GL v Regina

Court of Criminal Appeal (NSW)|2014-03-26|Before: Hoeben CJ, Fullerton J, Adamson J

Judgment 1HOEBEN CJ at CL: The appellant was convicted by a jury of 11 on two counts of aggravated sexual assault (Crimes Act 1900, s 61J) and two counts of indecent assault of a child under 16 years (Crimes Act 1900, s 61M(2)). 2The trial commenced before Judge Maiden SC in the Newcastle District Court on 27 May 2013. His Honour summed up on 3 June 2013 and the jury returned its verdicts of guilty to counts 1, 3, 5 and 6 on the indictment on 5 June 2013. Counts 2 and 4 were alternative counts and no verdict was returned in respect of them. 3The appellant was sentenced on 3 September 2013 to an overall sentence of 3 years with a non-parole period of 21 months. There is no application for leave to appeal against sentence. The appellant was granted bail on 5 December 2013 by this Court to pursue his appeal against conviction. 4The counts on the indictment in respect of which the appellant was convicted were: Count 1 - Between 11 April 2011 and 14 April 2011 at Fishing Point in the State of NSW GL did have sexual intercourse with JKB without her consent, knowing that she was not consenting and at the time of the offence JKB was under the age of 16 years, namely 12 years. Count 3 - Between 11 April 2011 and 14 April 2011 at Fishing Point in the State of NSW GL did have did have sexual intercourse with JKB without her consent, knowing that she was not consenting and at the time of the offence JKB was under the age of 16 years, namely 12 years. Count 5 - Between 11 April 2011 and 14 April 2011 at Fishing Point in the State of NSW GL did assault JKB and at the time of the assault, committed an act of indecency on JKB, she then being under the age of 16 years, namely 12 years. Count 6 - Between 18 January 2012 and 22 January 2012 at Fishing Point in the State of NSW GL did assault JKB and at the time of the assault, committed an act of indecency on JKB, she then being under the age of 16 years, namely 13 years. 5The appellant relies upon seven grounds of appeal as follows: Ground 1 - The summing up of the trial judge was deficient in that the defence case was not put to the jury adequately or in any reasonably comprehensible form. Ground 2 - The trial judge failed to direct an acquittal on Counts 1 to 5 at the conclusion of the Crown case. Ground 3 - The trial judge misdirected the jury in the following terms: "Having given consideration to the evidence which has been called on behalf of the accused and which you must take into consideration if you do not positively accept the evidence of the complainant and her brother, then you are put in the position of having to consider each of those witnesses." Ground 4 - The summing up of the trial judge was confusing and without proper structure. Ground 5 - The trial judge failed to discharge the entire jury upon the discharge of one of their number and failed to give any direction with a view to minimising the substantial risk of a miscarriage of justice. Ground 6 - The trial judge's warning to the jury required by sections 294B(7) and 306X of the Criminal Procedure Act 1986 was inadequate. Ground 7 - In all the circumstances, the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence and have been productive of a miscarriage of justice.

Factual background 6The complainant was born in 1998 and at the time of the first alleged offences (Counts 1 - 5) was 12 years old. The appellant was a close family friend and the godfather of the complainant. He had known the complainant's father for over 40 years. He knew the complainant and her brothers since they were born. The appellant and his wife, CL, from time to time looked after the complainant and her brothers during school holidays while their parents worked. 7On 26 June 2012 the complainant disclosed to her mother, KB, that the appellant had sexually assaulted her on at least four occasions by touching her breasts and her vagina with his hands and forcing her to touch his penis with her hands. She told her mother that she did not want to go back to her godparents' home to visit in the holidays anymore. She told how he touched her inappropriately and what had happened on the first occasion. 8The complainant was spoken to by an officer from Community Services on 12 July 2012 and participated in an interview which was visually recorded. During the interview, the complainant disclosed that she had immediately complained about the appellant's actions to her younger brother, NB. She said she was staying at the appellant's house during the holidays when it happened and that they had stayed there for three days at the start of the year before (i.e. January 2011). 9The appellant and his wife said that no such visit took place in January 2011 as they were visiting family in Melbourne. The complainant's mother's employment leave records disclosed that from 4 January until Friday 21 January 2011, she was on recreation leave. The complainant's mother said that there was no need for the children to be cared for by the appellant and his wife at that time. She said the children sometimes still visited the appellant and his wife when she was on leave. She was unable to recall if they did or did not visit in January 2011. 10After the Community Services Officer finished interviewing the complainant, she interviewed her brother, NB. This interview was also visually recorded. NB initially said that he thought that they had visited the appellant's home during the July or October holidays in 2011. NB said that during that visit, the complainant told him that the appellant was feeling her breast and vagina. He said he spoke to the complainant for about 5 minutes and then she went to have a shower. 11On 6 August 2012 Detective Senior Constable Glen Morrissey, the officer in charge of the investigation, applied for and obtained a surveillance device warrant. On 8 August 2012 two telephone conversations were recorded. The complainant and her mother were at the police station when the telephone calls were made. The first call was to the appellant's mobile phone number. There was no answer. At 12.23pm another call was made to the appellant's landline. The appellant answered the telephone and spoke to the complainant for a few minutes. The conversation concluded at 12.28pm. 12After receiving this telephone call, the appellant spoke to his wife about it and then attempted to contact the complainant's father, MB, to speak to him about the allegations that the complainant had just made. He telephoned him at his workplace and his business partner advised the appellant that MB was out of the office and that he did not know where he was. The appellant then rang his mobile telephone. As his call was not answered, it went to a message bank. He left a message for MB to call him. MB did not return the call. 13Shortly after the appellant telephoned MB's mobile number, the second intercepted telephone call was made when at 12.53pm the complainant's mother, KB, telephoned the appellant on his landline and spoke to him. She told the appellant that her husband had left his mobile phone at home. She had noticed his missed call and was calling him back. She spoke to the appellant for several minutes. Her conversation with the appellant concluded at 1.08pm. 14During both the intercepted telephone calls, the appellant denied that he had done anything wrong and made no admissions. 15About half an hour later, at about 1.30pm on 8 August 2012, police officers attended the appellant's home and arrested him. He was conveyed to the police station and placed into custody. The appellant agreed to participate in an interview with police and was interviewed electronically. During the interview, the appellant was questioned on the basis that the first occasion of sexual touching took place in January 2011, the month the complainant nominated when interviewed by police. He was also questioned about having sexually touched the complainant on another occasion in the January holidays of 2012, this being the last occasion any allegation of sexual touching was made by the complainant. When the police concluded their interview with the appellant on 8 August 2012, they charged him on the basis that the events described in what became the alternate counts 1 - 5 on the indictment happened in April 2011, despite the fact that Detective Senior Constable Morrissey, who conducted the interview, repeatedly put to the appellant that these events occurred in January 2011. He did not at any stage during the interview and before the charging process put to the appellant the different dates or obtain the appellant's version of events in relation to 13 and 14 April 2011 in any subsequent interview. 16On 20 August 2012 a second interview with NB was carried out by the police. This interview was visually recorded. During that interview, NB told them about some images he had found on a toy Nintendo device. NB said he had looked at some photographs that were recorded on this Nintendo. Those photographs bore the date 14 April 2011. He recalled taking the photos on that day. NB said that it was the night before he took the photos, 13 April, that the complainant told him about what the appellant had done to her. 17In the interview with the police, all of the allegations were denied by the appellant. During the trial, the appellant gave evidence and maintained his denial to the allegations.

The Crown Case 18The Crown case depended almost entirely upon the complainant's evidence. Her record of interview with Community Services was played in accordance with the provisions of Part 6 of the Criminal Procedure Act. She was also asked to identify some photographs and the intercepted telephone call with the appellant. Her evidence in relation to count 1 was as follows. She was at the appellant's residence and was at the jetty fishing with him. It was not late, but was starting to get dark. The appellant told her brother to go and have a shower and he had left to do so. The appellant's wife was cooking. 19The appellant was sitting near her. She was wearing long pants and underwear, but had no shoes. He placed his right hand inside her underpants initially rubbing her vagina with his hand and then with "sort of one finger" and then with the whole hand started doing the same thing. He was rubbing her vagina as/like "through the crease". When he was rubbing her vagina, nothing was said. They sat in silence for a bit. She told him she was cold and wanted to go back up after about 10 minutes. They packed up the fishing rods and cleaned them to put them away underneath at the house. 20In relation to count 3, the complainant gave the following evidence. After the first incident, she and the appellant moved from the jetty to an area under the house, near the downstairs bathroom directly in front of the glass door. The appellant packed away some things and went to the toilet. He asked the complainant if he could "feel her boobs" and he cupped his hands around them on the outside of her clothes. 21He then asked her if he could look at her vagina. She asked him several times why and he said "I just want to check to see what it looks like". He said to her to "just pull your pants down a little bit, nothing's going to happen". She said to him "what if someone sees me?" He replied "no-one will see us". She took her pants down past her thigh level, just below her vagina. He pulled her pants down a little further so he could take a better look. 22He bent down and had a look before putting his finger inside. He "sort of opened it up a bit and ran his finger through it again". He commented to her that it was "nice and moist". He ran his hand through her vagina a couple of times and commented that it "was nice and developing well". 23The complainant said in relation to count 5 that on the same day while she was under the house the appellant asked her to touch his penis. She refused and he then took hold of her hand and attempted to put her hand on his exposed penis. The complainant said she did not look at it and turned away. The appellant asked what was wrong and she told him that she did not want to look at it. He told her not to tell anyone about this and said "we'll call it our special hug". 24The complainant did not know what was happening and was upset. She left the appellant downstairs. She walked away rapidly by herself, past her godmother, who was in the kitchen cooking, and went to her bedroom. Her brother was sitting on her bed. She started crying and told her brother what had happened. 25Count 6 concerned the last occasion that the complainant said that the appellant touched her vagina. This happened during the Christmas holidays in January 2012. It was under the appellant's house again. The complainant was walking past and the appellant told her to go under the house so no-one could see them. He said to her that he had not had any hugs from her this time. He then put his hands down her pants and "did it again", but she pushed him away and walked off. 26The cross-examination of the complainant was at some length. It was to the general effect that she had made up the events she had detailed in her interview, thus explaining her attribution of January 2011 as when they occurred and what were suggested as other internal inconsistencies in her evidence. It was put to her that the appellant had never touched her sexually. It was also suggested to her that at the time she claimed the appellant assaulted her she was having problems with her parents, at school and with her boyfriend. 27The evidence of NB, the complainant's brother, was important to the Crown case and critical evidence in proving the dates particularised in counts 1 - 5 as the dates upon which the Crown case depended. His evidence in chief was also given by the playing of the two recorded interviews. He said that he was fishing down at the jetty with the complainant and the appellant, when the appellant suggested that he go and have a shower. He left to do that and after his shower, played with his Nintendo toy for about 20 minutes. He recalled seeing his sister coming to the bedroom and that she was crying. She said that the appellant was feeling her "inappropriate bits". She said that the appellant was feeling her breast and vagina and that she did not like it and that the appellant knew that she did not like it. She told him that the appellant's hand was down her top, she tried to stop it with her hand but she could not stop him. NB told her that she should tell their parents but she said that she did not want to tell them and made him swear that he would not tell. He said he could not recall when it occurred but thought it might have been July or October, "a few terms ago". 28In his second interview, NB told the police that he had received the Nintendo device just before his tenth birthday (which was on 4 May 2010) and the time and date was set up by his mother. He said that the device's time mechanism had to be adjusted following daylight saving because it did not change automatically. Apart from changing the date in court on the Nintendo device at the request of defence counsel, NB said that he had never changed the date on the device. 29NB said that on 14 April 2011 (the date on which he said the pictures were taken), he recalled that the appellant and his wife were packing the car outside to take them home. He was inside with the complainant in the guest room when the photographs were taken. He said that the complainant had spoken to him the day before, on 13 April, about the appellant feeling her breast and vagina. 30The evidence of the complainant's mother was that she was on annual leave in January 2011, between 4 and 21 January. She was working between 11 and 14 April 2011 and between 18 and 21 January 2012. She could not recall if the children had stayed at the appellant's house during January 2011. She was unable to say whether the children stayed with the appellant during the school holidays in April 2011. She denied that she had ever told her son to come up with a date. She agreed that it was on 26 July 2012 following NB's first interview with Community Services that the date of 14 April 2011 became significant after the images from the Nintendo device were located by him, who showed them to her husband. 31The complainant's mother confirmed that the children were dropped off at the appellant's home in January 2012 and visited there for three days. She said that her two sons (but not the complainant) visited the appellant's home in July 2011 and stayed overnight but that they did not visit in October 2011. 32Detective Senior Constable Morrissey said that he had monitored the interview with the complainant by the Community Services Officer on 12 July 2012. On 16 July 2012 he had spoken to the complainant's mother and commenced taking a statement from her which was not completed on that day. On 26 July 2012 the complainant's mother returned to complete her statement and brought with her the Nintendo device. After viewing images on it, he took possession of the device and booked it as an exhibit. He also took possession of a diary that belonged to the complainant. On 20 August 2012 he conducted the second interview with the complainant's brother, NB. 33It was essential to the Crown case to establish that the conduct in counts 1, 3 and 5 occurred between 11 and 14 April 2011. On this issue the complainant's evidence in her recorded statements was somewhat tentative but strongly suggestive of these events having occurred in January 2011. In her evidence at trial she was more definite and she unequivocally stated that the events occurred in January 2011. It was the Crown case that the complainant's evidence as to the occurrence of these events was correct but that she was mistaken as to the date but that the evidence of complaint to her brother and, importantly, the dated photos on the Nintendo device that appointed the date. On the appeal, the Crown submitted that there was nothing in the evidence relied upon by the appellant at trial that precluded the possibility of the complainant and her brother having stayed with the appellant and his wife on 13 April and having left the following day. It was the Crown case that these events occurred in April 2011 between the dates specified in counts 1, 3 and 5 on the indictment.

The Defence Case 34The defence case consisted of identifying inconsistencies in the evidence of the complainant and between her evidence and that of her brother, but also a positive case to the effect that it was most unlikely that the children stayed at the appellant's home between 11 and 14 April 2011. 35The inconsistencies related to the complainant's description of what had happened such as when she said that he put his "hands" into her pants and then said that he put "his hand". NB said that the complainant told him that the appellant had placed his hand down her top, whereas that was not the evidence of the complainant. 36The complainant's brother agreed in cross-examination that he had been told by his parents that it was important for him to come up with a date when his sister reported to him what the appellant had done to her and that he had felt good that he had remembered something. He said his parents had said to him "good job". 37The appellant relied upon the contents of the telephone intercepts as being consistent with his innocence. He relied upon his good character in that he was aged 66, had never been in trouble with the law before and was well respected by friends and neighbours. His positive case was that he and his wife were in Melbourne in January 2011 and that in April 2011 the children did not visit or stay over. By reference to a diary which his wife kept and the evidence from other persons, it was the defence case that the appellant and his wife were busy doing other things between 11 and 14 April 2011, which was inconsistent with them having the children stay. A photographic expert gave evidence that the time (not the date) displayed on the photographs from the Nintendo device was incorrect in that it indicated that the photographs had been taken in the afternoon when the lighting indicated that they had been taken between 9 and 11am. 38It should be noted that the Crown did not challenge the assertion that none of the offences could have taken place in January 2011 and accepted that the time on the Nintendo device was incorrect. It was accepted by the parties that the Nintendo photographs were taken in the appellant's home. 39The appellant gave evidence that after his arrest and release on bail, his wife who had a habit of storing old calendars, produced those relating to the years 2011 and 2012. There were several entries in the 2011 diary relating to April. By reference to the 2011 calendar, he recalled that on 12 April he and his wife went with friends to Aberdeen. They were absent from the house for the whole of the day between 8am and 6pm. (The visit to Aberdeen on that day was confirmed by evidence from other persons.) 40Also by reference to the calendar, the appellant was able to say that on 14 April he had taken his mother (then aged 90) to a chiropodist's appointment. He recalled that on 14 April 2011 his wife and a neighbour had travelled to the Hunter Valley in his red sports car and had been away for the whole day. He could not remember what he did on 13 April but believed he spent the day pottering at home. After he was shown a receipt for a purchase at "Garden World", dated 13 April 2011, he remembered having attended there with his wife on that day. He denied that the complainant and her brother were at his home on 12, 13, 14 or at any other time in April 2011. 41By reference to the 2012 diary, the appellant said that the complainant, her brother NB and their younger brother had visited his home between 18 and 21 January 2012. He did not specifically recall any visit from the complainant's two brothers in July 2011 but he did not disagree with what their mother said about them visiting. He said that none of the children visited during October 2011. 42CL, the appellant's wife, gave evidence that the children, including the complainant, used to visit during school holidays and would usually stay two or three nights. They did not visit every holidays. She said that when the appellant received the telephone call from the complainant on 8 August 2012 she observed him to be surprised, confused and quite upset. After the call ended, he told her about the complainant's accusations. She said that after 48 years of marriage, these accusations were quite inconsistent with the man she knew. 43By reference to the 2011 calendar she said that during the week beginning 11 April 2011, the children did not visit or stay with them. She was confident in that recollection because she normally would not have had the children over if she and the appellant had arranged or planned appointments. According to the calendar, she had an appointment to give blood on Monday, 11 April and the next day she and the appellant, together with some friends, had travelled to Aberdeen for the day. The drive was two hours and if the children had been staying, it would not have been possible to take them. The car did not have enough seats for the children. 44CL was unable to recall her activities on 13 April but her memory was refreshed after she looked at the calendar. She confirmed that she had attended "Garden World" with the appellant. She also confirmed that on 14 April she had gone with a friend to the Hunter Valley. 45CL had a recollection that in July 2011 the complainant was playing regional netball, accompanied by her two brothers. Instead of being left in a motel room while their sister was playing netball, the two boys had stayed with CL and the appellant. She confirmed that none of the children stayed with them in October 2011 but that the children had stayed with them from 18 - 21 January 2012. 46She said that the evidence of NB that on 14 April she and her husband were outside packing the car to take the children home when the Nintendo photographs were taken was mistaken. This was because she was not at home that afternoon being in the Hunter Valley with a friend. (That friend gave evidence which confirmed that CL was in the Hunter Valley on that day.) 47Character evidence was given by a young neighbour, Ms H, who had grown up near the appellant, whom she used to call "uncle". She said that she had always felt comfortable with him and that he had never done anything inappropriate in her presence. She was aware of the allegations and regarded them as inconsistent with her knowledge of the appellant. She said that she would have no fears for her children, aged 16 and 13, being in his company. Similar evidence was given by two daughters of another neighbour aged 19 and 21. There was character evidence from friends and neighbours.

Ground 1 - The summing up of the trial judge was deficient in that the defence case was not put to the jury adequately or in any reasonably comprehensible form.

Ground 4 - The summing up of the trial judge was confusing and without proper structure. 48These grounds of appeal can be dealt with together since they raise the same point. Before doing so, it is necessary to set out some aspects of the summing up. The trial commenced on Monday, 27 May and the evidence concluded on Friday, 31 May. His Honour summed up on Monday, 3 June. 49It was common ground that his Honour did not, in terms, separately put the prosecution case and the defence case. When complaint was made by the appellant to that effect at the conclusion of the summing up, his Honour responded that rather than put the defence case as a discrete part of the summing up, he "put them into chapters". By this it is understood that his Honour intended to identify important topics and, having done so, to set out for the jury the competing evidence in relation to those topics. 50Following the complaint about the failure to put the defence case as a discrete part of the summing up, a number of other specific complaints were made which resulted in his Honour bringing the jury back and giving further directions on the following subjects:

That it was the complainant's mother who had adjusted the date on the Nintendo device, not NB.
A reminder that the evidence of NB as to what he was told by the complainant was different to what the complainant said happened in April.
A reminder that the appellant's responses to the telephone calls were consistent with innocence on his part.
A direction as to the use which could be made of character evidence.
A direction as to the meaning of "consent" in the counts.
A direction explaining how the jury should use the CCTV evidence.
An explanation of the alternative counts (counts 2 and 4).
A reminder that the verdict had to be unanimous. 51At approximately 12.55pm on 3 June 2013 the trial judge received a note from the jury asking whether they had to find that the offences in counts 1 - 5 took place between 11 April and 14 April 2011. His Honour responded: "... the elements of the charge that I explained to you as a matter of law are particularised, that is set out in the indictment and in order to find matters 1 to 5 inclusive, you would need to find the complaint, the event did happen between those two dates, 11 April 2011 and 14 April 2011. And you will remember that in respect of that matter there is a dispute whether or not the children were there or not." 52The summing up was brief, occupying some 14½ pages of transcript before the redirections were given. The sequence in which subjects were dealt with in the summing up is important to an understanding of the appellant's submissions in relation to it. 53His Honour set out the elements of the offences and the need for the jury to separately consider the individual counts. He gave directions as to the burden of proof and, in the course of those directions, referred to the appellant and his wife giving evidence and that character evidence was called. His Honour said: "In this trial the accused gave evidence and he called evidence on his behalf. Some of the witnesses gave evidence of what was called his good character. His wife CL gave evidence going to the fact in issue about where he was in respect of 13 April 2011. In considering that evidence you must take that evidence into account in considering all the other evidence in the case. And, having considered it, you consider it still bearing in mind that the Crown has to prove the elements of the offences beyond reasonable doubt." 54His Honour referred to the appellant's interview with the police and then gave the direction which is the subject of specific complaint in ground 3 (see [91] hereof). His Honour gave a standard direction as to the acceptance of the evidence of witnesses in whole or in part. His Honour gave a direction as to character evidence which it was accepted on the appeal was incomplete. 55His Honour gave a direction as to complaint evidence as follows: "The other matter I need to talk to you about is what we call complaint evidence. There has been evidence given by [the complainant's] brother, NB, of what she told him on occasions. ... If you find that the complaint was substantially made to the effect, that is of what the charges or the alternative charges are, then you can use the evidence of what was said in the complaint, that is what NB told us or in his interview, as some evidence that such assault did occur. You can use some evidence independent of the evidence given to you of that incident by [the complainant] in her interview. The law says that because of the circumstances in which a complaint was made a jury is entitled to use what was said in that complaint as evidence of the truth of what [the complainant] alleged against a person. You are entitled to find that the complaint was made at a time and in a manner that would indicate the allegation was reliable. That is the allegation is less likely to have been fabricated by [the complainant] and more likely to be accurate. It is a matter for you whether you draw that conclusion in this particular case and so treat the complaint as evidence of the alleged assault by the accused in addition to the evidence that has been given about it in this court room. If you do use it as some evidence of the assault, that is subject of the charge, then the weight you give it is a matter for you. Whether you do use the evidence of complaint in that way or not as the Crown asserts it may be for another purpose. The Crown contends that the fact that the complainant, that is [the complainant], raised the allegation against [the accused] at that time and in the manner that she told NB would lead you to accept the evidence by her. In other words, it makes her evidence more believable than if she had not raised the allegation as she did. It is for you to decide whether this complaint was made, but if you are satisfied that it was, then the question you should ask yourself is did [the complainant] act in a way you would expect her to act if she had been assaulted as she described. What is the sort of conduct that you would expect of a person who has been assaulted in that way. If you think that the complainant has done what you would expect someone in her position to do, that may support the Crown case because you may find there is a consistency between her conduct and the allegation that she made against [the accused]." 56His Honour reminded the jury of the ages of the complainant and her brother, both at the time they gave evidence and when the incidents were alleged to have occurred. He referred not only to truthfulness but to reliability. 57In relation to the evidence generally, his Honour said: "In doing that you look at all of the evidence. In respect of the April incident, you had CL going through her diaries and going through the documents, those exhibits you have before you in respect of matters that they say occurred on 12 and 14 April 2011. That would be indicative, you might think, that both children are wrong at that point of time. And in respect of that matter the Crown says well look you have the Nintendo DS machine, and you would accept what NB says that he had put the date into it and the date was never changed, and it was the correct date when it was played to the police when he was interviewed the first time in July of 2012. That is, he says that the date never changed and that 14 April was the day after the first incidents occurred. That is the competing cases for you to consider carefully." 58His Honour gave a "Murray" direction concerning the evidence of the complainant and referred to the Crown's submission that her evidence could, in part, be supported by that of NB. His Honour then said the following concerning the defence case: "Against that there was a defence case where the accused gave evidence and he said he cannot remember the April dates, but with his wife having located the diaries that she kept, and having backing documents of the trip up with her friend, who gave evidence, up to the Crown Plaza for lunch up in the Hunter Valley, that that would cause you to consider the reliability of both the complainant and NB's evidence, because that was most likely not to be a period where the children were with them for any period of time as they gave evidence about. That is a clear matter for you to have to consider as to how you deal with and use the respective evidence of those witnesses." 59His Honour set out a brief chronology and referred to the delay between the offences and the first formal complaint. His Honour said: "... you would be entitled to say that may have disadvantaged the accused; disadvantaged, that he would not have a memory of what occurred. And that was his evidence. He said without having his wife's assistance in finding the diaries, he would not have known what he was doing. In respect of the diaries, it is for you to consider those documents carefully, and the other documents that were produced by CL that the defence says support the accused's case, that is, that the children were not there in April." 60His Honour referred at some length to deficiencies in the police investigation and concluded with a reminder that the Crown at all times bore the onus of proving each of the elements of each charge beyond reasonable doubt. 61The appellant submitted that by not discretely setting out the defence case, his Honour ran the risk (which in fact occurred), that the summing up would be inadequate. He submitted that the summing up was deficient in instructing the jury as to its task and most particularly, in identifying the relevant issues and in putting the Crown and the defence cases. 62The appellant submitted that an objective bystander, having heard the summing up, might have been able to answer the question "what is he accused of?" but would not have been able to answer the question "what does he say about it?". The appellant submitted that this difficulty was exacerbated by the confused way in which directions of law and fact were intermingled. The appellant submitted that the deficiencies in the summing up were such that they were incapable of remedy by any redirection. 63The appellant made a number of specific criticisms of the summing up as follows: (a) There should have been a reference to specific criticisms made of the evidence of the complainant or at least a reminder that such criticisms had been made with a general description of their nature. (b) There should have been a reference to the defence submissions as to dates, to the complainant's insistence that the January dates were correct and to the evidence that this could not be so and to the initial uncertainty as to the dates and the final fixing of April. (c) There should have been a reference to the defence submissions as to the unreliability of the fixing of the April date in that it relied on the accuracy of a toy, that the time recorded on it was wrong, that pressure to identify a date had been placed on NB and to the unlikelihood that at a remove of 15 months, he would have been able to relate specific photographs to the date of complaint and the conflicting evidence on that issue. (d) There should have been a reference to the way in which the defence relied upon the evidence of activities in April in order to meet the allegations that the offences took place in April. (e) There should have been a specific reference to differences between the allegations of the complainant and the terms in which she was said to have complained to her brother, NB. 64The appellant accepted that it was not necessary for his Honour to set out every point relied upon by the defence but that the above matters were the minimum that should have been put to the jury in the summing up. 65The appellant submitted that the issue of the April dates was of particular importance. He complained that at times during the summing up his Honour seemed to suggest that the April dates might be assumed to be correct in that he referred to "the April matters", "the April incident" and again "the April matters" at SU 11.9, 13.6 and 14.2. The appellant submitted that such references ignored the defence attack on the April dates: that the appellant's and his wife's activities rendered it unlikely that the children were there in April at all, that the offences could have occurred on only one day in April, i.e. 13 April, and that even that date was questionable, and that the basis for particularising the April dates in the first five counts referable to the Nintendo device was unreliable. 66The appellant submitted that fundamental fairness required the trial judge to identify the issues and to put the defence case adequately and fairly to the jury. This did not require the judge to deal with every piece of evidence, or repeat every argument, but it required much more than was done. The appellant submitted that the result was a miscarriage of justice in that he lost a reasonable opportunity of being acquitted. 67The appellant relied upon the observations of the plurality (Gaudron ACJ, Gummow, Kirby and Hayne JJ) in RPS v Regina [2000] HCA 3; 199 CLR 620 at [41]: "41 ... The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence." 68The Crown responded that the trial was relatively short (6 days) and that the factual issues to be determined were not of great complexity. It submitted that the jury could not have been under any misapprehension as to the basis upon which the appellant had fought the trial. The Crown submitted that the appellant's evidence, both at trial and in the police interview, was to not only deny the allegations but to deny that the complainant was staying at his home during the period asserted in counts 1 - 5. The appellant's evidence was supported by documentation, his wife's evidence and the evidence of other witnesses as to the couple's activities at the relevant time. It would have been obvious (so the Crown submitted) that the appellant challenged the reliability of the date on the Nintendo device. 69The Crown accepted that the trial judge did not deal with the defence case in a discrete way, but submitted that this did not of itself give rise to a valid complaint. In that regard, the Crown relied upon AP v R [2013] NSWCCA 189 (Leeming JA with whom R A Hulme and Button JJ agreed) at [24] where his Honour said: "24 ... On no view of the law does the purpose of achieving a fair trial mandate that there be a separate section in the summing up identifying the elements of the accused's case. On occasion, and perhaps more frequently than not, the most effective way of the judge fairly putting the gravamen of the defence case to the jury is in the course of summarising the issues for their determination." 70The Crown submitted that it was the approach referred to in AP that his Honour had followed. The Crown submitted that a proper analysis of his Honour's summing up showed that his Honour had identified the important issues in the trial and had indicated the competing positions adopted by the parties. The Crown submitted that that was all that his Honour was required to do. The Crown also noted that his Honour had generally acceded to the defence requests when providing redirections to the jury. Having done so, trial counsel for the appellant expressly told his Honour that there was nothing further that he wished to be said to the jury. 71The Crown submitted that the failure of trial counsel for the appellant to articulate the matters now relied upon in the appeal, when given the opportunity to do so at trial, undermined the argument now advanced that the summing up was deficient in the ways complained of. 72The Crown submitted that the fact that his Honour did not deal specifically with the controversy concerning the April dates was not of significance. Because the trial was comparatively short, that issue would have been clear from the evidence and from the defence closing address, which occurred on the Friday before his Honour's summing up on the Monday. The Crown submitted that his Honour was not required to restate all the factual arguments relied upon by the defence, particularly when the evidence and the defence submissions would have been fresh in the minds of the jurors and when no redirection on that issue was sought. The Crown submitted that it would have been clear to the jury that the prosecution accepted that the complainant was mistaken when she nominated January 2011 as the date of counts 1 - 5. The Crown submitted that it was also clear how the dates in April had been arrived at and the appellant's criticism of that process. 73The Crown relied upon the terms of rule 4 and submitted that leave should only be granted where an irregularity had occurred which was such a departure from the essential requirements of the law that it went to the root of the proceedings. It submitted that unless there was a convincing reason why the additional matters raised in the appeal were not raised at the trial, and unless the possibility of real injustice arose, the appellant should be held to what he did at trial (R v Germakian [2007] NSWCCA 373; 70 NSWLR 467 Giles JA, (Hulme and Hislop JJ agreeing) at [13]). The Crown submitted that no explanation had been offered as to why counsel who appeared at trial did not raise the additional matters now relied upon in the appeal.

Consideration 74I have concluded that these grounds of appeal have been made out and that the defence case was not adequately put to the jury. 75Somewhat unusually, where allegations of a sexual nature are alleged by a child, the appellant was able to put forward a positive case to rebut that of the Crown. That case (essentially based on the lack of opportunity to assault the complainant in the circumstances she alleged) was relatively straightforward, but it depended very much upon the jury having a clear understanding of the issue of times and dates. It also depended upon the jury having a proper appreciation of the importance of the evidence of NB, which was the primary basis relied upon by the Crown for alleging that the offences in counts 1 - 5 took place in April 2011 given the complainant's evidence. 76In order to understand the appellant's positive case, it was necessary for it to be put forward as a coherent whole, not in a piecemeal way. It was necessary for the jury to understand that the evidence of the appellant, his wife and their witnesses, if accepted, made it improbable that the children were present at their home in April 2011 and that if they were, the only day on which the offences could have realistically occurred was 13 April. They needed also to fully appreciate the defence case that there were difficulties even with 13 April arising from the evidence of the appellant and his wife and some inconsistencies in the evidence of NB as to how long he and the complainant stayed with the appellant and his wife on that occasion. 77The summing up needed to make it clear that it was fundamental to the Crown case that the evidence of NB as to the date on the photographs in the Nintendo device be accepted, i.e. that he had received the device just before his tenth birthday and that the time and date were set up by his mother and that thereafter he had not changed it. By reference to the date on those photographs (14 April 2011), he was able to say that it was on the night before the photographs were taken that his sister had made a complaint to him about what the appellant had done. 78Because of the importance of this evidence, the jury needed to be reminded of the challenges which had been made to it. This included that the time on the photographs was acknowledged to be wrong, so that the time on the Nintendo device must have been altered at some time after NB's mother had set it up. It included that NB's evidence as to the appellant and his wife being outside packing the car at the time when the photographs were taken was incorrect (that was the day on which the appellant's wife had gone to the Hunter Valley). There were other challenges based on NB's age, the amount of time which had passed between when the photographs were taken and when his memory was jogged about taking them and the encouragement which he received from his father to remember the date. 79The appellant was also disadvantaged in not having the Crown case put in the summing up. Had his Honour done so, it would have been easier for the jury to appreciate what parts of the Crown case were important and to then appreciate the extent to which those parts had been specifically challenged by the positive case put forward by him. 80In summary, the fragmented and episodic way in which the appellant's case was dealt with in the summing up substantially reduced its coherence and gave rise to a real risk that those parts of it which challenged important aspects of the Crown case would be overlooked or not sufficiently understood by the jury. 81Although counsel for the appellant raised this issue at trial, he did not pursue it and was content with his Honour's explanation that he had put the defence case to the jury "into chapters". Accordingly, the appellant requires leave pursuant to r 4 of the Criminal Appeal Rules in order to rely upon these grounds of appeal. 82In FP v R [2012] NSWCCA 182 (R A Hulme J with whom McClellan CJ at CL and Schmidt J agreed) set out the principles which must be considered when leave is sought pursuant to r 4. In doing so, the Court referred to the observation of McHugh J in Papakosmos v R [1999] HCA 37; 196 CLR 297 at [72]: "72 There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant." 83In R v Germakian Giles JA, Hulme and Hislop JJ said at [10]: "10 The requirements of r 4 do not constitute some mere technicality which may simply be brushed aside." And at [13]: "13 ... leave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings - R v Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported, at 6-7) - followed in R v DH [2000] NSWCCA 360: "...unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level." 84The observations of this Court in Wong v R [2009] NSWCCA 101 (Campbell JA, with whom Grove and Howie JJ agreed) are applicable to this case. Here objection was taken by trial counsel to the failure by his Honour to put to the jury the defence case as a discrete part of the summing up, but that complaint was not followed up. In Wong v R Campbell JA said: "145 No explanation was provided, at the hearing of the appeal, as to why the objections were not taken at trial. Counsel for the appellant at the trial was an experienced criminal lawyer. Those two matters are ones that frequently count against leave being granted under Rule 4. Even so, the deficiency in the summing up in the present case is, in my view, one that is such a departure from the essential requirements of the law that it goes to the root of the proceedings. There are repeated statements of high authority that the defence case must be put to the jury, and the jury must be instructed about how the law applies to that case." The statements of high authority to which Campbell JA referred were RPS v R; R v Meher [2004] NSWCCA 355 at [76] and [82] - [86] and R v Condon (1995) 83 A Crim R 335 at 347-348. 85In my opinion, the summing up in this case was of the kind referred to by Campbell JA in Wong v R and as a result, leave should be granted under r 4. The deficiencies in the summing up were such as to go to the root of the proceedings and to have brought about a miscarriage of justice.

Ground 2 - The trial judge failed to direct an acquittal on Counts 1 to 5 at the conclusion of the Crown case. 86At the conclusion of the Crown case, the defence sought a directed verdict upon counts 1 - 5. After argument, that application was refused. 87The application was based on the following: (i) The discrepancy between the complainant's evidence that the offences in those counts had occurred in January 2011 and the Crown case that they occurred in April 2011. (ii) Discrepancies between what the complainant said she told NB by way of complaint and the evidence of NB as to what he had been told. The appellant submitted that the evidence of NB fell well short of establishing the sexual penetration required by counts 1 and 3. (iii) The unsatisfactory nature of the evidence of NB as to how he was able (somewhat belatedly) to date the time when the complainant first spoke to him about the offences.

Consideration 88This ground of appeal has not been made out. When a no case to answer submission is made, the question for the trial judge is whether the accused could lawfully be convicted on the evidence as it stood at that time (May v O'Sullivan [1955] HCA 38; 92 CLR 654 at 658). In determining whether to direct a verdict of acquittal, the trial judge does not evaluate the weight of the evidence but rather considers whether the evidence, at its highest, could support a guilty verdict. 89The discrepancy between the complainant's evidence as to the date of the offences and the Crown case was disclosed from the commencement of the trial. It was always the Crown case that the complainant was mistaken about the timing of the offences in counts 1 - 5, but was accurate in what she said the appellant did on that occasion. 90Applying the May v O'Sullivan principle, there was ample evidence from both the complainant and NB as to the allegation of indecent assault and as to the date of the assault. It was a matter for the jury to evaluate that evidence. Taking the Crown case at its highest, it was clearly open to the jury to conclude that the complainant and NB were talking about the same occasion in their evidence.

Ground 3 - The trial judge misdirected the jury in the following terms:

"Having given consideration to the evidence which has been called on behalf of the accused and which you must take into consideration if you do not positively accept the evidence [of] the complainant and her brother, then you are put in the position of having to consider each of those witnesses." 91The appellant accepted that leave under r 4 was required with respect to this ground. He submitted that it was simply missed at the time of trial. The appellant submitted that the misdirection was a serious one and as such r 4 should have no application.

Consideration 92If this direction was correctly transcribed, then it clearly was a misdirection. However, a direction such as this should not be looked at in isolation but the summing up should be considered as a whole. It is only then that the impugned sentence can be assessed in its context (R v Ward [2012] NSWCCA 46). 93There is a real possibility that there has been a transcription error. The sentence as it stands makes little sense and does not logically fit with that part of the summing up where it is found. Given the number of redirections sought at the end of the summing up, it would be surprising if this sentence had been correctly transcribed, that objection would not have been taken to it. 94In any event, in the context of the surrounding paragraphs, the impugned sentence would have had little effect on the jury and its effect would have been subsumed by the balance of the summing up. One thing which his Honour did make very clear in the summing up was that the jury had to take into account all of the evidence, both that of the Crown and of the defence, but that the Crown had to prove the elements of the offences beyond reasonable doubt. . 95The appellant has not demonstrated that an irregularity has occurred of such a nature as to involve a departure from the essential requirements of the law that goes to the root of the proceedings. This ground of appeal has not been made out.

Ground 5 - The trial judge failed to discharge the entire jury upon the discharge of one of their number and failed to give any direction with a view to minimising the substantial risk of a miscarriage of justice. 96In order to understand this ground, it is necessary to set out some further background. 97The jury retired to consider its verdict at 11.37am on Monday, 3 June 2013. Just before they did so, his Honour said: "The other thing finally is this: that in respect of your verdicts, plural, your verdict on each count needs to be unanimous at this stage. The law does permit me in certain circumstances to take what is called a majority verdict, but we have not reached that point. So I am going to ask you to consider your verdicts to get unanimity, and if at a certain point I am of the view that I should give you further directions, I will ask you to come back and I will give you further directions." 98Shortly before 1pm on 3 June, the jury indicated that it was having difficulty in reaching unanimous verdicts. In response to that note, at approximately 2pm his Honour said to the jury: "I am required to direct you at this stage that there has not been sufficient time for any further direction at this point of time, so I would ask you to go back to deal with the matters." 99At approximately 3.27pm the jury again advised that it was having difficulty reaching a unanimous verdict. His Honour responded: "There has still not been sufficient time for your deliberations so what I am going to suggest you do is that we, you have had a long day today with what has been going on, that we adjourn today until tomorrow. If you could come back and go straight into the room at 9.30am. I will not have you back in here, just go straight into the room. ... If you all just go there, the Sheriff's officer will tell me when you are all there and we will leave you with your deliberations." 100At 2pm on 4 June, the jury again sent out a note indicating that it was having difficulty in reaching a unanimous verdict. His Honour brought the jury back to court and gave a "Black direction" as follows: "Ladies and gentlemen I have received a note from you, timed at 2pm, it's been marked for identification 19. I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. The circumstances in which I may take a verdict which is not unanimous have not yet arisen and may not arise at all. You should understand that your verdict of guilty or not guilty must be unanimous. Experience has shown that juries can often agree if given more time to consider and discuss the issues but if, after calmly considering the evidence and listening to the opinions of other jurors you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has either sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was or may have been incorrect. That is not of course to suggest that you can consistently with your oath and/or your affirmation as a juror join in a verdict that you do not honestly and genuinely think is the correct one. I remind you that your verdict, whether it be guilty or not guilty, must be a unanimous one. All 12 of you must in the end agree upon that verdict. It may be that the particular paths which lead each of you to that unanimous decision are not the same but nevertheless your verdict of guilty or not guilty must be the verdict of you all. In other words provided that you all agree with that a particular verdict should be given it does not matter that you do not agree as to why that particular verdict should be given. Experience has shown that often juries are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason judges usually request jurors to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they are discharged. So in the light of what I have already said I ask you again to retire and consider your respective positions and see whether or not you can reach a verdict in this trial." 101It was agreed between the parties that the division amongst the jurors was substantial, i.e. it was not simply a matter of one juror adopting a position which was not shared by the other jurors. 102On the morning of 5 June 2013, one of the jurors applied to be discharged on the basis of serious illness in his family. That juror was kept away from the other members while his application was considered. When his Honour brought that application to the attention of counsel, junior counsel for the appellant, having taken instructions, advised the court as follows: "Yes your Honour, I can indicate to the court that I've had the opportunity to discuss the matter with Mr Rosser, my friend in counsel, and in having had the benefit of that discussion I have obtained some instructions from my client in relation to the note from that one member of the jury. Your Honour, my instructions are these, that we concede that it would be intolerable for that juror to continue and to abide by the oath that he gave last Monday week. That's clearly conceded. However your Honour, that then raises the issue of whether or not your Honour should continue the trial with a jury of 11. I'm instructed your Honour, to indicate that in the accused's submission it would not be appropriate at this point, bearing in mind that this jury as been out since 11.42 on Monday, for this jury to continue with 11. That it's my respectful submission that if that juror is to be discharged, then that whole jury should be discharged. That bearing in mind that they've been together for so long and they've been out in the jury room considering their verdict for well over -- ..." 103Further discussion then took place between his Honour and counsel. The juror was brought before the court and discharged. In the course of that discussion, it was agreed that s 53C of the Jury Act 1997 applied. 104That section provides: "53C (1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must: (a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors. (2) A court or coroner that discharges a jury under subsection (1) (a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912. (3) Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order." 105The Crown opposed the appellant's application. It did so on the basis that the discharge of the juror would not amount to a substantial miscarriage of justice and that any risk to that effect could be cured by a direction that the members of the jury be true to their oath. His Honour accepted the Crown's submission and in a brief judgment in relation to s 53C of the Jury Act said: "The court was minded to consider that the risk that the absented juror may have made a contribution in the discussions that may, in some way, that input not being there for any future deliberation, cause a risk. Having thought about it, the court is of the view that there is not a risk of miscarriage, subject to proper direction being given and I propose to give a further direction, subject to having further submission from Mr Churches and the Crown." 106The jury were brought into court at 10.25am on 5 June. His Honour then said: "Ladies and gentlemen, I have excused one of your number from deliberating on the jury in circumstances of most personal distress. I am going to ask you to continue on now as a jury of eleven. I wish to remind you of the lengthy direction that I gave you yesterday; I am not going to repeat that, except to say please consider what I said yesterday in coming to, at this stage, a unanimous decision. Thank you." 107The jury returned with a verdict of guilty to all charges at 11.32am. 108Against that background, the appellant submitted that s 53C of the Jury Act was unusual in that it required an affirmative opinion to be formed for either of the alternatives under pars (1)(a) or (b). He submitted that the jury had been out for almost two days and had indicated deep division. While conceding that there was no basis for the forming of the opinion required for the application of par (1)(a), the appellant submitted that the opinion which his Honour formed under par (1)(b) was predicated on him giving the direction which he had foreshadowed in his judgment and in discussions with counsel. His Honour's failure to give such a direction substantially invalidated any opinion which he might have formed under par (1)(b). 109The appellant submitted that even though it is impossible to know what dynamics were altered in the jury room by the discharge of one juror, his Honour obviously felt that a direction was required. None was given. The appellant submitted that in those circumstances the jury, which had shown itself for almost two days to be deeply divided, should have been discharged.

Consideration 110This ground of appeal has not been made out. As was acknowledged by the appellant, it was clear from the jury notes that they were deeply divided. There was no possibility that the juror who was discharged for proper cause had been a sole dissentient. Nor was there anything from which it could be inferred that the individual juror would have been unwilling to convict or determined to acquit. 111The observations of Adamson J (with whom McClellan CJ at CL and McDougall J agreed) in BG v R [2012] NSWCCA 139 are of assistance on this issue. In that case the issue of continuing with a jury after the discharge of a juror during deliberations had arisen. On this issue, her Honour said: "103 On my analysis of the cases, there are three categories of case in which the question arises whether the trial should continue with the remaining jurors when one juror has been discharged. These are: (1) Where there is no indication how the discharged juror would have voted; (2) Where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and (3) Where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal. 104 By and large, the effect of the authorities is that is not appropriate for the trial judge to order, after the discharge of a juror or jurors, that the trial continue with the remaining jurors if the case falls into either the second or the third categories. In such cases, there is a risk of a substantial miscarriage of justice: it is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit. 105 What occurs in a jury room is beyond the province of the Court. Such an inquiry has long been held to be impermissible: AK v Western Australia [2008] HCA 8; 232 CLR 438 at [99], per Heydon J. What distinguishes categories 2 and 3 from category 1 is that in those categories, something is known or can be inferred about what has transpired in the jury room such as to give rise to a substantial miscarriage of justice if the trial continues with the remaining jurors." 112This was a case, as recognised by the appellant, where there was no indication that rose above mere speculation as to how the discharged juror would have voted. This was not a case that fell within the category where it was not appropriate for the trial judge to order that the trial continue after the discharge of the juror. His Honour's decision to continue the trial with the remaining jurors was clearly within a proper exercise of his discretion. 113As in BG the evidence, addresses and summing up had all concluded. "The cost, in financial and personal terms of ordering a retrial was a relevant factor in the decision to continue the trial with fewer than twelve jurors: R v Metius [2009] QCA 3; (2009) 2 Qd R 442. There was no basis for considering that the discharge of one juror compromised the ability of the remaining jurors to carry out their function." (BG at [136]) 114The appellant's reliance upon his Honour's purported failure to give a direction following the discharge of the jury, despite expressing his intention to do so, is misconceived. All that his Honour indicated that he was proposing to do was to tell the jury that they should consider their oath and keep going with the lesser number. His Honour had given the jury a detailed Black direction the previous afternoon. When the remaining 11 jurors were brought into court, his Honour specifically referred them to the "lengthy direction" which he had given to them the previous afternoon. 115The Black direction the day before clearly highlighted the oath taken by each of the jurors. By referring back to the Black direction, which he had only recently given, his Honour was in fact giving the direction that he foreshadowed. 116In any event r 4 applies in relation to the asserted failure to direct. After his Honour had spoken to the jury concerning the discharged juror, the appellant's legal advisors did not ask for any redirection or assert that there had been a failure by his Honour to give a direction. Leave should not be granted to the appellant in relation to this ground.

Ground 6 - The trial judge's warning to the jury required by sections 294B(7) and 306X of the Criminal Procedure Act 1986 was inadequate. 117Those sections relevantly provide: "294B(7)In any proceedings in which evidence is given as referred to in subsection (3), the judge must: (a) inform the jury that it is standard procedure for complainants' evidence in such cases to be given by those means or use of those arrangements, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements." "306X If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way." 118The appellant submitted that even after his Honour had given a warning at the request of the Crown after the summing up, the warning actually given was inadequate. This was because it made no reference to the accused.

Consideration 119The direction given by his Honour was: "I am also to direct you that the use of CCTV, you were told at the time, and I need to repeat it, is that Parliament prescribes that the evidence is to be given in that way. It is a procedure and an Act of Parliament sets out how that evidence is given, and you should not in any way feel that, because evidence was given in that way, of the recording of the interview, that that should be adverse to the persons who were required to do that, that is, to the complainant or N ... Mr Rosser? ROSSER: Your Honour, the CCTV is adverse to no party in the proceedings. HIS HONOUR: Indeed. Sorry. Thank you. It is adverse to no-one. Indeed. That is the way we have got to do it, and that is what we have to do, so you do not even have to think about it. I think that is the way I should have said it. Thank you, Mr Rosser. Anything else? ROSSER: Not from my part." 120There is no doubt that the warnings required by the sections could have been better expressed. However, the thrust of the sections was largely communicated, i.e. that the giving of evidence in this way should be regarded as neutral and should not be regarded as favouring either side. Apart from the r 4 problem confronting the appellant, I am not satisfied that if an irregularity has occurred, it would have had any real effect on the outcome of the proceedings. I would not grant leave to the appellant to rely upon this ground. Even if leave were granted, the ground has not been made out.

Ground 7 - In all the circumstances, the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence and have been productive of a miscarriage of justice. 121The appellant identified a number of areas where he submitted that the quality of the complainant's evidence was unsatisfactory: (a) Her insistence that the first occasion (which she described as the worst) was in January 2011 was contradicted by other evidence at the trial. The appellant submitted that this was not a matter of a child seeking to remember details of a particular assault among a large number in the distant past. What was alleged were two discrete occasions, the first of which was 18 months prior to her complaint to her mother. (b) The complainant's evidence as to the tinting of the glass doors downstairs at the appellant's home. The appellant submitted that this was evidence capable of being characterised as a deliberate lie to explain the unlikelihood of the position under the house where he chose to assault her. (c) The conflict between the various versions involving the appellant's use of his hands, or a single hand. The appellant submitted that even allowing for the complainant's youth, it was difficult to see how such a variation in evidence could be accounted for. (d) The conflict in the complainant's evidence as to the surrounding circumstances of the last incident (count 6) with her calendar evidence and with her mother's evidence on the point, i.e. the complainant's evidence that she arrived home while mum and dad were cooking dinner and that the appellant had assaulted her sexually in the afternoon under the house, conflicted with the evidence of the complainant's mother, KB, and that of the appellant and his wife that the complainant and other children arrived home on the morning of the Saturday. 122The appellant accepted that those were matters upon which the jury was entitled to form its own view but submitted that they were of considerable importance when regard was had to the other more fundamental problems in the Crown case, such as proving to the satisfaction of the jury that the conduct the subject of counts 1 - 5 occurred between 11 and 14 April 2011 as alleged. 123The appellant submitted that the evidence as to the dating of the April allegations was inherently unreliable. It depended upon the reliability of the memory of NB as to the proximity and time of a complaint to him - in terms at odds with the complainant's allegations - by reference to dated photographs on his Nintendo device. The appellant noted that NB in his first interview dated the complaint to either July or October 2011. The appellant submitted that in view of his evidence as to the encouragement which he received from his father to "remember a date", it was not difficult to accept that he may well have felt under pressure to come up with a date in April. The appellant submitted that his assertion that 15 months after the event he was able to pinpoint particular photographs as having been taken the day after the complaint, had to be looked at with a great deal of caution. The appellant submitted that his unreliability was supported by the movement in NB's evidence between the offences having occurred between one and two days before his sister's complaint and by his confident but mistaken recollection that the visit extended from Monday to Wednesday. 124The appellant submitted that the Nintendo device was itself demonstrably inaccurate as to time, even assuming the date to be correct. The actual time (the morning) did not accord with NB's recollection of the activities taking place at the time. 125The appellant submitted that by contrast the evidence of the appellant, his wife and the other witnesses who gave evidence as to their family activities between 11 and 14 April 2011 was not inherently improbable and was supported by contemporaneous documents. The appellant submitted that the activities in which he and his wife engaged over those days, rendered it highly unlikely that the complainant and NB had stayed with them during that week. In addition, the appellant led unchallenged evidence as to his good character. 126The appellant submitted that in all the circumstances, the jury should have entertained a reasonable doubt and that it was not open to it to find beyond reasonable doubt that he was guilty of counts 1, 3, 5 and 6.

Consideration 127The obligation of this Court when deciding such a ground of appeal was restated by the majority (French CJ, Gummow and Kiefel JJ) in SKA v The Queen [2011] HCA 13; 243 CLR 400: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is 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". 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "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." Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."" 128In Sami Kurdi v R [2011] NSWCCA 179 Bathurst CJ said at [8] that in order to comply with M v The Queen: "... it is necessary for the Court to review the whole of the evidence available to the jury. That is not to say that a court of appeal conducts its own trial. The question which it must answer is whether it was open to the jury to reach the verdict which it in fact reached. Further, as was pointed out in M v The Queen, the Court must pay full regard to the primacy of the jury as the fact-finding tribunal and to the fact that the jury has had the benefit of having seen and heard the evidence." 129That last qualification is of particular importance in this case. Much would have depended upon the assessment made by the jury of the reliability of the complainant and NB. In that regard, the jury had the considerable advantage of seeing and hearing the witnesses which this Court does not have. 130In support of this ground, the appellant referred to what was relied upon at trial as "certain unsatisfactory aspects of the complainant's evidence". In doing so, the appellant appropriately acknowledged that those were matters on which the members of the jury were entitled to form their own view. This they clearly did. 131The appellant correctly identified that in order to prove that the offences the subject of counts 1 - 5 were committed in April 2011 relied upon by the Crown, the evidence of the complainant's brother, NB, was of fundamental importance. He was the person who gave evidence as to the proximity in time between the complaint which was made to him by the complainant and the taking of the photographs on his Nintendo device, which were date stamped 14 April 2011. His evidence was that the complainant's complaint about the appellant was made a day or two before the photographs were taken. He said that the photographs were taken on the last day that they were at the appellant's home. 132There was a substantial body of evidence which supported the reliability of NB's recollection. There was no issue that from time to time the appellant and his wife would help in minding the complainant and her brothers (including NB) for a couple of days on school holidays when both their parents were working. It did not occur every school holidays. There was no issue that the photographs that were on the Nintendo device (date stamped 14 April 2011) were taken at the appellant's residence. The Nintendo device was referred to by NB in his first interview before its significance was known. He said that he was playing with it before his sister made the complaint to him. 133The dates relied upon by the Crown, i.e. 11 - 14 April 2011 fell within the first week of the school holidays in April 2011. It is clear from the employment records that the complainant's mother and father were working on those dates. Accordingly, alternative arrangements needed to be made for the care of the children. That is all consistent with the complainant and NB being at the appellant's residence between those dates. 134There was the evidence of NB, to which reference has previously been made, that he received the Nintendo device as an early gift a few weeks before his tenth birthday (which was in May 2010) and that his mother did the "set up" of the Nintendo, which included fixing the date. NB gave evidence that he had never changed the date on the device. NB recognised that the time on the photograph was wrong. When referred to it, without prompting, he acknowledged "I didn't think it was that late". 135Some further support is provided by the fact that the April 2011 photographs on the Nintendo device appear in a temporal sequence, i.e. before those photographs there are photographs taken in 2010 and immediately after those photographs, there are photographs taken in July 2011. The cross-examination of NB made it clear that the error in the time at which the photographs were taken, which is acknowledged for the April 2011 photographs, was replicated in the 2010 photographs and in those taken in July 2011. NB explained how there could be an error with the time but not with the date in his second interview, i.e. that the time needed to be changed for daylight saving. 136The appellant challenged NB's reliability by reference to his initial recollection of when the complaint was made, i.e. July or October 2011. That criticism needs to be significantly qualified. In the first interview, when he was asked why the complainant and he were at the appellant's house, he said that they went there for the holidays because mum and dad were working and it was fun for them. When asked what time they arrived, he said: "I think it was in the morning because it was a few terms ago. Like it wasn't the last time or the time before that, it was I think, it was the time like three or probably a year ago from now maybe." That was an important response because there was undisputed evidence that NB had stayed at the appellant's home in January 2012 and July 2011 and at no other time in between. This would place the occasion of the complaint at the time that NB visited the appellant's home immediately before July 2011. A visit during the school holidays in April 2011 fits neatly into that timeframe. 137It is only after that answer, when pressed for a month, that he said: "I think it was July. I think it was these holidays or it might have been the next holidays which are October, I think yeah. Q.92 How long ago was it? A. A few terms ago. I can't remember yeah last year I think yeah, yeah." It is a reasonable proposition that a 12 year old child might have difficulty remembering dates, but be better able to recall by reference to the number of visits after an incident occurred. 138The fact that the photographs were taken in a sequence, i.e. that the 2010 photographs were recorded before the April 2011 photographs, which were followed by the July 2011 photographs, supports the evidence of NB in another way. So far as the evidence discloses, except for April 2011, there was no other occasion during 2011 that the complainant could have visited the appellant's home. The appellant's evidence proved that she was not there in January 2011 and there was evidence from both sides to the effect that only the boys stayed there in July 2011 and that none of the children stayed with the appellant and his wife for the rest of 2011 until January 2012. Since it was accepted that the photographs marked April 2011 were taken in the appellant's home and some of them included the complainant, there is a strong inference that the April 2011 date is correct because that is the only occasion in 2011 that the complainant could have been staying with the appellant and his wife. 139While the submission by the appellant that the evidence of NB was substantially influenced by his father is available, it should be noted that the evidence on this issue came entirely from NB. He was completely candid about this in the second interview. He did not shy away from the proposition that it was at the request of his father that he gave more and more thought to identifying the date on which his sister made the complaint to him. I am not prepared to find that the evidence of NB is unreliable for that reason. 140It should also be noted that the recollection of NB in relation to the stay with the appellant and his wife in January 2012 was quite accurate. Before calendars were produced, NB said that he and the complainant had stayed with the appellant and his wife between Wednesday and Friday. This was subsequently confirmed by reference to the appellant's calendar (which was kept by his wife) which showed that the children had stayed there on 18, 19, 20 January and returned home on Saturday, 21 January. 141There is other evidence in NB's first statement which supports his reliability. In the first statement the following questions and answers were given: "Q.283 What did [the appellant] do for the rest of your stay on that ...? A. I think he went and cleaned up the boatshed. For the rest of that day. Q.284 The rest of that time you stayed, you stayed there for three days that time, Monday to Wednesday, you said. What did [the appellant] do for the rest of that time? A. What do you mean? Q.285 Was he, was he just around the house or what did he do in general? A. Well, he just did stuff with us like went fishing. I think we went out for lunch, that [the complainant] and that went out to get some gardening stuff and I think me and him went to do stuff 'cause we don't really like helping and he took me to Subway and we had something from Subway. Then we came back and they had lunch and yeah." 142Two important matters emerged from that evidence. Monday - Wednesday fits in with the April date on the photographs at a time when the existence of the April photographs was not known, i.e. the photographs were taken on 14 April (a Thursday) the day on which the children were returning home after having stayed for three days, i.e. Monday - Wednesday. The reference to the complainant going out, apparently with the appellant's wife "to get some gardening stuff", is consistent with the receipt produced by the appellant's wife, dated 13 April 2011, relating to the purchase of garden items at a garden shop at Warners Bay at 10.07am on that day. The appellant's wife did not refer to the appellant being with her when she went to buy the garden items. 143Despite the importance of the appellant's evidence to the effect that the activities engaged in by him and his wife on 12 and 14 April made it unlikely that they would have undertaken the care of the children at that time, it is not without significance that the appellant is not able to account for his movements in any specific detail on 13 April 2011. The significance is that when NB in his second statement asserted that his sister complained to him about the appellant's conduct late on the afternoon on the day before the photographs were taken on 14 April, he did not know anything about the appellant's positive case, nor did he know that 13 April was a day on which the appellant could well have engaged in such conduct and that this was a day on which the appellant's calendar had no record of any activities taking place. 144By reference to those matters, I am satisfied that it was open to the jury to find beyond reasonable doubt that the photographs were taken on 14 April 2011 and that the day before, NB's sister made a complaint to him that the appellant had behaved in a sexually inappropriate way towards her. 145There is feasibility and consistency in the complaints made by the complainant. The terms in which she described what happened and what was said are not inherently improbable. Regrettably, the admonition to silence ascribed by the complainant to the appellant is in terms not dissimilar to those frequently encountered by this Court when dealing with analogous offences where children are involved. 146There is also a consistency in the sequence of events as described by the complainant leading up to her complaint to her mother on 26 June 2012. Her reaction when initially confronted by the appellant is consistent with that of a 12 year old, for whom this conduct by her godfather was totally unexpected, and for which by way of experience she was totally unprepared. When the appellant sought to repeat this conduct in January 2012, the complainant rejected it and walked away. 147On the Crown case the only time the complainant visited the appellant in 2011 was in April so that the next occasion that she had any contact with him was in January 2012 when consistent with the Crown case, he sought to repeat his conduct. Against that background, it was quite reasonable for the complainant to tell her mother about the appellant's inappropriate conduct on 26 June 2012 when she was told that shortly thereafter she was again going to be placed in the care of the appellant. 148In relation to count 6, there was no issue that the children stayed with the appellant and his wife for the period 18 January to 21 January 2012. The appellant's calendar shows that the appellant's wife had a facial at Wangi at 11am on 20 January 2012 and she confirmed that she had attended this appointment, despite the children staying with them. It was also recorded on the calendar that the appellant had a chiropractic appointment at 1pm on that day. Again even though the children were staying, the appellant still attended that appointment. 149The essential question is whether it was unreasonable for the jury to be satisfied beyond reasonable doubt on the whole of the evidence that the offences described in counts 1, 3, 5, and 6 took place in the span of time specified in the indictment. I am satisfied that it was open to the jury to so find. I am also satisfied that it was not unreasonable for the jury to conclude that the complainant was mistaken about the timing of the events, the subject of counts 1 - 5, but accurate about the appellant's conduct. This ground of appeal has not been made out.

Conclusion 150As indicated, the appellant has succeeded on grounds of appeal 1 and 4 but failed on the rest. This success, of course, does not entitle the appellant to an acquittal but he is entitled to a retrial. In those circumstances, the orders which I propose are: (1) The conviction of the appellant in respect of counts 1, 3, 5, and 6 on 5 June 2013 is quashed. (2) A new trial be ordered. 151FULLERTON J: I have also had the advantage of reading the draft reasons of Hoeben CJ at CL and agree with the orders his Honour proposes for the reasons given. 152I have also read the additional remarks of Adamson J and agree with her Honour's observations concerning the fundamental requirements of a summing up in a jury trial to ensure a fair trial of the accused according to law. I also agree with her Honour's conclusion that the summing up in this case deprived the applicant of a fair trial. 153For my part I would simply wish to add that it was not to the point that the trial was relatively short, or that it might be assumed, as the Crown submitted, that both counsel had addressed the jury as to the significance of the controversy in the evidence bearing on the dates when the complainant and her brother visited at the appellant's home in 2011 and that those submissions would have been fresh in the jury's mind in the course of the summing up despite the intervening weekend. 154On any view of the issues at trial, the dates particularised in counts 1 - 5 (and for that matter count 6) were critical to proof of those counts and should have been the subject of specific direction by the trial Judge. 155When directing the jury as to the elements of counts 1, 3 and 5, and the alternate counts 2 and 4, his Honour did not direct them that they also needed to be satisfied that the allegations of sexual assault, or indecent assault as the case may be, occurred on the dates particularised in the indictment. It was only during the course of their deliberations after the jury sought guidance on that very issue that his Honour directed the jury as to the need for them to be satisfied of the "April dates" if they were to return verdicts of guilty on those counts. 156Were his Honour, when directing the jury as to constituent elements of the offences charged on the indictment, to have identified the way the Crown case was particularised in counts 1 - 5, referable to the nominated dates in April 2011, a succinct and clear statement of the significance of the dates; the evidence bearing upon proof of them in the Crown case and the corresponding doubt cast by the evidence in the defence case, and the competing arguments of counsel bearing upon those matters might then have been put. As Hoeben CJ at CL observed at [78] - [79] of his Honour's judgment, the appellant was disadvantaged, not only by the fragmented and episodic way in which the defence case on the issue of the dates was identified by his Honour, he was also disadvantaged in not having the Crown case put as a coherent whole against which his challenge to that evidence was mounted. 157It was not necessary that his Honour's reference to the evidence or counsel's arguments relative to the April dates be lengthy or discursive. What was necessary was that the respective cases were identified with clarity, so that the important issue of the dates to which the evidence in respective cases gave rise was given appropriate emphasis by the trial Judge. 158The failure to structure the summing up so as to meet that basal requirement was, in the context of the trial, a departure from the trial Judge's obligations in summing up the trial, thereby occasioning a miscarriage of justice. 159ADAMSON J: I have had the benefit of reading the draft reasons of Hoeben CJ at CL. I agree with the orders proposed and with his Honour's reasons. I have reviewed the whole of the evidence and considered the respects in which there was competing evidence. I agree for the reasons given by Hoeben CJ at CL that it was open on the whole of that evidence for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 1, 3, 5 and 6 in the indictment. 160I have also had the benefit of reading the draft reasons of Fullerton J, with whom I respectfully agree. 161I wish, however, to say something further about grounds 1 and 4, which concern the summing up. The summing up is a highly significant part of the trial. It is a substantial matter for a jury, comprised of twelve members of the community, selected at random, to be required to decide whether the Crown has proved the counts on the indictment beyond reasonable doubt against the accused. The obligations placed on trial judges to direct and guide the jury in its task are essential to our system of trial by jury. To sum up the case to the jury is a fundamental task of the trial judge. It is one of the principal ways in which a trial judge ensures that the accused has a fair trial. The summing up is an important safeguard for the accused, since the trial judge is required to put fairly before the jury the case which the accused makes: RPS v R [2000] HCA 3; 199 CLR 620. The summing up in the present case fell so far short of the standard required that it deprived the appellant of a fair trial. Accordingly, the convictions cannot stand.

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