DB v R

Medium Neutral Citation: DB v R [2026] NSWCCA 29

Hearing dates: 13 February 2026

Date of orders: 25 March 2026

Decision date: 25 March 2026

Before: Free JA; Fagan J; Huggett J

Decision: (1) Leave to appeal is granted.
(2) Appeal dismissed.

Catchwords: CRIME — appeals — appeal against conviction — jury returned guilty verdict of aggravated indecent assault contrary to Crimes Act 1900 (NSW), s 61M(2) — not guilty verdicts returned on two counts alleging earlier alleged assaults of same complainant — whether verdict unreasonable by reason of inconsistency — verdicts reconcilable having regard to qualities of evidence and timing and circumstances of alleged offences — reliability distinct from credibility — open to jury to consider complainant’s recollection of more recent offending more reliable — added weight placed on passage of time where earlier alleged offending occurred when complainant was a young child — whether a miscarriage of justice arose — no error in directions of trial judge — no material irregularity from defence counsel’s forensic decisions to consent to admission of evidence of complainant’s sister in statement form and to not address in closing — no miscarriage of justice

Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 66C
Criminal Appeal Act 1912 (NSW), s 5
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited: Barney v R [2023] NSWCCA 85
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Holmes v R [2024] NSWCCA 233
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kumar v R [2025] NSWCCA 119
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
ML v R [2015] NSWCCA 27
Nudd v The Queen (2006) 35 SASR 356; [2006] HCA 9
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
TWKJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category: Principal judgment

Parties: DB (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

Representation: Counsel:
R Rodger (Applicant)
A Brown (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/313493

Publication restriction: Yes.
Pursuant to s. 578A of the Crimes Act 1900 (NSW) publication of the victim’s name or any identifying or potentially identifying information is prohibited.
Pursuant to s. 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name or any information identifying any children referred to in the proceedings is prohibited.

HEADNOTE

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

The applicant (DB) sought leave to appeal from his conviction for aggravated indecent assault of a person under 16. DB was tried on an indictment containing three counts, each involving alleged assault of the same complainant (LC), spanning the period 2007 to 2011. DB was a family friend and was around four and a half years older than LC. They regularly saw each other during childhood. According to LC, DB touched him in a sexualised way over many years, beginning when LC was around three or four years old and concluding with an incident in Enmore when LC was aged 13 and DB was aged 17. LC’s evidence addressed the three charged events and to the extent it went beyond the charged events it was relied on by the Crown as context evidence. In addition to hearing evidence to this effect from LC, the jury heard evidence from other witnesses about complaints which LC had made to them referring to sexual contact by DB. The jury heard evidence from LC’s sister (HC), in the form of a statement that was read out by a police witness. HC was not cross-examined and no limitations were imposed on the use of her evidence by the jury. HC’s evidence was favourable to DB in certain respects, in that HC had no recollection of DB behaving in a sexualised way. There was an unfavourable aspect of HC’s evidence in that she recalled DB sleeping over at the house in Enmore on the night that was the subject of Count 3, whereas on DB’s version of events he did not stay overnight.

DB was convicted only on Count 3, concerning the assault in Enmore in 2011. DB was acquitted on the other counts.

DB sought leave to appeal his conviction on a number of grounds. The first was that there was an inconsistency between the jury’s verdicts, of the kind that rendered the conviction unreasonable. The second ground involved a number of sub-grounds. DB complained that the trial judge had erred in giving directions about the treatment of evidence that LC had been abused by DB over a ten-year period and about the evidence given concerning LC’s presentation to a psychiatric hospital and LC’s mental health. In relation to a statement of evidence of HC, the applicant complained that the evidence should not have been admitted, about the directions given in relation to that evidence and about the failure of defence counsel to address the jury in relation to the evidence.

The Court held (Free JA, Fagan and Huggett JJ), granting leave to appeal and dismissing the appeal:

As to ground 1, re inconsistent verdicts

1. Determining a claim that a verdict is unreasonable by reason of inconsistency is a highly factually specific exercise, applying standards of logic and reasonableness. The appellate court should remain conscious of the advantages enjoyed by the jury, and give due respect to its constitutional role as the trier of fact and its abiding importance as representative of the community: [17].

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, Kumar v R [2025] NSWCCA 119, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, ML v R [2015] NSWCCA 27, applied.

2. DB carried a heavy burden in seeking to demonstrate inconsistency of the relevant kind. Such inconsistency is only demonstrated where the jury’s different verdicts cannot be reconciled, indicating an outcome that no reasonable jury which had applied itself properly to the facts in the case could have arrived at. A jury’s verdict should only be overturned on this basis where the outcome on different counts involves an affront to logic and commonsense: [18].

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Kumar v R [2025] NSWCCA 119, applied.

3. If an appellate court perceives a proper way in which to reconcile the different verdicts of the jury, the conclusion that ought generally be drawn is that the jury performed its functions as required. An appellate court seeking to decipher the different verdicts of a jury must keep in mind that it is orthodox for a jury dealing with an indictment containing multiple counts to be directed to give separate consideration to each count, and to be directed that the evidence of each witness may be accepted in whole or in part. Directions of this kind were given by the trial judge. The Court proceeds on the assumption that the jury acted in accordance with those directions: [18]-[21].

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, applied.

4. The different verdicts can be reconciled when understood in the context of the timing and circumstances of each alleged offence. Count 3 concerned the most recent of the alleged offences. It would have been logical and open to the jury to consider that LC’s recollection of the most recent events was more reliable than his recollection of events more distant in time. The passage of time has added significance where the witness is giving evidence about events that occurred when he was a young child. LC gave evidence that Count 3 was the last occasion on which sexual touching occurred. LC was able to provide specific details of the incident and the surrounding circumstances that gave a solid grounding to his account. These were matters which the jury could logically have perceived as giving LC’s evidence in respect of Count 3 more reliability than his evidence in respect of the other counts: [22], [31]-[34].

5. DB invited the Court to infer that the only explanation for the jury having reached verdicts of not guilty in respect of Counts 1 and 2 is that the jury had doubts about LC’s credibility. DB submits the jury ought logically to have also entertained those doubts in respect of Count 3. This argument elides the distinction between credibility and reliability. A jury may properly consider a witness to be honest and generally credible, but not reliable in respect of particular matters. There is no proper factual basis to infer from the verdicts of not guilty on Counts 1 and 2 that the jury took an adverse view of LC’s credibility. The more natural inference is that the jury found LC’s evidence in respect of Count 3 to be more reliable than his evidence in respect of Counts 1 and 2. This is consistent with the directions given to the jury about the approach they should take to the evidence: [23], [35]-[39].

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, Barney v R [2023] NSWCCA 85, Kumar v R [2025] NSWCCA 119, applied.

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151, considered.

6. While an assessment of apparently inconsistent verdicts is informed by all of the facts and circumstances of the particular case, including all of the circumstances that give insight to the extent that is permissible into the jury’s thinking, references to a jury note and the extended time taken for the trial to conclude did not assist DB: [40]-[43].

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, distinguished.

As to ground 2, re miscarriage of justice

7. The trial judge did not err in telling the jury during summing up that LC “gave evidence just in general terms” that he was abused as a child between the ages of four and 14. There was a significant volume of evidence of LC’s complaints to family and friends about a ten-year course of persistent sexual abuse by DB. There was also evidence given directly by LC to the jury to the same effect. The absence of any request for a redirection confirms that no risk of miscarriage of justice was perceived by defence counsel, who was in the best position to assess the matter: [44]-[64].

8. The trial judge did not err in directing the jury in relation to evidence of LC’s mental state when he presented at a psychiatric clinic with anxiety and depression in August 2020. The trial judge gave a direction not to speculate and an instruction to exercise care in drawing inferences. This was sufficient. Nothing said by the trial judge implicitly invited the jury to infer that LC’s troubled mental state arose either wholly or in part from actual experience of sexual abuse. It was open to the jury to regard this circumstantial evidence. No direction was sought by defence counsel to the contrary: [75]-[80].

9. Defence counsel’s failure to take objection to the admission of the evidence of HC did not constitute a material irregularity amounting to a miscarriage of justice. Whether a material irregularity occurred must be considered with due regard for the wide discretion that counsel has to conduct the trial as he or she thinks best and recognising that ordinarily the client is bound by counsel's decisions. The potential advantage to DB of having HC's statement read was that she had observed LC and the applicant in each other's company on many occasions throughout the years in which sexual abuse was said to have taken place, yet she had never seen any indication of anything sexual in the applicant's conduct towards LC. The potential detriment to DB’s case was that the jury might accept HC's evidence that the applicant shared a room with LC for a night at the Enmore house. That evidence would be unchallenged when adduced in statement form. Balancing the considerations for and against, it was a sound professional judgment of defence counsel to consent to the admission of the evidence: [81]-[87].

TWKJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, Nudd v The Queen (2006) 35 SASR 356; [2006] HCA 9, applied.

Holmes v R [2024] NSWCCA 233, distinguished.

10. The trial judge’s summing up did not misrepresent or overstate the extent of support for the Crown case provided by HC’s evidence. Her Honour merely identified a series of points urged by the Crown: [65]-[74].

11. Defence counsel’s decision to make no submission in closing address to attempt to diminish the significance of HC’s evidence that DB stayed overnight at the Enmore house was a legitimate forensic decision which did not give rise to a miscarriage of justice: [88].

JUDGMENT

1. THE COURT**:** The applicant (DB) seeks leave to appeal from his conviction under s 61M(2) of the Crimes Act 1900 (NSW) for aggravated indecent assault of a person under 16. DB was tried in May 2024 on an indictment containing three counts, each involving alleged assault of the same complainant (LC). The counts were, in summary:

2. Count 1 – Aggravated indecent assault (victim under 16 years of age), contrary to s 61M(1) of the Crimes Act, between 14 September 2007 and 16 September 2008;

3. Count 2 – Sexual intercourse with a child aged between 10 and 14, contrary to s 66C(1) of the Crimes Act, between 1 January 2008 and 1 August 2010; and

4. Count 3 – Aggravated indecent assault, contrary to s 61M(2) of the Crimes Act, between 1 January 2011 and 28 January 2011.

5. DB was acquitted on Counts 1 and 2 and convicted on Count 3. DB was sentenced to a community corrections order for a period of three years. He does not seek to appeal against that sentence.

6. DB seeks leave to appeal from his conviction on the following grounds:

1. The jury’s verdict of guilty on Count 3 was unreasonable

2. A miscarriage of justice arose from:

i. the trial judge’s directions in relation to the treatment of:

a. the evidence that the complainant had been sexually abused by the applicant over a 10 year period between the ages of 4-14;

b. the evidence of the complainant’s sister in relation to Count 3;

c. the evidence concerning the complainant’s presentation to a psychiatric hospital and his mental health; and

ii. the admission of the evidence of [the complainant’s sister]

iii. defence Counsel’s failure to address the jury in relation to the admitted evidence of the complainant’s sister that the applicant had stayed overnight at the Enmore property (Count 3)

4. None of the grounds of appeal involves a question of law alone, and accordingly DB requires leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). As the Crown correctly submits, given that DB complains in subpars 2(i)(a), 2(i)(b) and 2(i)(c) about directions (or the absence of directions) in circumstances where no correction or further direction was sought at trial, leave is additionally required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to agitate those matters. DB also requires leave under r 4.15 to rely on what is now ground 2(ii), being a new ground raised for the first time at the hearing of the appeal. That involves a complaint about the evidence of HC (the sister of the complainant) being admitted, in circumstances where DB’s counsel did not object to the admission of the evidence at trial.

5. DB’s argument in support of ground 1 focused on an asserted inconsistency, of the kind that would demonstrate appellable error, between the jury’s verdicts of not guilty (on Counts 1 and 2) and guilty (on Count 3). For the reasons which follow, there is no inconsistency of that kind. Nor has DB demonstrated appellable error on the part of the trial judge or defence counsel at trial as alleged in the various parts of ground 2. The appropriate outcome is for leave to be granted and the appeal to be dismissed.

Factual background

6. LC was born in September 1997. DB is around four and half years older than LC. The mothers of DB and LC were longstanding friends and as a result DB and LC saw each other relatively frequently as children. According to LC, DB touched him in a sexualised way over many years, beginning when LC was around three or four years old and concluding with an incident in Enmore when LC was aged 13 and DB was aged 17. At trial this was reflected in evidence given by LC and in evidence from other witnesses about complaints which LC had made to them referring to sexual contact by DB.

7. Count 1 concerned an alleged incident in September 2007 in the upstairs study of DB’s then residence in Blackheath, on the night before LC’s tenth birthday. LC’s account was that he was sitting on DB’s lap while pornography was playing on a computer, and DB stroked LC’s penis.

8. Count 2 concerned an alleged incident at LC’s house in Willoughby. According to the indictment the offence occurred between 1 January 2008 (when LC was ten years old) and 1 August 2010 (by which time LC would have been twelve). On LC’s account DB was staying overnight on a mattress in LC’s room and DB performed fellatio on LC and tried to kiss him.

9. Count 3 was, on LC’s account, the last occasion when DB touched him in a sexualised way. LC was staying at a house in Enmore in January 2011 (by which time LC was thirteen years old) as part of a house-sitting arrangement. According to LC, he was sitting between the legs of DB in the front room of the house while DB stroked LC’s penis.

10. LC gave evidence about two other specific incidents that were relied on by the Crown as context evidence only. The first was an incident when LC was three or four years old and he was playing doctors and nurses with DB at a house in Chatswood. The second was said to have occurred at a park in Blackheath in 2007 or 2008. LC said that while visiting DB’s house in Blackheath he and DB went to the park to play basketball. LC said that while they were near a brick wall in the park DB pulled down LC’s pants and stroked LC’s penis.

11. The jury heard evidence about a number of complaints made by LC to friends and relatives that he had been sexually abused by a family friend. In around 2016 or 2017, LC told his best friend at the time, a Mr P, that he was “sexually abused by a family friend throughout [his] childhood”. In about 2017 he told his then girlfriend that he was “sexually abused by a childhood friend” and named DB. In 2019, LC told a Mr T, his friend and housemate, that he had “been sexually abused as a kid by a family friend”. Mr T’s evidence was that LC had told him that he had been sexually assaulted when he was younger “repeatedly by his mum’s friend’s son” and alluded to having been “repeatedly abused … repetitively over a period of years”. In 2020, LC told his mother that he had been sexually abused as a child. LC’s mother gave evidence that LC told her that DB had been raping or sexually assaulting him for ten years from four to 14. At some time during the COVID-19 epidemic LC told a friend, Mr B, that he had been “sexually abused throughout [his] childhood” by DB. LC also indicated to his father and brother that he had been “sexually abused throughout [his] childhood” by DB.

No, your Honour. There isn’t. It’s fairly slim evidence but for my purposes, I’m content, there are portions of the statement that have assistance to the defence, your Honour, I make a tactical decision in that regard.

13. As to the reference to portions of the statement of HC being helpful to the defence, HC’s statement included evidence that she did not recall DB’s actions as a child to be sexual in nature, or that his jokes were sexually based. She recalled DB and LC playing together on a regular basis but had no memory of any play of a sexual nature. Nor did she recall there to be any signs of LC being upset after he had played with DB, or otherwise exhibiting mood changes by LC.

14. No conditions were attached to the arrangement between the Crown and DB as to how HC’s evidence was to be adduced. At trial, HC’s statement was read by the officer in charge of the investigation. No limitations were sought or imposed on the use that could be made of the evidence of HC as received by the jury.

15. Relevantly for the purposes of Count 3, HC’s evidence included that she saw DB for the last time at the Enmore house and HC slept on the couch because LC and DB were sharing the front room. That evidence was in conflict with DB’s own account that he did not sleep overnight at the Enmore house, but was instead driven to his grandmother’s house by his uncle after the cricket match at the SCG.

16. DB denied that any sexual contact had ever occurred between him and LC. As to Count 1, DB accepted that there was an occasion when LC stayed at DB’s house in Blackheath on the night before his birthday. He denied touching LC and denied that they had watched pornography. As to Count 2, DB denied staying overnight at LC’s house in Willoughby. DB’s case in relation to Count 3 was that he did visit the house in Enmore in January 2011, and attended a cricket match that evening with LC at the Sydney Cricket Ground, but he did not stay overnight and did not touch LC as alleged. In the closing address to the jury DB’s counsel urged that LC was not a reliable and accurate witness “even if in some matters he might believe that he’s being truthful”.

Ground 1 – Contention that the jury’s verdict on Count 3 was unreasonable given the inconsistent verdicts

17. As noted above, DB’s argument in support of ground 1 of the appeal focused on a contention that there is an inconsistency between the jury’s verdicts of the kind that reveals that the jury must have erred in the purported discharge of its functions. A claim of factual inconsistency of this kind must be tested by standards of logic and reasonableness: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 366. The exercise is necessarily “highly factually specific”: Kumar v R [2025] NSWCCA 119 at [128]; see MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], [89]. In applying the standards of logic and reasonableness, due respect must be given to the constitutional role of the jury as the trier of fact and the abiding importance of the role of the jury as representative of the community: MFA at [34]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at 329, [65]. A jury may not, and need not, always act in accordance with strictly logical considerations or strict principles of law: MacKenzie at 367. A jury is entitled to give effect to its “innate sense of fairness and justice” as well as its sense of proportion and compassion: MFA at [85]. The appellate court should also remain conscious of the advantages of the jury, given the limitations of the written record when it comes to capturing all the subtle qualities of the evidence heard by a jury: MFA at [23]; ML v R [2015] NSWCCA 27 at [46]; Kumar at [157].

18. DB carries a heavy burden in seeking to demonstrate inconsistency of the relevant kind. Such inconsistency is only demonstrated where the jury’s different verdicts cannot be reconciled, indicating an outcome that “no reasonable jury who had applied their mind properly to the facts in the case could have arrived at”: Kumar at [125]. If this Court perceives a proper way in which to reconcile the different verdicts of the jury, the conclusion that ought generally be drawn is that the jury performed its functions as required: Mackenzie at 366; MFA at [85]. The jury’s verdict should be overturned on the basis of unreasonableness in the form of factual inconsistency only where the outcome on different counts involves an “affront to logic and commonsense”: Mackenzie at 368; MFA at [86]. As explained by Gaudron, Gummow and Kirby JJ in Mackenzie at 368, where the jury’s different verdicts exhibit such a character, this “strongly suggests a compromise of the jury’s duty”:

More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.

19. An appellate court seeking to decipher the different verdicts of a jury must keep in mind that it is orthodox for a jury dealing with an indictment containing multiple counts to be directed to give separate consideration to each count, and to be directed that the evidence of each witness may be accepted in whole or in part: MFA at [34]. Directions of this kind were given by the trial judge in the present matter:

The matters are being heard together because it is convenient to do so; you understand that each count reflects an allegation of an offence, and that allegation is made by the complainant, and you would appreciate that in relation to each count, [LC] is a vital witness in relation to each count. But you, members of the jury, the law says must not allow convenience to override justice. Each party is entitled to have you consider each count separately, having regard to the relevant evidence that relates to each charge separately.

…

You, as members of the jury are the judges of the facts in this case. As judges of the facts, all matters of fact are entirely and exclusively for your determination. It is for you together to decide whether in relation to each count on the indictment the Crown has satisfied you of the accused’s guilt beyond reasonable doubt, because if they have not, then your verdict must be not guilty. (T365-367)

20. The trial judge proceeded to give the following directions:

Members of the jury, when you are assessing the evidence, an important question for juries is the truthfulness and reliability of the various witnesses, and you will appreciate that this case is no exception. Truthfulness or honesty on the one hand, and reliability on the other, are not the same thing. Sometimes an honest witness doing their very best may be mistaken about some details and so unreliable about those details, but reliable in other matters. Witnesses may remember things honestly but in different ways. Sometimes this can account for differences in the evidence of witnesses. They may have difference perspectives and remember what they were focusing on at the time.

When considering the witness' evidence, you do not have to put a witness in a category of wholly accepted or wholly rejected. It is open to you to accept part of what a witness has said and yet reject another part of what the witness says. So if you think a witness was not open or reliable in some of their evidence, that does not mean you have to reject everything that the witness has said, and, of course, the converse applies. If you think a witness is being honest and reliable in some parts of his or her evidence, that does not mean that you have to accept everything that the witness says.

The honesty and truthfulness and credibility of witnesses are for your assessment and for your assessment only, and in assessing honesty and reliability of witnesses' evidence and the weight that you attach to the evidence, members of the jury, juries are told to use your common sense. There are a range of general considerations that may have a bearing on deciding what evidence juries accept and the weight that they give to evidence. I am going to mention a few to you in case they may assist.

21. This Court proceeds on the assumption that the jury acted in accordance with those directions of the trial judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]. The directions are consistent with the analysis of Wood CJ at CL in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [212] that a jury has the right to:

… accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness. It leaves unimpaired the traditional instruction given to juries that they are not obliged to accept wholly or to reject wholly what a witness says, but are free to accept part and to reject part of his or her account — an instruction accepted as perfectly appropriate, if not one that should be given, in KBT v The Queen (1997) 191 CLR 417 at 424, and in KRM v The Queen (2001) 75 ALJR 550 at 558 [36]; 178 ALR 385 at 395 [36], …

22. DB points to similarities between the quality of the evidence relied upon by the Crown in respect of Counts 1, 2 and 3. This was in aid of a submission that there are no material qualitative differences between the evidence available in respect of each count, such that if the jury was not satisfied beyond reasonable doubt that the evidence in respect of Counts 1 and 2 then logically the jury ought to have had a reasonable doubt about Count 3. In DB’s submission, there was a similar level of detail provided by LC in his account of each of the three events that were charged against DB. DB sought to demonstrate this in a number of ways, including by pointing out that LC’s evidence on each count occupies a roughly similar quantity of transcript. DB also submitted that there was no material difference in the extent of uncertainty in LC’s account of the three allegations.

23. Relatedly, DB invites this Court to infer that the only explanation for the jury having reached verdicts of not guilty in respect of Counts 1 and 2 is that the jury had doubts about LC’s credibility. From that premise DB argues that the jury ought logically to have entertained the same doubt about LC’s credibility in respect of Count 3 and should have entered a verdict of not guilty.

24. Somewhat in tension with these submissions, DB drew attention to the fact that the trial judge, in the course of describing the Crown’s position, referred to the fact that HC’s evidence provided some support for LC’s account of the Count 3 events at Enmore, which had been a matter given some emphasis by the Crown. In DB’s submission, this might provide an explanation for the jury’s different approach to Count 3. That in turn would have significance for DB’s separate complaint about the directions given by the trial judge. But in the context of ground 1 it does not advance DB’s arguments on irrational inconsistency. Even assuming for these purposes that, as DB submits, there was not a significant difference between the degree of corroboration in other evidence of LC’s account for Count 3 and the degree of corroboration on Counts 1 and 2, the point still serves to emphasise that the detail and quality of the evidence available on each count from different sources was not the same, and it was the responsibility of the jury, as appropriately directed by the trial judge, to consider each count separately and determine if the Crown had proved guilt beyond reasonable doubt. Assuming it could be inferred that the jury was led by comments from the trial judge to give particular weight to the corroboration of LC’s evidence in respect of Count 3, that would only serve to provide a rational explanation for the different verdicts, not a process of reasoning that affronts logic and commonsense.

25. The Crown resists the argument that there were no relevant qualitative differences between the evidence relied upon in support of Count 3, as opposed to Counts 1 and 2. In relation to Count 1, the following aspects of LC’s evidence assume significance:

You will make your own assessment of the reliability of the complainant and I would suggest to you that you could not assess him as a witness who is reliable and accurate, even if in some matters he might believe that he's being truthful. In that regard, and the learned Crown has referred to it, to the concept of memory and the processes of memory, 5 did not the details that the complainant provided appear to have such a stark lack of context as to appear quite strange? Because he could not recall any of the surrounding circumstances and there were multiple occasions where he was asked quite simple things that you would think a person having that experience would have a recollection of. …

35. DB’s argument also elides the distinction between credibility and reliability. The difference between those concepts was described in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [114] in the following terms by Nettle and Gordon JJ:

… The credibility of a witness was commonly understood as meaning the “truthfulness” of the witness – whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness’s ability to observe and remember facts. For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time. …

36. As observed in Barney v R [2023] NSWCCA 85 at [17], a witness can be credible but not reliable, in that the witness may honestly believe something to have occurred but nonetheless be mistaken.

37. There may be particular factual circumstances where a jury’s verdict of not guilty on a count or counts necessarily signals an adverse attitude to the general credibility of a complainant, in such a way as to indicate that the jury ought logically have entertained a reasonable doubt about the credibility of the complainant’s evidence on other counts: see TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [137]-[138]. But it by no means follows that this is true as a general proposition whenever a jury perceives reasonable doubt about the evidence of a complainant on a given count: see Kumar at [131]-[176]. A jury may properly consider a witness to be honest and generally credible, but not reliable in respect of particular matters. A verdict of not guilty on a particular count in proceedings relating to an allegation of sexual account cannot be treated as implicitly involving a rejection of the complainant’s evidence. In MFA at [34] Gleeson CJ, Hayne and Callinan JJ said:

… A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. …

38. An adverse view of the reliability of a witness in a particular respect will generally have less extensive consequences that an adverse view of the credibility of a witness: Barney at [15]-[29]. On matters of reliability, it is commonplace for a witness to be reliable in relation to some matters but less reliable in relation to others: Barney at [20]. And even where an adverse view is taken of credibility, a jury may perceive particular problems of credibility associated with a complainant’s account of a particular matter without concluding that there is a more general doubt about the credibility of the complainant’s evidence: Barney at [19].

39. Here there is no proper factual basis to infer from the verdicts of not guilty on Counts 1 and 2 that the jury took an adverse view of LC’s credibility, either generally or in respect of those counts. The more natural inference from the different verdicts is that the jury found LC’s evidence in respect of Count 3 to be more reliable than his evidence in respect of Counts 1 and 2. Distinguishing in this way between the strength of the evidence, including the evidence of LC, is far from an indication of illogicality and unreasonableness. To the contrary, it is entirely consistent with the directions given to the jury about the approach that they should take to the evidence.

40. In support of ground 1, DB also referred to other objective indicia about the course of the jury’s deliberations. In doing so DB sought to rely on the proposition that an assessment of apparently inconsistent verdicts must be informed by all of the “facts and circumstances of the particular case”, including the circumstances “that give ‘insight’ … to the extent that is permissible, into the jury’s thinking”: TK at [124]-[128], referring to Mackenzie.

41. After retiring to consider its verdicts the jury sent a note which, among other things, said “Are we able to ask why [DB’s uncle] did not testify?”. The explanation for the jury’s question is plain enough. DB’s uncle could potentially have confirmed DB’s account that, after the cricket game at the SCG, DB’s uncle drove DB to his grandmother’s house and therefore DB did not stay overnight at the Enmore house as claimed in the evidence of LC, HC and their mother. The fact that the jury was curious about the matter and made this request is unremarkable. So too is the response that the trial judge gave to the jury:

The simple answer is the evidence is what you have and you must act on the evidence that you have. If any evidence you feel is lacking then the use you make of that is in relation to whether the lack of that evidence augers against the Crown being able to establish something to your satisfaction beyond reasonable doubt.

42. As properly accepted by counsel for DB on appeal, the judge’s direction in response to the question was appropriate. The fact that the jury asked the question provides no logical support for DB’s contention that there is an irrational inconsistency between the jury’s verdicts on the three counts on the indictment. Nor does it otherwise signal that the jury’s verdict of guilty on Count 3 was unreasonable. It does not suggest, as DB submitted, that in relation to Count 3 the jury wrongly reversed the onus and asked itself if DB had persuaded them that he was not guilty. Nor can that conclusion be inferred from the fact that the jury received evidence, derived from body cameras worn by police, that when DB was first questioned by police he was asked about the Count 3 incident only.

43. DB also referred in written submissions on the appeal to the time taken for the trial to be conducted, relative to the estimate initially provided to the jury about the likely duration. This was apparently in aid of a submission that the jury must be taken to have engaged in some form of illegitimate compromise as between different counts. The point was only faintly pressed at the hearing of the appeal, if it was pressed at all. Ultimately, no relevant inference can be drawn in this matter from the time taken for the trial to conclude, relative to the initial estimate.

Ground 2 - miscarriage of justice

Particular (i)(a) - directions on evidence of uncharged conduct

44. The applicant has referred to the various subparagraphs of appeal ground 1 as particulars of miscarriage of justice. Particular (i)(a) concerns the trial judge's directions in relation to one aspect of the evidence of uncharged conduct that was led by the Crown for context purposes. The Crown opened that evidence would be adduced from LC of the two uncharged incidents of sexual touching summarised at [10] above. The Crown also opened on more general evidence of uncharged sexual contact. The Crown said the following with respect to the events at Jubilee Park in Blackheath when the accused was between 13 and 15 years old and LC was between 9 and 11:

I expect that [LC] will tell you that by this stage he was used to things being done to him by the accused because it had happened quite regularly whenever they had spent time together and he has quite difficulty in recalling specific incidents as a result of how it happened.

45. The Crown opening was followed by defence counsel's brief opening statement. The trial judge then gave the jury some preliminary instructions and warnings, which included the following with reference to what the Crown had said about evidence that might be led "of other alleged sexual conduct or conduct of a sexual nature that the complainant asserts occurred with the accused":

The point I want to make at this stage is the evidence is likely to be placed before you, only to answer questions that might otherwise arise in your mind about the particular allegations and the charges on the indictment, and so evidence can be led by the Crown of other acts of a sexual nature between the accused and the complainant, so as to place the particular charges into context.

46. When the Crown had led from LC evidence of the three counts on the indictment and of the two specific uncharged acts, the Crown asked the following questions in an endeavour to elicit general evidence about other uncharged sexual conduct:

Q. Apart from the incidents that you've told us … were there any other times when the accused dealt with you in a sexual way?

A. I believe there are other times, but I-

47. The answer was stopped by an objection of defence counsel that the witness would be speculating about what he believed.

48. The questioning then continued:

Q. So the question was, were there any other times, can you remember any specific times?

A. I can't recall any other times.

49. The Crown's next question was objected to and, instead, her Honour elicited an answer as follows:

Q. Do you have any memory, other than the times that you've told the members of the jury, of any other event?

A. I have no specific other memories.

50. The Crown made one further attempt, as follows:

Q. When you say, "specific other memories", what do you mean by that?

A. [STRIKEOUT BEGINS] There are times where [DB] stayed over and he sexually abused me and I have repressed some of those memories and I know--[STRIKEOUT ENDS]

51. Defence counsel interrupted the answer with an objection and the trial judge ruled as follows:

HER HONOUR: … No, I won't allow that. Members [of] the jury I'm going to strike the answer; so please disregard that answer.

52. With that answer struck out, the only direct evidence from LC that he had been sexually assaulted by the applicant during his childhood on occasions beyond the three charged instances and the two specific uncharged events, was as follows.

53. First, in cross examination it was adduced from LC that on 25 July 2020 he spoke to a police officer whose notes, as follows, accurately recorded what LC said at that time:

2002 to 2003 the person of interest would play wrestling, masturbate together, oral penetration, watch porn together, tried anal … Person of interest would stay over at victim's house, in his bedroom, [address of LC's family home at Chatswood] … It happened at other locations, Blue Mountains and Newtown … I didn't know what I was doing, I was so young.

54. LC agreed in cross examination that in reporting those matters he was referring to his experiences with the applicant, to whom the police officer referred as the "person of interest". In a further answer the applicant said:

… what I told the policeman about [the applicant] sexually assaulting me was true.

55. Secondly, when cross-examined about the history he gave to a psychiatrist in August 2020, LC gave the following answer:

Q. Well what did you mean when you told the psychiatrist she'd done a bad job [referring to LC's mother]?

A. At the time, I blamed my mother because it was her friend's son that had sexually abused me throughout my childhood.

56. Finally, LC responded to defence counsel's Browne v Dunn question, towards the conclusion of cross examination, as follows:

Q. Nothing of any sexual nature ever occurred between you and the accused, I suggest to you?

A. It did. Multiple times. Over quite a long period.

57. Although LC gave only the above direct evidence of a course of sexual assaults by the applicant that was more extensive than the three counts and the two uncharged incidents, the Crown also adduced without objection evidence of several out-of-court complaints by LC concerning the wider course of conduct. That evidence is summarised at [11] above. The applicant tendered a hospital record of the history given by LC to the psychiatrist who saw him in August 2020. The record contained the following:

Additional stressor is recent disclosure to family members of experiencing sexual abuse over a 10 year period perpetrated by his older sister's male friend.

58. In the trial judge's direction on the subject, the highlighted portions of the following passages are now said to have given rise to a miscarriage of justice (emphasis added):

In addition to the evidence led by the Crown specifically on the counts on the indictment you have also heard evidence from [LC] of other acts that he asserts occurred when he was with [the applicant]. I shall again, for the sake of convenience, refer to this evidence as evidence of other acts.

[Her Honour summarised LC's evidence of the two specific uncharged acts that the Crown relied upon as context.]

Other than these two acts alleged by [LC], [LC] also gave evidence just in general terms. He said things like that the accused has sexually abused him as a child over a ten-year period when he, [LC], was aged between four and 14. We all appreciate of course that is a broad statement, but [LC] was not able to provide any further detail from his memory about any specific incident.

59. The applicant takes no exception to the balance of her Honour's direction about the context evidence, in which the trial judge repeated what she had said at the very beginning of the trial. Her Honour continued her direction by warning the jury not to treat the evidence of uncharged sexual acts as establishing a tendency and not to substitute evidence of the uncharged acts for evidence of the specific acts alleged on the indictment. Her Honour said this (emphasis added):

The Crown is not charging a course of misconduct by the accused but has charged particular allegations arising in what the complainant says was somewhat of a course of conduct towards him.

60. The applicant submits that it was inaccurate to tell the jury that LC "gave evidence just in general terms" that he was abused as a child over the course of ten years between the ages of four and 14. Contrary to the applicant's submission, LC did give evidence in general terms of a continuous course of sexual abuse, as referred to at [53]-[56] above.

61. The applicant's written submissions include the following:

[It] appears from the closing addresses and the summing up that the prosecutor, defence counsel and the trial judge each took from the trial that that (sic) the complainant himself had given evidence of having been sexually abused by the applicant on a regular basis between the ages of 4-14 beyond the five specific incidents. This misapprehended the evidence.

62. There was no misapprehension. There was a significant volume of evidence of LC's complaints to family and friends about a ten-year course of persistent sexual abuse by the applicant but there was also evidence given directly by LC to the jury to the same effect. Some of the more telling answers in the latter category were adduced from LC in cross examination. The applicant's submission implicitly acknowledges that all participants in the trial, notably including defence counsel, saw no need for the trial judge in summing up to segregate LC's direct evidence about the general pattern of abuse or to distinguish it from his and other witnesses' evidence of out-of-court representations on the subject. The absence of any request for a redirection confirms that no risk of miscarriage of justice was perceived by defence counsel, who was in the best position to assess the matter. No such risk should now be perceived by this Court.

63. Particular (i)(a) of ground 2 is of no substance.

Particular (i)(b) - directions on evidence of complainant's sister re Count 3

64. In circumstances explained at [12]-[14] above, the evidence of the complainant's sister, HC, was given by reading her police statement to the jury. HC gave the addresses of a series of houses in which LC and herself had resided with their mother during the childhood. The third address she gave was in Chatswood, followed by a home on Eastern Valley Way, Willoughby. HC said that she left home at the age of 17. HC said that when the applicant was about 18 (at which time, she also was 18) her mother was housesitting a property in Newtown. On the basis of other evidence in the trial, it was open to the jury to understand that this was a reference to the house in Enmore where LC alleged that the offence in Count 3 was committed.

65. HC's statement included the following:

I would describe [the applicant] as always around our house because of our mum, because our [mums] were best friends.

66. In context, HC's reference to "our house" clearly meant each of the series of houses in which the family resided. She said that she recalled LC and the applicant "playing together on a regular basis".

67. HC's evidence included that the applicant and LC spent time together at the Willoughby house where the offence in Count 2 was alleged to have been committed and that they were also present together at the Enmore house, the alleged scene of Count 3, on one occasion. The relevant parts of her statement are as follows:

[The applicant] would visit us in Willoughby and stay over in [LC's] bedroom, they would spend a lot of time together in the bedroom by themselves. …

I do [not] recall any observations of [LC] or [the applicant] that at the time in my childhood would of (sic) made me think anything was going on between [LC] and [the applicant]. The last time I saw [the applicant] was at Kate Gleeson's house in Newtown. Mary [the mother of HC and LC] was house sitting and [LC] and [the applicant] stayed there also. I remember coming to meet Mary at Newtown and I slept on the couch at the house. [LC] and [the applicant] were sharing the front room, this was around 2011. [LC] was about 13 years old and [the applicant] about 18 years old. They were sharing the front bedroom and that's why I was on the couch. I didn't see the sleeping arrangement in the bedroom that the boys shared but I do know there was a double bed in that room.

68. At the end of the first day of summing up, the jury sent a note requesting, amongst other things, the statement of HC. During the continuation of the summing up on the second day her Honour summarised the defence case as to why the evidence of LC should not be accepted and then said the following (emphasis added):

Of course, the Crown's position was that [LC's] memory is clear in relation to each of the matters on the indictment and that his account was warts and all, members of the jury. That you would take into account his age at the time of the alleged events and the delay between coming to court and giving evidence in relation to the matters and that would, it was submitted, impact on his capacity to remember what are, in the Crown's submission, may very well prove to be nothing but peripheral details.

That there is some support in relation to the Crown case certainly in relation to count 3. The evidence of [HC] was a matter which was given some emphasis. The submission made on behalf of the Crown, that was that his evidence had hallmarks of truth, it was not prone to exaggeration, and he was not somebody who purported to have a crystal-clear recollection.

The issue in relation to this trial is in fact your conclusion as to what you make of the evidence of the complainant [LC].

69. In particular (i)(b) of ground 2 the applicant submits that the trial judge's statements in that passage "clearly conveyed her own impression that there was support for the complainant's accounts in relation to Count 3 by reason of the sister's evidence, but not in relation to other counts". That submission must be rejected. The repeated use of the word "that" shows that her Honour was listing a series of points urged by the Crown. Her Honour identified the proposition "That there is some support in relation to the Crown case certainly in relation to count 3" as a Crown argument, not as her own opinion.

70. Immediately following the above passage, her Honour next directed the jury to exercise caution before convicting on any count having regard to the dependence of the Crown case "on you accepting the reliability of the evidence of a single witness", namely, LC. The jury were instructed that unless they were satisfied beyond reasonable doubt that LC was both an honest and accurate witness in the account he had given with respect to any charge, they could not find the applicant guilty of that charge. Her Honour continued as follows (emphasis added):

In considering the complainant and whether his evidence alone does satisfy you of the accused's guilt in relation to any count on the indictment you should of course look to see if there is any support for what he said. I have spoken to you and indeed your question asks about the evidence of [HC]. That is in relation to count 3.

71. The words emphasised merely referred, again, to the argument of the Crown that her Honour had already identified, concerning support for the prosecution case on Count 3 derived from HC's evidence that, at the Enmore house in 2011, she had observed LC and the applicant sharing the front room, which contained a double bed. It was open to the jury to regard that evidence as significant because it supported LC's assertion in his police statement that the offence in Count 3 occurred when the applicant slept over at the Enmore house. The applicant gave evidence that while LC was residing in Enmore the two of them went to the cricket together but after the game the applicant was driven by his uncle to his grandmother's house and did not stay over with LC.

72. The applicant asserts that the above quoted passages from the summing up "misrepresented the extent of support provided by the sister's evidence … and overstated the significance of that support in any event (being of a circumstantial nature only)". That submission must be rejected. By identifying the Crown's argument, as her Honour was bound to do, she made no representation about the extent of the support provided by HC's evidence. The fact that HC's corroboration was limited to the issue of presence and opportunity was self-evident. No risk of miscarriage of justice arose from the judge not making specific mention of it.

73. There is no substance in particular (i)(b).

Particular (i)(c) - directions in relation to LC's mental health

74. In closing address defence counsel made the following submission about LC's mental state when he presented at the psychiatric clinic with anxiety and depression in August 2020:

[He] "was in a very, very bad way and had been in a bad way for some time for a number of reasons". It would be very wrong to use evidence of him being in a bad psychologic state to say, "Well that is because of what happened, what he says has happened" or to say, "That proves something" because it doesn't prove anything. …

You've got no psychiatric evidence as to reasons for him being - only the factual scenario, this toxic relationship with a girlfriend, the resentment with the mother, 30 cones a day, experimenting with other drugs to the extent of ketamine the week before, Benzodiazepines - that's downers rather than uppers - and you might think a pretty good whack at alcohol from time to time as well and use of alcohol coinciding with revelation the early disclosures that weren't as early as he had you believe if you listen to the witnesses - 2019 and 2020.

75. The Crown requested the trial judge to correct those submissions in the course of the summing up. It was submitted that there was "psychiatric evidence" in that the clinical notes recorded recent disclosure of past sexual abuse as a proximate stressor in LC's life. The Crown misunderstood the point of defence counsel's submission to the jury, which was directed to the absence of expert psychiatric opinion about causation and was not rebutted by pointing to a clinician's note of the history he or she received from the patient. Her Honour did not accede to the Crown's request for a specific correction but said that she would direct the jury not to speculate.

76. In due course, in the course of summarising the defence arguments, the trial judge directed the jury as follows (numbering added for ease of reference):

77. [It is submitted that] the Crown case is not of a quality sufficient to establish the accused's guilt on any count to your satisfaction. Emphasis was given that he is a troubled young man with a cannabis addiction who used drugs, abused alcohol, and had just come out of a relationship which he asserted was toxic and for which he had been arrested by police. Emphasis was given to a submission that he was deeply resentful of his mother's parenting skills and struggling with self-help. The suggestion is that his allegations grew the more people to whom he spoke and that his motivations for his false allegations included a desire to obtain sympathy following his arrest.

78. Ms McSpedden in her address urged you not to reason that the root of his issues lay in any childhood trauma occasioned by the accused, rather the emphasis on these issues is such that he is an unreliable witness who simply cannot bear the characterisation of a witness upon whom you would be satisfied of the truth of what he has said beyond reasonable doubt.

79. Members of the jury, in relation to this matter I have spoken to you about inferences and directed you not to speculate, that you must act on the evidence and not guesswork. Here, undoubtedly, to convict you must accept [LC] as a witness of the truth. The Crown acknowledged that at the beginning of the trial and indeed at the commencement of her closing address.

80. Ms McSpedden in her address cautioned you against any reasoning process that involves a process of inferential reasoning that the complainant is troubled by reason of trauma associated with the offences the subject of this trial.

81. Her Honour then proceeded to give the customary direction about drawing of inferences and the need for caution to ensure that any inference drawn from circumstances is justifiable. The complaint now made is that the above direction implied that the jury could infer that the complainant was troubled by reason of trauma associated with the alleged offences, whereas in the absence of expert psychiatric opinion such an inference could not be drawn.

Particular (ii) - defence counsel's failure to object to HC's statement

80. The applicant asserts under particular (ii) that defence counsel who appeared for him at the trial should not have consented to the statement of HC being read into evidence, because confirmation that the applicant stayed overnight at the Enmore house sharing a room with LC provided corroboration for LC's evidence of Count 3. It is submitted that defence counsel would have known that the applicant's case on the charge was that he did not stay over at Enmore so that the alleged indecent assault could not have been committed. The applicant submits that counsel's failure to take objection constituted a material irregularity amounting to a miscarriage of justice: TWKJ v The Queen (2002) 212 CLR 124; [2002] HCA 46. Whether a material irregularity occurred on this basis must be considered with due regard for the wide discretion that counsel has to conduct the trial as he or she thinks best and recognising that ordinarily the client is bound by counsel's decisions: TWKJ v The Queen at [79] (McHugh J); Nudd v The Queen (2006) 35 SASR 356; [2006] HCA 9 at [24] (Gummow and Hayne JJ).

81. The applicant argued this point on the assumption that if counsel had objected to the statement then the evidence of HC would have been kept out. That is not necessarily so, as the circumstances underpinning her medical certificate do not appear to have been acute and she may have been prevailed upon to give oral evidence if an objection to the use of her statement had been successful. However, accepting the applicant's assumption, it cannot be said that reception of the statement in evidence gave rise to a material irregularity. There was a sound rational basis for counsel's decision.

82. The potential detriment to the applicant's case was that the jury might accept HC's evidence that the applicant shared a room with LC for a night at the Enmore house. That evidence would be unchallenged when adduced in statement form. Although HC's evidence in that respect would support the Crown's case on opportunity, it would remain open to the applicant to endeavour to raise a reasonable doubt about what took place in the room.

83. The potential advantage to the applicant of having HC's statement read was that she had observed LC and the applicant in each other's company on many occasions throughout the years in which sexual abuse was said to have taken place, yet she had never seen any indication of anything sexual in the applicant's conduct towards LC. The following are relevant extracts from the statement:

I would describe [the applicant] as always around our house because of our mum, because our [mums] were best friends. I would hang out with [the applicant] as kids because we were around the same age. …

I do not recall [the applicant's] actions as a child to be sexual of nature, nor were his jokes sexual based. …

I recall the boys playing together on a regular basis but I do not remember there to be any play of a sexual nature that I saw. […] When [the applicant] left after playing with [LC] during our childhood, I do not recall there to be any large mood swings or sadness from [LC] as if he was upset. …

I do not remember seeing any mood change or recall seeing anything with [LC] during [LC's and HC's] stays [at the applicant's home in Blackheath, around 2006].

… I do [not] recall any observations of [LC or the applicant] that at the time in my childhood, would of made me think anything was going on between [LC and the applicant]. …

84. None of the above favourable evidence would be before the jury unless they also had the part of the statement that placed the applicant in the Enmore house at the time when the offence alleged in Count 3 was alleged to have been committed. Balancing the considerations for and against, it was a sound professional judgment for counsel to consent to the reading of the statement. No miscarriage of justice resulted.

85. The applicant relied upon this Court's decision in Holmes v R [2024] NSWCCA 233. The circumstances there were not comparable. The failure to object that gave rise to a miscarriage of justice in that case concerned evidence that had no probative utility for the defence case and was highly prejudicial. A ground of appeal of this nature is highly fact dependent.

86. Particular (ii) is not sustained.

Particular (iii) - failure of counsel to address on HC's evidence about Count 3

87. Particular (iii) concerns the fact that defence counsel made no submission in closing address to try to diminish the significance of HC's evidence that the applicant stayed overnight at the Enmore house. In submissions to this Court, the applicant's counsel was unable to formulate any argument that should have been made to the jury that would so indisputably have been of benefit to the applicant's case that the Court could regard the failure to put it as a material irregularity. The reality is that having made the forensic decision to let HC's statement into evidence for the benefits it offered, and therefore having been unable to cross examine HC upon her evidence about the applicant being at the Enmore house, it was within counsel's reasonable judgment to say nothing to the jury about the latter and to attack Count 3 at other points – which she did.

88. Particular (iii) must also be rejected. No miscarriage of justice has been shown under any part of ground 2.

89. The appropriate orders are:

90. Leave to appeal is granted.

91. Appeal dismissed.

**********

Amendments

25 March 2026

"SC" added to reference to her Honour Judge Girdham in the "Decision under appeal" section of the coversheet.

30 March 2026

Amendment to [68]