clear. The complainant asserted that he well understood the difference between those things which were "true", which he was "100% certain" had occurred, and those things which were vague in his mind, and which he could not be certain were not the product of dreams. The incidents particularised by the indictment fell into the former category of true events; those events which were vague to the complainant were those that he said he did not wish to talk about, as to do so would be to speculate about them.
The fact that the complainant gave a more detailed account in November 2014 than that of June 2013 was explained by him as a product of both feeling more comfortable to talk about the allegations in the later interview, and because he had had more time to think about and understand the events, and more time to prepare himself to talk about them.
He was also clear about having had a continuous memory of the incidents, albeit memories that he had not wished to think about at times.
There were aspects of the complainant's evidence that were incorrect, such as his belief that the applicant had only a younger brother, and his recollection of one bed only in the room in which he said he was assaulted, but the significance of such matters could be readily determined by the jury in the context of the trial, and the observations made of witnesses.
The jury here may well have concluded that such failures of observation or recollection were not significant having regard to the age of the complainant at the time and the traumatic nature of the events that he alleged had occurred.
What can be gleaned from the transcript of the complainant's evidence is the compelling nature of his description of the acts of fellatio: his references to the sensation of the penis at the back of his throat, the uncontrollable gagging response, the unpleasant smell, the urge to vomit, are all consistent with what might be expected of a child experiencing an act of that nature.
The jury had the significant advantage of having seen the complainant depose as to these matters.
The jury also had an opportunity to see and assess the applicant as a witness. Having regard to the verdicts the jury must have rejected that the account he gave was reasonably possible.
Although the applicant submitted before this Court that it would have been impossible for the jury to make any assessment of the applicant's demeanour as a witness, having regard to its brevity and the absence of real testing, that submission does not sit well with ordinary experience.
The applicant's evidence was brief, because its substance was to deny the offences. That does not mean however, as the applicant submitted, that it would have been impossible for the jury to make any proper assessment of his demeanour. Demeanour is normally opaque in transcript, but therein lies the advantage of the jury.
Jurors are regularly instructed in criminal trials to use their ordinary experience of the world and relations with people to aid them in assessing witnesses. In ordinary life, assessments are frequently made of an individual's veracity and credibility, and sometimes made quickly, on the basis of only limited observation. That does not necessarily render the conclusions drawn untenable or unreliable.
We would reject the applicant's submission that it was not open to the jury to assess his demeanour because of the length and content of his evidence.
The content of the applicant's evidence was, as noted, to deny the allegations. Where there is a denial, there cannot be great detail.
In cross-examination the applicant maintained his absolute denial of any wrong doing. The applicant is critical of the Crown Prosecutor for failing to put every aspect of the Crown's case, and raises a breach of the rule in Browne v Dunn (1893) 6 R 67.
Rather than put every allegation, and every aspect of every allegation, to the applicant in cross-examination, the Crown Prosecutor put what might be termed global propositions to the applicant: "[…] And I'm suggesting to you, I'm putting to you, and you can either agree or deny, that you took him into your room? A. And I have been denying constantly. Q. I suggest to you that you took him into your room and you put your penis in his mouth? A. And I'm suggesting that I did not. Q. Well, you took him into the bathroom didn't you? A. No, I did not." (T104:10-20 of 18.3.2016)
Whilst it was open to the Crown to put detailed propositions to the applicant going to every aspect of the Crown case, no rule of law, and certainly not the rule in Browne v Dunn, required such an approach.
The rule has been considered in a number of cases, including R v Dennis [1999] NSWCCA 23 at [35]-[37] per McInerney J at [45]-[51] per Spigelman CJ; R v Abdallah [2001] NSWCCA 506; (2001) 127 A Crim R 46 at [19]-[24] per Sheller JA; Picker v R [2002] NSWCCA 78 at [38]-[62] per Smart AJ; R v Scott [2004] NSWCCA 254 at [41]-[63] per Hulme J; R v Banic [2004] NSWCCA 322 at [23]-[29] per Barr J; RWB v R [2010] NSWCCA 147 at [63]-[102] per Simpson J; Llewellyn v R [2011] NSWCCA 66 at [137] per Garling J.
We do not take from any of the authorities a proposition that a party is obliged to put its case to a witness in detail. What is required is to give a witness an opportunity to comment on or explain some matter about which the opposing party intends to make comment. The rule is grounded in procedural fairness.
Here, the Crown's case was that the applicant had sexual intercourse with the complainant, and had gone to the bathroom after those acts. Those broad propositions were put to the applicant and he was given an opportunity to comment upon them.
It does not follow that because every detail of the Crown's case was not put to the applicant, such as detail as to the locking of the door or the position in which intercourse occurred on the bed, that there must be adverse consequences to the Crown.
The applicant appeared to submit that, because the particularity of the complainant's allegations was not put to him, the Crown should not have been permitted to rely on the detail of evidence not raised with him. If that is indeed what the applicant intended to submit, the submission must be rejected.
The jury saw and heard the applicant give his evidence, as it saw and heard the complainant give his. The applicant's evidence was something the jury was obliged to consider, but plainly it was not accepted.
In assessing the Crown case, and whether the Crown had proven the charges beyond reasonable doubt, the jury clearly accepted the complainant's testimony. All of the issues as to asserted inconsistencies, implausibilities, and uncertainties were before the jury; the jury was in the best position to assess the whole of the evidence.
Having considered the whole of the evidence that was placed before the jury, and having regard to its strength and quality, we conclude it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. We are satisfied to the same standard that the jury verdicts were not unreasonable, and were supported by the evidence. The matters raised by the applicant do not lead us to conclude otherwise.
Although we would grant leave to advance this ground, it should be dismissed.

ORDERS

The orders of the Court are: 1. Leave granted to appeal on grounds 1 and 3. 2. Leave to appeal on grounds 2 and 4 is refused. 3. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2017

Criminal Appeal Rules Criminal Procedure Act 1986(NSW)

AL v Regina

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