IW v R

The assessment and approval of the appellant and LW as foster carers

1. Barbara Taylor, who gave evidence in the Crown case, [1] was the Programs Manager of the Wesley Mission Out of Home Care, which cared for children who had been placed in the care of the Minister for Family and Community Services. Ms Taylor confirmed that when the appellant and LW applied to become foster carers, they were required to undergo an assessment process which she described as follows: [2] … We had a series of four to five interviews, probably about two to two and half hours each session. They're usually held at round about a week apart. And it's a comprehensive interview of both parties that wish to be foster carers. Prior to that they've already had criminal checks, working with children's checks - all the necessary other checks.
2. Ms Taylor also explained [3] the training program that the appellant and LW were required to undergo prior to being approved: Q. Is there training? Once the foster carers are approved, is there training that they undergo? A. Yes. Q. Can you explain for us what that training is? A. Connecting Carers used to run a series of relevant training. It could be behaviour management, it could be trauma informed practice; it could be a lot of different training and we would invite the carers to come. Also, (IW) and (LW) attended the shared stories shared lives training at the time that is prior to being foster carers.
3. Ms Taylor confirmed [4] that on 10 August 2007 the appellant and LW were approved as foster carers for children between the ages of 2 and 6 years, and that they had assumed the care of the complainant and LT on 25 October 2007. She explained [5] that children in foster care are strictly monitored, and that all events and circumstances relating to their care are extensively recorded. She also explained the process of ongoing review of foster carers: [6] Q. Is there periodic review of the suitability of foster carers? A. After each exit of children there's an exit interview. If the children are old enough they're also interviewed, but there's also a carer review done every year, and they are re-approved each year. Their approval status may change; they may have - they're approved to have more than two children or less or whatever, so it can change. It can change at any time too, but - - … Q. Is the yearly review, is that just a proforma or is it an exercise that's taken seriously? A. It is, but each month the case managers also had (sic) to do a mini review on their month - the case managers have to do a monthly visit, a home visit and they also have to, every three months, comment in the carer's file on how the placement's progressing. Q. Is it the situation that (LW) and (the appellant) have been renewed from year to year through to 2016? A. That's correct.

The alleged offending

1. The evidence in chief of the complainant was adduced primarily through her recorded interview with police which took place on 18 July 2016.
2. The complainant said [7] that she was aged 6 or 7 during the period in which she was living with the appellant and LW. In respect of the offence alleged in Count 1, she gave the following account: [8] Q53. All right. All right. Well … are you feeling comfortable enough now to be able to talk about what it is that you want to report, OK? Matt and I weren't there so can you start at the beginning and tell us what it is or what happened to you? A. Like, the beginning of the first incident? Q54. Yep. A. So (LW) and (AW) had gone out. And (AW's) their, like, she was their teenage daughter at the time. Q55. Do you know how old she was? A. She was studying for her Ls, so I think 15. Q56. And (LW) was his - - - A. Wife. Q57. Wife. OK. So (LW) and (AW) had gone out. Sorry, I won't interrupt next time. So - - - A. No, you're right. And my brother (LT), was playing out the back. I was sitting in the back room watching TV when (the appellant) came out and got me. He told me I had to come with him and he took me into his and LW's room at the front of the house. Q58. A tissue. A. He grabbed my wrist and he held me down to the bed and I was so scared. I tried screaming and he just kept telling me that there was nothing I could do. If I told anyone, I'd go to hell and no one would believe me. He said if I ever did tell anyone, he'd hurt my brother next. Then he raped me and all the time he just kept saying, if you tell anyone, no one will believe you and I'll hurt your brother. And as he was telling me that, 'cause they were very devoutly Christian, and he kept telling me that it was my fault and I was sinful.
3. When asked to expand on that account, the complainant said that she thought that at the time of this alleged offending LW and AW had gone to the shops, although she was not 100% sure. [9] She said that the appellant and LW were living in the Wyong area at the time. She could not remember the number of the house or the name of the street in which it was located, but she did remember that it was located in a cul-de-sac. [10] She said that this offending had occurred during the afternoon of a weekend when it was still daylight, but she could not remember on which particular day. [11]
4. The complainant said [12] that when the appellant took her to his bedroom she felt confused, but that she was not initially scared. [13] She described [14] being pushed by the appellant onto the bed from her shoulders and landing on her knees. She said [15] that she tried to get up, but that the appellant grabbed her wrists and held them. She also described [16] the appellant removing her pants, and said [17] that by this time she was "so scared" and that "there was this pain down there and he just kept going". She said the pain was caused by the appellant inserting his penis into her vagina, which she said she felt but did not see. [18] She said [19] that immediately after the offending the appellant said to her: If you tell anyone I will hurt your brother.
5. The complainant said that the appellant then pushed her towards the door, told her that she could go, and said to her as she was walking away: [20] No one's gonna believe you if you tell anyone.
6. The complainant was then asked: [21] Q107. OK. Do you remember going to the toilet after that time? No. OK. Did you see anything unusual around your vagina? A. I, he, I put on, like, after that, I put on, you know, a pair of, got dressed when they came home. And when I got undressed, you know, to have a shower, there was blood on them, just a little bit. Q108. Yep. Whereabouts was the blood? A. It was, like, in the middle. Q109. Yep, OK, did you tell anybody about that blood? No. OK. Did you understand how the blood or know how the blood came to be there? A. No.
7. When asked if anything had happened afterwards, the complainant said: [22] And just, you know, just went and had dinner, said prayers. I was still, I was shaking but, you know, I'd been, I'd taught myself not to, just to be strong. And I didn't say anything to anyone.
8. The complainant was then asked [23] whether there was anything else she wished to say about the offending in Count 1, or about any other incident: Q117. All right. So …… is there anything else about that time that you need to talk to me or tell me about? O.K. Is there another time that you can tell me about? A. That's the one that I remember, you know, the most. Q117. Yep. A. 'Cause it was the first time. After that, whenever they were out he'd come and get me and it was pretty much just a repeat. Q118. Alright. So how many times … would he have done, where he put his penis in your vagina? A. I don't know the exact number. It was - - - Q119. But there were lots? A. It became pretty regular. Like, it wasn't just a one off. Q120. Yeah. A. And, you know, I was just so scared that he was gonna hurt my brother and I didn't say anything.
9. The interview with the complainant then moved to the offending alleged in Count 2: [24] Q121. … Is there any other time … that stands out in your mind that you might be able to talk about now? A. He, there was one time I remember. It was one of the earlier ones where I was, and he came into my room at night because (AW) was staying at someone else's house and at the time we were sharing a room. And he told me to get up and he pushed me over so I was face down on the bed and when I tried to turn around, his pants were down and he shoved my head back around. He was holding me there. And he did it again. Q122. Can you tell me … what he did again? A. He put his penis in my vagina again. Q123. OK. So it was a situation you were face down on the bed and he was laying …. A. He was standing up. Q124. Standing up. A. … kneeling. Like, he was behind me. Q.125. Yep. A. He was standing up when I turned around. And when I tried to turn around - - - Q126. What did you see when you turned around …? A. His pants were down - - - Q127. Yeah. A. - - - and his penis was out and he was rubbing it. Q128. What was he rubbing his penis with? A. With his hand. Q129. OK. Do you remember what you were wearing at that time? A. My pyjamas. Q130. So again, was it day time or night time? A. It was night time. Q131. Night time? A. The middle of the night. Q132. Do you remember where (LW) was? A. She was in bed asleep 'cause she always, always went to sleep early and she would sleep like a rock. Q133. OK. And you don't know where (AW) was staying? A. I think, I would assume at a friend's. Q134. All right. So how much after, or how much later did that time happen after that first time you told me about? A. I think a few weeks. Q135. Do you remember if you had your summer PJs on or winter pyjama, PJs? A. I had a nightie, like a, it came down to my knees. I loved it. Q136. What was it? Can you describe what it was? A. It was pink and it had flowers on it. Q137. So did he do anything to your nightie? A. He lifted it up. Q138. Did you wear anything underneath your nightie? A. No. OK. Were you sleeping on top of your bed covers or underneath? A. I was sleeping underneath the sheet. Q139. Yep. So just describe for me again. You said you were, he, he's come in and he's lifted your nightie up. Were you already laying on your tummy or did he - - - A. No. He pulled me out of bed. Q140. Yep. A. And then forced me down onto my stomach. Q141. All right. So, but you were still on the bed? A. He pulled me, like, out of bed - - - Q142. Yeah. A. - - - and then he put me down the way that he wanted me. Q.143. Yeah. OK. And tell me what position he was again. A. He was behind me and, like I said, when I turned around and looked at him, he was standing up and - - - Q144. OK. And then from there? A. He forced my head back around. Q145. Right. A. And so I couldn't turn around. Q146. All right. OK. So just, sorry, I'm just trying to visualise how it happened. So he's got you out of bed and you've turned around and he's, he's been standing up. A. He got me out of bed. I was standing there. He pushed me down onto the bed on my stomach. Q147. Right. A. And was holding me there. When I tried to turn around - - - Q148. … A. Yep. Q149. Yeah. OK. And then, then you felt he put his penis into your vagina. And what caused him to stop? A. He finished. Q150. How do you know he finished? A. He let out this sound like he was moaning and then, you know how it's, he just made this kind of final noise. And there was one, like, as he made it, it was like one thrust and he made a noise and just pulled out then. Q151. All right. Did you notice anything unusual around your vagina when he pulled out? OK. And what did you do after that? What happened then, after he pulled out? A. He was just saying that if I told anyone, I'd just get, solely just, that's all he was said to me. And then he left. Q152. What did you do that time? A. I got into bed and cried. I didn't know why. I didn't know what he was, at the time, you know. You don't know what that is and I didn't know what he was doing. I just felt violated and gross. And I knew it was wrong but I didn't know why he was doing it to me. Q153. Yeah. OK. OK. A. I felt abused.
10. Apropos her earlier reference to other occasions on which the appellant had sexually assaulted her, the complainant was asked: [25] Q154. Yep. OK. Can we move onto another time, that you can remember? A. Other than those two times, whenever he came near me I'd kind of, I'd just try not to think about him or focus on him. And whenever it would happen, I would just, I stopped letting myself be there in the present moment 'cause I didn't want to experience it. Q155. What was your relationship like with him before the first time that he had raped you? What was his relationship or your relationship like with him? A. It was just like any other foster carer and I hated them all, but (LW) and (the appellant), at the start I felt welcome and I felt like I was part of a family. And with other foster carers, like, I, I'd been in a home where they didn't have kids and I was in a home where they had too many kids and all the other kids would pick on me. But then at (LW's) and (the appellant's), there was one kid that was so much older than us and - - - Q156. And that was (AW)? A. Yeah.
11. The questioning later returned to other occasions on which the complainant had been sexually assaulted by the appellant: [26] Q165. Alright. So is there any other time … that you can talk about in some detail? Only those two times you can remember but there's been lots of times. A. Yeah, yep. Q166. OK. Did those times, other times, include right up to when you left? A. When we started, we started having visits with (CT) and (ER) and it was still going then but the more we started to see them, it, when we started to see them more, he stopped. Q167. Did he say anything about that to you? A. No. Q168. You just remember it stopping? A. Yep.
12. The complainant said [27] that she had not seen the appellant or LW since leaving their care, but that both of them had tried contacting her on social media by sending her friend requests and trying to message her. [28] She was asked: [29] Q190: So did you engage at all with them? A: No Q191: No. OK. A: I just blocked them both. Q192: OK. So there was absolutely no communication there between you? A: No. Q193: Between yourself and them I meant. OK. A: But after that, they tried, not they tried. Like, after that, (LW) tried following me on Instagram but I've got a private account so she couldn't.
13. In response to questions put by the Crown in further evidence in chief, the complainant said [30] that the appellant used to refer to her as "the devil": Q. When you say, what he used to tell you, what do you mean? A. He used to tell me I was the devil. Tell me I had the devil inside me. Tell me he'd hurt my brothers. This is what I told them. I told them that he told her and then told me that if I ever felt like masturbating to come and tell him. Q. Were you telling (CT) and (ER) about these conversations? A. Yep. …. Q. What was their reaction when you told them? What A. Well they got, they got - well (ER) especially not really, really mad. She said she knew something was going on, but, and, yeah, I - she could be very scary when she's angry. I didn't want to tell anymore, yeah.
14. The complainant was cross-examined about the fact that she had not disclosed these, and other statements allegedly made to her by the appellant, to police: [31] Q. You didn't say anything to the police in that interview about having told your aunts what he used to tell you or what he used to say to you did you? A. No, didn't come up - - Q. There's not a word in that - - A. - - in that part. Q. I'm sorry? A. I said not in that part. It's not there. Q. Is it in any other part of your interview do you say? Because I'm going to suggest to you that we find nothing in that interview about your claim that the accused said to you, if you ever feel like masturbating, come and tell him; there's nothing in that interview about that is there? A. There were several things I didn't tell the interviewer that he didn't tell me. Q. You didn't even say anything in that interview about telling your aunts about the things he used to say to you, did you? A. I didn't come up. … Q. Did you just not remember at that time that you told your aunts about things that he used to say to you? A. I did remember it, but it didn't - it was really hard to say at the time and then we moved on to my nanna. Q. In the statement that you made yesterday you did say this, in paragraph 5, "I started by telling (AW) and (CT) about the comments (the appellant) would make to me", is that right? A. Yep. Q. You didn't say what those comments were, did you? A. No. Q. You apparently remember this morning, because you said it in your evidence, that one of the things he said to you and that you related to them was that if you feel like masturbating, come and tell him, is that right? A. Yep. Q. You have not, in any document related to this case, ever said that before, have you? A. No, I haven't. Q. I'm wondering if the reason you claim to remember it now is because you read it in that conversation? A. No. Every time I've been asked how I told someone, all I said was "I would tell them the comments I have made". I have not been asked before now what those comments have been. Q. So, you say you did always remember it, but you didn't say it because no one ever asked you? A. Yep. Q. You remember it from the time he said those things to you right through, is that right? A. Yep. I - there were, there were years there that I tried blocking everything out. Obviously it doesn't always work.
15. Later in cross-examination, the complainant said [32] that she had also had a conversation with LW about the subject of masturbation. She was asked: [33] Q. Can you tell us on how many occasions you spoke, or (LW) spoke with you about masturbation? A. There was once where she spoke to me privately and once in front of (ER) that I recall.
16. The complainant said [34] that the conversation in ER's presence had taken place out the front of the appellant's home, and that she thought that CT was present as well. The complainant said that she had heard LW telling her aunts that she (the complainant) "would touch herself". She said [35] that the appellant and LW had told her that this was the wrong thing to do.
17. The cross-examination then continued: [36] Q. Did you hear (LW) say something like this, "we've told (the complainant) it's wrong and she should talk to us if she feels like doing it"? A. I do not recall (LW) telling me to talk to her. I recall him telling me to tell him. Q. I'm asking you if a conversation at which both (ER) and (CT) were present and you were present, you heard (LW) or the appellant for that matter say something like this, "We've told (the complainant) it's wrong and if she wants to do it she should speak to us about it"? A. Yeah, something like that. Q. Did you observe how (ER) reacted to that? A. No, I didn't by (sic) her. Q. Did you find out later how (ER) reacted to that? A. I had a private conversation with her later. Q. Did she tell you she felt very strongly about that? A. No. Q. Did she indicate to you that she was angry about that having been said? A. She indicated that not - she indicated that she was angry that they had said that but tried to tell me that it was fine. It was okay. I haven't done anything wrong. Q. Did (CT) and (ER) - you said you were told that it was okay. Was that (ER) or was it (CT) and (ER)? A. That was (ER). Q. Did you ever speak on the subject with (CT)? A. Not that I can recall. Q. Did you tell either (ER) or (CT) that it was something that you'd learned from a female friend before you were living with (the appellant)? A. No. Not that I can recall. Q. Was that the fact? A. Sorry what? Sorry. Q. Was the fact that that's where you'd learned it from? A. I don't even know what I am supposed to have been doing. Like I said, how does a seven year old masturbate? It - -
18. The complainant was also cross-examined about her assertion to police that she had seen blood on her underwear following the offending in Count 1: [37] Q. You say that it was after you later that day got undressed for the shower that you saw some blood in your panties, is that right? A. Yep. Q. You'd spent some time that afternoon in your bed with no lower body garments? A. No, they didn't - they came home fairly soon after. I had never sent (sic) that they spent hours out, they came home fairly soon after and I said then they came home, is what I was intending to say. Q. You didn't ever see any blood on your sheets? A. I didn't check my sheets. Q. I'm sorry? A. I didn't check my sheets. Q. Nobody ever asked you about any blood on your sheets? A. No, they didn't. Q. Nobody ever asked you about blood on your panties? A. No. Q. Could that be because you're telling us a tale? A. No. Q. Could it be that, I won't use your term, you were still fooling with the accused? A. No. Q. Again, I won't use your term, are you fooling with this jury? A. No. This isn't something to joke about. Q. Is (sic) isn't is it, anything to joke about? A. No.
19. The complainant was also cross-examined about what she had said to police about the fact that she had liked living with the appellant and LW. When asked [38] how she liked it when she first went there, she answered: A. When I first went there initially, I, yeah, I started to end up liking it there.
20. The complainant went on to say [39] that she ceased liking to live with the appellant when he committed the offending, before being asked: [40] Q. You didn't want to move to your aunt's home? A. No. Q. You wanted to stay there with the accused and his wife and his daughter? A. I said I ceased liking parts of being there. Q. I'm not asking you about that, I'm asking you about - - A. Yeah, and then I didn't want to move, no, I've been open about that. Q. Why do you say you didn't want to move? A. Because I liked the school I was at, I wanted to - that was the school that I wanted to go to at the start of the next year; I wanted this pair of shoes and it was the longest I had been somewhere in a while. Q. You liked the school you were at, you wanted to (sic) a particular pair of shoes; is that right? A. Yes. Q. What was the last bit? A. And it was the longest I'd been anywhere in a while. Q. Did you find that at (the appellant's) home you had the opportunity to do things that you'd never been able to do previously. A. Yes.
21. She was then asked: [41] Q. In early 2008 did you become aware that (CT) and (ER) were considering attempting to get custody of you and (LT)? A. No, I wasn't aware of that until after the fact. Q. When did you become aware of that do you say? A. When they ended up getting us, because we were starting to see them more regular but we didn't know why. Q. When you found out that you were going to live with them you were upset; is that right? A. Yes.
22. It was put to the complainant in cross-examination [42] that there was no truth in any of the allegations, a proposition which she denied.

The timing of the offending

1. The complainant said [43] that the offending in Count 1 had occurred "just before Christmas" (i.e. Christmas 2007). She dated that offending by reference to the fact she had an advent calendar, [44] and said that it was "possible" that it happened during school holidays but that she was "not 100% certain". [45]
2. She said [46] that the offending in Count 2 had occurred "a few weeks after" the offending in Count 1, that it was after Christmas, [47] and that it had happened at a time when she was sharing a bedroom with AW. [48] She also said [49] that she was "not very good with time and…never really (had) been".
3. Against this background, the complainant was asked by police [50] to draw a floor plan of the appellant's home. The plan she drew showed her and AW occupying separate bedrooms. AW's bedroom was depicted on the plan immediately adjacent to the living room. Next to one of the walls of AW's room were the words "later addition". In drawing that plan, the complainant was asked: [51] Q233. Just put my room. Yep. A. Over here first the hallway but that was built later. Q234. Yep. A. So first this was all just one big living room and then it later got turned into two rooms. One of them was (AW's). Q235. Right. A. And the other one was another living room. Q236. OK. So in terms of that room, that hallway or that wall being made, do you remember if that wall went up the first time? A. After the first time. It was built later on into my time spent there.
4. LW gave evidence [52] that the complainant and AW had only shared a room for "a very short period of time … right at the beginning". She explained [53] that a bedroom was then built for AW at the front of the house so that she could have her own space.
5. AW's recollection was that she had shared a room with the complainant for only one night. [54] She gave no evidence about the building of her bedroom.
6. In his interview with police, the appellant was asked the following: [55] Q70. O.K. Now so you said (the complainant) and her brother… were the first children that you had? A. They were the first. Q71. Yeah. Can you tell me where they slept in your house? A. O.K. Well they were in, I'm just trying to remember now it's eight and a half years ago, eight years ago. Um, they slept in the bedrooms near the bathroom and toilet. I can't remember whether (the complainant) was in the room on the left and (LT) in the room on the right. (LW) would know but I think that's, yeah, because you understand over this eight and a half years we've had something like somewhere between thirty and forty children. And - - - Q72. That's all right. I know it's - - - A. - - - it's hard to remember where - - - Q73. - - - going back in time. Yeah. Was it the case that a (AW) and (the complainant) might've shared a room to begin with? A. No. No. Actually, (AW) had her own bedroom. Q74. Did you have some renovations so that she could have her own bedroom? A. Mmm. Yes, we did. We actually had, it was a three-bedroom home and we had a very large lounge, dining room type room, a very large room. And I put a, put two walls in and built a bedroom out the front of the house with built-in wardrobe and that was, that was her room. Q. (AW's) room? A. Mmm. Yeah. So previously she was using one of the other rooms, she was in one and (B) was in the other. Q76. Yeah. A. And then we built this room for her. It must've been prior, it must've been before we started foster care, I can't remember when. But I think it was built before, I think it was built before (the complainant) came I think, yeah. Q77. (The complainant) seems to remember that you were building it when she was there? A. Ah, O.K. So it was about that time. Q78. Yeah. Around that time, yeah. And her memory is that her and (AW) shared a room, there were two single beds in the bedroom. A. Ah, O.K. Q79. and then because of - - - A. She shared, okay. Q80. Yeah. You decided that very reason, big lounge room and you've put a dividing wall up allowing (AW) to have her own room. A. That's right. Yeah.
7. Following his interview, the appellant sent a letter to the police dated 12 August 2016 [56] in which he said (inter alia): After listening to the recorded conversation that took place at Wyong Police Station I have been corrected by my wife … and daughter ….. After looking at some old video of the kids we found the new bedroom was being built at this time with the kids. … I do apologize if I mixed up my times & movements as things are forever changing & hope this may help clarification.
8. What the appellant meant by "at this time" is not entirely clear, although other parts of his letter were prefaced with references to events occurring "during the dates 2007-2008".
9. Having been taken to what he had told police about the layout of the house, the appellant gave the following evidence in cross-examination: [57] Q. Do you agree with me that her memory on that aspect was better than yours at the time wasn't it? A. Again, I'd have to disagree. Q. Pardon, sorry? A. I have to disagree because she's saying it was actually being built. I think in her statement from memory - don't quote me - when she moved into our house it was one big room. That was never the case. When she came to our home the walls were up, the walls were up but it was unpainted. Okay, we simply had to do the cornice around the top and fit the wardrobe door. But the room was up. It wasn't finished. And it was in the process of being finished and painted. Q. That's exactly what she says when it's put to you at 77, "(the complainant) seems to remember that you were building it when she was there." So that's right, isn't it, you were building it? A. Yes, it was - we were still in the process of building, yes. Most of the work was done, yeah, okay. I agree with that. …… Q. So your understanding at that time, your memory, was that it was built before (the complainant) came? A. That is still my memory today.

The evidence of complaint

1. The Crown relied on evidence of complaint elicited through a number of witnesses, the first of whom was the complainant herself.
2. On her account to police, the complainant had initially attempted to tell CT and ER about the alleged offending but had found herself unable to do so: [58] Q169. Yeah. OK. … do you remember who the first person was you told about him doing this to you? A. I, I've tried to tell my aunties. Q170. And that's (CT). A. Yeah. And (ER). But I was too scared to come out outright and say it and they didn't pick up on it. Q171. Do you remember what you were trying to say? Do you remember what you told them? A. No. I don't remember specifically but I was, I was so nervous and I was just trying to tell them that he'd hurt me and I didn't know what to do. But they just, they weren't picking up on it, you know. Q172. In your mind, you're probably saying - - - A. Yeah. Q173. - - - I'm telling you something but they didn't get it. A. Yeah.
3. In answer to further questions asked by the Crown in evidence in chief, the complainant confirmed [59] that she had attempted to tell CT and ER about the offending. Having explained [60] that she had started by telling them that the appellant used to tell her that she was the devil, and that she had the devil inside her, the complainant was asked by the Crown: [61] Q. Were you telling (CT) and (ER) about these conversations? A. Yep. Q. Was that the first time you had mentioned those conversations to them? A. Yeah. Q. What was their reaction when you told them? A. Well they got, they got - well (ER) especially got really, really mad. She said she knew something was going on, but, and, yeah, I - she could be very scary when she's angry. I didn't want to tell her anymore, yeah. Q. You mean (ER) could be very scary when she's angry? A. Yeah. Q. When you saw their reaction to what you were telling them, how did you feel? A. I felt, honestly I felt like shit. I, I just felt like it was my fault they were angry. I felt like they were angry at me. Q. Did you then keep telling them what had happened in any more detail? A. No. Q. Why not? A. I was scared. Q. What were you scared of? A. I was scared of how they'd react and was scared that, I was scared he'd find out and hurt my brother. Q. By "He", you mean the accused? A. Yep. Q. Why were you scared that he'd hurt your brother? A. Because that's what he'd constantly tell me he would do if I told anyone. Q. Did you ever try and tell them any more about this incident or these incidents? A. No. Q. Why was that? A. Just I was, I was scared, that's, I was, I was just scared of him.
4. The complainant was cross-examined about the fact that she had not actually told CT or ER about the alleged offending: [62] Q. We understand you didn't tell (CT) and you didn't tell (ER). Is that right? A. Yep. Q. In fact, did you ever tell (ER) that nothing had happened to you of a sexual nature while you were at (the appellant's)? A. I might have yes because I was too scared to tell her. Q. You agreed earlier today that one person you could count on to believe you if you made such an allegation was (ER). Is that right? A. Yep. Q. (ER) was very protective of you, wasn't she? A. Yep. Q. She was understanding? A. (no verbal reply). Q. Is that right? A. Yep. Q. You trusted her. A. Yep. Q. But you never told her? A. No because as much as I trusted her and thought she would understand, it was nothing against the fear I had that he would hurt my brother.
5. Later in this judgment I have addressed the evidence of messages which were exchanged between the complainant and ER in 2015. The complainant was cross-examined about her failure to disclose the offending to ER in the course of those messages: [63] Q. You didn't, at any stage in that conversation, choose to say anything to (ER) about what you claim had happened to you, is that right? A. No, apparently not, no. Q. Would you accept that on the face of it (sic) appears to have given you the opportunity to do so with some of the comments she made, where, for example she said, "You're one of the lucky ones who got out of there without anything happening"? A. Even if that could be perceived as an opportunity, I was still too scared to say anything to her. Above all else, my brother's safety has been first and foremost. Q. You knew very well that the accused had no power to hurt your brother, didn't you? A. How do I know that? How, how did I know that? Q. He was living in Sydney with his father. Is that not right? A. That is right. It still doesn't mean anything. Q. If you claim, of course, that you did tell your grandmother in May of June 2015, what happened to the fear then? A. It was still there, hence why I didn't continue, but my nightmares and I was in that bad of a place that I had to at least try. Q. One person you knew who would stick up for you and look after you and look after your brother was (ER), is that not right? A. Yep.
6. On the complainant's account, the first person she actually told of the alleged offending was her grandmother (JT): [64] Q174. Yeah. OK. Who was the first person you then told that, outright, you know, that he's - - - A. My nana and I'd actually thought that I'd told my mum because at the time she'd actually been staying at the house and I'd been meaning to tell her. And then my nana, we were talking about my mum and she's not a very pleasant person. She didn't believe my mum either and just, she didn't believe me. Q175. So where were you when you told your nana? A. In her house. Q176. Where's that at? A. Quakers Hill. Q177. OK. And how long ago was it that you told her? A. I'd been living with her, so it's July now. About just over a year ago. Q178. So July last year. Now, take it back. Do you remember - - - A. It was around the middle of the year before I changed schools. Q179. OK. What did you tell your nan? A. We were talking about my mum and she was saying that she'd been through, like, my mum had been through abuse and I said, So have I. And I tried to tell her, or I did tell her. I said, I was, she goes, What do you mean? I said, My last foster carer, he was sexually abusing me, and she goes, I don't know I believe you 'cause your mum tried saying the same thing when she was younger. And after that, I said, Fine. Don't worry about it then, because I was thinking maybe he was right and no one would believe me and I should just stop trying.
7. The Crown asked the complainant further questions in evidence in chief about what she had said to JT: [65] Q. So, if we move on. Do you remember the next person who you spoke to about what had happened to you? A. My nanna and poppa. Q. Do you remember roughly when that was? A. That was in 2015. … Q. So you went to your nanna's in the January early 2015. Do you remember when it was that you first spoke to her about what had been happening to you? A. It was about May or June. Q. Do you remember what was happening that day? A. My mother had come, she'd - 'cause from April I was spending part of my time in Cairns, and she, my mother was spending part of her time down in New South Wales with me because my youngest brother had been born in March. So, she'd gone out for the night and I was babysitting my brother. My nanna like walked into my room and at first it was, we were just talking about how cute he was, and that's when we started to have a deeper conversation about what my mum had been through, why she was the way she is now. My nanna was telling me that my mum had been through a lot of abuse, both physically and sexually and emotionally; that is when I turned around and said 'Look, so have I'; you know she was confused, she goes "What do you mean", and that was the first time I'd said the words "I was sexually abused". My last foster carer, he was - and she, she didn't believe me; she turned around and said "You know your mum tried saying the same things; I don't know if I should believe you, I don't know if I do believe you", and I just, I felt like what he'd told me was true; I felt like no-one would ever believe me. Q. When you said that it was the first time you'd used those words, that were you were sexually abused, did you tell her by who? A. Yeah, I - - Q. What were the words you used? A. I said "My foster carer, my last foster carer, he did it to me". Q. Did you name him? A. I didn't name him, no. Q. But (the appellant) was the last foster carer before you lived with your nan? A. Yeah. Q. How did you feel when she reacted the way she did? A. I felt so hurt. I felt hurt but at the same time I half expected it because you know maybe no-one would ever believe me, and that's what it seemed like, that's how I - I felt useless. Q. Did you talk again with your nanna after that day about what had happened? A. Not that I can recall.
8. Trial counsel cross-examined the complainant in respect of this account: [66] Q. You claimed to have told your grandmother that it was your last foster carer? A. Yep. Q. I'll just turn it up. You said, she was talking about things that had happened to your mother and you said, 'Look' - I withdraw that. According to what you said this morning, your grandmother, and this is (JT), isn't it? A. Yeah. Q. Said your mother went through abuse and you said to her, "Look, so have I". Is that right? A. Yeah. Q. Is that a truthful account of what you said to your grandmother? A. Yes. Q. "So have I"? A. (No verbal reply). Q. Yes? A. Yep. Q. You claimed to have told your grandmother or she, you said this morning, was confused and asked you, "What do you mean"? Is that right? A. Yep. Q. What do you say that you said to her? A. You've got it, haven't you? I told her that I had been - and it was the first time I'd said it, I had been sexually abused by my last foster carer. Q. Rather than that version, I'm going to ask you if it's true that whilst you were living with your grandmother you had arguments with her from time to time? A. Yep. Q. I'm suggesting to you that what you said to your grandmother was this and this only, something like, in the course of one of those arguments, you said, "You don't understand what I've been through"? A. Yes, I did say that to her in an argument. Q. She said to you, "What have you been through?" and you refused to say anything further. That's a more accurate version of what you told your grandmother, isn't it? A. No. That was a separate occasion. Q. You did not, I suggest, say any more to your grandmother than words to the effect that you'd been through a lot? A. I did say more to her.
9. Trial counsel then referred the complainant to MFI 10 (which I infer was a copy of JT's statement to police) before asking her: [67] Q. Having read that, do you accept the proposition that the only thing that you ever had told your grandmother, which might relate to something bad, was the fact that you had been through a lot? A. No, I do not accept that. Q. On any view of it, just leaving aside the allegations that you make against the accused, you have in the course of your life been through a lot? A. Yes.
10. Despite the complainant's reference to having told her "nanna and poppa" about the offending, she in fact gave no evidence of having had any conversation with her grandfather about these matters at any time. Only JT was called as a witness by the Crown. JT said [68] that her conversation with the complainant took place in 2014 (approximately 7 years after the alleged offending). She was asked by the Crown: [69] Q. What were the words she used to you? A. She said something like "You don't know what I've been through" and she was crying, and I did try to ask her, but she just sobbed and she wouldn't say anything. Q. Was that the only time when she talked to you about anything like that? A. We know that she's had a difficult time, so we kind of wanted to tread carefully. So, we didn't - I felt that if she wanted to talk to me she could, but I didn't want to push anything.
11. This account was not the subject of cross-examination. JT said nothing about having referred, in her conversation with the complainant, to the fact that the complainant's mother had been the subject of abuse, yet on the complainant's account, it was that reference which was the catalyst for her telling JT about the offending. Further, on JT's account, the complainant had made no allegation of sexual offending at all, much less attributed such offending to the appellant. In these important respects, the complainant's account of the conversation was inconsistent with the account given by JT.
12. The complainant told police [70] that the next person she told about the offending was Leslie Cohen (Cohen), a family friend: Q 180. All right. Who did you tell after that? A. I told … and … and Les. Q181. Sorry? A. I told Les - - Q182. OK. A. - - - last Saturday.
13. Although the interviewing police officer indicated [71] that he would return to this issue, it was not canvassed any further. However, it is apparent that on the complainant's account, her conversation with Cohen took place only days before she was interviewed by police.
14. In answer to further questions asked by the Crown in evidence in chief, [72] the complainant said that her conversation with Cohen had taken place about halfway through 2016, at a time when she was living with her stepfather in Coonamble. She said [73] that she had been present (along with TT, Cohen and others) at a conversation, the topic of which had turned to a neighbour of Cohen who had allegedly sexually abused his grandchildren. The complainant said that as a consequence of that conversation she had become scared, nervous and anxious, to the point where she had a bad panic attack and left the room with Cohen following her. She was then asked: [74] Q. What happened when Les followed you outside? A. I was sitting outside shaking and crying and he just, he looked at me in the eye and he just knew, he goes "Someone's hurt you darlin' haven't they"; I just go "Yeah". Q. Can you remember the words you used when he said that? A. I just said "Yeah"; "Tell me" and I said "Yeah, I was raped when I was a kid too". Q. Did you tell him who by? A. Yeah. Q. Do you remember the words that you used to him? A. Not exactly, no, not word for word. Q. What do you remember saying to him? A. Just telling him his name, "(the appellant), he was meant to be looking after me, he was my foster dad". Q. What was Les' response when you told him that? A. He just - silence - "Hang in their darlin" and started hugging me. He asked me if my mum knew and I said no; I didn't think she did.
15. The complainant was not cross-examined on that account.
16. Cohen gave evidence [75] that he recalled an evening when he and his wife were at home, along with the complainant, TT and others. He said [76] that during that evening, the topic of conversation had turned to someone who "lived in town" and who was "not a very nice person". Cohen was then asked by the Crown: [77] Q. What happened when you were having that conversation? What happened then? A. Well, (the complainant) became very upset. She started crying and she got up and walked outside and sat on the chair on the veranda and I followed her and asked her what was wrong, and she was extremely upset, and she said, "It happened to me" and I said, "Well, what?" She said, "I was assaulted". "When?" She said, "When I was in foster care". Okay. Q. When you say, "she was extremely upset" when you went outside, what was she doing? A. She was sitting in the chair and just crying. Like, it, it, - not hysterical, but sobbing. Q. If you could try and remember the exact words she said to you, as best you can, when she first spoke to you, what did she say? A. Well, I said "How? What do you mean 'assaulted'"? She said, "Sexually". I said "When did this happen?" She said, "When I was with foster care". Okay. So, we went back inside, and I spoke to her mother and a couple of days later her mother rang me and said that they're going down to Dubbo to the CP unit and (the complainant) wants me to go as well 'cause I'm the only one she trusts. Q. When she said to you that it was in foster care, did she tell you who it was? A. No. Q. Did she tell you in what family that happened? In which foster family? A. No, she just said that it was her and her brother there, her younger brother there. Q. Who were there? A. Yeah.
17. Cohen's account that the complainant did not identify the person who had allegedly assaulted her was not consistent with that of the complainant, who had asserted that she had named the appellant as the person responsible, and had told Cohen that it was her "foster dad".
18. The complainant gave evidence that after speaking with Cohen, she then spoke with TT on the same evening: [78] Q. Can you tell us what happened after that? A. My mum was a bit drunk and she walked out and at first, she started saying "You know you've ruined the night; why are you always doing this, you know why are you doing this, why are you causing a scene". I don't know, I can't recall how she found out but she, then she just (sic) "I'm so sorry" and she started crying and hugging me as well; she promised "I'm going to fix it". Q. Did you tell her what had happened at that point? A. No, I don't know how she found out because I didn't, I don't recall telling her. Q. What was the next thing that happened? A. We walked back inside and yeah, I was outside for a while just trying to calm down. We walked back inside, started smoking you know just - we tried to convince Patrick, my stepfather, to take me to the police station the next day, but he just, he refused, said he had stuff to do on the farm and couldn't take me. Q. When was it that you ended up going to the police station? A. I think it was about a week later; maybe not quite a week. Q. Who took you? A. My stepfather took me; he ended up taking me and my Uncle Les came with me. Q. That's when you made the record of interview that we've watched in court? A. Yeah.
19. TT gave evidence [79] that she had been at Cohen's house and had left to go to a bottle shop before returning and speaking to Cohen, who told her of his earlier conversation with the complainant. She was then asked: [80] Q. What was the next thing that you did? A. As soon as he said, "Go out and speak to your daughter" I went outside and, and I said - I sought of yelled at (the complainant) and said, "What are you doing? Why are you ruining the night? Like, "Why is Les yelling at me? I don't - What have you done?" You know? And she said, "I got raped in" - she said, "'I got raped". I said "What?" She said, "Yeah in foster care". I said "What? What?" And it was - it took a little while to process what she was saying, so - just wasn't wanting to - I knew something happened to her, you know? But it just wasn't wanting to sink into my head. I said, "What? Who? Who did it? When? Where" she said, "It was (the appellant)". I said, "'Do you mean - as in (LW) and (the appellant)?". She said "Yep." I said "You were with them for a long time. What do you mean?". Like, then she told me it happened like multiple times and - - …… Q. If you just wait one moment. Did you then ask her why haven't you told me this before? A. Yes. Q. What did she say? A. She said, "I did tell you before". I said, "No, you haven't". And she said, "Yes, I did". And I said, "No, you didn't", and we just went back and forth for a bit, and then, and then we just were crying and hugging, and you know. I - she may have tried to tell me, and I didn't listen you know? I'm not real good as (sic) listening sometimes and - - Q. Then did you do anything else on that night about what she told you? A. Not that night no. Q. What was the next thing that you did? A. I waited for her to tell me - waited for her - I said, "We're going to go to the police," and she went "Yes - -".
20. TT was not cross-examined on that account.

The Facebook messages

1. Exhibits 1 and C were copies of Facebook messages which had passed between the complainant and LW, and the complainant and ER, in 2015. All of the messages contained in those two exhibits were consolidated in exhibit 5. [81]
2. The messages exchanged between the complainant and LW between 17 July 2015 and 2 August 2015 were generally civil in their tone, and were often in the nature of LW reminiscing, and "catching up" with the complainant. For example, on 17 July 2015 at 18:27, LW sent a message to the complainant which was in the following terms: If u ever need to talk just let me know x
3. On the following day LW sent a message to the complaint at 17:07 asking her if she had found a new school. Following the complainant's reply at 17:40, LW responded: Hope this is the right place for you
4. In another message sent on 21 July 2015 at 21:23, LW told the complainant that she was "very proud" of her.
5. On 2 August 2015 at 20:47 LW enquired as to the whereabouts of CT. Following an exchange of messages, LW sent a message to the complainant at 20:55 saying (in an apparent reference to the fact that the complainant had been transferred from the care of CT and ER): Really very interesting lol [82] I know … I really thought that wouldn't work out with (CT) and (ER) oh well that's life.
6. In another message sent on the same day at 21:02, and apparently in reference to the complainant's transfer to CT and ER, LW said to the complainant: I knew the day u drove away it wouldn't work but there wasn't a thing I could do about it
7. At 21:07 on the same day LW sent a message to the complainant telling her that she was "truly a beautiful heart". At 21:13 she sent a further message saying (inter alia): Please stick with your school work I was told when u … were 5 u had the reading age of a 13 yr old The complainant replied at 21:14: Yeah well when I was in year 4 I was doing year 9 work so I've pretty much been cruising. LW responded at 21:15: Which means you should be in uni right now The complainant responded at 21:16: Nah too young man LW responded at 21:17: What would u like to do? Or is that a stupid Question Would love to catch up one day The complainant responded at 21:17: I wanna be a behavioral annalysist Or a criminal lawyer.
8. Further exchanges of messages followed, in the course of which LW brought the complainant up to date as to the activities of AW and B. At 21:20 the complainant told LW: I worked in beauty salon for a while. Good experience. Hairs nails and makeup for weddings an formal events
9. Between 21:28 and 21:36 on the same day the following exchange of messages took place between LW and the complainant: LW - Just glad your not in the System anymore hey but stuff does stay with you Complainant - Yes or who knows? I mightve turned into a druggo … depresed alcoholic, oh wait I did. LW - Life is very difficult at times lets hope your on the other side of all the crap life deals hey Always here for you if ever there's no one to reach out to I always remember to wanted to keep going to church but (ER) said no. Complainant - Yes that because she thinks everyone has a choice in their religious views and shouldn't have it shoved down their throats :)
10. The complainant then sent, to ER, the last of the messages she had received from LW in that exchange, accompanied by the message: Omg lol. [83]
11. The following exchange then took place between ER and the complainant: ER: Lmao. [84] Her husband is a fucking paedophile. Complainant: Lol. ER: He said some gross shit to you when you were a kid.
12. At that point, a further exchange of messages took place between LW and the complainant: LW: I don't think that happened it was your choice to want to go when u left here I think Complainant: No not at all LW: It actually made you happy and u felt safe Complainant: Yes because your pedophilic husband did the exact opposite
13. LW's first message in that exchange of messages was, I infer, a response to the complainant's earlier message about the freedom to choose one's religion. The complainant then sent that exchange to ER who responded: I went off! I rang docs and went off at them and wouldn't let that grub it her husband speak to you anymore. Lmao Be careful kid.
14. LW then sent the complainant a further message (obviously in response to the complainant's reference, in the previous exchange, to LW's "pedophilic husband") stating: What do u mean?
15. The complainant did not respond to that message.
16. There was then a further exchange of messages between the complainant and ER: Complainant: She said what do you mean [85] … Cmon it's fun fucking with her. ER: Yeah but religious nutters are crazy lol … Did she contact you??? I reported them both to docs lol. Complainant: Yes she did they've all attempted to contact me recently. ER: Even (the appellant)!!!?? She's as much as a gronk as he is because she slows him to be the way he is and helps him by having small kids come to her house … They are fucking revolting people. Complainant: Yeah he follows my public posts on FB and he tried following me on install Insta. ER: That's a huge part of why I knew I had to do anything to get you away from them! Before he did anything to you!! Right well … I fucking furious as fuck right now. Tell that bitch to keep her gronk husband away from you!! Complainant: KK [86] I will. ER: They are such baby Jesus loving weirdos lol.
17. At that point, the exchange of messages between the complainant and LW resumed: Complainant: Keep your gronk husband away from me. LW: … what are you talking about?
18. The complainant did not respond to that message from LW. However, she did send a further message to ER saying: Done lol.
19. That message from the complainant was obviously her confirmation to ER that she had done as ER had told her, i.e. she had told LW to "keep (her) gronk husband away".
20. The complainant then received a message from LW stating: I'm shocked by your words What did he do I want to know?
21. Again, the complainant did not respond to LW's message but resumed her exchange of messages with ER as follows: ER: Good!! [87] Complainant: I know I am. [88] ER: It's hilarious what you wrote about religious views ha ha ha … The poor brainwashed bitch is in denial about her husband … Idiot … How's the ankle Complainant: Fuck … Ha ha ha she messaged me saying she's shocked by my words and wants to know what he did to me … I'm just ignoring her. ER: Yeah just ignore her now ok. Complainant: Ok. ER: You wouldn't have been the only little girl that stayed with them … You may have been one of the lucky ones who got out in time!! Lucky you told (CT) and I what he was saying to you so we could get you out of there Complainant: What did I say bc I'm having a bit of a blank. I barely remember him at all. I have two memories of him. ER: He told you that if you ever felt like masturbating to go and tell him! My brain nearly exploded in anger Complainant: Fucking gronk. I think I may vaguely recall that tbh. [89] ER: Yep … See This is fueling my hate fire! … Really? Complainant: Yes I see why. ER: I rang your docs case worker and lost my shit at her for putting you in danger Complainant: Well I'd be pissed if you hadn't ER: Exactly [90] ER: See kid, I've got your back ha ha. Complainant: haha. ER: It's not even Monday and I thinking about how much they suck lol … OMG I didn't tell you … I really did lose my job I have to apply for other jobs now! … Totally blows.
22. The complainant did not disclose any of these messages to the police when she was interviewed, and confirmed in cross-examination that she had in fact told police that she had not engaged with the appellant and LW at all since leaving their care: [91] Q. When you were spoken to by the police in 2016, you said in effect that you'd had absolutely no contact with either (LW) or the accused through any social media, is that right? A. Yeah, that's yep. Q. In fact, that term "absolutely none", I think that was the term used by the police officer with which you agreed, is that right? A. Yep.
23. The complainant maintained on several occasions that she could not recall the messages, [92] and explained [93] that this was because the appellant's offending was "playing on her mind" at the time. Bearing in mind the references in her messages with ER such as "lol", and having "fun fucking with (LW)", and also bearing in mind her concession that she and ER were having a "good old laugh" about the appellant and LW, the complainant was also asked in cross-examination: [94] Q. If these thoughts of what you claim (the appellant) had done to you were playing on your mind, it was hardly a laughing matter? A. No. Q. But what's perfectly clear is that you and (ER) had a pretty good laugh at the expense of (the appellant and LW), didn't you? A. Not really, no.
24. Having been taken to her exchanges of messages with LW, the complainant was asked: [95] Q. You were asked this question at 190, "So did you engage at all with them?", is that right? A. Yep. Q. You understood that the "them" was (the appellant) or (LW)? A. Yep. Q. You said you didn't engage with them, you (sic) answer to that question was no, is that right? A. Yep, because I didn't recall contacting them. Q. You said "I just blocked them both", is that right? A. Yep. Q. Then the police officer said, "So there was absolutely no communication there between you?" And you answer was "No", is that right? A. Yeah, that's what I recalled it up and that's what just - - Q. Sorry, did you finish that answer? A. Yep. Q. Is it the situation that at that time that you were unaware that there was a record of your conversation with (LW)? A. Yes, I was unaware of the record, because I was unaware of the conversation. Q. You could remember attempted contacts about a year before your police interview, is that right? A. Yes. Q. You say you couldn't remember the conversation that you'd had with (ER)? A. Yes. Q. It's fairly clear from that conversation that you and (ER) were having a good old laugh about (the appellant and LW), weren't you? A. (No verbal reply). Q. Do you agree with that proposition or not? A. I said yes. Q. Sorry? A. Sure, yes. Q. But you couldn't remember the fun you and (ER) had had the year before with (LW), at the time you spoke to the police, is that right? A. No, I couldn't. I still don't. Q. There's no doubt that you did have that conversation with (ER), isn't there? A. No. Q. There's no doubt, that for your own amusement, you took screen shots of messages that (LW) had sent you and forwarded them to (ER), is that right? A. (ER) was my guardian, I would usually run almost everything by her because I trusted her and I respected her opinion. Q. That's right (ER) was somebody, out of all the people in the world, (ER) was somebody that you knew hated (the appellant)? A. Yep. Q. (ER) was somebody, out of all the people in the world that if you'd had anything bad to say about (the appellant), she'd have been prepared to believe you? A. Yep. Q. The fact is, you had never, ever, at any time, told (ER) about any of the things that you claim (the appellant) had done to you? A. Because I didn't want him to hurt my brother. Q. It is the fact that you never, ever told (ER) anything about what you claim the accused had done to you? A. No. Q. Even though you knew that if no else in the world believed you, she would believe you, is that right? A. Yep. Q. You know from reading that conversation what (ER's) state of belief was about what (the appellant) or had not done to you, you know that don't you? A. Yep. Q. She said you were one of the lucky ones, is that right? A. Yep, she did. Q. Your brother, by this stage, was in the care of his father wasn't he? A. Yep.
25. The complainant was subsequently asked: [96] Q. Contrary to what you had told the police, you did in fact interact for a time with LW. Is that right? A. Not that I can remember.
26. The complainant was also taken to the message she had received from LW in which LW had said that if she ever needed to talk she should just let her (LW) know: [97] Q. It seems from that conversation that you had changed schools. You'd found a new school? A. Yeah, yep. Q. Does that mean, taking your earlier evidence, that you had already made to your grandmother an accusation against the accused? A. Yes, it would appear so. Q. Did you say that when your grandmother appeared not to believe you, you decided that you'd give up on telling people because no-one would believe you? Is that right? A. Yep. Q. But you knew that wasn't true, didn't you? A. No. Q. Well, you knew, as I think you agreed earlier, that (ER) would believe you, didn't you? A. I would obviously have hoped, but - - Q. No, you agreed with the proposition earlier that of all the people in the world, (ER) would believe you if you made accusations against (the appellant)? A. Yep. Q. But you see, you had told the police absolutely no interaction, no engagement with either the accused or his wife, hadn't you? A. Yes. (not transcribable). Q. Were you perhaps hoping that the Facebook records would never see the light of day? A. I didn't even know about the Facebook records because I don't recall any of this conversation. Q. You accept that it took place, don't you? A. Well, the paper's here, so it must've. Q. You had a short conversation, a short interchange with (LW) on the 18th. Another brief interchange on the 21st both of July, and then on 2 August, you had a lengthy interchange with her didn't you? A. It appears that way, yes. Q. It lasted from about 23 minutes past 9 to five minutes to 10 that night. Is that right? A. Yeah, looks that way. Q. Was (sic) in that lengthy conversation that you decided you'd have a bit of fun. Is that right? A. None of this is a bit of fun. Q. You decided, didn't you, in the course of that conversation, that you'd have a bit of fun with (LW). Is that right? A. No. Q. You decided that you'd bring (ER) into the picture so that she could have a bit of fun with you, didn't you? A. I don't recall this conversation. Q. You say you don't recall it, but you've read it, haven't you? A. Yep. Q. It's obvious, isn't it, that there came a point in your conversation with (LW) where you have said to yourself something like, "I might have a bit of fun with this woman." Is that right? A. No, that doesn't sound like me at all. … Q. You decided and I'll use your term here, you decided that you would "fuck with (LW)" didn't you? A. No.
27. The complainant was also taken to her messages with ER in which references were made to laughing: [98] Q. You see how (ER) responded to your sending of those messages? A. Yep. Q. "lmao", laughing my ass off. Is that what it stands for? A. Yes, it does but it - - Q. You sent it - - A. Doesn't necessarily mean that. Q. You sent it to be funny, is that right? A. No, I sent it to inform her that they were in contact with me, I would assume. Q. You sent it to be funny and you expected (sic) response, didn't you? A. (No verbal reply). … Q. Then (ER) came out with the comment, "Her husband is a fucking paedophile." Is that right? A. Yep. Q. Do you see your response to that? A. Yep. Q. "lol", laughing out loud. Is that right? A. Yep. Q. I put to you earlier that you decided that you would, to use your term, "Fuck with (LW)." Is that right? A. Well, that's what it says in the message. Q. It's what you said on the page numbered 3 of exhibit C, "And while it's fun fucking with her." Is that right? A. That's what it appears to be written, yes. Q. But, that's what you wrote isn't it? A. I've said several times that I don't recall this conversation. Yes, is what it looks like have written, but I don't remember writing this. So, I'm not going to say with a hundred percent certainty that yes, this came from me. Q. Are you suggesting that somebody else got into your Facebook messenger account and sent this message? A. (No verbal reply). … Q. You claim to have no memory of it, is that right? A. Yes. Q. You'd prefer it, wouldn't you, if this didn't exist, wouldn't you? A. No, I prefer not to remember if this existed.
28. The cross-examination then returned to the exchange of messages in which ER had described the appellant as a "fucking paedophile": [99] Q. Did she use that term about him before during the years you were living together? "Paedophile"? A. Yes, she has. Q. At that time of course, you never ever, ever told (ER) or (CT) that he'd done anything to you, did you? A. No. Q. But you say that you had told them things that he'd said to you? A. Yes.
29. The complainant was also taken to her message to ER in which she had said (in reference to LW) that it was "fun fucking with her": [100] Q. Perhaps you'll say you don't remember, but were you in fact "fucking with her" at the time? A. I don't remember. Q. You don't remember. Now, there are other ways of conveying the same messages, "fucking with someone", aren't there? A. Yeah. Q. You could say, fooling someone, is that - - A. You could. Q. Having them on, yes? A. Yes, you could. Q. Teasing them, is that right? A. Yes. Q. When - that hill again, saying you can't remember. When you use the term, "Come on. It's fun fucking with her", is that what the sort of thing you were talking about? Fooling her? I'm sorry what did you say? A. I can't remember.
30. The complainant was further cross-examined about her exchanges with ER: [101] Q. I put to you earlier that your conversation with (ER) on 2 August 2015 was to the effect that (the appellant and LW) were a big joke? A. No. Q. You, of course, can't remember it, is that right? A. (The appellant and LW), they were never a joke. They seriously affected me. Q. You don't, I suppose, know what you meant when you said it was "Fun fucking with her", (LW), because you can't remember, you say? A. No, I can't remember. Q. You didn't, at any stage in that conversation, choose to say anything to (ER) about what you claim had happened to you, is that right? A. No, apparently not, no. Q. Would you accept that on the face of it (sic) appears to have given you the opportunity to do so with some of the comments she made, where, for example she said, "You're one of the lucky ones who got out of there without anything happening"? A. Even if that could be perceived as an opportunity, I was still too scared to say anything to her. Above all else, my brother's safety has been first and foremost. Q. You knew very well that the accused had no power to hurt your brother, didn't you? A. How do I know that? How, how did I know that. Q. He was living in Sydney with his father. Is that not right? A. That is right. It still doesn't mean anything. Q. If you claim, of course, that you did tell you (sic) grandmother in May or June of 2015, what happened to the fear then? A. It was still there, hence why I didn't continue, but my nightmares and I was in that bad of a place that I had to at least try. Q. One person you knew who would stick up for you and look after you and look after your brother was (ER), is that not right? A. Yep.
31. ER, who was called by the Crown, was cross-examined about her exchanges with the complainant. She generally denied that she and the complainant were laughing at the appellant and LW, and said that any suggestion that her use of certain emojis had indicated anything to the contrary reflected a misunderstanding. For example, she was cross-examined about the first of the messages that she had received from the complainant: [102] Q. What you received was a message that commenced, "omg lol" and then under that, two screenshots, is that right? A. That's correct. Q. Your response to that was the abbreviation "lmao"? A. Yes. Q. Indicating that you found humour in what you had been sent? Is that right? A. No. Q. It means something else, is that right? A. So, it does when I'm speaking to (the complainant), yes. So I was actually really panicked and scared for (the complainant) that they had been contacting her but I was responding in a way that she would understand that I was open to have a discussion about it. Q. Would you (sic) surprised to know that (the complainant) understood it to convey the message laughing my ass off? A. Again, I'm not surprised to know anything about - no, it doesn't. I don't see why I would be surprised. Q. Your next communication, "Her husband is a fucking paedophile." Is that right? A. That's what it says, yes. Q. That is a statement that over the years that (the complainant) had lived with you, you'd made on a number of occasions? A. No. Q. Never? A. Not that I recall. Q. You had formed the view that you expressed in that bubble, "Her husband is a fucking paedophile" on the basis that he had, as you understood it, spoken to (the complainant) and told her that if she felt like masturbating she should tell him? A. Yes, that's correct. Q. You regarded his saying those words as abusive, is that right? A. I regarded them as inappropriate. Q. They were the basis on which you made the comment, "Her husband is a fucking paedophile", is that right? A. Yes. Q. Even though you had a firm belief, as at 2 August 2016, that (the complainant) had been one of the lucky ones? A. I think you've left out the word "may". I said, "You may have been" - and that was my opening the door to her that if she wasn't she could tell me. So, it's very important to put that whole "into context". Q. "You may have been one of the lucky" - - A. "You may have been," yes. Q. You may have been one of the lucky ones who got out in time", is that right? A. That's correct. Q. You follow that up with, "luckily, you told (CT) and I what he was saying to you, so we could get, get you out of there." Is that right? A. That's correct. Q. Those comments, appearing on page 6, reflected your belief at the time? A. Belief of what? I don't understand, sorry. Q. Those comments reflected your belief at the time that (the complainant) got out of there? A. No, that's incorrect. I just told you that I said "may", so that it was opening a door for her to let me know if she hadn't and that's why I specifically used the "may", and I remembered doing that because I was concerned that she had something to tell me, so I was opening a door and that is why it said "may". That does not confirm my belief that she got out, that confirms my belief that I was concerned that something had happened to her. Q. That's why (sic) you claimed to have meant, is that right? A. Well, I'm sworn in under oath, so I'm not lying, so I don't claim it. I'm telling you that's what I meant when I wrote it. Q. That's what you say you meant? A. So, you - I - that is what I'm saying under oath, yes.
32. LW gave evidence that she was "shocked" when she received the message from the complainant referring to her "paedophilic husband". [103] She said [104] that shortly after receiving that message she discovered that she had been "blocked" by the complainant.

The evidence of CT

1. CT gave evidence [105] and was asked whether she recalled speaking with the complainant, once she was living with her, about what had happened when she had been living with the appellant, and in particular, about things that the appellant had allegedly said to her: [106] Q. You remember a conversation, but you're not sure whether it was when she was still at (the appellant's and LW's), or whether she was living with you? A. Yes, correct. Q. In terms of that conversation, are you able to tell us who was present for that conversation? A. I believe it was just (ER), (the complainant) and I. Q. Where were you? A. I don't, I don't actually recall where I was, no. Q. Do you remember the contents of that conversation? A. Yes. Q. If you could tell us as best you can and remember the words that we're used? A. It was something along the lines of, (the appellant and LW) said that the devil was inside (the complainant) when she did bad things and lied. Q. When she? A. Did bad things and lied. Q. Is that something that (the complainant) had told you? A. Yes. Q. Who did she say had said that to her? A. I don't know if it was one or the other, it was just - or both of them, I don't know. Q. When you're saying "both of them", who are you referring to? A. (LW) and (the appellant). Q. Was there any other part of that conversation? A. I also recall - I don't know if it was the same conversation or a different conversation, a time when they also said to her, if she felt like masturbating or touching herself, to come and talk to them about it. Q. Did she tell you that she had had that conversation with (the appellant and LW)? A. I don't recall that - sorry, can I clarify? Q. Sure. A. I'm not sure if that's a conversation that came from (the complainant) or it came directly from (the appellant and LW). Q. You're not sure whether you had that conversation with (the complainant)? A. Yes. Q. Or whether (the appellant and LW) that told you that they had said that? A. Yes. Q. Your recollection about your conversation with (the complainant) is that it was about the devil being inside of her when she did bad things? A. Yes. Q. Any other conversation, you're not sure about? A. Yes after (the complainant) told you about conversation with the devil, did you do anything about that? A. I remember having a conversation with (ER) about that. Q. Did you tell anyone else about it? A. I don't recall. Q. Do you know whether it whether (ER) told anyone else about it? A. I don't recall. Q. What about after you heard the conversation - well, you're not sure whether it came from (the appellant and LW) or from (the complainant), about (the complainant) touching herself, did you do anything after you heard that conversation? A. I remember again having a conversation with (ER) about that as well, we felt - at the time, we felt very strongly about that, that was a strange thing to tell a little child. Q. What you decide to do about it, if anything? A. I don't recall at the time. Q. Do you remember whether that conversation about her touching herself, did that happen when she was living with you? A. I really can't recall if it was - when it was. Q. Are you not sure whether it happened either before she came to live with you or after? A. Correct. Q. Did you have any other conversations with (the complainant) about things that have been said to her by (the appellant) or (LW)? A. I remember on another occasion they talked about same-sex relationships being against God. Q. Again, did you speak to anyone else about that? A. I don't think so.
2. CT was then asked about whether or not she had reported any of these conversations to the authorities. Having initially said that she did not recall, [107] she was shown a document to refresh her memory, following which she said: [108] Q. Vaguely familiar that you rang DoCS? A. Yes, I rang DoCS. Q. What did you tell DoCS when you rang them? A. Can I read this here? Q. You can read it. A. I said I was concerned about some things (the complainant) had been saying. She said that (LW) told her it's the devil inside her when she lies and that (the complainant) has become very stressed about this. The (complainant) has a personalised Jesus dying on the cross for humankind, by making statements such as "I believe that Jesus Christ died on the cross for my sins".
3. The document from which CT had refreshed her memory was a file note dated 5 January 2019. [109] That was obviously well after the complainant had left the care of the appellant and LW.
4. When cross-examined, CT said [110] that she had informed the authorities about what the complainant had reported that (LW) (not the appellant) had said to her. She was then asked: [111] Q. At some stage did you become aware of a suggestion that (the complainant) had been touching herself genitally? A. Yes. Q. Did you become aware of that when you were told of that by (LW)? A. Yes.
5. CT said that she had become aware of this in a conversation at which she, the appellant, LW and ER were all present. [112] She was asked: [113] Q. … One of the topics was (the complainant) having supposedly been touching herself sexually, is that right? A. Correct. Q. Were you told by (the appellant and LW) that (the complainant) had been told by them that that was wrong? A. Correct. Q. That if she felt like doing it, she should talk to them? A. Yes. Q. The both of them? A. Yes. I don't know if it was the both of them, but they said it. Q. "(LW) and (the appellant) had told us that they had told (the complainant) that it was wrong, and she should go and talk to them if she felt like doing it?" A. Yes.
6. CT was then asked: [114] Q. There came a point after (the complainant) had come to live with you and (ER) that you spoke with (the complainant) about touching herself, is that right? A. Yes. Q. I don't want to go into detail about it, but she suggested to you that she'd learnt that from a friend? A. Yes. Q. In fact, from a female friend? A. Yes. Q. Did you understand her to be saying that that was while she was living with her mother? A. That's what I understood at the time.

The complainant's expressed desire to remain in the care of the appellant

1. Cecilia Papadakis was a FACS caseworker who had been involved in the transfer of the complainant and LT to the care of the appellant and LW, and who maintained a supervisory role thereafter. Ms Taylor identified a record of a conversation created by Ms Papadakis [115] which she described as "typical of the sort of recording that (her) organisation made with respect to children under (their) care". That document, which was dated 7 May 2008 (and thus well after the offending alleged in Counts 1 and 2 had occurred) was in (inter alia) the following terms: During the interview (the complainant) was crying (sic) she stated she did want to stay with (LW) and (the appellant) as she gets to do things that she hasn't had the opportunity to before and she likes living with them. (The complainant) said (LT) gets more times with the aunts and she has to play with Barbies and she hates those dolls. She stated she is happy to visit the bush and her aunts but would hate to live there. (The complainant) also stated that (LW) and (the appellant) are funny. Cecilia spoke to (the complainant) about DOCS wanting the children to be separated. Cecilia said (the complainant) listened to her but stated even though she fights with brother (sic) she would prefer to stay with him. Cecilia commended (the complainant) for being open and honest with her feelings. They also discussed the different adults (the complainant) has been able to talk to i.e. the appellant, (LW), (AW), her school teacher/counsellor/principal. Cecilia also indicated to (the complainant) she can talk to her and see the judge about her concerns (emphasis added).
2. The complainant was cross-examined about her conversation with Ms Papadakis which was reflected in the note: [116] Q. On one occasion you were visited at your school by a lady by the name of Cecilia Papadakis, a caseworker with FACS; is that right? A. Not that I can recall. Q. I'm going to suggest that Cecilia came to see you at school and that you told her this, something like this, that you wanted to stay with (LW) and (the appellant) as you get to do things that you hadn't had the opportunity to do before? A. Okay. Q. Did you tell her that or do you recall telling her that? A. I don't recall, no. Q. I'm going to suggest that you told Cecilia Papadakis that you liked living with (the appellant) and (LW)? A. Okay. Q. To make it clear to you I'm suggesting that this happened on a Wednesday 7 May 2008; does that assist you in any way? A. No. Q. According to you, by May 2008 (the appellant) had been having sexual intercourse with you on a regular basis for something like six months; is that right? A. Yep. Q. You also told Cecilia Papadakis, I suggest, that (LW) and (the appellant) are funny; is that right? A. I don't recall the conversation.
3. Having given the complainant the opportunity to read the note prepared by Ms Papadakis, trial counsel continued his cross-examination: [117] Q Having read that document do you accept that you were interviewed at your school on 7 May 2008 by a lady by the name of Cecilia? A. Yep. Q. Do you accept that during the interview you were crying and stated that you wanted to stay with (LW) and (the appellant)? A. Yep. Q. Do you accept that you told her that with them you got to do things that you hadn't had the opportunity before? A. Yep. Q. Did you tell her that you liked living with (the appellant) and (LW)? A. That's what it says there, yeah. Q. I didn't ask you what it says; I'm asking you, having read that, is that the case, that you told Cecilia that you liked living with (the appellant) and (LW)? A. I still do not recall the conversation I had with Cecilia, but it must have happened because this is an affidavit, no it's not, it's - well whatever it is. Q. Do you accept that on 7 May, after six months of sexual abuse at the hands of the accused as you claim, you told Cecilia that you liked living with (LW) and (the appellant). A. Well I must have and there is - - Q. Did you tell Cecilia that (LW) and (the appellant) were funny. A. I must have, it's here.
4. The general tenor of what the complainant was recorded as having told Ms Papadakis, namely that she was happy living with the appellant and LW and wanted to stay with them, was entirely consistent with other evidence in the trial. For example, LW gave the following evidence in answer to questions asked by the Crown in evidence in chief: [118] Q. …Did (the complainant) seem happy when she was living with you? A. Very happy. Q. Very happy? I'll just get you to keep your voice up again, sorry. A. Yes, very happy. Q. Did you talk to her about how she was feeling? A. All the time. Q. What did she tell you? A. She was happy, yeah. Q. Did she say anything else about why she was happy? A. Not really, not really.
5. Consistent with this evidence, the complainant had previously agreed in cross-examination [119] that prior to leaving the care of the appellant and LW she had had many conversations with LW about not wanting to leave.
6. Similarly, AW (who was called in the appellant's case) gave the following evidence in chief: [120] Q. How did you get on with the two kids? A. Really well. Got along really well, no complaints. Q. (The complainant) in particular, what was your relationship with her like? A. We were quite close. There were afternoons where, you know, mum would go to work and dad would be coming home and I'd be there with them, helping out and, you know, doing her homework with her and, you know, going out the back and throwing the balls for the dog and all of that, like, just normal. …. Q. Now, did you ever see her unhappy while she was staying at your home? A. There might have been once or twice but it was when she'd come back from visits with her Mum, well, a visit that didn't happen, she would get picked up from school, taken to the office and Mum wasn't there and she would be really quite distraught, which was really, actually, upsetting to see and it would take quite a while to calm her down but that would be the only time. Q. How did she appear to get on with your father? A. Really well. Q. Did she ever appear to you to be acting in a way that indicated she was frightened of him? A. Never. Q. Did she ever appear to you to be uncomfortable --- A. Never. Q. - - in his presence? A. No. Q. Did you ever see her doing anything to indicate that she didn't want to talk to him? A. No. Q. Or be with him? A. No. Q. And do you remember that they left your home - or we've been told they left your home in July 2008? A. Yeah. Q. How did you feel about that? A. It was sad. I mean, me being the youngest child, I hadn't had a younger sibling so it was really quite nice and we-yeah, we got along really well and seeing that she was actually quite-like, there was many nights and even she'd confide in me and said that she was nervous to move and, yeah, I suppose I was concerned just because how upset she was getting. You know, I want her to be happy and safe and all of that. Q. Did she ever tell you how she felt about living in your house? A. Yeah, she was always happy, I never - yeah.
7. These aspects of AW's evidence were not challenged by the Crown in cross-examination.

The evidence of LW

1. LW was called by the Crown and confirmed [121] that the complainant and her brother had been transferred to the care of herself and the appellant on 25 October 2007. Generally speaking, LW gave evidence about the complainant's period of time under the care of herself and the appellant, and the various duties that were undertaken in association with that.
2. LW gave evidence about a specific occasion on which she saw the complainant with her hand down her pants: [122] Q. Was there any stage when (the complainant) and (LT) were living with you that saw you (the complainant) with her hand down her pants? A. There was an instance where I went to the ballet in Sydney Opera House and the seat flips up, and like all dark, and she had binoculars. She was watching the show and she was jigging up and down and I thought, okay. So, at intermission I just said to her what, "What was happening in there love?" and she goes "My mum's friend, 13 year old friend taught me how to do that". That's her words. Q. Did you see what she was doing? A. Didn't have her hand down her pants. Q. She didn't? A. She was just jiggling up and down, yeah. Q. You say (sic) her jiggling up and down? A. Yes. … Q. Did you talk to her about it at some other later stage? A. Yes. Q. After that particular day? A. Yes. Q. What did you say? A. I just said to her "… you know how did you learn that" or "where did you find out about that", and she just told me the same thing again.
3. LW said [123] she had told the appellant what she had seen. She also said [124] that she told the complainant that if she "wanted to do that" she should "come and tell her".
4. LW said [125] she had told CT and ER about the incident in a conversation at the front of her house, at which the appellant was present. She was unable to recall this response [126] she agreed [127] that she had reported the matter to the authorities on two occasions.
5. LW was also asked about aspects of her religion. Her evidence in that regard included the following: [128] Q. Do you believe in the devil? A. It's in the Bible, so yeah. Q. Yes? A. Yeah. Q. Is that something that you talk about, that if you, you know, go against the Bible that, you know, you'll go to the devil? A. No. Q. When you say that you believe in the devil and it's in the Bible, what is the reference to the devil then? A. I don't know. Q. Do you discuss the devil? A. No. Q. In any kind of context with the children? A. No.
6. The Crown later returned to this issue: [129] Q. Do you remember at all telling (CT) that you had spoken to (the complainant) about the devil? A. No.
7. The Crown then referred LW to the fact of CT's report that the complainant had said that LW had made reference to the complainant having the devil inside her. [130] LW was adamant that she had never spoken to the complainant about the devil at all. [131]

The appellant's case

1. The appellant participated in an interview with police, an edited form of which [132] was before the jury along with a transcript. [133] In the course of that interview, the appellant denied the allegation in Count 1, [134] denied the allegation in Count 2, [135] and denied having had sexual intercourse with the complainant on any occasion. [136] The appellant told police [137] that prior to becoming a foster carer he and LW had undergone extensive training over a period of approximately 9 months, before being asked: [138] Q60. And obviously you'd get assessments done and background checks on yourself and your wife? A. Well we have to have a Work with Children's check, um, form. And they - each year they review the positions of carer and they, yeah, they give us a document each year to say that we're approved for another twelve months. Or just recently we received one for this, for this and next year.
2. When asked [139] whether there was anything else that he wished to say in addition to what had been spoken about in the questions which had been asked of him, the appellant said: A. I think we've pretty much said it all. But I'm just - and just being here today and, and, and you're saying that I just, it sickens me. You know 'cause, you know our Christian beliefs and everything else. Loved these kids like our own and try to give a good home and yeah. And it just gets thrown back in your face. Q206. Is there anything else? A. I understand why people don't want to do foster care really, I really do, yeah.
3. In his sworn evidence before the jury, the appellant said [140] that there was no truth in the complainant's allegations. He said that towards the end of 2006 he and LW had had a discussion about fostering children, following which he had enquired about the process of assessment. [141] The appellant was asked: [142] Q. You understand there had been criminal history checks? A. That's right, yes. Q. Was it the situation that you had no criminal convictions? A. No criminal convictions whatsoever. Q. Have you ever been charged with a criminal offence? A. Never, no. Q. Just to jump ahead, since you started fostering children, how many have you had in your home? A. Well, I think we, we sat down and wrote some names and I think we'd come up with 34 children. That included short-term placements that we had, one long-term placement and weekend respites to, to relieve, help other carers. Q. Apart from the allegations made by (the complainant) have any allegations of sexual misconduct been made against you? A. No, nothing at all, no.
4. This evidence was consistent with that given by the officer-in-charge of the investigation, [143] Det. Keller, that the appellant had no criminal history, and that other than in respect of these allegation, he had never been arrested by police.
5. In the course of his evidence in chief, the appellant said [144] that he had no particular personal belief in a "devil" and that the devil was not a significant feature in his religion. When asked [145] whether he had ever told the complainant that she had "the devil inside her", the appellant responded: No. I didn't. I didn't. I couldn't.… Never, never. It'd upset them, I know. I didn't, no.
6. The appellant said [146] that as a result of the conversation with LW he became aware of a suggestion that the complainant had been touching herself. He had no recollection of being present at any conversation with ER and CT when that subject was discussed. [147] When asked about his relationship with the complainant, the appellant said: [148] It took a little while to - for her to warm to me, but we had - I think we had a good healthy relationship. We weren't real close. (LW) and (AW) were the main carers.
7. The appellant said that he became aware of the complainant's message on Facebook in which she had called him a paedophile as a consequence of a conversation with LW. [149] When asked how that allegation had impacted upon him, the appellant said: [150] Well, I was deeply, deeply shocked because I know we never did anything, like, nothing to hurt the child, nothing, and she's come up with that. And I think I said something like, "Why would she say that?" Because I was totally bewildered. Q. I'll ask you again. Was there any truth at all in her allegation? A. No truth whatsoever. I strongly deny all the allegations.
8. The appellant was cross-examined by the Crown about his religion and his knowledge of the Bible, [151] in the course of which he said that he did not really read the Bible and that whilst he understood that the devil was "recognised" it was not something that any of the churches to which he belonged applied any focus. Having been questioned at some length about his knowledge of the allegation that the complainant had been touching herself, the appellant was asked: [152] Q. Because you had said to (the complainant), hadn't you that, "If you feel like touching yourself come and see me because it's a sin," hadn't you? A. I didn't say that at all. The words did not come out of my mouth. Q. I suggest to you that you did say that to (the complainant) because your view of masturbation was that it was against your religion wasn't it? A. I don't believe it to be against my religion. I don't have a religion. As myself personally I don't have a problem with it. I think it is a natural body function. Q. And that if she was masturbating it would have been the devil inside of her. That's what you said that her isn't it? A. I didn't say that. I don't believe that. Those words again did not come from my mouth. Q. Because according to the Bible and according to religion masturbation is a sin, isn't it? A. Are you asking me or are you telling me? Q. I am asking? A. I don't know what it says in the bible about that masturbation. I don't read the Bible. I don't even know that the word masturbation is in the Bible, is it? I don't know. I honestly do not know. Q. Did you ever overhear a conversation (LW) had with (the complainant) about masturbation? A. No, I didn't. Q. You didn't hear (LW) say to (NT), "come and see me if you feel like you need to touch yourself?" A. I never heard that. It's more likely if (LW) talk to (the complainant) at all it was probably a very quiet time at her bedside. I don't know that for a fact but I have not heard or overheard any conversation she has talked about masturbating.
9. Finally, the appellant was asked: [153] Q. Well, you had sexual intercourse with her, didn't you? A. No, no, not at all. What? Why would I - - Q. You put your penis in her vagina just before Christmas. A. Are we talking about the conversation or are we talking about the allegations? Q. You put your penis in her vagina, didn't you? A. No, I did not. Q. Just before Christmas - - A. No, I did not. Q. - - when small she was 6 or 7, didn't you? A. I did not. Q. And you also didn't begin after Christmas put your penis in her vagina when she was 6 or 7, didn't you? A. I did not commit any of those offences that you just mentioned to - -
10. Larissa Pearce, who was called as a witness in the appellant's case, said [154] that she had known the appellant's family since she was three years of age, having been friends with AW since that time. She said that she had remained friends with AW [155] and had been in the habit of staying at the appellant's home at least once per fortnight, and visiting three to five times per week, over several years. [156] She was asked: [157] Q. How much did you see of (the appellant)? A. If I was there for dinner, I would see him and would definitely see him every weekend. Q. What sort of man did you find him to be? A. I found him to be very gentle, kind, quiet and just a regular normal dad. Q. Did you ever feel uncomfortable with him? A. No, never. Q. Did you ever find that he did or said anything that you thought was creepy? A. Never. Q. Anything that you thought might be sleazy? A. Never. Q. Did he ever behave towards you in any way that you thought was inappropriate? A. Never. Q. You've been told of the allegations that are made against him? A. Yes. Q. Your understanding is that he's accused of having sexual intercourse on many occasions? A. Yes. Q. With a seven-year-old girl? A Yes. Q. How do you those allegations fit with the man you know? A. They don't fit at all.
11. In cross-examination Ms Pearce said [158] that she had never been alone with the appellant at any time that she had visited his premises. However in re-examination [159] she said that the appellant had taken her on two driving lessons, and that on each occasion they had been the only people in the car. Notwithstanding that evidence, and in the absence of any objection by trial counsel, the Crown put to the jury in her closing address that the evidence of Ms Pearce was that she had never been left alone with the appellant. [160] That was a misrepresentation of what Ms Pearce had said, and entirely overlooked the evidence she gave in re-examination.
12. The Crown's error was repeated by the trial judge in her summing-up to the jury: [161] In relation to the evidence that was led in the defence case from Larissa Pearce, that is the good character evidence, the Crown submitted to you it was of limited weight because she had never been alone with the accused, so how he acted publicly and privately may not be the same.
13. No issue was raised by trial counsel, be it in respect of the Crown's address or the summing-up of the trial judge.
14. Other evidence of the appellant's good character was elicited from witnesses called by the Crown. LW described being "horrified" at the suggestion that the appellant was a paedophile. [162] She said that she had been married to the appellant for 26 years, had been in a relationship with him for 28 years, and had therefore known him for the best part of three decades. [163] She was asked in cross-examination: [164] Q. You understand the allegations here, don't you? A. Yes. Q. Did you listen to his interview with the police? A. Only on audio. Q. You listened to the audio of it did you? A. Yeah. Q. You're entirely aware of what he is accused of doing? A. Yes. Q. How does that fit with the man that you've been with for 28 years? A. Never ever.
15. Ms Taylor gave evidence [165] that no allegation of impropriety, other than that made by the complainant, had ever been made against the appellant whilst he was a foster carer. She explained that if such an allegation had been made, the appellant's accreditation would have been suspended until such time as an investigation had taken place. When asked whether she had formed any personal opinion about the appellant, [166] Ms Taylor identified an email she sent to the appellant and LW on 23 April 2008 [167] (i.e. within the period of the alleged offending), the contents of which she described [168] as "a genuine reflection of (her) views". The email was in the following terms: I am in awe of you as carers not only organising things like this but what you have done for these children overall. I don't think you have any idea how much this helps us and I also believe that this so great for the kids seeing so much positivity. The children I am sure will have many happy memories of their time with you. Many thanks for everything. Kind regards Barb
16. Ms Taylor confirmed [169] that she had never taken any adverse view of LW or the appellant, and described them as "very caring" people.

GROUND 1 - THE TRIAL MISCARRIED DUE TO THE ADMISSION OF EVIDENCE ABOUT THE APPELLANT SMACKING A CHILD TO REBUT GOOD CHARACTER IN CONTRAVENTION OF THE PROHIBITION ON SUCH CROSS-EXAMINATION OF AN ACCUSED WITHOUT LEAVE OF THE COURT

GROUND 2 - THE TRIAL MISCARRIED DUE TO THE ADMISSION OF EVIDENCE ABOUT THE APPELLANT SMACKING A CHILD RELIED ON AS RELEVANT TO AN ASSESEMENT OF HIS CREDIBILITY IN CONTRAVENTION OF THE PROHIBITION ON SUCH CROSS-EXAMINATION OF AN ACCUSED WITHOUT LEAVE OF THE COURT.

GROUND 3 - THE TRIAL MISCARRIED ON ACOUNT OF THE DIRECTIONS GIVEN IN THE TRIAL IN RELATION TO GOOD CHARACTER EVIDENCE AND ITS REBUTTAL AND THE LACK OF ADEQUATE DIRECTIONS AS TO THE ASSESSMENT OF THE CREDIBILITY OF THE APPELLANT

1. These grounds can be conveniently dealt with together.

The evidence

1. During his interview with police, the appellant was asked about the process of assessment for foster carers: [170] Q63. OK. And who does that assessment? A Wesley Dalmar. They just, yeah. So providing you have no allegations and things you know, so we had an allegation recently it was just about smacking a little girl that we, we had and I admitted to that. It was extreme circumstances. And they closed that case, it was only in the last three months and they've issued us another year even though we've decided to maybe have a break from foster care. Um, we were both actually, my wife (LW) and myself are doing Certificate 3 in Aged Care at the moment. We only started that course at the local TAFE. To try and get back into employment.
2. The appellant then expanded on his reasons for "wanting a break" [171] and in doing so made reference to the last child who been in his care. He was then asked: [172] Q66. And she left your care because of the smacking allegation or? A. No. No, no, no. Well there was an allegation come against me for smacking and so they, they took procedure, they removed from her from our home. She was actually in transition, or about to go into transition to go to long term carers at Berkeley Vale, Central Coast. And she went there, um, and then the whole thing went through and it was, everything was dropped and you know it was nil and void pretty much, it was, so we were cleared of all that. And then since then the family members have appealed once again, I think this time it was an auntie, a great auntie, I think. Who was applying, I think it's about due to courts right now to, to get the custody there. So, yeah. But letting her go after, you know you understand with having children at least yourself, two and half years with a child and then letting her go is, you know, like she was just like one of my own, just like my own daughter. And I just felt for her because she, you know, she was so settled where she was and having to move and - - - Q67. So how old was she when she left your - - - A. 4 … 4 years old, still in preschool. Yeah. Yeah. She'll be five in January so she's big school next year.
3. By agreement between the parties, Q and A 63, 66 and 67 (along with other questions and answers which do not bear on these grounds) were removed from the appellant's interview, and the edited version was tendered in evidence. Det. Keller confirmed [173] that such editing had been carried out with the consent of both parties for the purposes of removing material which was agreed to be irrelevant to any issue in the trial.
4. Against that background, trial counsel asked the appellant the following questions in evidence in chief: [174] Q. You told the police that you were had (sic) decided to have a break? A. Yes, we did. Yeah, I think I told the story to the police. Can I talk about that? Q. Are you going to talk about an accusation that was made - - A: Okay, all right. Q. - - that you'd smacked a child. A. No, I wasn't going to say that. Q. The Crown may ask you about that. A. Yeah, okay, all right.
5. As I have already noted, the references in the appellant's interview to the circumstances in which he had decided to have a break from foster care, namely because of an allegation that he had smacked a child, had been removed on the basis that they were irrelevant to any issue in the trial. Why, in those circumstances, trial counsel raised the matter at all is not apparent. It is evident that the appellant immediately appreciated the danger which had arisen as a consequence of trial counsel doing so. So much is clear from the fact that he immediately queried with trial counsel whether he could "talk about that". These difficulties were then compounded when trial counsel foreshadowed to the appellant that the Crown "may ask" about such matters. That was tantamount to inviting the Crown to cross-examine the appellant about matters which, for the reasons discussed more fully below, were agreed to be irrelevant, which were prejudicial to the appellant, and which could only have been the subject of cross-examination by leave in any event.
6. The Crown, without seeking leave, then cross-examined the appellant [175] to the effect that as a foster carer, he wanted to provide an environment for the children who were under his care in which they felt safe, comfortable, and not in fear. The previous incident involving the smacking of a child having been raised in the circumstances I have outlined, the Crown then proceeded to cross-examine the appellant in the following terms: [176] Q. And you certainly wouldn't have, you know, ever intentionally hurt them, would you, the children? A. I wouldn't, I wouldn't hurt any child. Q. And you certainly wouldn't have, you know, emotionally hurt them either, would you? A. No, no. Q. In actual fact you said in your record of interview at question 165 - you don't need to go to it - that you would never hurt a child, is that right? A. That's true. Q. But you have actually had an allegation of smacking a child, haven't you? A. I had an allegation of smacking a child yes. Q. That wasn't (the complainant) or (LT), was it? A. That wasn't in that time period, that was the last child that we had in our care. That was (LM). Q. And you smacked her? A. Very extreme circumstances, yes. Do you want me to explain the circumstances? Q. No, but you've smacked her, didn't you, you smacked her? A. I gave her one smack on the bum, yes, when she was going to bed. Q. So it's not true, is it, that you'd never hurt a child because you did? A. Well, do you call that hurting a child? Is that - is that in the discipline? I know we're not supposed to smack a child, but not intentionally hurt. Q. Did they cry? A. Sorry. Q. Did they cry? A. She? Q. The child? A. She did cry for a while and I gave her a hug and then she's all right and went to bed and went to sleep. Q. So did you think then that the smack hurt her if she cried? A. I think it hurt me probably more than it hurt her. Q. The question was do you think it hurt her because she cried? A. Yes.
7. The appellant was not re-examined in respect of this (or any other) issue.

The Crown's closing address to the jury

1. In her closing address, the Crown put the following submission to the jury in relation to the appellant's good character: [177] He will tell you, or he has told you, he's a man of good character. But everybody is of good character until they commit their first offence. He told police he was a religious man, but, in the witness box, he tried to resile from that. He told police he is a man who had never hurt children when he told you in court he'd smacked a girl and she cried.
2. Having referred to other material in the interview, the Crown then said: [178] You saw the accused participate in his record of interview and give evidence before you in this trial. I submit to you that he didn't present as an impressive and honest witness. He went off on tangents in his answers, he was combative at times, and you might think he protested too much in some of his answers, that they came across as rehearsed. It's for these reason (sic) that the Crown submits to you that you would reject the evidence of the accused.

The defence closing address to the jury

1. In his closing address to the jury, trial counsel responded to the Crown's submissions as to character by saying: [179] How does the Crown attack his good character? The Crown says he smacked a kid once, made a kid cry. Well he didn't ever lose his accreditation with FACS, and he smacked a kid once and made him cry. Well let me say something politically correct (sic) which your own experience with life might agree with, kids need a smack some days. And that's the best the Crown can do in the face of the evidence of good character. The Crown is presumably saying to you "You can forget the good character because he's not of good character because he smacked a kid". That's pretty feeble you might think.
2. Shortly afterwards, whilst trial counsel was still in his closing address, the following exchange took place between the trial judge and the Crown in the absence of the jury: [180] HER HONOUR: Just in relation to my good character direction, I will have to amend it because the Crown doesn't accept good character, is that the position? That's how you went to the jury, is that fair what (trial counsel) is saying? CROWN: I didn't think I specifically went to the jury on good character with the slap rebutting good character per say (sic). My - - HER HONOUR: So I'll just have to mention that in my - - CROWN: Yes, because I don't think it takes it that far your Honour, because there was no basis for that, there was no evidence from the slap as to the circumstances of it. HER HONOUR: But that's the only reason the Crown led the evidence, to rebut good character. CROWN: It was to do also with in his ERISP he says he'd never hurt a child, and that's what I put to him in cross. So it was more about inconsistency in the record of interview. HER HONOUR: When you were closing to the jury you mentioned it in the context of good character. CROWN: Yes - - HER HONOUR: So for abundant caution, I will - - CROWN: Yes, thank you, for abundant caution - - HER HONOUR: …say that the Crown has led that evidence to rebut good character, and it's a matter for them whether they accept. CROWN: Yes, for abundant caution I would be asking your Honour to do that, yes.
3. No submissions were put by trial counsel in relation to the issue which was debated in this exchange. Upon resuming his closing address, trial counsel made the following submission to the jury: [181] Members of the jury, the accused is before you as a man of good character. I suggest that you will not be persuaded that his character is destroyed by the fact that he smacked a child on the bottom.

The directions of the trial judge

1. The trial judge directed the jury in respect of the appellant's prior good character in the following terms: [182] I just now want to say something to you about the good character evidence that has been relied upon in the trial. The accused has called evidence to establish that he is a person of good character. You will recall firstly the officer in charge, Detective Keller, gave evidence that the accused has no criminal convictions. Larissa Pearce gave evidence about her knowledge of the accused and whether it is likely that he would have committed these offences, and I have just summarised that evidence. The Crown has, however, led evidence to contest the fact that the accused is a person of good character and you will recall the Crown led evidence, and the accused agreed, that there was an occasion when he smacked a child. Counsel for the accused and counsel for the Crown have placed arguments before you as to whether you should find that the accused is a person of good character or not based upon all that evidence. It is necessary for you therefore to have regard to the totality of that evidence relating to the character of the accused and determine whether you consider that the person is generally a person of good character. So you take into account the evidence led on behalf of the accused, you take into account the evidence led by the Crown to contest his good character, that is, that he had smacked a child before, and you decide whether you are satisfied he is a person of good character. If you find that the accused is a person of good character you may take that evidence into account in favour of the accused on the question of whether the Crown has proved the accused's guilt beyond reasonable doubt. The fact that the accused is a person of good character, if that is what you find, is relevant to the likelihood of him having committed the offences alleged. You can take into account the accused's good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether you do reason in that way is a matter for you. Further, if you do find that the accused is a person of good character you can use that fact to support his credibility. You may reason that a person of good character is less likely to lie or give a false account either in giving evidence before you or in giving an account of the events in answer to questions asked by police. Whether you reason in that way is a matter for you. None of that of course means that good character provides the accused with some kind of defence. It is only one of the many factors which you are required to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused. What weight you give the fact that the accused is a person of good character, if that is what you find, is completely a matter for you but you should take that fact into account in the way I have indicated. If on the other hand you do not accept that the accused is a person of good character then you cannot use the evidence called by the Crown on that issue to strengthen the Crown case against him, thus you are not entitled to reason that because of the evidence called by the Crown on the issue of character, that is that he struck another child on another occasion, that that means he is more likely to have committed the offences charged. The Crown did not call that evidence about him smacking a child and does not rely upon that evidence to establish the accused's guilt on the two charges before you. The Crown simply led that evidence to rebut the suggestion that he was of good character, so it was only led for that very limited purpose. It would be improper for you to use that evidence for any other purpose on that other than on that issue of whether he is a person of good character. If you find after considering the evidence on this issue that the accused is not a person of good character you cannot then decide that he is a person of bad character and then use that finding against him. Indeed, if you are not satisfied that he accused is a person of good character the law requires you just put all considerations of character out of your mind in determining whether you are satisfied beyond reasonable doubt of the accused's guilt. That is a direction of law which you are bound by your oaths to follow during your deliberations. So just in summary, if you do find the accused is a person of good character you can take it into account in determining is it likely he committed the offences, does it go to his credibility, that is he is more likely to tell the truth in his evidence than to police. If you find that he is not a person of good character you cannot use the bad character evidence against him as going to his guilt, you just put all the character evidence to one side and you do not refer to it during your deliberations. I can repeat that direction, ladies and gentleman, if that is too complicated.
2. In the absence of the jury, trial counsel then reminded her Honour [183] that in addition to the evidence of Det. Keller and Larissa Pearce (to which her Honour had referred), there was evidence of the appellant's good character elicited from LW and Ms Taylor to which no reference had been made. Trial counsel also reminded her Honour of exhibit 4, the email which had been sent to the appellant and LW by Ms Taylor. The trial judge indicated that she would remind the jury of those matters.
3. Upon resumption of her summing-up on the following day, and in the course of summarising the submissions put by trial counsel to the jury, her Honour said: [184] ……(trial counsel) reminded you of the evidence of Margaret Taylor and Larissa Price.
4. In response to what trial counsel had put to her on the previous day, the trial judge then said: [185] Just one further matter, ladies and gentlemen, in relation to the direction I gave you yesterday about good character evidence and what use you can make of good character evidence. When I was discussing the good character evidence that had been led in this trial, I referred to the evidence of the officer in charge, Detective Keller, that the accused had no criminal convictions, and I also referred to the evidence of Larissa Pearce. She gave character evidence. (Trial counsel) has reminded me that Barbara Taylor also gave some character evidence. You will recall that she had written a letter to (the appellant and LW) which is exhibit 4 in the trial. I will let you read it, but essentially, she said that, "The children I am sure will have so many happy memories of their time with you, many thanks for everything". So she sent a letter of thanks to (the appellant and LW) so (trial counsel) also relies upon that as evidence of good character. She also gave evidence, which I reminded you of yesterday. She was asked by (trial counsel), "Have you ever had an occasion in the time they have been carers, to change your view of them from that letter?" and she said, "They were very caring people". So that is further evidence of good character. The final witness that gave good character evidence which I am reminded of by (trial counsel) is (LW). She was asked whether she understood what the allegations were. She said "Yes", and she was asked "How would those allegations fit the man you have been with for 28 years?" and she said, "Never ever". So again, that is led as character evidence, that is, he is not the type of person who would commit these offences according to (LW). So when you are considering good character, if you also take into account the evidence of (LW) and Barbara Taylor.
5. Trial counsel made no application for any further direction.

Submissions of the appellant

1. Senior counsel for the appellant before this Court (who was not trial counsel) submitted that the Crown's cross-examination of the appellant regarding the allegation that he had previously smacked a child was in breach of a number of provisions of the Evidence Act 1995 (NSW) (the Act) which restrict the cross-examination of an accused as to his or her credibility. Senior counsel submitted that the fact that trial counsel did not object to the Crown's cross-examination did not (and could not) constitute a waiver of the application of relevant sections of the Act.
2. Senior counsel submitted that the evidence which was the subject of the Crown's cross-examination did not substantially affect the assessment of the appellant's credibility, and that the threshold imposed by s 103(1) of the Act had therefore not been overcome. Senior counsel also pointed to the fact that there had been no consideration of the mandatory factors set out in s 103(2).
3. It was further submitted that even if the threshold imposed by s 103(1) had been overcome, the Crown's cross-examination was, absent a grant of leave, prohibited by ss 104 and 112 of the Act. Senior counsel pointed out that leave had not been sought by the Crown at any stage.
4. It was further submitted that quite apart from these matters, and in circumstances where the references to the appellant smacking a child had been removed from the interview because they were agreed to be irrelevant, the Crown's cross-examination of the appellant had been unfairly prejudicial. Senior counsel emphasised that the evidence of the appellant's good character formed an important aspect of his case, and submitted that in all of the circumstances, the evidence elicited by the Crown in cross-examination carried with it the risk of improper use by the jury, particularly in the absence of appropriate directions by the trial judge.
5. Senior counsel further submitted that various statements made by the Crown in the exchange with the trial judge which I have previously set out supported a conclusion there had been a miscarriage of justice. Senior counsel pointed specifically to the Crown's concession in that exchange that there was no basis for using the evidence that the appellant had previously smacked a child to rebut the evidence of his good character. Senior counsel submitted that this was precisely what the Crown had done.
6. Finally, senior counsel submitted that the directions of the trial judge had been deficient in a number of respects. It was submitted, in particular, that the trial judge had failed to properly and fairly summarise the evidence of Ms Taylor and Ms Pearce, even after being asked to do so. Senior counsel also emphasised that such directions as her Honour had given in relation to the evidence of Ms Pearce had repeated the Crown's erroneous submission as to what Ms Pearce had actually said. It was further submitted that the terms in which her Honour had directed the jury effectively invited the jury to completely disregard all aspects of the appellant's good character.
7. It was submitted that in all of these circumstances, the trial had miscarried.

Submissions of the Crown

1. Whilst I did not understand the Crown to accept each and every submission advanced on behalf of the appellant in support of these grounds, the Crown expressly conceded error in relation to each of them, [186] and accepted that as a consequence of what had occurred, the appellant had not had a fair trial according to law. The Crown did not seek to rely on the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).
2. The Crown correctly pointed out [187] that because none of these grounds of appeal involves a question of law alone, the appellant requires leave to appeal in respect of each of them pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). [188] The Crown also pointed out that the issues giving rise to these grounds were not the subject of any application by trial counsel, and that accordingly, r 4 of the Criminal Appeal Rules (NSW) also applies to this ground (as it does to some of the other grounds relied upon by the appellant).
3. It is convenient to note at this point that r 4 is not a mere technicality, and the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial. [189] However if, in a clear case, a necessary element of a fair trial according to law was overlooked, then leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused. [190]

Consideration

1. For the reasons that follow, the Crown's concession was an appropriate one. Leave should be granted to the appellant to argue these grounds, each of which has been made out. In order to explain why I have come to that view, it is firstly necessary to refer to a number of sections of the Act.
2. To begin with, the credibility rule is set out in s 102 of the Act in plain terms: 102 The credibility rule Credibility evidence about a witness is not admissible.
3. It follows that credibility evidence, in order to be admissible, must fall within one or other of the stated exceptions contained in the Act. One such exception is contained in s 103: 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
4. In the present case, s 104 of the Act also applied in addition to s 103: 104 Further protections: cross-examination as to credibility (1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant: (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or (c) has made a prior inconsistent statement. (4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and (b) is relevant solely or mainly to the witness's credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted, or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Leave is not to be given for cross-examination by another defendant unless: (a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine, and (b) that evidence has been admitted.
5. Section 110 of the Act is in the following terms: Evidence about character of accused persons (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.
6. Further, s 112 of the Act is in the following terms: 112 Leave required to cross-examine about character of accused or co-accused A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.
7. A grant of leave pursuant to s 104 or s 112 is governed by s 192 which is in the following terms: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
8. Notwithstanding that the appellant has not asserted incompetence on the part of trial counsel, an analysis of these grounds must commence by emphasising that it was trial counsel who asked the appellant the questions which disclosed the allegation that the appellant had previously smacked a child in his care, in circumstances where all references to that issue had been removed from the appellant's interview because it was agreed that they were irrelevant. There was no forensic advantage to be gained by raising the matter. On the contrary, and apart from being irrelevant, the unfair prejudice which arose as a consequence of it being raised was significant, particularly in a case where the appellant's prior good character formed a significant part of his case. Trial counsel's subsequent indication to the appellant that the "Crown might ask about that" simply aggravated the problem that had been created, and was tantamount to issuing an invitation to the Crown to cross-examine the appellant in respect of matters which were agreed to be entirely irrelevant.
9. The Crown then took the view, erroneously, that it was open to simply embark upon a cross-examination of the appellant in relation to this irrelevant allegation, without even considering whether it substantially affected his credibility, and without making an application for leave to do so. What followed was a cross-examination of the appellant which was both entirely impermissible and grossly unfair, and which in my view, gave rise to a miscarriage of justice. This is so for a number of reasons.
10. To begin with, the Crown's stated bases for the cross-examination were entirely inconsistent. When the matter was first raised by the trial judge, the Crown took issue with the suggestion that she had addressed the jury on the basis that the evidence of the appellant smacking a child had been led to rebut the evidence of his previous good character. The position taken by the Crown at that point was entirely untenable in circumstances where, in her closing address to the jury, the Crown had referred to the evidence in the specific context of making a submission challenging the appellant's good character.
11. The Crown then submitted to the trial judge that the evidence did not "take it that far" because there was "no evidence as to the circumstances" in which the child was slapped. When her Honour then put to the Crown that the only reason that the evidence had been led was to rebut the evidence of good character, the Crown asserted that there was another purpose which was "more about inconsistency in the record of interview". However, only moments later the Crown specifically asked the trial judge to direct the jury that the evidence had, in fact, been led to rebut evidence of good character. That was the very proposition that the Crown had expressly disavowed only a short time earlier. Moreover, the Crown took that course in circumstances where she had conceded that the evidence of the appellant smacking a child did not "take it that far". In other words, the Crown sought a direction that evidence which did not "take it that far" had been led to rebut the evidence of the appellant's good character. The fundamental inconsistency which is reflected in such a position needs no further comment.
12. Further, and leaving aside the fact that the evidence was agreed to be irrelevant, s 102 of the Act states, in plain terms, that credibility evidence about a witness is not admissible. It was therefore necessary for the Crown, if she wished to cross-examine the appellant in relation to the allegation that he had previously smacked a child in his care, to satisfy the various statutory pre-conditions which applied.
13. Firstly, it was necessary for the Crown to overcome the threshold imposed by s 103 of the Act and establish that the evidence could substantially affect the assessment of the appellant's credibility. For the purposes of s 103, the word "substantially" must be given effect. It required the Crown to establish that the line of questioning in cross-examination was capable of having a real bearing, [191] or a real and persuasive significance, [192] on the overall credibility of the appellant.
14. As I have already noted, the evidence that the appellant had previously smacked a child in his care had been removed from his record of interview because it was agreed that it was irrelevant. It could hardly be said that evidence which was irrelevant somehow had the capacity to substantially affect the assessment of the appellant's credibility so as to overcome the threshold set by s 103. Quite apart from that, the Crown conceded to the trial judge that the evidence did not advance the issue of the appellant's credibility "that far" because of the absence of any other evidence in explaining the circumstances of it. That amounted to a concession that the evidence was incapable of substantially affecting the assessment of the appellant's credibility, and that the threshold imposed by s 103(1) could not be overcome.
15. Further, s 103(2) of the Act mandated that in determining whether the cross-examination substantially affected the assessment of the appellant's credibility, the trial judge take into account the matters in s 103(2)(a) and (b). Because the matter was never raised, be it by the Crown or by trial counsel for the appellant, the trial judge was not taken to s 103. Accordingly, the mandatory factors in s103(2)(a) and (b) were never considered.
16. Further, even if the threshold imposed by s 103 of the Act had been overcome, s 104 imposed a further hurdle to the Crown's cross-examination. In circumstances where the evidence clearly did not come within any of the categories in s 104(3)(a) to (c), the protective regime created by s 104(2) required the trial judge to grant leave before the Crown could cross-examine as she did. Leave was not sought by the Crown at any stage, and was not otherwise granted by the trial judge.
17. Moreover, had an application for leave been made by the Crown as it ought to have been, the trial judge was bound to determine any such application by reference to the factors set out in s 192(2) of the Act. In the circumstances of the present case, a number of those factors weighed strongly against leave being granted. In particular: 1. the cross-examination was inherently unfair to the appellant given: 1. that it related to an issue which was agreed to be irrelevant; and 2. the importance of the evidence of good character which had adduced in the appellant's case; [193] 1. the cross-examination went to a matter which was not just unimportant, but which was agreed by the parties to be entirely irrelevant to any issue in the trial; and [194] 2. the appellant was on trial for serious criminal offences, carrying significant terms of imprisonment. [195]
18. Further, the Crown's final position was that she had cross-examined the appellant as she did, to rebut the evidence of the appellant's prior good character. In those circumstances s 112 of the Act also imposed a requirement that leave be granted before that course could be taken. Leave was not sought by the Crown, and her Honour did not otherwise grant it. Had leave been sought there were, as I have already indicated, a number of factors which weighed strongly against it being granted.
19. As a result of the Crown's cross-examination, evidence which was agreed to be irrelevant was allowed to go before the jury in circumstances where the evidence of the appellant's prior good character formed a significant part of his defence. The fact that trial counsel raised the issue by his questioning of the appellant, and then took no objection to the cross-examination which followed, did not oust the operation of the Act and thus permit the Crown to engage in a cross-examination which was entirely impermissible and unfairly prejudicial.
20. For all of these reasons, grounds 1 and 2 are made out.
21. The difficulties which arose as a consequence of the Crown's cross-examination of the appellant were, for a number of reasons, compounded by errors in the directions given by the trial judge.
22. Firstly, inherent in the directions which were given was the proposition that it was open to the jury to take into account, when assessing the evidence of the appellant's good character, the evidence that he had previously smacked a child in his care. For the reasons I have given, that evidence should never have been admitted.
23. Secondly, in the course of her summing-up the trial judge repeated the Crown's erroneous submission to the jury that Ms Pearce "had never been alone with the accused". The evidence of Ms Pearce was of considerable importance to the appellant's case. What had been said by the Crown, which was repeated by her Honour, misrepresented what Ms Pearce had said, and did so in a material way.
24. Thirdly, the direction which was given by the trial judge that the jury could take the appellant's prior good character into account in determining whether it was "likely" that he committed the offences was incorrect. The trial judge should have directed the jury that if they concluded that the appellant was a person of good character, that was a factor that could be taken into account in supporting a conclusion that it was not likely that he committed the offences.
25. Fourthly, having directed the jury that the evidence elicited by the Crown could only be used to rebut good character, and that the jury could not conclude that the appellant was a person of bad character and then use that finding against him, the trial judge specifically referred to the evidence of the appellant having smacked a child as "bad character evidence". Such a categorisation was both inappropriate and erroneous. It had the capacity to invite the jury, if they accepted the inadmissible evidence which was before them, to conclude that the appellant was a person of bad character.
26. Fifthly, the terms of part her Honour's directions on the issue of good character were apt to mislead. Having directed the jury that the Crown had led the evidence of the appellant having previously smacked a child to rebut the proposition that the appellant was of good character, her Honour directed the jury that if, in the light of that evidence, they were not satisfied that the appellant was a person of good character, the law required them to put all considerations of character out of their minds. The latter part of that direction was, in my view, inconsistent with her Honour's direction to the jury that the Crown had led the evidence for a limited purpose. It was tantamount to directing the jury that the evidence could be used to rebut the suggestion the appellant was of good character generally, as opposed to being of good character in a particular respect. That necessarily had the capacity to entirely negate any advantage to which the appellant was otherwise entitled as a consequence of the other evidence of his prior good character. Those matters assumed particular significance in a trial in which good character evidence formed a cornerstone of the defence case.
27. Finally, the fundamental responsibility of a trial judge to ensure a fair trial goes beyond instructing a jury about the law. It extends to an obligation to explain why it is that the accused asserts that his or her guilt has not been established beyond reasonable doubt. The discharge of that obligation requires a trial judge to ensure that the defence case is fairly put to the jury. That necessarily requires the trial judge to explain to the jury any matter(s) properly open, upon which they might find for the accused, [196] although the necessity for a trial judge to refer to a particular matter, and if so to what extent, will necessarily depend upon the manner in which the case has been conducted. [197]
28. In these circumstances, her Honour's summary of the evidence of Ms Taylor in my view fell short of what was required. he importance of the good character evidence in the appellant's trial cannot be understated. Such evidence included that of Ms Taylor. Importantly, Ms Taylor's evidence went substantially beyond expressing her own personal views of the appellant. It extended to evidence of the assessment process which the appellant was required to undergo before being approved as a foster carer, and the system of supervision and monitoring to which he (and those in his care) were subject thereafter. Ms Taylor also gave evidence that no allegation of impropriety, apart from that made by the complainant, had ever been levelled at the appellant. Her Honour did not refer to any of these matters and in that respect, in my view, her summing-up was lacking. I am conscious of the fact that having raised the issue of Ms Taylor's evidence, trial counsel sought no directions over and above those which her Honour ultimately gave. Notwithstanding that, the importance of those aspects of Ms Taylor's evidence to which I have referred warranted far greater significance being given to them in her Honour's summing-up.
29. For all of these reasons, ground 3 is also made out.

GROUND 4 - THE TRIAL MISCARRIED ON ACCOUNT OF THE DIRECTIONS TO THE JURY ABOUT COMPLAINT

The evidence

1. I have previously set out the evidence relied upon by the Crown as constituting the evidence of complaint. [198]

The directions of the trial judge

1. The trial judge reminded the jury [199] of the complainant's evidence, before summarising the evidence of JT [200] and Cohen. [201] Her Honour made no reference to the evidence of the conversations between the complainant and TT. Her Honour then directed the jury in the following terms: [202] It is for you to decide whether those complaints were made and, if you do find that they were made, what the contents of the complaints were. If you find that the complaint was made, then you can use evidence of what was said in those complaints and some evidence that such conduct did occur. That is, you can use it as some evidence independent of the evidence given to you of those incidents by the complainant in evidence in the trial. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in those complaints as evidence of the truth of what the complainant alleges against the accused. A jury is entitled to find that the complaints were made at a time and in a manner that would indicate that the allegation was reliable, that is that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. It is a matter for you whether you draw that conclusion in this particular case and so treat the complaints as evidence of the alleged conduct by the accused in addition to the evidence that has been given about it in the courtroom. If you do use it as some evidence of the alleged conduct of the accused that is the subject of the charges then what weight you give that evidence is also a matter for you. Whether you do use the evidence of the complaints in that way, the Crown also asserts the complaints have another purpose. The Crown contends that the fact that the complainant raised the allegations against the accused at the time and in the manner that she did would lead you to accept her evidence she gave in the witness box. In other words, it makes her evidence more believable than if she had not raised the allegations at all. Again, it is for you to decide whether each of those complaints was made, and if you are satisfied that each complaint was made, then the question you should ask yourself is, "Did the complainant act in a way you would expect her to act, if the accused had acted towards her in the way alleged?" Do you think that the complainant has done what you would expect someone in her position to do, that may support the Crown case because you may find there is a consistency between the complainant's conduct and the allegation that she makes against the accused. On the other hand, if the complainant has not acted in the way you would have expected someone to act then that may indicate that the allegations are false. Bear in mind when considering this issue, that there may be good reasons why a complainant does not raise the allegations immediately following the alleged assault and that a failure to do so does not mean that the allegations are false. You will recall in this trial that the complainant gave evidence to explain the absence of immediate complaint. You will recall that she said after the first alleged sexual assault, the accused said to her "If you tell anyone, no one will believe you and I'll hurt your brother". That was at question and answer 58 in her record of interview and she repeated that comment throughout her evidence. Of course, the fact that a person says something on more than one occasion does not mean what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion.
2. No objection was taken by trial counsel to this direction and accordingly r 4 applies to this ground.

Submissions of the appellant

1. Put simply, senior counsel for the appellant submitted that if the evidence of JT was accepted, it was not open to the jury to reason that what the complainant had said to her amounted to evidence of complaint, and that the evidence should not be have been left to the jury on that basis. It was submitted that the jury should have been directed that in the event that the evidence of JT was accepted, it could not be used as evidence of complaint.
2. Senior counsel for the appellant acknowledged that no objection was taken by trial counsel to the direction which was given, and that there was no application made for any further direction. However, it was submitted that given the importance of the issue of complaint, the terms of the direction were inadequate and gave rise to a miscarriage of justice.

Submissions of the Crown

1. The Crown submitted that the effect of the trial judge's directions was that it was up to the jury to determine whether complaints had been made and, if satisfied that they were, to determine their content. It was submitted that in circumstances where no issue had been raised by trial counsel when the directions were given, leave to rely on this ground should be refused.

Consideration

1. The trial judge's direction that it was for the jury to determine whether any complaint had been made was entirely correct. However in my view, the balance of the direction overlooked the fact that even if JT'S account was accepted, it did not amount to a complaint of any sexual offending against the appellant at all. This was significant, given the trial judge's references to "what the complainant alleges against the accused" and "the alleged conduct of the accused".
2. In my view, the jury should have been directed that in the event that JT's account was accepted, it did not amount to, could not be used as, evidence of complaint. It is no answer to say that the effect of the direction was that it was up to the jury to determine if a complaint had been made. Such a proposition overlooks the fact that the direction incorrectly assumed that JT'S account was, if accepted, capable of constituting evidence of a complaint of sexual offending against the appellant.
3. There was certainly no forensic advantage in trial counsel not seeking a further direction. This was a trial of alleged historical sexual offending in which the evidence of complaint was particularly significant. The accused repeatedly denied that any offending had taken place. For those reasons, the appellant should be granted leave to rely on this ground.
4. For the reasons expressed, this ground has been made out.

GROUND 5 - THE VERDICTS WERE UNREASONABLE AND CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE

Submissions of the appellant

1. Senior counsel for the appellant commenced her submissions in support of this ground by taking the Court to the Facebook messages exchanged between the complainant and ER. Senior counsel submitted that when read as a whole, and in their proper context, those messages supported a conclusion that it was ER who had suggested to the complainant that (inter alia) the appellant was a paedophile, rather than the allegation having come independently from the complainant herself. It was submitted that the sequence of messages established that the complainant had alleged that the appellant was a paedophile only after ER had used that term to describe him.
2. Senior counsel also relied on the complainant's concession in cross-examination that she and ER were having a "good laugh" at the appellant and LW. It was submitted that, along with other aspects of the messages which were exchanged, this was inconsistent with the complainant's general acceptance of the fact that what was being discussed was a matter of some seriousness.
3. Senior counsel also pointed to the fact that the complainant did not disclose any of the Facebook messages to the police, and had in fact told the police that she had had no contact with the appellant and/or LW at all. It was submitted that these were matters which reflected adversely upon the complainant's credit, and supported a conclusion that she did not want the police to know about the messages, and had deliberately sought to hide them.
4. Senior counsel for the appellant further submitted that the complainant's evidence as to the timing of the offending was inconsistent with other evidence. It was submitted that when interviewed by police, and in her evidence before the jury, the complainant had asserted that the episodes of offending had occurred before and after Christmas 2007 respectively, and at a time when she and AW were sharing a bedroom. It was submitted that the unchallenged evidence of LW was that the complainant and AW shared a bedroom for only a very short period after she had joined the family in October 2007, following which a separate bedroom had been built for AW at the front of the house. Senior counsel also pointed to the unchallenged evidence of AW that she had shared a room with the complainant for one night only, as well as the evidence of the appellant as to the time at which AW's bedroom had been built.
5. Whilst accepting that precise timing was not an essential element of either offence, senior counsel for the appellant submitted that on a proper assessment of the evidence, the offending alleged in Count 2 could not have occurred, as the complainant had asserted, in a bedroom that she shared with AW, for the simple reason that by that time AW had her own bedroom. It was submitted that such matters were critical to an assessment of the reliability of the complainant's evidence in respect of the offending alleged in Count 2, and that this, in turn, was relevant to her reliability in respect of her account of the offending alleged in Count 1.
6. Further, and although it was the basis of ground 4, senior counsel also relied on the evidence of complaint in support of a conclusion that the verdicts were unreasonable. Apart from the various inconsistencies in this evidence which, it was submitted, were indicative of the complainant's general unreliability, senior counsel emphasised the complainant's concession that not only did she not tell ER about the offending, she may in fact have told her that nothing in the nature of sexual offending by the appellant had happened to her at all. It was submitted that the significance of this concession became even greater in light of the complainant's assertion that prior to her exchange of messages with ER, she had told JT that she had been sexually assaulted by her last foster carer.
7. Senior counsel further submitted that on the whole of the evidence there was an inherent improbability that the offending had ever occurred. In this regard, senior counsel emphasised the unchallenged evidence that the appellant had been a dedicated foster carer, and had cared for a large number of children, over a long period of time. Senior counsel also pointed to the fact that prior to being approved as a foster carer, the appellant had undergone comprehensive interviews and had passed numerous background checks, and was thereafter reviewed on a regular basis. It was emphasised that but for the allegation of smacking another child, he had not been the subject of any complaint of impropriety, be it in his capacity as foster carer or otherwise. In these respects, senior counsel pointed to the unchallenged evidence of Ms Taylor, the other evidence of the appellant's good character from LW, Ms Pearce and Det. Keller, and the appellant's emphatic sworn denials before the jury.
8. Senior counsel also pointed to the fact that there was no evidence of the complainant having suffered any injury despite the "brutality" of the offending she had described. It was submitted that the any suggestion that the complainant had seen nothing more than "a little bit of blood" in her underwear following forced sexual intercourse of the kind that she described was highly improbable, and was a further circumstance which tended against being submitted beyond reasonable doubt that the offences had been committed.
9. Finally, senior counsel pointed to the evidence that the complainant had given every indication of being happy living with the appellant and LW, and had expressly stated that she did not want to move away from them. It was emphasised, in particular, that the complainant's accounts to Ms Papadakis had been given after the alleged offending, and were entirely inconsistent with the allegations against the appellant. Senior counsel submitted that these factors further supported the possibility that no offending had occurred.

Submissions of the Crown

1. Senior counsel for the Crown submitted that the question to be posed in respect of this ground was not what the jury could, might, or should, have concluded having regard to the evidence, but whether the jury must (as distinct from might) have entertained a reasonable doubt about the appellant's guilt. The Crown took the Court through the complainant's evidence in considerable detail, and submitted that when viewed as a whole, her account of the alleged offending was reliable in respect of both counts.
2. In terms of the asserted inconsistencies in the evidence as to the timing of the offending, the Crown submitted that time was not of the essence. It was further submitted that the jury had no doubt taken all of that evidence into account, and had considered its effect (if any) on the complainant's credibility.
3. The Crown accepted that there were inconsistencies in the evidence of complaint, but submitted that such matters had been drawn to the jury's attention by trial counsel in his closing address. It was submitted that in these circumstances it could be safely concluded that the jury had taken those matters into account, but had nevertheless accepted the complainant's account.
4. The Crown further submitted that a number of the assertions underlying the appellant's submission that the offending was inherently improbable were misconceived. In particular, the Crown postulated that the absence of any other offending on the part of the appellant may have been a consequence of his perception that the complainant was vulnerable. The Crown also raised the possibility that the absence of any other offending may have been because the appellant, having committed the offences, had decided that it was too risky to continue to behave in that way.
5. The Crown further submitted that the reasons given by the complainant for wanting to stay with the appellant and LW were simple, and needed to be assessed in light of the fact that the complainant was very young at the time she expressed those sentiments.
6. Finally, the Crown submitted that the absence of any injury could be explained by the fact that the alleged acts were not particularly brutal at all. The Crown also pointed out that no submission based on the absence of injury was advanced by trial counsel to the jury, and submitted that this was because there was no medical evidence to support it. The Crown submitted that the appellant's reliance on such factors amounted to a generalisation to which the Court should have no regard.

The principles governing the determination of this ground

1. The principles which govern the determination of this ground of appeal were set out by Bathurst CJ (Fullerton and Johnson JJ agreeing) in Dickson v R: [203] [84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen ; [2011] HCA 13 at [11]- [14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own "independent assessment of the evidence". If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced" and "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt ... that the court may conclude that no miscarriage of justice occurred": see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. [85] As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. [86] In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48].
2. In applying these principles, I must be mindful of the fact that the jury obviously had the advantage of seeing and hearing the entirety of the evidence as it was given. However, I must be equally mindful of the fact that there was evidence before the jury which was said to go to the appellant's credibility but which should not have been admitted, along with the fact that trial judge erred in her directions, not only in respect of that issue, but in respect of another issue as well. [204] In these circumstances, the advantage enjoyed by the jury in seeing and hearing the evidence may be diminished to the point where it is relatively slight [205] or perhaps excluded from consideration altogether. [206]
3. Taken in isolation, the account of the complainant as to the alleged offending might be viewed as cogent. However, for the purposes of determining this ground it is necessary to go beyond that account, and undertake an independent assessment of the entirety of the evidence which was before the jury.

The evidence of complaint

1. It is appropriate to commence the necessary assessment by considering the evidence of complaint.
2. According to the complainant, she had attempted to tell CT and ER about the offending, but found herself unable to do so. This, she explained, was firstly because of a fear of how CT and ER might react, and secondly because of a fear that the appellant would hurt her brother. Those explanations do not sit comfortably with other evidence which was before the jury.
3. To begin with, the complainant expressly agreed that ER was a person who she could "count on", who was protective of her, who was understanding, whom she trusted, and whose opinion she respected. In those circumstances, given their obviously close relationship, the complainant's asserted fear of how ER might react in the event that she told her of the appellant's alleged conduct lacks foundation. This is particularly so in circumstances where she expressly accepted that ER was someone who did not like the appellant, and who would therefore have been sympathetic to any complaint about him.
4. The complainant's assertion that she did not tell CT and ER because she feared that the appellant would harm LT is equally unfounded. The complainant accepted that at the time of speaking with ER, LT had moved away and was living in Sydney. There is no evidence whatsoever that the appellant knew of LT's whereabouts.
5. Further, and beyond these matters, the evidence of complaint was characterised by inconsistencies which necessarily reflect adversely on the complainant's credit. Those inconsistencies become particularly apparent when the evidence of complaint is analysed chronologically.
6. On the Crown case, the initial complaint about the alleged offending was made by the complainant to JT. Although the complainant said in her oral evidence in chief that she had complained to her "nanna and poppa", it was only JT who was called to give evidence. As I have previously discussed when dealing with ground 4, the account of the conversation given by JT disclosed no allegation by the complainant of sexual offending against the appellant at all.
7. Further, on the complainant's evidence, the fact that JT had told her of sexual abuse suffered by her (i.e. the complainant's) mother led to her complaint against the appellant. JT gave no such account in her evidence.
8. There is no reason to reject JT's evidence. It was a clear and straightforward account of what the complainant had said, bereft of any suggestion of impropriety on the part of the appellant.
9. The complainant's account of what she told Cohen suffers from a similar difficulty. On that account, the complainant told Cohen that it was her "foster dad" who had assaulted her. Cohen's account was that this was not so, and that the complainant had not told him who was allegedly responsible.
10. There are also difficulties arising from the evidence of TT. According to the complainant, she had never told TT of the offending. She told Cohen that she did not think TT knew about it. TT's evidence was that in her conversation with the complainant at Cohen's, the complainant asserted that she had, in fact, told her about the offending.
11. Further, and even if the complainant's evidence of what she told JT is accepted, it would follow that the first complaint was made approximately 7 years after the alleged offending. If her evidence was not accepted in that regard, then it would follow that the first complaint was made approximately 8 years later.
12. For all of these reasons, the evidence of the complaint was lacking in both consistency and cogency.

The Facebook messages

1. The Facebook messages exchanged between the complainant and ER, and the complainant and LW, are also significant, both in terms of their impact on the evidence of complaint, as well as in a more general sense.
2. To begin with, not only did the complainant not disclose the Facebook messages to police, she asserted, in specific terms, that she had had "absolutely no contact" with the appellant and LW since leaving their care. That was obviously untruthful, and is a factor which reflects adversely upon the complainant's credit.
3. If the evidence of JT is accepted, the complainant had made no allegation of sexual offending at all, and certainly no allegation against the appellant, at the time that she exchanged the messages with ER. Yet, in the course of those messages, it was ER, someone who obviously held a great deal of animosity towards the appellant, who labelled the appellant a paedophile, not the complainant. In my view, there is considerable force in the submission advanced by senior counsel for the appellant that it was ER who, in the absence of any allegation of the complainant, was suggesting that the appellant was a paedophile. The complainant simply embraced those suggestions, in the absence of making any complaint or allegation herself. I am fortified in that view by the evidence that having acted in accordance with ER's direction and told LW to "keep (her) gronk husband away", and having told LW that she had a "pedophilic husband", the complainant failed to respond to two separate messages from LW in which had expressly asked her what she had meant.
4. If, on the other hand, the complainant's account of what she told JT were accepted, it would follow that at the time of exchanging messages with ER she had already made a complaint of sexual offending against the appellant. Accepting that to be the case, a number of further matters arise.
5. Firstly, if a complaint had been made by that time, it had clearly not been made to ER. Accordingly, ER's assertion that the appellant was a paedophile lacked any relevant context.
6. Secondly, despite the fact that she was exchanging messages with a person to whom she was close and whom she trusted, the complainant said absolutely nothing to ER about the alleged offending at that time, even after ER had described the appellant as a paedophile.
7. Thirdly, ER asserted to the complainant that she (ER) "had to do anything to get (the complainant) away from (the appellant) ……before the appellant did anything", and that the complainant may have been "one of the lucky ones who got out in time". ER was clearly asserting that she had removed the complainant from the appellant's care before any improper conduct on the part of the appellant had occurred. That is completely inconsistent with the proposition that the complainant was subject to sexual assaults by the appellant during the time that she was in his care.
8. Fourthly, ER's assertions that she had effectively "rescued" the complainant provided the complainant with a clear opportunity to correct ER, and tell her that she was, in fact, assaulted by the appellant before she left his care. Indeed, in ER's words, in raising those matters she was "opening the door for (the complainant) to let her know" what had occurred. In other words, she was giving the complainant the opportunity to tell her about the appellant's conduct. Having been squarely provided with the opportunity to tell someone she trusted about what the appellant had done, the complainant said nothing. The alternative conclusion which is available on the basis of the complainant's evidence is that far from not making a complaint to ER, she may have positively asserted to ER at one point that no offending had taken place at all. Neither conclusion reflects positively on the complainant's credit.
9. It is also important to bear in mind the general tone of the majority of the messages which passed between the complainant and ER. They were often punctuated with expressions and images of laughter, the complainant at one point telling ER that it was "fun fucking with (LW)". The use of such expression was hardly consistent with discussing what was, as complainant conceded, hardly a laughing matter. Moreover, the complainant initially denied the suggestion that she was having a laugh at the expense of the appellant and LW, only to later to expressly concede that she was doing just that.
10. Finally, a number of the statements made by ER in her exchanges of messages with the complainant were made in the context of assertions that she (ER) had "reported (the appellant and LW) to DOCS" and that she had "rang (the complainant's) DOCS caseworker and lost (her) shit at her for putting (the complainant) in danger". The evidence makes it clear that it was CT, not ER, who approached the authorities. Moreover, the evidence was that CT had done so in January 2009, some considerable time after the complainant had left the care of the appellant and LW. It was certainly not the case, as ER had repeatedly suggested to the complainant, that she had complained at all, much less for the purposes of having the complainant removed from the appellant's care because of a fear that she was at risk of harm.

The complainant's expressed desire to remain in the appellant's care

1. There is also objective evidence which is capable of supporting a conclusion that the complainant was happy whilst living with the appellant and LW, and had expressed a desire to stay.
2. Firstly, there was evidence from both LW and AW that the complainant consistently gave the general impression that she was happy living with them. That was entirely inconsistent with the complainant's evidence that she ceased liking to live with the appellant once he had committed the offending.
3. Secondly, and perhaps even more importantly, there was evidence of specific statements made by the complainant to Cecilia Papadakis that she did not wish to move away from the appellant. On the Crown case, those statements were made, not just after the commission of the two alleged offences, but after the complainant had been living with the appellant for a period of approximately 6 months. On the complainant's account, the appellant throughout that period, would "come and get (her)" whenever LW and AW were absent from the premises and assault her, to the point where such assaults became "pretty regular".
4. Whilst I accept that the complainant was only 7 years old at the time of her interview with Ms Papadakis, her expressed desire to stay with the appellant, to the point of becoming upset at the suggestion that she might have to move away from him, is consistent with the unchallenged evidence of LW and AW. It is also completely inconsistent with the proposition that she had been subjected to repeated sexual assaults over a lengthy period.
5. In my view, such objective evidence casts further doubt on the complainant's general reliability.

The absence of evidence injury to the complainant

1. I do not regard the absence of evidence of injury to the complainant as being of any real probative value in all of the circumstances. The evidence of injury was limited to the complainant's account of finding blood in her underwear on one occasion. There was no expert evidence before the jury as to what (if any) injury might be expected in light of the complainant's evidence, and whether the complainant's account of finding a small amount of blood on one occasion would be regarded as being inconsistent with her evidence of that particular assault. The matter was not the subject of any submission to the jury, an indication that trial counsel saw it as being of little or no significance.
2. In my view, the submission advanced on behalf the appellant in this regard invites a significant degree of impermissible speculation.

The timing of the alleged offending

1. There is, however, substance in the submission advanced by senior counsel for the appellant as to the unreliability of the complainant's account of the timing of the relevant events.
2. According to the complainant's account, the offending in Count 2 occurred after Christmas 2007 in a bedroom that she shared with AW at the time. There was no issue that the complainant had joined the appellant's family in October 2007.
3. The unchallenged evidence of LW was that the appellant and AW had shared a room for only a "short period of time" which was "right at the beginning". The evidence of AW was more specific. She said that she had shared a bedroom with the complainant for only one night. That evidence was similarly unchallenged. Over and above that, the evidence given by the appellant was that he had built a separate bedroom for AW prior to the time at which the offending alleged in count 2 had occurred.
4. I accept that the Crown did not have to establish the precise time at which the offending occurred in each case. However, the combined evidence of LW, AW and the appellant tends completely against the offending in Count 2 having occurred in a bedroom that the complainant shared with AW. Although that evidence went specifically to the alleged offending in Count 2, it has a bearing on an assessment of the credibility of the complainant's evidence in relation to the offending in Count 1. [207] This is a further matter which calls the complainant's credibility into question.

Statements attributed by the complainant to the appellant

1. I have already made reference to the evidence of the complainant that the appellant had variously said to her that she was "the devil", and that "she had the devil inside her." The complainant also asserted that at one point, the appellant had said to her that if she "ever felt like masturbating, she should come and tell him". The appellant denied each of those assertions.
2. As to the first of those matters, I have already noted that in the complainant's exchange of messages with ER, it was ER who asserted that the appellant had "said some gross shit" to the complainant when she was living with him. There was no further elucidation at that point. The allegation that the appellant had told the complainant that she was "the devil" and that she "had the devil inside her" emerged for the first time in the course of the complainant's evidence in chief. Quite apart from the fact that the allegation emerged at a late stage, the report made by CT to the authorities was that the complainant had told her that it was LW, and not the appellant, who had said such things to her. That was of obvious significance in light of the appellant's denials.
3. The second assertion made by the complainant, namely that the appellant had told her to come and tell him if she felt like masturbating, originated in the exchange of messages between the complainant and ER. I have already noted that in one of those messages, ER asserted to the complainant that the appellant had said some "gross shit to her when (she was) a kid". In a later message ER told the complainant that it was "lucky" that she had told her and CT "what (the appellant) was saying". The complainant's immediate response was to ask ER what she had said to her because she was "having a bit of a blank" barely remembered (the appellant) at all". It was at that point that ER asserted that the appellant had told the complainant that if she "ever fell like masturbating to go and tell him". The complainant then said that she thought she "may vaguely recall that". This prompted ER to assert that she had informed the authorities about the matter and had remonstrated with them because of the fact that the complainant had been put in danger. For the reasons that I have already set out, the objective evidence established that it was not ER who had reported the appellant at all.
4. Nothing at all was said by the complainant about these matters when she was interviewed by police. As with the first matter, this assertion emerged in evidence for the first time when the complainant was asked additional questions in chief by the Crown.
5. LW's evidence was that she had observed the complainant seemingly engaging in masturbation at one point and that it was she who had said to the complainant that if she wanted to do that she should come and tell her. On LW's evidence, the appellant was it not a party to that conversation.
6. This evidence, in my view, supports a conclusion that in making these assertions, the complainant effectively acted upon the suggestions of ER in their exchanges of messages. In each case, the preponderance of the evidence runs contrary to the complainant's assertions.

The evidence of the appellant's prior good character

1. Quite apart from all of these matters there was, as I have outlined, a plethora of evidence to support the fact that the appellant was a person of prior good character. That evidence included the fact that he had been accredited as a foster carer in 2007, an accreditation which was, as might be expected, awarded after an exhaustive assessment process. The evidence also supported a conclusion that, consistent with his prior good character, the appellant had discharged his responsibilities as a foster carer not only without complaint, but in a manner which had earned the unequivocal and unsolicited praise of Ms Taylor, in the context of a regime of continuous monitoring and reporting. Far from that regime disclosing any issues between the complainant and the appellant, it disclosed an unequivocal desire on the part of the complainant to want to stay with him.
2. In all of these circumstances the appellant's repeated denials of wrongdoing are rendered particularly forceful. Such denials must be assessed in the context of having come from a person who was of unblemished character, of whom witnesses spoke highly and who, on the evidence, had carried out his duties as a foster carer in an exemplary fashion over a significant period of time. Given that the offending was said to have occurred when the appellant was carrying out those duties, the fact that he had otherwise done so without blemish was a matter of some significance.
3. In these respects, I am particularly mindful of the evidence of Ms Taylor, whose evidence is deserving of considerable weight. I am equally mindful of the evidence of Ms Pearce, the vast majority of which was unchallenged. The force of such evidence cannot be ignored. In all of these circumstances, I am unable to accept the submission advanced by the Crown that the absence of any other offending on the part of the appellant may have been due to the fact that he had decided that it was "too risky" to continue to behave in such a way. Such a proposition is entirely speculative.

Conclusion

1. As I have already set out, the task of this Court is to determine whether, notwithstanding that there is evidence upon which a jury might have convicted the appellant, it would nonetheless be dangerous in all the circumstances to allow the verdict of guilty to stand. [208] Proof of a matter beyond reasonable doubt involves a rejection of all reasonable hypotheses, or any reasonable possibility inconsistent with the Crown case. [209] As I have said, taken in isolation the complainant's account might be viewed as cogent. But that is not the way in which the question is to be approached. The entirety of the evidence must be assessed.
2. Having undertaken that exercise, the complainant's assertions against the appellant, and her general credibility, are eroded. In a number of respects, those assertions do not sit with the objective evidence. Not only did some of them come to light at a late stage, some of them, including the fundamental assertion that the appellant was a paedophile, emanated from suggestions made to her by other persons. The entirety of the evidence also includes the appellant's sworn denials and the evidence of his prior good character which was elicited, not only through Crown witnesses but from witnesses called in his own case.
3. In all of the circumstances I accept the submission of senior counsel for the appellant that there were a number of possibilities which were open on the evidence. These included the possibilities that: 1. the complainant was making up her evidence; or 2. the complainant was giving evidence that was not her genuine memory; or 3. the complainant's evidence was simply wrong, and that the alleged acts did not occur.
4. It is important to bear in mind that in order for a doubt to be a reasonable one, such possibilities must be reasonable, as opposed to being fanciful or speculative. [210]
5. In my view, the possibilities raised on the evidence did not fall into the category of being fanciful. They were real possibilities which, in my view, the Crown failed to exclude on the whole of the evidence.
6. For all of those reasons, this ground has been made out.

GROUND 6 - THE TRIAL MISCARRIED AS THERE WAS AN ERRONEOUS AND INADEQUATE DIRECTION BASED ON LIBERATO v THE QUEEN (1985) 159 CLR 507 AT 515 GIVEN IN THE TRIAL

The directions of the trial judge

1. At an early stage of her summing-up [211] the trial judge directed the jury as to the onus of proof in terms with which senior counsel for the appellant took no issue. The direction included the following: [212] …[I]t is not a question of saying for instance, "I'm not sure where the truth lies, but I prefer the evidence of the complainant to the accused". Before you can convict the accused of any count, you need to accept the evidence of the complainant as a witness of truth and reliability in relation to that count and that involves rejecting the denials by the accused.
2. Her Honour then referred to aspects of the appellant's interview with the police, [213] his sworn evidence before the jury, [214] and the evidence of other witnesses who gave evidence in the defence case, [215] before saying: [216] If having considered that evidence led in the defence case and the submissions of both counsel in relation to it, if you accept it then of course you must acquit the accused and bring in a verdict of not guilty because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter, that is the accused has denied the allegation, so if you accept his denials both in the record of interview and his evidence then of course the verdict would be not guilty. However, as I have told you there is no obligation on the accused to persuade you to accept his evidence. The Crown must satisfy you beyond reasonable doubt that you should reject it as a reasonably possible version of the facts. If after having given consideration to the evidence of the accused and the evidence called from witnesses on behalf of the accused you do not possibly accept the evidence of the accused and his witnesses in support of his case, but that evidence nevertheless leaves you with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter, then you are bound in law to bring in a verdict of not guilty. In other words, it is not the position that you have to believe that the accused and his witnesses are telling you the truth before the accused is entitled to be found not guilty. As I have previously emphasised to you throughout the whole of this case it remains the position that the Crown must establish beyond reasonable doubt the charges which it brings against the accused and it is never for the accused to prove that he is not guilty. If at the end of your deliberations you find that the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true then the Crown has failed in its obligation to persuade you of the accused's guilt beyond reasonable doubt.

Submissions of the appellant

1. Senior counsel for the appellant submitted that the trial judge should have directed the jury that: 1. even if the evidence led by the Crown was preferred, the appellant could not be found guilty unless the jury was satisfied beyond reasonable doubt of the truth of that evidence; and 2. even if the jury did not positively believe the evidence called in the defence case, they could not find against the accused in respect of a particular issue if the evidence gave rise to a reasonable doubt.
2. Senior counsel for the appellant acknowledged that no issue was raised by trial counsel to the direction which was given, and that r 4 therefore applied to this ground.

Submissions of the Crown

1. The Crown submitted that the trial judge had discharged her obligation to give a clear and unequivocal direction to the jury as to the onus and standard of proof. It was submitted that the trial judge's direction left the jury in no doubt that if they considered that the appellant's version of what happened could possibly be true, they were required to acquit him. In circumstances where no further direction was sought by trial counsel, it was submitted that leave to argue this ground should be refused.

Consideration

1. In Liberato v The Queen [217] Brennan J said: When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
2. Deane J said: [218] Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing-up to a "choice" between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable. The main significance of the directions about having to make a "choice" lies, in the present cases, in their clear suggestion that the "real question" in the cases turned upon a mere "choice" between the evidence of the complainant and that of the accused and in the possible contribution of that suggestion to overall effect of the misdirections about onus of proof.
3. In Roos v R [219] Gleeson JA (with whom Harrison and Davies JJ agreed) concluded that it would be wrong for a trial judge to indicate to a jury that guilt or innocence turned upon a "choice" between two inconsistent versions, but that a Liberato-type direction may be unnecessary where the jury is given clear directions regarding the onus and standard of proof. His Honour went on to say: [220] [91] In the present case, the jury were directed that, if they considered that the appellant's version of what happened could possibly be true, they must acquit him. Such a direction prevented any likelihood that the jury obtained the impression that it was only if they believed the appellant's evidence to be true that it could give rise to a reasonable doubt as to his guilt. There was no suggestion that they had to choose between the Crown witnesses and the appellant as to who was to be believed. The directions concerning the onus of proof given to the jury in the present case (quoted in par [10], supra) deny the possibility of any misapprehension by the jury such as that contemplated by the Liberato direction. [92] In the present case, the Judge's summing up carefully and correctly explained to the jury the requirements of the criminal onus and standard of proof. The jury were directed that if they accepted the evidence of the accused they must acquit him but there was no obligation on the accused to persuade the jury to accept his evidence. The jury were also instructed that there was no obligation on the accused to persuade the jury to accept his evidence, that the jury did not have to believe the accused before they found him not guilty, and that the Crown must satisfy the jury beyond reasonable doubt that the jury should reject the accused's evidence as a reasonably possible version of the facts. [93] Taken together with the directions on the onus and standard of proof, I do not consider that there was any likelihood that the jury obtained the impression that it was only if they believed the accused's evidence to be true that it could give rise to a reasonable doubt as to his guilt. The summing up did not suggest that the jury had to choose between the Crown witnesses and the appellant as to who was to be believed.
4. In the present case, over and above the directions as to the onus and standard of proof, the trial judge directed the jury that: 1. if the evidence led in the defence case was accepted, the appellant must be found not guilty; 2. if the denials of the appellant in his record of interview and his sworn evidence were accepted, the appellant must be found not guilty; 3. even if the evidence of the appellant and those called as witnesses in the defence case was possibly not accepted, but nevertheless left a reasonable doubt, the appellant must be found not guilty; 4. it was not the case that the jury was required to believe that the appellant was telling the truth before he was entitled to be found not guilty; and 5. if, at the end of deliberations, the jury found that the Crown had failed to eliminate, as a reasonable possibility, that the version presented by the defence was true, then the Crown had failed in its obligation to persuade the jury of the appellant's guilt beyond reasonable doubt and the appellant should be found not guilty.
5. Although the trial judge did not specifically refer to evidence of good character which had been elicited from Crown witnesses and upon which the appellant relied, I am satisfied that when viewed in their entirety, her Honour's directions made it clear to the jury that if they considered that the appellant's version of what had happened could possibly be true, they were bound to return a verdict of not guilty.
6. As was the case in Roos, the trial judge did not suggest to the jury that they were required to choose between the Crown witnesses and the appellant as to who was to be believed. In my view, the jury could not have been left with the impression that it was only if they believed that the appellant's evidence was true that they could have a reasonable doubt as to his guilt. The directions of the trial judge were generally to the contrary.
7. In these circumstances, and given that no issue was taken by trial counsel to the directions given, leave to argue this ground should be refused.

GROUND 7 - THE TRIAL MISCARRIED WHEN THE EVIDENCE OF THE COMPLAINANT WAS REPLAYED IN THE ABSENCE OF ANY REMINDER AS TO HER CROSS-EXAMINATION, ANY REMINDER OF THE EVIDENCE OF THE APPELLANT, OR ANY WARNING AS TO MISUSE

The replaying of the complainant's evidence

1. After the jury had retired, the trial judge received a note [221] in the following terms: 1. Could we review (the complainant's) interview with the police from question 53 to question 175. 2. Could we read the transcript of (ER). It does not matter which order these requests are met.
2. That part of the complainant's interview which the jury asked to be replayed incorporated (inter alia) her account of the specific allegations in respect of the two Counts in the indictment. After receipt of the note, the trial judge and the Crown identified the relevant section of the recording and the jury returned to court. The jury returned to court and Q and A 53-175 were replayed. The jury then resumed their deliberations and a little over 20 minutes later, verdicts of guilty were returned.

Submissions of the appellant

1. Senior counsel for the appellant pointed to the fact that the jury had not been reminded, be it before, during or after the re-playing of the complainant's evidence in chief, of either her cross-examination or the appellant's sworn evidence. Senior counsel also pointed to the fact that the transcript of the complainant's cross-examination was not provided to the jury, and that there was no direction given to the jury: 1. not to give disproportionate weight to the evidence of the complainant which they were hearing for a second time; 2. reminding them of the necessity to bear in mind the other evidence in the case; and 3. reminding them of the necessity to consider all of the evidence in a fair and balanced way.
2. Senior counsel emphasised that the trial was one in which there had been considerable evidence adduced in the defence case. It was submitted that in those circumstances, the failure to remind the jury of the complainant's cross-examination, and to direct them in the terms set out above, gave rise to a fundamental lack of fairness in the trial process, as a consequence of which there had been a substantial miscarriage of justice. It was again accepted that r 4 applies to this ground.

Submissions of the Crown

1. The Crown submitted that in circumstances where the jury had available to them both the recording of the appellant's interview and a transcript, the suggested directions were not necessary.
2. The Crown pointed out that the terms of the jury's note made it apparent that they only wished to listen to the recorded evidence of the complainant relating to the offending alleged in each Count. It was submitted that in these circumstances, and in the absence of any application being made by trial counsel, it was not for the trial judge to remind the jury of the complainant's cross-examination, and/or the appellant's sworn evidence.
3. The Crown appeared to accept that had a direction been sought, it would have been open to the trial judge to give what the Crown described as a "misuse warning". However, the Crown submitted that the failure to do so did not give rise to a miscarriage of justice.

Consideration

1. In R v NZ [222] Howie and Johnson JJ said the following: [208] We believe that the judge should give a warning to the jury as to the caution with which they are to approach the replaying of the videotape of the evidence in chief of a witness in the manner suggested by McMurdo P in R v H . The general warning is to the effect that: because they are hearing the evidence in chief of the [witness] repeated for a second time and well after all the evidence, they should guard against giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case. Of course it does not matter what words the judge uses to express that warning. [209] Again the failure to give such a warning may or may not result in a miscarriage of justice. Much may depend upon the significance of the evidence in the case and what other warnings have been given to the jury about the evidence of the witness whether there is other evidence corroborating the witness or otherwise proving the offence and when the request for the replaying of the tape is made. A relevant matter may be whether defence counsel made any request for such a warning.
2. Their Honours further said: [223] [221] Although rule 4 strictly applies in the present case, we are prepared to deal with the grounds of appeal on the basis that we should set aside the verdicts unless we are persuaded that no miscarriage of justice has occurred by the presence in the jury room of the videotape of the complainant's interview with police. We are so satisfied. It is impossible in our opinion to conclude that the trial was unbalanced by the presence of that material in the jury room when the jury themselves corrected whatever imbalance there might have been by asking for, and being supplied with, the transcript of the cross-examination of the complainant. As there was no defence case, there could be no imbalance in favour of the Crown case. We take into account in coming to this view that the trial judge gave the appropriate warnings and directions as to the way the jury were to approach the evidence of the complainant in a fair and balanced way that was not, and could not have been, the subject of any complaint.
3. In Jarrett v R [224] this Court confirmed that no rule of practice or procedure should be laid down as to the circumstances in which a judge might permit evidence of the kind given by the complainant, in the present case to be replayed without any warning, or without reminding the jury of any relevant cross-examination. The determination of whether the failure of a trial judge to direct the jury in such terms will result in a miscarriage of justice will depend on a number of factors, including the nature and extent of the other evidence in the case.
4. In the present case, there was considerable cross-examination of the complainant. The appellant repeatedly denied, both in his interview and in his sworn evidence, that the alleged offending had ever occurred. There was also a significant case put before the jury as to the appellant's prior good character, not only on the basis of evidence called in the appellant's case, but also on the basis of evidence elicited through the conversation of witnesses called by the Crown. In these circumstances, the failure of the trial judge to warn the jury as to the caution with which they should approach the re-playing of the complainant's evidence gave rise to a miscarriage of justice.
5. No application for such a direction was made by trial counsel at the time and accordingly, r 4 applies to this ground. In NZ, the decision to refuse leave under r 4 was based partly on the fact that there had been no defence case, and thus there was no risk of imbalance arising from the failure of the trial judge to give any direction at the time that the evidence was replayed. That may be usefully contrasted with the appellant's trial where the position was very much to the contrary.
6. In all of these circumstances leave to rely on this ground should be granted. For the reasons stated, the ground has been made out.

CONCLUSION

1. My conclusion that grounds 1, 2, 3, 4 and 7 have been made out would otherwise result in orders being made upholding the appellant's appeal, quashing his convictions and sentence, and ordering a new trial. However, in view of the conclusion that I have reached in respect of ground 5, I propose the following orders: 1. The appeal against conviction is allowed. 2. The convictions recorded against the appellant are quashed. 3. The sentences imposed upon the appellant are quashed. 4. Verdicts of acquittal are entered in respect of each of counts 1 and 2.

Endnotes

1. Commencing at T199.5.
2. T199.35-T199.40.
3. T200.39-T200.48.
4. T200.11-T200.17.
5. T203.3-T203.6.
6. T208.36-T209.6.
7. Q and A 42-44.
8. Q and A 53-58.
9. Q and A 60-62.
10. Q and A 63-67.
11. Q and A 68-69; Q and A 76-77.
12. Q and A 79-80.
13. Q and A 78-80.
14. Q and A 86-87.
15. Q and A 91.
16. Q and A 94-96.
17. Q and A 97-98.
18. Q and A 98-100.
19. Q and A 103.
20. Q and A 103.
21. Q and A 107-109.
22. Q and A 115.
23. Q and A 116-120.
24. Q and A 121-153.
25. Q and A 154-156.
26. Q and A 165-168.
27. Q and A 183.
28. Q and A 184-189.
29. Q and A 190-193.
30. T35.1-T35.17.
31. T67.48-T69.7.
32. At T86.49.
33. T87.13-T87.16.
34. T87.24-T87.48.
35. T88.4-T88.6.
36. T88.15-T89.6.
37. T95.39-T96.22.
38. T79.15-T79.17.
39. T79.19-T79.25.
40. T79.27-T79.50.
41. T80.30-T80.40.
42. T94.4-T94.6.
43. Q and A 268-269.
44. Q and A 269-271.
45. Q and A 272-273.
46. Q and A 134.
47. Q and A 282-283.
48. Q and A 121.
49. Q and A 283.
50. Q and A 217-219. The floorplan was part of Exhibit C.
51. Q and A 233-236.
52. T215.32-T215.42.
53. T215.44-215.49.
54. T334.45-T334.46.
55. Q and A 70-80.
56. Exhibit E.
57. T300.6-T300.48.
58. Q and A 169-173.
59. T34.13.
60. T35.1-T35.6.
61. T35.8-T35.48.
62. T89.16-T89.41.
63. T94.28-T95.4.
64. Q and A 174-179.
65. T36.19-T37.34.
66. T90.1-T90.47.
67. T93.41-T93.48.
68. T121.38-T121.44.
69. T122.32-T122.40.
70. Q and A 180-182.
71. Q and A 183.
72. T38.4-T38.21.
73. T38.23-T39.8.
74. T39.16-T39.37.
75. T113.10-T113.30.
76. T113.35-T113.49.
77. T114.1-T114.30.
78. T39.39-T40-15.
79. T107.26-T108.19.
80. T109.37-T110.26.
81. All of the messages have been reproduced in this judgment in precisely the same terms in which they appear in the exhibit.
82. It was agreed between the parties that this was an abbreviation for "laughing out loud".
83. It was agreed between the parties that this was an abbreviation for the term "Oh my God, laughing out loud".
84. It was agreed between the parties that this was an abbreviation for the term "Laughing my arse off".
85. This message concluded with two emojis which were agreed between the parties to depict someone to crying with laughter.
86. It was agreed between the parties that "KK" means "OK".
87. This was obviously a response to NT's earlier message telling ER that it had been "done" and was accompanied with a "thumbs up" emoji.
88. This message was accompanied by three "crying with laughter" emojis.
89. It was agreed between the parties that "tbh" stands for "to be honest".
90. This message was accompanied by four "crying with laughter" emojis.
91. T53.49-T54.6.
92. See for example T69.49-T70.1; T70.41-T70.44.
93. T52.35-T53.5.
94. T53.33-T53.39.
95. T55.1-T56.34.
96. T78.42-T78.44.
97. T59.6-T60.27; T61.15-T61.17.
98. T61.36-T63.16.
99. T75.42-T76.1.
100. T77.43-T78.13.
101. T94.17-T95.4.
102. T150.8-T151.37.
103. T237.27.
104. T260.36-T260.37.
105. Commencing at T175.38.
106. T177.24-T179.15.
107. T179.30.
108. T179.40-T180.1.
109. MFI 11.
110. T182.46-T182.49.
111. T184.27-T184.32.
112. T184.45-T185.23.
113. T185.40-T186.6.
114. T187.4-T187.17.
115. Exh. 3.
116. T81.31-T82.8.
117. T82.35-T83.11.
118. T219.13-T219.26.
119. T81.27-T81.29.
120. T334.36-T335.38.
121. T213.39-T213.40.
122. T220.38-T221.5; T226.27-T226.35.
123. T226.50-T227.48.
124. T227.50-T228.10.
125. T228.39-T229.34.
126. T230.38-T230.40.
127. T252.4-T252.6.
128. T233.1-T233.23.
129. T246.41-T246.43.
130. T248.11-T248.14.
131. T248.16-T248.27.
132. Exhibit D.
133. MFI 12.
134. A166.
135. Q and A 180-185.
136. Q and A 186.
137. Q and A 57-58.
138. Q and A 60.
139. Q and A 205-206.
140. T286.33-T286.34.
141. T279.39-T279.44.
142. T280.15-T280.32.
143. T197.15-T197.26.
144. T281.41-T281.45.
145. T281.47-T282.2.
146. T282.4-T282.29.
147. T282.31-T282.33.
148. T282.36-T282.38.
149. T286.17-T286.24.
150. T286.28-T286.34.
151. T305.29-T306.17.
152. T317.37-T318.20.
153. T329.9-T329.27.
154. T330.26-T331.18.
155. T331.20-T331.24.
156. T331.45-T331.49.
157. T332.36-T333.17.
158. T333.21-T333.26.
159. T333.36-T333.43.
160. T364.35-T364.39.
161. SU 6, 7 August 2018.
162. T260.49-T261.1.
163. T261.2-T261.16.
164. T261.18-T261.31.
165. T209.8-T209.22.
166. T209.37-T209.39.
167. Exhibit 4.
168. T210.6-T210.7.
169. T210.9-T210.13.
170. Q and A 63.
171. Q and A 64-65.
172. Q and A 66-67.
173. T189.24-T189.33.
174. T285.36-T285.47.
175. T321.9-T321.17.
176. T321.19-T322.13.
177. T365.22-T365.26.
178. T365.42-T365.47.
179. T374.17-T374.25.
180. T377.1 -T377.36.
181. T383.23-T383.26.
182. Commencing at SU19, 6 August 2018.
183. SU 40, 6 August 2018.
184. SU 9, 7 August 2018.
185. SU 12, 7 August 2018.
186. Crown's written submissions at [6].
187. Crown's written submissions at [4].
188. Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 at [2]; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44]; [68]-[71].
189. ARS v R [2011] NSWCCA 266 at [148] per Bathurst CJ.
190. Greenhalgh v R [2017] NSWCCA 94 at [14] per Basten JA; Safi v R [2018] NSWCCA 134 at [50]-[51] per Simpson JA.
191. R v El-Azzi [2004] NSWCCA 455 at [183].
192. R v Castaneda (No.2) [2015] NSWSC 979 at [17].
193. Section 192(2)(b).
194. Section 192(2)(c).
195. Section 192(2)(d).
196. R v Meher [2004] NSWCCA 355 at [76] per Wood CJ at CL (Buddin and Shaw JJ agreeing).
197. R v Melville (1956) 73 WN (NSW) 579 at 581.
198. At [53]-[72] above.
199. Commencing at SU9, 6 August 2018.
200. SU9-10, 6 August 2018.
201. SU10, 6 August 2018.
202. SU11-13, 6 August 2018.
203. (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84]-[86].
204. This is the subject of Ground 7 which is discussed below.
205. Popovic and ors. v R [2016] NSWCCA 202 at [278]-[279] citing Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21 at 22.
206. R v Ortega-Farfan [2011] QCA 364 at [75]
207. R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82.
208. M at 492-493.
209. Moore v R [2016] NSWCCA 185 at [43]; [99].
210. Moore v R at [37]; see also Baden-Clay at [47].
211. SU4, 6 August 2018.
212. SU6, 6 August 2018.
213. SU15, 6 August 2018.
214. SU16, 6 August 2018.
215. SU17, 6 August 2018.
216. SU18, 6 August 2018.
217. (1985) 159 CLR 507; [1985] HCA 66 at 515.
218. At 519.
219. [2019] NSWCCA 67 commencing at [89].
220. At [91]-[93].
221. MFI 19.
222. [2005] NSWCCA 278; (2005) 63 NSWLR 628 at [208]-[209].
223. At [221].
224. [2014] NSWCCA 140; (2014) 86 NSWLR 623 at [73]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2019