Kassab (a pseudonym) v R - [2021] NSWCCA 46 - NSWCCA 2020 case summary — Zoe

NSWNSWCCA

Kassab (a pseudonym) v R

[2021] NSWCCA 46

Court of Criminal Appeal (NSW)|2020-07-29|Before: Johnson J, Adams J, Ierace J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-07-29

Before

Johnson J, Adams J, Ierace J

Catchwords

[1998] HCA 61 Hawi v R [2014] NSWCCA 83 House v The King (1936) 55 CLR 499
[1936] HCA 40 Jones v The Queen (1997) 191 CLR 439
[1997] HCA 56 Kim v R [2020] NSWCCA 288 M v The Queen (1994) 181 CLR 487
[1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348

Source

Original judgment source is linked above.

Catchwords

[1998] HCA 61 Hawi v R [2014] NSWCCA 83 House v The King (1936) 55 CLR 499[1936] HCA 40 Jones v The Queen (1997) 191 CLR 439[1997] HCA 56 Kim v R [2020] NSWCCA 288 M v The Queen (1994) 181 CLR 487[1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348[1996] HCA 35 Maughan v R [2020] NSWCCA 51 MFA v The Queen (2002) 213 CLR 606[2002] HCA 53 Papakosmas v The Queen (1999) 196 CLR 297[1999] HCA 37 Pell v The Queen [2020] HCA 1294 ALJR 394 R v Bauer (2018) 266 CLR 56[2018] HCA 40 R v Gregory-Roberts [2016] NSWCCA 92 R v Jenkyns (1993) 32 NSWLR 712 R v KG (2001) 54 NSWLR 198[2001] NSWCCA 510 R v McFelin [1985] 2 NZLR 750 R v O'Donoghue (1988) 34 A Crim R 397 R v Suteski (2002) 56 NSWLR 182[2002] NSWCCA 509 R v Tillott (1995) 38 NSWLR 1 R v TK (2009) 74 NSWLR 299[2009] NSWCCA 151 R v XY (2010) 79 NSWLR 629[2010] NSWCCA 181 SKA v The Queen (2011) 243 CLR 400

Judgment (90 paragraphs)

[3]

Judgment

JOHNSON J: I have had the considerable advantage of reading, in draft, the judgment of N Adams J. I agree entirely with her Honour's judgment and the orders proposed by her Honour.
With respect to the first ground of appeal, having reviewed the evidence in the trial, I am also satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on all counts upon which he was convicted.
N ADAMS J: This appeal concerns allegations of historical child sexual assault. The applicant is the paternal uncle of the two complainants.
In order to protect the anonymity of the two complainants, their names, as well as those of their family members, have been reduced to initials in the Appeal Book and submissions. The two complainants were referred to as YD and VG, the applicant as SH and so on. In the interests of readability, I propose to refer to the complainant YD as Yvette (not her real name) and VG as Victoria (not her real name). In relation to other witnesses I propose to refer to them as "the applicant", "the mother", "the father" etc. Where that is not possible, I will refer to them by first names other than their real names but starting with the same letter.
The two complainants allege that they were sexually assaulted as children both by the applicant and another uncle, FH, whom I shall refer to as Uncle Frank. The two complainants made disclosures of the alleged abuse over the years to friends, boyfriends, husbands and relatives before each of them finally went to police in 2013.
A joint trial commenced against both uncles in 2018 before Armitage ADCJ but was aborted. Uncle Frank became ill and the DPP ultimately did not proceed to trial against him. There was never any suggestion that the two uncles had acted in concert in any way.
The trial judge, Judge Weber SC, conducted a pre-trial hearing from 5-17 June 2019 to consider objections made on behalf of the applicant. Two of the rulings made on 17 June 2019 by his Honour are the subject of ground 2.
On 18 June 2019, the applicant pleaded not guilty on indictment to 34 charges alleged to have been committed on both Yvette and Victoria between 1974-1989. The trial proceeded before his Honour and a jury of twelve.
On 22 July 2019, the jury entered verdicts by direction on three counts (31, 32 and 34). Those counts all pertained to Victoria. She failed to give any evidence to support count 34 and in relation to counts 31 and 32 she did not describe the sexual assaults as occurring without her consent (she was over the age of 16 years by that stage).
On 30 July 2019, the jury returned verdicts of guilty in relation to 22 counts and not guilty in relation to the remaining nine counts.
On 11 October 2019, the applicant was sentenced in relation to the 22 offences upon which he was convicted to an aggregate sentence of 12 years imprisonment with a non-parole period of 7 years to commence on 30 July 2019 and expire on 29 July 2026.
The applicant seeks leave to appeal against his convictions under s 5(1) of the Criminal Appeal Act 1912 (NSW). He relies upon the following two grounds of appeal: "Ground 1: That the verdicts for counts 5-9, 11-12, 14-16, 19, 21-30 and 33 were unreasonable. Particulars (a) the guilty verdicts were inconsistent with the not guilty verdicts for counts 1-4, 10, 13, 17, 18 and 20; and (b) The guilty verdicts were otherwise unreasonable taking into account the whole of the material available. Ground 2: The trial miscarried by reason of the wrongful admission of evidence. Particulars (a) The trial judge erred in allowing over objection the evidence of [Victoria]; and (b) The trial judge erred in allowing over objection the evidence of various complaint witnesses."
There is no application for leave to appeal against the severity of the sentence.
If the applicant is successful on ground 1 the appropriate order is one of acquittal on all counts and there would be no need to go on to consider ground 2. If the applicant is unsuccessful on ground 1 but successful on either ground 2(a) or ground 2(b) the appropriate order would be one of a new trial. In those circumstances I propose to consider ground 1 first.

[4]

The evidence of the complainants Victoria and Yvette

Yvette was born in November 1968 and Victoria was born in June 1971. They were both born in Syria and arrived in Australia in 1972 with their mother. Their father had already migrated. The applicant and his family arrived in Australia shortly thereafter. The two families lived together in rented premises for a couple of years at which time some of the family members purchased the premises next door ("the premises"). A Memorandum of Transfer tendered at trial (Exhibit A17) established that the premises were transferred to the applicant and his wife and the applicant's brother MH ("Mark") on 28 July 1976. The evidence is that the complainants' family moved into those premises shortly thereafter.
The evidence as to when the complainants' family moved out of the premises differed. In 1979 or 1980 the two complainants and their mother returned to Syria on holidays. There was evidence at trial that they moved out of the premises upon their return to Australia.
All the offences were alleged to have occurred in the premises.
A significant amount of the evidence at trial comprised background details about: who the various members of the extended family were; what jobs they had at different times in the 1970s; how the children travelled to and from school; what year the complainants' family moved into and out of the premises and other surrounding events. The cross-examination of the two complainants regarding the details of the alleged sexual assaults was by comparison relatively brief. This is explicable given that the applicant denied all offences.
The two families living together in the premises from 1976 until 1980 comprised the following members. The applicant's family included his wife DH ("Donna") and their three children EH ("Evan") born February 1973, OH ("Olivia"), born in April 1974 and RH ("Richard"), born in January 1977. The two complainants lived with their parents and their brother PH ("Peter"). The two complainants were aged 6 and 8 years when they moved in and 10 and 12 years when they left.
There was no dispute that the complainants' mother worked throughout the relevant time period at a factory. Although the complainants' father also worked, there was a period in which he was unable to work due to injury. The complainants did not give evidence of this. The complainants describe the applicant as either being unemployed or working as a mechanic on vehicles at the premises. This was denied by the applicant and his family who gave evidence that he was employed throughout the period. The complainants' evidence was that Aunt Donna had the role of looking after the children and doing the cleaning, but she worked early in the morning at a bakery for a period and sometimes worked at a Salvation Army shop. The evidence of the applicant and his wife and Olivia was that she (Aunt Donna) never worked while they were all living together at the premises.
The applicant placed reliance on the evidence about who worked where and when on two bases: it was said to be relevant to the opportunity the applicant had to sexually assault the complainants and, given some of the inconsistencies in their evidence when compared with other witnesses, it was relied upon as undermining the credibility of the two complainants.
I propose to summarise the evidence of the complainants in relation to the counts on the indictment and then summarise their evidence as to the surrounding circumstances.

[5]

Grooming of the two complainants

Victoria gave evidence that when the families first moved into the premises the applicant treated her well and would say that she was cute and pretty. Around the time that the families moved into the property, Victoria would receive money from the applicant for going into the bathroom with him and being "cooperative" or "good". She said that telling him to "stop" was not being good. Victoria said that the applicant would call her over in Arabic, saying "come…pretty one". The applicant would tell her that she was special, that he loved her, she was beautiful and she was his favourite. Victoria said that he was gentle and sweet when he spoke to her, and she truly thought the applicant cared for her. In some instances, Victoria said that although she felt uncomfortable, she thought it was fun because the applicant told her he loved her and was gentle with her. The applicant asked Victoria not to say anything and said that it was a secret between them. Victoria said that when she told the applicant that she would tell her father, the applicant responded that her father would believe him over her as they were brothers.
Yvette recounted the grooming as beginning around when she started school. The applicant would tell her she was a big girl and smile at her. Soon after this, the applicant started telling Yvette to come and sit on his lap while watching TV. He would tell her she was a good girl and pat her hair. The applicant would suck on her earlobe, which she said was ticklish and made her laugh. Yvette said that if she tried to hop off from his lap the applicant would grab her arm and turn her around, giving her a look as though he was disappointed in her. She said she did not want to upset the applicant and for him to get angry with her. He would say "don't you want to be a good girl for uncle?".
Around the time Yvette was six years old, the applicant began complimenting her, saying she was wearing a pretty dress, that she was nice and beautiful. He said she was a good girl and he loved her very much. The applicant would ask to see what was under her dress. After some time, she would show him her underwear without being asked and he would smile. She said she felt happy that it was making him happy.
The applicant subsequently began touching her vagina. When he did so he would tell her that she was a "good girl" and she was "doing the right thing". Yvette recalled that the applicant began giving her money after touching her vagina. Yvette said that at this time she "liked him a lot… trusted him".

[40]

Evidence about Uncle Frank

Both complainants gave evidence that Uncle Frank came to live with them in the early 1980s after they had left the premises. Victoria gave evidence that Uncle Frank made her perform fellatio on him when she was about nine years old. On this occasion she felt she was unable to tell her parents due to her family's expectations of her. She gave evidence that Frank made her perform fellatio several more times and that he would hit her if she did not. Victoria said that during the time the Frank lived with them he would grab her vagina and breasts and pinch her in the lounge room.
Victoria said that when she was about 12 years old, she first saw Uncle Frank touch her sister in the lounge room. Victoria then asked Yvette whether Uncle Frank was hurting her. Victoria said that Yvette looked down which she understood to mean "yes". The sisters had another conversation about this around one week later, in which Yvette said that Uncle Frank had been grabbing her as well.
A couple of weeks later, Victoria initiated another conversation with Yvette and said she was sick of it and wanted to tell their mother. She told Yvette "let's try and get him busted". The sisters approached their mother and told her that Frank had been grabbing them. Victoria said that her mother wanted to see it for herself.
The sisters then sat in the lounge room while their mother observed from behind the door of the next room, through an old-fashioned key peephole. Uncle Frank entered the lounge room and pinched both of them at the same time.
When their mother saw what happened she became angry and told Uncle Frank to leave the house.
The defence at trial relied heavily upon the fact that although the complainants were able to tell their mother about Uncle Frank, they did not say anything to their mother about the applicant at that time.
Victoria gave evidence that when she was about 16, she told Aunt Donna about what the applicant was doing to her. Aunt Donna did not believe her. The applicant relied upon the fact that Victoria continued to visit the premises after this as being a matter adverse to her credibility.

[42]

Evidence of complainants' mother

The complainants' mother gave evidence as to the living and working arrangements, her observations of Uncle Frank and of the complaint to her.
Her evidence was that when they first moved into the premises, she worked full time, 8am to 4pm. Everyone used to be at home when she came back from work. Her husband (the complainants' father) was also working but not all the time. She agreed that as a result of a car accident in the mid-1970s he was not able to work but disagreed that it was for two and a half years, stating that it was maybe one and a half years.
Her recollection was that the applicant may have worked with her husband for a little while and that they later opened a garage and worked together. She could not recall when that happened, but said that once they opened the garage, they used to go out around 8am and come back in the evening. She accepted that it may be that they had a garage at the time of moving to the premises. Her evidence was that the applicant did not work much in Australia, about two years, because he started to fix up cars for his friends at the garage at the house. When she was living at the premises there would be times when the applicant would already be there when she came back from work, and that most of the time he would be working in the garage in the house and fixing up cars for friends.
She agreed that her husband and the applicant worked together in a few jobs: at a garage in partnership for about one year and in a factory in Alexandria (although not for very long). She also recalled that the applicant once worked as a mechanic with someone else at a garage.
As for Aunt Donna, the complainants' mother stated that she did not work at the time they moved into that property but that she then worked full time at the same company as her for three or four years, doing the same hours (8am to 4pm), and then at a bakery shop at Belmore. The complainants' mother could not recall exactly when Aunt Donna worked.
The complainants' mother gave evidence that Uncle Frank came and lived with them for several days. One night, after she heard Yvette scream, she found him at the door of the girls' room. Following a conversation with Yvette in which she told her that the applicant made her "grab his sexual organ" the mother asked him to leave the following morning without telling her husband. She further stated that, after they moved house again, Uncle Frank used to come with his children every Saturday. On one occasion she observed him playing with himself in front of the girls. On another occasion she heard him say "[Victoria] my penis in your cunt". She did not, on either occasion, say anything to Uncle Frank directly or inform her husband.
The complainants' mother stated that she learnt about Victoria's complaint once she went to America to be with her, after Victoria became ill. She was told by Victoria that the applicant tortured her and hurt her when she was about 4 years old and lived at the premises. Victoria could not tell her the details. Every time she asked her for details Victoria could not tell her because she was on the machine helping her breathe. She stated that when she called her husband to tell him that "his brothers inflicted pain [on] or tortured" on Victoria she only meant the applicant and not Uncle Frank. She also stated that Victoria told her that she had complained to Aunt Donna a long time ago, but that Aunt Donna did not believe her.

[45]

Kathleen Hormazabal

Ms Hormazabal is a friend of Victoria's. She gave evidence that Victoria complained to her in approximately 1984 and 1985 and again in 1992-1993 (before November 1994). Ms Hormazabal used to go out with George Rivera (another Crown witness). After they broke up, she remained friends with him and later he went out with Victoria. She has been close friends with Victoria since they first met. About six months after they met each other, when Victoria was about 14 years of age, Victoria told Ms Hormazabal that her uncles "hurt her".
Victoria complained to her that it was two uncles, one of whom was "redneck" (Uncle Frank) and the other was the applicant. Ms Hormazabal knew the applicant at that time. Victoria said that the applicant was "sick". She told Ms Hormazabal to be very careful of the applicant. She then made Ms Hormazabal promise never to tell a living soul. She also said that he had not only done things to her but also to her sister Yvette. The evidence of Ms Hormazabal on this subject was as follows: "Q. Do you recall what words she used in relation to talking about [the applicant]? A. She told me that 'he's sick' like that and to be really careful of him. Q. When she said that did you say anything to her? A. Yep, I just told her that I'd never tell anyone and I was really sorry and I was a bit freaked out to be honest with you, and she sort of got panicky, didn't want me to tell a living soul, and that was the promise I swore and the promise I kept. Q. You made her a promise, why did you do that? A. Because I promised her I would never tell anyone. It was her secret. It was something she hid from all her life. Q. Is that something you discussed with her? A. It was in the sense that I knew what it was, so if she was going there she would call me and I would go there. Q. Sorry, in relation to you keeping her secret was that something that was discussed? A. Yes, it was. Q. What was said? A. She asked me, she begged me, to never tell a living soul and because she'd also mentioned her sister in that convo she begged me not to tell anyone and I promised I wouldn't. Q. You mentioned a sister there, how did that come about? A. Well, she said it wasn't just her that he was sick with, it was [Yvette] as well. Q. Who was she referring to when she said 'he'? A. That's [the applicant]."
About four months after Ms Hormazabal first spoke to Victoria about this she also spoke to Yvette and found out what happened to Yvette. She explained: "Q. What did you say to [Yvette]? A. I just told [Yvette], because I felt bad that I knew something so deep about [Yvette] and [Yvette] not knowing. Q. Listen to my question please, do you recall what words you said to [Yvette]? A. Yep. I just told [Yvette] I knew what had happened to her by her uncles. Q. Did she say anything? A. She hugged me. She was a bit shocked that I knew. I got emotional. Q. Do you recall if she said anything? A. I just ‑ I just remember clearly when I told [Yvette] she got shocked and really nervous, biting her nails. She didn't say much. In fact she farted afterwards and had a bit of a giggle, she turned the convo right around, but I promised not to tell anyone. She could trust me."
She spoke to Yvette about the topic again years later. They did not really talk about it. Ms Hormazabal said that Yvette knew that she knew and that's where it was left.
She remembered having another conversation with Victoria before her marriage on 5 November 1994. She questioned Victoria about whether she was sexually assaulted from the age of two. Victoria clarified that "he didn't fuck me at two" and instead indicated with her hand that she was "this high". During this conversation Victoria became distraught and Ms Hormazabal apologised for bringing the topic up: "Q. When [Victoria] said these things did you do anything? A. I actually stopped the conversation after we ‑ and I apologised for bringing it up. She ‑ you could see the distraught [sic] in her face with the conversation and I would never do anything to hurt [Victoria]. I always protected [Victoria]. Q. Do you recall what words you said to her? A. I just remember saying, 'I'm really sorry for bringing it up. Let it go. It's all okay.' And I just hugged her, as I always did. She also had her hands on my hands, like, it was just ‑ God bless her."

[46]

Aunt Ibrahim

Aunt Ibrahim is the older sister of the complainants' mother and thus the complainants' maternal aunt. She gave evidence of some early complaint in 1987 to 1990 and then further details being provided post-2011. Her evidence can be summarised as follows.
Aunt Ibrahim was still residing in Syria when the complainants and their mother came to visit in 1981 and then again in 1990. She migrated to Australia for a year in 1985 and then returned to Syria after six months. She had a good relationship with the complainants.
When she came back to Australia for a second time in 1986, she stayed with the complainants' family. The children were attending school at this time. She observed that Yvette and Victoria did not like to be present with the applicant and would go and sit somewhere else. She did not ask them why. As for the specific terms of the complaint about the applicant, in 1987 both complainants said to her words to the effect of "he used to hurt us or disturb us" or "he used to touch us here and there". Victoria spoke more than Yvette.
She also observed that the complainants were uncomfortable around Uncle Frank and they would not stay if he was present. They told her "we don't want to see him". She noticed this behaviour in the 1987 trip which was her third trip to Australia.
Aunt Ibrahim gave the following evidence as to why she did not tell anyone about this at the time (her evidence was given through an interpreter): "Q. When you were told these things by the girls in 1987 did you speak with anyone else about what they had told you? A. INTERPRETER: No. Q. Is there any reason why you did not say anything to someone else? A. INTERPRETER: First of all, it's fear. Secondly, they told me not to speak out, 'not to say anything to my father or to my mother'. A. INTERPRETER: I was scared that her parents would know about this. A. INTERPRETER: And, secondly, they requested that I don't speak out. Q. Did any of the girls give you a reason why you should not say anything? A. INTERPRETER: They were scared that their father would have a fight with his brothers and each would kill, they would kill each other if they would know. Q. Did they talk about why they were scared about that? A. INTERPRETER: That's the reason. Q. And who told you that? A. WITNESS: [Victoria]. Q. At some later time did you talk to [Yvette] about this type of thing again? A. INTERPRETER: [Yvette] once was at the park and she returned home and she was crying and I said to her, 'Why are you crying?', and she said, 'Didn't [Yvette] tell you about it?' I responded, I responded, 'She did tell me', and then she replied to me by saying, 'That's it. Don't speak to me about it.' Q. Are you talking about a conversation with [Yvette]? A. INTERPRETER: Yes. Q. Did you say, 'Didn't [Yvette] tell you about it?' Is that what you said? A. INTERPRETER: She told me, '[Victoria], didn't she tell you about it?' Q. And did you respond? A. WITNESS: Yes. Q. What did you say? A. INTERPRETER: Nothing, because she was, you know, very upset and I didn't like to talk to her about it."
Aunt Ibrahim was a childhood friend of the applicant's wife Aunt Donna and used to visit her after she emigrated to Australia. She recalls that on one of these visits the applicant would ask why the complainants did not visit him. She thought this conversation took place in 1996 when Victoria was in America.
In 2013, she became aware of more specific complaints. She was aware that Victoria had lost her virginity and that the applicant used to inflict pain on Victoria. She told her that he used to get her into the bathroom, put her head in water and "make love to her" from behind and sometimes on a bed.
In cross-examination Aunt Ibrahim accepted that she never tried to stop the complainants going to the applicant's home and was aware that they went there for sleepovers. She also accepted that she had never told her sister to stop the children going to the applicant's home. She explained that this was because her sister did not know about it.

[48]

Victoria's husband David

David is Victoria's husband. They first met in the 1990s. She complained to him shortly thereafter, within the first couple of weeks of meeting each other and certainly within the first six weeks. There was continual complaint by Victoria to him from 1996 until 2013 but the full details did not emerge until 2013.
The first thing Victoria said to him after they met was "I was sexually abused by my uncles". She named the uncles as being the applicant and Uncle Frank. It was not a brief conversation. She provided specific detail, but he cannot remember it all. She said she was a child and it had occurred for many years. She told him that it came to a point where she ran away from home. She told him in the first conversation that started when she was elementary school age. She was sitting on his lap and he would touch her and put his hand up her skirt.
She also told him that Uncle Frank took them to Kings Cross once and watched pornographic videos. He recalled that she spoke about the applicant and Uncle Frank in different ways. He understood that the family still had a current relationship with the applicant which they did not have with Uncle Frank. She repeatedly raised the topic over the years. He recalls that it became clear to him over the years that she had lost her virginity to one of her uncles. She also said that she was physically disciplined by Aunt Donna.
He met the applicant at family events. He never met Uncle Frank. Although he initially spoke to the applicant at these events, he reached a stage when he could not do it any longer. He explained it this way in his evidence: "A. There was a time where ‑ there was a point in time at which I did not want to associate with [the applicant] or [Aunt Donna]. Q. Why is that? A. Because of the abuse that I understood had taken place. However, it was not ‑ the family had not been made aware of it. It had not been made public within her family at that time and I simply told [Victoria] that ‑ this was her secret to keep and not mine to disclose or make an issue of. I simply could not continue to associate and socialise with them, however, so my approach was simply that I am going to avoid them and I, sort of, set off on that path at that time and my plan as to leave if they were going to be there and not go if they were going to be there. How that got to be presented to them, was not really planned or thought out. Q. You talked about an approach and avoiding them. Are you talking about the individuals, [the applicant] and [Aunt Donna]? A. [The applicant]. Q. This approach, is that something you have always had? A. No, early on, in my relationship with [Victoria], as I said, I had been at their home and the family functions that I can think of mostly would consistent of them coming over to [Victoria's] parents' home when we would be here visiting them, possibly having dinner with them. Q. Do you recall when it was that your approach changed or you took this approach that you have just talked about? A. I don't recall exactly when it was now, but I do know I had thought it throughout with regard to my statement. I would say it would be probably 2003‑ish, something like that. Q. Is there any particular reason why you had this change in approach, or took this approach in around 2003? A. I don't know. You know, this was something that [Victoria] and I lived with on a very regular basis, what had happened to her, and the behaviour and trauma and what I believed were the symptoms of it to be, and it grew on me and I simply could not live that, as though nothing was wrong. I did not want to associate with them."
David came to Australia with Victoria again in 2012. After he returned home to the United States, Victoria telephoned him in some distress and told him Uncle Frank had shown up unexpectedly and she found that difficult. After she returned to Florida, she had a nervous breakdown and became very unwell. She saw several doctors. He contacted her mother to come over and look after her. At this time Victoria provided all the details of the abuse and he then understood that what the applicant had done was more serious than what Uncle Frank had done. Victoria said that she had explained to him in this way so that she could still see the applicant and his family as they were very much a part of her family's life, whereas Uncle Frank was not.

[50]

Prokopis Archie Hambessis

Mr Hambessis met Yvette in 1986 when she was in Year 11. The following year she complained to him that her Uncle Frank was an "abhorrent individual". She spoke of inappropriate touching in 1988 (Year 12) and 1989 but mainly about Uncle Frank.
In about 1990, Yvette complained to her about the applicant in these terms: "Q. …... Do you recall when [Yvette] first raised [the applicant] in relation to these things? A. In my mind, the way I look back, it probably would have been may be two years after I knew about [Uncle Frank] and, basically, the way I remember it is when I found out about [the applicant] I took it as if it was not as bad as [Uncle Frank]. She said something like to effect, 'I need to tell you something. It was [the applicant] as well,' and it was hard for her because I think I had known [the applicant] at that point. Q. First of all, what did she say? [The applicant], anything else from [the applicant]? A. Yeah. I go, what do you mean. It started off, you know if you were to, I don't know if you can interpret any of that sort of conversation as benign, but it was, relatively speaking, to what [Uncle Frank] did. But over time, over the next, say, two or three years, up until the point where we got married more and more detail would come out to the point where I realised it was just as bad. Q. How did you come to that; what did she say to you? A. Well, is it started off with, it was always little bits at a time, because I knew, she knew that I knew and she didn't want me to react. All that sort of stuff. She wanted, my perception how I received that information was that she wanted to give me lit bits at a time so I didn't overreact. The first one was; '[the applicant]'s no angle [sic] either', to '[the applicant] did it as well', to, she would say things to the effect of 'we were home alone and we were in the room and he'd come into the room with us and stuff.' Q. When you say 'he would'? A. [The applicant], sorry. So as the years went on I started is to get a little bit more information. It was hard for me because I actually liked [the applicant] at the time. He's always respected me. It was a little bit hard. I think from memory he was, back then, open to the idea that [Yvette] and I could have a relationship. I don't know the exact details but somehow there was a kinship between us, kind of, you know, got on with [the applicant], he was an okay guy. And to hear that, that was really hard to accept. It was really hard to ‑it was confusing, you know. And because I'd spent, from memory now, I think about it I spent some time in that house and I kind of, yeah, it was hard, yeah. Q. Come back to the conversation between you and [Yvette]. You had a certain perception. I was asking what she said. Did she provide you with any detail about events between herself and [the applicant]? A. I think, eventually there was, but I kind of, from my perspective I didn't want to bring something up that I knew she was really uncomfortable with. Q. How do you know he was uncomfortable about it? A. Okay. I did ask her exactly what happened, and she would say, I think I didn't even want to know the detail because‑‑ Q. ‑‑at times you have asked her for more detail; is that right? A. I did. I did ask her. I said, well, at one point I did ask, this was years later. I said 'was there any penetration' and she said no and I thought, okay. Because up until now, I don't know the detail as to what happened. I know she did say one thing. The one thing that she did say, and I do remember verbatim she said 'he made us touch his thing.' Q. Who was that she was talking about? A. That was [the applicant]. Q. When you asked her about penetration, who were you asking about there? A. Both. Both [Uncle Frank] and [the applicant] sorry. Q. Did [Yvette] give you a timeframe for these events with either [the applicant] or [Uncle Frank]? A. Yes. I said 'when did is this happen? How old were you?' I said, 'how young were you?' I don't know whether she was referring to [Victoria] or herself, but she said the age is between six and eight or 10. I can't recall the exact number. Q. Not sure whether she was talking about [Victoria]. Did she tell you some things about [Victoria], did she? A. Yeah. She did, yes. Q. Along the lines of [Victoria] being touched as well, something like that? A. Yeah. I think the knowledge of [Victoria] came very early in the conversation around that topic. It wasn't as though [Yvette] said 'I was abused', and didn't mention [Victoria]. I think it would have been the moment she said 'something happened to me' and, you know, 'they would touch us and all this sort of stuff', but she mentioned pretty much from the beginning, so. Q. You were married in 1994 to [Yvette]; is that right? A. No. We were meant to marry that year, but [Victoria] was in a car accident. We had to postpone the wedding until March 1995."
Mr Hambessis knew the applicant and liked him before Yvette disclosed the abuse to him. He found it hard to see the applicant after the disclosure by Yvette. He described it this way: "Q. I think you said something about your contradictory feelings about seeing [the applicant]; was that something that you discussed with [Yvette] at the time? A. Yeah. She knew I was, you know, part of your mind says what do you do about that? In the end, you cannot think what goes around comes around. At the same time, I didn't think, I didn't know the extent of what of what he did to her. Over the years I got more information and I just found out it was more than just acting lewd in front of a child, or inappropriate touching or something like that. You get a bit more information over the years. It's like, in your mind at the time you're just like, well, he's a sleazy uncle exposing himself. That is the information that had been given up until that time, but after we got married and over the years I found out, trips overseas, we'd talk more about it. The detail started coming out. Q. I will come to that. You got married to [Yvette] on 5 March 1995; that's right? A. That's right. Q. You married at the at Greek Orthodox Church in Redfern? A. Yep. Q. [The applicant] and [Uncle Frank], were they both there? A. They were. Q. Is that right? A. Yes, that's right. Q. Their attendance at the wedding, was that something you discussed with [Yvette]? A. Yeah, we did. One of the things we just had to, a bitter pill to swallow. Q. Did you say anything to [Yvette] about their attendance? A. Yeah. It was more a matter of why the hell do these guys have to be at this wedding? This is a special day for us and somehow we just have, for the sake of keeping the peace. Q. You say 'sake of keeping the peace', what do you mean by that? A. Well, it's the idea of, if you object or have an issue with it, then people start asking questions. For me, it's not my place to start that war. I am the sort of person, I'm absolute. You're either working with me or I have to obliterate you. It's hard for someone like me. I don't go in‑between and bark at people. I never argue with people. Q. Did [Yvette] want them to attend? A. None of us did, but we had to. It is more an issue of, that you're going to open up a can of worms if you don't invite them. It is obvious we had to, yeah."

[53]

SD ("Simon")

Simon is the current husband of Yvette. They met around Mother's Day in 2009. A few months after they met Yvette spoke to him about what had happened to her when she was a child. He recalls that they were in the car and she became quiet. He then asked her what was wrong. His evidence continued as follows: "A. She started speaking, it was just a lot of information, and then she went quiet, and I tried to talk to her and just nothing. Q. You spoke very quickly a moment ago. I think you said something, she said something about [Uncle Frank] and [the applicant]? A. She did, yes. Q. I think I heard the word 'paedophiles'? A. Yes. Q. You spoke very quickly, I didn't get it all. What did she say about that? A. She said that her and [Victoria] when they were young they lived together at different locations and that both [the applicant] and [Uncle Frank] were paedophiles. Q. Did she tell you anything about herself? A. Yes, she did. Q. What did she say? A. She said there was an occasion that she had ‑ that either [Uncle Frank] or [the applicant], I can't remember which one it was, had ejaculated on her when they were young, when she was young. Q. Did you ask her anything about this? A. I did. Q. What did you say? A. I think at first I was in shock I didn't know what to say and then I tried to ask and then she went quiet about it. I can't remember what else. That she was sitting on a brick fence or something. Q. This conversation you are talking about, did that happen in the car? A. No, some of it happened in the car, yes. Q. What was said to you in the car? A. In the car, that both [the applicant] and [Uncle Frank], that they lived different locations with the families and that her uncles, both [the applicant] and [Uncle Frank], were paedophiles. Q. Did she tell you why she called them paedophiles? A. I think she said that they molested them. Q. Molested? A. [Yvette] and [Victoria]."
Simon explained that after hearing this he did not want to be around the applicant. He discussed this with his wife. He observed Yvette speaking to the applicant and hugging and kissing him. He would shake hands with the applicant at these functions. He explained this as follows: "Q. Did you ever discuss that with [Yvette]? A. I did. Q. What did you say? A. I wondered why she would do this and her response would be to keep the relationship within the family, especially with [Olivia] and [Richard] and [Ethan], which is [Olivia]'s brother and sister, and the children. Q. On these family gatherings did you speak to [the applicant] on these occasions? A. Yes. Q. Did you ever come into physical contact with him? A. Yes. Q. Did you ever shake his hand or anything like that upon greeting? A. I did. Q. Is that something you ever discussed with [Yvette]? A. Yes. Q. What did you say about that? A. That I didn't want to shake this man's hand, I didn't want to be around him. Q. Did [Yvette] respond when you said that? A. She did. Q. What did she say? A. She wanted, again, to keep the relationship with the family. Q. Apart from greeting [the applicant] and shaking his hand at these gatherings, did you have any other contact with him? A. No, not often."
Simon was present at an occasion when Uncle Frank unexpectedly visited when Yvette was in Australia from America. He described the change in Victoria's personality as dramatic and that his wife was moving "around 1 million miles an hour" and "couldn't do anything that was simple".

[55]

Evidence of Dr Pulman

Dr Pulman gave expert evidence on the dynamics of child sexual abuse.
In relation to the reasons why a child may not "cry out or tell a perpetrator to stop", Ms Pulman said: "Children are often too young to understand what is happening… perpetrators… will engage in a process that we call grooming… They may have quite a close relationship with a child and they will use a process of affection; the child gets to feel quite important; so it can be a special relationship. They might have a special time together. A perpetrator might buy gifts or tell them they are special. They might cuddle them, play games, tickle them... all sorts of behaviour that we call grooming."
Dr Pulman said that the goal of the grooming process is to "desensitise the child to the process which will eventually become a sexual contact". Dr Pulman said that because of the grooming process, many children do not understand at the time that the sexual contact is abuse, and that younger children are more likely to be unaware of this.
In relation to reasons why a child may delay reporting, Dr Pulman gave the following evidence: "As a general rule the research will indicate that children delay disclosure… it can be 20, 25 years before they tell anyone. There can be a number of reasons for the delay. One of them can be that emotional attachment, or dependence, that they might have on that person, who happens maybe to be a relative… They don't want to hurt that person or upset the family."
Dr Pulman said that the research is unable to say whether or not certain types of disclosure patterns are either consistent with child sexual abuse or fabrication. Dr Pulman also said that fear, shame and embarrassment may inhibit disclosure, as well as cultural attitudes such as "wanting to be seen as respectful for the family values".
In cross-examination, Dr Pulman said that she had never met or spoken to any of the complainants or their family and was unable to comment on whether or not the complainants were telling the truth.

[59]

The Defence Case

The applicant gave evidence. His evidence can be summarised as follows.
The applicant said that his family and the complainants' family moved into the premises in June or July 1976. He said that when they first moved in, there was only a shed in the backyard, not big enough to drive a car into. He said there was no garage on the property when they moved in, and that this was the case until 1984 or 1985 when he built the garage.
The applicant said that he worked while the two families lived at the premises. He said that the complainants' mother worked. He could not recall whether the complainants' father worked. He said that his wife did not work during this period, and that his wife looked after the complainants when their mother was working. In cross-examination, he confirmed that his wife would look after the complainants and accepted that he also took care of them sometimes. He agreed that there were times when he would be at home with his wife during the week, when he did not have anything on.
In relation to his work history while the two families lived at the premises, the applicant said that he started working at a garage in Campsie in 1976, and worked there for nearly two years, working 8-hour days from 8:30am. He said that he then worked at Liverpool Wrecking Yard from 1987, which he then corrected to 1978. He said he worked 8-hour days from 8:30 each day and worked there for about four months before starting a job in Peakhurst as a mechanic. In Peakhurst, he worked 8-hour days from 8:30 for about eight months. He said that between the jobs in Liverpool and Peakhurst he had a couple of days off. After leaving Peakhurst, he started working at British Paints in 1979, and then stopped working in 1980 for two years due to a back injury. In cross-examination he accepted that it was possible he had more than a couple of days off in between jobs during this period but said that he did not remember. He said that he worked the night shift at British Paints in mid-1980.
In relation to his wife's work history, he confirmed that she did not work while the two families lived at the premises. He said that she started working at the bakery after the complainants' family left the premises. He recalled that she worked at a factory with the complainants' mother. He did not know whether she volunteered at the Salvation Army.
The applicant recalled that the complainants' family left the premises in 1979. He said that Yvette and Victoria would sometimes visit his house after this but denied ever being the only one at home caring for the children. He said that he remembered they would come for sleepovers sometimes but that he was working during the night.
Regarding the allegations, the applicant denied ever touching the complainants inappropriately, or ever having sexual contact with them. He said that he treated his brother's children as his own, that he played with them, but denied ever being alone with the complainants in the bedroom or bathroom. He denied ever watching pornographic videos or magazines or ever showing them to the children.
In cross-examination, the applicant denied ever telling Victoria that she was cute or pretty, or ever speaking to the children about what they were wearing. He said that the complainants never sat on his lap, even for anything innocent. He said the extent of conversation while the two families lived together was "hello uncle, how are you, how's your health". He denied ever telling Victoria that her father would believe him as they were brothers. He agreed that he loved Yvette like one of his own children but denied telling her that he loved her while they lived together. The applicant denied undertaking acts that became more sexual over time, or making the girls think what he was doing was normal and fun.
The applicant said that after the complainants' family left the premises, the children would still come for visits, and that he would see them after work and on the weekends. He agreed that his brother's children would come over to his place while their parents were working at the takeaway shop and agreed that he was sometimes home when this happened. He maintained that he only saw the complainants once, twice, or three times after their family left the premises. He disagreed with the proposition that Victoria came for sleepovers almost every weekend or a couple of times a month.

[60]

Aunt Donna

The applicant's wife Donna gave evidence that the two families moved into the premises at the end of 1976. She said that they bought the house together and never rented it. Her evidence was that there was no garage at the premises when they first moved in but there was a small shed. She said that no one could go in the shed as it was partly broken and infested with rats.
Aunt Donna's evidence was that during the time the two families lived at the premises, the applicant was working, the complainants' father was not working (due to injury), the complainants' mother was working, and she was not working. She started working at the clothing factory with the complainants' mother in late 1979 after the complainants' family moved out of the premises. She started working in 1979 after Richard started pre-school, and that this was after the complainants' family moved out of the premises. She also worked at the bakery sometimes, starting in 1988 or 1989. While the two families were living together, when the children got home "we" looked after them. She did not say who "we" were.
Her evidence was that she never noticed any bad behaviour by the applicant towards the complainants while they were living at the premises. Nor did she ever see the applicant alone with his nieces in the bedroom or bathroom. She agreed that she would sometimes hit the kids if they were misbehaving and she recalled hitting Victoria a couple of times.
Aunt Donna denied being told about the allegations by Victoria when she was 16 or 18 years old. Her evidence was that she first heard about the allegations in 2013. Her evidence was that the complainants did not come to visit when their father was on bad terms with the applicant. They started coming over again when the brothers reconciled. She said that her nieces visited the house alone when they were grown up and working. She recalled Victoria sleeping over at their house a couple of times but could not recall whether Yvette did.
Aunt Donna recalled that on one occasion after 2013 she had a conversation with Yvette in which Yvette talked about Uncle Frank. She said that she asked Yvette whether the applicant or Mark had done anything and Yvette said "no way, my uncle was a second dad to me". She said that Yvette's husband was in the kitchen at this point. She recalled a calendar with a picture of a girl in a swimsuit on it. She said it was given to her in 1988 or 1989 by the owner of the bakery she worked in at the time. She said they did not want to put it in the house, so they put it in the garage and the photos were covered as soon as it was hung.
In cross-examination, Aunt Donna agreed that the applicant did sometimes work on cars in the backyard of the premises while the two families were living together. Sometimes this happened over the weekend, but the applicant was working during the week most of the time. She agreed that he would have a bit of a break between jobs. Sometimes she took Yvette or Victoria to the Salvation Army shop with her on a Saturday. She agreed that she sometimes watched "The Bold and the Beautiful". She did not accept that she worked before 1979.
Aunt Donna denied ever seeing Yvette hiding under the bed covers with the applicant on one occasion. She also disagreed that Victoria was never dropped off by herself at the premises when she was aged 16-18. Her evidence was that Victoria only came over for sleepovers with Olivia when she was over 20 years old.

[61]

Olivia

The applicant's daughter Olivia gave evidence that while the two families lived together at the premises her father worked as a mechanic and worked at a garage. She said that the complainants' mother worked at a factory up the road. She could not recall whether the complainants' father worked at that time. She recalled that the applicant was not home a lot to spend time with them and that he was not the most affectionate person, although he would play with them when he had time.
Olivia's evidence was that there was no garage at the premises when she was young but that one was built when she was a teenager. She could not recall a shed in the backyard. She denied ever seeing the applicant watch pornography in the house or in front of the children. She denied engaging in any sexual act with Victoria when they were children. She denied that Victoria ever licked her vagina or that she ever licked Victoria's vagina. She never saw or heard the applicant say anything to her about anything to do with Victoria and sexual acts.
Olivia said that after the complainants' family left the premises, the complainants would sometimes come over on weekends and they would sometimes visit their cousins on weekends. She said it may not have been every weekend, but they saw her cousins on weekends. She also attended Arabic school with her cousins on the weekends and saw them then.
She said her cousins would sometimes come over for sleepovers when they were children. She recalled that Victoria visited more often, and they were a bit closer. Olivia said Victoria would sleep in her bedroom and her mother would sleep either with the applicant or on the couch. She denied that the applicant ever knocked on the door when Victoria slept over.
Olivia said that Victoria never told her about the allegations in the 1990s and that she was first told by Victoria in 2013. She recalled a conversation between Yvette, Yvette's husband, and her mother, Donna, in which Donna asked if the applicant or Mark had ever done anything to her and Yvette said "no way, never, they're like a father to me".

[63]

Crown

In the Crown closing address, the evidence of the complainants regarding the garage counts was referred to in this way: "Again this issue is a matter for you and although it may not be an essential element of the particular counts that these offences took place in a garage. It's pretty clear from the evidence of [Victoria] and [Yvette] that they say particular things happened in a garage and of course you are not bound to adopt each and every piece of evidence of any witness. That includes the two complainants. It is a matter for you what you make of that evidence. Does it go to the credit of the witness? Was it a mistake? Matter for you. Were they confused? A matter for you. Bear in mind that these two complainants have returned to the premises subsequent to them moving out. So as a part of your findings you need to determine well have they got it wrong? Is it contrary to other evidence or are they right? You can consider whether they were mistaken or whether they've lied. That may make a difference to you how you look at other counts. If you think that the evidence is of such importance that it goes to the core of the credit of the complainants on this issue then you may acquit the accused on these counts as they're alleged to have occurred at a garage. Or is it a case that they're merely mistaken or are they right?"
In relation to the counts that were said to have occurred at the premises before the families in fact lived there, the Crown said the following: "… in relation to those first four counts and it being the date and the evidence of the complainants going back to 1974. Of course what I say to you is that if you come to the view that those dates have problems and the Crown can't prove that date beyond reasonable doubt if you come to that view what I want you to consider is what you then do with the evidence of the two complainants about that. What I'd say to you is those two ladies now one about 48, and one 50, are doing their best to remember a date decades ago that if you don't believe beyond reasonable doubt that those things happened in the time frame as needs to be proved beyond reasonable doubt in counts 1 to 4, if you don't find that you wouldn't find that they've lied about it, or they're discredited, because I'd ask you to consider are they doing their best from their memory to pick out a date to the best of their memory, bearing in mind they're young children at the time, they didn't have the benefit of the property records, they didn't buy a house, they're going back a long time ago. You might think they're not far out. … So I'd ask you to bear that in mind when you're assessing their credit and looking at counts 1 to 4 and what you'd do with that if you do something with that, what you make of their evidence."

[64]

Defence address

A significant proportion of the closing address on behalf of the applicant at trial focussed on the fact that the garage was not in existence at the time that several of the offences were alleged to have occurred. In that regard, the following was put to the jury by counsel: "They could not have occurred because the garage didn't exist. If that's the case, you might think that there is an irritable [sic irresistible] argument that the complainants have lied about the garage and lied about the garage allegations. Then if they've lied about the garage allegations what else have they lied to us about? If they've lied about the garage what do we make of the fact that both complainants have lied about the same thing. Have they spoken to each other about this before giving their evidence?"
Reliance was placed on other discrepancies in the evidence such as: when the families moved into the premises; when the complainants' family moved out of those premises; the applicant's working history; the complainants' father's working history, the complainants' mother's working history; Aunt Donna's working history and how the complainants travelled to and from school.
It was suggested that the explanation for the delay in the complaint to the complainants' mother was implausible given that they had both been able to complain about Uncle Frank.
The defence case was that once it was accepted that the juvenile counts and the garage counts could not stand then the Crown case fell like a "pack of cards" or "dominos". The closing address concluded with defence counsel raising these questions for the jury's consideration: 1. How could it be that none of the other family members noticed anything untoward despite the Crown case being that this was occurring very regularly over the space of 15 years? 2. Why did the complainants wait so long to tell their parents? 3. Why did Victoria and Yvette complain to their mother about Uncle Frank in the early 1980s and not about the applicant until much more recently? 4. Why does Victoria say that late into her teens she kept coming to sleep over at the applicant's house despite saying that she was sexually abused on most weekends she slept there? How does it make sense that she kept on going back? 5. How could it be that these complainants are saying they were sexually abused in a garage that the evidence suggests didn't exist? 6. Why have they both changed their versions about Aunt Donna's working story? 7. Why are there so many inconsistencies between the evidence of the complainants and their father? 8. How does it make sense that a three year old could do the dishes?
It was put to the jury that the answer to these questions is that the complainants were lying and the applicant is innocent of all charges.

[66]

Applicant's submissions: the 22 verdicts of guilty are unreasonable

The applicant's claim that the verdicts are unreasonable is twofold.
The primary claim is that the verdicts are factually inconsistent and unreasonable on that basis. The secondary claim is that the verdicts are all otherwise unreasonable.
It was submitted that the difficulties with the complainants' evidence in support of the four garage counts were so significant that the jury ought to have concluded that they were lying and acquitted the applicant on all counts. In that sense it was submitted that the verdicts are all unreasonable because they do not logically and reasonably sit with the acquittals on the nine counts. If that argument was unsuccessful, then the alternate argument is that they are unreasonable in that they cannot be supported by the evidence in any event.
As to the primary argument, in both written and oral submissions emphasis was placed on the domino effect argument that was put to the jury at trial. It was submitted that the complainants' evidence about the garage was so "precise and so clear" that there was no room for mistake. It was submitted that they could not have innocently got the garage counts wrong thus they must have been lying.
It was noted that the trial judge prevented the Crown Prosecutor from suggesting to the jury that they could have been talking about another shed that was in the backyard at that time. Thus, the Crown Prosecutor at trial did not suggest to the jury that the complainants were confused as between the shed and the garage.
It was submitted in this Court that the jury's attention had been drawn to the following difficulties with the complainants' allegations concerning the garage counts in the defence closing address: 1. Both complainants described the garage as being in the back left-hand corner of the block; 2. Both complainants drew a diagram of the garage not the shed; 3. Victoria described going into the garage when she was six years old and the applicant was working on cars. She described the garage in detail. It was submitted that her evidence was "crystal clear" in this regard; 4. Similarly, in relation to the evidence of Yvette, her evidence was that there was only one garage, it was a roller door garage and that the applicant was working on his car when she was called in on the occasion of one of the allegations; and 5. Both complainants gave vivid accounts of what they say happened to them in the garage, that was relied upon. This included what they were wearing, what the applicant was wearing as well as the circumstances of the alleged sexual act.
In addition to the alleged inconsistency in the jury verdicts, the applicant relied on shortcomings in the complainants' evidence to contend that all the verdicts were unreasonable. It was submitted that the detail in which the complainants describe the alleged abuse in relation to the counts upon which the applicant was convicted was meaningless when the evidence relating to the garage counts demonstrates that they both were capable of "detailed and vivid lies".
It was argued before the jury that if the complainants were capable of such vivid detailed lies, they were also capable of detailed lies in relation to all the complaint witnesses that they spoke to over the years. By that process of reasoning, it was argued that no amount of complaint evidence could overcome the problems caused to the prosecution case by the complainants' lies regarding the garage.
In oral submissions in this Court, senior counsel for the applicant placed reliance upon the structure of the closing address and the repetition by the trial judge of the "domino effect" argument not only in relation to the garage but also the evidence about what hours and when Aunt Donna worked. The nub of the oral submissions was that it was illogical that the jury could acquit on, inter alia, the garage counts and then not extend the doubt to the remaining counts.
As for the remaining credit issues, the applicant argued that the prosecution case could not reach the requisite standard of proof in light of the want of credibility of the complainants in relation to the following aspects of the evidence: when the families of the complainants and the applicant moved into the premises; when the family of the complainants moved out of the premises; the applicant's working history; the complainants' father's working history; the complainants' mother's working history; how the complainants travelled to and from school; and Aunt Donna's working history.
The applicant placed weight on the evidence of what hours Aunt Donna worked at the time that the complainants lived at the premises. It was submitted that the complainants lied about this issue to create the impression that the applicant had the opportunity to sexually assault them in the manner alleged. It was further submitted that both complainants changed their evidence about Aunt Donna's working history in the same way. Yvette gave evidence before the jury that Aunt Donna worked while they all lived together at the premises. There was nothing in her police statement on this topic, but she gave evidence at the aborted September 2018 trial that Aunt Donna did not work while they lived at the premises. Victoria gave evidence that Aunt Donna worked at a bakery early in the morning up until 8am and sometimes at the Salvation Army shop and at other times at a clothing factory with their mother. This differed to her police statement. The complainants' mother gave evidence that she did tell police that Aunt Donna worked.
The applicant relied upon the inconsistencies in this evidence as indicating collusion or fabrication by the complainants and their mother in an attempt to increase the window of opportunity in which the offences could have occurred.
The applicant also submitted that the complainants gave inaccurate evidence as to their father's work history. The complainants gave evidence that their father was "always working and not around very much" while the two families lived at the premises. At trial, their father gave evidence that he was not working for approximately two and a half of the three years in which his family lived at the premises. The applicant submitted that this inconsistency indicates collusion and an attempt to increase the opportunity for the offences to occur.
Another credibility issue was said to arise from Victoria's evidence that she took an overdose of Panadol and was admitted to Canterbury Hospital because of abuse suffered at the hands of the applicant. It was submitted that this raised a credibility issue because although Victoria recalled the suicide attempt to be in 1986, the medical records are dated 8 February 1989 (Exhibit A8). The hospital notes refer to a domestic argument and make no mention of any sexual abuse.
It was submitted that Victoria's evidence that she recalled the incitement counts because Olivia was in the kitchen washing the dishes at the time was so implausible, given that Olivia was only three years old at the time, as to diminish Victoria's credibility.
A significant attack was made in relation to both victims as to why they delayed in complaint to their parents. The applicant relied upon the fact that both complainants were able to complain to their mother about Uncle Frank. The question was posed: why were they not able to complain about the applicant as well? It was submitted that the answer was because the allegations about the applicant are fabricated.

[68]

Consideration

Section s 6(1) of the Criminal Appeal Act 1912 (NSW) relevantly provides that this Court shall allow an appeal against conviction if it is of the opinion that the verdict should be set aside on the ground that it is "unreasonable, or cannot be supported, having regard to the evidence". The applicant's contention is that this Court should set all convictions aside on this basis.
The relevant principles for an appellate court to apply when considering whether a verdict is "unreasonable" in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way: (at 493) "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (footnotes omitted) [emphasis added]
The relevant principles applicable when the claim of unreasonableness is based on alleged inconsistency in the verdicts is as stated by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 366-367; [1996] HCA 35 as follows: (footnotes omitted) "Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test: 'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.' Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries."
In Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 the High Court (per Brennan CJ, Gaudron, McHugh and Gummow JJ) was satisfied that there was a factual inconsistency between the verdicts. In that matter the appellant was charged with three offences of sexual intercourse with a female child. The jury convicted him on two out of the three counts. On the facts in that matter the High Court set aside the convictions on the basis that the credibility issues which explained the acquittal should have also applied to the other two counts upon which the appellant was convicted.
Subsequently in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 ("MFA"), Gleeson CJ, Hayne and Callinan JJ observed the following in relation to the reasons why a jury may arrive at a verdict of acquittal [at 34]: "The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility."
As to the role played by the jury, McHugh, Gummow and Kirby JJ observed this in MFA at [96]: "Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention."
Simpson J (as her Honour then was) considered the application of these principles in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151. In a judgment with which McClellan CJ at CL and Latham J agreed, her Honour considered Jones v The Queen and observed at [97] that in that case there was "no rational explanation" on the examination of the evidence for the different verdicts. Her Honour went on to observe at [128] and [130]: "[128] … … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. … [130] Before … an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. … The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility." [emphasis in original]
The High Court re-stated the applicable test when assessing whether a verdict or verdicts are unreasonable in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In their joint judgment at [13]-[14] French CJ, Gummow and Kiefel JJ stated the following (footnotes omitted): "[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' … [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.'"
The principles were stated again more recently in Pell v The Queen [2020] HCA 12; 94 ALJR 394.
In the present appeal the applicant placed reliance on the decision in Jones v The Queen, but that decision was decided on its facts. It is not authority for the proposition that a doubt the jury has as to the credibility of a complainant on one count inevitably means that such a doubt extends to all the counts on the indictment. This is an important principle and has been repeatedly stated. Payne JA recently summarised some of the decisions addressing this issue in Kim v R [2020] NSWCCA 288 as follows at [31]-[36]: "[31] In AH v R [2019] NSWCCA 152, Simpson AJA explained (at [56]) that it 'seems that too much has been read into the judgment in Jones.' [32] In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, Spigelman CJ undertook an exhaustive review of decisions of this and other appellate courts since Jones, and concluded: '[125] This review of the authorities indicates that a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant's uncorroborated evidence, if they have such a doubt about other incidents whenever, in the latter but not the former case, there is evidence contradictory of, or failing to support, the evidence of the complainant. Any conclusion about this matter depends on the full range of relevant circumstances. …' [33] Wood CJ at CL agreed. After also undertaking a consideration of cases in which Jones had been applied, his Honour said: '[212] So understood, I do not regard Jones as an authority for the presumption previously mentioned. It does not deny to a jury the right to accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness. It leaves unimpaired the traditional instruction given to juries that they are not obliged to wholly accept or to wholly reject what a witness says, but are free to accept part and to reject part of his or her account - an instruction accepted as perfectly appropriate, if not one that should be given, in KBT v The Queen (1997) 191 CLR 417 at 424, and in KRM v The Queen (2001) 75 ALJR 550 at 558 [36] …' [34] Also relevant to this ground is the judgment of McHugh J in KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 where his Honour explained: '[36] It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it …. The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside [cf Jones v The Queen (1997) 191 CLR 439].' [35] Any assumption that acquittals on some counts and convictions on others necessarily denotes rejection of a complainant's credibility or reliability was rejected in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. In MFA, Gleeson CJ, Hayne and Callinan JJ said at [34], that '[a] verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.' Echoing McHugh J in KRM, their Honours explained that it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count, and will ordinarily be directed that the evidence of each witness may be accepted in whole or in part. [36] I agree with the conclusion of Simpson AJA in AH that: '[62] … differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.'"
With these principles in mind, I turn to consider the applicant's contention that the convictions are unreasonable.

[69]

Inconsistent verdicts?

The jury acquitted the applicant on nine counts. It was common ground that these acquittals fell into two categories.
Counts 1, 2, 3, 4 and 10 (the juvenile counts) were alleged by both complainants to have occurred between 1974 and 1975 at the premises in circumstances where they did not move into the premises until after July 1976. The acquittals on these counts are explicable on this basis.
Counts 13, 17, 18 and 20 were alleged by both complainants to have occurred in a garage at the premises whilst the two families lived there together between 1976 and about 1980. The evidence at trial was that the garage had not been built until after they moved out, most likely in about 1985. The acquittals on these counts are explicable on this basis.
The nub of the applicant's argument is that the doubts the jury had in relation to the counts upon which he was acquitted necessarily should have extended to the remaining counts. The applicant's argument in this Court was put in precisely the same way as it was put to the jury at the trial. I have extracted some of it above at [190]. The "domino" effect argument urged upon the jury was to the effect that the only available inference from the fact that both complainants were wrong about the garage (leading to acquittals on counts 13, 17, 18 and 20) is that they have both colluded with each other to fabricate all of the allegations against the applicant. The difficulty with the "domino effect" argument is that it only applies if collusion and fabrication between the two complainants is the only explanation for them both being wrong about the garage. I am not satisfied that this is the case.
Having regard to all of the evidence at trial, it was open to the jury to be satisfied to the criminal standard that both complainants were the victims of child sexual abuse at the hands of the applicant whilst also accepting that both complainants were mistaken about the timing and circumstances of the nine counts upon which he was acquitted. That conclusion is available having regard to the evidence at trial. That evidence included: the compelling evidence of both complainants about the grooming, escalation and sexual assaults on them, many of which carried the proverbial "ring of truth"; the fact that the evidence of each count and each complainant was cross-admissible as tendency evidence and the jury was directed accordingly; and the compelling nature of the complaint evidence. Both complainants told their boyfriends and husbands about the child sexual abuse shortly after commencing a relationship with each of them. Both complainants also confided in their close girlfriends and a maternal aunt over the years.
The high point of the applicant's argument on inconsistency is that although it is to be accepted that one complainant could be wrong about whether a certain offence took place in a garage, the improbability of two separate complainants being wrong about the same details can only be explained by collusion. On this issue, reliance was placed on the fact that both complainants stated in cross-examination that they had not discussed their evidence with the other. The applicant argued that if the two women had never discussed their evidence it was improbable that they could be both be wrong on the garage counts.
Victoria's evidence was that before she and Yvette went to the police station in 2013, they discussed why they were going there (to see what their rights were) and they both spoke to the police officer together. She stated that they did not talk to one another while they were preparing their statements and that she has never spoken to her sister about the evidence she was to give at the trial. Nor had she read her sister's statement. She gave evidence that when they were young and "going through this stuff" she did talk to her sister about it. Her evidence was that she never went into any detail with Yvette. She had not spoken to Yvette since they decided to proceed because the police asked both of them not to discuss their evidence.
Yvette's evidence was that she had never spoken to her sister about her statement to police, either before or after she signed it. Her evidence was that when they were both young Victoria disclosed to her that it was happening to her too. They never talked about the "details".
Consistent with the evidence of Victoria and Yvette that they had disclosed to each other the sexual assaults by the applicant, nearly all the complaint witnesses describe the respective complainant telling them over the years that the abuse happened to both complainants.
Having regard to the evidence at trial, it would have been open to the jury to be satisfied that the two complainants discussed the sexual assaults at the hands of the applicant when they were very young and in doing so shared some of their memories and experiences, but no details. Given that the abuse was ongoing over many years rather than isolated, it is not surprising that where specific acts took place rather than the circumstances of the acts themselves could become vaguer over the years. The applicant was a mechanic who worked on cars. Both complainants have distinct memories of that fact. One of the complainants may have (mistakenly) come to believe that of the numerous ongoing assaults over the years, some took place in the garage. This could have been mentioned some time to her sister and over time her sister may have come to believe that too. This could well explain why they both made the same mistake in relation to their memories about the garage. This does not necessarily mean that they have both colluded to fabricate all the allegations.
The complainants were not questioned about whether they discussed the allegations with each other as children in the 1970s or 1980s. There are sound forensic reasons why counsel for the applicant would not have done so. Such questioning would have reinforced the unlikeliness of two young children discussing their ongoing sexual abuse as children if in fact it had not occurred. It would also have put into stark relief the complaint evidence and the unlikelihood that the two complainants had been concocting these false allegations together for the last 40 years. It was open to the jury to find that they had discussed the abuse as children and had both separately convinced themselves that some of the events took place in the garage.
Applying the test of logic and reasonableness, I am satisfied that there is no factual inconsistency between the verdicts of acquittal and the verdicts of guilt. I am not satisfied that the only explanation for the acquittals was satisfaction on the part of the jury that the two complainants were lying rather than mistaken.
There will be cases where the only explanation for the acquittals is the credibility of the complainant(s). In Collins v R [2020] NSWCCA 198, this Court recently considered a ground contending that the verdicts in a child sexual assault matter were unreasonable because the only explanation for the acquittals was the credibility of the complainant. Meagher JA, with whom Wilson J and I agreed, examined all of the evidence led at trial and concluded at [87]: "In my view nothing in the facts or circumstances of this case reveals a rational explanation for the applicant's acquittals on counts 3, 4 and 5 other than doubts about the complainant's credibility, which applied equally to the remaining counts. Nor can those acquittals be logically reconciled with the convictions on some basis unrelated to the credibility of the complainant's evidence. Accordingly the guilty verdicts on counts 1, 2 and 6 could not reasonably be supported by that evidence alone."
That is not this case. For the reasons I have provided I am not satisfied that the verdicts are unreasonable based on inconsistency with the acquittals.

[70]

Unreasonable verdicts

I turn then to consider the second basis upon which the applicant contends that the verdicts are unreasonable. I have reviewed the whole of the evidence in order to determine whether I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on all counts upon which he was convicted.
I have already outlined the discrepancies in the evidence relied upon by the applicant, such as: when the families of the complainants and the applicant moved into the premises; when the family of the complainants moved out of the premises; the applicant's working history; the complainants' father's working history; the complainants' mother's working history; how the complainants travelled to and from school; and Aunt Donna's working history.
I am satisfied that these discrepancies concern relatively peripheral matters. Most of them concern the opportunity the applicant had to commit the offences. The applicant's submission was that the complainants (falsely) maximised the time that the applicant was said to be at home and minimised the time that Aunt Donna was said to be home to explain how the applicant had the opportunity to commit the offences. I make three observations in relation to that submission.
First, it is hardly surprising that children who were six and eight years old in 1976 could be wrong about precisely what jobs the four adults in the house might have had from time to time, particularly in circumstances where the parents appeared to be changing jobs reasonably regularly.
Secondly, most of the offences were said to have taken place in a bathroom or bedroom with the door closed. The evidence of the complainants was that the applicant would always check outside before he let each of them leave and it was made clear to them that it was their secret.
Thirdly, it is common for child sexual assaults to occur in a family home with other family members present in the home. In that context a submission that offences could not have occurred because there were other people present on the premises is not necessarily a persuasive one; it will depend on the circumstances of each case.
The applicant also placed significant emphasis on the evidence that the complainants did not tell their parents what the applicant was alleged to be doing to them, yet they were able to tell their mother about Uncle Frank. The question was posed: if they could complain about Uncle Frank when they were children then why, if the applicant had in fact been abusing them as alleged, could they not also complain about the applicant? Again, I make three observations about that submission.
First, the complainants gave evidence of grooming behaviour by the applicant. They liked him. He made them feel special. It was not until they grew older that they realised what he was doing was wrong. Uncle Frank on the other hand was rude, aggressive and they did not have the same emotional connection to him and his abusive behaviour.
Secondly, the abuse at the hands of the applicant took place in the applicant's home whereas the abuse at the hands of Uncle Frank took place in their own home after they moved out of the shared premises. This provided a different context and dynamic.
Thirdly, the evidence is that the complainants' family were very close to the applicant's family whereas they were not close to Uncle Frank. The two families were so close that Victoria would go over to the premises for a sleepover with her cousin even though the applicant was there. As the years went by the family lost contact with Uncle Frank but continued to have close contact with the applicant.
I am satisfied that the complainants' evidence that each of them did not complain so that their parents could still socialise with the applicant and his family is understandable in the context of the family dynamic. The husbands of both complainants gave evidence at trial that they found this particularly difficult but complied with their spouses' wishes to keep it all a secret. The inference is available that the allegations may have remained a secret had not Victoria's nervous breakdown and treatment brought matters to a head in 2012. There was also the evidence of Dr Pulman that child victims may delay the complaint of sexual abuse for many years.
I am unable to accept the applicant's submission that it is "incredible" that Victoria would return to the premises for sleepovers with Olivia if in fact she had been sexually abused by the applicant there. Her evidence was to the effect that the sexual abuse had become normalised in her life by that time. In any event, as this Court has observed, it is not helpful to make any assumptions as to how a victim of sexual assault might behave in given circumstances. As I observed in Xu v R [2019] NSWCCA 178 at [92] in the context of why a male victim of sexual assault returned to the house of his assailant a week later: "I do not consider myself to be in a position to make any generalisations about how any particular alleged victim of a sexual assault, in this case a male, should behave in a particular situation."
A similar caution was raised in Maughan v R [2020] NSWCCA 51 by Ierace J (with whom R A Hulme and Adamson JJ agreed) when his Honour observed at [99]: "Caution must be exercised in gauging the parameters of the likely behaviour of a sexual assault victim vis-à-vis the perpetrator, during and following the assault. Behaviours that may not seem sensible, logical or otherwise plausible to those who have not endured that experience may not necessarily be indicative of implausibility or inconsistency with an allegation of sexual assault: see Rao v R [2019] NSWCCA 290 at [98]."
Adamson J agreed with his Honour in Maughan v R and observed at [13]: "Nor do I consider the circumstance that the complainant fell asleep again after having been kissed to cast any doubt on the veracity of her evidence. She was affected by alcohol and in shock. She may well also have been in denial about what had occurred and reluctant to believe that it had actually happened. There is no such thing as an 'objective' or even typical response to that kind of event since individuals respond differently to such events."
R A Hulme J adopted both of these observations in Maughan v R at [2] as follows: "I particularly endorse what their Honours have said about what I would describe as the futility of assessing the behaviour of sexual assault complainants by reference to stereotypical expectations. The criminal law has moved past the era in which this was often prominent in a defence to a sexual assault allegation. Jurors applying a sensible and mature understanding of human behaviour are far less likely now to be persuaded by such propositions."
In the present matter the two complainants migrated from Syria when they were both very young children in the 1970s. Their parents were very strict (as recounted in the evidence of George Rivera) and were also close to the applicant's family. Not only was awareness and education about child sexual assault very different in the 1970s, the complainants came from a different cultural background and had English as a second language. For my part, I certainly do not feel able to make any helpful assessment as how such a person would respond to the abuse described by both complainants.
As I have stated above, there was complaint evidence which supported the Crown case. A common feature of this evidence is that the complainants did not want their secret made public.
As for the complaint that the mother and the complainants had colluded to change their evidence as to when and for how long Aunt Donna worked outside the home, even if I accepted that submission, it would not be such as to raise a reasonable doubt as to the applicant's guilt given all of the other evidence in the trial.
The nub of the applicant's contention that the verdicts are unreasonable is that there are simply too many discrepancies in their evidence. I have considered this submission and the significance of the discrepancies relied upon by the applicant. In doing so I have had regard to the observations of Leeming JA in Cabot (a pseudonym) v R [2018] NSWCCA 265 (at [59]-[60]) and I adopt them as apposite in the present case: "In almost every case which depends on testimonial evidence, witnesses will give inconsistent evidence. That is especially so in any case where the witness originally makes a complaint and later is asked to give evidence about it and is cross-examined about it. Material inconsistencies can of course detract from the probative value of a witness's testimony. However, the mere fact of inconsistent evidence does not of itself entail that a verdict cannot be sustained. Indeed, if the witness is capable of a mechanically perfect reproduction of evidence originally given in an interview or a statement months or years before, the appropriate inference may be that the witness has learned his or her lines but has little actual recollection of what occurred. Thus, it has commonly been stated that there is no necessary unreasonableness for the jury to accept some inconsistencies in the complainant's evidence. As McHugh J observed in M v The Queen at 534, '[i]t is the everyday experience of the courts that honest witnesses are frequently in error about the details of events'. Recently, in Palmer v R [2018] NSWCCA 205, Basten JA said (with the agreement of McCallum and Bellew JJ) at [51]: 'At the most general level, a suggestion that a witness must be credible in relation to all aspects of her evidence, or none, defies common sense. First, it elides questions of unreliability and untruthfulness. Once those elements are separated, it will generally be accepted that even witnesses who lie do not lie about everything, and witnesses who are unreliable in one respect may be perfectly reliable in another.'"
Juries play a vital role in all criminal trials but particularly so in sexual assault trials which rely so heavily on whether the complainant is to be believed. As McCallum J (as her Honour then was) observed in Hawi v R [2014] NSWCCA 83 at [480]: "The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function."
Having reviewed the whole of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty on all counts upon which he was convicted.
I would not uphold ground 1.

[72]

Hypnosis Therapy

The applicant contended that Victoria had undergone hypnosis prior to going to police. This was denied by Victoria.
The "hypnosis" issue arose when Yvette attempted to telephone the applicant in 2012 to make a "pretext" call. She sought to engage the applicant in a discussion about the alleged sexual assaults. As it happened Aunt Donna answered the phone and Yvette did not ultimately get to speak to the applicant. The conversation between Yvette and Aunt Donna was in Arabic. Most of the conversation involved Aunt Donna querying why the allegations had come up now. Yvette explains to her aunt that Victoria got sick and the allegations followed that. The following exchange took place at the end of the recorded telephone call: "[Yvette]: I wish things kind of different. But.. [Aunt Donna]: We wish too. Things are revealed now after all these years!! after all these years living together. [Yvette]: Yea, because we did not want any problems. That's why no one said anything. [Aunt Donna]: Ah!! [Yvette]: That's why no one said anything. [Aunt Donna]: But when [Victoria] had an operation after the accident, my mother was with her. [Yvette]: What operation. [Aunt Donna]: When she had an incident. [Yvette]: He leg's operation. [Aunt Donna]: Did I leave her? Did I leave her? [Yvette]: I am not saying anything bad about you. Why are you getting so defensive? I am not.. [Aunt Donna]: I am not being defensive, but why did this thing come up now. [Yvette]: Because [Victoria] became sick of it, Aunty [Aunt Donna]: She became sick? [Yvette]: Yea [Aunt Donna]: Ok God knows everything. I hope she gets better [Yvette]: He does. You know why that thing happened, Aunty, because the Psychiatrist hypnotised her, and you know when something like that happens. She said everything and they record everything. [Aunt Donna]: I know. [Yvette]: That's what happened and she told the truth. And she kept it all secret..because"
The conversation was translated into English, with the Arabic word "maghnatees" translated as "hypnotised".
Victoria gave evidence in September 2018 that she had never undergone hypnosis therapy and nor had she told her mother or her sister that she had.
The complainants' mother gave evidence on the voir dire in September 2018 that Victoria had never mentioned to her that she had been hypnotised. She stated that she was aware that Victoria had been seeking help, and that she previously believed the word "manghnatees" referred to a female psychiatrist, rather than hypnosis therapy.
Yvette made a statement to police on 17 September 2018 in which she denied that she was "ever certain or had any knowledge that Victoria was hypnotised". She stated that the only thing that may have led her to say that was that she had heard her mother mention in a telephone conversation words to the effect of "[w]hen [Victoria] was sick, a psychiatrist assessed her and said that she was abused, and then she told them everything". Yvette stated that she had never had a conversation with Victoria about being hypnotised and had never been told that by anyone.
Yvette gave evidence on the voir dire before Armitage DCJ stating that she had not been told that her sister had been hypnotised and had not meant to communicate hypnotism by use of the word "maghnatees" in the telephone conversation with her Aunt Donna. She believed the word "had to do with psychiatrists".
The applicant's daughter and the complainants' cousin, Olivia, gave evidence in September 2018 that she received a phone call from Victoria in mid-2013 in which Victoria told her that "she had undergone hypnosis and that's how she knew what had happened with my dad and she has proof, on paper, of the hypnosis".

[73]

EMDR

Victoria gave evidence that she began EMDR therapy in June 2016 and did approximately six sessions in total over the next two years. She explained that the EMDR sessions occurred after she had given her statements to police (signed on 9 July 2014 and 17 November 2015) and received other types of counselling. Her evidence as to the procedure was that: "I was always conscious and aware of what was happening. I was never hypnotised in any way. […] This therapy did not cause me to recover any memories nor did it make more vivid the memories that I had. If anything, these sessions helped me think about my memories less and helped me suppress my traumatic thoughts."
A 2015 expert report on EMDR authored by Mr Graham Taylor was tendered on the voir dire. Mr Taylor gave evidence about the process of EMDR and its effects on a patient's memory. He explained the goals of EMDR as "the alleviation of presenting symptoms, a decrease or elimination of distress from the disturbing memory, improved view of self, relief from body disturbance, and resolution of present and anticipated triggers". Common outcomes include the memory being "harder to recall… further away… [and] less detailed". It is possible that a client who has had EMDR "may not have the level of detail" that they had before and for this reason it is important to have a prior record such as a police statement taken before therapy.
Mr Taylor's evidence was that while it was "possible" for EMDR to create new memories, EMDR was not specifically used for the purpose of memory retrieval. Mr Taylor also stated that, for the purposes of a client giving evidence in court, it was important that detailed records be kept, to show that the work did not include procedures "that might lead to the formation of false memories". In relation to Victoria's treatment, Mr Taylor indicated that "very scant" details were available in this respect.
The therapist who administered the EMDR treatment to Victoria was Ms Schaus. She provided a letter confirming that the treatments were performed but she declined to give evidence by AVL (Ms Schaus practises in the United States and Victoria's treatment was performed there). Ms Schaus stated in her letter that Victoria "was always aware of being in the present and was never in an altered state".

[82]

EMDR

The applicant's second argument based on Victoria having had some EMDR treatment is also misconceived. It is accepted that there have been concerns raised as to the impact of hypnosis or EMDR treatment on the evidence of witnesses but those concerns have arisen where hypnosis or EMDR have been used to revive memory.
In Jenkyns, the witness gave a statement to police in which he recalled seeing the accused wearing a football jersey, shorts, and a pair of white runners. Nine days after giving his statement to police, the witness was hypnotised by a police officer in order to find out whether there were any small aspects which he had forgotten. During the hypnosis, the witness repeated that he was unable to see the detail of the accused's footwear. This was because the accused was too far away or because the light was "not good". It was then suggested (by implication) by the police officer conducting the hypnosis that the witness could in fact see that detail. Shortly afterwards the witness agreed that he could.
During and after the hypnosis in Jenkyns, the witness recalled that the runners were fairly dirty with no stripes or markings on their side except for a brand name written in dark lettering down the side of the laces. In evidence, the witness identified a Reebok Phase One tennis shoe as being "very very similar" to those worn by the accused. Significantly, at the time of the hypnosis, and at trial, the police believed that the person who committed the murder was wearing Reebok shoes. Hunt CJ at CL excluded the evidence relating to the details of the shoes because (at 726-7): "There [are] many areas of concern in relation to the reliability of this hypnotically induced evidence… There are the implied suggestions made by [the police officer] as to the capacity of [the witness] to see what he was saying that he could not see, the emphasis placed both prior to and during the hypnosis upon the importance of his answers in relation to the type of footwear worn by the accused, [the police officer's] lack of independence from the police force, the presence of one of the investigating officers during the hypnosis session, the significant discrepancy between the recollection of [the witness] during the hypnosis session and his subsequent hypnotically induced statement and evidence, and the absence of any reason for [the witness] to have perceived this detail about the accused's footwear in the first place … Taken cumulatively … these concerns prevent me from being satisfied that the hypnotically induced evidence given by Lewis is sufficiently reliable as to provide a prima facie reason for admitting it, and that evidence is rejected."
In Tillott, the witness' evidence changed significantly following a session of EMDR therapy. In those circumstances Abadee J (Grove and James JJ agreeing) held that (at 9): "it is clear [from his post-EMDR statement], that [the witness] had a much more specific memory of the incident in question than he did [before the EMDR] … In the first statement he said: 'I cannot remember which prisoner did what…' … In the second statement he identified with some specification the role of each of the accused, what each did to him, that is who assaulted him and in what way."
The EMDR session in Tillott was not video recorded. Abadee J found that EMDR presented many of the same dangers as hypnosis, and thus the "procedural safeguards" set out in R v McFelin [1985] 2 NZLR 750 and R v Jenkyns had to be applied (at 40). His Honour found that the evidence ought to have been excluded either because of non-compliance with the procedural safeguards or because of unfairness to the accused (at 40-41).
Both Tillott and Jenkyns were determined prior to the enactment of the Evidence Act.
In R v KG (2001) 54 NSWLR 198; [2001] NSWCCA 510 at [29], this Court heard a stated question under the then s 5A(2)(a) of the Criminal Appeal Act. The question for determination was (at [10]): "Does EMDR (eye movement desensitisation and reprocessing), undertaken for therapeutic purposes, act retrospectively to take evidence which is consistent with accounts given prior to EMDR having taken place, thereby rendering it inadmissible?"
Priestley JA, with whom Greg James and Kirby JJ agreed, found at [29]: "The result is, in my opinion, that Tillott had the consequence that a trial judge might reject the evidence of a witness who had undergone EMDR which was not video recorded, because of that fact alone, but would not, because of the lack of video recording, be bound to exclude it." [emphasis added]
In J G, the Crown sought to adduce evidence of video recorded interviews conducted in September 2003 with a child witness. The child witness subsequently undertook two sessions of hypnosis in October 2003. Cross-examination was to occur at trial in 2009. The trial judge found that the evidence was inadmissible either on the basis of Tillott or under s 137. The Court of Criminal Appeal found that the trial judge erred in refusing to admit the evidence. Basten JA found at [131] that: "The possibility that the two sessions of hypnosis have increased the confidence of the daughter in the memories earlier recorded must be acknowledged. However, the evidence did not support giving that factor significant weight. As his Honour noted, the Court 'knows very little about what has happened to [the child witness] in the nearly six years which have elapsed since the hypnosis sessions': at [173]. That is true, but common. The effectiveness of cross-examination is frequently diminished by the lapse of time and loss of memory. Cross-examination of a witness with a full recollection of the events at the time of the matter in question is not a universal requirement of a fair trial, but merely a consideration to be taken into account in particular circumstances."
R S Hulme J found at [174] that: "[…] The fact of hypnosis means that [the accused] would, in the words quoted by Buddin J, 'no longer have the same witness to cross-examine'. I have no difficulty in accepting that in some circumstances that would amount to unfair prejudice of a high order (though often no higher than if the author of a statement had died or otherwise become unavailable). However, […] it is clear that there is no inflexible rule that hypnotically-induced testimony is inadmissible - R v Jenkyns (1993) 32 NSWLR 712 at 714. Because it seems to me in the highest degree unlikely that the Accused would choose to challenge virtually all of [the child's] testimony as recorded in the January 2003 interviews, in the circumstances of this case, I do not regard that danger of unfair prejudice as high and certainly not so high as to outweigh the probative value of [the child's] evidence as recorded in the January 2003 interviews."
None of these cases concern a case such as the present where the EMDR is undergone after the police statements have been made and there is no evidence of any apparent change in the witness's recollection after the treatment.
Section 137 of the Evidence Act provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. There could be no doubt that the probative value of Victoria's evidence was very high. None of the charges relating to Victoria could have been established without her evidence
It has been held that the danger of unfair prejudice means the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the issues in the case: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[92]. The applicant did not suggest that there was any risk that Victoria's evidence could be misused by the jury in some unfair way logically unconnected with the issues in the case. In submissions before both the trial judge and in this Court the applicant relied upon the forensic disadvantage he would suffer such that Victoria's evidence should be excluded.
Even if suffering a forensic disadvantage could be equated with a risk of unfair prejudice in this case, the applicant has not identified any forensic disadvantage suffered by the applicant at trial. It was always open to the applicant to test whether there were any revived memories following the EMDR therapy by comparing Victoria's police statements with the evidence she ultimately gave at trial. There was no attempt to do so on this appeal.
The applicant has not established any error, whether under House v The King or otherwise.
I would reject ground 2(a).

[89]

Consideration

The meaning of "fresh in the memory" in s 66(2) of the Evidence Act was considered by the High Court in Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61. Gaudron, Gummow and Hayne JJ explained the meaning of the phrase in its statutory context as follows (at 608): "The word 'fresh' in its context in s 66, means 'recent' or 'immediate'. It may also carry with it the connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time') but the core of the meaning intended, is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation. Although questions of fact and degree may arise the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years."
In the years following this decision complaint evidence was only adduced under s 66(2) of the Evidence Act if it was made in the "hours or days" after the occurrence of the asserted fact. Despite this, complaint evidence that did not have this temporal connection was invariably adduced under s 108(3) of the Evidence Act instead.
Section 108(3) of the Evidence Act arose for consideration in any sexual assault trial where complaint was made that was not considered "fresh" and the defence case was that the complainant's allegation was an invention or fabrication. In such cases the Crown would be granted leave to adduce the evidence of any prior consistent statements, namely any evidence of complaint, to restore the credibility of the complainant (if the nature of the complaint evidence had the capacity to do so). Once the evidence was admissible under s 108(3), the operation of 60 of the Evidence Act means that it becomes admissible as evidence of the truth of its contents. The question of whether its use should be limited under s 136 turned on the facts in each case.
Subsection (2A) of s 66 of the Evidence Act was inserted on 1 January 2009 as a response to the decision of the High Court in Graham v The Queen.
Subsection (2A) was considered by this Court in R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 ("XY"). In XY, the alleged offences occurred in 2003 and 2004 and the complainant told a school friend about the abuse in 2007. Whealy J observed that the time elapsed between the alleged offences and the complaint remains a relevant but not determinative consideration under s 66(2): at [79]. Other factors relevant to the finding that events were "fresh in the memory" of the complainant in 2007 included the distinguishing features and details of the offending in the representations and that the complainant was "clearly embarrassed, troubled and not at all like his normal self" (at [84]). Whealy J concluded at [85] that: "All these aspects of the representation, especially the nature of the event described, suggested forcibly and persuasively that the occurrence of the sexual incidents was indeed 'fresh in the memory' of the complainant at the time it was made in 2007. Importantly, the complainant had placed the events as occurring when he had been in Years 2 and 3 at school. He had, in fact, been in Year 2 in 2003 and Year 3 in 2004. There was no inexactness or contradiction about the period of time … Moreover, as I have said, the very nature of the events described, and their unusual features, had been recounted to [the complainant's friend] in a manner that suggested those events were well and truly implanted in the complainant's memory. Despite, the vivid picture painted, the trial judge appears to have paid no attention to, nor taken into account, this very telling feature."
The High Court considered s 66(2A) of the Evidence Act in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 ("Bauer"). Their Honours explained the effect of subs (2A) as follows: "[89] In Graham v The Queen, a majority of this Court held that, as s 66 of the Evidence Act 1995 (NSW) was then drafted, its use of the word "fresh" imported a close temporal relationship between the occurrence of the asserted fact and the time of making the representation and hence that contemporaneity was the most important consideration in assessing a representation under that section. Thereafter, sub-s (2A) was inserted into s 66 of the Evidence Act to make clear that the intention of the section is that 'freshness' is not confined to the time which elapses between the occurrence of the relevant event and the making of the representation about that event. Since then, it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years. It depends on the facts of the case." (footnotes omitted) [emphasis added]
In Bauer, representations were made by the complainant about events that had occurred over a period of ten years before the complaint was made. These were held to be admissible under s 66(2) because: "[92] ... given the nature of the sexual acts alleged, the fact that they were repeated time and again over a period of years, the fact that it seems they continued up to less than a year before the conversation with [the complainant's friend], and [the complainant's] highly emotional state at the time of the conversation with [her friend], it is very probable that the events disclosed to [the complainant's friend] were vivid in [the complainant's] recollection at the time of the conversation and would remain so for years to come." (footnotes omitted)
Similarly, in R v Gregory-Roberts [2016] NSWCCA 92, complaints made two years and four years after the events occurred were held to be "fresh in the memory" of the complainant at the time she made the representations because: "[47] These were all, unquestionably, most unusual experiences for any 11 year old child to have when seeing an ophthalmologist, after school, in his rooms. Further light is shed on the nature of those experiences for the complainant, by the evidence that, at the time, she came to consider the respondent to have been her boyfriend. Contrary to the respondent's submissions, all of this evidence is capable of informing a conclusion that these were memorable, complex and emotionally arousing experiences for the complainant. [48] This, when considered together with the complainant's youth and her naivety in sexual terms when she was aged only 11 years, made it highly likely that the memory of these events would endure in her memory for years to come. That is consistent with these events being still fresh in her memory at the time that she made the representations in issue to the three proposed witnesses, when only some two and four years had passed since the events were alleged to have occurred." (per Schmidt J, McCallum and R A Hulme JJ agreeing)
Having had regard to the principles derived from these decisions, I am satisfied that the circumstances in which complaint was made each time (distress), the particular details provided and the fact that the sexual abuse at the hands of their uncle (the applicant) was clearly something burned into their memories are all relevant factors to take into account and were in fact taken into account by the trial judge.
The fact that the complaints were made on an ongoing basis over the years is a highly relevant matter when considering whether some of the latter complaints were still fresh in the memory of the complainants. The applicant submitted that if complaint made 30-40 years after the asserted fact is held to be admissible under s 66(2) "then it is difficult to imagine a situation where a complaint in a historic child sexual abuse matter would ever be excluded …". The difficulty with this submission is that there is a significant difference between a complainant disclosing alleged abuse for the first time after a 30-year period and having disclosed it numerous times over the years to different people during that same time period. Even then, it may be that the former will be considered to still be fresh; it will depend on the facts in each case.
The trial judge was made aware of the relevant test and set out the relevant delay in relation to each witness in his judgment. The applicant has not identified any House v The King error not any error at all in the judgment of the trial judge. The nub of the complaint is that complaint evidence made to some of the later witnesses was so old that it could never be admissible under s 66(2) as hearsay evidence. I am not satisfied that this is the case.
Even if the argument under s 66(2) had been successful, the evidence was otherwise admissible under s 108(3) for the reasons I have explained above at [333].
I would not uphold this ground.

Kassab (a pseudonym) v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (90 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (48)

Cited By (7)