GW v The Queen [2015] ACTCA 15

Parties: GW (Appellant) The Queen (Respondent)

Representation: Counsel Mr S J Odgers SC with Mr S Gill (Appellant) Ms M Jones (Respondent)

Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 17 of 2014

Decisions under appeal: Court: Supreme Court of the ACT Before: Burns J Date of Decision: 6 August 2013 Case Title: R v GW Court File Number: SCC 55 of 2013

Court: Supreme Court of the ACT Before: Penfold J Date of Decision: 8 April 2014 Case Title: R v GW Citation: SCC 55 of 2013

THE COURT:

The Appeal

1. The appellant was tried on three counts of committing an act of indecency upon or in the presence of his daughter, R, and three counts of committing an act of indecency upon or in the presence of his daughter, H, each of whom was under the age of 10 years. The offences allegedly occurred in the period 29 March to 2 April 2012, when R and H were in the appellant’s sole care.

2. The jury found the appellant guilty of one count of committing an act of indecency in the presence of R (Count 3 in the indictment) and not guilty of two counts (Counts 5 and 6 in the indictment). The jury could not agree on the remaining three counts.

3. The appellant appealed from the verdict of guilty on Count 3 on the following grounds:

(a) The verdict is unsafe and unsatisfactory having regard to all the evidence.

(b) The verdict is inconsistent with the outcomes on the other counts.

(c) The unsworn evidence of R should not have been admitted.

(d) The trial judge failed to properly direct the jury regarding the unsworn evidence of R, either under s 165 of the Evidence Act 2011 (ACT) (the Evidence Act) or otherwise.

(e) The trial judge failed to explain the issues, summarise the evidence in relation to each issue, and outline the defence arguments in relation to each issue.

(f) The trial judge failed to give an adequate warning under s 165 of the Evidence Act or otherwise about complaints of child sexual abuse made in the context of a custody dispute.

(g) The trial judge failed to give a Markuleski direction (see R v Markuleski (2001) 52 NSWLR 82).

4. There is considerable overlap between grounds (a), (b) and (g), grounds (c) and (d), and grounds (e) and (f).

5. Section 37O(2) of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) deals with appeals against conviction. It provides:

(2) The Court of Appeal on an appeal against conviction must— (a) allow the appeal if it considers that— (i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or (ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or (iii) on any other ground there was a miscarriage of justice; or (b) dismiss the appeal. (3) However, the Court of Appeal may also dismiss an appeal against conviction if it considers that— (a) the point raised by the appeal might be decided in favour of the appellant; but (b) no substantial miscarriage of justice has actually occurred.

6. In this case, grounds (a) and (b) seek to invoke s 37O(2)(a)(i) of the Supreme Court Act (the verdict was unreasonable or unsupportable on the evidence).

7. Grounds (c) and (d) refer to s 37O(2)(a)(ii) of the Supreme Court Act (wrong decision on a question of law). In relation to ground (c), the appellant took no objection when Burns J, the presiding judge at the pre-trial hearing, decided that R should give unsworn evidence. The parties agreed that, at the hearing before the trial judge, they would abide by rulings at the pre-trial hearing. However, at the trial, the appellant sought to withdraw from that concession and objected to the reception of R’s unsworn evidence. The trial judge determined that the unsworn evidence should be admitted.

8. Ground (e) may be characterised as falling within s 37O(2)(a)(iii) of the Supreme Court Act (general miscarriage of justice). That is the approach that was taken in O’Rafferty v The Queen [2014] ACTCA 35 at [8].

9. Ground (f) refers to s 37O(2)(a)(ii) of the Supreme Court Act (wrong decision on question of law). The matter was raised with the trial judge, who accepted that there should be reference to the issue but did not accept that a warning was required under s 165 of the Evidence Act.

10. In relation to ground (g), no direction was sought at the trial. As no direction was refused, it is arguable that the trial judge made no “wrong decision” within s 37O(2)(a)(ii) of the Supreme Court Act, and the alleged failure falls within the general category of “miscarriage of justice” under s 37O(2)(a)(iii): Papakosmas v The Queen (1999) 196 CLR 297 at [72].

11. On the appeal, questions arose about whether the appellant should be allowed to raise certain grounds of appeal. Rule 5531 of the Court Procedures Rules 2006 (ACT) (the CPR) provides:

Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing: (a) a direction given by the trial judge; (b) the trial judge’s failure to give a direction; ...

12. This rule is a recognition that, during a trial, an accused makes forensic decisions about the manner in which his or her defence will be conducted, and defence counsel is the person who is best placed to take appropriate points about the summing up, based on the manner in which the defence has been conducted and the atmosphere or “feeling” of the trial: Munro v The Queen [2014] ACTCA 11 at [130].

13. It was suggested that r 5531 of the CPR applies to ground (d), insofar as that ground addresses s 165 of the Evidence Act. At the time of the summing up, defence counsel did not seek a warning under s 165. However, at the outset, defence counsel had asked that the jury be given an explanation about unsworn evidence that “would probably at least require a [s] 165 warning at the end of the trial”, and the request for an explanation about unsworn evidence was renewed at the time of the summing up. These requests were adequate to meet the requirements of r 5531.

14. Rule 5531 of the CPR may not apply to ground (e) as the rule refers to “a direction given by the trial judge” and “the trial judge’s failure to give a direction”. Arguably, a failure to put the defence case is not a failure to give a direction. In O’Rafferty, the offender submitted that an alleged miscarriage of justice resulting from a failure to put the defence case was not caught by r 5531. The Court did not need to decide the question. It found that, as there had been a miscarriage of justice, if it was necessary to grant leave, it would do so: at [13]. The failure to adequately put the defence case will often create a substantial miscarriage of justice and result in the grant of leave under r 5531 (should such leave be necessary). Conversely, regardless of whether r 5531 applies, it is open to an appellate court to conclude that there has been no substantial miscarriage of justice within the meaning of s 37O(3) of the Supreme Court Act, partly on the basis that, at the conclusion of the summing up, defence counsel failed to complain about the manner in which the defence case was put and, inferentially, accepted that the summing up was fair and adequate. If necessary, we would grant leave to argue this ground.

15. Rule 5531 of the CPR does apply to ground (g): see [132] below. At the conclusion of the summing up, the appellant sought no Markuleski direction, suggesting that, at that stage, the appellant was satisfied that he had received a fair trial. An unexplained failure to take a point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing up: Richardson v The Queen [2013] NSWCCA 218 per Latham J at [97], cited with approval in Korres v The Queen [2013] ACTCA 53 at [58] by Nield AJ.

The Trial

16. Between 2007 and 2012, the appellant was in a relationship with M. The couple lived separately as M resided in China. There were two daughters of the relationship, R (born in March 2007) and H (born in December 2008). Both resided with M.

17. In March 2012, M and her daughters moved to Canberra to live with the appellant. Following a domestic incident on 29 March 2012, police removed M from the home. The appellant obtained an interim domestic violence order preventing M from returning to the home or seeing the children. R and H remained with the appellant. R had recently turned 5 years old and H was 3 years and 3 months old.

18. The Crown alleged that, in the period 29 March to 2 April 2012, the appellant committed sexual acts upon and in the presence of R and H.

Counts 1 and 2

19. The Crown alleged that the appellant took the complainants (who had been sleeping in their own room) into his bedroom, where he offered to remove R’s clothing if she was hot. She said that she was not hot. The appellant removed the clothing of both complainants. R cried. While R and H were lying naked on their backs on the bed, the appellant lay naked on top of R in the “missionary position”, thrusting his pelvis against her pelvis while her legs were in the air and spread apart (Count 1). He repeated the behaviour with H (Count 2). On these counts, the jury could not agree on verdicts.

Counts 3 and 4

20. The Crown alleged that later, either on the same night or on another night, R and H were lying naked on their backs on the appellant’s bed. While standing and holding his penis, the appellant either ejaculated or urinated onto the complainants’ pelvic areas. Afterwards, R obtained toilet paper and wiped the fluid from her body and that of H. The jury returned a verdict of guilty on Count 3 (the incident involving ejaculation or urination onto R). In relation to Count 4 (the associated incident concerning H), the jury was unable to reach agreement.

Counts 5 and 6

21. The Crown alleged that later, either on that night or on another night, R and H were lying naked on their backs on the appellant’s bed. The appellant was also naked. He placed his feet on the complainants’ pelvic areas and stood on them. Afterwards, R and H walked with their legs apart because their pelvic areas were sore. The jury returned verdicts of not guilty on these counts.

22. When M left the appellant’s home, she went to stay with her friend S. Because her English was poor, on 30 or 31 March 2012, M asked S to contact the authorities and inform them that the appellant often walked about naked and may be a sexual risk to the children. It is not clear whether further allegations were made. On 2 April 2012 information was conveyed to Care and Protection Services, and a worker was assigned to investigate M’s allegations. On 2 April 2012, R was questioned, but she made no relevant allegations.

23. On 2 April 2012, R and H were removed from the appellant’s care and placed in foster care. On 13 April 2012, they returned to reside with M, who was living at a refuge. M sought interim Family Court orders, restricting the appellant to limited, supervised access to R and H.

24. On 3 September 2012, the appellant sought extended access. Family Court proceedings were fixed for 14 September 2012. M opposed extended access.

25. M gave evidence that, on 5 September, R told M that she wanted to cry. According to M, R said:

When you were not there, when we were sleeping at dad’s house, dad wouldn’t let us wear clothes to sleep... Dad put one hand in front of my bum and another hand behind my bum... It’s where I pee... Dad pressed on my stomach [demonstrating by pressing hard]... Dad open [sic] my legs [demonstrating].... I was crying. Dad was very annoying... He peed on my bum, around this area... I wanted to use a towel to wipe it but there was no towel... [H] and I helped each other to the toilet and used a toilet paper to wipe that area. Dad hurt my bottom... It was very painful... Even when I was walking, it was painful R demonstrated the way in which she had walked.

26. M contacted her friend S and told her of R’s disclosures, including the fact that R had complained of the appellant “weeing” on her.

27. On 6 September, M spoke to a refuge worker, E. R then spoke to E and told her that “daddy put his wee wee in her”. R demonstrated by placing her hand under her crotch and bottom and walking with a waddle. She said that it had hurt and that the appellant had told her that she should not tell anyone. R drew a picture for E.

28. M gave evidence that, on 7 September, when M was cleaning R’s genital area, R told M that the appellant had opened her legs in the same way and it was painful. R also complained that the appellant had used his tongue to kiss her hand, face, bottom and body and said that “dad did every night”. R also said that the appellant had placed one foot on her genital area and the other foot on H’s genital area.

29. M gave evidence of another incident on 7 September. She observed H lying on top of R on a bed, simulating sexual intercourse. M pulled H from R, who was crying. R said:

Little sister was on top of me just like dad... Painful. Very painful.

30. M said that she had first observed this behaviour on 25 April 2012, and that she made similar observations in June 2012 and on 19 August 2012 (when R told M that H was lying on her “just like dad”). However it was not until 7 September 2012 that M realised the significance of the behaviour.

31. M said that, on 3 October 2012, R told her that she had been warned by the appellant that she should not disclose what had occurred to M or to the police, or she would go to “dowl” (which she illustrated as gaol).

32. Police conducted an evidence-in-chief interview with R on 13 September 2012 (when she was five years and six months old). In the interview, R said that the appellant had threatened to cut her with a knife; had stood on her bottom when she and her sister had no clothes on; had stood on her bottom and that of H and weed on both girls; had stood on the bottoms of both girls when they were naked and had weed on both girls, after which she wiped the wee from herself and her sister; had hurt her bottom; had pressed on her body when naked (drawing a picture); and that the events had occurred when M was at the home of S.

33. On 19 September 2012, R’s genital area was examined by Dr Bragg, a medical practitioner with ACT Health at the Canberra Hospital in the Child at Risk Health Unit. She has a Master in Paediatrics and a Graduate Diploma in Infant Mental Health. She found no genital “trauma”. At a consultation with Dr Bragg, M was asked whether she had observed “sexualised play”. M said that she had not.

34. On 15 October 2012, police conducted an evidence-in-chief interview with H.

35. On 6 August 2013 (when she was six years and five months old), R gave pre-trial evidence before Burns J. His Honour determined that the evidence should be unsworn. R said that the appellant had pressed on her bum and stood on her, but that she could not recall him weeing on her.

36. At the trial, M’s evidence was given through an interpreter. The prosecution relied on R’s evidence-in-chief interview with police and her unsworn evidence in the pre-trial proceedings, the evidence of complaint to M and E, and tendency evidence.

37. The appellant gave evidence that the alleged conduct did not occur.

38. The defence asserted that R may have been deliberately lying. Alternatively, there was a risk that, in the context of the custody dispute, M had lied about R’s complaints and had deliberately manipulated R into repeating and adopting M’s version of what had occurred.

39. Prior to the commencement of the summing up, the jury asked to view the police interview and pre-trial evidence of R and to view the transcript of the evidence of all witnesses. Arrangements were made for these requests to be met at the completion of the summing up.

Ground (a): The verdict is unsafe and unsatisfactory having regard to all the evidence

40. The appellant submitted that, when considered together, a raft of factors cast doubt on the evidence of R and the complaint evidence given by M, and that the advantage enjoyed by the jury was not capable of resolving that doubt. It was submitted that the verdict of guilty was a miscarriage of justice because it was unreasonable or unsupportable having regard to the evidence: s 37O(2)(i) Supreme Court Act.

41. The appellant said that, taken together, the following factors made the verdict unreasonable or unsupportable:

(a) When R gave pre-trial evidence, she could not recall the appellant “weeing” on her, although she denied that she had invented that allegation when she spoke to the police.

(b) M had a motive to invent the allegations. Following an argument, the appellant had called the police and obtained a domestic violence order against M, and then obtained an order that M understood prevented her from seeing the children for two months.

(c) When spoken to by police in April 2012 (soon after the alleged events), R made no complaint.

(d) There was a delay in R making a complaint, from April to September 2012.

(e) The making of the allegations that founded the charges coincided with the appellant seeking extended, unsupervised access in August/September 2012.

(f) The circumstances in which R made a complaint in September 2012 “were curious”. M told the refuge worker that R wanted to speak to the worker; R was forthcoming as soon as she spoke to the worker.

(g) M said that it was on 7 September 2012 when she saw H lying on top of R and realised that the behaviour was simulated sexual activity. However she had previously observed such behaviour on 25 April 2012, in June 2012 and on 19 August 2012. When speaking to Dr Bragg, on 19 September 2012 M reported that there had been no “sexualised play” by the complainants. .The simulated sexual activity was not reported to the psychiatrist until 12 November 2012. M explained that, when she spoke to Dr Bragg on 19 September 2012, she thought that “sexualised play” was a reference to sexualised play with dolls.

(h) M said that, in November 2012, R complained to her that the appellant had threatened her with broken glass and said that R should not tell M about his conduct. R did not make that allegation in the police interview and denied any threat with broken glass when she gave evidence.

(i) There was substantial discussion between R and M concerning the allegations.

(j) R’s account in relation to Count 3 suggested urination, not ejaculation. Urination is not inconsistent with M having manipulated R and R remaining ignorant of facts which would suggest ejaculation. Also consistent with manipulation was the “somewhat surprising lack of revulsion or emotional content in her response”.

(k) R’s account of the appellant standing naked on herself and H (Counts 5 and 6) was inconsistent with evidence from others that R and H were dancing at a folk dancing event on 1 April 2014 and had no apparent difficulty with movement. There was expert evidence that, if the appellant had jumped up and down with a foot on the genital areas of R and H, then they would have exhibited symptoms in the days following.

(l) M said that, on 6 September 2012, R said that “her bottom was hurting”. A medical examination on 19 September 2012 made no finding of genital or anal trauma.

(m) There was expert evidence that children listen to their parents, can adopt the version of another person and recall it as their own version of events.

(n) The appellant’s evidence denying the offences.

42. In relation to the points made by the appellant, the following arguments were advanced respectively:

(a) R was a young child who gave evidence almost a year after the evidence-in-chief interview by police and well over a year after the alleged incident. In the context that she made many allegations, her failure to remember the incident when she gave pre-trial evidence was not significant. Her concession in that regard may have enhanced her credibility.

(b) There was an available motive for M of lying to maintain care of her children. There was also an available motive of telling the truth to maintain care of her children and protect them from risk. It is not unusual for Family Court proceedings to occur in association with allegations of child sexual abuse.

(c) There was little detail about the police interview in April 2012. Detective Alexander had been concerned about frightening R and considered that there was a significant language barrier.

(d) In cases of child sexual assault, there is commonly a delay in complaint. This matter is addressed by s 72 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), and the trial judge gave an appropriate direction in that regard.

(e) See (b) at [42].

(f) R complained to her mother, who told the refuge worker, and R repeated part of what she told her mother to the refuge worker in a forthright fashion. Many factors would need to be taken into account when deciding whether this sequence of events was “curious” or fell well within the range of normal behaviour.

(g) M’s failure to characterise her observations as “sexualised play” when she saw Dr Bragg on 19 September was to be assessed in the context of her language and cultural background, the fact that she was accompanied by R but not H, and that Dr Bragg did not ask about sexualised play by H.

(h) The police did not ask R a direct question about broken glass. R was first asked a direct question in August 2013, 16 months after the alleged events.

(i) While there was an opportunity for extensive discussions between R and M, both denied this occurrence.

(j) The prosecution case was that the appellant had either urinated or ejaculated and R and H. Given R’s age, little can be made of an apparent lack of revulsion. The jury had the advantage of being able to compare R’s reaction to the event with her general demeanour.

(k) It was not entirely clear what R had meant when she said that the appellant stood on her.

(l) R may have described the pain that she felt when the alleged events occurred in March/April 2012, rather than at the time of the complaint and medical examination in September 2012.

(m) Children may be influenced by their parents, but that depends upon whether the parent seeks to influence the child and other circumstances. It may be more difficult for a parent to coach a child to draw an incident that has not occurred.

(n) The jury was given an appropriate direction in relation to consideration of the appellant’s evidence.

43. The principles governing whether a verdict is unreasonable or unsupportable are well established: M v The Queen (1994) 181 CLR 487 at [7]-[9], SKA v The Queen (2011) 243 CLR 400 at [1] – [14], BCM v The Queen [2013] HCA 48 at [31]. The starting point is that the jury is the body entrusted with the primary responsibility for determining guilt. However, the appellate court must independently assess the sufficiency and quality of the evidence. In most cases, a doubt experienced by the appellate court will be one that the jury ought to have experienced. The jury has an advantage in evaluating the evidence. It can observe the manner in which it is delivered. If the advantage enjoyed by the jury is capable of resolving a doubt, then the appellate court may conclude that there has been no miscarriage of justice. The ultimate question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In its reasons, the appellate court must disclose its assessment of the capacity of the evidence to support the verdict.

44. R was the critical witness in the Crown case. M was also a very important witness. It was necessary for the jury to examine the evidence of both witnesses very carefully. The jury had to determine whether each was truthful and otherwise reliable.

45. Young children, particularly children for whom English is their second language, may be limited in their ability to understand, analyse and describe events. Such shortcomings do not necessarily reflect on credibility. An observer is in the best position to form an opinion about the credibility of any witness, and the advantage may be greater where the witness is not an experienced witness (such as a police officer or an expert witness) who may be more capable of successfully fabricating evidence. Having seen R, the jury was able to bring its combined worldly experience to bear when deciding reliability issues, including R’s level of understanding of events and of the questions asked of her, taking into account her age, maturity and command of the English language.

46. On a reading of the evidence, R’s evidence was credible. It was consistent and R conceded matters that she could not recall.

47. The table in [52] of the respondent’s submissions shows that, in relation to Count 3, there was abundant evidence from R. The subject matter of Count 3 formed part of the initial complaint to M on 5 September 2012. It was part of the complaint as M recounted the complaint to S. It was part of the evidence-in-chief interview of R with the police on 13 September 2012, when R completed an explicit drawing illustrating the alleged offence. R provided descriptive context to Count 3, describing the appellant’s penis and providing the detail that, after the incident, she used toilet paper to clean herself and H. The jury may well have found that the context evidence gave a “ring of truth” to R’s evidence in relation to Count 3.

48. M’s evidence was taken over several days, through an interpreter. She was cross-examined extensively. It may be difficult to assess the credibility of a witness whose evidence is given through an interpreter, particularly where the witness comes from a non-English speaking cultural background. The listener may find that interpreted evidence is reasonably coherent whereas the reader finds it to be fragmented and difficult to follow and reconcile. In relation to the evidence of M, the trial judge helpfully reminded the jury that:

...the interpretation process adds another layer of difficulty to your task of assessing the witnesses concerned and their credibility... [W]hat you think about the interpretation process is just one of the matters you should take into account in assessing the witness, how the witness gave evidence, the evidence that the witness gave and whether you accept any or all of that witness’s evidence.

49. The jury faced a difficult task in assessing the credit of R and M. Given the circumstances of the witnesses (including age, cultural background and language limitations), the jury’s ability to see and hear each witness was probably vital to their assessment of the witness’s credibility. The jury was attentive to its task of assessing the witnesses; before the summing up commenced, the jury requested access to the transcript of the evidence of all witnesses.

50. The significant advantage that the jury enjoyed should be respected. This ground of appeal is not made out.

Ground (b): The verdict is inconsistent with the outcome on the other counts

51. The appellant submitted that the verdict of guilty on Count 3 was unreasonable and unsupportable because it could not be reconciled with the other verdicts. In particular, it could not be reconciled with the facts that the jury was unable to reach a verdict on Count 4 and acquitted the appellant on Counts 5 and 6.

52. The appellant submitted that there could be no legitimate differentiation between Counts 3 and 4; each depended on the evidence of R, who said that the appellant had conducted himself in the same manner towards herself and H. As one or more jurors must have doubted what R said about the conduct of the appellant towards H on the relevant occasion, logically, they must have doubted what she said about the conduct of the appellant towards herself on that occasion.

53. The appellant submitted that, as the jury harboured a reasonable doubt in relation to Count 5 and 6 (leading to the acquittal on both counts), then it must have harboured a similar doubt about Count 3; all counts depended upon the reliability of R’s evidence.

54. The first question is whether a guilty verdict should be treated as inconsistent with the failure of the jury to reach a verdict on another count. In Pillay v The Queen [2014] VSCA 249 at [20] – [23], the Victorian Court of Appeal referred to conflicting authorities on this point. The Court adopted the approach taken in R v Formhals [2014] 1 WLR 2219. It observed that, in Formhals, it was accepted that although, strictly speaking, a verdict of guilty is not inconsistent with the failure to reach a verdict on another count, the guilty verdict may be set aside as unsafe or unsatisfactory if, logically and factually, it cannot be reconciled with the jury’s inability to agree on the other count. In Pillay, the offenders contended that verdicts of guilty of indecent assault were inconsistent with the jury’s failure to reach a unanimous verdict on rape charges that related to the same occasion as the only issue in the trial was consent. The Court was unable to identify a rational basis for differentiating between the charges and upheld the appeal.

55. A verdict of guilty on one count is not “inconsistent” with a jury’s failure to agree on another count in the sense that it creates an unexplained contradiction “on the public record”: Pillay at [27] (quoting MacKenzie v The Queen (1996) 190 CLR 348 (MacKenzie)). In that sense, it does not manifest a “miscarriage of justice”. However, in the context of the jury’s failure to agree on another count, a verdict of guilty may be “unreasonable” within s 37O(2)(a)(i) of the Supreme Court Act. The debate about whether the difference is the same as an “inconsistency” between a verdict of guilty and one of not guilty is barren; the underlying concern of “unreasonableness” can be addressed under s 37O(2)(a)(i) in any event.

56. Appellate courts should approach a claim of inconsistent (or unreasonable) verdicts with caution. Particularly where there is evidence to support a verdict of guilty, there is a need for great caution in presuming that a jury has acted inappropriately in returning that verdict: Still v The Queen [2010] NSWCCA 131 at [60] per Johnson J (Basten JA and Rothman J agreeing), Youkhanis v The Queen [2014] NSWCCA 220 at [87]. If there is an apparently rational explanation for the jury differentiating between charges, that explanation should be preferred to one that suggests that jurors have failed to adhere to their oaths and agreed on a compromise: Pillay at [26].

57. The test of whether there is an inconsistency (or whether the verdict of guilty is “unreasonable”) is a test of logic and reasonableness: MacKenzie. The question is whether no reasonable jury that had applied its mind properly to the facts in the case could have arrived at the conclusion: R v Stone (Unreported, Court of Criminal Appeal of England, Devlin J, 13 December 1954) (cited in Mackenzie). Another way of formulating the test is: Whether the only explanation for the outcome is irrational and improper compromise by the jury: Pillay at [30].

58. The appellant relied upon an oft quoted passage in Jones v The Queen (1997) 191 CLR 439. At 453, Gaudron, McHugh and Gummow JJ considered that the jury’s rejection of the complainant’s account on one count diminished her overall credibility and made it difficult to see how it was open to the jury to be convinced beyond reasonable doubt of the appellant’s guilt on other counts because:

There is nothing in the complainant’s evidence or the surrounding circumstances which gives any grounds for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.

59. However, Jones is not authority for the proposition that, in “word against word” cases, mixed verdicts of acquittal and guilty necessarily show inconsistency (unreasonableness) by the jury. Whether a conviction is truly inconsistent (unreasonable) depends upon the circumstances of the particular case: R v NEK [2001] NSWCCA 392 at [24] per Priestley JA, Peiris v The Queen [2014] NSWCCA 58 per Leeming JA at [22] – [25]. In Peiris at [28], Leeming JA observed that a jury would be entitled to return different verdicts based not only on differences that were discernible on the face of the transcript and the documentary evidence, but also based on the complainant’s demeanour when recounting different episodes, or by having regard to the inherent plausibility or implausibility of the relevant conduct.

60. In MFA v The Queen (2002) 213 CLR 606 at [34] Gleeson CJ, Hayne and Callinan JJ dealt with the issue of different verdicts in the following way:

... [The ultimate question of the reasonableness of the jury's decision] must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. .... A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. (Citations omitted).

61. The third consideration referred to in this passage raises an additional complication. On the one hand, the test of inconsistency has been described as one of “logic and reasonableness”, but on the other hand, it has been accepted that, in some circumstances, a jury may take a “merciful” view of the facts supporting one count, resulting in an apparently anomalous acquittal on that count.

62. Inferentially, the conclusion that a jury has taken a “merciful” view of the facts is more readily available where a conviction will inevitably result in a sentence that the jury may consider to be completely inappropriate, such as the death penalty or, perhaps, a mandatory minimum sentence. No such penalties are available in this jurisdiction. It would therefore be difficult to explain apparently anomalous outcomes on the basis that the acquittal/failure to agree on a verdict may have reflected a “merciful” (and unreasonable) view of the facts relating to one charge rather than an irrational compromise reflecting adversely on the “reasonableness” of the verdict of guilty on the other charge. For the purposes of the present case, the Court assumes that the verdicts on Counts 4, 5 and 6 are not the result of a “merciful” view of the facts.

63. The reasons why the jury may have doubted the reliability of R’s evidence about Counts 5 and 6 are easily identified. Witnesses who saw R and H on the weekend of 1 April 2014 observed no sign of injury consistent with the alleged conduct. The jury may have been puzzled about precisely what conduct R was attempting to explain when she spoke of the accused standing on herself and H, and the nature of any sexual component of that conduct.

64. In contrast to Counts 5 and 6, there could have been no puzzlement about R’s description in relation to Count 3. Count 3 involved the appellant “weeing” on R. Moreover, during the police interview, R graphically illustrated the conduct. As mentioned in [47] above, R’s evidence in relation to Count 3 was associated with detail giving context; R described how she cleaned herself and H, and the appearance of the appellant’s penis. The jury may well have considered that the context evidence reinforced the reliability of R’s evidence about the central events of Count 3.

65. It is slightly more difficult to explain the distinction that at least one juror drew between Counts 3 and 4. However, there is a rational explanation for the distinction. In the exercise of the necessary caution about whether to accept R’s evidence concerning the critical events of Count 4 beyond reasonable doubt, one or more jurors may well have decided that the body of evidence supporting Count 3 was significantly richer than that supporting Count 4: see [52] of the respondent’s submissions. It may have been important that the original complaint of R to M on 5 September 2012 related to the appellant “weeing” on R rather than H. There was no mention of H when M repeated the complaint to S. Further, at the police interview, R drew an illustration relating to herself, not H. The jury was entitled to return different verdicts based not only on differences that are discernible on the face of the transcript, but also based on the documentary evidence, the complainant’s demeanour when recounting different episodes, or by having regard to the inherent plausibility or implausibility of relevant conduct.

66. There were reasonable bases for the jury to reach different outcomes on the different counts; irrational and improper compromise by the jury is far from the only explanation for the different outcomes. This ground is not made out.

Ground (c): The unsworn evidence of R should not have been admitted

67. The appellant submitted that the presiding judge at the pre-trial hearing (the presiding judge) erred in failing to apply the presumption in favour of sworn evidence. Consequently, contrary to s 21 of the Evidence Act, R’s unsworn evidence was erroneously placed before the jury.

68. The Evidence Act provides:

12 Except as otherwise provided by this Act— (a) every person is competent to give evidence; and ... 13 Competence—lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)— (a) the person does not have the capacity to understand a question about the fact; or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact; and that incapacity cannot be overcome. ... (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, the person is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person that— (a) it is important to tell the truth; and (b) the person may be asked questions that the person does not know, or cannot remember, the answer to, and that the person should tell the court if this happens; and (c) the person may be asked questions that suggest certain statements are true or untrue and that the person should agree with the statements that the person believes are true and should feel no pressure to agree with statements that the person believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. ... (8) For the purpose of deciding a question arising under this section, the court may inform itself as it thinks fit ... 21 Sworn evidence of witnesses to be on oath or affirmation (1) A witness in a proceeding must take an oath or make an affirmation before giving evidence. (2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13 (Competence—lack of capacity).

69. A pre-trial hearing was listed before the presiding judge on 6 August 2013 for the purpose of taking R’s evidence in cross-examination. At the outset, the Crown told his Honour:

the child is six years old. I’ve spoken to her. I don’t believe she can give sworn evidence. She doesn’t understand what the Bible or affirmation is. It seems to me that the procedure is set out in 13 (5) of the Evidence Act. When I spoke to her before she understood the importance of telling the truth.

70. His Honour noted the provisions in s 13(3) and (5) of the Evidence Act. After a Mandarin interpreter was sworn to interpret for R (if necessary), the presiding judge questioned R about whether she understood the meaning of telling the truth, and whether she understood that she should only give evidence of “things that really happened”, “things that ...[she] saw and ...[she] heard”. His Honour then said:

despite the fact that the witness has indicated that she ... at least understands the difference between the truth and what is not the truth, and says that she understands that she has an obligation to tell the truth today, I think that it is probably better to proceed under subsection (5). At the present time, because of the difficulty in truly gauging the level of her understanding ...[at six years of age], I am not satisfied that she has the capacity to understand that in giving evidence today she has an obligation to give truthful evidence. So I propose to proceed under subsection (5) of section 13. Do you want to be heard in relation to that,... [defence counsel]? (emphasis added)

71. Defence counsel did not seek to be heard.

72. His Honour proceeded to advise R of the matters required to satisfy s 13(5) of the Evidence Act.

73. At the call over for the relevant central criminal listing period, the parties agreed to be bound by the pre-trial rulings of the presiding judge.

74. However, after the trial began, defence counsel (who had appeared at the pre-trial hearing) challenged the admissibility of the pre-trial cross-examination evidence. The appellant asserted that the presiding judge had failed to make a positive finding that the presumption in favour of competency (s 13(6) of the Evidence Act) had been rebutted, and had made a lesser finding; that he was not satisfied that R’s competence extended beyond giving unsworn evidence.

75. Understandably, the trial judge was of the strong view that, given the fundamental importance of R’s evidence and the fact that the trial was not expected to commence for seven months after the pre-trial hearing, any challenge should have been made by way of an application for leave to appeal the interlocutory ruling: The Queen v GJ [No. 1] [2014] ACTSC 108 at [35] and [41]. The trial judge considered that the challenge was arguable (at [15]) but, having considered the interests of justice, held the parties to the concession made the before the presiding judge at the pre-trial hearing and the pre-trial agreement given at the trial call over.

76. The Evidence Act presumes that witnesses are competent to give evidence: ss 12 and 13(6). Further, it presumes that witnesses are competent to give sworn evidence: ss 13(3), (4) and (6), and 21. Pursuant to s 21 of the Evidence Act, a witness “must” give sworn evidence, unless they give “unsworn evidence under section 13”: RJ v The Queen (2010) 208 A Crim R 174 at [40]. The test under s 13(3) for incompetence to give sworn evidence is that the witness lacks “the capacity to understand” that, in giving evidence, they are under “an obligation to give truthful evidence”: RJ at [20]. As further discussed in [102] below, the underlying policy that gives primacy to sworn evidence is that justice will be enhanced because witnesses will be more inclined to give truthful evidence if they understand the solemnity attaching to an oath or affirmation and the sanctions associated with any failure to adhere to their oath or affirmation.

77. Section 13(3) is a provision that accepts the primacy of sworn evidence and asks whether a witness is not competent to give sworn evidence: RJ at [21]. In RJ, the appeal was allowed on the basis that the trial judge had not addressed the s 13(3) question of whether the witness lacked the capacity to understand that, in giving evidence, she was under an obligation to give truthful evidence.

78. The circumstances of this case differ from those in RJ. The presiding judge at the pre-trial hearing was well aware of the requirements of both s 13(3) and s 13(5). His Honour expressly referred to both, and to the distinction between the importance of telling the truth (which relates to whether a witness is competent to give unsworn evidence) and understanding the meaning of the obligation to give truthful evidence when under oath (which goes beyond the importance that ordinarily attaches to telling the truth).

79. In determining whether R was incompetent to give sworn evidence, the presiding judge was entitled to inform himself in the manner that he saw fit: s 13(8). His Honour was entitled to rely upon the Crown’s indication that R did not understand the oath or affirmation, to take into account that R was six years old, to consider R’s answers to the questions that he asked her about telling the truth, and to consider the manner in which she answered those questions. He was also entitled to take into account the fact that, having seen R answering questions, defence counsel conceded that it was appropriate that she should give unsworn evidence.

80. However, it was essential to address the correct question under s 13(3): Whether R lacked the “capacity to understand” that, in giving evidence, she was “under an obligation to give truthful evidence”. His Honour addressed a question that differed from the correct question in a subtle but important way. His Honour found “difficulty in truly gauging the level of [R’s] understanding ... [at six years of age]”. Consequently, his Honour was “not satisfied that she has the capacity to understand that in giving evidence today she has an obligation to give truthful evidence” (emphasis added). This reversed the test in s 13(3). His Honour treated unsworn evidence as the “default” position, but he should have treated sworn evidence as the “default” position. Perhaps his Honour intended to give primacy to sworn evidence, but that is not apparent from his reasons.

81. When judges give apparently uncontentious ex-tempore decisions, they cannot be expected to articulate their thoughts with the same felicity that might attach to the delivery of considered appellate decisions on contentious issues. In relation to interlocutory decisions on questions of admissibility, the lack of careful articulation may not matter because compliance with a condition of admissibility can ordinarily be waived and non-compliance does not necessarily result in a miscarriage of justice: R v WG (2010) 199 A Crim R 218 at [36], applied in SH v The Queen (2012) 83 NSWLR 258.

82. However, the competence of a witness is not merely a condition of the admissibility of the witness’s evidence. The competence of a witness to give unsworn evidence depends upon compliance with s 13(4) and (5) of the Evidence Act. It can only arise if the witness has first been found to be incompetent to give sworn evidence.

83. In SH, the trial judge failed to strictly comply with s 13(5)(c). The NSW Court of Criminal Appeal noted the need for strict compliance with rules relating to the competence of witnesses in order to avoid a miscarriage of justice: per Basten JA (Blanch and Hall JJ agreeing) at [25] and [34] – [35]. Similarly, in MK v The Queen [2014] NSWCCA 274, the trial judge failed to make a clear finding that the presumption of competency had been displaced before proceeding to take unsworn evidence. Hoeben CJ at CL (with whom Fullerton and Hamill JJ agreed) noted the need to strictly follow a sequential mode of reasoning, posing the mandatory s 13(3) question before addressing the s 13(4) and (5) considerations.

84. In this case, the presiding judge at the pre-trial hearing appreciated the statutory framework for receiving unsworn evidence, but his Honour failed to proceed strictly as prescribed by s 13 of the Evidence Act. The failure to apply a statutory precondition to the receipt of unsworn evidence (first finding that R was incompetent to give sworn evidence) meant that the trial was “not conducted according to law”: SH per Basten JA at [36] and MK per Hoeben CJ at CL at [74], using the words of Doyle CJ in R v Starrett (2002) 82 SASR 115.

85. This ground of appeal is established.

Ground (d): The trial judge failed to properly direct the jury regarding the unsworn evidence of R

86. As we have upheld Ground 3, it is not strictly necessary to deal with this ground.

87. The appellant submitted that the jury should have been directed that R gave unsworn evidence because she had been found to lack the capacity to understand the obligation to give truthful evidence. The appellant submitted that a warning was required under s 165 of the Evidence Act because unsworn evidence is “evidence of a kind that may be unreliable”. Alternatively, the appellant contended that a direction was required at common law because the giving of unsworn evidence was a matter bearing on the reliability of the witness which, in the absence of a direction, the jury may not fully appreciate: Bromley v The Queen (1986) 168 CLR 79. It was submitted that, at a minimum, the trial judge should have explained the difference between sworn and unsworn evidence and should have directed the jury to consider those differences when assessing R’s evidence.

88. Prior to the summing up, defence counsel said:

So the first issue relates to the fact that [R’s] evidence is unsworn, and it’s unsworn because it was found that she didn’t comprehend the obligation to tell the truth. I’d ask for a direction that that fact be identified to the jury. Unlike the other witnesses, her evidence is unsworn because she does not comprehend the obligation to tell the truth.

89. As noted above, this request did not expressly refer to s 165 of the Evidence Act. It did not, for example, refer to a “warning” that the evidence “may be unreliable”. However, the request must be seen in the context that, at the beginning of the trial, defence counsel had canvassed the need for warning per s 165.

90. The trial judge did not give the requested direction. It is possible that the request became lost in a group of requests relating to the jury’s need to be cautious when assessing the evidence of R. Unfortunately, the request was not renewed at the conclusion of the trial judge’s summing up.

91. The prosecution submitted that any direction about the fact that R’s evidence was unsworn would have contravened ss 165(6) and 165A of the Evidence Act.

92. Section 165 of the Evidence Act provides:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which part 3.2 (Hearsay) or part 3.4 (Admissions) applies; (b) identification evidence; (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; ... (2) If there is a jury and a party requests, the judge must— (a) warn the jury that the evidence may be unreliable; and (b) tell the jury about matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. ... (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or tell a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. (7) Any warning or information in relation to that matter may be given only in accordance with section 165A (2) and (3).

93. Section 165A of the Evidence Act provides:

(1) A judge in a proceeding in which evidence is given by a child before a jury must not do any of the following: (a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses; (b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults; (c) give a warning, or suggestion to the jury, about the unreliability of the particular child’s evidence solely on account of the child’s age; (2) Subsection (1) does not prevent the judge, at the request of a party, from— (a) telling the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable; and (b) warning or telling the jury about the need for caution in deciding whether to accept the evidence of the particular child and the weight to be given to it; if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child’s evidence and that warrant the giving of the warning or information. (3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury.

94. The first issue is whether the requested direction would have contravened ss 165(6) or 165A of the Evidence Act.

95. The requested direction would not have contravened s 165(6) of the Evidence Act. There was no request for a warning that the reliability of the R’s evidence may be affected by her age. The request was for a warning that the reliability of R’s evidence may be affected by the fact that it was unsworn. Nor would the warning have contravened s 165A of the Evidence Act. It was not a request for a warning that children as a class are unreliable or less reliable witnesses, and it was not a request for a warning that R (the particular child) was an unreliable witness “solely on account of [her] age”. The fact that R was a child or a child of six years of age was incidental to the request. The request addressed the fact that R had given unsworn evidence because it had been found that she lacked the capacity to understand the special obligation to give truthful evidence that attaches to sworn evidence. Section 165A(2) expressly permits a warning to be given on grounds other than grounds merely relating to age.

96. The second issue is whether a warning about the fact that R’s evidence was unsworn was required under s 165 of the Evidence Act. As we do not need to resolve this issue, we will merely make the following observations.

97. Section 165 of the Evidence Act applies to “evidence of a kind that may be unreliable”, including the seven specified categories (hearsay and admission evidence, identification evidence, evidence from a relevantly disabled witness, evidence from a witness who was criminally concerned, prison informer evidence, evidence of admissions that have not been adopted and evidence about the conduct of the deceased given in estate proceedings).

98. R v Stewart (2001) 52 NSWLR 301 concerned the direction that should have been given about the evidence of an alleged co-offender who had received a discount on sentence for assistance provided to authorities. At [101], Howie J said:

Accordingly, when a request is made for a warning under the section, the trial judge must first determine whether the evidence, if it does not fall within one of the designated categories, is of the class, or type, of evidence about which a jury might be misled in making an assessment of whether to accept it or in evaluating its worth. The section will apply to the evidence if the trial judge considers that the court has some special knowledge or experience about that kind of evidence which the jury may not possess and which may affect its reliability, or because it is the kind of evidence to which a jury may attribute more weight than it really deserves. (emphasis added) To similar effect, at [38], Hulme J described relevant evidence as being evidence that “could not be expected to fall within the general experience and understanding of a jury and in respect of which the courts have special knowledge”.

99. Section 165(1) does not specify unsworn evidence as a “kind” of evidence that “may be unreliable”. It is not manifest that a warning, as described in s 165, was required in the present case. Had defence counsel pursued the request for a warning under s 165, it would have been necessary for the trial judge to consider whether the evidence was “of a kind that may be unreliable”, whether there were “good reasons” for declining to give a warning (s 165(3)) and the terms of the warning that should be given.

100. It remains to be considered whether, apart from s 165, in the context of discussing the jury’s task of assessing R’s unsworn evidence, the jury should have been told about the differences between sworn and unsworn evidence.

101. In South Australia, s 9(4) of the Evidence Act 1929 (SA) provides that, when unsworn evidence is given in a criminal trial, the trial judge “must explain to the jury the reason the evidence is unsworn” and, if requested to do so, “must warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it”. There is no equivalent provision in the ACT. However, it is instructive to consider South Australian cases in which the rationale behind the provision has been discussed. In R v Lomman [2014] SASCFC 55 at [5], Kourakis CJ said:

The element which disentitles the person from testifying in solemn form is an insufficient understanding of the critical importance of giving truthful testimony in maintaining the integrity of the trial process and ensuring the just administration of the law.

And at [42], Sulan J (with whom Kourakis CJ and Peek J agreed) said:

What is important is that the Judge direct the jury that the taking of an oath or affirmation requires an understanding that the person is accepting the solemnity of the taking of an oath or affirmation, both morally and legally, and if the person fails to comply with that obligation the consequence may be that sanctions will follow.

102. Section 13 of the Evidence Act recognises the primacy to be accorded to sworn evidence and makes it clear that unsworn evidence is acceptable only when a witness is not competent to give sworn evidence. As explained in Lomman, there are two main reasons why sworn evidence is given primacy; a solemnity attaches to the taking of an oath or affirmation, and the failure of a witness to adhere to his or her oath or affirmation may result in significant sanctions. Underlying those reasons is the objective of maintaining the integrity of the judicial process and, as far as possible, ensuring that truthful evidence is given in court proceedings.

103. R was the key witness in the prosecution case. The most fundamental and most difficult task that the jury had to undertake was to assess the reliability of her evidence. With a view to bolstering the reliability of evidence given in courts, the Evidence Act gives primacy to sworn evidence and makes it clear that unsworn evidence is acceptable only from a witness who is not competent to give sworn evidence. In those circumstances, it was important for the jury to understand the difference between sworn and unsworn evidence and take that difference into account when assessing the reliability of R’s evidence. The jury should have been directed accordingly.

104. This ground should be upheld.

Ground (e): The trial judge failed to put the defence case

105. The appellant complained that the trial judge did not put the defence case and made no reference to the evidence that supported the defence case. The appellant submitted that the failure of the trial judge to put the defence case had deprived him of a real chance of acquittal and had caused a substantial miscarriage of justice going to the root of the proceedings: AS v The Queen [2010] NSWCCA 218 at [20].

106. This ground cannot be sustained.

107. In the course of the summing up, the trial judge repeatedly put the defence case. The trial judge told the jury:

The fundamental question for you, in this case, is whether those events happened at all. Did the accused, [GW], do the things that have been alleged by [R] in her complaints to her mother or in her evidence given to police or in the pre-trial hearing?

The trial judge said:

...the defence says that this evidence is untrue, that [M] has fabricated the evidence, made it up and then coached [R] in what to say to other people about it, so the first question you need to consider in relation to those complaints is: were those complaints made as they have been reported in evidence?

Her Honour said:

As I have already indicated and already mentioned, a lot of the evidence of [R’s] allegations has come via her mother. Her mother was reporting what [R] told her in September 2012. The law requires me to point out to you that [R’s] mother’s evidence, [M’s] evidence, of what [R] told her might be unreliable for various reasons... there is the possibility that [R] might have been subject to pressure to make a false statement, pressure that you don’t know about... ...you need to be cautious in accepting the evidence of those allegations from [M], and in determining, if you do accept that evidence, what weight you give that evidence.

108. Additional relevant passages are set out below.

109. One matter about which the appellant made particular complaint was the failure to give any specific direction regarding the evidence of Dr Bragg to the effect that, as a parent, M was in a position to influence and manipulate R. However, no redirection was sought. Further, as defence counsel submitted in the course of closing argument, the fact that young children are reliant on their parents, who are in a position of power and influence, is “pretty obvious” and “something that [the jury] would know for [itself]”.

110. It is necessary for a trial judge to direct the jury as to any principle of law or rule of practice applicable to the case and the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. However, it is not necessary for a trial judge to remind the jury of matters of fact and arguments in relation to the facts: Domican v The Queen (1992) 173 CLR 555 at [9] – 561, R v Getachew (2012) 248 CLR 22 at [29].

111. In this case, the trial judge did put the defence case. It was unnecessary for her Honour to restate the evidence in support of the defence case or the prosecution case, and her Honour did not do so. In the closing argument of defence counsel, which immediately preceded the summing up, the jury was taken to the evidence that supported the defence case. The jury would not have overlooked relevant material. In addition, the jury requested and received the transcript of evidence.

112. The appellant relied upon O’Rafferty v The Queen [2014] ACTCA 35 at [8] in support of an argument that the failure to put the defence case is not a ground to which r 5531 of the CPR applies. However, the Court has dealt with the ground on the basis that, if necessary, leave would be granted, and without considering whether r 5531 applies.

Ground (f): The trial judge failed to give an adequate warning about complaints of child sexual abuse made in the context of a custody contest

113. The appellant submitted that the trial judge gave an inadequate direction (under s 165 of the Evidence Act) concerning the fact that the allegations of sexual abuse had been made in the context of a custody contest between the appellant and M.

114. At the trial, relying on R v V (1998) 100 A Crim R 488 at 497-498, defence counsel sought a direction under s 165(2) of the Evidence Act that R’s evidence may be unreliable because M may have manipulated her in the context of the custody dispute. When the terms of the proposed direction were revisited, defence counsel complained that the direction proposed by the trial judge was “not a strong enough direction”. Defence counsel asked the trial judge to inform the jury that there was a need for “special caution” because the circumstance of the custody dispute reflected adversely on the credit of M.

115. The facts in V were that the accused was the complainant’s former stepfather. There was a delay in complaint of about three years. The passage in V upon which the appellant relied is at 497. It states:

The appellant submitted that the combined effect of [a history of animosity between the complainant and her mother towards the appellant and the fact that the complaint was made soon after ugly confrontations], when coupled with the lengthy delay in complaint, meant that the complainant’s evidence was, at the least, evidence which may be unreliable and that s 165(1) of the Evidence Act applied. In V, the NSW Court of Criminal Appeal accepted that a direction should have been given under s 165(2) of the Evidence Act.

116. In this case, in the summing up the trial judge said:

...the defence points to the Family Court proceedings as part of the background to this case, and in those circumstances, also, you will need to take particular care in assessing the evidence in this case.

Her Honour said:

I turn now to suggestions that have been made in this case that [M] had a motive to lie against [GW], that being the wish to retain custody of their two daughters and to limit his access to the children as far as possible. Defence counsel has reminded you of the sequence of events and the fact that the first claims of inappropriate behaviour relating to nudity in the family home were made after [GW] obtained the domestic violence order barring [M] from the family home and also from contact with her daughters and the allegations of acts of indecency with which this trial is concerned were first raised shortly after [M] became aware that [GW] was asking the court for substantial unsupervised contact with the two girls.

117. The bare fact that allegations of sexual impropriety were made when the alleged victim was the subject of a custody dispute makes neither the evidence of the alleged victim nor that of a parent to whom it is alleged that a disclosure was made “evidence of a kind that may be unreliable” within the meaning of s 165(1) of the Evidence Act. Section 165 is not concerned with unreliability in the general sense. Serious criminal cases are decided by juries because they are best equipped to understand such issues and, in general, the common sense and worldly experience of the jury will not be aided by a judge-imposed direction. Rather, s 165 is concerned with special “kinds” of evidence that may be unreliable for reasons that a jury may not appreciate because those reasons fall outside the knowledge and experience of ordinary people: R v Stewart (2001) 52 NSWLR 301 per Howie J at [101]. For example, in the absence of a s 165 warning, a jury may not appreciate that “innocence projects” and other research have established that seemingly solid identification evidence is often wrong, or that witnesses who are criminally concerned in the events that are the subject of the proceedings may have a strong incentive to lie in order to receive a benefit on sentence.

118. The background of the custody dispute between the appellant and M is a matter that the jury would have understood and appreciated. It is not something about which the Court had special knowledge. The circumstances did not call for a s 165 warning.

119. Her Honour put the defence case clearly. In so doing, her Honour drew to the jury’s attention the possible impact of the custody dispute on the reliability of M (and, through her, on the reliability of R) in an adequate and appropriate manner.

120. The respondent argued that, in so far as this ground asserted that a warning should have been given in relation to R’s evidence, the ground should fail because, at the trial, no warning was sought. It is unclear whether, at the trial, a warning was sought in relation only to M’s evidence, or was sought in relation to the evidence of both M and R. The Court has assumed that the requested warning related to the evidence of both witnesses, and has dealt with this ground on its merits. However, regardless of whether a s 165 warning was sought in relation to both witnesses, it is significant that, at the conclusion of the summing up, no redirection was sought in relation to the evidence of either witness.

121. This ground is not made out.

Ground (g): The trial judge failed to give a Markuleski direction

122. First, the appellant submitted that the trial judge erred in failing to give a direction in accordance with Markuleski, i.e. a direction that if the jury had a reasonable doubt about R’s credibility in relation to one charge, then they should take that doubt into account when considering whether they believed her in relation to the other charges. Second, the appellant submitted that such a direction was particularly desirable in this case because the direction that the trial judge gave in relation to tendency evidence could have misled the jury into thinking that they were positively precluded from using a doubt in relation to a charged act when considering other charged acts.

123. In Markuleski at [186], Spigelman CJ said that, in a “word against word” case involving multiple counts, it was desirable that the traditional direction about treating each count separately should be supplemented for the purpose of addressing the risk of inconsistent verdicts. At [188], his Honour said:

It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct the jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.

124. In relation to the appellant’s second submission, the trial judge gave a tendency direction about which no complaint has been made. In connexion with the limited way in which tendency evidence could be used (to establish that the appellant had a sexual interest in R or H and a tendency to act on that interest), the trial judge cautioned the jury that tendency evidence “must not be used in any other way”, for example as evidence of general bad character or (by a process of impermissible substitution) as direct evidence of the charged acts.

125. The trial judge’s observations about tendency evidence were corralled into one part of her Honour’s summing up. In the context in which her Honour cautioned the jury that tendency evidence (including, inferentially, other charged acts) “must not be used in any other way”, the only sensible interpretation that could have been placed upon her Honour’s words was that tendency evidence “must not be used against the accused in any other way”. Read in context, the direction about tendency evidence did not discourage the jury from taking into account any doubt about one count when considering another count.

126. Jurisdictions differ in the emphasis that they place on the need for a Markuleski direction. Although, in the seminal passage in Markuleski itself (see [122] above), Spigelman CJ referred only to the desirability of giving such a direction in “word on word” cases, in New South Wales, such a direction has come to be considered necessary. In Queensland, a Markuleski direction is considered to be a desirable direction because it emphasises the need for the jury to consider whether the complainant is a reliable witness “in a global sense”: R v LR (2005) 156 A Crim R 354 at [64] and [66]. However, in LR at [64] – [66], the arguments against a Markuleski direction were also canvassed; it may encourage propensity reasoning, it refers to a matter that is well within the jury’s ordinary understanding, and it may work an injustice to the complainant.

127. While a Markuleski direction is generally desirable and should ordinarily be given in “word on word” cases where there are multiple counts, it is not mandatory that such a direction be given. There may be good reasons why, in the circumstances of a particular case, a trial judge may decide to give no Markuleski direction; for example, the trial judge may consider that such a direction would be confusing or encourage tendency reasoning.

128. In her summing up, the trial judge gave a “Murray direction” (where there is only one vital prosecution witness, her evidence should be scrutinised with great care): R v Murray (1987) 11 NSWLR 12. The trial judge repeatedly referred to the need for the jury to be satisfied that R had made the asserted complaints to M and had been “both honest and accurate” in reporting the events. The trial judge said: What all that means is that before you can convict the accused you should examine the evidence of [R] and the evidence of [R’s] complaints very carefully in order to satisfy yourselves that you can safely act on that evidence to the high standard required in a criminal trial.

129. The jury was left in no doubt that the fundamental issue in the trial was the reliability of R’s evidence. With the benefit of hindsight, knowing that the jury reached different verdicts on different counts (and, in relation to some counts, the jury failed to agree), it would have been preferable for the trial judge to have given a Markuleski direction. But it was not apparent at the time. Neither before nor after the summing up did counsel perceive the omission of a Markuleski direction to be unfair and request such a direction.

130. In the circumstances of this case, the Court is not satisfied that the failure to give such a direction resulted in a miscarriage of justice, let alone a substantial miscarriage of justice. Further, r 5531 of the CPR is applicable. The Court declines to make an order under that rule.

Orders

131. The appeal is allowed and the verdict on Count 3 is set aside. The Court orders a new trial on Count 3.

I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 15 March 2016