Barwick v R

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

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.

Judgment

1. 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.
2. 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.
3. 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."
4. 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).
5. 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.

Background

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Judgment of the trial judge

1. 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.

Introductory parts, general directions and key evidence

1. 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.
2. 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."
3. 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.

Character evidence and direction

1. 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."
2. 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".

Liberato direction and the appellant's evidence

1. 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."
2. 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.
3. 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'."
4. 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."

Tendency and context evidence

1. 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.

Submissions

1. 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."
2. 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."
3. The defence submissions concerning the appellant's evidence and his character evidence were summarised by the trial judge at [262]-[285].

Findings

1. 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."
2. 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.
3. 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."

Appeal Grounds 1, 2, 3 and 4

1. 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.

Submissions

1. 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.
2. 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.
3. 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.

Consideration

1. 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."
2. 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.
3. 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.

Miscarriage of justice and the proviso

1. 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.
2. 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.
3. 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].
4. 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.

Ground 5

1. 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.

Submissions

1. 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.

Consideration

1. 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."

Proposed orders

1. 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.
2. 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.
3. 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.
4. CHEN J: I have had the considerable advantage of reading the draft reasons prepared by Wright J.
5. 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.

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