Lazar v The Queen [2022] NSWCCA 4
Dansie v The Queen [2022] HCA 25
(2022) 96 ALJR 728
De Silva v The Queen (2019) 268 CLR 57
[2019] HCA 48
Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086
Filippou v The Queen (2015) 256 CLR 47
[2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250
Source
Original judgment source is linked above.
Catchwords
Lazar v The Queen [2022] NSWCCA 4
Dansie v The Queen [2022] HCA 25(2022) 96 ALJR 728
De Silva v The Queen (2019) 268 CLR 57[2019] HCA 48
Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086
Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250[1998] HCA 68
GS v The Queen [2022] NSWCCA 225
Haile v The Queen (2022) 109 NSWLR 288[2022] NSWCCA 71
Hofer v The Queen [2021] HCA 36(2021) 95 ALJR 937
JV v R [2017] NSWCCA 49
Kanbut v R [2022] NSWCCA 259
Liberato v The Queen (1985) 159 CLR 507[1985] HCA 66
Melbourne v The Queen (1999) 198 CLR 1[1999] HCA 32
Melbourne v The Queen (1999) 198 CLR 1[1999] HCA 32
Orreal v The Queen [2021] HCA 4496 ALJR 78
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
R v Anderson [2001] NSWCCA 488127 A Crim R 116
R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep)
Simic v The Queen (1980) 144 CLR 319[1980] HCA 25
Slattery v R [2023] NSWCCA 117
Wade v R [2018] NSWCCA 85
Weiss v The Queen (2005) 224 CLR 300
Judgment (20 paragraphs)
[1]
the Children (Criminal Proceedings) Act 1987 (NSW) and section 578A of the Crimes Act 1900 (NSW), the publication or broadcasting or dissemination of any material that identifies or is likely to lead to the identification of the complainant is prohibited.
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 19 March 2023
Before: Traill DCJ
File Number(s): 2019/00091513
[2]
HEADNOTE
[This headnote is not to be read as part of the judgment]
Following a judge alone trial before Traill DCJ, the applicant was found guilty of three child sexual assault offences and sentenced to an aggregate term of imprisonment. He sought leave to appeal against conviction but not against sentence.
At trial, the applicant gave evidence that he had been at the locations identified but denying ever sexually assaulting the complainant or engaging in any conduct as alleged in the counts on the indictment. There were also numerous witnesses who gave evidence of the applicant's good character, both generally and in relation to their having no grounds for concern as to his behaviour with children. The trial judge provided a summary of the character evidence and noted that she accepted all of this evidence, describing it as "powerful" and "impressive".
In her reasons for judgment, the trial judge gave herself a Liberato direction, noting that if she did not positively accept the appellant's evidence but nevertheless had a reasonable doubt as to whether the Crown made out its case, then she was bound to bring in a verdict of not guilty. Traill DCJ also gave herself a number of other directions, including a character direction. In doing so, she noted that she was entitled to take the applicant's good character into account by reasoning that such a person is unlikely to have committed the offence by the Crown and to support his credibility.
The applicant raised five grounds of appeal. The fundamental issue in respect of the first four grounds of appeal was whether the second limb of the Liberato direction and the second limb of the good character direction were taken into account, and whether they could be seen from the judgment to have been taken into account, by the trial judge, as required by law. The fifth ground was that the verdicts were unreasonable and this was particularly relevant to the disposition of the appeal.
The Court (per Wright J, Yehia and Chen JJ agreeing) upheld the appeal on the first four grounds and granted leave to appeal but dismissed the appeal on the fifth ground.
Held as to grounds 1-4: The judgment failed to demonstrate, expressly or by implication, that the credibility of the applicant was taken into account when the trial judge reached her findings of fact and when she reached her ultimate findings of guilt. Similarly, the judgment did not involve the trial judge analysing and explaining how she concluded that there was no reasonable possibility that the applicant's denials of the alleged offending were true, notwithstanding his demeanour and credibility, as well as the powerful and impressive character evidence. Accordingly, it was concluded that the second limb of the good character direction and the Liberato direction were not taken into account, as required by law.
Held as to ground 5: Having undertaken an independent assessment of the whole of the evidence, the Court held that there was a reasonable doubt as to the applicant's guilt but the advantage experienced by the trial judge in seeing and hearing the evidence, was capable of resolving such doubt. Accordingly, leave to appeal on ground 5 was granted but the appeal, on this ground, was dismissed.
[3]
Judgment
WRIGHT J: By a notice of appeal filed on 27 July 2022, the appellant appeals and seeks leave to appeal against his conviction on three counts after a judge alone trial before Traill DCJ. On 19 March 2021, the appellant was found guilty and convicted of the following offences:
1. Count 1 - Sexual intercourse with a child who is under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW);
2. Count 3 - Aggravated sexual intercourse (under the authority of the applicant) with a child who is under the age of 10 years contrary to s 66A(2) of the Crimes Act; and
3. Count 5 - Aggravated indecent assault (person under the age of 16 years) contrary to s 66M(2) of the Crimes Act.
The trial judge imposed an aggregate sentence of 9 years and 6 months imprisonment with a non-parole period of 5 years and 8 months. There is no application for leave to appeal against the sentence. The applicant is eligible for release to parole on 18 November 2026.
The applicant's grounds of appeal are as follows:
"1. Ground 1: The trial judge erred by failing to apply the second limb of the Liberato direction.
2. Ground 2: The trial judge erred by failing to give adequate reasons for rejecting the evidence of the appellant.
3. Ground 3: The trial judge erred in failing to apply the second limb of the good character direction.
4. Ground 4: After finding that the complainant was a credible and reliable witness, the trial judge erred by failing to consider whether, notwithstanding that assessment, her Honour had a reasonable doubt about the guilt of the appellant.
5. Ground 5: The verdicts of guilty on all counts were unreasonable."
It was not in dispute that grounds 1, 2, 3 and 4 lay as of right pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW), being confined to questions of law, while ground 5 involved a question of fact alone or a question of mixed law and fact and was available only subject to leave, by virtue of s 5(1)(b).
The first four grounds are interrelated and it is convenient to deal with them together. The fifth ground is relevant to the disposition of the appeal, even if one or more of the first four grounds is made out, and accordingly it will be appropriate to consider that ground after the first four grounds.
[4]
Background
The Crown case was that the offences occurred between 2010 and 2014 and were committed against the appellant's granddaughter, the complainant. The Crown relied on evidence of the complainant who was between 7 and 11 years old at the time of the conduct, 15 years old when she spoke with the police, and 16 years old at the time of giving evidence.
The incident the subject of count 1 was based on the complainant's evidence that when she was 7 years old and residing in Faulconbridge, the appellant visited her at her home. While he was there, in the middle of the day, he went to her bedroom, pulled down his pants, put the complainant on the floor and tried to put his penis inside her, but "it didn't". The complainant said she felt pain inside of her vagina. This incident was disclosed by the complainant in her third Joint Investigation Response Team ("JIRT") interview.
The complainant referred to the incident the subject of count 3 in her first JIRT interview and provided further detail in her second JIRT interview. The complainant stated that between 26 July 2011 and 2 August 2011, when she was seven years old and her mother was attending a wedding, she was dropped off at the appellant's Kingsgrove home and at some point, he pulled her by her hand into a room, pulled her jeans and undies down and put his fingers inside her vagina.
The complainant's evidence in relation to the incident which was the subject of count 5 was that in 2013, when she was 9-10 years old, she attended the appellant's home and he took her into his room, grabbed her hands and put them on his penis and tried to move her hands up and down.
The complainant also gave evidence of an uncharged incident in Melbourne in 2012 when the appellant visited her at her home, got into her bed, pushed her down and put his penis into her vagina. The Crown relied upon this evidence as context and tendency evidence and also relied upon evidence of each count as tendency evidence in respect of the other counts.
The complainant's allegations were made in 2018 after she was hospitalised and referred to a community mental health service after attempting to take her own life.
The appellant gave evidence accepting that he had been at the locations identified but denying ever sexually assaulting the complainant or engaging in any conduct as alleged in the counts on the indictment. He also called numerous witnesses who gave evidence of his good character, both generally and in relation to there being no grounds for concern as to his behaviour with children.
[5]
Judgment of the trial judge
For the purpose of considering the first four grounds of appeal, it is necessary to review the trial judge's judgment in some detail, particularly in relation to the Liberato direction, the credibility direction and her Honour's reasoning in those regards.
[6]
Introductory parts, general directions and key evidence
After initially identifying the counts on the indictment and the requirements of s 133 of the Criminal Procedure Act and referring to Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, Traill DCJ set out the elements of the relevant offences. No issue was taken in respect of these aspects of the judgment.
Next, her Honour set out the "General Directions" she gave herself in relation to directions and warnings, which are also not challenged on this appeal. In this part of the judgment under the heading "Murray/Ewen direction", her Honour stated the following:
"60 Unless I am satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account she has given, I cannot find the accused guilty. Before I can convict the accused, I should examine the evidence of the complainant very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial. In any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, a judge must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown. I am entitled to convict the accused but only after I have carefully examined the evidence and satisfied myself that it is reliable beyond reasonable doubt."
Traill DCJ then detailed "the key evidence at the trial", noting however that she did not purport to include all the evidence although she had had regard to all of the evidence called and tendered. After identifying the undisputed facts and summarising the evidence of the complainant and the witnesses CD, Ms Pamplin and SD, the trial judge summarised the expert evidence and gave herself an expert evidence direction.
[7]
Character evidence and direction
The trial judge then turned to the evidence from numerous witnesses called both by the Crown and the defence in relation to what occurred and the appellant's character evidence. At the outset, the trial judge gave herself a character direction in the following terms:
"Character direction
181 A number of witnesses were called on the Crown case, who also gave powerful character evidence on behalf of the accused, being the accused's wife, Janice and her family members who also resided in the Kingsgrove house at the relevant time: Romonet Matienzo, [CM] and [LM]. The accused also called character evidence from Ms Julie Piper, Mr David Taylor, Mr Kevin Piper, [IB], Ms Jill Smith, Mr Hugh Gillard, Ms Diana Gillard, Mr Anthony Coyte, Ms Margaret Coyte and Ms Diana Lawrie. That evidence has not been challenged by the Crown. Therefore, I accept that the accused is a person of good character.
182 The law provides that a tribunal of fact is entitled to take evidence of an accused's good character into account in his favour, on the question of the whether the Crown has proved the accused's guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of him having committed the offences alleged. I am entitled to take the accused's good character into account by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether I reasoned that way is a matter for me. Further, I am entitled to use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account.
183 None of this means, of course, that good character provides the accused with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused."
The trial judge then provided a summary of that evidence which included the evidence from the following witnesses:
1. Janice Barwick, who recalled the complainant staying at the Kingsgrove house twice and CD dropping the complainant at that house once. Her Honour also recorded:
"185 … Janice supported [the appellant] in his evidence.
186 Janice said that as far as she could remember, the [appellant] was never left alone with the children. She said the Kingsgrove house was a busy house. She said that she had seen at the complainant and the [appellant] together at her house and never saw anything that caused her concern. Janice said that when the complainant was at the house, she was with [LM] most of the time."
1. Romonet Matienzo, who said that when the appellant came over to the Kingsgrove house, the children would run around inside and outside and that the appellant was usually in his bedroom on his computer or in the garage. Ms Matienzo did not recall the appellant being alone with the appellant. In addition, Traill DCJ recorded:
"188 Romonet also gave character evidence on behalf of the [appellant]. Romonet said that the [appellant] was a good man and she was surprised to hear the allegations. Romonet said that over a six-year period, she had seen the [appellant] with her children and her children's friends and did not see anything in his behaviour which caused her concern. Romonet thought very highly of the [appellant] as he had helped their family. Romonet was aware that her daughter [LM] had moved back to the Kingsgrove house to live with the [appellant] and Janice."
1. [CM], whose evidence was that she lived in the Kingsgrove house with the appellant for six years and she never saw anything that caused her concern between the complainant and the appellant.
2. [LM], who was 18 when giving evidence and was then living with the appellant due to an issue with her father. It was noted that she spoke very highly of the appellant and described him as a second father. In addition, it was recorded that:
"192 [LM] said that she got on very well with the complainant as they were about the same age. She described at times when the complainant came to visit and said that the complainant never had a problem with the [appellant]. [LM] said that the complainant had never said anything bad about the [appellant].
193 … In cross-examination [as an unfavourable witness], [LM] said that when the complainant was at the Kingsgrove house, the complainant was always with her; they were 'like glued together.' [LM] said that she considers the complainant to be a best friend. [LM] said that she had many school friends who stayed at the house, and she saw nothing that caused her any concern. [LM] only had favourable things to say about the [appellant]."
1. Julie Piper, who had known the appellant for 41 years and had never had any issues regarding the appellant and her grandchildren who were then aged 11, 10 and 9 years old.
2. David Taylor, who worked with the appellant for approximately 13 years and described him as a "solid character, very reliable, conscientious with his work cares for his family deeply". He said that he would often go away with the appellant to the bush together for about 10 days to 2 weeks and described the appellant as reliable and truthful. Mr Taylor said that he had seen the appellant around other people's children and had not seen anything which caused him concern.
3. Kevin Piper, who was a retired police sergeant who had known the appellant for 53 years and said that he had never seen anything that caused him concern and he would not hesitate to leave his grandchildren with the appellant, describing him as a "truthful, all-round, genuine, fine gentleman".
4. [IB], who is a niece of the appellant and was 24 years of age when giving evidence. She described the appellant as "a great person, supportive, caring". It was also recorded that:
"197 … [IB] only has good memories of the [appellant] and has never been made to feel uncomfortable by the [appellant] nor has she seen anything with any other females that made her feel uncomfortable. [IB] said that she would be more than happy to leave her children with the [appellant], when she eventually has children. [IB] described the [appellant] as 'honest' and had never known the [appellant] to lie".
1. Jill Smith, who first met the appellant in 1982 and said that she had never had any concerns with the way the appellant interacted with her daughters and spoke highly of him.
2. Hugh Gillard, who had known the appellant since 1973 and said that the appellant knew his children very well and he had seen them interact with him. Her Honour noted that he spoke "extremely highly of the [appellant] and his honesty".
3. Diana Gillard, who is Mr Gillard's wife and had also known the appellant since 1973. She said that she had no qualms with the appellant being associated with her children and grandchildren and described him as "loving and warm".
4. Anthony Coyte, who worked with the appellant for 16½ years and had been away on camping trips with him. He said that the appellant knew his children and he had watched them interact; they enjoyed the appellant's company and were not afraid of him and were friendly towards him.
5. Margaret Coyte, who spoke "extremely highly of the [appellant] and of the interactions between [him] and her children and grandchildren".
6. Finally, Diana Lawrie who was 36 years of age when she gave evidence and had known the appellant her entire life. She said that he used to babysit her and she never had any concerns. He was the MC at her wedding and she described him as "fabulous" and spoke "extremely highly of him".
[8]
Liberato direction and the appellant's evidence
The trial judge then turned to consider the evidence of the appellant but before doing so Her Honour gave herself, in effect, a Liberato direction in the following terms:
"205 … After considering the evidence of the [appellant], if I accept it, then I must acquit the [appellant] and bring in verdicts of not guilty on all counts. However, it does not follow that if I reject the evidence of the [appellant], then I must find him guilty. If I do not positively accept the [appellant's] evidence but nevertheless, that evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of the essential matters which it must prove, then I am bound in law to bring in verdicts of not guilty. It remains the position that the Crown must establish beyond reasonable doubt the charges that it brings against the [appellant], and it is never for the [appellant] to prove that he is not guilty."
Traill DCJ then summarised the appellant's evidence. In respect of Faulconbridge and count 1, it was noted that the appellant said that he visited the complainant's family there on two occasions, accompanied by his wife and when there were a lot of other people in the house. He denied sexually assaulting the complainant while she was living at Faulconbridge and said the allegations were untrue.
As to counts 3 and 5, it was recorded that the appellant said that the complainant did not come over very often to the Kingsgrove house except for family functions and he recalled that the complainant was dropped off on one occasion by the complainant's grandmother and Janice was there with a number of other people. The trial judge then recorded:
"211 … The [appellant] said the complainant was at the house all day and he took her home after dinner with [LM] and [CM]. The [appellant] also recalled another occasion when the complainant came over and stayed the night. He said that the complainant slept on an air mattress with [LM] and [CM] in the back room. He described the relationship between [LM] and the complainant as 'very close'."
Traill DCJ also summarised the appellant's evidence in relation to the Melbourne incident. Her Honour then concluded in relation to the Melbourne incident and more generally as follows:
"214 The [appellant] denied sexually assaulting the complainant in Melbourne. The [appellant] denied ever touching the complainant inappropriately or sexually assaulting or indecently assaulting her."
[9]
Tendency and context evidence
Her Honour then addressed the legal principles and directions relevant to her consideration of tendency and context evidence in this case. No criticism was made of this part of the judgment.
[10]
Submissions
Next, the submissions of the parties were summarised. This included the Crown's submissions concerning the appellant's evidence at [257]-[260] and the defence's six reasons or arguments why the Court could not be satisfied beyond reasonable doubt about the allegations made by the complainant. These six arguments which were said at [261] to be as follows:
"(1) the way the complaint unfolded;
(2) the complainant's lack of memory of the alleged incident;
(3) the unlikely circumstances of some of the alleged incidents;
(4) the medical evidence is equivocal;
(5) the body of evidence contradicting the complainant; and
(6) the [appellant's] evidence."
In this version of the six arguments, it appears that there is little difference between the fifth and sixth arguments. It can be noted that the fifth reason or argument was described in somewhat different terms, at [280] of the judgment:
"280 Mr Brady submitted that the fifth reason why the Court could not be satisfied beyond reasonable doubt is due to the evidence of the accused's good character."
The defence submissions concerning the appellant's evidence and his character evidence were summarised by the trial judge at [262]-[285].
[11]
Findings
Under the heading "Findings" and after noting that the onus was on the Crown to prove beyond reasonable doubt each of the elements of each charge, Traill DCJ directed herself that, since the Crown case depended on the evidence of a single witness, she must carefully examine the complainant's evidence and satisfy herself that she was a reliable witness, in the sense of being both honest and accurate in vital respects. Her Honour then stated:
"288 I have assessed the credibility of the complainant. At the time of the pre-recorded evidence hearing, the complainant was aged 14 years. The complainant provided detailed accounts of the events leading to the charges. I consider the complainant to be an impressive and thoughtful witness trying her best to give an account of incidents that occurred approximately seven to 10 years ago, when the complainant was aged between seven and 10 years old. The complainant's distress was palpable both in her JIRT interviews and at the pre-recorded evidence hearing."
The trial judge then considered the complainant's evidence in light of the defence's six arguments concerning her reliability. It is not necessary to refer to the consideration of these arguments, to the extent that they were not relevant to any grounds of appeal.
As to the third, fifth and sixth arguments of the defence, Traill DCJ's findings and reasoning in relation to these arguments was follows:
"Unlikely circumstances of the alleged offending
323 Most of the allegations occurred in circumstances where there were other persons present in the house. Whilst this behaviour is extremely risky and opportunistic, I am not persuaded by the Defence submission that the circumstances are that it is inherently unlikely that the events occurred.
…
The accused's character evidence
336 The character evidence called on behalf the [appellant] was impressive and powerful. I have given myself a character direction and take the [appellant's] good character into account.
337 I have considered whether the [appellant] is a person who is likely to have committed such offences. I am ultimately not persuaded by the character evidence, despite powerful evidence given by [LM] and [IB]. I accept the evidence of the complainant and am satisfied that the [appellant] had the opportunity to commit such offences.
Contradicting evidence
338 In my view, there is little conflict between the evidence of the [appellant] and other persons called to give evidence, including the complainant. The only contention between the complainant and the [appellant's] evidence is that the [appellant] denied the allegations.
339 I accept the majority of the [appellant's] evidence regarding his movements and how often he saw the complainant and her family. I also accept that the [appellant] did not have constant contact with the complainant."
[12]
Appeal Grounds 1, 2, 3 and 4
The first four grounds related in essence to the trial judge's consideration of the appellant's evidence in light of the supporting evidence from his wife and others and the evidence of good character given by both Crown and defence witnesses. As her Honour, in substance, acknowledged in her judgment, in considering the effect of the appellant's evidence on her ultimate determinations of whether the appellant was guilty or not guilty of the charges brought against him, she was bound to take into account all relevant aspects of both a Liberato direction and a good character direction. Thus, she acknowledged she was bound to expose the reasoning process linking the principles of law to the findings of fact so as to justify her findings and the verdicts reached. Grounds 1, 2, 3 and 4 turn on whether the trial judge complied with these requirements.
[13]
Submissions
The appellant submitted that, although the trial judge gave herself a Liberato direction at [205], she failed to comply with the second limb by considering whether the appellant's evidence might be true, so as to leave her with a reasonable doubt as to whether the Crown had made out its case in respect of the essential matters which it must prove. It was contended that, instead her Honour jumped straight to the third limb, namely whether she was otherwise satisfied beyond reasonable doubt of the guilt of the accused on the basis of the complainant's account.
This issue was said to have been compounded by the failure to give any reasons explaining why the appellant's account was not accepted thus not allowing a proper understanding to be gained as to the basis of the decision. More specifically, it was submitted that it was not enough for the complainant's evidence to be accepted as truthful and accurate, the appellant could not be convicted unless the trial judge found that the appellant's version was not reasonably possibly true, relying on Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086 (Douglass), and her Honour failed to articulate her reasoning on this issue. It was also submitted that the findings by the trial judge in relation to the appellant's evidence were "all one way" in favour of acceptance, for example, the appellant was "forthright" and did not have any memory issues, but there was no explanation of why that evidence was rejected or found not to be reasonably possibly true. Next, it was contended that there was no explanation of why particular "parts" of the appellant's evidence was rejected. In particular, it was noted that the trial judge said at [223] that "some of the relevant issues [as to why parts of the appellant's evidence was rejected] are addressed later in my judgment" but there were no such issues addressed later.
The appellant further submitted that good character was a significant consideration in the present case because it enhanced the credibility of the appellant's denials of having engaged in the conduct alleged. It was submitted that, although the trial judge gave herself a good character direction, she failed to apply the second limb of that direction because she did not consider whether the fact that the appellant was a person of good character supported his credibility, on the basis that such a person would be less likely to lie or give a false account. This was said to be significant because it was incumbent on the trial judge to say why she did not regard the appellant's sworn evidence as, at least, a reasonable possible explanation of the events, given the fact that his character case included numerous witnesses giving specific evidence as to his credit and his lifetime of telling the truth, which her Honour accepted.
[14]
Consideration
Before turning to consider the specific issues raised by the first four grounds, it is helpful to consider what is required by way of reasons when an accused is tried by a judge alone, under s 132 of the Criminal Procedure Act, as occurred in this case. Most relevantly, s 133 of that Act provides:
"(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
Section 133(2) refers to "principles of law" and subs (3) refers to "a warning to be given to a jury" if required by any Act or law. These were both described by the High Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (Fleming) at [27] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) as "legal imperatives" and "a failure to observe either or both of them is to make a wrong decision on a question of law". Furthermore, in Fleming at [32], it was held that "[t]he judge is obliged by [s 133(3)] to take the warning into account and in doing so the judge applies a principle of law". Thus, where a Liberato direction and a good character direction are appropriate to be given to a jury, those directions or warnings are legal imperatives and principles of law that a judge conducting a trial without a jury must set out and apply as well as being warnings that the judge must take into account, in the judge's reasons for judgment.
In order to comply with the obligations in s 133(2) and s 133(3) to include the principles of law applied by the judge and the findings of fact on which the judge relied and to take into account any applicable warnings, it is not sufficient for the judge merely to include a bare statement of the applicable principles of law and warnings and the findings of fact made. Rather, there must be exposed in the judgment the reasoning process linking the principles of law and justifying the findings and, ultimately, the verdicts reached: Fleming at [28] and see also at [30]-[33]. An example of the failure to set out the required reasoning process can be found in Constantinidis v The Queen; Lazar v The Queen [2022] NSWCCA 4 (Constantinidis), which was a case in which the judge in a judge alone trial said that she gave herself a good character direction but did not elaborate by giving any indication of how significant she thought the character of the accused was in assessing the totality of the evidence. Furthermore, the trial judge's judgment contained no reasoning as to why her Honour concluded beyond reasonable doubt that, notwithstanding their good character, the accused had committed the offence. In that case, neither accused gave evidence and, as a result, the second limb of the good character direction was not required to be considered. It was found, at [156]-[158] of Constantinidis, that this fell short of the requirements of s 133 of the Criminal Procedure Act, as those requirements were explained in Fleming. Thus, in a case such as the present, complying with s 133 should have involved justifying the findings and verdicts by explaining how the applicable directions or warnings were actually taken into account in reaching the trial judge's conclusions as to findings of fact and the ultimate finding of whether the accused was guilty or not guilty.
[15]
Miscarriage of justice and the proviso
It was contended, in effect, by the appellant that, if ground 1, 3 or 4 was made out, it would constitute a wrong decision on a question of law and give rise to a miscarriage of justice, for the purposes of s 6(1) of the Criminal Appeal Act. There was no submission to the contrary from the Crown. Nor was there any contention that, if any of grounds 1, 3 or 4 was made out, there was no substantial miscarriage of justice in the present case. In my view, this approach was correct.
The failures to comply with the requirements of s 133(2) and (3) of the Criminal Procedure Act to take into account the second limb of the Liberato direction and the second limb of the credibility direction and to explain the process of reasoning involved in the trial judge's consideration of whether she had a reasonable doubt about the guilt of the accused not only amounted to wrong decisions on questions of law but also gave rise to a miscarriage of justice.
Furthermore, I do not consider that no substantial miscarriage of justice has actually occurred. An appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the Court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt: Orreal v The Queen [2021] HCA 44; 96 ALJR 78 at [41] (Gordon, Steward and Gleeson JJ) citing, inter alia, Weiss v The Queen (2005) 224 CLR 300 at [44]-[45] and Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at [59], [84] and [131]‑[132].
In the present case, my difficulty is that, without having seen and heard the appellant's evidence, the evidence of the 14 character witnesses and the evidence of the complainant, the medical experts Dr Gall and Dr Marks, and other witnesses and without having observed how the evidence unfolded during the trial, I did not consider I was in a position to assess the demeanour, credibility and reliability of those witnesses on a properly informed basis. For this reason, I did not consider I could reach a definitive conclusion as to whether or not there was a reasonable doubt as to the guilt of the appellant in respect of each of counts 1, 3 and 5. Consequently, I was also not in a position to be satisfied on all of the evidence as a whole that the Crown had established that there was no reasonable doubt as to the guilt of the appellant.
[16]
Ground 5
The fifth ground of appeal was to the effect that the verdicts on counts 1, 3 and 5 were unreasonable, within s 6(1) of the Criminal Appeal Act.
[17]
Submissions
The appellant first submitted that it was not open to her Honour to reject the appellant's evidence denying each of the allegations, given he was a "forthright" witness who did not have any issues with memory and much of his evidence was consistent with other evidence in the case. Thus, it was submitted that, on all of the evidence, it remained a reasonable possibility that the appellant's version was correct and accordingly, he should have been found not guilty. Secondly it was submitted that, even if it were open to reject the appellant's version, the complainant's evidence lacked the requisite cogency to support verdicts of guilty. In particular, it was submitted that the complainant's evidence was unreliable for a number of reasons.
1. In the complainant's interviews with police on 15 November 2018 and 14 December 2018 she said that the appellant inappropriately touched her only once (this was the incident the subject of count 3). Only in the third interview on 14 February 2019 were the incidents the subject of counts 1 and 5 disclosed.
2. In cross-examination, the complainant initially said that she did not remember whether she had been assaulted as alleged in count 3 and later she gave a description of such an incident but said she did not remember how or where it started or finished, the events before or after it, or when it happened. As to count 5, in cross-examination, the applicant was in effect asked whether she could tell the Court what happened in relation to that incident and she replied "I don't remember". In relation to count 1, counsel for the appellant contended that, although the complainant gave evidence of the incident, she later said she was not sure how this incident started or finished].
3. While accepting that there was some force in the evidence concerning the complainant's hygiene issues, the appellant submitted that the allegations of sexual of the abuse only arose after it was suggested to her by the counsellor. In addition, it was noted that Dr Marks accepted that the complainant's hygiene issues were only consistent with, and not diagnostic of, the allegations. Finally, in this regard, it was submitted that where the complainant's account of sexual abuse lacked cogency, the force in the medical evidence concerning the hygiene issues fell away.
4. It was contended that the remaining evidence in the Crown case established little more than that there was the opportunity for the events alleged to have occurred and explained how the allegations were raised.
[18]
Consideration
The proper approach to be taken by an appellate court in determining an appeal against conviction after a judge alone trial on the ground that the verdict was unreasonable has been most recently considered by the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) and Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 (Dansie), as well as by this Court in Slattery v R [2023] NSWCCA 117 (Slattery). Some of the relevant principles to be derived from the authorities have been helpfully summarised by Bell CJ (Ward P and Wilson J agreeing) in Slattery at [113] as follows:
"1. The task to be performed by the appellate court is not to determine whether there was error in the trial judge's factual findings, but rather to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty: Dansie at [7].
2. The appellate court must ask itself whether, having made its own independent assessment of the whole of the evidence, it is satisfied that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. This question will be the same whether the trial was conducted before a judge alone or before a jury: Dansie at [15]; Filippou at [82].
3. If the appellate court entertains a reasonable doubt that the accused was guilty, the court must conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt: Filippou at [82]; Dansie at [15].
4. While the appellate court should approach the reasons of the trial judge with circumspection, it is entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings: Dansie at [16]; Filippou at [83].
5. The advantage that a trial judge may have had by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and the nature of the issues that arose at the trial: Dansie at [17].
6. Where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight: Dansie at [17].
7. As a corollary of proposition (6), the advantage enjoyed by the trial judge will be greater where the prosecution case was supported by direct evidence of complainants whose testimony was challenged under cross-examination."
[19]
Proposed orders
Since the fifth ground of appeal has not been made out and since I do not consider that I am in a position to reach a properly based definitive conclusion as to whether or not the Crown had proved the guilt of the appellant beyond reasonable doubt, the appropriate course is to quash the convictions and order a retrial.
Accordingly, I propose that the Court should order:
1. The appellant has leave to appeal on ground 5 but the appeal on this ground is dismissed.
2. The appeal is upheld on grounds 1, 3 and 4.
3. The appellant's convictions on counts 1, 3 and 5 are quashed.
4. There is to be a new trial on all counts.
5. The proceedings are to be listed in the arraignment list in the District Court at Sydney on 23 June 2023.
YEHIA J: I agree with the proposed orders of Wright J, and with his Honour's reasons, in relation to grounds 1-4. With respect to ground 5, I have conducted an independent assessment of the record of the evidence. Having done so, and having regard to the advantage the trial judge had in seeing and hearing the evidence, I cannot conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. I therefore agree that leave to appeal on ground 5 should be granted but the appeal, on this ground, be dismissed.
CHEN J: I have had the considerable advantage of reading the draft reasons prepared by Wright J.
I agree with his Honour's analysis of the matters relevant to grounds 1-4. In relation to ground 5, I have independently assessed the whole of the evidence and, like Wright J, I am satisfied that the trial judge's advantage in seeing and hearing the evidence is capable of resolving the reasonable doubt as to the appellant's guilt in connection with counts 1, 3 and 5. I agree with the orders proposed by Wright J.
[20]
Amendments
10 July 2024 - Published in light of outcome handed down in District Court on 28 June 2024.
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: 10 July 2024
Since the proceedings were tried by judge alone, the trial judge was permitted to make any finding that could have been made by a jury on the question of the guilt of the appellant and any such finding has, for all purposes, the same effect as a verdict of a jury: Criminal Procedure Act 1986 (NSW), s 133(1).
Her Honour concluded this part of her judgment under the heading "Character Evidence", as follows:
"204 I accept all the evidence of all character witnesses and I have taken this evidence into account in assessing the [appellant]."
After noting some additional matters including what was raised in cross-examination, her Honour assessed the appellant's evidence as follows:
"221 The accused gave evidence in a forthright manner. He did not seem to have any issues with his memory about people, places, sequences and dates."
Aspects of the Liberato direction were then, in effect, reiterated as follows:
"222 The [appellant] does not have to satisfy me that his version is true. His version is in essence just denials of any wrongdoing. To the extent to which his account may be exculpatory, the Crown needs to satisfy me that the account given by the [appellant] should not be accepted as a version of events which could reasonably be true.
223 Having assessed the accused as a witness, I do not accept parts of his evidence. Some of the relevant issues are addressed later in my judgment. I must stress however that just because I do not accept part of the [appellant's] evidence does not mean that I would necessarily find him guilty of one or more counts on the indictment. I repeat, before I could find the accused guilty, I must be satisfied beyond reasonable doubt that the complainant is an honest and accurate witness."
The trial judge then scrutinised the complainant's evidence, under the subheading "Assessment of the complainant's reliability" by reference to a number of factors, namely: the relationship between the complainant and the appellant and her age; complaint and delay; memory; inconsistencies; and demeanour. Ultimately, her Honour's conclusions in this regard were:
1. Complaint and delay: "the evidence of delay in complaint to Ms Pamplin and the fact that the ultimate complaint was limited does not diminish the reliability of the evidence of the complainant" at [346];
2. Memory: "[t]he failure to recall some features does little to undermine the reliability of the complainant's evidence. …" at [351];
3. Inconsistencies: "in my view, these inconsistencies [in the description of the precise conduct alleged] do not operate to significantly undermine the reliability of the complainant's evidence and is not sufficient to raise a date about the complainant's evidence that the specific act occurred as she described them. Ultimately, the complainant was able to give clear evidence of the particular conduct relied upon by the Crown in support of each count on the indictment" at [353];
4. Demeanour: "I have closely examined the demeanour of the complainant when relating the sexual conduct and when challenged as to the truthfulness of her assertions. During her JIRT interviews and pre-recorded evidence, the complainant was reluctant to describe the detail of the sexual conduct of the [appellant]. In my view, her reaction evidenced a degree of discomfort about relating the sexual acts of the [appellant] towards her. At times she could not speak. I am of the view that complainant gave a truthful, accurate account of the sexual conduct." at [355].
Finally, her Honour made findings that she was satisfied beyond reasonable doubt that the conduct alleged in counts 1, 3 and 5 occurred and that the other elements of each offence were made out. In doing so, the trial judge expressly referred to the tendency evidence as follows:
"369 In coming to that conclusion in relation to each count, I have not relied upon any tendency of the [appellant] to act in a particular way with a particular state of mind. However, a number of observations can be made in relation to tendency evidence. I consider the evidence of tendency demonstrates a pattern of behaviour which clearly demonstrates a tendency by the [appellant] to have a sexual interest in the complainant and to act on that sexual interest."
There was no challenge to the convictions on the basis of what is contained in [369].
The appellant was found guilty on those three counts, meaning the alternative counts did not need to be considered.
Thus, the appellant contended that, since, in finding the appellant guilty, her Honour did not address whether she had a reasonable doubt about the appellant's guilt in light of the evidence of his good character and his evidence itself, it should be inferred that her Honour did not consider that matter, as she was required to do.
Finally, in relation to the first four grounds of appeal, the appellant submitted that each of the errors identified in those grounds resulted in a miscarriage of justice. Accordingly, it was contended that the Court would not be satisfied that there was no substantial miscarriage of justice in the present case and, indeed, it was noted that there was no argument raised by the Crown that the proviso in s 6(1) of the Criminal Appeal Act was applicable in this case.
On each of the bases raised by the first four grounds of appeal it was contended by the appellant that his convictions should be quashed. Whether or not acquittals should be ordered rather than a retrial was, in effect, said to depend in large measure on the Court's conclusion in relation to ground 5.
In relation to the first four grounds of appeal, the Crown submitted that none had been made out. As to grounds 1 and 2, it was submitted that the fundamental issue for determination was whether the allegations articulated by the complainant were established beyond reasonable doubt, notwithstanding the appellant's denials. It was then contended that the reasoning employed by the trial judge had to be calibrated to the case at hand and particularly that fundamental issue. It was said that the extent to which the reasoning had to follow Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66 (Liberato) and De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 (De Silva) (in which the High Court considered when a Liberato direction was required) depended on whether there was a risk that, despite directions on the onus and standard of proof, the tribunal of fact would reason that the appellant's evidence would only give rise to a reasonable doubt if believed to be truthful or a preference for the prosecution's evidence would be found sufficient to establish guilt, relying on Haile v The Queen (2022) 109 NSWLR 288; [2022] NSWCCA 71. The Crown contended that there was no such risk in the present case, especially having regard to the multiple occasions on which her Honour reminded herself of the Crown's onus and burden of proof and the applicable approach.
It was further submitted by the Crown that having expressly stated that she rejected parts of the appellant's evidence, the trial judge did not leave to implication that acceptance of the complainant's evidence necessarily carried with it rejection of the appellant's evidence. It was said that the only point of contention was the sexual act in each count and the trial judge was satisfied that the prosecution case was established beyond reasonable doubt upon the complainant's account. Further, the Crown submitted that the present case was similar to Wade v R [2018] NSWCCA 85 (Wade) in which R A Hulme J had observed that there was little more to be said in terms of reasons why the accused's evidence in that case did not raise a reasonable doubt, once it had been accepted that the complainants' versions should be accepted.
In addition, it was submitted that the rejection of the appellant's denials and the acceptance of the complainant's allegations substantially turn on assessments of credibility based especially on demeanour and were open to her Honour, as the tribunal of fact, who had seen and heard those witnesses.
For these reasons it was said the grounds 1 and 2 were not made out.
As to ground 3, it was submitted that it is not mandatory for a credibility direction to be given in every case in which good character evidence is raised and trial judges have a discretion whether or not to do so depending upon their assessment of the probative significance of that evidence. Furthermore, it was said that the judge may conclude that the good character evidence was of probative significance only in relation to the accused's propensity to commit the crime or in relation to the accused's credibility, or both, or neither, and can direct, or not, the direct the jury (or themselves in a judge alone trial) accordingly, relying on Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32.
It was then submitted that, in light of the submissions made at trial, counsel for the appellant did not expressly draw upon evidence of good character to support the credibility of the appellant's evidence. The Crown's written submissions noted that:
"[Defence Counsel] later added 'as a result of the raft of difficulties with the complainant's evidence and the clear and cogent evidence of [the appellant] and his character associated with the endless support of the people who were otherwise there', the trial judge would conclude that there was a reasonable possibility that the appellant was telling the truth."
Nonetheless, it was submitted that "good character was emphasised … only faintly in support of his credibility". It was then contended that the trial judge was well aware of the second limb of the credibility direction which she had given herself at [182] and had accepted not only that the appellant was a person of good character but also that the evidence of each of the character witnesses had not been challenged by the Crown. It was then noted that her Honour said "I have taken this evidence into account in assessing the accused" and it was submitted that that this meant she had taken it into account in assessing his credibility. In light of the reasoning as a whole, it was submitted that it should not be concluded that the trial judge failed to apply the character evidence to assessment of the credibility of the appellant's evidence and ground 3 should be dismissed.
As to ground 4, the Crown noted that the appellant accepted it was open to the trial judge, at least in theory, to find the appellant guilty on the complainant's uncorroborated evidence. It was submitted that the principles in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] applied to the task be undertaken by a court of criminal appeal and are not apt to the task of the trial judge sitting without a jury. It was submitted that it should not be accepted that the trial judge failed to consider whether she had a reasonable doubt notwithstanding a finding that the complainant's evidence was credible and reliable. This was said to be so because of the clear and correct directions that her Honour gave herself and her consideration of the six reasons why the allegations had not been proved beyond reasonable doubt.
It was also submitted that her Honour's remarks at [182] conveyed that, despite the character evidence being compelling, her Honour was not persuaded that it was sufficient to give rise to a reasonable doubt. The Crown noted that even a case where good character evidence has significance, good character is not a defence. Finally, it was submitted that the character evidence was one of many factors that her Honour was to take into account in assessing the whole of the evidence and the character evidence did not necessarily, on its own or in combination with other evidence, compel a conclusion that there existed a reasonable doubt as to the guilt of the appellant. Thus, it was submitted that ground 4 should also be dismissed.
Furthermore, if the judgment fails to refer to the judge's application of a relevant principle of law, as explained in Fleming at [30], there are two possibilities, both involving an error of law:
1. the principle was actually applied, but in such a case there is a breach of s 133(2) because of the omission from the judgment of the statement of the principle; or
2. the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law by failure to apply the principle.
In Fleming, it was concluded at [30]:
"Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded."
Grounds 1 and 3 expressly relate to whether the trial judge applied the principles of law, or warnings or directions, referred to as the Liberato direction and the good character direction. Ground 4 supplemented grounds 1 and 3 by being more specific as to how the trial judge was said to have failed to take into account or apply those directions in her reasoning. Ground 2 was, in effect, designed to address the situation that the trial judge's reasons were insufficient to allow a proper analysis, for the purposes of grounds 1, 3 and 4, of the reasoning relied upon to reach the guilty verdicts in the present case.
The content of the Liberato and good character directions was not in dispute in the present case and, accordingly, it is sufficient to note, only briefly, the rationale for, and appropriate formulation of, each of these directions.
The Liberato direction takes its name from the passage in the dissenting judgment of Brennan J in Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66. In that passage at 515, it was observed that when a case turned on a conflict between the evidence of a prosecution witness and the evidence of a defence witness:
"… it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. 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."
A Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the tribunal of fact may reason that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt: De Silva at [10].
A Liberato direction was appropriate in the present case because whether or not the appellant was guilty turned principally on the conflict between the evidence of the complainant that the sexual conduct occurred and the evidence of the appellant that it did not. It can be seen that the trial judge accepted, in my view correctly, that the circumstances of the present case rendered a Liberato direction appropriate, since she gave herself such a direction at [205] and reiterated part of that direction at [222].
The formulation of the Liberato direction was refined by the High Court in De Silva, in order to overcome the perceived difficulty that, if a jury completely rejected an accused's evidence, they might find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a "reasonable doubt" on that issue. The majority in De Silva (Kiefel CJ, Bell, Gageler and Gordon JJ) held, at [12], that it was preferable that a Liberato direction be framed along the lines set out in the judgement of this Court in R v Anderson [2001] NSWCCA 488; 127 A Crim R 116 at [26], with three limbs to the following effect:
1. if the jury (or the judge in a judge alone trial) believes the accused's evidence, the accused must be acquitted;
2. if the jury (or the judge) does not accept that evidence of the accused but considers that it might be true, the accused must be acquitted; and
3. if the jury (or the judge) does not believe the accused's evidence, that evidence should be put to one side but the question will remain: has the prosecution, on the basis of evidence that is accepted, proved the guilt of the accused beyond reasonable doubt?
Although the trial judge did not adopt this formulation of the second limb either at [205] or [222], the appellant did not contend that this constituted an error on her Honour's part. The substance of grounds 1 and 3 was that, notwithstanding the direction she had given herself, her Honour failed to carry out the analysis required in order to take into account or apply the second limb of the Liberato direction.
Turning to the good character direction, as explained by McHugh J in Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 (Melbourne) at [30]-[31], in a criminal trial good character may be relevant to:
1. whether an accused was likely to have committed, or had a propensity to commit, the crime charged; or
2. whether the accused was credible; or,
3. both of these issues; or
4. neither of them.
A trial judge retains a discretion as to whether to give direction on evidence of good character depending on the evaluation of the probative significance of that evidence in relation to the two issues of likelihood of committing the offence and credibility generally: Melbourne at [30]-[31] (McHugh J), [157] (Hayne J). Nonetheless, it has been held that if such a direction is asked for it would be wise for it to be given: Simic v The Queen (1980) 144 CLR 319 at 333; [1980] HCA 25 (Gibbs, Stephen, Mason, Murphy and Wilson JJ); Melbourne at [75]-[76] (Gummow J).
In relation to a case involving sexual offending, N Adams J (Leeming JA and Fagan J agreeing) said in JV v R [2017] NSWCCA 49 at [122]:
"…evidence of an accused person's good character in a trial on sexual assault offences may well play a significant role in the outcome of a criminal trial, depending upon the circumstances of the case and the nature of the character evidence to be adduced. In [a trial in which an accused gave evidence and good character was established], it would have been relevant to both credibility and propensity."
As to the specific content of a good character direction, Beech-Jones CJ at CL in Kanbut v R [2022] NSWCCA 259 at [32] referred to the passage from an unreported judgment, R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep) in which Wood CJ at CL, Sully and Ireland JJ said:
"No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness." (emphasis in original)
This formulation is reflected in the New South Wales Criminal Trial Courts Bench Book suggested good character direction at [2-370], which her Honour largely followed at [181]-[183], which have been quoted above.
In the present case, the appellant gave evidence denying that the sexual conduct occurred as well as evidence of the nature and circumstances of the occasions when he had been at the same location as the complainant. In addition, there was "impressive and powerful" evidence as to the appellant's good character from 14 witnesses. The Crown prosecutor expressly accepted that the appellant was "entitled to both limbs of that particular character direction" and the trial judge correctly accepted that the appellant's good character was relevant to both the likelihood of his having committed the offences charged and his credibility in relation to the evidence which he gave. Thus, her Honour gave herself a good character direction, which included at [182], both limbs in the following terms:
1. "The fact that the accused is a person of good character is relevant to the likelihood of him having committed the offences alleged. I am entitled to take the accused's good character into account by reasoning that such a person is unlikely to have committed the offence charged by the Crown"; and
2. "Further, I am entitled to use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account".
There was no criticism of the form of the good character direction on this appeal.
At this point, it is convenient to deal with two initial arguments advanced by the Crown in relation to her Honour's application of the second limb of the Liberato direction and the second limb of the good character direction.
In relation to the Liberato direction, the Crown argued that because her Honour clearly understood the onus of proof and the standard of proof there was "no real risk that the trial judge might view her role as only giving rise to a reasonable doubt if she believed the appellant's denials to be truthful, or that a preference for the complainant's evidence sufficed to establish guilt", and consequently, there was no need for her Honour's reasons to refer expressly to her consideration of the second limb of the Liberato direction. This argument should not be accepted for a number of reasons. First, s 133(3) requires a judge to take into account warning or direction "[i]f any Act or law requires a warning to be given to a jury in any such case". The test in not whether or not there is a risk that the trial judge might reason impermissibly.
Secondly, as the High Court emphasised in Fleming at [32], the obligation imposed by s 133(3) to take a warning or direction into account is not only to be discharged but is also to be seen to be discharged. At [33], the Court continued:
"The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) [the predecessor of s 133(3)] that the warning be taken into account."
Finally, at [37] the Court observed:
"It is no answer that the trial judge is an experienced judge who was well aware of the requirement of a warning and that he or she must have taken the warning into account."
As to the good character direction, the Crown effectively submitted that, because good character was emphasised only faintly in support of the appellant's credibility and the trial judge had given herself a full good character direction and said that she had taken the good character evidence into account in assessing the appellant, it should be inferred that she had taken that direction sufficiently into account to discharge her obligations under s 133 of the Criminal Procedure Act. In my view, this submission should be rejected because it fails to have due regard to what is required in order to comply with s 133(3) of the Criminal Procedure Act.
As explained in Fleming at [31]-[32], subs (3) of s 133 is framed in a fashion which differs from that of subs (2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings or directions. Section 133(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 133(3) obliges the judge to take the particular warning into account. As noted above, the obligation imposed by s 133(3) "to take the warning into account" is not only to be discharged but is also to be seen to be discharged: Fleming at [32]. Consequently, it will usually be necessary for the trial judge to consider expressly how the warning or direction was actually taken into account to reach the findings of fact and conclusion as to guilt in the particular case. In the present case, and for the reasons set out below, the trial judge's reasons for judgment did not adequately expose the process of reasoning involved in her Honour's consideration of the credibility of the appellant in relation to: (a) whether his evidence should be accepted; and, (b) whether his version of what occurred could reasonably, or might, be true. The nature and extent of the description of the relevant reasoning process required in any particular case will depend on the issues in the trial. In the present case, there was "impressive and powerful" character evidence, and the appellant was assessed as being "forthright" in demeanour and reliable as to various types of detail. Accordingly, it was incumbent on the trial judge to explain in some detail how the appellant's credibility had been taken into account in relation to both matters (a) and (b) identified above.
The fundamental issue in respect of the first four grounds of appeal was whether the second limb of the Liberato direction and the second limb of the good character direction were taken into account, and whether they could be seen from the judgment to have been taken into account, by the trial judge, as required by s 133(2) and s 133(3) of the Criminal Procedure Act and as explained in Fleming.
The only direct evidence as to whether or not the incidents which were the subject of counts 1, 3 and 5, and the Melbourne incident occurred was the sworn evidence of the complainant and of the appellant. The Liberato direction and the good character direction both related specifically to the trial judge's consideration of the appellant's evidence. Thus, it is helpful to review how that evidence was addressed in the reasons for judgment.
Traill DCJ summarised the appellant's evidence at [206]-[220]. At this point, it can be observed that the statement at [222] that the appellant's "version" was "in essence just denials of any wrongdoing" does not appear to be an accurate reflection of the totality of the appellant's evidence. This is because, in addition to a specific denial of "ever touching the complainant inappropriately or sexually or indecently assaulting her" as recorded at [214], the appellant also gave evidence of the limited occasions and circumstances when he and the complainant were together, which provided support for the conclusion that the sexual conduct alleged by the complainant was unlikely to have taken place. The circumstances of which he gave evidence included why he and other family members were present on each occasion, the significant number of other persons who were present and what he and the complainant were each separately doing on the relevant occasions, as well as more general information and photographs concerning relationships within the family. Her Honour summarised some of the evidence relating to these issues at [208]-[213] and [215]-[220].
Her Honour then gave her assessment of the appellant's demeanour at [221], namely that the appellant "gave evidence in a forthright manner". As to his reliability, it was also observed at [221] that the appellant "did not seem to have any issues with his memory about people, places, sequences and dates." For the purposes of considering the first four grounds of appeal, it is significant that there was no adverse finding or assessment of the appellant's demeanour or reliability or credibility in the reasons for judgment.
Nonetheless, the trial judge's conclusion in relation to the appellant's evidence at [223] was:
"Having assessed the [appellant] as a witness, I do not accept parts of his evidence. Some of the relevant issues are addressed later in my judgment."
The parts of the appellant's evidence which were not accepted were not, however, explicitly identified at this point in the judgment. Nor were the parts that were rejected expressly identified elsewhere in the judgment. At this point in the judgment, no specific reasons for not accepting parts of the appellant's evidence were given nor was the second limb of the good character direction relating to the credibility of the appellant expressly considered or mentioned. Furthermore, on a review of the judgment, it does not appear that "some of the relevant issues" with the "parts" of the evidence which were not accepted were actually addressed expressly later in the judgment.
The trial judge's ultimate findings and reasoning in relation to the appellant's evidence are set out at [223] and [336]-[339], which have been quoted in full above and are set out below. No "issues" with the appellant's evidence which would justify or support rejection of any parts were identified in these "later" paragraphs.
Since the findings and reasoning of the trial judge dealing with the appellant's evidence and credibility are at the heart of the first four grounds of appeal, it is useful to repeat her Honour's findings and analysis at this point. The findings and reasoning were as follows:
"Unlikely circumstances of the alleged offending
323 Most of the allegations occurred in circumstances where there were other persons present in the house. Whilst this behaviour is extremely risky and opportunistic, I am not persuaded by the Defence submission that the circumstances are that it is inherently unlikely that the events occurred.
…
The accused's character evidence
336 The character evidence called on behalf the [appellant] was impressive and powerful. I have given myself a character direction and take the [appellant's] good character into account.
337 I have considered whether the [appellant] is a person who is likely to have committed such offences. I am ultimately not persuaded by the character evidence, despite powerful evidence given by [LM] and [IB]. I accept the evidence of the complainant and am satisfied that the [appellant] had the opportunity to commit such offences.
Contradicting evidence
338 In my view, there is little conflict between the evidence of the [appellant] and other persons called to give evidence, including the complainant. The only contention between the complainant and the [appellant's] evidence is that the [appellant] denied the allegations.
339 I accept the majority of the [appellant's] evidence regarding his movements and how often he saw the complainant and her family. I also accept that the [appellant] did not have constant contact with the complainant."
As her Honour noted at [336], she did give herself a good character direction which included, at [182], both limbs of that direction. At [337], however, only the first limb is mentioned. Even in that regard, there is no reasoning as to why the trial judge was not "persuaded" by the "impressive and powerful" evidence, all of which she accepted, of the appellant's good character. The reasoning in [337] amounts, in substance, simply to an expression of a preference for the evidence of the complainant over that of the appellant, without any further justification for rejection of the appellant's account.
More significantly for the purposes of ground 3, however, neither in the paragraphs quoted nor elsewhere in the judgment did her Honour expressly consider the credibility of the appellant when determining whether or not to accept or reject his evidence denying any sexual conduct. This is not a case where the appellant's credibility was weak or practically non-existent and, thus, little or no explanation would have been required. In addition to finding that the character evidence was "impressive and powerful" and singling out [LM]'s and [IB]'s evidence as being "powerful", Traill DCJ also stated without qualification that she accepted "the evidence of all of the character witnesses" (at [204]) and, given that evidence (summarised at [185]-[204]), this could only mean that it was accepted that the appellant was honest, truthful and reliable and a person whose conduct around children did not cause any of the witnesses to have any concerns. Consequently, it could not be implied that the trial judge took into account his credibility in reaching her conclusions that his evidence that he did not engage in the sexual conduct should be rejected or that he was guilty. The findings by her Honour all supported the conclusion that he was a witness of very substantial credibility and, consequently, express explanations of why his evidence was rejected and why the trial judge was satisfied of his guilt beyond reasonable doubt were required. Similarly, express consideration of the appellant's credibility in the context of determining whether the appellant's evidence could reasonably, or might, be true was required but there was no such consideration set out. This was so, notwithstanding that the appellant's credibility was, in the circumstances of the case, of particular significance in that regard.
Thus, in the particular circumstances of this case and in the absence of any reference to consideration of the appellant's credibility, the judgment failed to demonstrate, expressly or by implication, that the credibility of the appellant was taken into account when her Honour reached her findings of fact and when she reached her ultimate findings of guilt. Consequently, it should be concluded that the second limb of the good character direction was not taken into account. On this basis, I would uphold the appeal on the basis of ground 3.
In relation to ground 1, even though the trial judge accepted the complainant's evidence as truthful and implicitly did not accept the appellant's version that he did not engage in the sexual conduct, such a finding is not inconsistent with the existence of reasonable doubt as to the guilt of accused: Douglass) at [13] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). Thus, the second limb of the Liberato direction was required to be considered, as her Honour acknowledged, particularly at [222].
Taking into account the second limb of the Liberato direction in the particular circumstances of this case required the trial judge to address whether the appellant's evidence that he did not engage in the sexual conduct alleged could reasonably be true or might be true, before she could reach a conclusion as to whether or not there was a reasonable doubt about his guilt. Given the guilty verdicts, this process should have involved her Honour analysing and explaining how she concluded that there was no reasonable possibility that the appellant's denials of engaging in the sexual conduct were true, notwithstanding his credibility, as well as his demeanour and reliability, based in particular on her Honour's findings to the effect that:
1. the appellant's demeanour in giving evidence was "forthright";
2. his memory was reliable about people, places, sequences and dates;
3. she accepted the majority of his evidence regarding his movements, how often he saw the complainant and her family and his not having constant contact with her;
4. she accepted the evidence of all the character witnesses who gave evidence as to the appellant being honest, truthful and reliable and a person whose conduct around children did not cause any of the witnesses to have any concerns; and
5. the character evidence in favour of the appellant was "impressive and powerful".
In paragraphs [323] and [336] to [339], there is no consideration or even mention of whether, despite the finding by the trial judge that she "accept[ed] the evidence of the complainant and [was] satisfied the that [appellant] had the opportunity to commit such offences", the appellant's version that he did not engage in sexual conduct might be, or could reasonably be, true. Nor is there consideration of this particular issue elsewhere in the judgment.
Moreover, and in light of the findings concerning the appellant's demeanour, the reliability of the appellant's memory as to people, places, sequences and dates and the strength of the good character evidence and her Honour's acceptance of part of his evidence, this case was distinguishable from the situation addressed in Wade. In Wade it was held at [120] (R A Hulme J, Schmidt and Hamill JJ agreeing) that:
"In these circumstances there was little more to be said in terms of reasons why the judge did not consider that the appellant's evidence raised a reasonable doubt about whether the offences were committed."
In the present case, counsel for the appellant at trial during oral submissions expressly raised the issue of whether it was a reasonable possibility that the appellant was telling the truth and, thus, his version might be true, in the following terms:
"Ultimately, your Honour might consider, effectively, this to be word on word. And bearing in mind all the difficulties that I've pointed out … as a result of the raft of difficulties with the complainant's evidence and the clear and cogent evidence of [the appellant] and his character associated with the endless support of the people who were otherwise there, in my submission, your Honour would come to a conclusion there's a reasonable possibility he's telling the truth. You couldn't be satisfied beyond any reasonable doubt [on] the complainant's evidence."
This was not, therefore, a case where the issue was not raised for consideration or where the trial judge could legitimately proceed on the basis that the issue did not need to be explicitly addressed. Moreover, the present case was not a case where the conclusion that the appellant's version could not reasonably be true was so obvious that it was not necessary to set out at all, or in any detail, the reasoning which might support that conclusion. Nor was it a case where the reasons which were given for not accepting the appellant's version, such as they were, also included reasons as to why his version could not reasonably possibly be true.
Since recording and heeding the second limb of the Liberato direction was called for in the present case, "the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict [was] reached" was required: Fleming at [33].
Accordingly, it should be concluded that, in reaching her conclusion that the appellant was guilty, the trial judge failed to take into account the second limb of the Liberato direction and failed to apply the legal principle underlying that limb as set out in De Silva and Douglass. Thus, I would also find that ground 1 had been made out.
The reasoning set out above in relation to grounds 1 and 3 also leads to the conclusion that, after finding that the complainant was a credible and reliable witness, the trial judge erred by failing to consider whether, notwithstanding that assessment, her Honour had a reasonable doubt about the guilt of the appellant based on his credibility and there being a reasonable possibility that his version was true. Therefore, ground 4 should also be upheld.
Having found that the appeal should be upheld on grounds 1, 3 and 4, it is not necessary to consider ground 2, which raised the issue of whether or not the trial judge gave adequate reasons for judgment.
In these circumstances and for all of these reasons, the verdicts of guilty, and thus also the convictions, should be set aside.
Having regard to these types of matters, it was submitted on the appellant's behalf that notwithstanding that there was some evidence to sustain the verdicts, upon the whole of the evidence, it was not open to be satisfied beyond reasonable doubt of the guilt of the accused.
After referring to the relevant principles, the Crown submitted that on the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt as to the appellant's guilt.
Largely addressing the matters raised by the appellant, the Crown submitted that progressive disclosure during the police interviews was "extremely common" and referred to the evidence of Dr Marks in this regard. Specific submissions were made concerning the discomfort and reluctance of the complainant and the manner in which she responded to questions when interviewed by the police on the three occasions. The Crown noted that the complainant was told "it was OK" if she did not want to tell the interviewer everything at the commencement of the interview.
In relation to the cross-examination of the complainant, the Crown referred to some of the detailed questions and answers and comments in a number of cases concerning the experience of the courts in relation to cross-examination of sexual assault complainants. In particular, the Crown noted that there were features of the complainant's presentation and her experience that meant there was good reason for why the disclosures occurred the way they did, and such a conclusion was supported by the evidence of the counsellor. The substance of the Crown's submission relation to count 3 was that:
"[t]aking into account the complainant's reluctance to discuss the incidents of the offences, features of the way in which her disclosures were made, and the unfolding of the cross-examination, the answers the complainant gave in cross-examination on count 3 did not require a finding that her evidence was unreliable".
Similarly, in relation to the cross-examination on count 1, it was submitted that it was entirely understandable that the complainant retained a sharp recollection of the sexual assault, a frightening event, but a comparatively less detailed memory of the moments before and after, especially as she said she had "blacked out".
As to the cross-examination concerning count 5, the Crown referred to some of the questions and answers recorded and submitted that the complainant's evidence should be assessed in the light of the fact that she had previously demonstrated an inability to describe, in narrative form, the confronting details of the alleged sexual offending against her. In particular, it was submitted:
"The trial judge observed that while giving this evidence, she observed the complainant to speak slowly and hesitantly, as if trying to recall. Even further time, approximately 18 months, had passed since the offending when the complainant gave the pre-recorded evidence. It did not follow from the cross-examination on count 5 that her evidence in which she recounted the incident was unreliable."
It was also submitted by the Crown that it was unremarkable that the complainant may not have recalled how the incident in Melbourne started or finished.
As to the evidence concerning the hygiene issues, the Crown submissions referred to the trial judge's findings in relation to whether the complainant made the relevant connection herself or whether it was suggested to her by her counsellor and it was submitted that her Honour did not employ circular reasoning. The Crown then referred to the evidence of Dr Marks and submitted that was open to the trial judge to accept that evidence and to accept that it was supportive of the complainant's evidence. It was also submitted by the Crown in its written submissions:
"Assessment of the credibility and reliability of the complainant was quintessentially a matter for the trial judge. It is apparent that the complainant's demeanour was significant in that assessment. The complainant's difficulty remembering details was consistent with her marked difficulty in giving initial disclosures at all, reluctance to talk, and difficulty in giving evidence. …"
On these bases, it was submitted that, on a review of all the evidence, it was open to the trial judge to find the appellant guilty beyond reasonable doubt and ground 5 should be dismissed.
It is important, however, to bear in mind that undue attention to the trial judge's factual findings as a result of considering whether there were errors in those findings is to be avoided because of the potential for this to distract an intermediate court of criminal appeal from its function of determining for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to the appellant's guilt: GS v The Queen [2022] NSWCCA 225 (GS) at [49] (Beech-Jones CJ at CL, Garling and Wilson JJ agreeing). In GS, the Chief Judge at Common Law continued:
"51. As for the advantage enjoyed by the trial judge over the intermediate court of criminal appeal in seeing and hearing the evidence at trial, in Dansie it was found that that 'will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial' (at [17]). It is notable that that advantage does not depend on the reasons of the trial judge. Thus, the scope of the advantage is not confined by any express statement by the trial judge describing, or even disclaiming, the advantages they enjoyed as such.
52. In Dansie it was found that, as the Crown case was circumstantial and consisted mostly of the transcript of largely unchallenged testimony and the accused did not give evidence, the advantage enjoyed by the trial judge was slight. By contrast, in this case, the advantage enjoyed by the trial judge over this Court was significant. The Crown case consisted of evidence given by the complainant in recorded format and in person before the trial judge. It was tested in cross-examination.
53. Thus, in a case such as this, this Court's assessment proceeds upon the assumption that the evidence of [the complainant in that case] was assessed to be credible and reliable, as it in fact was, but then examines the record of the trial 'to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt' (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39])." (Emphasis added.)
The present case was similar to GS in some respects in that the evidence of the complainant was given by the playing of the three recorded interviews with the police together with her pre-recorded evidence, including cross-examination. By way of contrast, however, in GS the accused did not give evidence nor was there "impressive and powerful" character evidence supporting the conclusion that GS was unlikely to have committed the offence charged as well as supporting his credibility generally, as occurred in the present case. Consequently, in the present case the advantage enjoyed by the trial judge over this Court was even more significant than in GS.
I conducted an independent review of the record of all the evidence, taking into account the submissions made as well as the findings of the trial judge, to the extent appropriate. On that bare record, I formed the conclusion that I entertained a reasonable doubt as to the appellant's guilt in respect of each of counts 1, 3 and 5. This conclusion was based on a consideration of the record as a whole but the more significant material included, without attempting to be exhaustive: the appellant's denials of engaging in the sexual conduct alleged; the absence of any issues with his memory about people, places, sequences and dates; the fact that the applicant was not a young man and did not have a criminal record; the trial judge's unchallenged assessment of the appellant's demeanour as forthright when giving of his evidence; the trial judge's unchallenged acceptance of the evidence of all of the 14 character witnesses, especially [LM] and [IB]; and, aspects of the complainant's evidence in cross-examination including: (i) her evidence concerning her counsellor asking her whether she had been interfered with and suggesting the hygiene issues might have something to do with the appellant; (ii) her evidence of her being scared that her "brain would fully remember everything" later and not thinking, at the first police interview, that she "remembered anything clear enough to take back to police"; and, (iii) her difficulties in cross-examination recalling or describing what was said to have occurred and the surrounding circumstances, notwithstanding the evidence as to how complaint in sexual offending matters often develops over time.
Having formed that conclusion, I was required to find that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty unless that tribunal's advantage in seeing and hearing the evidence was capable of resolving that doubt. In my view, the trial judge in the present case enjoyed a significant advantage in seeing and hearing not only the evidence of the appellant and the 14 character witnesses, but also the complainant's interviews with police and her pre-recorded evidence and the evidence of Dr Marks and Dr Gall and the other witnesses, and in observing how all the evidence unfolded at the trial. As a result, her Honour was in a position to assess the demeanour and credibility of the appellant and the strength of his case and compare them with the demeanour, credibility and strength of the complainant's evidence and that of other relevant Crown witnesses. On this basis, I was satisfied that the advantage enjoyed by her Honour was capable of resolving the doubt that I experienced.
This conclusion is consistent with and reflects my earlier conclusion that without having seen and heard the appellant's evidence, the evidence of the 14 character witnesses and the evidence of the complainant, the medical experts Dr Gall and Dr Marks, and other witnesses and without having observed how the evidence unfolded during the trial, I was not able to assess the demeanour, credibility and reliability of those witnesses on a fully informed basis and thus could not be satisfied that there was no substantial miscarriage of justice because there was no reasonable doubt as to the guilt of the appellant in respect of each of counts 1, 3 and 5.
For these reasons and although I would grant leave to appeal in respect of the fifth ground of appeal, I would dismiss the appeal based on ground 5.