JL v R

Court of Criminal Appeal (NSW)|2023-04-14|Before: Adamson JA, Ierace J, Sweeney J

Directions sought by counsel

Before closing submissions, the trial judge consulted the parties about the directions which ought be given to the jury in the summing up. The applicant's counsel made a list of directions sought which excluded a Liberato direction ((Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 (Liberato)) but he added it to the list orally.
Subsequently, the following exchange ensued: "HIS HONOUR: … What did you want by way of a Liberato direction? MCAULIFFE: Just in respect of the accused that the accused has given a version. I think it's the standard-- HIS HONOUR: Giving a version. MCAULIFFE: Yes, given his version by way of-- HIS HONOUR: I wrote this: 'The accused gave a version of the events in the recorded interview with investigating police. The accused is entitled to rely upon that account and ask you to take it into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused's guilt must satisfy you that it is a version of events that could not reasonably be true.' Do you want anything more? MCAULIFFE: No."

The Crown's closing address

In substance, the Crown case was that the complainant was a truthful and reliable witness when it came to the counts on the indictment. The Crown contended that the delay in reporting the anal intercourse could be explained by the additional trauma that this necessitated, as well as the other reasons referred to below. The Crown also contended that, in so far as the complainant was in error in recalling hospital treatment associated with the shoulder injury that preceded count 1, he was in error about a marginal matter of no particular importance, particularly as the complainant had, as the applicant admitted in his ERISP, suffered shoulder injuries before.

The delay in reporting the anal intercourse

The prosecutor told the jury that the alleged offences were committed in 2014 and that, in early 2015, the complainant reported the conduct which led to the plea of guilty to the Local Court offences. The prosecutor also submitted that first report of the acts of anal intercourse was to MG in about early March 2017, following which the complainant told his father and reported it to police in March 2017, as recorded in his statement of 7 March 2017.
The prosecutor addressed the delay in the disclosure as follows: "I want to discuss with you also the delay in the disclosure relating to the alleged acts that occurred. As I've just outlined to you what sort of circumstances [the complainant] was dealing with at the time he gave his first statement, you've seen his age and the difference in the way in which he spoke and the way in which he dealt with things. [The complainant] accepted that he didn't tell the truth to the police then. In fact, he effectively admitted that he lied to the police. He was not honest with the police. You've seen the interview, of course, the content of what he gave back in 2015. But if I can remind you, of course, and then focusing back to 2015, of that interview what he was giving, that you perhaps might come to the conclusion that there are things that he was saying that may have been signalling what was occurring. In his first response and his most lengthy response to the police above giving the whole outline of what was going on, he said this: 'My uncle has been, like, grooming me and everything else, and touching me on my back, touching me on my private part which is my dick and everything else which I don't really want that to happen again, because he comes back, but he leaves, then comes back about an hour or two later and sleeps at the house. It is just getting worse and worse and worse.' Of course, he did not say to the police at the time that the accused what we've alleged in the indictment was put, putting the accused's penis in [the complainant's] anus. Of course, later in that interview which you've seen, he was asked the question in response to, 'When you say in your room, you mean your caravan,' and [the complainant] then answered, 'Yeah. He walks in and just shuts the door and just likes - like, starts rubbing you up and everything. It is just getting scarier every time.' [The complainant] in around March 2017 made a decision to tell the police about the full events. Of course, I won't go through again the acts that he spoke about, but he explained to you that he was ashamed, he was embarrassed, he was scared of what people may think and he was, in fact, scared of the accused. But he got to a stage where he came to the view where he could talk about it, and particularly talk about the other things that happened to him. He came to the decision, of course, that talking to someone - I've touched on [MG's] evidence earlier on, but that he came to this conclusion after being in a camp and, of course, he was cross-examined about that, about discussions with respect to other people's problems, other people's difficulties that they faced, and then, of course, he then confided with [MG] with respect to what happened. It was only then, of course, and other points in time where he's then decided that he was able to talk not only to [MG], but he was also going to speak to his dad. With respect to the accused's - and you would come to this conclusion, that [the complainant] was angry. [The applicant] was angry with the accused. It was suggested to the defence that this may have motivated him to go to the police to effectively punish the accused, but as I say, that's right in a sense, that [the applicant] was angry with him. You need to look at that in the context, with respect, to the way in which and what the events happened to him he is angry about."

The connection between the shoulder injury and incident 1

The shoulder injury received some prominence in the Crown's closing address as, no doubt, the prosecutor anticipated (correctly) that the applicant's trial counsel would make much of it in his closing address. The Crown said: "Now, one other aspect which I'll address you specifically on is the issue with respect to why [the complainant] was recalled. You might have - the last time he gave evidence, and this is the issue regarding his shoulder. Now, [the complainant] told you when he first gave evidence in this trial that during incident one when asked about the movements of the accused that he had a dislocated shoulder or injured shoulder that he went to hospital for. Specifically spoken about, and he spoke about how he could move and was restricted in moving when these acts he described the accused of doing reaching up and touching him, and this is the area of count 1. Now, you have seen the evidence of course which has been provided to you with exhibit D [the agreed facts regarding the shoulder]. This essentially provides you with the evidence that during … the whole … of 2014, which is the period of time of which the Crown alleges that these acts occur, and by reference to the medical documents he didn't go to hospital during that time and he didn't have the injury in which he said he did. Now, you might remember when I first opened to you at this trial, the beginning of this trial, that you're entitled to reject or accept all or some of the evidence of a witness. Now, by his explanation with respect to that injury you'll have to reject that he had an injured shoulder as he described. I'll just point out further that because of exhibit D suggest there's no medical records which suggest that that injury occurred in the way in which he described in principle that he was going - that he went back to the hospital. You might remember of course when he's returned he's told you that he was confused. He's made a mistake. But you also heard that he said he had - he still had a sore shoulder or an injured shoulder. Now, he's maintained that all the way through, that he did have a sore shoulder. But [the complainant] of course is not the only person who has spoken about the sore shoulder. In fact the accused in his interview some two years ago acknowledged that [the complainant] had shoulder injuries from football and sports injuries. And in fact it was because of that the accused would rub his shoulders. Now, as I've touched on before, both [the complainant's] parents had seen this going on. So did [the complainant] have sore shoulders around the time of the events of which we describe regarding count 1? He did. Did he have a dislocated shoulder as a result of playing a rugby league game where he went to hospital? No, he did not. Now, you also might remember when I firstly opened to you, ladies and gentlemen of the jury, that the Crown does not have to prove every single fact beyond a reasonable doubt. Of course the way in which he gave - this is talking about [the complainant]. The way in which he gave evidence, his responses, are very important to you in assessing the evidence overall. But can we talk about the area which this was concerning when it arose you saw in the cross-examination. The line of questioning from the defence was regarded - was with respect to whether the accused could reach up to [the complainant's] bed relating to the events of count 1. Now, you've seen the photographs and the sleeping arrangements, and indeed where I think even [the complainant] pointed out where he would sleep. You can assess that exhibit and looking at of course the height of the floor from the ground up until is bed. It's not very high at all. The fact that the accused could not position himself to do what he did is really not something when you consider all the evidence that you would be ultimately concerned about. What [the complainant] told you, which must be proved beyond reasonable doubt that he touched his penis, that that had occurred, excluding the evidence of his dislocated shoulder or injured shoulder. The Crown says it was clearly not impossible that the accused - and would not raise any sort of reasonable doubt that the accused in fact did so."

The applicant's closing address

The defence case, in substance, was that the prosecution had not proved any offences beyond the Local Court offences to which the applicant had previously pleaded guilty. The applicant's trial counsel submitted that the complainant was an unreliable and dishonest witness who had been influenced by his attendance at the camps (where he had met MG and others who had suffered sexual assaults) to attribute to the applicant acts (such as anal intercourse) which he had not in fact experienced but which he had heard about at the camps. The applicant's counsel submitted that the complainant's anger towards the applicant led him to give false evidence, including about the shoulder injury. He contended that the delay (and the denial to police in 2015 that anything else had happened) meant that the jury could not be satisfied beyond reasonable doubt of the charges against the applicant.

References to the complainant's demeanour

The applicant's trial counsel referred to occasions on which the complainant had "showed considerable emotion during his evidence". He also acknowledged that the jury might find the complainant "pretty compelling".

Submissions regarding failure to report anal intercourse in 2015

The applicant's trial counsel relied on several inconsistencies within the complainant's accounts. He also emphasised not only the delay in reporting the anal intercourse, when other acts had been reported in 2015, but also the complainant's positive misstatement to police that nothing else had happened. The applicant's trial counsel said: "… the complainant in 2015 told the police that nothing else happened. This is particularly important. In many respects, members of the jury, the Crown case was doomed before it even began, before we even started on Tuesday, the Crown brought this case and based it on a complainant who admittedly didn't tell the police the whole story the first time around, a complainant who admitted to lying to police when he spoke to them in 2015, and a complainant who has a clear motive against the accused for what he did to him and his brothers which is set out in exhibit A [the agreed facts relating to the earlier pleas of guilty]. … The complainant's first reason why he didn't mention these new allegations was that he was embarrassed. That would be completely understandable if he had have said that at the time, but there is a big difference between saying, 'Look, I don't want to say anything else,' or, 'I'm not going to go any further,' compared with, "No, nothing else at all happened." It's very different. He was clearly told it was fine if he didn't want to say anything or answer a question, but instead he chose to say what he said. As I have mentioned, you've had the opportunity to observe him as a 14-year-old giving his story to police, and you might think that he presented as an honest young man doing his best - uninhibited doing his best to answer every question that police put to him. If he was misleading the police back then, you might think that he did a very convincing job of it. Now, the second reason you heard, that is the reason why he didn't tell the full story in 2015, was that he was scared. He told you he was too scared of [the applicant] to tell the police. Now, that piece of evidence falls into the unreliable category. So firstly there's no mention of that in his 2017 written statement to police. Second, there was no mention of that a week later when he met with Detective Senior Constable Etheridge for the sole purpose of explaining why he didn't tell the full story back then. Again no mention of any fear of [the applicant]. The first time you heard this notion of him being scared was here in his evidence and, as I've mentioned, it's not the first time that he mentions this concept of being scared in order to explain an unusual aspect of his story. And fourthly, you heard the complainant's evidence that he was scared, but he went to police anyway in 2015. So, members of the jury, you might think that if you are genuinely scared of telling the police because someone might harm you or your family, you wouldn't go to the police at all. You might think that once you do the cat is out of the bag, and if you were really scared the question is do you go to the police or not."
The applicant's trial counsel returned to the influence of the camps which the complainant attended and submitted that "[i]t was only after hearing stories that were more serious than his did he decide to go back to police".
The applicant's trial counsel also relied on motive and submitted: "I don't propose to talk long about this because the motive is self-evident. The complainant was horribly wronged by what [the applicant] did to him in 2014. The complainant accepted that he was angry, and what he did to him is set out very clearly in exhibit A [the statement of agreed facts extracted above]. The complainant's motive to lie looms over the entirety of his evidence and I ask that you consider that when you consider whether you could accept him given this undeniable motive after what [the applicant] did to him."

Submissions regarding shoulder injury

The applicant's trial counsel referred at length to the evidence relating to the shoulder injury in connection with count 1 as follows: "Now, I've already talked about the deep absence of detail provided by the complainant, but there are a few limited occasions where we can test what he said about other pieces of evidence, and on each opportunity to do that the account falls short. So the most prominent example is the medical evidence about the shoulder injury, and that's insightful for a few reasons. Again this was new information that popped up for the first time in evidence when I was questioning him and it only came out after I suggested to him that he could have perhaps just rolled over. Now, the complainant again says, 'I was confused about this'. But, members of the jury, that explanation doesn't stack up. There was no confusion in his evidence when the sore shoulder story came out. I mean you saw him. It wasn't just some vague detail about possibly having a sore shoulder. He was resolute, and he was even annoyed. He was annoyed that I questioned the truthfulness of that account. He was also specific. He'd been playing rugby league. It was dislocated. He had a sling and he was given a green whistle. I said to him, 'So you can remember precisely when this occurred then'. Answer, "Yes". No confusion there. Now, you might think that in July when the complainant gave that evidence he thought that he could drop in that detail and no-one would be able to find out. I even asked him here in this trial, 'You didn't expect that the police were going to find your medical records, did you'. Answer, 'No'. So we go from remembering this detailed, fairly significant incident, knowing precisely when the alleged assault occurred, to question, 'You didn't go to the hospital in relation to a sore shoulder at all in 2014, did you'. 'No.' So forget what exhibit C [sic, Exhibit D] says setting out the medical history. The complainant knew that he didn't go to the hospital in 2014 for a sore shoulder. Now, this you might think cannot be explained by error, confusion or even being scared. This case doesn't have any DNA evidence, doesn't have any evidence of injuries you might think he would have sustained, no witnesses around when this was supposed to have occurred, these three incidents. This is one of the very few opportunities the police have been able to obtain some evidence, and when we hold the complainant's account up it falls short."

The summing up

The trial judge gave the standard directions about the jury's entitlement to accept part of a witness's evidence and reject another part and the prosecution not having to prove every fact beyond reasonable doubt.
The trial judge, when summarising the applicant's case, referred to the shoulder incident: "The difference and inconsistencies: such as the account he gave police in 2015 and the account he gave you in this trial; whether he had a dislocated shoulder or sore shoulder; whether the accused came or went from the caravan; what time it occurred; when it was bedtime."
The trial judge also gave the following direction, in the terms of s 293A of the Criminal Procedure Act 1986 (NSW), which was not the subject of challenge: "Experience shows that people may not remember all the details of an event, including a sexual offence, in the same way each time. The trauma may affect people differently. It may affect how they recall events. But sometimes there are differences in an account of a sexual offence and both truthful and untruthful accounts of an event, including a sexual offence, may contain differences. It is your job, and entirely a matter for you members of the jury, as judges of the facts, to decide whether or not any differences in the complainant's account are important in assessing his truthfulness and reliability."
The trial judge said further, concerning the delay in complaint about anal intercourse: "You have heard evidence that the complainant did not complain about what he claims the accused did to him until around February or March 2017 to [MG], where he told him that he had been raped three or four times by the accused. The delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the allegation of the offence or offences were committed, is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault. Here, you have heard evidence that the complainant did not complain until he did so to [MG] because up until then he was ashamed, embarrassed, he was scared of the accused. However, the delay in making a complaint is a matter that you may take into account in assessing the credibility of the complainant's evidence as to what he said the accused did. The accused has argued that the delay in making a complaint is inconsistent with the conduct of a truthful person who has been sexually assaulted and so you should regard this as indicating that the complainant's evidence is false. The accused asks you to rely upon the complainant's initial complaint to police, where he said that nothing else happened, as being inconsistent with the conduct of a truthful person who has been sexually assaulted in the way he described later in 2017. This is a matter which you should consider."
The judge also gave the following direction in accordance with the draft with which the applicant's counsel had agreed (which is the subject of ground 2): "In this matter, as you know, the accused gave a version of the events in the recorded interview with investigating police. The accused is entitled to rely upon that account and ask you to take it into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown, in discharging its obligation to prove the accused's guilt, must satisfy you that it is a version of events that could not reasonably be true."
In summarising the prosecution case, the trial judge described the complainant as "[t]he first and pivotal witness". The trial judge reminded the jury of various inconsistencies in the complainant's evidence, including in relation to delay and the shoulder injury, when summarising the evidence and the prosecution and defence cases.
When summarising the defence case, the trial judge said (of relevance to ground 2): "The accused relies on his record of interview, and I have given you firm instructions that it remains for the Crown to prove each of the elements of each of the four charges beyond reasonable doubt. The defence case is that the Crown case is entirely dependent on the complainant's … evidence to prove the elements of the charges. There are no eyewitnesses, there is no forensic or medical evidence to support penile-anal intercourse, and the complainant's evidence is riddled with inconsistencies and flaws. The complainant's evidence, according to the defence, is incapable of reaching the very high standard of proof beyond reasonable doubt."

Ground 1 - alleged unreasonable verdict

Ground 1 attracts the jurisdiction of this Court pursuant to the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) which provides: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence …"
The following summary of the principles that apply to an unreasonable verdict ground, from Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ), is a convenient starting point: "1) This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality. 2) It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence. 3) If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside. 4) A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the applicant's guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion. 5) A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. …" [Footnotes omitted.]
It is for this Court to determine whether it was "open" to the jury to find the applicant guilty or whether a jury "must have had a doubt": M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Although the credibility of a complainant may, as here, be significant in a criminal trial, a verdict of guilty may be reasonable even if the complainant's evidence is not corroborated: Pell, at [53].
Because the primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact, (The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)), it will not generally be appropriate for this Court to review pre-recorded or recorded evidence to form its own view of the credibility of particular witnesses on the basis of their presentation: Pell at [36]-[38]. Further, this Court must proceed on the basis that the complainant's evidence was accepted by the jury as credible and reliable: Pell at [39].
In addition, the extent to which this Court is entitled to disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which he or she has been convicted, is constrained. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing): "… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant's credibility has been so damaged that it was not open to the jury to accept his or her evidence."
Further, in certain circumstances, this Court is entitled to take into account its general experience, including in a particular class of case or for particular witnesses. Such experience includes that it is not uncommon for victims to remember specific details about the assaults but not tangential details. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing): "Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person's reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp at pp 48-62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness."
Nor is it uncommon for children to be imprecise about time. Apart from their immature minds, they rarely make contemporaneous notes or have resort to the type of written records which adults use to orient certain events in time. In BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101, the applicant argued that E's (the complainant) failure to recall a particular detail and error about another detail resulted in an unreasonable verdict. The High Court said as follows: "45 The fact that E said B had been present with her on the occasion of the sleepover and that she did not recall the foster children being there at the time were matters to be taken into account in assessing her reliability. However, they were not matters that were critical to the acceptance of her evidence of the offences. The Court of Appeal was right to treat as believable E's explanation that she had not told her mother about the third incident because she was embarrassed about telling her how she had reacted to the assault and because she felt scared. … 46 The four inconsistencies in E's accounts are to be considered in light of her age at the date of the offences, the interval between the offending and her first interview with Detective Enright, and the further interval between the interview and her evidence. On the essential features of her account of the offences E was consistent. She had woken from a nightmare in which a boy turned into a massive alien. She had gone into the applicant's room and got into bed with him. The applicant had indecently touched her as she lay in bed next to him. Sometime not long after this first incident, the applicant had sought her out and taken her back into the bedroom, where he had indecently touched her in the same way. She had extricated herself from the situation by saying that she needed to go to the toilet. When she went into the toilet she had seen a hairy spider. E was also consistent in her account that when she got into bed next to the applicant, his wife was asleep on the other side of the bed. It was open to consider that her recollection of the wife's earplugs was a damning detail. 47 None of the criticisms of E's evidence discloses inconsistencies of a kind that lead, on a review of the whole of the evidence, to a conclusion that it was not open to the jury to convict. It follows that the appeal must be dismissed."
These judicial observations do not mean that the complainant's counsel was not entitled to test the complainant's recollection by reference to external detail or internal inconsistency. Thus, when the circumstance that the complainant's evidence that he had gone to the hospital for a shoulder injury before any of the conduct which comprised the counts was established to be incorrect, the applicant's trial counsel was entitled to use it to try to impugn the complainant's credibility. Indeed, the applicant's trial counsel may have had very little other material to work with. Sully J, when agreeing with Spigelman CJ in Reed v R, said at [85]: "… there are, in the very nature of things, some sexual assault trials in which the only practical means by which the accused person can exercise his right to test the evidence of his accuser is, precisely, by testing in some proper fashion matters of detail that could be fitted easily enough within the description: 'surrounding tangential detail'."
Ms Lewer, who appeared in this Court with Mr Mulligan on behalf of the applicant, submitted that the verdicts were unreasonable because they rested on the largely uncorroborated evidence of the complainant, whose evidence had been shown to be false (since he denied any other acts when interviewed by police in 2015), unreliable (because of the various internal inconsistencies) and incorrect (by reason of his evidence about having obtained treatment at the local hospital for the shoulder injury which preceded the conduct in count 1). She submitted that the complainant's evidence had been successfully impugned and could not reasonably form the basis for the verdicts of guilty.
As referred to above, the jury, as the tribunal of fact, had the principal responsibility of deciding whether to believe the complainant's evidence of the conduct which comprised the counts. The jury was directed that they were entitled to accept part of the evidence of a witness and not accept other parts of that witness's evidence. It was open to the jury to accept the complainant's evidence as to the offending conduct and not accept his evidence (which the prosecutor proved to be incorrect) that he had obtained treatment from the local hospital for a shoulder injury before count 1. It can be taken from the jury's verdicts that the jury accepted the complainant's evidence of counts 1, 2, 3 and 4 beyond reasonable doubt although it was common ground that his evidence about the hospital visit could not be correct.
It was open to the jury to reason, from their collective experience, that children can be mistaken about time and the sequence of events. The jury was entitled to take the view that the complainant had suffered a shoulder injury prior to count 1 and recalled that he had difficulty turning over as a consequence but that it was not the same shoulder injury for which he obtained hospital treatment. It was open to the jury to reason that the prosecutor may have contributed to error in the complainant's evidence about the timing of the hospital visit by asking the complainant, in re-examination (for the first time), whether he had obtained treatment for that injury at a hospital. It was open to the jury to regard the complainant's affirmative answer to that question as reflecting a degree of suggestibility on the part of the complainant, rather than any unreliability. Because the applicant recalled, in his ERISP, that the complainant suffered shoulder injuries (for which the applicant massaged him), there was nothing surprising in the complainant not being correct about the timing of the shoulder injury for which he sought hospital treatment, particularly as the injuries were sustained playing football, which the complainant continued to play throughout the period.
As referred to by the High Court in BCM v The Queen in the passage cited above, the jury, taking into account its collective experience of life, could regard the complainant's evidence about the timing of the hospital visit as neither affecting the credibility nor reliability of his evidence of the conduct which comprised the offences charged.
Ms Lewer also placed significant emphasis on the denial of further criminal acts by the complainant when interviewed by police in 2015, from which the complainant resiled when he reported the further acts to MG, his father and the police in March 2017.
One of the difficulties with this submission is that, although the complainant did not tell the police in 2015 what he told them in 2017, there was substantial evidence in what he did tell police in 2015 to indicate that there was more going on than what he was describing. He told police in the JIRT interview "[m]y uncle has been like grooming me and everything else and touching me on the back, touching me on my private part which is my dick and everything else which I don't really want that to happen again" and that it was "getting worse and worse and worse" and "scarier". Further, when asked whether he would like to tell them anything else, he responded, "Nuh, not really.". It was open to the jury to consider that the complainant's motive in 2015 was to say enough to stop the applicant from coming around to his caravan and sexually assaulting him but not to tell the whole truth because he saw it as shameful and humiliating to him, as the victim. Although the police who interviewed the complainant in 2015 can be assumed not to have detected these markers or, at least, been unwilling to press the complainant, it was open to the jury to regard these indications as a clear sign that more was going on (as, according to the complainant's evidence before them, it was).
It was also open to the jury to reason that the complainant was prepared to disclose only those acts which were sufficient to protect himself and his younger siblings by preventing further visits by the applicant and was not prepared to single himself out as having experienced something which was much worse (anal intercourse).
The jury had the benefit of seeing the complainant on 8 January 2015 when he was 14 years old (on the JIRT interview) which was broadly contemporaneous with the counts, and also on 25-26 July 2019 (when he was 17 years old) and when he gave evidence in the trial in November 2019 (when he was 18 years old).
It was open to the jury to reason that the complainant's youth and vulnerability (living in an unlocked caravan separated from where his parents slept) at the age of 13 or 14 was such that, even if he was prepared to disclose some acts (in common with those suffered by his two older brothers), he needed further maturity and independence before he could disclose the acts of anal intercourse. It was also, in my view, open to the jury to consider that the complainant was not the instigator of the reports to police. It was his father who approached him in 2015 to find out what was wrong and who encouraged him to go to the police (which led to his two older siblings being interviewed by police) and MG who encouraged him to report the anal intercourse in 2017.
The jury might also have regarded it as significant that, although the complainant and MG had met and become friends some time between March 2015 and September 2015 (being 18 months to two years before MG made his statement on 14 March 2017), it took between 18 months and two years for the complainant even to disclose the anal intercourse to MG. MG then encouraged the complainant to tell his father. As referred to above, when the complainant told his father in March 2017, the complainant explained the delay by saying that he had been ashamed and had not been able to talk about it.
It was open to the jury to accept this explanation as credible because of the shame that may be associated with anal intercourse, particularly for a young male in the complainant's circumstances.
None of the arguments advanced on behalf of the applicant by Ms Lewer (or, indeed, his trial counsel) causes me to doubt his guilt of any of the counts. I have reviewed all of the evidence in the trial and am not persuaded that any of the verdicts are unreasonable.

Ground 2: alleged failure to give a Liberato direction

Ms Lewer accepted that the applicant's trial counsel had agreed to the terms of the direction proposed by the trial judge prior to closing submissions and had not sought any further direction. Accordingly, she accepted that leave was required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (the Rules).
Ms Lewer pointed out that the direction was given by the trial judge on 22 November 2019 and the High Court's decision in Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 (Da Silva) was handed down on 13 December 2019. She submitted that this circumstance might explain why the trial judge did not include the third component in Da Silva (see below). She particularly relied on the following passage from Da Silva at [11]-[12] (Kiefel CJ, Bell, Gageler and Gordon JJ): "11 The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused's answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused's answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused's account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused's version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath. 12 In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a 'reasonable doubt' on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?" [Footnotes omitted and emphasis added to indicate the passage on which the applicant relied.]
Ms Lewer submitted that the trial judge's direction was deficient in that it did not include (iii) in the passage set out above. She submitted that the three components in [12] of Da Silva represented the "minimum requirements for such a direction." Ms Lewer argued that the deficiencies in the Crown case made the inclusion of the third component particularly significant.
I reject Ms Lewer's submissions. The present case was not dissimilar to Da Silva itself. In Da Silva, the appellant was charged with rape (digital penetration of the complainant's vagina without consent). The Crown case depended on the complainant's evidence. The appellant did not give evidence but had denied any act of digital penetration in a recorded interview, which was tendered in the Crown case. The trial judge was not asked to give, and did not give, a Liberato direction. The trial judge said, in part, of the appellant's recorded interview: "Now, in that interview he also gave answers which you might view as indicating his innocence. You should know, ladies and gentlemen, that you are entitled to have regard to those answers, if you accept them, and to give them whatever weight you think appropriate. Bearing in mind, of course, that they have not been tested by cross-examination. So in relation to both the answers which the prosecution relies upon as being supportive of its case against him, and those which point to innocence, it is entirely up to you what use you make of them and what weight you give to them." [Emphasis in High Court decision.]
The Court of Appeal of the Supreme Court of Queensland concluded that the trial did not miscarry by reason of the omission to give a Liberato direction. The High Court, by majority, dismissed the appeal on the basis that there was nothing in the summing up which would have left the jury with "the impression that their verdicts turned on a choice between the complainant's evidence and the appellant's account in the interview": [32]. Their Honours continued, at [34]: "Whether, as the Court of Appeal reasoned, the words 'if you accept them', when the trial judge came to the answers in the interview on which the appellant relied, would have been understood by the jury as meaning accepting that the answers were given, the direction was superfluous and potentially confusing. The requirement that jurors first satisfy themselves that the accused made an out-of-court statement is directed to disputed confessional statements and not exculpatory statements. It is, however, to read too much into the impugned passage to take from it, as the appellant submits, that the jury would have understood the direction as meaning 'if you accept the truth of' the answers. The further instruction to give them 'whatever weight you think appropriate' would make no sense were the jury to understand that a prerequisite to any use of the answers was satisfaction of their truth. Any risk of confusion was overcome by the further, correct, instruction: 'So in relation to both the answers which the prosecution relies upon as being supportive of its case against him, and those which point to innocence, it is entirely up to you what use you make of them and what weight you give to them.'"
In the present case, no direction such as the one in issue in Da Silva was given. While there were peripheral statements in the recorded interview which were consistent with the prosecution case, such as that the applicant visited the complainant's home on some occasions when the complainant's parents were not present and that he had massaged the complainant's shoulders when the complainant had suffered shoulder injuries as a result of playing football (rugby league), the substance of the applicant's recorded interview comprised his denials of the complainant's allegations of anal intercourse. Thus, his recorded interview was not so much a different version of events, but rather a simple denial of allegations. The choice for the jury was whether it accepted beyond reasonable doubt the substance of the complainant's evidence of the offences charged (in which case it would return verdicts of guilty) or whether it did not (in which case it would return verdicts of not guilty). The applicant did not venture a different version of the facts (other than those which were peripheral) beyond a bare denial. At no stage was the jury asked to choose between the complainant's version and the applicant's version.
In these circumstances, a direction which included the third component of the Liberato direction, established by Da Silva, was not required.
Although I would be disposed to grant leave under r 4.15 of the Rules for ground 2, extend time for grounds 1 and 2, and grant leave to appeal, I am not persuaded that either ground 1 or ground 2 has been made out.

Ground 3: alleged error in application of totality when sentencing the applicant

Because the applicant seeks leave to appeal (on ground 3) against his sentence, it is necessary to set out in some detail the proceedings on sentence and the sentencing judgment.
The evidence before the trial judge (who was also the sentencing judge) included the applicant's criminal history and, accordingly, included details of the sentence which had been imposed on him for the Local Court offences, as follows: Sequence Time of offending Victim/age of victim/facts Sentence 1 1 December 2013 and 31 January 2014 JC/16 years old/ touched JC's testicles on the outside of his jeans. Section 9 bond for four years. 2 25 December 2014 and 1 January 2015 The complainant/14 years old/ came into caravan where the complainant was half asleep and put his hand under the complainant's boxers and pulled the foreskin of the complainant's penis back. Aggregate sentence of 18 months' imprisonment commencing on 21 January 2016 and expiring on 20 July 2017 with a non-parole period of 6 months commencing on 21 January 2016 and expiring on 20 July 2016. Indicative term of 12 months' imprisonment for each of sequences 2 and 3. 3 12 April 2014 and 1 January 2015 MC/15 years old/the applicant came into caravan where MC and the complainant slept. During the night, the accused put his right hand down MC's tracksuit pants and placed his hand directly on MC's penis. MC pushed the offender's hand away from his penis and went to sleep.

The applicant's counsel referred to the Local Court offences in his written submissions on sentence for the proceedings on sentence as follows: 1. he submitted that the delay between the imposition of the sentence for the Local Court offences and the sentence for counts 1-4 was relevant because it showed (in the absence of further charges) that the applicant has demonstrated progress towards rehabilitation; and 2. he submitted that it would be appropriate for there to be a degree of accumulation in respect of each offence but that, in respect of count 4, the principle of totality needed to be taken into account in respect of the sentence imposed for the Local Court offences and that double-counting needed to be avoided.
In the proceedings on sentence, the following exchange occurred: "HIS HONOUR: …You've both not differed greatly on where you say the objective seriousness lies. It's a matter for me, but you're both pretty much on the same page. I don't have this much difficulty with count 1. Remembering that at the time he committed that offence, or around the time that he committed that offence, he also pleaded guilty to those other indecent assault charges and received a sentence, which I think he appealed. But anyway, he still received a sentence. And they were very much at the same time and in the same sort of manner of speaking. So with that particular charge, there's a sort of range that I contemplate in mind. But what do you - do you have any idea of what sort of range you take the counts 2, 3 and 4? MCAULIFFE: Well, just briefly with respect to count 4, that is the count that -well, immediately preceding the conduct in respect of count 4, one of the indecent assault offences that [the applicant] pleaded guilty to occurred immediately before-- HIS HONOUR: Was the precursor to it. MCAULIFFE: Precisely. … MCAULIFFE: And it comes to this question of delay, your Honour. If [the applicant] was sentenced in respect of, in particular, count 4 at the time he was sentenced in the Local Court, the Court would have been in a position to deal with matters of totality, and accumulation, and things of that nature. So I just perhaps bring it to the Court's attention, and note also that there is, of course, some danger of double counting in respect of that conduct, for which the indicative sentence in the Local Court was 12 months."
In the sentencing judgment, the trial judge said of present relevance: "OTHER OFFENDING In 2015 the offender was subject to initial complaints by not only [the complainant] but by two of his brothers. The offender pleaded guilty to these charges and following an appeal served an 18 month head sentence with six month non-parole period. The parole period expired on 10 November 2017. As a result the offender was placed on a child protection register. He received a fine for one offence and a community correction order of 18 months for incidences of failing to report. The Crown acknowledges that the complainant … only partially disclosed the events in his first complaint in January 2015. In particular, he made no mention of the three serious offences of sexual intercourse. As noted, the offender was sentenced with respect to an indecent assault of a person under 16 as a result of his 2015 partial disclosure. This indecent assault encompassed the preparatory conduct to the offender's commission of the offence found in count 4. I have not included this preparatory conduct in coming to my finding in regard to the objective seriousness of count 4 in these proceedings."
The trial judge also said, when addressing the significance of the delay: "DELAY AND REHABILITATION Due to the complainant …, not mentioning these trial matters back in 2015, the offender was sentenced at that time without any consideration by the Court of matters of totality and accumulation. This is conceded by the Crown. It is submitted by Mr McAuliffe on the offender's behalf that due to the extensive delay the offender has demonstrated real progress towards rehabilitation. The offender continues to deny these offences. There is, as I have said, no genuine remorse. Apart from the two reporting offences he has remained trouble free. Accordingly, any question of rehabilitation must in my view remain guarded. Nevertheless, he has had the suspense and uncertainty of not knowing his ultimate fate, but he did, as is his right, cause these matters to go to trial, and that explains some of the delay. I accept that as he has not committed any sexual acts since 2015 that some lesser weight can be given to personal deterrence." [Emphasis added.]
His Honour also said: "Here the four charges cover three separate instances. They involve the same complainant … Counts 1 and 2 were on the same evening, count 3 about a week later. In count 4 the complainant is aged 14, but as noted above, the offender pleaded guilty to a preparatory act of indecent assault and has served prison time for it. Accordingly this is not an isolated instance of misconduct and there should be some partial accumulation. In saying this I will keep in mind that for count 4 the offender has already served time in custody for a preparatory act of indecent assault."

Consideration

Ms Lewer argued that the trial judge had not taken into account the sentences imposed in respect of the Local Court offences and that, accordingly, the sentencing discretion had miscarried for failure to take into account the totality principle.
The sentences imposed for the Local Court offences were relevant in several ways: first, the offending conduct formed part of the applicant's criminal history and disentitled him to leniency; second, the Local Court offences were relevant to risk of re-offending and prospects of rehabilitation; and third, the sentences were relevant to the application of the totality principle to the sentencing task which the trial judge was required to perform.
The totality principle requires a sentencing judge to consider the total criminality involved, not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen (1997) 189 CLR 295 at 308 (McHugh J); [1997] HCA 26. In Wu v R [2011] NSWCCA 102; 211 A Crim R 88, Giles JA said at [53]: "The cases have well recognised that totality principles are applicable where there is separate and later sentencing for one of a number of offences of similar character committed in the same episode of criminality, beyond where the delay was due to an interstate element or otherwise because of the operation of the criminal justice system."
One of the purposes of the principle of totality is to remove arbitrary matters, such as whether the same judge sentenced the offender for all offences; or whether the offender was sentenced for an earlier offence after having been sentenced for related offences. The totality principle is designed to result in a circumstance that, if all other things are equal, the total sentence imposed on an offender for related offences would be the same irrespective of the time at which the offender was sentenced or the order in which he was sentenced for these offences. Allowance must be made in the present case for the circumstance that the applicant was sentenced in the Local Court for the offences to which he pleaded guilty (with the attendant jurisdictional limits of that jurisdiction: see R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [27]-[35] (Grove J, Spiegelman CJ and Kirby J agreeing)) and in the District Court for the offences for which he was convicted after trial.
Accordingly, the question for the sentencing judge in the present case was, in a strict sense, what additional penalty is required to be imposed, in addition to the sentence imposed for the Local Court offences, for the commission of counts 1-4 on the indictment, taking into account all relevant circumstances: see the discussion of the principle of totality in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [97]-[100] (Spigelman CJ, Whealy and Howie JJ). However, because the Local Court offences were, and appeared to be, of relatively low objective seriousness, when compared with the substantial gravity of the offences charged as counts 1-4, it is understandable that the sentencing judge did not express the question in those terms. Indeed, for the reasons given below, the criminality of the Local Court offences was greater, when viewed in the context of counts 1-4 than it appeared at the time the applicant was sentenced for the Local Court offences. It is significant that the indicative sentence imposed for count 4 was the highest imposed (8 years' imprisonment) because of the higher objective seriousness, although the conduct which immediately preceded it constituted one of the Local Court offences (sequence 3 in the table above) and therefore needed to be disregarded to avoid double-counting.
I consider it to be sufficiently clear from the trial judge's reasons that his Honour was aware of, and applied, the principle of totality in connection with the Local Court offences. The trial judge was not only concerned to avoid double-counting for the criminality with respect to count 4, but also to take account of the sentences that had already been imposed by the Local Court. Indeed, this would appear to be what led to his Honour's questions of the applicant's counsel in the passage set out above. While the use which can be made of exchanges between bar and bench is limited (see Dang v R [2014] NSWCCA 47 at [32] (myself, Simpson and Davies JJ agreeing)), in the present case it serves to demonstrate that the issue of totality was separately raised by the trial judge in the course of the hearing and was a matter about which his Honour sought submissions from the applicant's counsel.
This is sufficient to dispose of ground 3, which has not been made out.
However, for completeness, I refer to the Crown's reliance in this Court on what Beech-Jones CJ at CL (Davies and Bellew JJ agreeing) said in Haak v R [2022] NSWCCA 28 in which his Honour said that the principle of totality did not invariably result in a lower sentence for a sentence imposed subsequently, in circumstances where a sentence had already been imposed for related conduct. His Honour said, at [20]: "… On the one hand the application of totality tends to result in a reduction of the overall time an offender will spend in custody for a related sequence of offending. On the other hand, undertaking a hypothetical sentencing exercise that considers all of the offending together may warrant the adoption of a far more adverse view of the offences and the offender. For example, considered together the offences may suggest that, contrary to the view of the sentencing judge who first dealt with the offender, the offences were not isolated or aberrant and the offender represents a real danger to the community."
Had error been established, this Court would have been required to re-sentence. The present case falls into the second category referred to by Beech-Jones CJ at CL, where the Local Court offences can be seen to be more serious than could have been appreciated when the applicant was sentenced in respect of them. The Local Court offences, when viewed in the context of counts 1-4, can be seen as part of a course of conduct on the part of the applicant in having, and acting on, his sexual interest in males between the ages of 13 and 16, in respect of three brothers by touching their genitals (which was, in the context of counts 1-4, grooming behaviour) and, when the opportunity presented itself, engaging in penile-anal intercourse with the complainant, to whom he made serious threats (death and offending against the complainant's younger siblings) to deter disclosure. The offences also constituted an egregious breach of trust by an older male relative into whose care the complainant and his siblings were entrusted by their parents. A sentence of at least the length of the aggregate sentence was required in order to reflect the total criminality of the applicant's offending conduct. In these circumstances, no lesser sentence would have been warranted, had the Court proceeded to re-sentence.

Proposed orders

For the reasons given above, I propose the following orders: 1. Extend the time for leave to appeal. 2. Grant leave to appeal. 3. Dismiss the appeal.
IERACE J: I agree with Adamson JA. Having reviewed and assessed the evidence that was before the jury, I am also independently satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt in respect of the four counts. I agree with Adamson JA's reasons in respect of grounds 1, 2 and 3 and concur with the orders proposed by her Honour.
SWEENEY J: Having made an independent assessment of the evidence in the trial I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. I agree with the orders proposed by Adamson JA and her Honour's reasons for those orders.

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Section of Crimes Act 1900(NSW)

HEADNOTE [This headnote is not to be read as part of the judgment] JL (the applicant) sought an extension of time for leave to appeal against his convictions of four child sexual offences against a male child (the complainant) following a trial by jury over which North DCJ presided. The applicant also sought leave to appeal against his aggregate sentence of 10 years' imprisonment. In 2015, the complainant, then aged 13 or 14, and his two older brothers made complaints to police that the applicant, their maternal great-uncle, had indecently assaulted them. The applicant voluntarily entered pleas of guilty to these three offences. This formed a statement of agreed facts tendered at the commencement of the trial and the trial judge gave a tendency direction that the agreed facts could be used to put that the applicant had a sexual interest in the complainant. In 2017, the complainant stated that there were three occasions in 2014 or early 2015 (the period of the offending to which the applicant had previously pleaded guilty) where the applicant had had anal intercourse with him. The first incident (counts 1 and 2) allegedly took place in the evening when the complainant was alone in his caravan (where he slept with his brother as there was not enough room in the house) when the applicant came into his caravan and put his hand on his penis. He left but returned soon after and put his penis in the complainant's anus. The second incident (count 3) occurred about a week later when the applicant came into the caravan, put the complainant on his stomach and had anal intercourse with him. In the third incident (count 4), the applicant told the complainant that if he said anything, he would do the same things to his younger siblings and that he would kill him, and then once again had anal intercourse with him. The complainant's evidence was that he had told a friend he met at a camp for victims of sexual abuse about the anal intercourse. The friend encouraged him to report it. Subsequently, the complainant told his father who accompanied him to the police station to report it. The applicant appealed against his conviction on two grounds. The first ground was that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence. The applicant raised inconsistencies in the complainant's evidence (about when he was hospitalised for a shoulder injury and the delay in reporting the anal intercourse) which were said to make his evidence insufficient to ground the convictions. The second ground alleged that the trial judge erred in the content of the Liberato direction provided to the jury. The applicant also appealed against his sentence on the ground that the sentencing judge erred in the application of the totality principle, as the applicant had previously been sentenced in the Local Court for offences committed against the complainant. The Court held (Adamson JA, Ierace and Sweeney JJ agreeing) dismissing the appeal: (1) It was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. It was open to the jury to accept the complainant's evidence of the offending conduct and not accept his evidence, which had been proved to be incorrect, that he had obtained treatment from the local hospital for a shoulder injury: [100]. The jury could regard the complainant's evidence about the timing of the hospital visit as neither affecting the credibility nor reliability of his evidence of the conduct which comprised the offences charged: [102]. BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 at [45]-[47], applied. (2) It was open to the jury to reason that the complainant's youth, vulnerability and feelings of shame regarding the anal intercourse contributed to the delay in disclosing those acts, and to accept this explanation as credible: [104]-[110]. (3) It was not necessary for the trial judge to include the third component added to the Liberato direction by Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (if you do not believe the accused's account in his interview with the police, you should put that account to one side). The applicant's recorded interview was not a different version of events, but rather a denial of allegations. At no stage was the jury asked to choose between the complainant's version and the applicant's version: [116]-[117]. Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [32] and [34] applied. (4) It is sufficiently clear from the trial judge's reasons that his Honour was aware of, and applied, the principle of totality in connection with the Local Court offences when imposing the aggregate sentence: [131].

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