Bennett v R

Texts Cited: Nil

Category: Principal judgment

Parties: Joshua Allan Bennett (Applicant)
Rex (Respondent)

Representation: Counsel:
K H Averre (Applicant)
A Brown (Respondent)
Solicitors:
Ramsland Laidler Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/145047

Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of any matter which could identify the complainant and members of the complainant’s family is prohibited.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 February 2024, following a trial by jury in the District Court, the applicant, Joshua Allan Bennett, was found guilty of one count of intentionally sexually touching the complainant, ES, a child under the age of 10 years, contrary to s 66DA(a) of the Crimes Act 1900 (NSW) between 1 August 2019 and 25 December 2019 (“Count 2”). He was acquitted of the offence of sexual intercourse with a child under the age of 10 years, contrary to s 66A(1) of the Crimes Act (“Count 1”).

On 16 July 2024, the applicant was sentenced by McGrath SC DCJ (“the trial judge”) to a term of imprisonment of two years and six months with a non-parole period of 18 months, commencing on 14 July 2024 and expiring on 13 January 2026. The applicant does not appeal against his sentence.

At the time of the offending, the complainant was either eight or nine years old. The applicant was around 30 or 31 years old and was a friend of the complainant’s mother, DO. The offence was committed whilst the applicant was staying in the guest bedroom of the complainant’s family home and when the complainant and her brother, OS, would sometimes sleep in his bedroom if they got scared or overwhelmed by the dark.

The applicant sought leave to appeal against his conviction on the sole ground that the jury’s verdict on Count 2 was unreasonable and cannot be supported by the evidence. The applicant contended that on the evidence at trial, there was nothing to exclude the reasonable possibility that the complainant’s recollection of the sexual assault was a result of a hallucination.

The Court held (Price AJA, Ierace and Rigg JJ agreeing), granting leave to appeal but dismissing the appeal:

1. Having independently assessed the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of Count 2: [57]-[60], [82]-[84] (Price AJA); [91] (Ierace J); [92] (Rigg J).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v R (2011) 243 CLR 400; [2011] HCA 13; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 2; Xiao v R [2022] NSWCCA 95; Hanna v R [2023] NSWCCA 182; Marco v R [2023] NSWCCA 307; RM v R [2024] NSWCCA 148; R v ZT [2025] HCA 9; (2025) 99 ALJR 676; Smith v R [2025] NSWCCA 104, cited.

2. The applicant’s trial counsel did not raise with the complainant in cross-examination the possibility that she had hallucinated and was mistaken about the sexual assault. Neither was it put to the jury that there was a reasonable possibility that the complainant’s recollection of the incident had been the result of a hallucination: [60], [85]-[86] (Price AJA); [91] (Ierace J); [92] (Rigg J).

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; R v ZT [2025] HCA 9; (2025) 99 ALJR 676, cited.

3. It was open to the jury to reject the applicant’s contention that there was a reasonable possibility that the complainant’s evidence of the sexual assault was a result of a hallucination: [87]-[88] (Price AJA); [91] (Ierace J); [92] (Rigg J).
4. There is not a significant possibility the applicant was an innocent person that has been convicted: [89] (Price AJA); [91] (Ierace J); [92] (Rigg J).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied.

JUDGMENT

1. PRICE AJA: On 6 February 2024, following a trial in the District Court at Newcastle before McGrath SC DCJ (“the trial judge”), the applicant, Joshua Allan Bennett, was found guilty by a jury of one count of intentionally sexually touching the complainant, ES, a child under the age of 10 years, contrary to s 66DA(a) of the Crimes Act 1900 (NSW) between 1 August 2019 and 25 December 2019 (“Count 2”). The jury returned a verdict of not guilty on the offence of sexual intercourse with a child under the age of 10 years, contrary to s 66A(1) of the Crimes Act (“Count 1”). Count 2 was charged in the alternative to Count 1.

2. The applicant was sentenced to a term of imprisonment of two years and six months with a non-parole period (“NPP”) of 18 months to date from 14 July 2024. The applicant is eligible to be released to parole on 13 January 2026. The applicant’s appeal is confined to his conviction on Count 2. The sole ground of appeal is as follows:

“Ground 1: The verdict on count 2 was unreasonable and cannot be supported by the evidence.”

3. Leave to appeal is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), as the ground of appeal does not involve a question of law alone.

4. The focus of the appeal was on the evidence of the complainant experiencing hallucinations at night. The applicant’s contention was, on the evidence at trial, there was nothing to exclude the reasonable possibility that the complainant’s recollection of the incident was a result of a hallucination experienced whilst she slept or attempted to sleep. The applicant’s submission is that in conducting an independent assessment of the evidence at the trial, this Court would experience a doubt in relation to the applicant’s guilt.

5. Given the discrete issue raised in the appeal, it is unnecessary to provide a detailed recitation of all the evidence in the trial. A relatively brief summary of the evidence will suffice.

6. The Crown case was that the offences were committed between 1 August 2019 and 17 December 2019, when the applicant was staying at the complainant’s family home. At that time, the complainant was either eight or nine years old. The applicant, who was around 30 or 31 years old was a friend of the complainant’s mother, DO. Whilst staying at the home, the applicant slept in the guest bedroom which was located near the bedrooms of the complainant and her brother, OS. OS was either seven or eight years old at that time.

7. It was the Crown case that the guest bedroom was furnished with a queen-sized bed, a dressing table and a television (“TV”). The bed was an “orthopaedic” bed with a remote control that could be used to shift its position.

8. The applicant did not give evidence at the trial and no defence case was called on. It was an agreed fact that the applicant did not have a criminal record and had not been arrested by police in relation to any other allegation or offence.

9. The evidence of the complainant and OS was given at a pre-recorded hearing in accordance with s 294G(1) of the Criminal Procedure Act 1986 (NSW). At that time, the complainant was 12 years old.

A summary of the complainant’s evidence

10. In a recorded interview with the officers from Newcastle Child Abuse Office of the NSW Police on 30 November 2021 (“the recorded interview”, MFI 5), when the complainant was 11 years old, she said the guest bedroom had a “big bed … that you could move with a remote” and a TV were “two reasons we slept in [the applicant’s] room”. The complainant said that she started to stay in the applicant’s room from “probably the third month” that he was staying with the family. The complainant said the applicant “touched me and I just moved away and I got distant”.

11. The complainant drew where everyone was on the bed which was marked as Exhibit A at the trial. The complainant was sleeping at the top right-hand corner of the bed.

12. The applicant, who the complainant thought was asleep was behind her. The complainant’s brother was at the bottom of the bed. The complainant was sleeping on the top right-hand side of the bed as viewed from the bottom of the bed. She was lying on her left-hand side and facing away from the applicant, who was said to be positioned behind her. The lights were off in the room but the TV was on. The complainant recalled the door of the room was open at “about a thirty degree angle”.

13. The complainant said that the applicant “crept his hand under [her] underwear and started touching me” on the inside and outside of her vagina for what “felt a bit longer but I want to say just ten seconds”. The complainant marked on a drawing of a girl’s body the area the applicant had touched, describing it as the area for “going to the toilet”, which was marked as Exhibit B at the trial. The applicant first started touching the outside and was “rubbing his hands”. He was rubbing his hands around “the outer lips or whatever … [the applicant] started rubbing in that area”. The complainant moved away and almost started crying.

14. The complainant was asked what happened before the applicant had touched her and whether there was any conversation between them. The complainant replied:

“A. I was very quiet. I was just trying to sleep. My eyes were closed and … I was in the, my eyes were closed, I was staring at the wall.

Q141. Yep.

A. And he was right behind me, I thought he was asleep, and I was at the … end of the bed watching TV.

Q142. Yeah.

A. So I thought that he was either, [OS] was either watching TV or … asleep.”

15. The complainant was asked where she was touched:

“Q202. So did he go inside your vagina?

A. I’m not sure.

Q203. Or outside your vagina?

A. Um, I think a bit of both.”

16. The applicant was “touching [the complainant], like, around that area a lot” and the complainant “felt overwhelmed and scared … [she] just moved away”. The complainant’s heart was racing, and she started tearing up and the applicant said “[s]o you don’t want that?”, and she shook her head slightly and stayed quiet, moving closer to the edge of the bed. The complainant stated that the applicant moved his hand away after she had moved away from him.

17. Following that incident, the complainant stayed quiet about it “but stopped going up to [the applicant] for hugs and stopped talking to him so much”. She stayed distant from him for around two or three months after the incident. The complainant was asked:

“Q281. … Did anything else happen?

A. … [The applicant] hasn’t touched me, like, since but, like, there was one night, he, this one’s really awkward and gross. One night … he was, I’m pretty sure he was half asleep ‘cause, um, I was trying to sleep and I kept hearing noises outside … so I ended up waking up. Um, as I was trying to go back to sleep, he kept scratching, um, reaching in his pants and scratching and then as he was bringing his hand out, he kept, like, slightly pulling up his thing.

Q282. What do you …

…

Q283. … [M]ean, sorry?

A. His penis. He kept slightly pulling up his penis every time he would reach in his pants.

…

A. … Cause he was scratching.

…

A. It was really gross.”

18. The complainant mentioned that the applicant would wait ten to twenty seconds and then proceed to do it again. The complainant was asked about what happened after that and she replied:

“A. … I didn’t want to seem, like … really strange, but I stayed … I kept distance but I still slept in his bed.

…

A. With my brother.”

19. After being asked “how long did you keep sleeping in [the applicant’s] bed for?”, the complainant told police:

“A. … till he moved out.

…

Q295. O.k.

A. Um, ‘cause in the dark, especially like in the dark, I would hallucinate a lot. So …

…

Q296. O.k.

A. … I would always want someone in my room.”

20. The complainant said during the police interview that “last night”, her mother came into her room, shut the door and asked what really happened. The complainant said:

“A. … I told [DO] that when [the applicant] lived with us, that he almost tried to, that he’s raped me.”

21. In her pre-recorded evidence, the complainant described the touching of her vagina by the applicant as “gentle but he was pressing” and indicated that “[a] little bit … [h]is finger” had gone past or inside the outer lips of her vagina (Count 1). The complainant confirmed that on the drawing of the girl’s body (Exhibit B), she had circled around “the vagina area”.

22. During cross-examination, the complainant confirmed that her school teacher, Mr Moore, was the first adult she had told about the incident.

23. The complainant was asked:

“Q. Can you remember what you said to your mum about [the applicant], if you said anything at all?

A. Not exactly. I remember saying ‘[w]hen I was around the age of eight, when he was staying with us, he tried to touch me and, well, another night he kept scratching and reaching into his pants and pulling out his penis each time he reached his hand out’, and mum was said, said that ‘[e]very, everything’s going to be okay; we’re going to the police; he’ll get in trouble for it’, and she was just, like, reassuring me, talking about her childhood as well. And then it was starting to get late so we ended up going to bed.”

24. The cross-examination on this topic included the following:

“Q. Did you tell your mum that [the applicant] tried to rape you?

A. I think so, yes.”

25. The complainant confirmed that she had asked her mother if she could sleep in the applicant’s bedroom before the very first occasion and she said it was okay. The complainant agreed that the applicant also said it was okay if her mother said it was okay. The complainant mentioned that her mother knew that they were sleeping in the applicant’s bedroom for the next month until he moved out, “but she didn’t say no, and she didn’t really say yes, we just kept doing it”.

26. When asked “[d]id your mum ever tell you not to sleep in [OS’] room?”, the complainant replied:

“A. No, me and [OS] when we were younger, we’d always sleep in each other’s rooms because we were quite afraid of the dark, so we’d end up in each other’s rooms.”

27. The complainant agreed that when she slept in the applicant’s room it was always with OS. The complainant was asked:

“Q. Did [OS] ever tell you why he wanted to sleep in somebody else’s room?

A. From what I remember we had the same reason, we didn’t like sleeping in the dark. [OS] liked having the TV and … [the applicant’s] bed … we liked his bed because it could move, so if we pressed a button on the remote, the back would go up or it would become like a chair.”

28. The complainant said that she slept in the applicant’s bedroom more than five or six times. She agreed the bedroom door was always open and there would be the light coming from the TV. There were no other lights on besides the TV.

29. When asked “[h]ow did [OS] feel about the dark”, the complainant gave the following evidence:

“A. He had pretty much the same opinion. I didn’t like the dark because I hallucinated. [OS] didn’t like the dark because … well a lot of kids are scared of the dark. I’m not too sure about his reason.”

30. The complainant was asked about the hallucinations and described them as the following:

Q. When you say you hallucinate, what do you mean by that?

A. I just saw weird shapes out of things that weren’t there and sometimes it’d get so bad that I’d end up crying by the end of the night and I’d have to sleep with my brother.

Q. You were seeing things that may or may not have been there?

A. Yes.

Q. Hearing things that may or may not have been there?

A. If it got really bad and I started overthinking a lot, then I could feel things touching me, and I could hear stuff, but it was very rare that I’d hear stuff, it was more seeing and touching.”

31. In further cross-examination, the complainant said she thought the applicant “might have used his right hand” but was “not too sure”. She then said he had used his “fingers”. She remembered the applicant moving her pants and slightly moving her shorts. She agreed that the applicant said something like “this is not what you want?”.

32. The complainant was asked by the applicant’s trial counsel about her position in the applicant’s bed at that time the incident was taking place:

“Q. Just so I’m clear. You were kind of curled up, were you, with your knees towards your chest?

A. Yes.

Q. Your back was towards [the applicant]?

A. Yes.

Q. Did [the applicant] move your legs at all?

A. No.

Q. Can you remember [the applicant] moving your pants?

A. Yes.

Q. As in not your underpants but the baggy pants you were wearing?

A. Yes, I remember him slightly lifting my shorts.

Q. Did you move your legs from that crouched position with your knees up towards your chest at all?

A. I don’t think so. … it happened fast and I kind of froze when he did that, and then after I realised what was happening, I moved away towards the edge of the bed and he said, ‘[y]ou don’t like that?’ and I stayed quiet.”

33. The complainant remembered OS being half asleep “watching TV” and being “very distracted”. She confirmed the TV was on, the bedroom door was slightly open and her mother and stepfather were in the house. The complainant disagreed with the propositions put to her by the applicant’s trial counsel under cross-examination, that exchange was relevantly as follows:

“Q. … [The applicant] never touched you around your vagina, did he? Do you agree or disagree?

A. Disagree.

Q. Again, [the applicant] never touched you inside your vagina, did he? Do you agree or disagree?

A. Disagree.

Q. [The applicant] never said to you words to the effect of, ‘[i]s this not what you want?’ did he? Do you agree or disagree?

A. Agree. No, disagree, sorry.

…

Q. Because [the applicant] has never touched you in a sexual way, has he?

A. Disagree.

…

Q. I’m going to say you never saw [the applicant’s] penis on this occasion, did you?

A. I did, just the tip.

Q. I’m going to say that you never saw [the applicant’s] penis because [the applicant] never did that. Do you agree or disagree with that?

A. Disagree.”

A summary of Mr Moore’s evidence

34. The complainant’s school teacher, Mr Moore, gave evidence that he was teaching his class in accordance with “the Department’s mandatory child protection unit”. The lesson concerned body parts and, in particular, a discussion of “private parts” and what “private” meant in that context. On the smart board there was a picture of the male anatomy and female anatomy. Mr Moore asked the children to approach the smart board to point out any body parts that they were aware of. In that exercise, the complainant approached the board and pointed to a specific part of the female anatomy picture and said the word “vagina”.

35. During the lesson, there was a discussion about what the children could do if someone was to touch those body parts without being given their permission. Mr Moore said the children proffered up answers such as telling a trusted adult which included parents, teachers, medical professionals and police.

36. At the end of the day, the complainant asked Mr Moore if she could talk to him privately. He asked her “what’s up” and the complainant replied “that she had been raped when she was younger”.

37. Mr Moore replied, “when did this happen?”, the complainant said “when I was eight years of age”.

38. Mr Moore asked the complainant to explain to him what had occurred. He gave the following evidence:

“Q. What did [the complainant] say?

A. She said that they had a friend staying over at their home who was between homes at the time, and that he stayed in her bedroom, or their … she used the words ‘our bedroom’.

Q. Did she say anything else?

A. She mentioned, and I do recall, she mentioned saying that he had a ‘cool TV and a cool bed’, and then I asked her, ‘[w]hose bedroom?’, and she replied that it was hers and her younger brother’s.”

39. Mr Moore was asked:

“Q. Was there any more to the conversation?

A. Yes. I asked her what happened. She said that her younger brother was sitting at the end of the bed and she and [the applicant] … were sitting at the other end of the bed.

…

A. … So they were watching [TV] as I said, she and [the applicant] were at the other end of the bed, and she stated that he had slipped his hand under the covers.”

40. Mr Moore said to the complainant “into your pyjamas?”, and she replied “[y]es”. He then asked “[d]id his fingers enter your vagina?”, and she replied “[y]es”.

41. Mr Moore asked the complainant “[d]oes your brother know that this had happened?”, she replied “[n]o” and that she did not want him to know.

42. Mr Moore stated that the complainant had not named the person and indicated that she had not told anyone else about it other than him. She also said to him that her “mum didn’t know” and “brother didn’t know”.

43. As the complainant was telling Mr Moore these things, he said:

“A. She was quite calm, very matter of fact in the way that she spoke, which was very much her demeanour anyway, as a person, there wasn’t a lot of emotion to what she … to the way that she was … her demeanour while she was saying all of this.

Q. Was that the case throughout or did that change at any point in time?

A. That changed once I consulted her and said that she’d been very brave for telling me this and explained my opinion. Well, I said to her … ‘[t]hat this wasn’t your fault and that you’re not to blame for this for happening,’ and at that point her emotions changed.

Q. What did you see?

A. She became a bit teary in her eyes, and … as I said, and then I asked her if she was going to be okay, and she shrugged her shoulders and said, ‘[y]es,’ which was very much like her.

Q. What happened after this conversation?

A. So I did tell her that … I have mandatory reporting expectations or guidelines that I have to meet, so I did advise her that I would need to talk to our Deputy Principal ... and I did tell her that I would need to talk to her mum and asked if that was okay, and she replied, ‘[y]es’.”

44. Mr Moore said following that conversation the complainant then left and he reported the disclosure to his supervisor in accordance with the mandatory reporting guidelines. On the following day, once the class had settled, the complainant approached Mr Moore and he asked her “[d]o you want to tell me the name of that man?”, and she replied “[y]es”. Mr Moore said “[d]on’t tell me out loud, write it on a [p]ost-[i]t note”, as a way to protect her privacy since the class was full with around 30 students. Mr Moore confirmed that the complainant wrote down the name “Josh Bennett”.

A summary of OS’ evidence

45. In a recorded interview with police on 27 February 2023, marked as MFI 10, when OS was 11 years old, he told police that whilst the applicant was living with the complainant’s family in the period during 2019, when he and the complainant got scared, sometimes they would go into the applicant’s bedroom and sleep. OS thought that he and the complainant had only slept in the applicant’s room when they got scared on “maybe six to five times”. OS thought that DO did not know that they had slept in the applicant’s bedroom until “when [DO] came to wake them up” in the morning.

46. In cross-examination, OS said that when he slept in the applicant’s room, he never watched TV before going to sleep. He said “it helped [the complainant] sleep but it didn’t help me sleep”. OS remembered there were occasions when he would go into the applicant’s room with the complainant and that was when he was scared. He said “I was scared of what’s in the dark”. OS recalled that he had only slept in the applicant’s room about five or six times.

47. OS drew a diagram (Exhibit C) of where he and the complainant would sleep when in the applicant’s room. OS’ diagram depicted different positions of where he and the complainant slept in the applicant’s bed when compared to the complainant’s diagram. When asked about where OS, the applicant and complainant would sleep, he agreed that they always slept in the same spot. However, OS denied having ever watched TV before going to sleep and that he was told to stop sleeping in the applicant’s bedroom.

A summary of DO’s evidence

48. DO’s evidence at the trial was that on “a couple of mornings” she had woken up to find the complainant and OS in the applicant’s bed. DO agreed that she had not discussed with the complainant and OS about sleeping in the applicant’s room before the first time it had occurred. But that upon seeing the complainant and OS in the applicant’s bed, she discussed with all three of them together that they could not sleep in his bed. DO said she told the applicant to “turn them away” and that “[h]e can’t let it happen”. The applicant had explained to her that they had only come into his room since they were scared.

49. DO said that she saw the complainant and OS in the applicant’s bed “about five times in total”. DO said on each occasion, she found the complainant and OS sleeping in the applicant’s bed, she reiterated to him that he should try to turn them away, and he acknowledged “he would try”.

50. When asked about the wording of the conversation with the complainant about the particular incident that had happened, she said:

“… [The complainant’s] exact wording was that [the applicant] had touched [the complainant] on [her] bits, which [the complainant] has always referred to her vagina as bits, and he started off as when they were watching a movie after [DO] fell asleep, before, like, they were going to sleep, that [the applicant] had tried to touch her bits and she moved away and that he would sleep scratching himself.”

51. In response to the question about whether the complainant had described to her experiencing hallucinations at night she replied “no”.

52. Having regard to the discrete issue raised in this appeal, it is important to recount how the complainant’s evidence of hallucinations was dealt with by the Crown and the applicant’s trial counsel in their closing addresses and the trial judge’s summing up.

Closing addresses

53. The Crown did not deal with the complainant’s “hallucinations” as a specific topic in the Crown’s closing address. The sole reference to hallucinations can be observed in the following passage:

“This hesitation to say the word ‘vagina’, to say what it is that happened, these indicators of discomfort that you saw, it’s a matter for you, members of the jury, but you might think that those are hallmarks of genuine emotion and are consistent with a genuine account, not with a fabrication, not with a cry for attention, not with hallucination.”

54. The applicant’s trial counsel’s closing address on this issue was confined to the following passage:

“And what’s interesting, you might think, ladies and gentlemen, is that when the police officer hears that, there is no further questioning of [the complainant] as to what she meant by hallucinating. No further questioning as to what she meant by it. Something she prompted … something her mum said she’s never mentioned before when her mum was asked about it by me. I’m jumping around again. I asked what she meant by hallucinate.”

55. The applicant’s trial counsel then read to the jury the passage of evidence quoted at [30] above.

The summing up

56. On the topic of hallucinations, when reminding the jury of the closing address of the applicant’s trial counsel the trial judge said:

“… that in relation to both the penetration and the touching that [the complainant] was a child who volunteered that at night in the dark if she was upset, she might hallucinate about things, not just see things that were not there, but think that she was being touched when nothing was actually touching her, and this is a case about a young child being touched at night-time in [the applicant’s] bedroom where she had gone because she was frightened of something and you cannot ignore that. That, of course, having said this to the police, they did not follow it up at all, so we are just left with that evidence, but what does it mean?”

Legal principles

57. The principles to be applied in determining an unreasonable verdict ground under the first limb of s 6(1) of the Criminal Appeal Act are well established and have been restated in a number of High Court decisions following the applicable principles being authoritatively stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493-495; [1994] HCA 63 (“M”): See, eg, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [55]-[59] (McHugh, Gummow and Kirby JJ); SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] (French CJ, Gummow and Kiefel JJ); R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (“Baden-Clay”); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]-[15] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (“Dansie”).

58. More recently, in the High Court’s decision of R v ZT [2025] HCA 9; (2025) 99 ALJR 676 (“ZT”), the joint judgment of Gageler CJ, Gleeson, Jagot and Beech-Jones JJ, restated the applicable principles at [7]-[11]:

“[7] [M] requires the appellate court, in deciding whether a conviction is unreasonable, or could not be supported, having regard to the evidence, to ask itself ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’. In answering that question, the appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the ‘benefit of having seen and heard the witnesses’. To the contrary, the appellate court is obliged to pay ‘full regard to those considerations’ as follows:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’ …

[8] Three aspects of [M] should be noted.

[9] First, although another passage of [M] refers to the advantage the jury has in ‘seeing and hearing the witnesses’, the passage above confirms that the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial. For example, in [Dansie] the advantage possessed by the trial judge as arbiter of fact was assessed as ‘slight’ because the prosecution case was circumstantial, consisting mostly of transcripts of unchallenged testimony, and the appellant did not give evidence.

[10] Second, in applying [M] the appellate court is required to give ‘full allowance’ to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant’s guilt. Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.

[11] Third, [M] requires that the appellate court undertake an ‘independent assessment’ of the sufficiency and quality of the ‘whole of the evidence’. However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.” (footnotes omitted)

59. Similarly, a number of decisions of this Court have conveniently summarised the applicable principles derived from the High Court authorities: See, eg, Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84]-[86] (Bathurst CJ, Johnson and Fullerton JJ agreeing); Xiao v R [2022] NSWCCA 95 at [131]-[134] (Price J, Harrison and Ierace JJ agreeing); Hanna v R [2023] NSWCCA 182 at [18]-[25] (Leeming JA, Yehia and Weinstein JJ agreeing); Marco v R [2023] NSWCCA 307 at [109]-[116] (Ward P, Walton and Fagan JJ agreeing); RM v R [2024] NSWCCA 148 at [215]-[219] (Adamson JA, Dhanji and Sweeney JJ agreeing); Smith v R [2025] NSWCCA 104 at [32]-[40] (Bell CJ, Harrison CJ at CL and Hamill J agreeing).

60. Furthermore, it should be borne in mind what the High Court reaffirmed in Baden-Clay at [48] (and in ZT at [11]) in accordance with the principles stated in Ratten v The Queen (1974) 131 CLR 510 at 517 (Barwick CJ); [1974] HCA 35, Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 at [1] (Gleeson CJ) and Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9] (Gleeson CJ):

“Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’.”

Submissions

The applicant’s submissions

61. The applicant referred to the complainant’s evidence of experiencing hallucinations both in the recorded interview (quoted at [19] above), and in cross-examination (quoted at [29]-[30] above), and pointed out that the interviewing police officers did not ask her any questions about what she meant when she said she “would hallucinate a lot”. The applicant pointed out that neither any further questions were squarely put to the complainant on this issue nor was any clarification sought by the officers.

62. The applicant submitted that the complainant’s evidence was significant in the sense that it gave rise to the reasonable possibility her recollection of the incident was, in fact, the result of a hallucination. In support of this submission, the applicant identified four important aspects of the complainant’s evidence that should be given some consideration.

63. First, it was argued that the complainant’s account of experiencing hallucinations was not only limited to seeing “weird shapes”, but also extended to feeling things touching her, as well as hearing things. The applicant submitted that this was of particular significance, as the complainant described the incident as involving sexual touching during which the complainant said she had heard the applicant say something. The applicant contended that this left open the possibility for the incident to be the result of a hallucination based on the complainant’s account of what her hallucinations entailed.

64. Secondly, the applicant contended that the complainant’s evidence of experiencing hallucinations was not limited to experiencing them in the dark. Rather, as the complainant stated they would simply occur “especially in the dark”. The applicant submitted that this aspect of the complainant’s evidence of her hallucinations was to be considered against her evidence, that during the incident, although the lights in the room were off, the TV was on. The applicant argued that, as a consequence, the complainant’s evidence of the circumstances in which she would hallucinate did not preclude her from being able to hallucinate during the relevant incident. The applicant further referred to the complainant’s evidence of having her eyes closed at the relevant time.

65. Thirdly, the applicant noted that it was clear from the complainant’s evidence that she was experiencing hallucinations during the relevant period in which the sexual assault was alleged to have occurred. The applicant relied on the complainant’s answers in the police recorded interview, where she described continuing to sleep in the applicant’s bedroom because she was experiencing hallucinations.

66. Fourthly, the applicant contended that the complainant’s evidence suggested the hallucinations she experienced were so vivid that they would evoke an emotional response. The applicant placed emphasis on the complainant saying that “sometimes it’d get so bad that I’d end up crying”. The applicant referred to the complainant’s statement that she “almost started crying” and contended that this emotional response to the incident was entirely consistent with her described response to her hallucinations. The applicant further submitted that the intensity with which the complainant experienced hallucinations must be seen as being relevant to the probability she would honestly, albeit mistakenly, believe in her account of the sexual assault.

67. The applicant submitted that each of the above matters concerning the complainant’s evidence of experiencing hallucinations were consistent with her account of the sexual assault. On this basis, there was a reasonable possibility that the complainant’s recollection of the sexual assault was the result of a hallucination. There was no other evidence available, for example, expert evidence to assist the jury in excluding such a possibility to the criminal standard.

68. In submitting that the jury’s advantage in having seen and heard the evidence is not capable of resolving the doubt this Court may experience, the applicant referred to the Crown’s reliance on the complainant’s demeanour in the Crown’s closing address. The applicant argued that it was never suggested by the Crown at trial, that there was something about the complainant’s demeanour in describing her hallucinations which warranted the jury rejecting that evidence.

69. A further submission was that the Court may proceed on the assumption, the jury found the complainant’s demeanour was consistent with a genuinely and honestly held belief. However, proceeding on that assumption does not and cannot exclude the possibility the complainant was mistaken about the incident.

The Crown’s submissions

70. The Crown submitted that it is apparent the central thesis of the applicant’s complaint, that the jury should have entertained as reasonable the possibility that the complainant had hallucinated the incident, was neither raised in cross-examination of the complainant’s evidence nor put to the jury in the closing address on the applicant’s behalf.

71. The Crown argued that the position adopted by the applicant’s trial counsel reflected the state of the evidence, which provided an insufficient foundation to advance as reasonable the possibility that the complainant’s experience of the sexual assault had been the result of a hallucination.

72. The Crown pointed to a number of aspects of the evidence that rendered the incident as a “hallucination” on the part of the complainant, being a highly implausible scenario that the jury were well entitled to discount as failing to amount to a reasonable possibility in all of the circumstances. The Crown advanced eight points in support of this submission.

73. First, there was no dispute that on several occasions the complainant and OS had slept in the applicant’s room and in his bed. Accordingly, there existed an opportunity for the applicant to have engaged in the conduct alleged by the complainant.

74. Secondly, the complainant was conscious of her surroundings at the time of the sexual assault, including being aware of the presence and positioning of both the applicant and OS in the room.

75. Thirdly, the jury was entitled to conclude it was generally implausible that an eight or nine year old child would “hallucinate” the experience of a hand moving underneath her underwear and rubbing around her vagina for a period of what “felt a bit longer but I want to say just ten seconds”.

76. Fourthly, the complainant described a series of actions undertaken by the applicant that included both physical contact and words spoken. The words spoken by the applicant make sense when viewed in the context of the interaction, including the complainant’s physical response by moving away, which indicated that she was describing an actual rather than an imagined experience. The feeling of physical contact was indicated to have stopped after the complainant moved away, and the applicant said words to the effect of, “[y]ou don’t want that?”.

77. Fifthly, the nature of the physical contact by the applicant was described by the complainant in some detail, including the feeling of a hand creeping under her underwear and starting to touch her; the feeling of “him slightly lifting my shorts”; the rubbing of her vagina; the “gentle but … pressing” nature of the touching; and the feeling of the applicant moving his hand away after she moved away from him.

78. Sixthly, the physical and emotional responses of the complainant to the incident, including her feelings of being “overwhelmed and scared”, freezing up, heart racing and starting to tear up, were all consistent with and suggested that she recounted a genuine response to a lived experience.

79. Seventhly, the fact that the complainant remembered the specific events of the sexual assault, including her emotional response to it, in such detail years after it had occurred, was consistent with it having been a genuine experience that she had endured.

80. Lastly, the circumstances in which the complainant came to disclose the sexual assault to Mr Moore were consistent with her reaching an age and being provided with a situation in which she was comfortable to disclose what she had in fact experienced. Her emotional response when recounting the incident to Mr Moore was also consistent with her disclosing something she had actually experienced.

81. The Crown submitted that in light of these matters, the applicant has not shown that the verdict of guilty with respect to Count 2 was unreasonable.

Determination

82. Having independently assessed the whole of the evidence, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of Count 2.

83. The clarity of detail in the complainant’s account of sexual touching demonstrates how far removed her evidence was from being the result of a hallucination. I do not agree with the applicant’s submission that the complainant’s evidence of experiencing hallucinations is consistent with her account of sexual touching. Without repeating the eight points made by the Crown (see [73]-[80] above) with which I agree, I am satisfied that there is no reasonable possibility that the complainant was hallucinating.

84. Although I do not have the jury’s advantage of seeing and hearing the complainant giving evidence, I found her to be an impressive witness, notwithstanding her young age at the time of the police interview and pre-recorded hearing.

85. The applicant’s trial counsel did not raise with the complainant in cross-examination the possibility that she had hallucinated and was mistaken about the incident. However, the complainant firmly rejected the propositions put to her that the offending did not occur (see [33] above).

86. The issue of hallucinations was touched upon briefly by the Crown and the applicant’s trial counsel in closing addresses (see [53]-[54] above), but the applicant’s trial counsel did not put to the jury that it was a reasonable possibility that the complainant’s evidence of the sexual assault had been the result of a hallucination. This appears to have been a forensic decision made by the applicant’s trial counsel, who recognised that the evidence did not support such a submission being made.

87. The applicant does not complain about the trial judge’s summing up during which his Honour directed the jury’s attention to the complainant’s evidence that “she might hallucinate about things” (see [56] above). The jury was well aware there was an issue as to the reliability of the complaint of sexual touching arising from the complainant’s evidence of hallucinations. It was open to the jury to reject the possibility that the complainant had been hallucinating.

88. There were some inconsistencies in the evidence called by the Crown but those inconsistencies were not a subject of the appeal. In any event, the jury was well placed to assess all of the evidence and reach its verdict.

89. There is not a significant possibility that an innocent person has been convicted: M at 493-495.

Orders

90. For these reasons, I propose the following orders:

91. Grant the applicant leave to appeal against the conviction.

92. Dismiss the appeal.

93. IERACE J: I agree with Price AJA. Having reviewed the transcript of evidence in the trial, I am satisfied that the complainant’s references to her hallucinating on occasion were quite distinct experiences from that which she described occurring in the applicant’s bed, that was the foundation of count 2. In my view, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the complainant’s evidence as to the assault was not the result of a hallucination and that the applicant was guilty of count 2.

94. RIGG J: I agree with Price AJA. Having undertaken my own assessment of the evidence in the trial, I do not regard as reasonable the possibility that the complainant hallucinated the events as she described them.

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