GR v R

Category: Principal judgment

Parties: GR (Applicant)
Rex (Respondent)

Representation: Counsel:
I McLachlan (Applicant)
S Lind (Respondent)
Solicitors:
Karim + Nicol Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/169655; 2020/313854

Publication restriction: Statutory prohibition on publication of the names of the complainants and any material that may tend to identify them (including the applicant’s name). See s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW).

HEADNOTE

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

References in this headnote to persons are to pseudonyms.

The applicant stood trial by jury in the District Court on an indictment alleging child sexual offending against his stepdaughters Sienna and Cara and biological daughter Katie (“the first trial”). In the first trial Katie gave evidence that she could not identify by whom she was sexually assaulted, and maintained that position after the Crown, with leave, cross-examined her on prior statements implicating the applicant. Later that day the Director of Public Prosecutions directed there be no further proceedings on the counts relating to Katie, and the jury was discharged.

The following day the applicant stood trial before a new jury on an amended indictment, alleging the same, save for the counts relating to Katie having been removed (“the second trial”). Katie was also not a witness in the second trial.

In the second trial defence counsel made an application to discharge the jury on the basis of there having been three references in the evidence to possible victims other than Sienna and Cara, and such prejudice was incapable of cure by future direction. The trial judge refused the application for discharge. The jury convicted the applicant of five offences on the amended indictment.

The applicant sought leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his convictions on the sole ground that a miscarriage of justice was occasioned by the trial judge’s refusal to discharge the jury after three witnesses gave prejudicial evidence. The Crown submitted the ground was not established, and in the alternative, the Court should apply the proviso in s 6(1) of the Criminal Appeal Act.

The Court (Rigg J; Free JA and Sirtes J agreeing) held, allowing the appeal, quashing the convictions and ordering a retrial:

As to miscarriage of justice*:*

(1) The three impugned passages of evidence amounted to an irregularity that could realistically have affected the reasoning of the jury to the verdicts of guilty that were returned. The applicant has established that there has been a miscarriage of justice: [120] (Rigg J); [1] (Free JA); [183] (Sirtes J).

As to the proviso:

(2) In light of the issues at trial and the nature of the miscarriage of justice, it is not possible to conclude beyond reasonable doubt the applicant is guilty of each charge, and thus that there has not been a substantial miscarriage of justice: [181] (Rigg J); [1] (Free JA); [183] (Sirtes J).

JUDGMENT

1. FREE JA: I agree with Rigg J.

2. RIGG J: Between 4 and 24 September 2024 the applicant stood trial in the District Court at Grafton before his Honour Hudson DCJ and a jury of 12 (“the second trial”) on an amended indictment containing 18 counts alleging sexual offending occurring between 2004 and 2009 against two complainants, being his stepdaughters. There are statutory prohibitions against publication of information which may identify the complainants, or other children referred to in the evidence. I will refer to the older complainant as Sienna and the younger as Cara. Their mother will be referred to as Helena. The applicant’s older biological daughter will be referred to as Katie and his younger biological daughter (who is also the daughter of Helena) will be referred to as Daisy. None of these are their real names.

3. The jury convicted the applicant of the following:

4. One offence of aggravated indecent assault against Sienna aged 11, contrary to s 61M(1) of the Crimes Act 1900 (NSW) (since repealed) (count 1);

5. Two offences of aggravated sexual intercourse with a child aged between 10 and 14 years, namely Sienna aged 12 years, and under his authority, contrary to s 66C(2) of the Crimes Act (counts 2 and 3);

6. One offence of maintaining an unlawful sexual relationship with a child under 16 years, namely Sienna aged between 13 and 15 years, contrary to s 66EA of the Crimes Act (count 4); and

7. One offence of maintaining an unlawful sexual relationship with a child under 16 years, namely Cara aged between 10 and 12 years, contrary to s 66EA of the Crimes Act (count 10).

8. The jury found the applicant not guilty of count 9 alleging aggravated sexual intercourse without consent against Sienna aged 17 years and under his authority, contrary to s 61J(1) of the Crimes Act. The jury was directed to acquit the applicant of counts 13, 14 and 15 (discrete alleged offences charged as alternatives to count 10) because Cara had not given evidence of the conduct the subject of them. The balance of the counts on the amended indictment (counts 5 to 8, which were alternatives to count 4, and counts 11, 12 and 16 to 18, which were alternatives to count 10) required no verdict given the jury’s verdicts of guilty to counts 4 and 10.

9. An earlier trial had commenced on 2 September 2024 (“the first trial”) with an indictment alleging 28 counts of sexual offending against three complainants, being Sienna and Cara as well as the applicant’s biological daughter Katie. On the second day of the first trial, Katie gave evidence that she had been sexually assaulted but could not identify by whom, and maintained that position after the Crown, with leave, cross-examined her on prior statements implicating the applicant. Later that day the Director of Public Prosecutions NSW directed there be no further proceedings on the counts relating to Katie, and the jury was discharged. Katie was not a witness in the second trial.

10. For the five offences resulting in convictions in the second trial the applicant was sentenced on 7 February 2025 to an aggregate term of 24 years imprisonment with a non-parole period of 15 years. The sentence was ordered to commence on 24 September 2024, the date upon which the jury returned its verdicts, and is due to expire on 23 September 2048, with the applicant being first eligible for parole on 23 September 2039.

Ground of appeal

7. The applicant seeks leave to appeal his convictions on a question of mixed law and fact pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The sole ground of appeal upon which the applicant relies is:

“A miscarriage of justice was occasioned by the trial judge’s refusal to discharge the jury after three witnesses gave prejudicial evidence the applicant committed sexual offences against his daughter.”

8. The applicant does not seek leave to appeal against the sentence imposed on him.

9. The respondent Crown submitted the applicant has not established the sole ground of appeal, and in the alternative, that the Court should apply the proviso in s 6(1) of the Criminal Appeal Act as it can be satisfied that the miscarriage of justice was not substantial.

Overview of relevant evidence in the second trial

10. There is no need for anything other than a very general overview of most of the evidence at trial, with some greater detail relevant to the application that was made for the discharge of the jury, for the purpose of resolving the applicant’s ground of appeal. Some additional aspects of the evidence are addressed in further detail when considering the proviso.

11. Helena separated from the father of Sienna and Cara in 2001 and commenced a relationship with the applicant the same year. Sienna was then about 9 years old, Cara was nearly 5 and the applicant’s daughter Katie was about 7. No sexual offending is alleged to have occurred at the applicant and Katie’s home into which Helena and the two complainants moved in late 2001.

12. The family later lived at the first home at which sexual offending was alleged to have taken place for about two years from April 2003, and it will be referred to as home 1. Counts 1 to 3 against Sienna were described as occurring at home 1. The second home was resided at for about 6 months from April 2005 (“home 2”) and the unlawful sexual relationship with Sienna charged as count 4 is alleged to have commenced there. The third home was resided in for about 18 months from September 2005 (“home 3”), and count 4 is alleged to have continued at this location. The fourth home was moved into in February or March 2007 (“home 4”). Count 4 is alleged to have continued at this location and it is also the site of the alleged offending against Sienna the subject of count 9 for which the jury acquitted the applicant. The unlawful sexual relationship with Cara the subject of count 10 is alleged to have occurred at home 4.

13. Sienna moved out of home in October 2009 when she was 17. She described making a complaint at that time to her boyfriend’s mother, but this was not supported by that witness, who gave evidence that Sienna said she did not want to return home because her mother and the applicant fought a lot and made her do housework and look after the younger children. There was a period of time when Sienna had no contact with the applicant or her mother or sisters, but it then recommenced to a degree. She complained to her friend NH in 2010 that the applicant had raped her. The evidence of this conversation with NH was the only evidence relied upon at trial by the Crown, and the subject of direction by the trial judge, as evidence of complaint, in the sense of independent evidence supporting the direct evidence of the alleged offending, by either complainant.

14. Count 10 covered the period between April 2007 and January 2009. Cara gave evidence that she told Helena in 2008 that the applicant had been touching her, and that this was effectively dismissed by Helena. Helena did not give evidence supporting the occurrence of that conversation. Cara also stated that she told her best friend FW the same thing in that same year and that she was crying. This was not supported by the evidence of FW.

15. Cara gave evidence that for a number of years, from when she was in year 6, in 2008, she told her mother that she had to choose between her and the applicant. She frequently fought with her mother when she was at home. Helena gave evidence that in 2011 when Cara was 14 and had gone to her grandmother’s house in Brisbane, she was given an ultimatum by Cara to choose her or the applicant. Helena stated that the reason that had been given by Cara was that she “was virtually sick of the way that he was treating me and she didn’t want [Daisy] to grow up in that household”. Helena said that she chose her daughter, and asked the applicant to move out. He moved out to a property where he was building a house and Helena stayed in home 4 with Cara and Daisy, and the applicant would come to visit her there, and she and Daisy would visit the applicant. There was evidence in the trial of their relationship continuing until 2018 although they did not live together, and some ongoing contact even after 2018.

16. Cara said she left home when she was 14 and Helena stated that Cara moved out of home to live with her father when she was 15. Cara’s friend SE described witnessing a very heated discussion between Cara and Helena on the occasion of Cara’s 16th birthday party (in 2013) at a local bowling or golf club. SE remembered that Cara was very angry and upset that the applicant was invited. She described the applicant being there as “ridiculous” and “absurd”. SE was aware at that time that Cara did not have a good relationship with the applicant.

17. At all relevant times Katie lived at homes 1, 2, 3 and 4; although there was some evidence from Helena that Katie moved out of home before the two complainants and evidence that in his electronically recorded interview with police the applicant said that after he and Helena separated, when Katie was about 16, she came to live with him. The applicant and Helena’s child Daisy was born in 2005 just before the family moved from home 2 to home 3, and at all relevant times thereafter lived with her parents. She moved between their residences for a period after their separation.

18. There was evidence of dysfunction in the four homes (and even earlier) apart from the alleged offending. While being questioned in cross-examination regarding opportunities for complaint, Cara gave evidence that the applicant made it known to her that what was happening was to stay between them “And when you get bashed growing up constantly, you get a bit scared of that person, so you do what that person says”. She stated further she was afraid of the applicant 100% of the time that she was with him. She said that her mother knew this and that she told her mother she was afraid of him from the first time she witnessed the applicant bashing her mother (at the house lived in before home 1), before she had even started school. She said that from then on she told her mother probably once a week that she was afraid of the applicant and did not want to live with him.

19. Cara’s childhood friend FW confirmed the truth of her statement to police “I became aware through our friendship that [Cara’s] home life was not the happiest and that she was having problems with her stepfather, [the applicant], being verbally and physically abusive towards [Cara].” This understanding was based on what she had been told by Cara, rather than anything she had witnessed. Cara also gave evidence, in response to a question about whether she ever told FW’s mother that there were problems between the applicant and Helena at home, that she thought she told her that she did not like being at home, but did not ever tell anyone details as “It was very well known by my parents that what stayed in our house, stayed in our house”. FW’s mother gave evidence that Cara often stayed at her home when she was 14 or 15 years old, including after working at the local pizzeria, and that Cara said her parents were unable to pick her up from that job because of their drinking.

20. While Sienna was being cross-examined about not complaining to her mother about the alleged abuse, particularly by the time of the third incident of such abuse (at the first home), she said “I should have. I, I should have, yes, but like I said, I was afraid of the repercussions. I had already seen what this man could do. I wasn’t – no, I didn’t tell her.” When it was put to her that she did not inform her mother of the abuse alleged to have occurred at the second home because the applicant was not interfering with her and she had made this up, she said “Sorry, is that the end? Sorry. I’d like to suggest to you that I didn’t tell anyone because I was afraid he was going to kill my mum. I was deathly afraid he’d almost – that’s why I didn’t tell her. I need a break.” Sienna’s evidence was that the applicant had never told her to not tell anybody. Sienna was cross-examined about not ever saying anything to the applicant during the alleged offending, including when she was 17 years of age at the fourth home, and not saying anything to the authorities despite knowing the applicant could be in significant trouble for what she said he had been doing. She gave an answer that was struck from the record and the subject of a direction to the jury to ignore it, which was “Any other time the authorities were around, nothing ever happened with him. He was never convicted or never charged with anything”.

21. Helena agreed in cross-examination with her statement to police that she never witnessed or became aware of the applicant being physically violent towards the complainants or Daisy. She stated “That’s absolutely correct. That’s 100% correct. I never witnessed him be physically violent towards any of my children”. She did not give evidence confirming or denying domestic violence towards herself, as was explicitly referred to in Cara’s evidence, and suggested in Sienna’s.

22. There was evidence that both the applicant and Helena drank alcohol very heavily, daily. The applicant’s alcohol consumption is referred to further in considering the application of the proviso.

23. Sienna and Cara each gave evidence regarding a degree of ongoing contact with the applicant after he moved out of home 4 in about 2011, although not reflecting the extent and closeness of such contact as described in the applicant’s evidence (set out in more detail in relation to the proviso).

24. The Crown called evidence from expert witness Professor Jane Goodman-Delahunty, forensic psychologist also trained in law. Professor Goodman-Delahunty confirmed that she has specialised knowledge in relation to child development and child behaviour, including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse. She set out the basis for that specialised knowledge. She gave general evidence that was not related to either complainant personally regarding issues such as: memory, including memory development by children and victims of abuse; delay in reporting child sexual offences, including staggered, piecemeal or incremental complaints of abuse; and common misconceptions about how a child might respond to abuse.

25. In November 2019 Sienna told Cara that sexual activity had occurred between the applicant and herself, without providing any detail. When Sienna asked Cara if anything had happened to her, Cara gave a “weird face” and said “Well yeah”, but did not elaborate.

26. On 26 November 2019 at 1:37 pm, Sienna sent the following text message to the applicant (tendered as part of exhibit 5):

“Hello to the person I was supposed to look up to as a father. [redacted].

Though im mot certain but I’m under the impression that they didn’t have it as bad as me but to all of us, you’re a monster.

[redacted]. 6 years. You abused, harassed and raped me for 6 years. You took away my innocence. You gave me a fear that was so unnatural.

Paedophile. I don’t know as of yet how old the girls were, and they’re yet to hear my story, but it all started when I was 11, I don’t need to tell you that though, do I?

A child. For someone that speaks the way they do about paedophiles the way you do, you put on a good act, because that’s exactly what you are.

As much as you’ve broken me, broken something deep inside me that I just pray can be mended. As much pain and suffer this has caused, you wont beat me. I’m too strong for a pathetic little man like you, to completely bring me down.

My beautiful husband has just found out. Everything. As the world will now hear. He has to pick up the pieces, try and mend me, and my little sisters. A kind of person that you wouldn’t dream of being.

People are going to know, people are finding out just how much of a monster you are. Sending [Cara] messages saying how sorry you were and asking her out for coffee? What the fuck?!

Something needs to be done so no more damage is done. For protection for my children, for my nieces and nephew, and for any other children out there. I’m out. I’m breaking this cycle.”

27. The Crown relied upon a number of responses by the applicant to Sienna, and a series of text messages between the applicant and Cara in the same timeframe, as containing admissions. This evidence is referred to further in connection with the proviso.

28. Prior to setting out the three aspects of the evidence that founded the discharge application, a further answer given by Sienna in cross-examination (which occurred prior to any of the impugned evidentiary passages) should be referred to. She had stated in cross-examination that although her formal police statement was made in 2020, she had attended upon the police to speak about the alleged sexual misconduct on an earlier day in late 2019 or early 2020. She was then asked whether just before she did so she had some telephone conversations with the applicant, and answered as follows:

“Not before, not – it wouldn’t have been after I had spoken to [Katie] and [Cara] where we were all going to go to the police. I hadn’t spoken to [the applicant] after that at all.”

The impugned evidence and discharge application

29. During Sienna’s cross-examination, towards the end of the third day of the trial, she was cross-examined about the text message sent to the applicant on 26 November 2019. The following evidence was given (emphasis added):

“Q. And within the contents of that message you threatened [the applicant] with exposing him as a paedophile. Correct?

A. It wasn’t my intention to threaten, if that’s how it comes across. I didn’t intend for that. I was very angry because **I found out things that happened to my other sisters that I wasn’**t aware of. That’s why I sent the messages.”

30. After the above answer was given, in the absence of the jury, it was agreed the answer should be struck from the record. The trial judge thereafter directed the jury:

“Members of the jury, the answer to that last question will be struck from the record. You are to absolutely ignore that, in terms of that answer given by the witness. Thank you.”

31. The second impugned remark was made on the fourth day of the trial, after the weekend adjournment. The complaint witness NH gave the following answers regarding discussion with Sienna in 2020 about their earlier conversation (in about 2010) (emphasis added):

“Q. Do you recall having a conversation with [Sienna] about that conversation before or after, or in around 2020, when these allegations came to light?

A. Yes.

Q. And did that happen over the telephone that you were discussing it or face-to-face or how is it that that took place?

A. I remember her texting me, saying that she had been made aware of things that had happened with her sisters, and she had spoken to her husband about it. This was all via text message. I think the conversation that followed that may have been face-to-face.”

32. This was the final answer given in cross-examination at the end of the day. There was no discussion about this in the jury’s absence at the time, and no direction was provided to disregard the reference to Sienna’s sisters.

33. The third impugned remark was made by the complainants’ mother Helena during her evidence in chief on the sixth day of the trial. The following answers were given about a conversation with Sienna (in November 2019) in which she asked Sienna if the applicant had touched her:

“Q. Did you ask [Sienna] that question on the one occasion or more than one occasion?

A. More than one occasion.

Q. Is it possible to put a number on how many times that you asked her?

A. Five or six times.

Q. And when you asked [Sienna] those questions, what was her response?

A. She kept saying no to me, and then on the last time I asked her, I just looked her straight in the face and I just said, “Look, please tell mummy the truth,” And she fell to the ground and burst into tears and told me, and I went to the police station.

Q. And, [Helena], when you say she told you, what do you recall [Sienna] saying to you?

A. She said that, yes, he did to her what he did to [Katie] and [Cara], and on more than one occasion.”

34. After the above answers were given, defence counsel said he needed to raise something and the trial judge directed the jury to “just ignore that last answer, please. Just ignore that last answer”. The transcript indicates the last question and last two answers were struck out. Helena answered some more questions regarding her historical consumption of alcohol. Shortly afterwards, in the absence of the jury, the Crown Prosecutor indicated that the reference to Katie was unexpected, having regard to the witness’ account of the conversation in her statement to police. The parties were given time to confer and for the prosecutor to speak to the witness to facilitate answering questions about the conversation without a similar problem. Helena’s evidence in chief was thereafter finalised by having her confirm that she told police that “[Sienna] didn’t go into any details but told me that it happened on a number of occasions” and that this was true. The trial was shortly thereafter adjourned until the following day.

35. At the start of the next day, which was the seventh day of the second trial, an application was made by counsel for the applicant to discharge the jury. The application was made on the basis of there having been three references to potential victims other than the complainants before the Court, in the context of 10 charges relating to Katie having been recently terminated by the Director of Public Prosecutions. The Court was taken to the three impugned passages of evidence set out above. It was submitted that the prejudice caused was not capable of being cured by further direction, and the discharge of the jury was required to prevent a miscarriage of justice. However, defence counsel also referred his Honour to the decision of this Court in Watson v R [2022] NSWCCA 208 (“Watson”) and made submissions directed towards the prospect of a substantial miscarriage of justice.

36. The application to discharge the jury was opposed by the Crown, largely on the basis the impugned evidentiary passages were hearsay accounts uttered inadvertently in the course of giving evidence. It was submitted, by reference to Bellew J’s decision in R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259, insofar as his Honour quoted from Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (“Crofts*”*), that the discretion to discharge should only be exercised where it was necessary to prevent a miscarriage of justice. It was submitted to be relevant that the trial was close to the end of the Crown case. The prosecutor proposed that a direction “You have heard what this trial is about. The Crown alleges that the accused committed a number of sexual offences against [Sienna] and [Cara]. The Crown does not allege the accused committed sexual offences against any other person”, with an explanation of the nature of hearsay evidence, would overcome the apprehended impact of the three passages of evidence. It was acknowledged that this tended to highlight the problematic evidence.

37. Defence counsel submitted that the offending evidence could not be “unheard”, and that a direction of the kind proposed would only serve to highlight it. To not discharge was submitted to deprive the applicant of a fair trial and lead to a miscarriage of justice.

Trial judge’s reasons

38. His Honour delivered an ex tempore judgment refusing the application. His Honour referred to the problematic evidence, the parties’ submissions, and applicable caselaw. This included Crofts, Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126], Watson, as well as other relevant decisions. His Honour considered the question of the fairness of the trial, described as the centrepiece of any criminal trial in this state, by reference to matters such as whether the material said to have given rise to the prejudice was likely to have been left vividly etched on the mind of the jury, the likely effectiveness of direction, the stage at which the mishap occurred, and trial judges not being required to take an overly sensitive approach to the accidental receipt of prejudicial material. His Honour quoted from The Queen v Glennon (1992) 173 CLR 592 at 614; [1992] HCA 16 regarding reliance on the integrity and sense of duty of jurors. However his Honour also referred to not being satisfied that there would be a substantial miscarriage of justice in continuing. Further, the passage quoted from Miller included reference to that part of the majority judgment in Crofts in which the question for review of a conviction following a refusal to discharge the jury was described as being whether the appellate court can “say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable” (although that part of the relevant paragraph in Miller was not quoted in the ex tempore judgment).

39. As to the evidence of Sienna of finding out things had happened to her sisters, the trial judge noted that there was “no mention of a name” or suggestion that the things that happened were sexual in nature. The reference was said to be very general, with no sexual connotation.

40. His Honour described the reference by NH to “sisters” as containing no connection or suggestion of a sexual nature. His Honour noted that there were background allegations of some violence in the house. It was said to be “problematic” to conclude NH’s evidence was necessarily only referable to sexual events. His Honour stated that he had formed the view at the time that her reference to “sisters” was very innocuous and to draw attention to it was not desirable.

41. The trial judge noted a number of times that the jury was immediately directed to ignore the impugned evidence of Sienna and Helena, and there was no repetition of the word “sisters” nor Katie’s name in such direction or by counsel.

42. His Honour stated that he could not see that necessarily the only inference or connotation from NH’s reference to “sisters” was that this must have been sexual in nature. His Honour stated that he did not agree that the only way in which Helena’s reference to Katie should be taken was that she must be a victim of sexual assault. His Honour stated that given the attention paid to date by the jury, he had not formed the view the three statements had been left vividly etched in the mind of the jury, and the earlier two may effectively have all but been forgotten. At one point his Honour expressed the view that the reference to sisters by NH was so innocuous that necessarily the jury would have missed it.

43. His Honour noted that the comments were inadvertent, and that the trial was at an advanced stage, being “well beyond the midsection of the Crown case” and approaching the close of the Crown case. The relevant evidence had been given on 6 September, 9 September and 11 September. The application was made on day 7 (Thursday 12 September) and it was expected the jury may be out considering verdicts by the end of the following week. His Honour read the direction proposed by the Crown which could be given if required, and noted that the jury would receive a direction against speculation. His Honour stated the three pieces of evidence would be far from the forefront of the jurors’ memories at the time of deliberation, and as direction had been given immediately in relation to two of the pieces of evidence it may be prudent to provide no further direction, to ensure the matters are not highlighted.

44. The trial judge found that the impugned evidence did not “get to a level in terms of a high degree of need to discharge the jury”. His Honour concluded the judgment by repeating that two of the inadvertent comments were dealt with immediately and one was extremely innocuous, such that he was clearly of the view that the impugned evidence, whether considered individually or collectively, was not of real significance or seriousness in the context of the trial, and there were only several witnesses remaining until the conclusion of the Crown case.

Submissions – miscarriage of justice

45. It was common ground that the appeal lies against the conviction, not the trial judge’s determination to not discharge the jury. The miscarriage complained of was to be considered by reference to the High Court decision in Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 (“Brawn”) where at [10] it was stated that a miscarriage will be shown where “the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned”, with the Court continuing:

“… In this context, ‘could’ is to be understood as meaning ‘having the capacity to’, and ‘realistically’ distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.”

46. It was accepted by the applicant that in considering whether there has been a miscarriage caused by a failure to discharge the jury, it is important to pay some deference to the trial judge’s decision to not discharge the jury: Kibby v R [2024] NSWCCA 207 (“Kibby”) at [34]; Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 (“Ilievski”) at [89(5)].

47. It was submitted for the applicant that the seriousness of the occurrences in the context of the issues at trial was high, as the impugned remarks had a substantial prejudicial effect by necessarily implicating the applicant in similar sexual offending against his daughter. The context of the evidence, namely answering questions concerning the disclosure of sexual misconduct, was submitted to support that implication.

48. During the course of the hearing Mr McLachlan, counsel appearing for the applicant, was asked whether the trial judge should have been asking a slightly different question; namely if there was a risk that the evidence might have been construed as having a sexual connotation. It was submitted that his Honour (and this Court) is concerned with risk, but on the facts of this case the submission could be advanced that the evidence clearly had a sexual connotation.

49. The fact of Katie being aged between the complainants, and sharing a domestic parental relationship, was relied upon. The problem was said to lie in the capacity of the evidence to suggest the applicant had committed sexual offences against his daughter, and was thus more likely to have done so against the complainants.

50. The applicant criticised the basis articulated by the Crown at trial in resisting discharge, that the impugned remarks were hearsay, noting that the relevant evidence in Ilievski and Kibby was also hearsay and a miscarriage of justice was found by this Court in each instance.

51. It was submitted to be significant that the impugned remarks occurred on three separate days during the trial, tending to emphasise the evidence. It was submitted that no direction could cure the relevant prejudice. Evidence which suggested the applicant sexually assaulted his daughter was submitted to be like the inadmissible evidence in Crofts, in the sense that it could not be eradicated by instruction: Crofts at 442.

52. During the course of the hearing it was initially submitted that the not guilty verdict on count 9 showed Sienna’s credibility was in issue, but it was also acknowledged that in light of her older age and other evidence particular to that alleged event, the verdict pattern could also indicate that the jury generally believed both complainants (which was or may have been contributed to by the three problematic answers that were given) but a reasonable doubt was held regarding the absence of consent or the applicant’s knowledge of absence of consent.

53. For the respondent it was contended that the directions given by the trial judge should be considered on the well-established assumption that juries are capable of understanding and obeying judicial directions including, in many cases, an instruction to disregard prejudicial material which has inadvertently come before it: Kibby at [35], referring to Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 (“Gilbert*”) at [13] (Gleeson CJ and Gummow J) and [31]-[32] (McHugh J) and The Queen v Storey (1978) 140 CLR 364 at 372; [1978] HCA 39. Reference was also made to the general expectation that a jury will follow an instruction to ignore prejudicial evidence which has been struck out: R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 (“Bartle”) at [82], referred to with approval in Wilson v R [2019] NSWCCA 38 at [173]; and Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 (“Hamide”**)* at [120].

54. The views of the trial judge were submitted to be entitled to significant weight: Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 at [241]; Dries v R [2022] NSWCCA 33 at [60]; Ilievski at [89(5)]. It was further submitted that trial judges are neither required nor encouraged to take an overly sensitive approach to the accidental receipt of prejudicial material as in many circumstances a direction is an appropriate remedy, not the discharge of the whole jury: Hamide at [115] (Bell P), quoting from R v Ahola (No 6) [2013] NSWSC 703 at [17] (Button J), cited with approval in Younan v R [2016] NSWCCA 248 at [39]; (2016) 316 FLR 122.

55. Focusing on the particular circumstances of this case, the respondent advanced arguments similar to the reasons provided by the trial judge for refusing to discharge the jury. The impugned evidence of Sienna and NH was submitted to be expressed at a high level of generality with neither answer conveying any person by name, nor providing a temporal frame, description of conduct, or content capable of identifying a particular offence, let alone a sexual offence. Reference was made to the evidence that the applicant had physically assaulted Helena, that Sienna was fearful the applicant would kill Helena, and that Cara had reported the applicant verbally and physically abusing her. The confined and limited nature of the evidence of these two witnesses was apparent in it resting on no more than the addition of a single letter from the singular “sister” to the plural “sisters”. It was submitted that unlike in Crofts, in each instance the evidence was fleeting and devoid of any content capable of leaving the evidence “vividly etched” in the jury’s mind.

56. The absence of any contemporaneous response by defence counsel to NH’s reference to “sisters” (such as an objection or application for the answer to be struck or direction given that it be ignored) was submitted to confirm the innocuous nature of the evidence.

57. Attention was given by counsel for the respondent at the hearing of the appeal to the way in which the Crown Prosecutor at trial ultimately led Helena’s evidence about her conversation with Sienna regarding the offending against her, that is, by reference to her police statement (see above at [34]). This was submitted to reduce the risk that the jury viewed the impugned evidence as something that was reliable, because it was not what she had reported to police.

58. Reliance was placed by the respondent on the prompt, clear and unequivocal terms of the directions that the relevant answers by Sienna and Helena were struck from the record, and they were to be ignored. It was contended that the applicant’s argument about the cumulative effect of the three passages assumes that the jury would recall and synthesise fleeting references to “sisters” (plural), given days earlier (one of which they were expressly directed to disregard), and retrospectively imbue such references with significance by reference to a later answer by Helena that was itself the subject of an immediate direction to ignore. This was contended to be speculative and unrealistic.

59. The trial judge’s direction in summing up that the jury’s task was to determine whether they were satisfied beyond reasonable doubt of the counts on the indictment, based solely on the evidence at trial, the submissions made and the other directions of law given, was submitted to further ameliorate risk. The jury was expressly directed that if they considered something was missing from the evidence, they must not speculate about it. The summing up as a whole was submitted to focus the jury’s attention on the real issues in the trial and away from impermissible reliance on excluded material. The jury’s verdict of not guilty on count 9 was submitted to further demonstrate that the jury approached their task in a discriminating manner, considering each count separately by reference only to the admissible evidence available to support it.

60. Counsel for the respondent endeavoured to contrast this case with the circumstances in Crofts, where it was held that judicial direction could not eradicate the prejudice occasioned by the impugned evidence. Whereas the difficulty identified by the High Court in Crofts was that any attempt to fashion a curative direction was constrained, because a direction which referred specifically to the prejudicial material would have risked compounding its effect, while a general direction would have failed to address the particular prejudice, the impugned evidence in the present case was submitted to be fleeting, indirect and expressed at a high level of generality. Although a submission was advanced in writing that the inadvertence of the receipt of the problematic evidence was a further point of distinction from Crofts, it was accepted at the hearing that following Brawn, the issue of the deliberateness or otherwise of the eliciting or giving of the evidence could only have a limited impact.

61. The trial judge’s assessment that the impugned evidence was not serious or of significance, and that the directions given immediately and the anti-speculation direction were sufficient to address the limited potential prejudice, was submitted to warrant significant weight. In those circumstances it was submitted that the applicant has not demonstrated that the impugned evidence, viewed in the context of the trial as a whole and the directions given, could realistically have affected the jury’s reasoning process.

62. Having placed reliance upon the stage at which the discharge application was made (day 7 of the Crown case which closed on day 9 of the trial), counsel for the respondent was asked to explain which way such consideration was submitted to point in this case. It was submitted that a trial being further advanced when such an irregularity occurs weighs more heavily against discharging a jury.

Determination – miscarriage of justice

63. As correctly identified by the parties, this appeal is against the conviction, not the trial judge’s refusal to discharge the jury. The issue is whether in the applicant’s conviction following the refusal to discharge the jury there was a miscarriage of justice, as that term was explained in Brawn.

64. Regard is properly had nonetheless to the reasons of the trial judge in refusing the discharge. There are accordingly a number of matters that are relevant to the determination of this ground of appeal which may involve this Court giving guidance to trial judges determining applications of this kind, in light of the reasons of the trial judge in this case and the arguments advanced on appeal. The first is to confirm that his Honour was not required to consider whether continuing the trial would amount to a substantial miscarriage of justice. The second is to confirm that consideration of whether continuing the trial could amount to a miscarriage of justice, and tests describing necessity or a high degree of necessity before discharging a jury, may be of assistance but mean no more or less than doing that which is required to ensure a fair trial. The third is that considerations such as whether the conduct giving rise to the prejudicial evidence or event was deliberate, and the stage of the trial at which the incident occurs, are relevant only insofar as they bear upon the fairness of the trial of the accused.

65. His Honour’s reference to the decision of this Court in Watson, and to the issue of whether there was a “substantial miscarriage of justice”, raised the risk to be demonstrated to too high a standard, although this was responsive to a submission advanced by defence counsel. Further, his Honour had limited notice of the discharge application. The transcript indicates that it was not foreshadowed until an email was sent on the morning that it was made. His Honour thereafter heard submissions and delivered a comprehensive ex tempore judgment with the pressure of a jury waiting.

66. In Watson the jury was discharged pursuant to s 53C(1)(a) of the Jury Act 1997 (NSW), which relevantly states that, after the discharge of an individual juror, the Court must discharge the jury if of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. That provision was not applicable on the discharge application in this trial. Watson was an interlocutory appeal by the accused (who had opposed the discharge) against the trial judge’s determination to discharge, and it was taken that demonstration of House v The King (1936) 55 CLR 499; [1936] HCA 40 error was required.

67. A further way in which the trial judge may have erroneously understood there to be a need for demonstration of a substantial miscarriage of justice was because of the utilisation of this phrase in Crofts, and in subsequent decisions which have quoted or drawn from this part of Crofts without regard to this potential problem (such as Miller, as noted above at [38]).

68. Crofts was decided in 1996, prior to the decision of the High Court in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (“Weiss”). It did not delineate between the identification of a miscarriage of justice for the purposes of the third limb of s 6 of the Criminal Appeal Act and the identification of a substantial miscarriage of justice for the purposes of the proviso. As Gageler J explained in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (“Hofer”) at [82] (footnotes omitted):

“Before Weiss, appellate courts in Australia had not reached a conclusion on ‘what, if anything, is the difference between a miscarriage of justice and a substantial miscarriage of justice’. They treated the verdict that had been returned by the jury as the sole determinant of guilt. They approached the question whether there had been a miscarriage of justice and the question whether a substantial miscarriage of justice had actually occurred in much the same way: by asking in each case whether an identified error or irregularity in the conduct of the trial had deprived the appellant of a chance of acquittal.”

69. In the context of conviction appeals following a refusal to discharge the jury, the need for qualification of this aspect of the decision in Crofts was potentially raised in Hamide*.* The applicant appealed to this Court on the ground that “a substantial miscarriage of justice was occasioned as a result of irregularities in the evidence at the appellant’s trial prejudicial to his interests, and the trial judge’s failure to discharge the [jury]”. In determining the appeal, Bathurst CJ expressed the view that Crofts should be followed in its terms. His Honour said (at [8]):

“… the plurality stated what was required was ‘the risk of a substantial miscarriage of justice’ rather than a ‘miscarriage of justice’ as referred to in s 6(1). Two things follow. First, if the conclusion was reached that there was a risk of substantial miscarriage of justice in failing to discharge the jury, it was not necessary to find any separate error of law in the House v The King sense. Second, if the failure to discharge the jury led to such a risk, there does not seem to be any room for the operation of the proviso to s 6(1).”

70. Bell P, with whom Davies J agreed, emphasised that the appeal was not against the failure to discharge the jury but the conviction. His Honour focused on the terms of s 6 of the Criminal Appeal Act, stating at [83]-[84] (citations omitted):

“83 On its terms, s 6(1) distinguishes between a ‘miscarriage of justice’ and a ‘substantial miscarriage of justice’. The attention to statutory language in Filippou has been a consistent feature of the High Court’s recent jurisprudence on the common form criminal appeal statutes.

84 Whether Crofts involves some conflation, as the Crown submitted, need not be resolved in the present case, even if that were an appropriate task upon which this court, as an intermediate court of criminal appeal, could embark, because of the way in which the ground of appeal is formulated. In this context, the Crown’s non-invocation of the proviso in the present case may well have been in recognition of the fact that, if the ground of appeal were made out, the appellant would have established that a substantial miscarriage of justice occurred.”

71. In Ilievski the relevant ground of appeal contended that the trial judge had erred by refusing to discharge the jury after a witness gave evidence, which was submitted to convey the impression that his co-accused Mr Nolan was known to have robbed a bank before, resulting in a miscarriage of justice. As explained comprehensively by Dhanji J in Ilievski, one problem with Crofts was the passage of the majority judgment at 441 quoted by his Honour at [77]:

“Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? In our view, in the particular circumstances of this case, that could not be said.”

72. Dhanji J noted that the issue was not avoided as easily in the case then before the Court as it was in Hamide, because of the terms of the ground of appeal. His Honour (with whom Beech-Jones CJ at CL and Lonergan J agreed, Beech-Jones CJ at CL dissenting as to the result in that case) held at [84]:

“With unqualified respect for Bathurst CJ, I am not of the view that Crofts v The Queen can be applied in its terms. Nor am I, for the reasons which follow, of the view that it is inappropriate for this Court to consider Crofts v The Queen in light of subsequent authority on the proviso. Indeed, this Court has, in cases subsequent to Hamide v R, approached appeals based on a failure to discharge through the distinct steps of miscarriage and substantial miscarriage, albeit with varying levels of attention having been given to the issues raised in Hamide v R: see Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [53]-[59]; Cox v R [2022] NSWCCA 66 at [44]; Dries v R [2022] NSWCCA 33 at [36]-[39]; Xu v R [2023] NSWCCA 93 at [100], [151].”

73. His Honour set out at [89] a number of principles relevant to whether a miscarriage of justice was occasioned. These are not dissimilar to, but have been overtaken by, the determination by the High Court in Brawn on which both parties correctly rely in this case. However a number of matters of particular relevance to an asserted miscarriage of justice where a jury has not been discharged following an irregular incident are of great assistance and will be referred to further below.

74. As to the test of necessity, or a high degree of necessity, before a jury is discharged, the majority in Crofts cited at 440 with approval the articulation of principle by the intermediate appellate Court, including its reference to a test for jury discharge of necessity or a high degree of necessity. Dawson J (dissenting) also referred at 432 to necessity and a high degree of need. The principle of necessity applied by the Victorian Court of Appeal in the decision the subject of the appeal in Crofts was derived from the decision in Winsor v R (1866) LR 1 QB 390 per Erle CJ at 394. The references in the judgments in Crofts to the requirement of a high degree of need or necessity to be established before a jury should be discharged have been either quoted with approval or referred to in a large number of decisions of this Court including Hamide at [7] and Medich v R at [84].

75. This may at first blush seem incompatible with the confirmation in Brawn that the burden of demonstrating a miscarriage of justice is not onerous, as noted above at [45]. The concept of a miscarriage of justice in this appeal arises because of the terms of s 6 of the Criminal Appeal Act. It has been observed in other contexts that introducing the concept of a miscarriage of justice as applies to a conviction to interlocutory steps in trial courts such as reversal of a guilty plea, or amendment of an indictment, may be placing an unduly high demand on an accused person who seeks or opposes such a course: compare White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241. However the obligation of a trial judge to ensure a fair trial requires the avoidance of convictions that would constitute miscarriages of justice.

76. As explained by Dhanji J in Ilievski at [89(9)] regarding the reference in Crofts to necessity (bold emphasis added, italics emphasis original):

“... The criterion for the exercise of the discretion is the maintenance of the fairness of the trial and the test is one of necessity: Crofts v The Queen at 440. That should not be misunderstood as creating too high a bar. Necessity is to be understood in the context of the accused**’s entitlement to a fair trial**. Key considerations relevant to the determination as set out in Miller v R (at [126]), include:

(a) the fairness of the trial: Crofts at 440;

(b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to ‘have been left vividly etched on the mind of the jury’: Crofts at 441;

(c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440;

(d) the stage at which the mishap occurs: Crofts at 440; Maric at 635;

(e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635;

(f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635.”

77. It is apposite to now say something about judicial directions. The principles relied upon by the respondent, referred to above at [53], are not controversial. However notwithstanding judicial directions, the decision-making of juries may still be affected by matters of possible prejudice – confirmed by Gleeson CJ and Gummow J in Gilbert at [13].

78. The premise of s 137 of the Evidence Act 1995 (NSW) is that relevant evidence must on occasion be excluded because of the prospect of a jury using it for an impermissible purpose; that is, in recognition of the fact that directions are not capable of ensuring it is used only for its relevant purpose. An equivalent premise underlies the exclusion of probative tendency evidence by s 101 of the Evidence Act. Trials of co-accused are at times separated where it is determined the jury will not be able even with very strong directions to disregard evidence that is admitted in the case of one co-accused which is not admitted in the other. Trials are temporarily stayed when it is adjudged that judicial direction will not be sufficient to have potential jurors disregard prejudicial pre-trial activity.

79. It was thus confirmed by the High Court in Moore (a pseudonym) v R (2024) 282 CLR 460; [2024] HCA 30 at [42] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ) that the assumption that as a general rule juries understand and follow the directions they are given by trial judges is not immutable, their Honours continuing:

“The possibility that unfair prejudice in the form of the jury misusing evidence might not be alleviated in some circumstances by directions can be accepted. That danger is protected against by the exercise of the exclusionary powers conferred by ss 135 and 137 of the Evidence Act.”

80. As noted by Dhanji J in Ilievski at [104] the jurisprudence in relation to appeals of the kind then and now before this Court assumes that it is not a universal rule that directions will cure any irregularity (and that the observations of McHugh J in Gilbert at [31], noted above in the extract from Bartle and relied upon by the trial judge in Ilievski, were made in the course of his dissenting judgment). See also Alex v R [2026] NSWCCA 121 (albeit in the context of juror misconduct) at [173] and [203].

81. A trial judge determining an application to discharge the jury, the same as this Court considering whether the conviction constitutes a miscarriage of justice, must consider “the likely effectiveness of a judicial direction designed to overcome its apprehended impact” (Crofts at 440) which is plainly different from a blanket assumption that a jury will always be capable of following direction. The determination must be particular to the case – whether the direction is expected to be (or in hindsight judged to have been) capable of curing the prejudice (assuming juries will follow a direction if it is realistically capable of being followed).

82. Finally, before turning to the issues particular to this appeal, I note that the factors mentioned in Crofts of the stage of the proceedings at which the irregular event occurs, and the question of deliberateness, must be related to ensuring the fairness of the trial and avoiding a conviction which would constitute a miscarriage of justice. As noted by Hamill J in Kibby, and conceded by the respondent at the hearing of this appeal, deliberateness will rarely be a relevant issue when considering avoiding, or determining whether there has been, a miscarriage of justice arising from the adducing of evidence by the prosecution. The deliberate conduct of the prosecutor in Crofts was regarded by the majority in the High Court as a matter that had not been given adequate weight by the intermediate appellate Court. However the risk to the fairness of the trial would have been as high had this not been so. In Maric v The Queen (1978) 52 ALJR 631; (1978) 20 ALR 513 (“Maric”) the inadmissible evidence was adduced by way of leading questions from the trial judge. This was held to have likely increased the weight given to the evidence.

83. The timing of the impugned evidence in Crofts can be understood as related to the unfairness of the trial and whether the conviction constituted a miscarriage of justice. Its impact was found to have been likely greater because it arose at the end of the complainant’s evidence and just prior to a weekend. There was also reference to the trial being in its second day, but this was not explained in the same way as having a bearing on the fairness of the trial. In Maric, despite the evidence having been given on the sixth and seventh days of a trial that lasted 19 days, it was not accepted that for that reason it must be concluded that the jury had forgotten it. The likely impact of the irregularly received evidence, because of the stage of proceedings, is the relevant lens through which the inquiry (at trial, and on appeal) is to be viewed. I do not accept the contention seemingly advanced for the respondent (see above at [62]) that as a general proposition there is a heavier burden before a jury will be discharged the further a trial has advanced. It may have been meant that in the very early stages of trials, as a matter of practicality, juries are discharged without the test for necessity (to preserve a fair trial and avoid a miscarriage of justice) being strictly met. Any such practice requires no consideration on this appeal. However regardless of how far a trial has progressed, if discharge is necessary to ensure the trial is fair and avoid a conviction which would amount to a miscarriage of justice, the jury should be discharged.

84. Central to the current appeal is the view this Court takes as to the potential impact of the three impugned passages of evidence, in light of other relevant evidence in the trial and the directions provided. The applicant criticises the interpretation of the impugned passages by the trial judge, and the respondent endorses such interpretation. Resolution of this issue will be central to the degree of deference given to the trial judge’s view that direction was adequate to cure the prejudice. This issue is very similar to the issue which arose in Ilievski, and so providing further detail of the approach taken by the Court on that occasion is appropriate.

85. In Ilievski the applicants were convicted of aggravated armed robbery. An important prosecution witness, Ms Wilson, claimed lack of recollection regarding a number of issues when questioned in evidence in chief at trial. When shown her police statement she said she had signed the statement but did not write it. She said that she was forced to sign it as a result of threats made to her by the investigating police officer. In the course of questioning as to the circumstances in which the statement was made, she stated she was threatened outside her house by that investigating officer, which was the reason she went to the police station. She stated that while still at her house the police officer told her she:

“...can’t be a stupid idiot pretty much and that he’s got all this evidence against me shoplifting and on drugs and that my son would get taken away from me if I don’t. Whilst he was known to have – robbed a bank before and – what was I meant to do? Like what do you want me to do?”

86. Twice during the last sentence (where the hyphens are placed) the Crown Prosecutor directed the witness to stop but she did not, and the answer came to an end when the trial judge directed her to stop.

87. The witness was, with leave, cross-examined by the Crown but maintained that she signed her statement because of threats her son would be removed from her care. While being questioned as to whether she had made a complaint about the threats she stated had been made by the police officer, she answered:

“Who is going to believe a shop lifter who was on drugs over a detective, what leg do I have to stand on. I’m trying to protect me and my son, that’s all I was doing and that’s all I have been doing, I haven’t done anything wrong, I don’t want to be here I’m constantly attacked by everyone here like I need to be left alone. I haven’t done anything wrong, all I did was just give him what he wanted to, he’s the one that’s saying that Bosty is some bank robber and I have to –”

88. Objection was taken and in the jury’s absence counsel indicated he wished to check the transcript overnight. The following morning application was made for the discharge of the jury. The application was opposed by the Crown and not granted. With respect to both problematic aspects of Ms Wilson’s evidence, the trial judge noted the context of the witness being questioned in relation to an interview with police with respect to a robbery that had occurred more than one year prior to that interview. He reasoned that if the jury heard what the witness said, they would not have taken it to mean that the investigating police officer had referred to Mr Nolan as “a known bank robber”. Rather, his Honour expressed the view that the jury would have taken the police officer’s words as “a reference to a person he was then seeking to obtain evidence in respect of in relation to the robbery in June of 2012”. His Honour ordered that the evidence would be excised from the transcript and directed the jury as follows:

“On two occasions yesterday Ms Wilson referred to what she alleged was a conversation with the police officer in this matter, Detective Hanington as having said something to her to the effect that ‘Bosty was a bank robber’ and of course you would understand that the Crown case is that Bosty is a nickname for Mr Nolan, as you can see from the telephone intercepts or SMS messages that have been tendered so far in the course of the trial. I want to make sure that you understand that you must put those two references by her to Bosty or Mr Nolan as expressed by the officer ‘a bank robber’ are entirely irrelevant to your consideration in this trial. You act on the evidence that’s before you. Opinions of police officers or expressions by them of such opinions as to whether someone has committed an offence or not are not evidence, they are never allowed in criminal trials and it is of fundamental importance in order to achieve fairness in this trial that you put those comments that she made entirely out of mind.

They were in fact entirely unresponsive to the questions that she was being asked, so please when you retire, if you remember those comments, put them entirely aside. I have directed that they in fact be excised from the transcript in this trial. So if it happens, and in due course as you are able to do in a trial, you ask for a copy of the transcript of her evidence then it will not be contained in her evidence because it will have been removed simply because it’s entirely irrelevant and unfair to an accused that she volunteered that information, whether it’s true or not. That is whether it’s true that the officer said that or not. Thank you, ladies and gentlemen, we’ll now continue.”

89. Ms Wilson additionally thereafter, during the course of cross-examination, when asked what the police officer said to her when he attended at her house on the date her statement was signed, said “So, he had evidence of me going to court for shoplifting, he knew that I was on drugs, so he said to me that Shane was known to the police –”. Objection was taken and the witness was directed to not answer the question any further.

90. During the trial judge’s summing up he again directed the jury to ignore the witness’ inappropriate, unfair and unresponsive answers. During the summing up and at an earlier time (after the first two impugned passages of Ms Wilson’s evidence) the trial judge had also, in the context of evidence that police had intercepted telephone services and placed a tracking device on relevant vehicles at times proximate to the offending, directed against speculation as to why such courses were taken by investigating police.

91. At issue on appeal was the potential impact of the three utterances of Ms Wilson in the context of the trial as a whole and the directions provided. As noted by Beech-Jones CJ at CL at [14], the essence of the complaint made in support of the challenge to the conviction was that the trial judge wrongly characterised the portions of the evidence given by Ms Wilson described above at [85], [87] and [89] as referring to the applicant’s involvement in the subject robbery when the jury would have understood the evidence as referring to the applicant’s involvement in a robbery that pre-dated the subject robbery. This construction was submitted to be enhanced by the evidence that the applicants were the subject of surveillance by the police at the time of the subject robbery. Dhanji J, with whom Lonergan J agreed, reached a different view to the trial judge as to the potential impact on the jury of the evidence. At [89(5)], regarding the views of the trial judge, his Honour stated:

“In considering whether there has been a miscarriage of justice based on a failure to discharge a jury, the views of the trial judge will be entitled to significant weight. There is no reason to doubt the observation of the plurality in Crofts v The Queen (at 440-1):

‘The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.’”

92. His Honour confirmed at [89(7)] that although an appeal is from the conviction, this does not preclude an appeal based on the trial judge’s decision refusing to discharge. At [89(8)] his Honour explained that there is much to be said for an approach which focuses on the impact on the trial of the prejudicial material and the directions given, over any error in the refusal to discharge; and “The primary significance of the trial judge’s reasons for not discharging the jury is likely to be in its expression of the judge’s view of the capacity for directions to neutralise the irregularity, and the reasons for that view.”

93. Dhanji J analysed what the impugned words of Ms Wilson meant in the sense of how this evidence was likely to have been understood. At [100]-[102] his Honour addressed the applicants’ complaints that the trial judge had mischaracterised the nature of the first impugned statements and failed to consider Ms Wilson’s unfairly prejudicial evidence in the context of the other admissible evidence, finding force in these criticisms. For example his Honour held that:

“Whilst the words are not to be analysed in the same way one might consider a statutory provision, the word ‘before’ is significant. While the investigation was taking place in relation to a robbery which was, by that time, a year old, the use of the word ‘before’ was apt to suggest involvement in the robbery of a bank on an occasion prior to the occasion being investigated.”

94. Similarly, it was held that given that it was known to the jury that Mr Nolan was under investigation prior to the commission of the offence for which he was on trial, it was far more likely that the utterance that he was “known to have … robbed a bank before” would be understood as an acknowledgment that Mr Nolan was responsible for previous bank robberies.

95. In then determining that there had been a miscarriage of justice in, for example, Mr Nolan’s case, his Honour at [105] confirmed that his reasons were essentially those set out in that analysis of the trial judge’s reasons refusing to discharge the jury. His Honour concluded at [105]-[106] that:

“105 … Evidence that Mr Nolan was known to have robbed a bank before was bad enough. But, in the context of the high level of police interest in him at the time of the present offence, together with the serious nature of the offence charged, including the attempt to discharge a firearm in the direction of the witness, there was, in my view, an undeniable risk that the jury would be impacted by what they knew or deduced about Mr Nolan’s past, or at least police views as to his past.

106 … In considering the circumstantial case against Mr Nolan, a possibility consistent with evidence that may have been open, was more likely to be dismissed by the jury as unreasonable in the context of the impugned evidence. Put another way, a juror weighing alternatives would likely be more comfortable dismissing that alternative in the knowledge that Mr Nolan was known to have robbed a bank before.”

96. Beech-Jones CJ at CL dissented. His Honour’s conclusion as to what the jury “would or might have taken” from the evidence, taking into account the direction provided to the jury, was different to that reached by Dhanji J. His Honour noted at [8] that the direction provided suggested to the jury that the evidence (they were to disregard) was the opinion of the investigating police officer that Mr Nolan had committed the robbery the subject of the trial. His Honour did not accept a submission advanced on appeal that the impugned exchanges could be taken as Ms Wilson conveying her own views as to Mr Nolan being a bank robber, rather than the police officer’s stated views. His Honour explained at [15]-[18] his conclusion that there was not a “realistic likelihood that the jury would have understood … the overall effect of Ms Wilson’s evidence” to be that the police officer thought Mr Nolan committed a separate robbery before the subject robbery, as opposed to a bank robbery before the investigating police officer attended at Ms Wilson’s home (i.e. the subject robbery). This included paying regard to the direction provided, which effectively told the jury what the evidence meant. His Honour was accordingly not satisfied that the three utterances by Ms Wilson occasioned a miscarriage of justice.

97. A similar process to that undertaken in Ilievski is appropriate in this case. Something further needs to first be said about two aspects of the evidence otherwise admitted in the second trial in this case. It is not clear why the record of Sienna’s 26 November 2019 text message to the applicant tendered as exhibit 5 (above at [26]) did not have further redacted from it Sienna’s references to her sisters, namely: “Though im mot certain but I’m under the impression that they didn’t have it as bad as me but to all of us...” (after which she wrote “you’re a monster”); “I don’t know as of yet how old the girls were, and they’re yet to hear my story” (which was followed by “it all started when I was 11”); and that her husband was going to have to mend the damage done not only to her, but to her little sisters. There is no forensic purpose apparent from the trial transcript for including these three references in exhibit 5, and I infer that leaving them in was an oversight, in circumstances where the second trial followed the day after the discharge of the jury in the first trial. It is clear from the transcript following the discharge of the jury in the first trial, and the discussion upon the presently relevant discharge application, that it was the common endeavour of the parties that the jury in the second trial should not be aware of Katie’s allegations. There was plainly not the same high degree of prejudice regarding the inference that Sienna had knowledge of Cara’s allegations, but there was no need to include the evidence suggesting this in the above three ways, if this could not be edited to make plain Sienna was referring only to Cara’s allegations.

98. The respondent did not contend in this Court that the impugned passages did not give rise to a miscarriage of justice because the jury would have believed anyway (such as by reference to these three parts of exhibit 5) that Katie (or Daisy) had also been abused or was alleging this. These three parts of exhibit 5 were not the focus of submissions for either party in this Court.

99. What is important is that this evidence in exhibit 5, which the jury was not required to disregard, was received by them shortly prior to hearing Sienna’s problematic evidence and remained with them up to hearing NH and Helena’s problematic evidence, and until their verdicts were delivered. This evidence provided additional important context for assessing the way in which the jury could have interpreted the three impugned passages. The trial judge was not referred to this evidence on the discharge application. It plainly amplified the prospect of the jury realising that in the impugned passages of evidence the witnesses were referring to Katie and Cara having been sexually abused by the applicant.

100. It is also not clear why any evidence of Helena’s conversation with Sienna in November 2019 was adduced. Sienna gave evidence that the conversation occurred on 25 November 2019. The Crown did not rely upon this as evidence of complaint, in the sense I have referred to above at [13]. There was no meaningful advantage to the applicant in Sienna’s initial denials to her mother of the applicant touching her, in circumstances where she had complained to her friend NH nearly 10 years earlier, and where there was no challenge to the chronology of Sienna telling Cara in November 2019 that she had been sexually abused by the applicant, before finding out from Cara that something had also happened to her. The fact of Helena pressing Sienna as to whether the applicant had touched her was highly prejudicial.

101. It is in my view clear that the risk was very high that the jury understood from one or more of the three impugned passages that Katie had been sexually abused by the applicant, or that she had alleged the same (and that this was believed by her mother, and sister Sienna). The following aspects of the evidence found this view:

102. The jury was aware that in November 2019 Cara informed Sienna that she had been sexually abused by the applicant, as Sienna gave evidence of that conversation shortly before the problematic exhibit 5 was tendered, and her impugned answer was given. It was accordingly abundantly clear that what she had recently found out about her sister Cara concerned sexual abuse;

103. Sienna’s anger from what she had learned about her sisters caused her to call the applicant a paedophile (not a thug, bully, or brute, for example);

104. The three aspects of the text message in exhibit 5 I have above queried clearly suggested child sexual offending against Sienna’s sisters. Given the lack of focus on this issue in submissions on the appeal, and the fact that the respondent was not asked for submissions as to the effect of this evidence, it should not have decisive weight. It is nonetheless part of the body of evidence the Court is required to take into account. Sienna was confronting the applicant about his alleged sexual abuse of her. To state that she was under the impression that her sisters did not have it “as bad” as her can only have been referable to an understanding about abuse that was similar in kind and so capable of comparison as to severity. Not knowing how old the girls were when it happened to them, but confirming that she herself was 11 when it started, more strongly suggests a concern about the development of the respective victims relevant to child sexual offending, as opposed to physical abuse. Sienna’s husband being required to mend the damage done not only to her, but also to her little sisters, confirms again enduring harm done to all three of a common or similar kind;

105. Having only recently found out about what was allegedly done to her younger sisters is consistent with the clandestine nature of child sexual abuse, and less so with domestic violence within the same household;

106. Helena asking Sienna directly in November 2019 whether the applicant had touched her, and persisting with that question despite denials, with eventual agreement that the applicant had done to her the same as he had done to Cara and Katie, strongly suggests understanding and perhaps even acceptance by Helena and Sienna of sexual allegations against the applicant;

107. Sienna’s evidence, referred to above at [28], that when she determined to report the alleged sexual abuse to the police she, Cara and Katie were all going to attend the police station together; and

108. NH’s evidence was directly related to her discussion with Sienna of her knowledge of the applicant’s alleged sexual abuse of Sienna (disclosed to her in 2010), at a time when the same was being reported to the police by Sienna (in 2020). The resurgence of the issue and development after such a long period to the point of reporting to police was linked with discovery of relevant wrongdoing to Sienna’s sisters, and Sienna telling her husband about her abuse.

109. I do not regard defence counsel’s silence at the time of NH’s reference to “sisters” as undermining this in any way. He may, like the trial judge, have heard it and understood its potential significance and consciously avoided drawing attention to it. He may have not heard it. There is no basis to conclude that the jury would have “missed it”.

110. I accordingly do not accept the construction of the impugned passages given by the trial judge, or the respondent’s argument as to their construction in this Court. I accept the submission of counsel for the applicant that the relevant inquiry (for the trial judge, and in this Court) is the risk that the jury may have so interpreted the three exchanges. However Mr McLachlan was also correct in my view to submit that the issue is very clear in this case as to the likely understanding of a sexual connotation to the evidence. As I indicated, for the purpose of determining a miscarriage of justice, it is sufficient to confirm my view that the risk was very high that the jurors would have so interpreted the answers.

111. This interpretation of the potential effect of the impugned passages necessarily has an impact on the consideration given to the findings of the trial judge, and the submissions of the respondent, regarding the capacity for the jury to follow a direction to ignore the evidence. Once the real risk is accepted of the jury understanding that the applicant sexually abused his daughter Katie, the capacity for ameliorative direction is unrealistic. The relevant inquiry for the trial judge was, and for this Court is, directed to the significance of the evidence and whether it is of such a nature that a jury could reasonably be expected to be able to disregard it if instructed to do so. I am of the view that there is a realistic prospect that a jury could not, and that there has been a miscarriage of justice.

112. I accept the applicant’s argument that it is not important that the evidence amounted to inadmissible hearsay. In Ilievski the remarks were hearsay accounts given by Ms Wilson of, on one view, further offending. In Kibby the impugned remark was made in the context of a second trial, where at the first trial the applicant had been found not guilty of one of the two counts of sexual assault. At the second trial, the officer in charge gave evidence that the complainant had complained about two sexual assaults; that is, that the complainant had complained about the sexual assault the subject of the earlier acquittal. The problematic evidence considered by the High Court in Maric was also hearsay evidence. Relatedly, contrary to the argument of the respondent, I do not regard there having been any amelioration of the impact of Helena’s impugned evidence by virtue of its contrast with the terms of her police statement.

113. Contrary to the submission for the respondent, I am of the view that the inadmissible evidence before the applicant’s jury was more prejudicial than the inadmissible evidence in Crofts. In that case the appellant had been charged with 13 offences of a sexual nature, on eight separate occasions, against a child aged between about 13 years and her 16th birthday. The appellant was a friend of her family. The statement of the complainant had described many more instances than the 13 pressed by the prosecutor. The trial judge ruled that evidence of instances of misconduct not the subject of charge should not be given, and requested that the complainant be firmly instructed to that effect. During her evidence the complainant referred to other such instances. In particular, during re-examination, she responded to questions by the prosecutor regarding whether she ever thought of a way to stop the abuse by stating that she had thought that the next time that the appellant ejaculated in her mouth she would keep it, put it in a jar and take it with her to the police as proof.

114. The appellant was convicted of one count of committing an indecent act with a child under the age of 16 years and four counts of sexual penetration of a child between the ages of 10 and 16 years. He was acquitted of eight counts which, with the exception of one, did not assert penetration.

115. The counts on which the appellant was convicted all related to events said to have taken place on a single night between September 1991 and May 1992, the latter date being fixed by reference to the complainant’s 16th birthday. On that occasion he was alleged to have gotten onto the complainant’s bed, inserted his finger in her vagina, inserted his penis in her mouth, placed his mouth on her vagina and penetrated it with his tongue, and pushed his finger into her anus. He allegedly ejaculated into the complainant’s mouth, after which he left the room. The appellant’s case was described as one of complete denial of the alleged events and a suggestion that the complainant was “disturbed” and lying.

116. Toohey, Gaudron, Gummow and Kirby JJ stated at 441 that the peculiar importance of the reference to other events of the kind described by the complainant could be appreciated when considering that four of the five counts upon which the appellant was convicted were the only ones on the indictment, with the exception of count 9, which alleged sexual penetration. There was therefore a clear reference by the complainant, in the presence of the jury, to the “usualness” of the appellant’s conduct, including penetration, which went beyond the matters upon which the prosecution had elected to charge him.

117. The statements were described by their Honours as highly prejudicial and inflammatory, especially as they came at the end of the complainant’s evidence. It was found that they would have been left vividly etched on the mind of the jury over the long weekend adjournment which immediately followed.

118. At 441 their Honours described one of two matters the intermediate appellate Court had failed to take into account as the fact that it was especially difficult for the judge to fashion a direction to the jury which would help them to eradicate from their minds the highly prejudicial statements of the complainant, continuing:

“It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account. The difficulty in this case was that the judge could not, and did not, refer specifically to the evidence which was so prejudicial because to do so would have reinforced the prejudice. In some cases it is possible for the judge to refer to the inadmissible evidence and to explain why it must be excluded. That course was not open in this case and for that reason was not followed.”

112. Dawson J was in dissent, concluding at 432 that it was open to the trial judge to conclude that direction to the jury was adequate to overcome any prejudice, such that the ground relating to the failure to discharge the jury must fail.

113. The prejudice caused by the prospect that the applicant had sexually abused a different girl of similar age to the complainants, his own daughter, was considerably greater than one complainant whose evidence is disputed alleging further similar offending.

114. I do not accept the submission for the respondent that the acquittal on count 9 offers an indication against there having been a miscarriage of justice. As with all counts, the occurrence of the act was in issue; however given Sienna’s age in relation to that charge (17 years old) and her account of not indicating any opposition to the sexual intercourse, absence of consent and the applicant’s knowledge of this were also live issues requiring proof beyond reasonable doubt. According to Sienna’s evidence she had pretended to be asleep during all acts of sexual intercourse. On the last in time of these prior to count 9, particularised as an individual alternative count (count 8), she was 15 and the sexual intercourse occurred with her bottom up in the air and the applicant penetrating her from behind. She alleged that he spoke to her about the prospect of having “cum a bit inside me” such that she should jump around in the shower to get it out. The jury may well have believed Sienna regarding the occurrence of sexual activity the subject of count 9, but had a reasonable doubt about whether in the circumstances (particularly given her age and the way in which she was positioned during the act of count 8, and the conversation alleged to have occurred afterwards) she either allowed it to happen or the applicant believed she was allowing it to occur.

115. Determination of whether there has been a miscarriage of justice after a jury has not been discharged following the receipt of prejudicial and inadmissible evidence, as with the determination by the trial judge of the application itself, is highly factually specific. The determination in other cases relied upon by the respondent that directions have been adequate in those cases provides little assistance. To take examples, the outbursts of witnesses in the decisions to which reference was made of Wilson and Bartle were not comparable to the evidence before the jury in the applicant’s trial. In Bartle the fourth ground of appeal concerned an outburst by a co-accused while being cross-examined by the Crown Prosecutor on his and another’s use of names other than their own. The suggestion was that by so doing they were trying to reduce the chances of being identified as actors in a criminal enterprise. He gave responses such as “No. You’ve got me on trial for my past here, we’ve all got criminal records – and been in gaol and [a witness] has made a fool out of all of us including you and mainly myself and your policemen – And he’s got your policemen to lie to a judge for you”.

116. The trial judge directed the jury to disregard entirely the emotional outburst, and not hold it against the co-accused who had it. He also said “In one particular respect I’ll refer to the particular words that he used because they were totally wrong in fact and at one stage he said ‘we’ve all got criminal records and been in gaol’ and that is totally wrong in fact”, and directed the jury again to ignore that statement, and everything else said. All accused applied for the discharge of the jury. The trial judge referred to his view that generally juries will disregard evidence if directed to do so. Mason P and Barr J dismissed the applicant’s appeal against conviction, stating at [82]-[83]:

“82 His Honour was correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out. The experience of the Courts is that reliance on the integrity and sense of duty of jurors is not misplaced: The Queen v Glennon (1992) 173 CLR 592 per Dawson J at 614-5.

83 Speaking in a different context about the expectation of the Courts that juries will obey the directions they are given, McHugh J said this in Gilbert v The Queen [2000] HCA 15 at 31-

‘The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.’”

117. The Court referred to the evidence by which the jury would have known that the evidence of the co-accused was not completely correct, including because one accused had raised good character and had not been challenged about it. The Court in such circumstances did not accept that the jury would have been unable to put out of their minds the things the co-accused had said, concluding at [87] “We do not think that the circumstances would have led the jury to think that [the co-accused] had Bartle particularly in mind. He did not mention Bartle. There was no evidence of wrongdoing on the part of Bartle other than that which was properly admitted”. Their Honours referred at [88] to the outburst being short, and the jury being immediately told to disregard it, including because it was wrong, in circumstances where the jury knew it was wrong. Smart AJ would have found a miscarriage but applied the proviso.

118. I regard similarly the respondent’s reliance on the decision of this Court in Dries concerning the importance of the trial judge’s view as to direction being adequate to cure prejudice. In that case improper comments in the Crown closing address were corrected by the Crown Prosecutor and trial judge, and the subject of strong direction. There was no issue on appeal as to any mischaracterisation by the trial judge of the way the jury would have taken the comments. As explained by Dhanji J in Ilievski, where this Court characterises differently to the trial judge the prejudicial evidence there is a necessary reduction in the deference to the trial judge’s view regarding the capacity of directions to cure prejudice.

119. In this case the credibility of the complainants, and of the applicant, was central. Jurors may not know why they believe or disbelieve a witness. A juror who was aware that Katie was sexually abused by the applicant, or that she had alleged this, may not know themselves that this had contributed to their disbelief of the applicant or belief of the complainants in this trial. Far less may they have articulated such impression, so as to receive censure or instruction from other jurors, or conscious recall of the trial judge’s directions.

120. I am satisfied that the three impugned passages of evidence amounted to an irregularity that could realistically have affected the reasoning of the jury to the verdicts of guilty that were returned. The applicant has established that there has been a miscarriage of justice, and subject to the consideration of the proviso his convictions must be quashed.

Proviso

121. A miscarriage of justice having been established, s 6(1) of the Criminal Appeal Act provides that the Court shall allow the appeal, although the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The onus is upon the Crown to satisfy this proviso. A necessary but not sufficient requirement is that the Court is independently satisfied beyond reasonable doubt of the guilt of the applicant.

122. It was submitted for the respondent that the Court would be satisfied beyond reasonable doubt of the applicant’s guilt for the following reasons:

123. Both complainants gave clear and cogent evidence of each of the charged acts and were unshaken in their account during cross-examination;

124. The evidence of the complainants that the offences occurred whilst dark or very early in the morning was consistent with the evidence of Helena that the applicant was a habitual very early riser;

125. Cara’s evidence that she moved the furniture in her room (in an attempt to prevent the applicant’s access) was supported by Helena, who also stated that the applicant complained about the relocation of the furniture;

126. It was not in dispute that both Sienna and Cara left home at a young age, reflecting serious dysfunction within the household;

127. The evidence of Sienna was supported by her complaint to NH when she was 17 years of age;

128. The evidence of Sienna was significantly supported by the text messages exchanged with the applicant. After accusing the applicant of having “raped” her over a period of six years from the age of 11 and describing him as a “paedophile”, the applicant apologised, stating “I need to mend this”, acknowledged that he had “fucked up in the past big time”, said that he did not know “what was going on in [his] head. Its fucked up”, and implored Sienna to “trust [him] with kids” because he was “not that person anymore”.

129. The evidence of Cara was significantly supported by the text messages she exchanged with the applicant. After texting the applicant that she was “through with this” and “done”, the applicant responded that he needed to “mend things”, that he could not change the past, that he was “not that person anymore”, and later described himself as a “drunken cunt that fucked up”.

130. The assertion to the police officer during the electronically recorded interview that he could not recall receiving or sending either sets of text messages to Sienna and Cara, when he later accepted in evidence that he did recall them, was a deliberate lie relied upon by the Crown as evidencing a consciousness of guilt.

131. The applicant’s evidence that Sienna did not have her own bedroom at home 1 and home 2 and his account of his work patterns was inconsistent with the evidence of Sienna, Cara and Helena.

132. The applicant’s evidence as to what he meant by his responses to Sienna and Cara was so “glaringly improbable” that this Court does not usurp the role of the jury in rejecting it as a reasonable possibility: Hofer at [61], Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44 (“Orreal”) at [22]. The responses to Sienna’s messages were sent immediately after Sienna accused him, in express terms, of having raped her from the age of 11 and described him as a “paedophile” and “monster”. In that context, the applicant’s evidence that his statement that he was sorry and wanted to “mend things”, had “fucked up in the past big time”, that he did not know “what was going on in [his] head” and that Sienna had to “trust [him] with kids” were directed only to an isolated incident involving Sienna’s child being left at a creek in the company of other adults, and to his alcohol consumption, was wholly implausible.

133. Similarly, as regards the messages exchanged with Cara, the applicant’s evidence that his expressions of being “so sorry”; his repeated reference to the need to “mend things”; his assurance that he was “not that person anymore”; his assertion to Cara that it was “not your fault and people won’t be judging u at all” and his description of himself as a “drunken cunt that fucked up”, were referable merely to allegations being made or repeated by Sienna was also so glaringly improbable as to be incapable of acceptance.

134. It was submitted that therefore even making due allowance for the natural limitations that exist in the case of an appellate Court proceeding wholly or substantially on the record, this Court can be satisfied that no substantial miscarriage of justice has occurred. Reliance was placed on the statement by this Court (Adamson JA, Hamill and Ierace JJ) in DP v R [2025] NSWCCA 45 (“DP”) at [75]:

“Whether there has been a substantial miscarriage of justice does not depend on generalisations or categories. It depends on the facts, circumstances and error established in the particular case. Thus, the circumstance that the complainant’s credibility was in issue at the trial (as will commonly be the case in sexual assault trials) does not prohibit the application of the proviso. However, where credibility issues are crucial to the outcome, its application may in practice be less frequent having regard to the jury’s constitutional role and the ‘fundamental precept’ of a criminal trial: cf the separate judgments of Deane J and Gaudron J (dissenting in the outcome) in Wilde v The Queen (1988) 164 CLR 365 at 357, 377-378; [1988] HCA 6 (Deane J) and 382-384 (Gaudron J).”

124. It was contended for the applicant that the nature of the miscarriage of justice, in the context of a trial where the credibility of each of the complainants and applicant was crucial, meant that the proviso was not able to be applied.

125. Further aspects of the evidence at trial need to be set out to consider the respondent’s invoking of the proviso.

126. In relation to the alleged timing of the sexual offending, Sienna gave evidence of the incidents occurring while she was sleeping and that they caused her to wake up, and Cara gave similar evidence of being woken up to the assaults by the applicant.

127. In relation to the first assault while living at home 1, Sienna gave evidence in chief that it was dark in her bedroom at the time, and the lights were not turned on.

128. In relation to the timing of the assaults that occurred while living at home 2, Sienna gave the following evidence in chief:

“Q. What time of the day or night did this occur?

A. It was through the night. I believe it was probably early morning because he would get up early, like, before everyone else, every morning.

Q. And was getting up early something that [the applicant] would regularly do when you were living at [home 2]?

A. Yes, he did it every day at every house.”

129. When Cara was asked when something first happened with the applicant, she responded “I remember it being very, very early in the morning”. She also gave the following evidence:

“Q. [Cara], is it possible to say what time of the day this happened?

A. Very early in the morning. I couldn’t really say exactly what time, but the sun wasn’t up yet.

Q. Was it dark in your bedroom?

A. Yep.

Q. Just on that, [Cara], when you lived at [home 4], would it be normal for [the applicant] to get up early? In general terms I’m talking about.

A. Yeah, yeah, always. [The applicant]’s always been an early riser regardless of what time of year it was, he was always up early. And when we had a fire, that fire stayed going through winter, it did not go up. It stayed going.

Q. When you say the fire stayed going, who was in charge of keeping it going?

A. [The applicant], predominately.

Q. Would [the applicant] do anything in relation to the fire in the early hours of the morning?

A. No, but he’d stoke the fire so then, well, especially when mum and [Daisy] would get up it would be nice and warm, and then when we would all get up to get ready for school.”

130. Cara repeated on several occasions that it happened “every morning”, and in relation to a particular incident, that it was “very dark”. She also gave the following answers in relation to the timing of the assaults:

“Q. And do you recall what time of the day or night it was when that occurred?

A. It was always in the morning. Always early in the morning.

Q. Always before the sun came up, that never changed?

A. Yes, yes.”

131. In relation to one occasion when the applicant attempted to enter Cara’s room after she had moved the furniture, she said that she was awake at that time, and that she started to stir at around that time most mornings.

132. Cara gave evidence in cross-examination that when she spoke with Sienna about the timing of the assaults against her, she told Sienna that it happened to her of a morning.

133. Helena gave evidence in chief that the applicant would leave home at 6 am for work while living at home 3, and then the following evidence was given:

“Q. Just on a related topic, you mentioned that [the applicant] would leave around 6 o’clock in the morning when you lived at [home 3]. What can you tell us about the times that [the applicant] would generally get up of a morning, or his general sleeping habits in the time that you were in a relationship with him?

A. [The applicant]’s a very early riser. He would be up before 5 o’clock every single morning. Yeah. He’d get the fire started before any of us even got out of bed so the house was nice and warm and everything like that.

Q. Would it be you or [the applicant] that would normally go to bed first, or is too different to say?

A. Perhaps me. Yeah. Normally after I put [Daisy] to bed then, yeah, I was like in bed.

Q. Were there ever times when you would wake up and [the applicant] would not be beside you? What can you tell us about those times?

A. Many times. I’d wake up at 2 o’clock in the morning and he wasn’t there. I’d get up and go looking for him, he’d be on the computer.”

134. These answers were confirmed in cross-examination. Helena also confirmed in cross-examination that the applicant would leave at 6 am in the morning and his normal time to get up was 4:30 to 5 am. She quite often woke up before 6 am to make his breakfast, but not always. She also said that “I’m sure that I went to bed the majority of the time before he did but he was awake every single morning before I was”, and in response to whether the applicant was an early riser, said “Absolutely. I do not recall a single morning that I was awake before he was”.

135. The applicant gave evidence that he ordinarily woke up at 6 am or 5:30 am while living at home 2 and around 6 am while living at home 1. He woke up at a normal time being 5:30 or 6 o’clock in the morning whilst living at home 3, but there were times he woke up earlier than that. While living at home 4 he would get up at 5 am as he had to leave for work a bit earlier. He confirmed this in cross-examination. His sleeping was varied while living there – he did not always sleep right through, and he would get up in the middle of the night to take medication and sometimes he would stay up.

136. In cross-examination the applicant accepted that he was an early riser but said that during his relationship with Helena, he was not up before 5 am every single morning; sometimes it would be earlier, but just about every morning Helena would be up before him. He would occasionally get the fire started for the household, but that was not the routine. He said he would not do it all the time; they took turns, and sometimes the kids would do it if they were up, but they were up “Not often” or only on “Very rare times”.

137. The applicant confirmed during cross-examination that, when living at home 1, he woke up at around 6 am and not well before that, later saying it was 6 or 6:30 am and again denying it was “a lot earlier” than that. When living at home 2 he would sometimes be up earlier than 6 o’clock and sometimes it could have been as early as 5 am, but not always.

138. In cross-examination the applicant agreed that sometimes Helena would find him on the computer in the early hours of the morning, but disagreed that there was any such occasion around 2 o’clock in the morning. However he then said he could be on the computer “at all times”, and clarified that included such early hours of the morning.

139. Daisy gave evidence in the defence case. She said that when living at home 4, she would sleep in her parents’ bed with her parents four or five nights a week. She said if she woke up during the night, her father would still be in bed, that he was a very deep sleeper and it was a struggle to wake him up.

140. Cara’s bedroom at home 4 only had three walls (one of which had a door to the lounge room) and backed onto a long room used as a rumpus room, which also had a computer. Her parents put up a curtain between her room and the rumpus room to delineate her space. She gave evidence that after the applicant commenced assaulting her she rearranged furniture in her room to try to deter him from coming in. She said that initially her bed was next to the curtain so it was easy to go out of the room including to go to the toilet. She moved her bed up against the wall and moved her cupboards and desk against the curtain, although there remained a gap of about 20 cm. She gave evidence that the children were not allowed to move their furniture in their rooms, and each of her mother and the applicant told her off for having done this. Helena gave evidence that at one stage Cara moved her clothes cupboard over by the curtain in her room so that nobody could get in or out from that side of the room, and that the only way into her bedroom was by using the door. She said that the applicant complained of this because it was said to stop the air coming through to the computer area when he was sitting on the computer. She also gave evidence that Cara was otherwise very private and would not allow anyone in her room, including Helena (to put Cara’s clothes away) or her sisters.

141. Further detail of the applicant’s historical abuse of alcohol was provided by a number of witnesses. Sienna gave evidence of the applicant drinking on an almost daily basis, with this at times problematic to the extent that he became significantly intoxicated. She accepted it could be said that the applicant’s excessive drinking was a cause for concern for the family when she was residing with the applicant. In cross-examination Cara also confirmed that there was regular consumption of alcohol during family get togethers, and agreed that the applicant would “drink to excess where he’d get significantly intoxicated”. She said the applicant would drink alcohol on an almost daily basis but that his drinking did not become problematic or a concerning issue in the family.

142. Helena gave evidence as follows:

“Q. … Can I ask you, in terms of [the applicant], [the applicant] used to drink alcohol on a regular basis, almost a daily basis, isn’t that correct?

A. Yes, absolutely. It was a major part of our life, I would say. He made his own homebrew and his own spirits, yep.

Q. And a major part of your lives in the sense that from the time that you met [the applicant] that he would essentially have a drink every day that you knew of, correct?

A. That’s correct, yes.

Q. Then it was a situation where he would quite often drink alcohol to excess, where he’d get intoxicated, isn’t that correct?

A. That’s correct.

Q. It became, in terms of [the applicant], that became problematic for him in the household, isn’t that correct? It became a problem within the household, the family, that [the applicant] would drink to excess, isn’t that correct? That became an issue?

A. Yes.

Q. So you nodded and sorry, I didn’t hear you.

A. Yes.

Q. It became more of an issue when he was living at [home 4]?

A. Yes.”

143. The applicant told police in his recorded interview that he previously had a drinking problem. He stated he had cut down on alcohol himself without professional assistance. He gave evidence at trial that he would drink alcohol while living at home 4 “Pretty much every afternoon”, that he drank some bourbon but mostly beer, and “a bit of spirit but not often”. He agreed that drinking was also a daily routine while he lived at home 2; sometimes it would be a couple of beers, other times he would drink eight or ten beers in the afternoon. He would drink more than he normally would during family get togethers, and probably more if it was a weekend. He accepted that he would drink to a state of intoxication and there were times where he drank more than he normally would, but mainly at family functions or barbeques.

144. There was varied evidence regarding the applicant’s absence from home 4 and others residing at the home. The applicant’s half brother gave evidence supporting aspects of the applicant’s evidence regarding use of rooms at home 4 in particular at different times. There was also variation between Crown witnesses on this issue with Sienna suggesting the applicant then stayed overnight at his workplace very rarely but Helena stating that the applicant spent multiple days a week living at his workplace while the family resided at home 4.

145. As noted the respondent places significant reliance on the messages sent by the applicant to the complainants in November 2019, and his response to these at trial. Following the text message from Sienna to the applicant at 1:37 pm on 26 November 2019 quoted above at [26], he replied as follows:

2:03 pm: “Hay [Sienna] I haven’t asked [Cara] for coffy I have asked her to coach up and talk I need to mend this and I don’t want to lose use uses r all I have I’m sorry I can mend things I need the grand kids [Sienna] please don’t take them I need use in my life iv fucked up in the past big time but please let me try mend this please [Sienna]”

2:05 pm: “I don’t no what was going on in my head its fucked up”

2:12 pm: “I love the kids [Sienna] never do anything to heart them u have to believe [Sienna] please”

2:16 pm: “Every one seems to no already sweetheart u have to trust me with kids I’m not that person anymore I have got help in the past [Sienna] please [Sienna]”

146. On 27 November 2019 the applicant sent a further text message stating:

“I’m not a monster [Sienna] or a creeper you no that sweetheart I love yous all so so much I don’t want to lose yous please I do anything to have yous back in my life again sweetheart yous need to try trust me please [Sienna]”

147. In November 2019 Cara sent a message to the applicant, which ended “through this shit. I’m done”**. The following text message exchange then occurred:

Applicant: “I’m so sorry [Cara] can we cach up sometime and talk about it I need to try mend things and talking would be a good start for me to at least try salvige my family I love yous and I no I carnt Chang the past but need to show that I’m not that person anymore I want all yous and grand kids to trust me sweetheart”.

Applicant: “U carnt be just done [Cara] your only young and have a grate life ahead of you I need to mend this as much as possible some how”.

Cara: “How am I possibly meant to go living my life with people knowing this shit. It’s fucked up”.

Applicant: “It’s not your fault and people wont be judging u at all I was drunken cunt that fucked up [Cara]”.

Applicant: “Hi [Cara] mums really losing it with me and I don’t blame her I need the chance to try mend all this. I love you [Cara] and have alwase tryed my hardest to be there for yous and have tryed my hardest to get uses girls back talking again I no that dosnt make up for anything but I no I can mend this we have been close for a long time [Cara] can u tell me how far this will go please [Cara] xo”.

148. On 8 June 2020 the applicant participated in an electronically recorded interview with police in relation to Sienna’s allegations. When the text messages sent to the applicant by Sienna on 26 November 2019 were read to him, he said he could not recall receiving any of those messages. The Crown relied upon this response as a lie indicating the applicant’s consciousness of guilt, and orthodox directions were provided to the jury regarding the limitations upon use of this evidence this way in accordance with Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28. This included the need for a deliberate lie, the fact that people do not always act rationally in such circumstances, and requiring the applicant’s account of nervousness to be taken into account.

149. The applicant gave evidence for over a day at his trial. He denied all offences and provided evidence relevant to a more limited opportunity to offend than suggested by the complainants and Helena, by reference for example to others living in the homes at different times and his work obligations. A number of additional witnesses were called in the defence case, addressing in part similar topics.

150. The applicant provided detail of the ongoing relationship he had up to November 2019 with each of the complainants, and his close relationship with Sienna’s children.

151. The applicant gave evidence that he lent $8,000 to Sienna for her wedding, which was never paid back. He stated that there was an occasion when he was looking after Sienna’s son on his own property, as he regularly did, including without Helena being present (in addition to being asked to go to Helena’s property to assist when she was babysitting, as Sienna did not want Helena caring for the children by herself). He said he had been harassing Sienna for repayment of the money, and her son was with him for the weekend. At some stage, he was “down the creek with family and friends” and left the child there, to return to the house to obtain more beer and some snacks. He said that Sienna turned up and “sort of lost her nana about me leaving [the child] down there”. The applicant said that during the ensuing argument he told Sienna that if she did not start paying back the money she owed him, he would tell her husband about the debt. He said Sienna “lost the plot”. He described the events thereafter as “shit hit[ting] the fan”. He had also spoken to police in his interview about the argument that erupted over the debt owed by Sienna as the catalyst for her making the allegations. He gave evidence at trial that the amount owed by November 2019 was about $12,000.

152. When taken to the text messages of 26 November 2019 the applicant stated that there was a massive argument after he said he would tell Sienna’s husband about the money, and a number of text messages and phone calls, including phone calls to him from Sienna late at night before those text messages, telling him that he would not win. He stated that there were heated discussions over a number of days, and he started ignoring her. Asked about the comment in the text “I need to mend this”, he stated “The only thing I wanted to mend was to get my grandkids back, because she threatened to take them off me”. He said Sienna was on the warpath, and he would do anything to get his grandchildren back.

153. In cross-examination the applicant denied that in the messages to Sienna, he was apologising for the persistent sexual abuse of her when she was a young girl. He said that when he sent the message to Sienna “iv fucked up in the past big time but please let me try mend”, he was referring to leaving Sienna’s child by the creek whilst getting beer and snacks, as well as his drinking.

154. The applicant stated that he said “I’m sorry” because he had realised the only way he was going to see his grandchildren again was to “start sucking up and from then on, I just tried to mend everything. The money wasn’t worth me losing the grandkids”. He said when he wrote that he “fucked up in the past big time”, he was referring to leaving Sienna’s son at the creek to get beer, to his drinking (which was quite a bit at that time), and responding to her other grievances aired in that same period (such as abandoning the family when he moved out).

155. The message “I don’t no what was going on in my head its fucked up” was described by the applicant as relating to his drinking. He had heard from Cara about Sienna’s allegations, which was the context for stating that everyone seemed to already know. When he wrote “u have to trust me with kids I’m not that person anymore”, he was again referring to his drinking and leaving Sienna’s child by the creek. The reference in the message to getting “help in the past” was a reference to two or three alcohol counselling sessions in 2016 and 2017. He confirmed he had never received any help for sexual interest in children (and stated that he had no such problem for which he would need help). He stated that he denied what he had been accused of in her text messages by his response that he was not a “monster” or a “creeper”, and stating that she knew this. He gave evidence that he felt he needed to convince Sienna that he could be trusted around her children because she had threatened to take them from him.

156. It was put to the applicant that he lied to the police in his interview when he stated he could not remember receiving messages from or sending messages to Sienna. He said “I don’t remember if I was lying to them or just nervous…I don’t remember”. He gave evidence that he has difficulties with his memory because of an incident of meningitis for which he was hospitalised in about 2017 or 2018. He had told police in his interview on 8 June 2020 that he did not think he had a problem with his memory.

157. The applicant gave evidence that he asked Cara to catch up in November 2019 because of the rumours Sienna had spread. He denied that he was apologising for sexually abusing Cara in the messages sent to her. He said that he was apologising for and offering to mend things in relation to Sienna’s allegations, as he and Cara had a lot of mutual friends and she was hearing about the allegations that way, and also because Sienna had aired the allegations through family and on Facebook, and Cara was very embarrassed. He stated he had spoken to Cara on the telephone or by text before sending the relevant messages.

158. When asked why he had to “mend” something with Cara, he said “Because [Sienna] was spreading these rumours around, that actually was affecting [Cara] at the time quite a bit with – with friends and what not”. He said the comment, “I know I can’t change the past. But need to show that I’m not that person anymore” “relates back to [Sienna’s] nonsense”. He said “It just would have been about leaving [Sienna’s child] down the creek, it would have been about me drinking. Most – most of the first allegations that come out were mainly about that, and [they] only turned into this as time went on”. He stated that his reference to being a “drunken cunt that fucked up” was in reference to the time Sienna came to pick up her son and he had left him down at the creek while he (the applicant) was drinking. When he asked Cara “how far this will go”, he was seeing whether she knew how far Sienna was going to take her allegations.

159. In my view this case is clearly one where the natural limitations of proceeding on the record preclude a conclusion that guilt was proved beyond reasonable doubt: Weiss at [41]; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 (“Baini”) at [29], [32]; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 (“Castle”) at [68]; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 (“Kalbasi”) at [15]; Orreal and MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 (“MDP”) as discussed further below.

160. In many cases where the proviso is not applied, it is because the jury had been required to accept the contested evidence of a Crown witness and / or reject the evidence of an accused person. In Orreal the High Court refused to apply the proviso because the relevant error (the admission of irrelevant evidence) may have affected the jury’s assessment of the complainant’s credibility, which was fundamental to the prosecution case. The appellant had not given evidence. At [20] Kiefel CJ and Keane J emphasised the “nature and effect of the error which gives rise to the miscarriage of justice”, because some errors (for example those that involve issues of contested credibility) might prevent the appellate Court from effectively assessing the evidence. At [41] Gordon, Steward and Gleeson JJ, citing Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]-[38], referred to the natural limitations on the ability of appellate courts to assess aspects of the evidence at trial, for example the credibility of witnesses. The relevant miscarriage was found to have impaired the verdict such that the Court could not rely upon it to indicate how the critical issue of credibility which arose at trial should be resolved.

161. The Queensland equivalent of the proviso was considered in MDP. A wrong decision on a question of law which was material being found by the majority, the proviso was sought to be invoked by the Crown. The trial involved allegations of sexual offending by the appellant against his step-daughter between 2014 and 2019, when she was between 7 and 12 years of age. The wrong decision on a question of law was the direction provided to the jury that evidence from a sister of the complainant that the appellant smacked the bottom of the complainant at random could be used as demonstrating his sexual interest in her.

162. Gageler CJ held at [7] that the argument presented by the Crown in support of the application of the proviso was insufficient to overcome the negative proposition in Weiss at [44] in that the argument failed to demonstrate that “the evidence properly admitted at trial proved, beyond reasonable doubt, [MDP’s] guilt of the offence[s] on which the jury returned its verdict[s] of guilty”. His Honour recorded his agreement with the conclusion of Gordon and Steward JJ.

163. Gordon and Steward JJ stated at [12] that they could not conclude that no substantial miscarriage of justice had actually occurred; that is, their Honours did not consider that the proviso applied. Their Honours confirmed at [38], quoting Weiss at [41], that the Court was required to make its own independent assessment of the evidence and determine whether, “making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty”. Referring to Baini at [32] and Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 at [86] their Honours described the question as “whether a guilty verdict was inevitable, not whether a guilty verdict was open”: at [38] (emphasis original). Their Honours held as follows at [39] (footnotes omitted):

“In this case, even accepting that the Crown had a compelling case, the proviso cannot be applied. This Court cannot make an independent assessment of the evidence and determine whether, ‘making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty’. This Court cannot make an independent assessment of whether each guilty verdict was inevitable. The Crown case involved contested issues of credit in relation to MDP and the complainant, which ‘prevent the appellate court from being able to assess whether guilt was proved to the criminal standard’. This Court does not have the entire record before it. It cannot be said that no substantial miscarriage of justice has actually occurred.”

164. Edelman J agreed with Gordon and Steward JJ that the contested issues of credit at trial precluded the application of the proviso in the case before the Court. Quoting Weiss at [41], his Honour held at [70] that:

“An appellate court faces natural limitations, when compared with a jury, because the appellate court proceeds only from the record. This means that there will be cases, ‘perhaps many cases, where [the] natural limitations [of an appellate court] require the appellate court to conclude that it cannot reach the necessary degree of satisfaction’ that conviction was inevitable.”

165. His Honour continued at [71]:

“It is not possible for an appellate court to resolve the issues of credit that arose at MDP’s trial by reasoning that the verdicts of guilt by the jury necessarily required the acceptance of the essential aspects of the complainant’s evidence beyond reasonable doubt, independent of the bottom slapping evidence. The resolution by the jury of any contested issues of credit may not have occurred independently of the bottom slapping evidence. Indeed, the potential importance of the role of the bottom slapping evidence was consistently reinforced throughout the trial.”

166. Gleeson, Jagot and Beech-Jones JJ had no cause to consider the proviso as they rejected the relevant ground of appeal because the materiality test was not established.

167. The impugned evidence in this case was not reinforced throughout the trial. However it was considerably more prejudicial than the evidence in MDP. I regard it as impossible to reason that the verdicts of the jury necessarily required acceptance of the essential aspects of the complainants’ evidence beyond reasonable doubt when this acceptance may not have occurred but for the jury’s perception of the applicant’s sexual impropriety towards his own biological daughter.

168. I am not of the view that the decision of the High Court in Hofer assists the respondent. The circumstances of that case, in which some members of the High Court were prepared to apply the proviso, were profoundly different from this appeal which is from a trial where there was a dispute as to whether the sexual acts described by the complainants occurred, and the applicant gave evidence that they did not.

169. In Hofer Kiefel CJ, Keane and Gleeson JJ held that a miscarriage of justice had been occasioned, but applied the proviso and dismissed the appeal. Importantly in that case, considering whether the appellant’s guilt was established beyond reasonable doubt as a necessary (albeit not necessarily sufficient) condition of the application of the proviso, their Honours reiterated that lack of consent by each complainant was not contested by defence counsel at trial; the appellant’s case was “not whether the two women ... were consenting to have sex with him but rather whether his perception of their behaviour throughout the respective evenings led him to believe that they were consenting to having sex with him”: at [54]. Their Honours concluded that the charges were proved beyond reasonable doubt without relying upon the jury’s verdict. The evidence of the appellant on the crucial issue was found to be “so obviously false that it carrie[d] no weight at all”: at [55], quoting Castle at [52] and [66].

170. At [56] their Honours held:

“If one looks at the evidence that is common ground between the complainants and the appellant and takes into account the glaring improbability of the aspects of the appellant’s evidence material to his belief as to the consent of each of the complainants, there can be no reasonable doubt that the appellant was, at the least, reckless as to whether he acted with her consent.”

171. Their Honours determined at [57]-[58] that absent evidence from the appellant, there was no reason for the tribunal of fact to entertain a doubt about the element of his knowledge of absence of consent. Consideration of his evidence with that which was common ground between the parties was found to inevitably lead to the conclusion that the appellant’s evidence was so glaringly improbable that it could not give rise to a reasonable doubt as to his guilt.

172. At [62] their Honours explained that the Court could be satisfied of the appellant’s guilt because his evidence as to his belief as to consent was incapable of being believed, and once rejected there was no reason to doubt that he did not have that belief. Their Honours confirmed at [63] that this was different from a case where the Court was required “to seek to resolve a conflict between oath and oath, where the resolution of the contest must depend on the reliability of the jury’s verdict”. At [71] the circumstances of the case were described as “extraordinary”. Gageler J agreed with their Honours’ conclusions and broadly with their reasons.

173. Gordon J agreed that there had been a miscarriage of justice, but not that the proviso could be applied. Her Honour at [133] described the case as being of the kind referred to in Kalbasi, turning on issues of contested credibility, where the appellate court may be prevented from being able to assess whether guilt was proved to the criminal standard. At [141] her Honour stated that a conclusion that the appellant’s evidence was glaringly improbable was too generally expressed: “It is a conclusion that treats the appellant’s evidence and his credibility as a single, undifferentiated whole when the inquiry must be about individual, separate counts and about the elements of each count.”

174. I am not of the view that the decision of this Court in DP, relied upon by the respondent, assists on the application of the proviso in this case. This Court’s consideration of the proviso in DP was obiter, as no miscarriage of justice was found in relation to either ground. As the Court stated at [71], consideration of the proviso did not arise. The case was furthermore factually very different. The allegations were of sexual offending against the applicant’s daughter; however there was a significant body of objective support for the allegations, including extensive digital evidence consistent with her account and demonstrating the applicant’s sexual interest in her and preparedness to act on it: see for example at [78]. It was held that even if the anti-tendency direction (the lack of which was the subject of an unsuccessful ground of appeal) had been given, the case would not have been weaker in any appreciable sense: at [79]. The statement of general principle referred to by the respondent (see above at [123]) may be accepted as uncontroversial, and aspects of it were also stated by Adamson JA, with whom Ward P and Payne JA agreed, in Dawson v R [2024] NSWCCA 98 at [406].

175. I have considered a number of decisions of this Court subsequent to Hofer where the proviso has either been determined to not be available, or conceded to not be available, where there were credibility issues and the relevant error may have affected consideration of this. These include Evans v R [2024] NSWCCA 245 at [117] (Leeming JA and Rothman J), and [152] and [159]-[170] (Cavanagh J in dissent), Kibby, Kumar v R [2025] NSWCCA 119 at [186]-[187], Engstrom v R [2026] NSWCCA 30 at [31]-[32], [36], [40], [45] and [48], and Gardiner v R [2026] NSWCCA 44 at [233]. These reinforce my view as to the unavailability of the proviso in this appeal.

176. The respondent has not endeavoured to demonstrate that the applicant’s evidence regarding the alleged offending was glaringly improbable, but that his evidence regarding a sub-issue of alleged admissions was glaringly improbable. This is very different from the situation in Hofer. Furthermore, in context, I have no confidence in supplanting the role of a jury who observes the applicant give evidence in considering the applicant’s explanations for the alleged admissions.

177. It is unremarkable that each complainant gave clear and cogent evidence of the acts resulting in convictions, and was unshaken in her account during cross-examination. The applicant’s denial of all offending was also unshaken in cross-examination. This points directly to the difficulty in asking this Court to be satisfied beyond reasonable doubt that the applicant’s denials were false, not having seen him, and satisfied beyond reasonable doubt the complainants’ accounts were true, also not having seen them.

178. The evidence of the complainants that the offences occurred early in the morning does not address this fundamental problem, given the common knowledge in the house that the applicant was an early riser. Nor does the evidence that Cara moved furniture in her room, in circumstances where she was very concerned generally with privacy and preventing anyone from entering her room. These were appropriate submissions to advance to a jury, but are not the type of issues that would allow for the application of the proviso in a case such as the present. That Sienna left home at age 17 to live with her boyfriend, and Cara left at age 14 to live with her father, in circumstances where she had told her mother on a weekly basis from many years before the alleged offending commenced that she did not want to live with the applicant, because of his treatment of Helena, does not advance the respondent’s position in relation to the proviso. Nor does the complaint to NH.

179. The text messages to Sienna and Cara are capable of being regarded as admissions to sexual misconduct. But it is possible that a jury who observes the applicant give evidence could interpret the text messages as involving expressions of regret for the applicant’s alcoholism, and the conduct likely associated with it, in the childhoods of the complainants and continuing in their adulthoods in his care of Sienna’s child. As submitted by defence counsel at trial, the applicant’s messages about guilt for his drunkenness (such as to Cara “I was [a] drunken cunt that fucked up”) did not naturally suggest connection with the alleged sexual abuse, which was all said to have occurred in the early morning, with the applicant being an early riser, and there being no evidence of intoxication or smell of alcohol at the time.

180. A jury seeing the applicant give evidence, with the collective wisdom to consider how a flawed man who had been inadequate in his parental and grandparental roles might respond to the circumstances in late 2019, has a considerable advantage over this Court. This is also the case in relation to the applicant’s evidence of nervousness as a possible explanation for telling police in June 2020 that he did not remember the text message exchange with Sienna the previous November.

181. In light of the issues at trial and the nature of the miscarriage of justice, I am not able to conclude beyond reasonable doubt that the applicant is guilty of each charge. I am thus not able to conclude that there has not been a substantial miscarriage of justice.

Conclusion and orders

182. For these reasons I propose the following orders:

183. Grant leave to appeal;

184. Allow the appeal;

185. Quash the applicant’s convictions;

186. Order a re-trial;

187. List the matter for mention in the District Court at 9:30 am on 16 October 2026.

188. SIRTES J: I agree with Rigg J.

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